[Federal Register Volume 83, Number 145 (Friday, July 27, 2018)]
[Rules and Regulations]
[Pages 36370-36397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-16115]
[[Page 36369]]
Vol. 83
Friday,
No. 145
July 27, 2018
Part III
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 219
Taking and Importing Marine Mammals; Taking Marine Mammals Incidental
to Northwest Fisheries Science Center Fisheries Research; Final Rule
Federal Register / Vol. 83 , No. 145 / Friday, July 27, 2018 / Rules
and Regulations
[[Page 36370]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 219
[Docket No. 151027994-6421-02]
RIN 0648-BF47
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Northwest Fisheries Science Center Fisheries Research
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS' Office of Protected Resources (OPR), upon request of
NMFS' Northwest Fisheries Science Center (NWFSC), hereby issues
regulations to govern the unintentional taking of marine mammals
incidental to fisheries research conducted in the Pacific Ocean over
the course of five years. These regulations, which allow for the
issuance of Letters of Authorization (LOA) for the incidental take of
marine mammals during the described activities and specified
timeframes, prescribe the permissible methods of taking and other means
of effecting the least practicable adverse impact on marine mammal
species or stocks and their habitat, as well as requirements pertaining
to the monitoring and reporting of such taking.
DATES: Effective from August 27, 2018, through August 28, 2023.
ADDRESSES: A copy of NWFSC's application and supporting documents, as
well as a list of the references cited in this document, may be
obtained online at: www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-nwfsc-fisheries-and-ecosystem-research. In
case of problems accessing these documents, please call the contact
listed below (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Purpose and Need for Regulatory Action
These regulations, issued under the authority of the Marine Mammal
Protection Act (MMPA) (16 U.S.C. 1361 et seq.), establish a framework
for authorizing the take of marine mammals incidental to the NWFSC's
fisheries research activities in the California Current and Pacific
Northwest.
The NWFSC collects a wide array of information necessary to
evaluate the status of exploited fishery resources and the marine
environment. NWFSC scientists conduct fishery-independent research
onboard NOAA-owned and operated vessels or on chartered vessels. A few
surveys are conducted onboard commercial fishing vessels, but the NWFSC
designs and executes the studies and funds vessel time.
We received an application from the NWFSC requesting five-year
regulations and authorization to take multiple species of marine
mammals. Take is anticipated to occur by Level B harassment incidental
to the use of active acoustic devices, as well as by visual disturbance
of pinnipeds, and by Level A harassment, serious injury, or mortality
incidental to the use of fisheries research gear. The regulations are
valid for five years from the date of issuance. Please see
``Background'' below for definitions of harassment.
Legal Authority for the Proposed Action
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs
the Secretary of Commerce to allow, upon request, the incidental, but
not intentional taking of small numbers of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) within a specified geographical region for up to five years
if, after notice and public comment, the agency makes certain findings
and issues regulations that set forth permissible methods of taking
pursuant to that activity, as well as monitoring and reporting
requirements. Section 101(a)(5)(A) of the MMPA and the implementing
regulations at 50 CFR part 216, subpart I provide the legal basis for
issuing this final rule containing five-year regulations, and a
subsequent LOA. As directed by this legal authority, this final rule
contains mitigation, monitoring, and reporting requirements.
Summary of Major Provisions Within the Final Rule
The following provides a summary of some of the major provisions
within the rulemaking for the NWFSC fisheries research activities. We
have determined that the NWFSC's adherence to the planned mitigation,
monitoring, and reporting measures listed below will achieve the least
practicable adverse impact on the affected marine mammals. They
include:
Required monitoring of the sampling areas to detect the
presence of marine mammals before deployment of certain research gear.
Required use of acoustic deterrent devices on surface
trawl nets.
Required implementation of the mitigation strategy known
as the ``move-on rule mitigation protocol'' which incorporates best
professional judgment, when necessary during certain research fishing
operations.
Background
Paragraphs 101(a)(5)(A) and (D) of the MMPA (16 U.S.C.
1371(a)(5)(A) and (D)) direct the Secretary of Commerce to allow, upon
request, the incidental, but not intentional, taking of small numbers
of marine mammals by U.S. citizens who engage in a specified activity
(other than commercial fishing) within a specified geographical region
if certain findings are made and either regulations are issued or, if
the taking is limited to harassment, a notice of a proposed
authorization is provided to the public for review.
An authorization for incidental takings shall be granted if NMFS
finds that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, monitoring and reporting of such takings
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103
as ``an impact resulting from the specified activity that cannot be
reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.''
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as: Any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment); or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
Summary of Request
On August 10, 2015, we received an adequate and complete request
from NWFSC for authorization to take marine mammals incidental to
fisheries research activities. We received an initial draft of the
request on January 2, 2015, followed by a revised draft on April 28,
2015. On August 28, 2015 (80 FR 52256), we published a notice of
receipt of NWFSC's application in the Federal Register, requesting
comments and information related to the NWFSC
[[Page 36371]]
request for 30 days. We received comments jointly from The Humane
Society of the United States and Whale and Dolphin Conservation, which
we considered in development of the notice of proposed rulemaking (81
FR 38516; June 13, 2016) and which are available online at:
www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-nwfsc-fisheries-and-ecosystem-research.
NWFSC plans to conduct fisheries research with trawl gear used at
various levels in the water column, hook-and-line gears (including
longlines with multiple hooks, rod and reel, and troll deployments),
purse seine/tangle net gear, and other gear. If a marine mammal
interacts with gear deployed by NWFSC, the outcome could potentially be
Level A harassment, serious injury (i.e., any injury that will likely
result in mortality), or mortality. Therefore, NWFSC has pooled the
estimated number of incidents of take that could reasonably result from
gear interactions, and we have assessed the potential impacts
accordingly. NWFSC also uses various active acoustic devices in the
conduct of fisheries research, and use of these devices has the
potential to result in Level B harassment of marine mammals. Level B
harassment of pinnipeds hauled out may also occur, as a result of
visual disturbance from vessels conducting NWFSC research. These
regulations are valid for five years from the date of issuance.
NWFSC requests authorization to take individuals of 16 species by
Level A harassment, serious injury, or mortality (hereafter referred to
as M/SI) and of 34 species by Level B harassment.
Description of the Specified Activity
Overview
The NWFSC collects a wide array of information necessary to
evaluate the status of exploited fishery resources and the marine
environment. NWFSC scientists conduct fishery-independent research
onboard NOAA-owned and operated vessels or on chartered vessels. A few
surveys are conducted onboard commercial fishing vessels, but the NWFSC
designs and executes the studies and funds vessel time. The NWFSC plans
to administer and conduct approximately 36 survey programs over the 5-
year period. The gear types used fall into several categories: Towed
nets fished at various levels in the water column, longline and other
hook and line gear, seine nets, traps, and other gear. Only use of
trawl nets, hook and line gears, and purse seine nets are likely to
result in interaction with marine mammals. Many of these surveys also
use active acoustic devices.
The Federal government has a responsibility to conserve and protect
living marine resources in U.S. waters and has also entered into a
number of international agreements and treaties related to the
management of living marine resources in international waters outside
the United States. NOAA has the primary responsibility for managing
marine finfish and shellfish species and their habitats, with that
responsibility delegated within NOAA to NMFS.
In order to direct and coordinate the collection of scientific
information needed to make informed fishery management decisions,
Congress created six regional fisheries science centers, each a
distinct organizational entity and the scientific focal point within
NMFS for region-based, Federal fisheries-related research. This
research is aimed at monitoring fish stock recruitment, abundance,
survival and biological rates, geographic distribution of species and
stocks, ecosystem process changes, and marine ecological research. The
NWFSC is the research arm of NMFS in the northwest region of the United
States. The NWFSC conducts research and provides scientific advice to
manage fisheries and conserve protected species in the geographic
research area described below and provides scientific information to
support the Pacific Fishery Management Council and numerous other
domestic and international fisheries management organizations.
Dates and Duration
The specified activity may occur at any time during the five-year
period of validity of the regulations. Dates and duration of individual
surveys are inherently uncertain, based on congressional funding levels
for the NWFSC, weather conditions, or ship contingencies. In addition,
cooperative research is designed to provide flexibility on a yearly
basis in order to address issues as they arise. Some cooperative
research projects last multiple years or may continue with
modifications. Other projects only last one year and are not continued.
Most cooperative research projects go through an annual competitive
selection process to determine which projects should be funded based on
proposals developed by many independent researchers and fishing
industry participants.
Specified Geographical Region
The NWFSC conducts research in the Pacific Northwest and California
Current within three research areas: The California Current Research
Area (CCRA), Puget Sound Research Area (PSRA), and Lower Columbia River
Research Area (LCRRA). Please see Figures 1-2 through 1-4 in the NWFSC
application for maps of the three research areas. We note here that,
while the NWFSC specified geographical region extends outside of the
U.S. Exclusive Economic Zone (EEZ), from the Mexican EEZ (not including
Mexican territorial waters) north into the Canadian EEZ (not including
Canadian territorial waters), the MMPA's authority does not extend into
foreign territorial waters. These areas were described in detail in our
notice of proposed rulemaking (81 FR 38516; June 13, 2016); please see
that document for further detail.
Detailed Description of Activities
A detailed description of NWFSC's planned activities was provided
in our notice of proposed rulemaking (81 FR 38516; June 13, 2016) and
is not repeated here. No changes have been made to the specified
activities described therein.
Comments and Responses
We published a notice of proposed rulemaking in the Federal
Register on June 13, 2016 (81 FR 38516; June 13, 2016), and requested
comments and information from the public. During the thirty-day comment
period, we received a letter from the Marine Mammal Commission
(Commission). The comments and our responses are provided here, and the
comments have been posted online at: www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-nwfsc-fisheries-and-ecosystem-research. Please see the comment letter for full rationale
behind the recommendations we respond to below. No changes were made to
the proposed rule as a result of these comments.
Comment 1: The Commission provides general recommendations--not
specific to the proposed NWFSC rulemaking--that NMFS develop criteria
and guidance for determining when prospective applicants should request
taking by Level B harassment from the use of echosounders, other
sonars, and sub-bottom profilers and that NMFS formulate a strategy for
updating its generic behavioral harassment thresholds for all types of
sound sources as soon as possible.
Response: We appreciate the recommendations and will consider the
need for applicant guidance specific to the types of acoustic sources
mentioned by the Commission. Generally speaking, there has been a lack
of information and scientific consensus regarding the
[[Page 36372]]
potential effects of scientific sonars on marine mammals, which may
differ depending on the system and species in question as well as the
environment in which the system is operated. We are currently working
to ensure that the use of these types of active acoustic sources is
considered consistently and look forward to the Commission's advice as
we proceed.
With regard to revision of existing behavioral harassment criteria,
NMFS agrees that this is necessary. NMFS is continuing our examination
of the effects of noise on marine mammal behavior and plans to focus
our work in the coming years on developing guidance regarding the
effects of anthropogenic sound on marine mammal behavior. Behavioral
response is a complex question and we have determined that additional
time is needed to research and address it appropriately.
Comment 2: The Commission recommends that OPR require NWFSC to
estimate the numbers of marine mammals taken by Level B harassment
incidental to use of active acoustic sources (e.g., echosounders) based
on the 120-decibel (dB) rather than the 160-dB root mean square (rms)
threshold.
Response: Please see our notice of proposed rulemaking (81 FR
38516; June 13, 2016) for discussion related to acoustic terminology
and thresholds. The Commission repeats a recommendation made in prior
letters and, as we have previously indicated, we disagree with the
recommendation. Our previous response is repeated below.
Continuous sounds are those whose sound pressure level remains
above that of the ambient sound, with negligibly small fluctuations in
level (NIOSH, 1998; ANSI, 2005), while intermittent sounds are defined
as sounds with interrupted levels of low or no sound (NIOSH, 1998).
Thus, echosounder signals are not continuous sounds but rather
intermittent sounds. Intermittent sounds can further be defined as
either impulsive or non-impulsive. Impulsive sounds have been defined
as sounds which are typically transient, brief (<1 sec), broadband, and
consist of a high peak pressure with rapid rise time and rapid decay
(ANSI, 1986; NIOSH, 1998). Echosounder signals also have durations that
are typically very brief (<1 sec), with temporal characteristics that
more closely resemble those of impulsive sounds than non-impulsive
sounds, which typically have more gradual rise times and longer decays
(ANSI, 1995; NIOSH, 1998). With regard to behavioral thresholds, we
consider the temporal and spectral characteristics of echosounder
signals to more closely resemble those of an impulse sound than a
continuous sound.
The Commission suggests that, for certain sources considered here,
the interval between pulses would not be discernible to the animal,
rendering them effectively continuous. However, echosounder pulses are
emitted in a similar fashion as odontocete echolocation click trains.
Research indicates that marine mammals, in general, have extremely fine
auditory temporal resolution and can detect each signal separately
(e.g., Au et al., 1988; Dolphin et al., 1995; Supin and Popov, 1995;
Mooney et al., 2009), especially for species with echolocation
capabilities. Therefore, it is highly unlikely that marine mammals
would perceive echosounder signals as being continuous.
In conclusion, echosounder signals are intermittent rather than
continuous signals, and the fine temporal resolution of the marine
mammal auditory system allows them to perceive these sounds as such.
Further, the physical characteristics of these signals indicate a
greater similarity to the way that intermittent, impulsive sounds are
received. Therefore, the 160-dB threshold (typically associated with
impulsive sources) is more appropriate than the 120-dB threshold
(typically associated with continuous sources) for estimating takes by
behavioral harassment incidental to use of such sources. This response
represents the consensus opinion of acoustics experts from NMFS' Office
of Protected Resources and Office of Science and Technology.
Comment 3: The Commission notes that NMFS has delineated two
categories of acoustic sources, largely based on frequency, with those
sources operating at frequencies greater than the known hearing ranges
of any marine mammal (i.e., >180 kilohertz (kHz)) lacking the potential
to cause disruption of behavioral patterns. The Commission describes
the recent scientific literature on acoustic sources with frequencies
above 180 kHz (i.e., Deng et al., 2014; Hastie et al., 2014) and
recommends that we estimate numbers of takes associated with those
acoustic sources (or similar acoustic sources) with frequencies above
180 kHz that have been shown to elicit behavioral responses above the
120-dB threshold.
Response: We considered the information cited by the Commission in
our proposed rulemaking. NMFS's response regarding the appropriateness
of the 120-dB versus 160-dB rms thresholds was provided above in the
response to Comment #2. In general, the referenced work indicates that
``sub-harmonics'' could be ``detectable'' by certain species at
distances up to several hundred meters (m). However, this detectability
is in reference to ambient noise, not to NMFS's established 160-dB
threshold for assessing the potential for incidental take for these
sources. A behavioral response to a stimulus does not necessarily
indicate that Level B harassment, as defined by the MMPA, has occurred.
Source levels of the secondary peaks considered in these studies--those
within the hearing range of some marine mammals--range from 135-166 dB,
meaning that these sub-harmonics would either be below the threshold
for behavioral harassment or would attenuate to such a level within a
few meters. Beyond these important study details, these high-frequency
(i.e., Category 1) sources and any energy they may produce below the
primary frequency that could be audible to marine mammals would be
dominated by a few primary sources (e.g., EK60) that are operated near-
continuously--much like other Category 2 sources considered in our
assessment of potential incidental take from NWFSC's use of active
acoustic sources--and the potential range above threshold would be so
small as to essentially discount them.
Mitigation
In order to issue an incidental take authorization under section
101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods
of taking pursuant to such activity, and other means of effecting the
least practicable adverse impact on such species or stock and its
habitat, paying particular attention to rookeries, mating grounds, and
areas of similar significance, and on the availability of such species
or stock for subsistence uses. We provided a full description of the
planned mitigation measures, including background discussion related to
certain elements of the mitigation plan, in our notice of proposed
rulemaking (81 FR 38516; June 13, 2016). Please see that document for
more detail.
NMFS has considered many potential mitigation measures, including
those the NWFSC has determined to be feasible and has implemented in
recent years as a standard part of sampling protocols. These measures
include the move-on rule mitigation protocol (also referred to in the
preamble as the move-on rule), protected species visual watches and use
of acoustic pingers on trawl gear, as well as use of a marine mammal
excluder device (MMED) in Nordic 264 trawl nets.
[[Page 36373]]
General Measures
Coordination and communication--We require that the NWFSC take all
necessary measures to coordinate and communicate in advance of each
specific survey with NOAA's Office of Marine and Aviation Operations
(OMAO), or other relevant parties, to ensure that all mitigation
measures and monitoring requirements described herein, as well as the
specific manner of implementation and relevant event-contingent
decision-making processes, are clearly understood and agreed-upon. This
may involve description of all required measures when submitting cruise
instructions to OMAO or when completing contracts with external
entities. NWFSC will coordinate and conduct briefings at the outset of
each survey and as necessary between the ship's crew (commanding
officer/master or designee(s), as appropriate) and scientific party in
order to explain responsibilities, communication procedures, marine
mammal monitoring protocol, and operational procedures. The chief
scientist (CS) will be responsible for coordination with the Officer on
Deck (OOD; or equivalent on non-NOAA platforms) to ensure that
requirements, procedures, and decision-making processes are understood
and properly implemented.
Vessel speed--Vessel speed during active sampling rarely exceeds 5
knots (kn), with typical speeds being 2-4 kn. Transit speeds vary from
6-14 kn but average 10 kn. These low vessel speeds minimize the
potential for ship strike. At any time during a survey or in transit,
if a crew member standing watch or dedicated marine mammal observer
sights marine mammals that may intersect with the vessel course, that
individual will immediately communicate the presence of marine mammals
to the bridge for appropriate course alteration or speed reduction, as
possible, to avoid incidental collisions.
Other gears--The NWFSC deploys a wide variety of gear to sample the
marine environment during all of their research cruises. Many of these
types of gear (e.g., plankton nets, video camera and remotely-operated
vehicle (ROV) deployments) are not considered to pose any risk to
marine mammals and are therefore not subject to specific mitigation
measures. However, at all times when the NWFSC is conducting survey
operations at sea, the OOD and/or CS and crew will monitor for any
unusual circumstances that may arise at a sampling site and use best
professional judgment to avoid any potential risks to marine mammals
during use of all research equipment.
Handling procedures--The NWFSC will implement a number of handling
protocols to minimize potential harm to marine mammals that are
incidentally taken during the course of fisheries research activities.
In general, protocols have already been prepared for use on commercial
fishing vessels. Because incidental take of marine mammals in fishing
gear is similar for commercial fisheries and research surveys, NWFSC
proposes to adopt these protocols, which are expected to increase post-
release survival. In general, following a ``common sense'' approach to
handling captured or entangled marine mammals will present the best
chance of minimizing injury to the animal and of decreasing risks to
scientists and vessel crew. Handling or disentangling marine mammals
carries inherent safety risks, and using best professional judgment and
ensuring human safety is paramount.
Captured live or injured marine mammals are released from research
gear and returned to the water as soon as possible with no gear or as
little gear remaining on the animal as possible. Animals are released
without removing them from the water if possible, and data collection
is conducted in such a manner as not to delay release of the animal(s)
or endanger the crew. NWFSC staff will be instructed on how to identify
different species, handle and bring marine mammals aboard a vessel,
assess the level of consciousness, remove fishing gear, and return
marine mammals to water.
Trawl Survey Visual Monitoring and Operational Protocols
Specific mitigation protocols are required for all trawl operations
conducted by the NWFSC using Nordic 264 surface trawl gear, midwater
trawl gear (modified Cobb, Aleutian Wing, and various commercial nets),
and bottom trawl gear (double-rigged shrimp, Poly Nor'easter, modified
Aberdeen, beam, and various commercial nets). Separate protocols
(described below) are in place for the Kodiak surface trawl and pair
trawl gear. Marine mammal watches will be conducted for at least ten
minutes prior to the beginning of the planned set and throughout the
tow and net retrieval, by scanning the surrounding waters with the
naked eye and rangefinding binoculars (or monocular). Lookouts
immediately alert the OOD and CS as to their best estimate of the
species and number of animals observed and any observed animal's
distance, bearing, and direction of travel relative to the ship's
position. The CS must confirm with the OOD that no marine mammals have
been seen within 500 m (or as far as may be observed if less than 500
m) of the ship or appear to be approaching the ship during the pre-set
watch period prior to the deployment of any trawl gear. During
nighttime operations, visual observation may be conducted using the
naked eye and available vessel lighting but effectiveness is limited.
The visual observation period typically occurs during transit leading
up to arrival at the sampling station, rather than upon arrival on
station. However, in some cases it may be necessary to conduct a
plankton tow or other small net cast prior to deploying trawl gear. In
these cases, the visual watch will continue until trawl gear is ready
to be deployed. Aside from pre-trawl monitoring, the OOD/CS and crew
standing watch will visually scan for marine mammals during all daytime
operations.
It is important to note that the 500 m distance is provided only as
a frame of reference for marine mammal observations that would
nominally be of greater concern as regards the potential for
interaction with research fishing gear. The primary concern is to avoid
all marine mammal interactions (regardless of the numbers of takes
proposed for authorization here), and the most appropriate course of
action to achieve this goal in any given instance is likely to be
related more to event-specific elements than to an arbitrary distance
from the vessel. Depending on unpredictable contextual elements,
animals sighted at distances greater than 500 m could provoke
mitigation action or, conversely, animals sighted at closer range could
be determined to not be at risk of interacting with research fishing
gear. The NWFSC considers 500 m to be the average effective observation
distance, but the actual effective range is determined by numerous
factors related to the weather, ship observations, and the species
observed.
The primary purpose of conducting pre-trawl visual monitoring is to
implement the move-on rule. If marine mammals are sighted within 500 m
(or as far as may be observed if less than 500 m) of the vessel and are
considered at risk of interacting with the vessel or research gear, or
appear to be approaching the vessel and are considered at risk of
interaction, NWFSC may elect to either remain onsite to see if the
animals move off or may move on to another sampling location. When
remaining onsite, the set is delayed (typically for at least ten
minutes) and, if the animals depart or appear to no longer be at risk
of interacting with the vessel or gear, a further ten minute
observation period is
[[Page 36374]]
conducted. If no further observations are made or the animals still do
not appear to be at risk of interaction, then the set may be made. If
the vessel is moved to a different section of the sampling area, move-
on rule mitigation protocols would begin anew. If, after moving on,
marine mammals remain at risk of interaction, the CS or watch leader
may decide to move again or to skip the station. Marine mammals that
are sighted further than 500 m from the vessel would be monitored to
determine their position and movement in relation to the vessel. If
they appear to be closing on the vessel, the move-on rule protocols may
be implemented even if they are initially further than 500 m from the
vessel.
For surface trawl surveys (i.e., those surveys deploying the Nordic
264 net), which have historically presented the greatest risk of marine
mammal interaction, dedicated crew are assigned to marine mammal
monitoring duty (i.e., have no other tasks) and care is taken to
provide some rest periods for observers to avoid fatigue. At least two
pairs of binoculars are available for verification of potential
sightings. As the vessel approaches the station, the OOD and at least
one assigned member of the scientific party monitor for marine mammals.
Within several minutes of arriving on station and finishing their
sampling duties, two additional members of the scientific party are
assigned to monitor for marine mammals and, for the remainder of the
tow, there would be a minimum of three members of the scientific party
watching for marine mammals. Depending on the situational context
(e.g., numbers of marine mammals seen during the station approach or
expected at that particular place and season), additional crew may be
assigned to stand watch as necessary to provide full monitoring
coverage around the vessel. Up to eight observers in total (including
ship's crew standing watch) may be on duty during active trawling. The
focus on the full area around the ship continues until trawl retrieval
begins, at which point observational focus turns to the stern and the
trawl net itself.
For midwater and bottom trawl surveys, the pre-set watch period is
conducted by the OOD and bridge crew and typically occurs during
transit prior to arrival at the sampling station but may also include
time on station if other types of gear or equipment (e.g., bongo nets)
are deployed before the trawl. For these trawls, risk of interaction
during the tow is lower and monitoring effort is reduced to the bridge
crew until trawl retrieval.
For all surveys, although the minimum pre-set watch period is ten
minutes, the actual monitoring period is typically longer. During
standard trawl operations, at least some of the trackline to be towed
is typically traversed prior to setting gear in order to check for
hazards. On surface trawl surveys, CTD casts and plankton/bongo net
hauls are made prior to setting the trawl. These activities can take
25-35 minutes after the vessel arrives on station, depending on water
depth, and monitoring for marine mammals continues throughout these
activities. Midwater trawls and bottom trawls do not typically deploy
other gears before deploying trawl gear, but reconnaissance of the
trackline often takes ten to fifteen minutes after arriving on station.
In addition, once the decision is made to deploy the trawl gear,
monitoring continues while the net is unspooled, which may take about
ten minutes. Before the trawl doors are deployed, the net floats closed
on the surface behind the vessel, and appropriate actions can be taken
if marine mammals are sighted near the ship. Therefore, the marine
mammal monitoring period--which begins before the vessel arrives on
station and extends continuously through gear deployment--typically
extends for over thirty minutes for all trawl types.
The effectiveness of visual monitoring may be limited depending on
weather and lighting conditions. The OOD, CS, or watch leader will
determine the best strategy to avoid potential takes of marine mammals
based on the species encountered and their numbers and behavior,
position, and vector relative to the vessel, as well as any other
factors. For example, a whale transiting through the sampling area in
the distance may only require a short move from the designated station,
whereas a pod of dolphins in close proximity to the vessel may require
a longer move from the station or possibly cancellation of the planned
tow if the group follows the vessel.
In general, trawl operations will be conducted immediately upon
arrival on station (and on conclusion of the pre-watch period) in order
to minimize the time during which marine mammals (particularly
pinnipeds) may become attracted to the vessel. However, in some cases
it will be necessary to conduct small net tows (e.g., bongo net) prior
to deploying trawl gear.
Once the trawl net is in the water, the OOD, CS, and/or crew
standing watch will continue to visually monitor the surrounding waters
and will maintain a lookout for marine mammal presence as far away as
environmental conditions allow. If marine mammals are sighted before
the gear is fully retrieved, the most appropriate response to avoid
marine mammal interaction will be determined by the professional
judgment of the CS, watch leader, OOD and other experienced crew as
necessary. This judgment will be based on past experience operating
trawl gears around marine mammals (i.e., best professional judgment)
and on NWFSC training sessions that will facilitate dissemination of
expertise operating in these situations (e.g., factors that contribute
to marine mammal gear interactions and those that aid in successfully
avoiding such events). Best professional judgment takes into
consideration the species, numbers, and behavior of the animals, the
status of the trawl net operation (e.g., net opening, depth, and
distance from the stern), the time it would take to retrieve the net,
and safety considerations for changing speed or course. We recognize
that it is not possible to dictate in advance the exact course of
action that the OOD or CS should take in any given event involving the
presence of marine mammals in proximity to an ongoing trawl tow, given
the sheer number of potential variables, combinations of variables that
may determine the appropriate course of action, and the need to
consider human safety in the operation of fishing gear at sea.
Nevertheless, we require a full accounting of factors that shape both
successful and unsuccessful decisions, and these details will be fed
back into NWFSC training efforts and ultimately help to refine the best
professional judgment that determines the course of action taken in any
given scenario (see further discussion in ``Monitoring and
Reporting'').
If trawling operations have been suspended because of the presence
of marine mammals, the vessel will resume trawl operations (when
practicable) only when the animals are believed to have departed the
area. This decision is at the discretion of the OOD/CS and is dependent
on the situation.
Standard survey protocols that are expected to lessen the
likelihood of marine mammal interactions include standardized tow
durations and distances. Standard tow durations of not more than thirty
minutes at the target depth will typically be implemented, excluding
deployment and retrieval time (which may require an additional thirty
minutes, depending on target depth), to reduce the likelihood of
attracting and incidentally taking marine mammals. Short tow durations
decrease the opportunity for marine mammals to find the vessel and
investigate. Trawl tow distances will be
[[Page 36375]]
less than 3 nautical miles (nmi)--typically 1-2 nmi, depending on the
specific survey and trawl speed--which is expected to reduce the
likelihood of attracting and incidentally taking marine mammals. In
addition, care will be taken when emptying the trawl to avoid damage to
marine mammals that may be caught in the gear but are not visible upon
retrieval. The gear will be emptied as quickly as possible after
retrieval in order to determine whether or not marine mammals are
present. The vessel's crew will clean trawl nets prior to deployment to
remove prey items that might attract marine mammals. Catch volumes are
typically small with every attempt made to collect all organisms caught
in the trawl.
Marine mammal excluder device--Excluder devices are specialized
modifications, typically used in trawl nets, which are designed to
reduce bycatch by allowing non-target taxa to escape the net. These
devices generally consist of a grid of bars fitted into the net that
allow target species to pass through the bars into the codend while
larger, unwanted taxa (e.g., turtles, sharks, mammals) strike the bars
and are ejected through an opening in the net. Marine mammal excluder
devices (MMED) have not been proven to be fully effective at preventing
marine mammal capture in trawl nets (e.g., Chilvers, 2008) and are not
expected to prevent marine mammal capture in NWFSC trawl surveys. It is
difficult to effectively test such devices, in terms of effectiveness
in excluding marine mammals as opposed to effects on target species
catchability, because realistic field trials would necessarily involve
marine mammal interactions with trawl nets. Use of artificial
surrogates in field trials has not been shown to be a realistic
substitute (Gibson and Isakssen, 1998). Nevertheless, we believe it
reasonable to assume that use of MMEDs may reduce the likelihood of a
given marine mammal interaction with trawl gear resulting in mortality.
We do not infer causality, but note that annual marine mammal
interactions with the Nordic 264 trawl net have been much reduced for
NMFS's Southwest Fisheries Science Center (SWFSC) (relative to 2008)
since their use of the MMED began.
Multiple types of midwater trawl nets are used in NWFSC trawl
surveys. The Nordic 264 trawl net, used as a surface trawl by NWFSC, is
generally much larger than the midwater trawls, is fished at faster
speeds, and has a different shape and functionality than these nets.
Very few marine mammal interactions with NWFSC pelagic trawl gear have
involved nets other than the Nordic 264 (one of 37 total incidents
since 1999). Therefore, MMED use is not proposed for nets other than
the Nordic 264.
The NWFSC has tested the MMED design used by the SWFSC and found
that it caused a significant loss of some salmon species that were the
target of their research. More recent experiments have used video
cameras attached to the net opening and near the excluder device to
test different configurations of the excluder device to minimize loss
of target species. The experiments have looked at adding weight and
stiffeners to the flap covering the escape hatch to keep it closed and
flipping the MMED so the escape hatch faces down rather than up. Based
on preliminary results, this downward-pointing escape hatch appears to
be the best design for minimizing loss of target species. Additional
research will be necessary to calibrate catch levels in tows with the
excluder device compared to past tows that did not contain the excluder
(i.e., to align the new catchability rates with historical data sets).
During these configuration and calibration experiments some nets will
be fished without the MMED in order to provide controls for
catchability. Once the NWFSC completes these experiments the MMED will
be used in all future trawls with the Nordic 264. Please see
``Monitoring and Reporting'' for additional discussion.
Acoustic deterrent devices--Acoustic deterrent devices (pingers)
are underwater sound-emitting devices that have been shown to decrease
the probability of interactions with certain species of marine mammals
when fishing gear is fitted with the devices. Multiple studies have
reported significant decreases in marine mammal interactions with
fishing gear following pinger deployment, with results reported for
multiple species and gears (e.g., Kraus et al., 1997; Trippel et al.,
1999; Gearin et al., 2000; Palka et al., 2008; Barlow and Cameron,
2003, Carretta et al., 2008; Carretta and Barlow, 2011). Pingers will
be deployed during all surface trawl operations (i.e., using the Nordic
264 net), with two pairs of pingers installed near the net opening. The
vessel's crew will ensure that pingers are operational prior to
deployment. Pinger brands typically used by NWFSC include the Aquatec
Subsea Limited model AQUAmark and Fumunda Marine models F10 and F70,
with the following attributes: (1) Operational depth of 10-200 m; (2)
tones range from 200-400 ms in duration, repeated every five to six
seconds; (3) variable frequency of 10-160 kHz; and (4) maximum source
level of 145 dB rms re 1 [mu]Pa.
Kodiak surface trawl and pair trawl gear--The Kodiak surface trawl,
used only in Puget Sound, has only limited potential for marine mammal
interaction. This gear type is a small net towed at slow speeds (about
2 kn) as close to shore as the net can be fished, and these
characteristics mean that marine mammals would likely be able to avoid
the net or swim out of it if necessary. However, rules for cetaceans
would be similar as for other net types (i.e., delay and/or move-on if
cetaceans observed within approximately 500 m or clearly approaching
from greater distance). If killer whales are observed at any distance,
the net would not be deployed, and the move-on rule would be invoked.
The pair trawl is used only in the Columbia River and is fished
with an open codend. Although unlikely, there is some potential for
pinnipeds to become entangled in the net material. NWFSC's practice,
which would be allowed under section 109(h) of the MMPA, is to deter
pinnipeds from encountering the net using pyrotechnic devices and other
measures. Therefore, separate mitigation is not warranted, and we do
not discuss NWFSC deterrence of pinnipeds associated with pair trawl
surveys further in this document. Please see the NWFSC's Programmatic
Environmental Assessment (EA) for further information about this
practice.
Longline and Other Hook and Line Survey Visual Monitoring and
Operational Protocols
Visual monitoring requirements for all longline surveys are similar
to the general protocols described above for trawl surveys. Please see
that section for full details of the visual monitoring protocol and the
move-on rule mitigation protocol. In summary, requirements for longline
surveys are to: (1) Conduct visual monitoring during the 30-minute
period prior to arrival on station; (2) implement the move-on rule if
marine mammals are observed within the area around the vessel and may
be at risk of interacting with the vessel or gear; (3) deploy gear as
soon as possible upon arrival on station (depending on presence of
marine mammals); and (4) maintain visual monitoring effort throughout
deployment and retrieval of the longline gear. As was described for
trawl gear, the OOD, CS, or watch leader will use best professional
judgment to minimize the risk to marine mammals from potential gear
interactions during deployment and retrieval of gear. If marine mammals
are detected during
[[Page 36376]]
setting operations and are considered to be at risk, immediate
retrieval or suspension of operations may be warranted. If operations
have been suspended because of the presence of marine mammals, the
vessel will resume setting (when practicable) only when the animals are
believed to have departed the area. If marine mammals are detected
during retrieval operations and are considered to be at risk, haul-back
may be postponed. These decisions are at the discretion of the OOD/CS
and are dependent on the situation. If killer whales are observed at
any distance, the set would not occur and the move-on rule would be
invoked.
Other types of hook and line surveys (e.g., rod and reel) generally
use the same protocols as longline surveys. However, for hook and line
surveys in Puget Sound the move-on rule is not required for pinnipeds
because they are commonly abundant on shore nearby hook and line
sampling locations. Use of the move-on rule in these circumstances
would represent an impracticable impact on NWFSC survey operations, and
we note that no marine mammals have ever been captured in NWFSC hook
and line surveys. However, the NWFSC would implement the move-on rule
for hook and line surveys in Puget Sound for any cetaceans that are
within 500 m and may be at risk of interaction with the survey
operation. If killer whales are observed at any distance, fishing would
not occur.
As for trawl surveys, some standard survey protocols are expected
to minimize the potential for marine mammal interactions. Soak times
are typically short relative to commercial fishing operations, measured
from the time the last hook is in the water to when the first hook is
brought out of the water. NWFSC longline protocols specifically
prohibit chumming (releasing additional bait to attract target species
to the gear) and spent bait and offal is retained on the vessel until
all gear has been retrieved. Some hook and line surveys use barbless
hooks, which are less likely to injure a hooked animal.
Seine Survey Visual Monitoring and Operational Protocols
Visual monitoring and operational protocols for seine surveys are
similar to those described previously for trawl surveys, with a focus
on visual observation in the survey area and avoidance of marine
mammals that may be at risk of interaction with survey vessels or gear.
For purse seine operations, visual monitoring is focused on avoidance
of cetaceans and aggregations of pinnipeds. Individual or small numbers
of pinnipeds may be attracted to purse seine operations, especially in
Puget Sound, and are frequently observed to enter operational purse
seines to depredate the catch and exit the net unharmed. Use of the
move-on rule in these circumstances would represent an impracticable
impact on NWFSC survey operations, and we note that no marine mammals
have ever been captured in NWFSC seine surveys.
If pinnipeds are in the immediate vicinity of a purse seine survey,
the set may be delayed until animals move away or the move-on rule is
determined to be appropriate, but the net would not be opened if
already deployed and pinnipeds enter it. However, delay would not be
invoked if only few pinnipeds are present (e.g., less than five), and
they do not appear to obviously be at risk.
If any dolphins or porpoises are observed within approximately 500
m of the purse seine survey location, the set would be delayed. If any
dolphins or porpoises are observed in the net, the net would be
immediately opened to free the animals. If killer whales or other large
whales are observed at any distance the net would not be set, and the
move-on rule would be invoked.
Beach seines are typically set nearshore by small boat crews, who
visually survey the area prior to the set. The set would not be made
within 200 m of any hauled pinnipeds. Otherwise, marine mammals are
unlikely to be at risk of interaction with NWFSC beach seine
operations, as the nets are relatively small and deployed and retrieved
slowly. If a marine mammal is observed attempting to interact with the
beach seine gear, the gear would immediately be lifted and removed from
the water.
Tangle net protocols--Tangle nets are used only in the Columbia
River. NWFSC attempts to avoid pinnipeds by rotating sampling locations
on a daily basis and by avoiding fishing near haulout areas. However,
as was described for NWFSC use of pair trawl gear in the LCRRA, NWFSC
also deters pinnipeds from interacting with tangle net gear as
necessary using pyrotechnic devices and visual presence, a practice
allowed under section 109(h) of the MMPA. Therefore, we do not discuss
NWFSC deterrence of pinnipeds associated with tangle net surveys
further in this document. Please see the NWFSC's draft Programmatic EA
for further information about this practice. If pinniped presence in
the vicinity of tangle net surveys is so abundant as to be
uncontrollable through deterrence, sampling would be discontinued for a
given day.
We have carefully evaluated the NWFSC's planned mitigation measures
and considered a range of other measures in the context of ensuring
that we prescribed the means of effecting the least practicable adverse
impact on the affected marine mammal species and stocks and their
habitat. Our evaluation of potential measures included consideration of
the following factors in relation to one another: (1) The manner in
which, and the degree to which, the successful implementation of the
measure is expected to minimize adverse impacts to marine mammals, (2)
the proven or likely efficacy of the specific measure to minimize
adverse impacts as planned; and (3) the practicability of the measure
for applicant implementation.
Any mitigation measure(s) we prescribe should be able to
accomplish, have a reasonable likelihood of accomplishing (based on
current science), or contribute to the accomplishment of one or more of
the general goals listed below:
(1) Avoidance or minimization of injury or death of marine mammals
wherever possible (goals 2, 3, and 4 may contribute to this goal);
(2) A reduction in the number (total number or number at
biologically important time or location) of individual marine mammals
exposed to stimuli expected to result in incidental take (this goal may
contribute to 1, above, or to reducing takes by behavioral harassment
only);
(3) A reduction in the number (total number or number at a
biologically important time or location) of times any individual marine
mammal would be exposed to stimuli expected to result in incidental
take (this goal may contribute to 1, above, or to reducing takes by
behavioral harassment only);
(4) A reduction in the intensity of exposure to stimuli expected to
result in incidental take (this goal may contribute to 1, above, or to
reducing the severity of behavioral harassment only);
(5) Avoidance or minimization of adverse effects to marine mammal
habitat, paying particular attention to the prey base, blockage or
limitation of passage to or from biologically important areas,
permanent destruction of habitat, or temporary disturbance of habitat
during a biologically important time; and
(6) For monitoring directly related to mitigation, an increase in
the probability of detecting marine mammals, thus allowing for more
effective implementation of the mitigation.
Based on our evaluation of the NWFSC's proposed measures, as well
as
[[Page 36377]]
other measures we considered, we have determined that these mitigation
measures provide the means of effecting the least practicable adverse
impact on marine mammal species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance.
Description of Marine Mammals in the Area of the Specified Activity
We previously reviewed NWFSC's species descriptions--which
summarize available information regarding status and trends,
distribution and habitat preferences, behavior and life history, and
auditory capabilities of the potentially affected species--for accuracy
and completeness and referred readers to Sections 3 and 4 of NWFSC's
application, as well as to NMFS's Stock Assessment Reports (SARs;
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments). We also provided information related to all species
with expected potential for occurrence in the specified geographical
region where NWFSC plans to conduct the specified activities,
summarizing information related to the population or stock, including
potential biological removal (PBR). Current information, as reported in
the most recent final 2016 and draft 2017 SARs, is summarized in Table
1 below (Carretta et al., 2017; Muto et al., 2017;
www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).
[[Page 36378]]
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[GRAPHIC] [TIFF OMITTED] TR27JY18.345
BILLING CODE 3510-22-C
Prior to 2016, humpback whales were listed under the ESA as an
endangered species worldwide. Following a 2015 global status review
(Bettridge et al., 2015), NMFS established 14 distinct population
segments (DPS) with different listing statuses (81 FR 62259; September
8, 2016) pursuant to the ESA. The DPSs that occur in U.S. waters do not
necessarily equate to the existing stocks designated under the MMPA and
shown in Table 1. Because MMPA stocks cannot be portioned, i.e., parts
managed as ESA-listed while other parts managed as not ESA-listed,
until such time as the MMPA stock delineations are reviewed in light of
the DPS designations, NMFS considers the existing humpback whale stocks
under the MMPA to be endangered and depleted for MMPA management
purposes (e.g., selection of a recovery factor, stock status). Within
U.S. west coast waters, three current DPSs may occur: The Hawaii DPS
(not listed), Mexico DPS (threatened), and Central America DPS
(endangered).
[[Page 36382]]
Potential Effects of the Specified Activity on Marine Mammals and Their
Habitat
We provided a summary and discussion of the ways that components of
the specified activity may impact marine mammals and their habitat in
our notice of proposed rulemaking (81 FR 38516; June 13, 2016).
Specifically, we considered potential effects to marine mammals from
ship strike, physical interaction with various gear types, use of
active acoustic sources, and visual disturbance of pinnipeds, as well
as effects to prey species and to acoustic habitat. The information is
not reprinted here.
Estimated Take by Incidental Harassment, Serious Injury, or Mortality
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as: Any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment); or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment). Serious injury means any injury that
will likely result in mortality (50 CFR 216.3).
Take of marine mammals incidental to NWFSC research activities
could occur as a result of (1) injury or mortality due to gear
interaction (Level A harassment, serious injury, or mortality); (2)
behavioral disturbance resulting from the use of active acoustic
sources (Level B harassment only); or (3) behavioral disturbance of
pinnipeds resulting from incidental approach of researchers (Level B
harassment only).
Estimated Take Due to Gear Interaction
Historical Interactions--In order to estimate the number of
potential incidents of take that could occur by M/SI through gear
interaction, we first considered NWFSC's record of past such incidents,
and then considered in addition other species that may have similar
vulnerabilities to NWFSC trawl gear as those species for which we have
historical interaction records. Historical interactions with NWFSC
research gear were described in Table 4 of our notice of proposed
rulemaking (81 FR 38516; June 13, 2016). Please see that document for
more information. Available records are for the years 1999 through
present. All historical interactions have taken place in the CCRA,
offshore Washington and Oregon, and have occurred during use of the
Nordic 264 surface trawl net, with a few exceptions. There is one
historical interaction in the PSRA (also using the Nordic 264 surface
trawl), and one CCRA historical interaction using the modified Cobb
midwater trawl. NWFSC has no historical interactions for any bottom
trawl, hook and line, or seine gear, and has no historical interactions
in the LCRRA. Please see Figure 6-1 in the NWFSC request for
authorization for specific locations of these incidents.
Although some historical interactions resulted in the animal(s)
being released alive, no serious injury determinations (NMFS, 2012a;
2012b) were made, and it is possible that some of these animals later
died. In order to use these historical interaction records in a
precautionary manner as the basis for the take estimation process, and
because we have no specific information to indicate whether any given
future interaction might result in M/SI versus Level A harassment, we
conservatively assume that all interactions equate to mortality. Over
the past seventeen years, NWFSC has had only infrequent interactions
with marine mammals, with 0.1-0.5 animals captured per year for the
pinniped species and 1.4 animals captured per year for the Pacific
white-sided dolphin. No Steller sea lion has been captured since 2002,
northern fur seals have been involved in only one incident (none since
2000), and only a few California sea lions and harbor seals have been
involved in interactions with research fishing gear. However, we assume
that any of these species could be captured in any year.
In order to produce the most precautionary take estimates possible,
we consider all of the data available to us (i.e., since 1999). In
consideration of these interaction records, we assume that one
individual of each species of otariid pinniped could be captured per
year over the course of the five-year period of validity for these
proposed regulations, that two individual harbor seals could be
captured per year, and that the worst case event could happen each year
for Pacific white-sided dolphins (i.e., six dolphins could be captured
in a single trawl in each year). Table 2 shows the projected five-year
total captures of these five species for this final rule, as described
above, for trawl gear only. Although more than one individual of the
two sea lion species has been captured in a single tow, interactions
with these species have historically occurred only infrequently, and we
believe that the above assumption appropriately reflects the likely
total number of individuals involved in research gear interactions over
a five-year period. We assume that two total harbor seals could be
captured per year in recognition of the demonstrated vulnerability to
capture in the PSRA (all other species have been captured only in the
CCRA). These estimates are based on the assumption that annual effort
(e.g., total annual trawl tow time) over the five-year authorization
period will not exceed the annual effort during prior years for which
we have interaction records.
Table 2--Projected Five-Year Total Take in Trawl Gear for Historically Captured Species
--------------------------------------------------------------------------------------------------------------------------------------------------------
CCRA average annual take PSRA average annual take
Gear Species (total) (total) Projected 5-year total 1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Trawl........................ Pacific white-sided dolphin.... 6 (30) ............................ 30
California sea lion............ 1 (5) ............................ 5
Harbor seal.................... 1 (5) 1 (5) 10
Northern fur seal.............. 1 (5) ............................ 5
Steller sea lion............... 1 (5) ............................ 5
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Because there are no historical take records from the LCRRA, we incorporate all projected LCRRA takes in Table 3 below.
In order to estimate the total potential number of incidents of M/
SI that could occur incidental to the NWFSC's use of trawl, hook and
line, and seine gear over the five-year period of validity for these
regulations (i.e., takes additional to those described in Table 4 of
our notice of proposed rulemaking (81 FR 38516; June 13, 2016)), we
first considered whether there are additional species that may have
similar vulnerability to capture in trawl gear as the five species
described above that have been taken historically and then evaluate the
[[Page 36383]]
potential vulnerability of these and other species to additional gears.
In order to evaluate the potential vulnerability of additional
species to trawl and of all species to hook and line and seine gear, we
first consulted NMFS's List of Fisheries (LOF), which classifies U.S.
commercial fisheries into one of three categories according to the
level of incidental marine mammal M/SI that is known to occur on an
annual basis over the most recent five-year period (generally) for
which data has been analyzed. We provided this information, as
presented in the 2015 LOF (79 FR 77919; December 29, 2014), in Table 6
of our notice of proposed rulemaking (81 FR 38516; June 13, 2016) and
do not reproduce it here.
Information related to incidental M/SI in relevant commercial
fisheries is not, however, the sole determinant of whether it may be
appropriate to authorize M/SI incidental to NWFSC survey operations. A
number of factors (e.g., species-specific knowledge regarding animal
behavior, overall abundance in the geographic region, density relative
to NWFSC survey effort, feeding ecology, propensity to travel in groups
commonly associated with other species historically taken) were taken
into account by the NWFSC to determine whether a species may have a
similar vulnerability to certain types of gear as historically taken
species. In some cases, we have determined that species without
documented M/SI may nevertheless be vulnerable to capture in NWFSC
research gear. Similarly, we have determined that some species groups
with documented M/SI are not likely to be vulnerable to capture in
NWFSC gear. In these instances, we provide further explanation below.
Those species with no records of historical interaction with NWFSC
research gear and no documented M/SI in relevant commercial fisheries,
and for which the NWFSC has not requested the authorization of
incidental take, are not considered further in this section. The NWFSC
believes generally that any sex or age class of those species for which
take authorization is requested could be captured.
In order to estimate a number of individuals that could potentially
be captured in NWFSC research gear for those species not historically
captured, we first determine which species may have vulnerability to
capture in a given gear. Of those species, we then determine whether
any may have similar propensity to capture in a given gear as a
historically captured species. These species are limited to a few
delphinid species that we believe may have similar risk of capture as
that displayed by the Pacific white-sided dolphin. For these species,
we assume it is possible that a worst-case scenario of take could occur
while at the same time contending that, absent significant range shifts
or changes in habitat usage, capture of a species not historically
captured would likely be a very rare event. The former assumption also
accounts for the likelihood that, for species that often travel in
groups, an incident involving capture of that species is likely to
involve more than one individual.
For example, we believe that the Risso's dolphin is potentially
vulnerable to capture in trawl gear and may have similar propensity to
capture in that gear as does the Pacific white-sided dolphin. Because
the greatest number of Pacific white-sided dolphins captured in any one
trawl tow was six individuals, we assume that six Risso's dolphins
could also be captured in a single incident. However, in recognition of
the fact that any incident involving the capture of Risso's dolphins
would likely be a rare event, we propose a total take authorization
over the five-year period of the number that may result from a single,
worst-case incident (six dolphins). While we do not necessarily believe
that six Risso's dolphins would be captured in a single incident--and
that more capture incidents involving fewer individuals could occur, as
opposed to a single, worst-case incident--we believe that this is a
reasonable approach to estimating potential incidents of M/SI while
balancing what could happen in a worst-case scenario with the potential
likelihood that no incidents of capture would actually occur. The SWFSC
historical capture of northern right whale dolphins in 2008 provides an
instructive example of a situation where a worst-case scenario (six
dolphins captured in a single trawl tow) did occur, but overall capture
of this species was very rare (no other capture incidents before or
since).
Separately, for those species that we believe may have a
vulnerability to capture in given gear but that we do not believe may
have a similar propensity to capture in that gear as a historically-
captured species, we assume that capture would be a rare event such
that authorization of a single take over the five-year period is likely
sufficient to capture the risk of interaction. For example, from the
LOF we infer vulnerability to capture in trawl gear for the Dall's
porpoise but do not believe that this species has a similar propensity
for interaction in trawl gear as the Pacific white-sided dolphin.
Trawl: From the LOF and SWFSC historical gear interactions, we
infer vulnerability to trawl gear in the CCRA for the Risso's dolphin,
short- and long-beaked common dolphins, northern right whale dolphin,
Dall's porpoise, harbor porpoise, and bottlenose dolphin (offshore
stock only; NWFSC research has very little overlap with the
distribution of the coastal stock of bottlenose dolphin). We consider
some of these species to have a similar propensity for interaction with
trawl gear as that demonstrated by the Pacific white-sided dolphin
(Risso's dolphin, northern right whale dolphin) and the rest to have
lower risk of interaction.
Due to their likely presence in the relevant areas and inference
based on historical interactions and the LOF, we assume additional
vulnerability and therefore potential take for some of these species in
trawl gear used in the PSRA and LCRRA. In the PSRA, these include the
harbor porpoise, Dall's porpoise, California sea lion, and Steller sea
lion. In the LCRRA these include the harbor porpoise, harbor seal,
California sea lion, and Steller sea lion.
For the striped dolphin, we believe that there is a reasonable
likelihood of incidental take in trawl gear although there are no
records of incidental M/SI in relevant commercial fisheries. The
proposed take authorization for this species was determined to be
appropriate based on analogy to other similar species that have been
taken either in NWFSC operations or in analogous commercial fishery
operations. We believe that the striped dolphin has a similar
propensity for interaction with trawl gear as that demonstrated by the
Pacific white-sided dolphin.
It is also possible that a captured animal may not be able to be
identified to species with certainty. Certain pinnipeds and small
cetaceans are difficult to differentiate at sea, especially in low-
light situations or when a quick release is necessary. For example, a
captured delphinid that is struggling in the net may escape or be freed
before positive identification is made. This is only likely to occur in
the CCRA due to the greater diversity of pinniped and small cetacean
species likely to be encountered in that area. Therefore, the NWFSC has
requested the authorization of incidental M/SI for one unidentified
pinniped and one unidentified small cetacean over the course of the
five-year period of proposed authorization.
Hook and line: The process is the same as is described above for
trawl gear. From the LOF and SWFSC historical interactions, we infer
[[Page 36384]]
vulnerability to hook and line gear in the CCRA for the Risso's
dolphin, bottlenose dolphin, striped dolphin, pygmy and dwarf sperm
whale (i.e., Kogia spp.), short- and long-beaked common dolphins,
short-finned pilot whale, and California and Steller sea lions.
Due to their likely presence in the relevant areas and inference
based on historical interactions and the LOF, we assume additional
vulnerability and therefore potential take for some of these species in
hook and line gear used in the PSRA (hook and line gear is not used in
the LCRRA). These include the California sea lion and harbor seal.
Seine: The process is the same as is described above for trawl
gear. From the LOF, we infer vulnerability to seine and tangle net gear
in the CCRA and/or LCRRA for the short-beaked common dolphin, harbor
seal, and California sea lion. Long-beaked common dolphin is not
included because they are much rarer in Oregon and Washington where
seine surveys are conducted. Seine gear is used infrequently in the
PSRA (e.g., twelve purse seine sets per year) and the move-on rule
applied if any small cetacean is seen within 500 m of the planned set.
We do not believe that any take in seine gear is likely in the PSRA.
We also believe that there is a reasonable potential of seine gear
interaction for a number of species in the CCRA and/or LCRRA for which
there are no LOF records of interaction in commercial fisheries gears.
These authorizations reflect the NWFSC's expert judgment regarding the
distribution of these species in relation to NWFSC use of seine gear
offshore Oregon and Washington. For example, several of these species
have the potential to interact with NWFSC purse seine surveys in the
Columbia River plume, where there are no corresponding commercial seine
fisheries. Therefore, we would not expect the LOF to adequately reflect
the risk of marine mammal interaction posed by NWFSC survey activities.
Species for which we authorize take in seine gear in the CCRA and/or
LCRRA with no LOF interaction records include the Dall's porpoise,
Pacific white-sided dolphin, Risso's dolphin, northern right whale
dolphin, Steller sea lion, and harbor porpoise. For the harbor
porpoise, we expect that there is greater vulnerability to take in
these gears (i.e., we expect it could be taken in both the CCRA and
LCRRA) and have increased the take authorization relative to the other
species accordingly. NWFSC considers the delphinid species to be at
risk because of their occurrence in coastal waters offshore Oregon and
Washington, and because they often occur in mixed schools and could be
caught together in purse seines.
Table 3--Total Estimated M/SI Due to Gear Interaction, 2018-23
----------------------------------------------------------------------------------------------------------------
Estimated 5-year
Species Estimated 5-year total, hook and Estimated 5-year Total, all
total, trawl \1\ line \1\ total, seine \1\ gears
----------------------------------------------------------------------------------------------------------------
Kogia spp. \2\................... ................... 1.................. ................... 1
Bottlenose dolphin \3\........... 1.................. 1.................. ................... 2
Striped dolphin.................. 6.................. 1.................. ................... 7
Short-beaked common dolphin...... 1.................. 1.................. 1.................. 3
Long-beaked common dolphin....... 1.................. 1.................. ................... 2
Pacific white-sided dolphin...... 30................. ................... 1.................. 31
Northern right whale dolphin..... 6.................. ................... 1.................. 7
Risso's dolphin.................. 6.................. 1.................. 1.................. 8
Short-finned pilot whale......... ................... 1.................. ................... 1
Harbor porpoise \4\.............. 3 (CCRA/PSRA/LCRRA) ................... 2 (CCRA/LCRRA)..... 5
Dall's porpoise.................. 2 (CCRA/PSRA)...... ................... 1.................. 3
Northern fur seal \5\............ 5.................. ................... ................... 5
California sea lion.............. 7 (5 CCRA/PSRA/ 2 (CCRA/PSRA)...... 1 (LCRRA).......... 10
LCRRA).
Steller sea lion................. 7 (5 CCRA/PSRA/ 1.................. 1 (LCRRA).......... 9
LCRRA).
Harbor seal \4\.................. 11 (5 CCRA/5 PSRA/ 1 (PSRA)........... 1 (LCRRA).......... 13
LCRRA.
Unidentified pinniped............ 1.................. ................... ................... 1
Unidentified small cetacean...... 1.................. ................... ................... 1
----------------------------------------------------------------------------------------------------------------
\1\ Please see our notice of proposed rulemaking (81 FR 38516; June 13, 2016) for full detail related to
derivation of these take estimates. Takes proposed for authorization are not specific to any area, but our
estimates are informed by area-specific vulnerability. All takes are expected to occur in the CCRA, except
where the gear-specific breakdown of expected takes per area is provided. Note that hook and line surveys are
not proposed for LCRRA and only limited seine surveys are proposed for PSRA.
\2\ We expect that only one Kogia spp. may be taken over the five-year timespan and that it could be either a
pygmy or dwarf sperm whale.
\3\ Incidental take is expected only from the offshore stock.
\4\ Incidental take for these species may be of animals from any stock in California, Oregon, or Washington, but
expected vulnerability may be assigned to CCE or Washington inland waters stocks according to the expected
take proportions shown.
\5\ Incidental take may be of animals from either the eastern Pacific or California stock.
Estimated Take Due to Acoustic Harassment
As described in our notice of proposed rulemaking (81 FR 38516;
June 13, 2016; ``Potential Effects of the Specified Activity on Marine
Mammals''), we believe that NWFSC use of active acoustic sources has,
at most, the potential to cause Level B harassment of marine mammals.
In order to attempt to quantify the potential for Level B harassment to
occur, NMFS (including the NWFSC and acoustics experts from other parts
of NMFS) developed an analytical framework considering characteristics
of the active acoustic systems described in our notice of proposed
rulemaking (81 FR 38516; June 13, 2016) under Description of Active
Acoustic Sound Sources, their expected patterns of use, and
characteristics of the marine mammal species that may interact with
them. We believe that this quantitative assessment benefits from its
simplicity and consistency with current NMFS acoustic guidance
regarding Level B harassment but caution that, based on a number of
deliberately precautionary assumptions, the resulting take estimates
may be seen as an overestimate of the potential for behavioral
harassment to occur as a result of the operation of these systems.
In 2016, NMFS released updated ``Technical Guidance for Assessing
the Effects of Anthropogenic Sound on Marine Mammal Hearing'' with
revised metrics and thresholds to assess the potential for injury
(e.g., permanent threshold shift) from acoustic sources. While the
NWFSC's EA and our proposed rule refer to NMFS's historic guidelines,
as the documents were completed prior to the recent release of the
technical guidance, the conclusions regarding the potential for injury
remain
[[Page 36385]]
the same. Most importantly, the technical guidance now explicitly takes
into account the duration of the sound through the use of the sound
exposure level (SEL) metric, as opposed to the previous use of rms
sound pressure level (SPL). The effect of this different metric, in
particular for the very short duration sounds used for these
echosounders, is to largely reduce the exposure level of sound an
animal is exposed to for short duration sounds (e.g., for a 1
millisecond ping, an SPL source level is reduced by 30 dB in the SEL
metric) offsetting changes in the thresholds themselves. While energy
is accumulated over time using SEL, the previous conclusion that an
individual would have to remain exceptionally close to a sound source
for unrealistic lengths of time holds, suggesting the likelihood of
injury occurring is exceedingly small and is therefore not considered
further in this analysis.
The operating frequencies of active acoustic systems used by NWFSC
sources only go down to 27-33 kHz for the trawl monitoring system,
which is not one of the predominant sources, and to 38 kHz for the EK60
echosounder (see Tables 2 and 8 from our notice of proposed rulemaking
(81 FR 38516; June 13, 2016)). These frequencies are above the hearing
range of baleen whales (i.e., mysticetes); therefore, baleen whales
would not be expected to perceive signals from NWFSC active acoustic
sources. We would not expect any exposures to these signals to result
in behavioral harassment. Baleen whales are not considered further in
this section.
The assessment paradigm for active acoustic sources used in NWFSC
fisheries research is relatively straightforward and has a number of
key simplifying assumptions. NMFS's current acoustic guidance requires
in most cases that we assume Level B harassment occurs when a marine
mammal receives an acoustic signal at or above a simple step-function
threshold. For use of these active acoustic systems, the appropriate
threshold is 160 dB re 1 [mu]Pa (rms). Estimating the number of
exposures at the specified received level requires several
determinations, each of which is described sequentially below:
(1) A detailed characterization of the acoustic characteristics of
the effective sound source or sources in operation;
(2) The operational areas exposed to levels at or above those
associated with Level B harassment when these sources are in operation;
(3) A method for quantifying the resulting sound fields around
these sources; and
(4) An estimate of the average density for marine mammal species in
each area of operation.
Quantifying the spatial and temporal dimension of the sound
exposure footprint (or ``swath width'') of the active acoustic devices
in operation on moving vessels and their relationship to the average
density of marine mammals enables a quantitative estimate of the number
of individuals for which sound levels exceed the relevant threshold for
each area. The number of potential incidents of Level B harassment is
ultimately estimated as the product of the volume of water ensonified
at 160 dB rms or higher and the volumetric density of animals
determined from simple assumptions about their vertical stratification
in the water column. Specifically, reasonable assumptions based on what
is known about diving behavior across different marine mammal species
were made to segregate those that predominately remain in the upper 200
m of the water column versus those that regularly dive deeper during
foraging and transit. We described the approach used (including methods
for estimating each of the calculations described above) and the
assumptions made that result in conservative estimates in significant
detail in our notice of proposed rulemaking (81 FR 38516; June 13,
2016). There have been no changes made to the approach, the
informational inputs, or the results. Therefore, we do not repeat the
discussion here and refer the reader to the proposed rule. Summaries of
the results are provided in Table 4 below. Note that NWFSC only uses
active acoustic systems for data acquisition purposes in the CCRA, not
in the LCRRA or PSRA.
Table 4--Densities and Estimated Source-, Stratum-, and Species-Specific Annual Estimates of Level B Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Level B Estimated Level
Area density Volumetric harassment, 0-200 m B harassment,
Species Shallow Deep (animals/ density --------------------------- >200 m Total
km\2\) \1\ (animals/ ------------------
km\3\) \2\ EK60 ME70 SX90 EK60 SX90
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale................................. ......... X 0.002 0.003 1 0 1 3 1 6
Kogia spp................................... ......... X 0.001 0.002 0 0 1 2 0 3
Cuvier's beaked whale....................... ......... X 0.004 0.008 2 1 2 7 2 14
Baird's beaked whale........................ ......... X 0.001 0.002 0 0 1 2 0 3
Mesoplodont beaked whales................... ......... X 0.001 0.002 0 0 1 2 0 3
Bottlenose dolphin.......................... X ......... 0.002 0.009 2 1 3 0 0 6
Striped dolphin............................. X ......... 0.017 0.083 18 6 25 0 0 49
Long-beaked common dolphin.................. X ......... 0.019 0.096 20 7 28 0 0 55
Short-beaked common dolphin................. X ......... 0.309 1.547 325 115 455 0 0 895
Pacific white-sided dolphin................. X ......... 0.021 0.105 22 8 31 0 0 61
Northern right whale dolphin................ X ......... 0.010 0.049 10 4 14 0 0 28
Risso's dolphin............................. X ......... 0.010 0.052 11 4 15 0 0 30
Killer whale................................ X ......... 0.001 0.004 1 0 1 0 0 2
Short-finned pilot whale.................... ......... X 0.0003 0.001 0 0 0 1 0 1
Harbor porpoise............................. X ......... \4\ 0.038 0.189 40 14 56 0 0 110
Dall's porpoise............................. X ......... 0.076 0.378 79 28 111 0 0 218
Guadalupe fur seal.......................... X ......... \3\ 0.007 0.037 8 3 11 0 0 22
Northern fur seal........................... X ......... \3\ 0.649 3.245 682 241 955 0 0 1,878
California sea lion......................... X ......... \3\ 0.297 1.484 312 110 437 0 0 859
Steller sea lion............................ X ......... \3\ 0.060 0.301 63 22 89 0 0 174
Harbor seal................................. X ......... \3\ 0.056 0.279 59 21 82 0 0 162
Northern elephant seal...................... ......... X \3\ 0.179 0.358 75 27 105 336 79 622
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ All density estimates from Barlow and Forney (2007) unless otherwise indicated.
\2\ Volumetric density estimates derived by dividing area density estimates by 0.2 km (for shallow species) or 0.5 km (for deep species), corresponding
with defined depth strata.
\3\ Density estimates derived by NWFSC from SAR abundance estimates and notional study area of 1,000,000 km\2\.
\4\ ManTech-SRS Technologies (2007) estimated a harbor porpoise density for coastal and inland waters of Washington, which is used as the best available
proxy here. There are no known density estimates for harbor porpoises in NWFSC survey areas in the CCRA.
[[Page 36386]]
Estimated Take Due to Physical Disturbance
Estimated take due to physical disturbance could potentially happen
in the PSRA and LCRRA, and would result in no greater than Level B
harassment. It is likely that some pinnipeds will move or flush from
known haulouts into the water in response to the presence or sound of
NWFSC vessels or researchers, as a result of unintentional approach
during survey activity. Behavioral responses may be considered
according to the scale shown in Table 5 and based on the method
developed by Mortenson (1996). We consider responses corresponding to
Levels 2-3 to constitute Level B harassment.
Table 5--Seal Response to Disturbance
------------------------------------------------------------------------
Level Type of response Definition
------------------------------------------------------------------------
1.................. Alert...................... Seal head orientation
or brief movement in
response to
disturbance, which
may include turning
head towards the
disturbance, craning
head and neck while
holding the body
rigid in a u-shaped
position, changing
from a lying to a
sitting position, or
brief movement of
less than twice the
animal's body length.
2.................. Movement................... Movements away from
the source of
disturbance, ranging
from short
withdrawals at least
twice the animal's
body length to longer
retreats over the
beach.
3.................. Flight..................... All retreats (flushes)
to the water.
------------------------------------------------------------------------
The NWFSC has estimated potential incidents of Level B harassment
due to physical disturbance (Table 6) by considering the number of
seals believed to potentially be present at affected haul-outs and the
number of visits expected to be made by NWFSC researchers. The number
of haulouts disturbed and number of animals assumed to be on those
haulouts was determined by NWFSC on the basis of anecdotal evidence
from researchers. Although not all individuals on ``disturbed''
haulouts would necessarily actually be disturbed, and some haulouts may
experience some disturbance at distances greater than expected, we
believe that this approach is a reasonable effort towards accounting
for this potential source of disturbance.
Table 6--Estimated Annual Level B Harassment of Pinnipeds Associated With Disturbance by Researchers
----------------------------------------------------------------------------------------------------------------
Estimated total
number of animals Estimated annual
Species Location on potentially Number of visits Level B
disturbed haul- per year harassment
outs
----------------------------------------------------------------------------------------------------------------
Harbor seal...................... Puget Sound......... 1,440 8 11,520
Columbia River...... 3,000 25 75,000
California sea lion.............. Puget Sound......... 350 8 2,800
----------------------------------------------------------------------------------------------------------------
Summary of Estimated Incidental Take
Here we provide a summary of the total incidental take
authorization on an annual basis, as well other information relevant to
the negligible impact analysis. Table 7 shows information relevant to
our negligible impact analysis concerning the total annual taking that
could occur for each stock from NMFS's scientific research activities
when considering incidental take previously authorized for SWFSC (80 FR
58982; September 30, 2015) and take authorized for NWFSC. As footnoted
in Table 7, the indicated level of take could occur to any species or
stock for those species with multiple stocks (e.g., northern fur seal)
or considered as a group (e.g., Mesoplodont beaked whales). However,
the harbor porpoise and harbor seal each have multiple stocks spanning
the three NWFSC research areas, and we provide further detail regarding
our consideration of potential take specific to stocks that may occur
in the PSRA and LCRRA. Many stocks do not occur in those research areas
and, therefore, would not be vulnerable to interaction with research
gear deployed in those areas.
For harbor porpoise, we authorize a total of five takes by M/SI for
all stocks combined over the five-year period of validity for these
regulations. For the purposes of the negligible impact analysis, we
assume that all of these takes could potentially be in the form of M/
SI; PBR is not intended for assessment of the significance of
harassment. These takes could occur to any stock; however, our take
authorization is informed by reasonable expectation regarding species
vulnerability to gear used in the three research areas. Of the five
total takes, we expect that two might occur in the CCRA, one in the
PSRA, and two in the LCRRA. Therefore, corresponding with the
relationship between stock ranges and the location of NWFSC research
activities, the likely maximum takes that could accrue to any harbor
porpoise stock from California to southern Oregon would be two, while
the northern Oregon/Washington coast stock could potentially accrue
four takes because it is vulnerable to the takes expected in either the
CCRA or LCRRA. In Table 7 below, the total take authorization column
reflects the total of four takes that could occur in either the CCRA or
LCRRA (and the one take expected in the PSRA, which would occur to the
Washington inland waters stock). However, the estimated maximum annual
take column reflects the annualized stock-specific risk, i.e., any
stock in the CA-southern OR grouping is expected to be vulnerable to a
maximum of two takes over the 5-year period (0.4/year) while the
northern OR/WA coast stock could be vulnerable to as many as four takes
over the five years (0.8/year). This stock-specific accounting does not
change our expectation that a total of five takes would occur for all
stocks combined but informs our stock-specific negligible impact
analysis.
Similarly, the harbor seal has separate designated stocks that may
occur in all three research areas. We will authorize a total of
thirteen takes by M/SI for all harbor seal stocks combined, and expect
that five of these may occur in the CCRA, six in the PSRA, and two in
the LCRRA. Therefore, while we would expect that a maximum of five
takes could accrue to the California stock, as many as seven takes
could occur for the Oregon/Washington coastal stock (which is the only
stock that may occur in the LCRRA). Although NMFS has split the former
Washington inland waters stock of harbor seals into three separate
stocks, we do not have sufficient information to assess stock-specific
risk in the PSRA. Separately,
[[Page 36387]]
we have estimated that 162 incidents of acoustic harassment may occur
for harbor seals due to NWFSC use of active acoustic systems (in the
CCRA only) and that, due to the physical presence of researchers,
individual harbor seals on haulouts (as many as 3,000) may be disturbed
up to 25 times per year in the LCRRA. Therefore, as shown in Table 7,
the California stock of harbor seals is vulnerable to only the
estimated 162 acoustic harassment takes, but the OR/WA coast stock
would be vulnerable to both the acoustic harassment takes as well as
the physical disturbance takes. However, note that the percent of
estimated population is calculated considering the number of
individuals anticipated to be disturbed rather than the number of
incidents of disturbance.
We previously authorized take of marine mammals incidental to
fisheries research operations conducted by the SWFSC (see 80 FR 58982
and 80 FR 68512). This take would occur to some of the same stocks for
which we will authorize take incidental to NWFSC fisheries research
operations. Therefore, in order to evaluate the likely impact of the
take by M/SI to be authorized pursuant to this rule, we consider not
only other ongoing sources of human-caused mortality but the potential
mortality authorized for SWFSC. As used in this document, other ongoing
sources of human-caused (anthropogenic) mortality refers to estimates
of realized or actual annual mortality reported in the SARs and does
not include authorized or unknown mortality. Below, we consider the
total taking by M/SI authorized for NWFSC and previously authorized for
SWFSC together to produce a maximum annual M/SI take level (including
take of unidentified marine mammals that could accrue to any relevant
stock) and compare that value to the stock's PBR value, considering
ongoing sources of anthropogenic mortality (as described in footnote 4
of Table 7 and in the following discussion). PBR and annual M/SI values
considered in Table 7 reflect the most recent information available.
Table 7--Summary Information Related to NWFSC Annual Take Authorization, 2018-23
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total annual
Level B Percent of Proposed total SWFSC total M/ Estimated
Species \1\ harassment estimated M/SI \3\ SI maximum PBR minus annual M/SI Stock
authorization population authorization, authorization, annual M/SI (%) \5\ trend \6\
\2\ abundance 2018-23 2015-20 \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale....................... 6 0.3 0 0 0 n/a..................... ?
Kogia spp......................... 3 0.1 1 1 0.4 19.2 (2.1).............. ?
Cuvier's beaked whale............. 14 0.4 0 0 0 n/a..................... [darr]
Baird's beaked whale.............. 3 0.1 0 0 0 n/a..................... ?
Mesoplodont beaked whales......... 3 0.1 0 0 0 n/a..................... [darr]
Bottlenose dolphin (offshore 6 0.3 2 9 2.6 9.4 (27.7).............. ?
stock).
Striped dolphin................... 49 0.2 7 12 4.2 237.2 (1.8)............. ?
Long-beaked common dolphin........ 55 0.1 2 12 3.2 621.6 (0.5)............. [uarr]
Short-beaked common dolphin....... 895 0.1 3 12 3.4 8,353 (<0.1)............ ?
Pacific white-sided dolphin....... 61 0.2 31 35 13.6 189.1 (7.2)............. ?
Northern right whale dolphin...... 28 0.1 7 10 3.8 175.2 (2.2)............. ?
Risso's dolphin................... 30 0.5 8 12 4.4 42.3 (10.4)............. ?
Killer whale \7\.................. 2 0.8 0 0 0 n/a..................... ?
Short-finned pilot whale.......... 1 0.1 1 1 0.4 3.3 (12.1).............. ?
Harbor porpoise (CA-southern OR 110 3.8 4 5 1.8 20.4 (8.8).............. ?
stocks) \7\.
Harbor porpoise (Northern OR/WA .............. .............. .............. .............. 2.2 148 (1.5)............... ?
coast).
Harbor porpoise (WA inland waters) 0 n/a 1 0 0.2 58.8 (0.3).............. ?
Dall's porpoise................... 218 0.9 3 5 2 171.7 (1.2)............. ?
Guadalupe fur seal................ 22 0.1 0 0 0 n/a..................... [uarr]
Northern fur seal \6\............. \8\ 1,878 0.3 5 5 2.4 449.4 (0.5)............. [uarr]
California sea lion............... 3,659 0.4 10 25 7.6 8,815 (0.1)............. [uarr]
Steller sea lion.................. 174 0.4 9 10 4.4 2,390.6 (0.2)........... [uarr]
Harbor seal (CA).................. 75,162 0.6 5 9 3.2 1,598.2 (0.2)........... [rarr]
Harbor seal (OR/WA coast)......... .............. 12.8 2 .............. 1.8 Unknown................. [rarr]
Harbor seal (WA inland waters).... 11,520 10.5 6 0 1.2 Unknown................. [rarr]
Northern elephant seal............ 622 0.3 5 5 2.2 4,873.2 (0.1)........... [uarr]
Unidentified small cetacean....... n/a n/a 1 1 n/a n/a..................... n/a
Unidentified pinniped............. n/a n/a 1 2 n/a n/a..................... n/a
--------------------------------------------------------------------------------------------------------------------------------------------------------
Please see our notice of proposed rulemaking (81 FR 38516; June 13, 2016) for full details.
\1\ For species with multiple stocks or for species groups (Kogia spp. and Mesoplodont beaked whales), indicated level of take could occur to
individuals from any stock or species except as indicated in table.
\2\ Level B harassment totals include estimated take due to acoustic harassment and, for harbor seals and California sea lions, estimated take due to
physical disturbance. Active acoustic devices are not used for data acquisition in the PSRA; therefore, no takes by acoustic harassment are expected
for stocks that occur entirely or largely in inland waters (e.g., resident killer whales). Takes by physical disturbance for pinniped species
represent repeated takes of smaller numbers of individuals (e.g., we expect as many as 1,440 harbor seals in the PSRA to be harassed on as many as
eight occasions). The ``percent of estimated population'' column represents this smaller number of individuals taken rather than the total number of
take incidents.
\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 information to enable us to parse out these outcomes, we present such take as a pool. For purposes of this negligible impact analysis we
assume the worst case scenario (that all such takes result in mortality).
[[Page 36388]]
\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 or cetacean that may be captured in trawl gear in the CCRA. This represents the potential that
the take of an unidentified pinniped or small cetacean could accrue to any given stock captured in that gear in that area. The take authorization is
formulated as a five-year total; the annual average is used only for purposes of negligible impact analysis. We recognize that portions of an animal
may not be taken in a given year.
\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). For the Pacific-white sided dolphin, harbor seal (California stock), northern fur seal (California stock),
Steller sea lion, and California sea lion, we subtract the annual average of mortalities occurring incidental to fisheries research from the total
human-caused M/SI prior to calculating this value, as we explicitly account for predicted future mortalities incidental to fisheries research via the
estimated maximum annual M/SI column. In parentheses, we provide the estimated maximum annual M/SI expressed as a percentage of this value.
\6\ See relevant SARs for more information regarding stock status and trends. Interannual increases may not be interpreted as evidence of a trend. Based
on the most recent abundance estimates, harbor seal stocks may have reached carrying capacity and appear stable. A time series of stock-specific
abundance estimates for harbor porpoise shows either increasing or stable estimates, but it is not statistically valid to infer a trend.
\7\ These species have multiple stocks that may be affected. Values for ``percent of estimated population'' and ``PBR--annual M/SI'' (where relevant)
calculated for the stock with the lowest population abundance and/or PBR (as appropriate). This approach assumes that all indicated takes would accrue
to the stock in question, which is a very conservative assumption. Stocks in question are the offshore killer whale, Morro Bay harbor porpoise, and
California northern fur seal.
\8\ Calculated on the basis of relative abundance; i.e., of 1,878 total estimated incidents of Level B harassment, we would expect on the basis of
relative abundance in the study area that 98 percent would accrue to the Pribilof Islands/Eastern Pacific stock and two percent would accrue to the
California stock.
Negligible Impact Analysis and Determination
We received no public comments or new information indicating any
deficiencies in our preliminary determinations, as provided in our
notice of proposed rulemaking (81 FR 38516; June 13, 2016).
Introduction--NMFS has defined negligible impact as an impact
resulting from the specified activity that cannot be reasonably
expected to, and is not reasonably likely to, adversely affect the
species or stock through effects on annual rates of recruitment or
survival (50 CFR 216.103). A negligible impact finding is based on the
lack of likely adverse effects on annual rates of recruitment or
survival (i.e., population-level effects). An estimate of the number of
takes alone is not enough information on which to base an impact
determination. In addition to considering estimates of the number of
marine mammals that might be ``taken'' by mortality, serious injury,
and Level A or Level B harassment, we consider other factors, such as
the likely nature of any behavioral responses (e.g., intensity,
duration), the context of any such responses (e.g., critical
reproductive time or location, migration), as well as effects on
habitat, and the likely effectiveness of mitigation. We also assess the
number, intensity, and context of estimated takes by evaluating this
information relative to population status. Consistent with the 1989
preamble for NMFS's implementing regulations (54 FR 40338; September
29, 1989), the impacts from other past and ongoing anthropogenic
activities are incorporated into this analysis via their impacts on the
environmental baseline (e.g., as reflected in the regulatory status of
the species, population size and growth rate where known, ongoing
sources of human-caused mortality, and specific consideration of take
by M/SI previously authorized for other NMFS research activities).
We note here that the takes from potential gear interactions
enumerated below could result in non-serious injury, but their worse
potential outcome (mortality) is analyzed for the purposes of the
negligible impact determination. We discuss here the connection between
the mechanisms for authorizing incidental take under section 101(a)(5)
for activities, such as NWFSC's research activities, and for
authorizing incidental take from commercial fisheries. In 1988,
Congress amended the MMPA's provisions for addressing incidental take
of marine mammals in commercial fishing operations. Congress directed
NMFS to develop and recommend a new long-term regime to govern such
incidental taking (see MMC, 1994). The need to develop a system suited
to the unique circumstances of commercial fishing operations led NMFS
to suggest a new conceptual means and associated regulatory framework.
That concept, Potential Biological Removal (PBR), and a system for
developing plans containing regulatory and voluntary measures to reduce
incidental take for fisheries that exceed PBR were incorporated as
sections 117 and 118 in the 1994 amendments to the MMPA.
PBR is defined in the MMPA (16 U.S.C. 1362(20)) as the maximum
number of animals, not including natural mortalities, that may be
removed from a marine mammal stock while allowing that stock to reach
or maintain its optimum sustainable population, and is a measure to be
considered when evaluating the effects of M/SI on a marine mammal
species or stock. Optimum sustainable population (OSP) is defined by
the MMPA (16 U.S.C. 1362(9)) as the number of animals which will result
in the maximum productivity of the population or the species, keeping
in mind the carrying capacity of the habitat and the health of the
ecosystem of which they form a constituent element. A primary goal of
the MMPA is to ensure that each species or stock of marine mammal is
maintained at or returned to its OSP.
PBR values are calculated by NMFS as the level of annual removal
from a stock that will allow that stock to equilibrate within OSP at
least 95 percent of the time, and is the product of factors relating to
the minimum population estimate of the stock (Nmin); the
productivity rate of the stock at a small population size; and a
recovery factor. Determination of appropriate values for these three
elements incorporates significant precaution, such that application of
the parameter to the management of marine mammal stocks may be
reasonably certain to achieve the goals of the MMPA. For example,
calculation of Nmin incorporates the precision and
variability associated with abundance information and is intended to
provide reasonable assurance that the stock size is equal to or greater
than the estimate (Barlow et al., 1995). In general, the three factors
are developed on a stock-specific basis in consideration of one another
in order to produce conservative PBR values that appropriately account
for both imprecision that may be estimated as well as potential bias
stemming from lack of knowledge (Wade, 1998).
PBR can be used as a consideration of the effects of M/SI on a
marine mammal stock but was applied specifically to work within the
management framework for commercial fishing incidental take. PBR cannot
be applied appropriately outside of the section 118 regulatory
framework for which it was
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designed without consideration of how it applies in section 118 and how
other statutory management frameworks in the MMPA differ. PBR was not
designed as an absolute threshold limiting commercial fisheries, but
rather as a means to evaluate the relative impacts of those activities
on marine mammal stocks. Even where commercial fishing is causing M/SI
at levels that exceed PBR, the fishery is not suspended. When M/SI
exceeds PBR, NMFS may develop a take reduction plan, usually with the
assistance of a take reduction team. The take reduction plan will
include measures to reduce and/or minimize the taking of marine mammals
by commercial fisheries to a level below the stock's PBR. That is,
where the total annual human-caused M/SI exceeds PBR, NMFS is not
required to halt fishing activities contributing to total M/SI but
rather utilizes the take reduction process to further mitigate the
effects of fishery activities via additional bycatch reduction
measures. PBR is not used to grant or deny authorization of commercial
fisheries that may incidentally take marine mammals.
Similarly, to the extent consideration of PBR may be relevant to
considering the impacts of incidental take from activities other than
commercial fisheries, using it as the sole reason to deny incidental
take authorization for those activities would be inconsistent with
Congress's intent under section 101(a)(5) and the use of PBR under
section 118. The standard for authorizing incidental take under section
101(a)(5) continues to be, among other things, whether the total taking
will have a negligible impact on the species or stock. When Congress
amended the MMPA in 1994 to add section 118 for commercial fishing, it
did not alter the standards for authorizing non-commercial fishing
incidental take under section 101(a)(5), acknowledging that negligible
impact under section 101(a)(5) is a separate standard from PBR under
section 118. In fact, in 1994 Congress also amended section
101(a)(5)(E) (a separate provision governing commercial fishing
incidental take for species listed under the Endangered Species Act) to
add compliance with the new section 118 but kept the requirement for a
negligible impact finding, showing that the determination of negligible
impact and application of PBR may share certain features but are
different.
Since the introduction of PBR, NMFS has used the concept almost
entirely within the context of implementing sections 117 and 118 and
other commercial fisheries management-related provisions of the MMPA.
The MMPA requires that PBR be estimated in stock assessment reports and
that it be used in applications related to the management of take
incidental to commercial fisheries (i.e., the take reduction planning
process described in section 118 of the MMPA and the determination of
whether a stock is ``strategic'' (16 U.S.C. 1362(19))), but nothing in
the MMPA requires the application of PBR outside the management of
commercial fisheries interactions with marine mammals.
Nonetheless, NMFS recognizes that as a quantitative metric, PBR may
be useful in certain instances as a consideration when evaluating the
impacts of other human-caused activities on marine mammal stocks.
Outside the commercial fishing context, and in consideration of all
known human-caused mortality, PBR can help inform the potential effects
of M/SI caused by activities authorized under 101(a)(5)(A) on marine
mammal stocks. As noted by NMFS and the USFWS in our implementation
regulations for the 1986 amendments to the MMPA (54 FR 40341, September
29, 1989), the Services consider many factors, when available, in
making a negligible impact determination, including, but not limited
to, the status of the species or stock relative to OSP (if known),
whether the recruitment rate for the species or stock is increasing,
decreasing, stable, or unknown, the size and distribution of the
population, and existing impacts and environmental conditions. To
specifically use PBR, along with other factors, to evaluate the effects
of M/SI, we first calculate a metric for each species or stock that
incorporates information regarding ongoing anthropogenic M/SI into the
PBR value (i.e., PBR minus the total annual anthropogenic mortality/
serious injury estimate), which is called ``residual PBR'' (Wood et
al., 2012). We then consider how the anticipated potential incidental
M/SI from the activities being evaluated compares to residual PBR.
Anticipated or potential M/SI that exceeds residual PBR is considered
to have a higher likelihood of adversely affecting rates of recruitment
or survival, while anticipated M/SI that is equal to or less than
residual PBR has a lower likelihood (both examples given without
consideration of other types of take, which also factor into a
negligible impact determination). In such cases where the anticipated
M/SI is near, at, or above residual PBR, consideration of other
factors, including those outlined above as well as mitigation and other
factors (positive or negative), is especially important to assessing
whether the M/SI will have a negligible impact on the stock. As
described above, PBR is a conservative metric and is not intended to be
used as a solid cap on mortality--accordingly, impacts from M/SI that
exceed residual PBR may still potentially be found to be negligible in
light of other factors that offset concern, especially when robust
mitigation and adaptive management provisions are included.
Alternately, for a species or stock with incidental M/SI less than
10 percent of residual PBR, we consider M/SI from the specified
activities to represent an insignificant incremental increase in
ongoing anthropogenic M/SI that alone (i.e., in the absence of any
other take) cannot affect annual rates of recruitment and survival. In
a prior incidental take rulemaking and in the commercial fishing
context, this threshold is identified as the significance threshold,
but it is more accurately an insignificance threshold outside
commercial fishing because it represents the level at which there is no
need to consider other factors in determining the role of M/SI in
affecting rates of recruitment and survival. Assuming that any
additional incidental take by harassment would not exceed the
negligible impact level, the anticipated M/SI caused by the activities
being evaluated would have a negligible impact on the species or stock.
This 10 percent was identified as a workload simplification
consideration to avoid the need to provide unnecessary additional
information when the conclusion is relatively obvious, but as described
above, values above 10 percent have no particular significance
associated with them until and unless they approach residual PBR.
Our evaluation of the M/SI for each of the species and stocks for
which mortality could occur follows. In addition, all mortality
authorized for some of the same species or stocks over the next several
years pursuant to our final rulemaking for the NMFS Southwest Fisheries
Science Center has been incorporated into the residual PBR.
We first consider maximum potential incidental M/SI for each stock
(Table 7) in consideration of NMFS's threshold for identifying
insignificant M/SI take (10 percent of residual PBR (69 FR 43338; July
20, 2004)). By considering the maximum potential incidental M/SI in
relation to PBR and ongoing sources of anthropogenic mortality, we
begin our evaluation of whether the potential incremental addition of
M/SI through NWFSC research activities may affect the species' or
stock's annual rates of recruitment or survival. We also consider the
interaction of those
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mortalities with incidental taking of that species or stock by
harassment pursuant to the specified activity.
Analysis--Please see Table 7 for information related to this
analysis. The large majority of stocks that may potentially be taken by
M/SI (18 of 21) fall below the insignificance threshold, while an
additional four stocks do not have current PBR values and therefore are
evaluated using other factors. We first consider stocks expected to be
affected only by behavioral harassment and those stocks that fall below
the insignificance threshold. Next, we consider those stocks above the
insignificance threshold (i.e., the offshore stock of bottlenose
dolphin, Risso's dolphin, and short-finned pilot whale) and those
without PBR values (harbor seals along the Oregon and Washington coasts
and in Washington inland waters).
As described in greater depth in our notice of proposed rulemaking
(81 FR 38516; June 13, 2016), we do not believe that NWFSC use of
active acoustic sources has the likely potential to cause any effect
exceeding Level B harassment of marine mammals. In addition, for the
majority of species, the annual take by Level B harassment is very low
in relation to the population abundance estimate (less than one
percent). We have produced what we believe to be precautionary
estimates of potential incidents of Level B harassment. The procedure
for producing these estimates, described in detail in our notice of
proposed rulemaking (81 FR 38516; June 13, 2016), represents NMFS's
best effort towards balancing the need to quantify the potential for
occurrence of Level B harassment due to production of underwater sound
with a general lack of information related to the specific way that
these acoustic signals, which are generally highly directional and
transient, interact with the physical environment and to a meaningful
understanding of marine mammal perception of these signals and
occurrence in the areas where NWFSC operates. The sources considered
here have moderate to high output frequencies (10 to 180 kHz),
generally short ping durations, and are typically focused (highly
directional) to serve their intended purpose of mapping specific
objects, depths, or environmental features. In addition, some of these
sources can be operated in different output modes (e.g., energy can be
distributed among multiple output beams) that may lessen the likelihood
of perception by and potential impacts on marine mammals in comparison
with the quantitative estimates that guide our proposed take
authorization.
In addition, otariid pinnipeds are less likely than other taxa to
perceive acoustic signals generated by NWFSC or, given perception, to
react to these signals than the quantitative estimates indicate. This
group of pinnipeds has reduced functional hearing at the higher
frequencies produced by active acoustic sources considered here (e.g.,
primary operating frequencies of 40-180 kHz) and, based purely on their
auditory capabilities, the potential impacts are likely much less than
we have calculated as these relevant factors are not taken into
account.
As described previously, there is some minimal potential for
temporary effects to hearing for certain marine mammals, but most
effects would likely be limited to temporary behavioral disturbance.
Effects on individuals that are taken by Level B harassment will likely
be limited to reactions such as increased swimming speeds, increased
surfacing time, or decreased foraging (if such activity were
occurring), reactions that are considered to be of low severity (e.g.,
Ellison et al., 2012). Individuals may move away from the source if
disturbed, but because the source is itself moving and because of the
directional nature of the sources considered here, there is unlikely to
be even temporary displacement from areas of significance and any
disturbance would be of short duration. Although there is no
information on which to base any distinction between incidents of
harassment and individuals harassed, the same factors, in conjunction
with the fact that NWFSC survey effort is widely dispersed in space and
time, indicate that repeated exposures of the same individuals would be
very unlikely. For these reasons, we do not consider the level of take
by acoustic disturbance to represent a significant additional
population stressor when considered in context with the proposed level
of take by M/SI for any species.
Similarly, disturbance of pinnipeds on haulouts by researchers
approaching on foot or in small vessels (as is expected for harbor
seals in the lower Columbia River and Puget Sound and for California
sea lions in Puget Sound) are expected to be infrequent and cause only
a temporary disturbance on the order of minutes. As noted previously,
monitoring results from other activities involving the disturbance of
pinnipeds and relevant studies of pinniped populations that experience
more regular vessel disturbance indicate that individually significant
or population level impacts are unlikely to occur. When considering the
individual animals likely affected by this disturbance, only a small
fraction (less than fifteen percent) of the estimated population
abundance of the affected stocks would be expected to experience the
disturbance.
As noted above, authorized M/SI above the insignificance threshold
does not necessarily indicate that the take is unsustainable or that it
may constitute more than a negligible impact. Rather, we simply use
this metric as a guide to indicate when further evaluation of the
available information is warranted. For the offshore stock of
bottlenose dolphin, Risso's dolphin, and short-finned pilot whale,
maximum total potential M/SI due to NMFS's fisheries research activity
(SWFSC and NWFSC combined), while above the insignificance threshold,
is low relative to residual PBR (approximately 28, 10, and 12 percent,
respectively).
The only known source of other anthropogenic mortality for the
offshore stock of bottlenose dolphin and the Risso's dolphin is in
commercial fisheries, and such take is considered to be insignificant
and approaching zero mortality and serious injury. Therefore, there is
no information to suggest that the incremental additional removals due
to NWFSC fisheries research cause any concern with regard to annual
rates of recruitment or survival for these stocks.
Similarly, commercial fisheries provide the only known cause of
anthropogenic mortality for the short-finned pilot whale. However, due
to the relatively low PBR value for this stock, such take cannot be
considered to be insignificant and approaching zero mortality and
serious injury. The only takes in commercial fisheries from 2010-14
were due to interactions with the California drift gillnet fishery, and
occurred only in 2014. Therefore, it is unclear that these fishery
takes will constitute an ongoing source of mortality and, regardless,
any level of removals up to PBR could occur while still allowing the
stock to reach or maintain its optimum sustainable population, as
indicated in the definition of the PBR metric. The available
information, i.e., that there is only one other source of anthropogenic
mortality, which has resulted in a low level of mortalities in one year
and may not be an ongoing source of mortality, and that the authorized
take is low compared to residual PBR (10 percent), indicates that there
is no concern regarding the impacts of incremental additional removals
due to NWFSC fisheries research on annual rates of recruitment or
survival for this stock. Nevertheless, if bycatch in commercial
fisheries increases, or other sources of
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mortality are recorded for this stock, we will use the adaptive
management provisions of these regulations to prescribe increased
mitigation sufficient to reduce the likelihood of incidental take in
NMFS fisheries research activities. No population trends are known for
these three stocks.
PBR is unknown for harbor seals on the Oregon and Washington coasts
and in Washington inland waters (comprised of the Hood Canal, southern
Puget Sound, and Washington northern inland waters stocks). The Hood
Canal, southern Puget Sound, and Washington northern inland waters
stocks were formerly a single inland waters stock. Both the Oregon/
Washington coast and Washington inland waters stocks of harbor seal
were considered to be stable following the most recent abundance
estimates (in 1999, stock abundances were estimated at 24,732 and
13,692, respectively). However, a Washington Department of Fish and
Wildlife expert (S. Jeffries) stated an unofficial abundance of 32,000
harbor seals in Washington (Mapes, 2013). Therefore, it is reasonable
to assume that at worst, the stocks have not declined since the last
abundance estimates. Ongoing anthropogenic mortality is estimated at
10.6 harbor seals per year for the coastal stock and 13.4 for inland
waters seals; therefore, we reasonably assume that the maximum
potential annual M/SI incidental to NMFS's fisheries research
activities (1.8 and 1.2, respectively) is a small fraction of any
sustainable take level that might be calculated for either stock. For
the reasons stated above, we do not consider the level of take by
acoustic and physical disturbance for harbor seals to represent a
significant additional population stressor when considered in context
with the proposed level of take by M/SI.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the planned mitigation measures, we
find that the total marine mammal take from NWFSC's fisheries research
activities will have a negligible impact on the affected marine mammal
species or stocks. In summary, this finding of negligible impact is
founded on the following factors: (1) The possibility of injury,
serious injury, or mortality from the use of active acoustic devices
may reasonably be considered discountable; (2) the anticipated
incidents of Level B harassment from the use of active acoustic devices
and physical disturbance of pinnipeds consist of, at worst, temporary
and relatively minor modifications in behavior; (3) the predicted
number of incidents of potential mortality are at insignificant levels
(i.e., below ten percent of residual PBR) for a majority of affected
stocks; (4) consideration of additional factors for the Risso's
dolphin, offshore stock of bottlenose dolphin, and short-finned pilot
whale do not reveal cause for concern; (5) available information
regarding two harbor seal stocks indicates that total maximum potential
M/SI is sustainable; and (6) the presumed efficacy of the planned
mitigation measures in reducing the effects of the specified activity
to the level of least practicable adverse impact. In addition, no M/SI
is authorized for any species or stock that is listed under the ESA or
considered depleted under the MMPA. In combination, we believe that
these factors demonstrate that the specified activity will have only
short-term effects on individuals (resulting from Level B harassment)
and that the total level of taking will not impact rates of recruitment
or survival sufficiently to result in population-level impacts.
Small Numbers Analysis
Please see Table 7 for information relating to this small numbers
analysis. The total amount of taking authorized is less than one
percent for a large majority of stocks. The total amount of taking for
remaining stocks ranges from four to thirteen percent.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the proposed mitigation measures,
we find that small numbers of marine mammals will be taken relative to
the populations of the affected species or stocks.
Monitoring and Reporting
In order to issue an incidental take authorization for an activity,
section 101(a)(5)(A) of the MMPA states that NMFS must set forth
requirements pertaining to the monitoring and reporting of such taking.
The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate
that requests for incidental take authorizations must include the
suggested means of accomplishing the necessary monitoring and reporting
that will result in increased knowledge of the species and of the level
of taking or impacts on populations of marine mammals that are expected
to be present in the proposed action area.
Any monitoring requirement we prescribe should improve our
understanding of one or more of the following:
Occurrence of marine mammal species in action area (e.g.,
presence, abundance, distribution, density);
Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) Action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving, or feeding areas);
Individual responses to acute stressors, or impacts of
chronic exposures (behavioral or physiological);
How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of an individual; or (2) population,
species, or stock;
Effects on marine mammal habitat and resultant impacts to
marine mammals; and
Mitigation and monitoring effectiveness.
NWFSC plans to make more systematic its training, operations, data
collection, animal handling and sampling protocols, etc., in order to
improve its ability to understand how mitigation measures influence
interaction rates and ensure its research operations are conducted in
an informed manner and consistent with lessons learned from those with
experience operating these gears in close proximity to marine mammals.
It is in this spirit that the monitoring requirements described below
were crafted.
Visual Monitoring
Marine mammal watches are a standard part of conducting fisheries
research activities, and are implemented as described previously in
``Mitigation.'' Dedicated marine mammal visual monitoring occurs as
described (1) for some period prior to deployment of most research
gear; (2) throughout deployment and active fishing of all research
gears; (3) for some period prior to retrieval of longline gear; and (4)
throughout retrieval of all research gear. This visual monitoring is
performed by trained NWFSC personnel with no other responsibilities
during the monitoring period. Observers record the species and
estimated number of animals present and their behaviors, which may be
valuable information towards an understanding of whether certain
species may be attracted to vessels or certain survey gears.
Separately, marine mammal watches are conducted by watch-standers
(those navigating the
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vessel and other crew; these will typically not be NWFSC personnel) at
all times when the vessel is being operated. The primary focus for this
type of watch is to avoid striking marine mammals and to generally
avoid navigational hazards. These watch-standers typically have other
duties associated with navigation and other vessel operations and are
not required to record or report to the scientific party data on marine
mammal sightings, except when gear is being deployed or retrieved.
In the PSRA and LCRRA only, the NWFSC will monitor any potential
disturbance of hauled-out pinnipeds, paying particular attention to the
distance at which different species of pinniped are disturbed.
Disturbance will be recorded according to the three-point scale,
representing increasing seal response to disturbance, shown in Table 5.
Training
NWFSC anticipates that additional information on practices to avoid
marine mammal interactions can be gleaned from training sessions and
more systematic data collection standards. The NWFSC will conduct
annual trainings for all CSs and other personnel who may be responsible
for conducting dedicated marine mammal visual observations to explain
mitigation measures and monitoring and reporting requirements,
mitigation and monitoring protocols, marine mammal identification,
recording of count and disturbance observations, completion of
datasheets, and use of equipment. Some of these topics may be familiar
to NWFSC staff, who may be professional biologists. The NWFSC shall
determine the agenda for these trainings and ensure that all relevant
staff have necessary familiarity with these topics. The first such
training will include three primary elements:
First, the course will provide an overview of the purpose and need
for the authorization, including mandatory mitigation measures by gear
and the purpose for each, and species that NWFSC is authorized to
incidentally take.
Second, the training will provide detailed descriptions of
reporting, data collection, and sampling protocols. This portion of the
training will include instruction on how to complete new data
collection forms such as the marine mammal watch log, the incidental
take form (e.g., specific gear configuration and details relevant to an
interaction with protected species), and forms used for species
identification and biological sampling. The biological data collection
and sampling training module will include the same sampling and
necropsy training that is used for the West Coast Regional Observer
training.
Third, NWFSC will also dedicate a portion of training to discussion
of best professional judgment (which is recognized as an integral
component of mitigation implementation; see ``Mitigation''), including
use in any incidents of marine mammal interaction and instructive
examples where use of best professional judgment was determined to be
successful or unsuccessful. We recognize that many factors come into
play regarding decision-making at sea and that it is not practicable to
simplify what are inherently variable and complex situational decisions
into rules that may be defined on paper. However, it is our intent that
use of best professional judgment be an iterative process from year to
year, in which any at-sea decision-maker (i.e., responsible for
decisions regarding the avoidance of marine mammal interactions with
survey gear through the application of best professional judgment)
learns from the prior experience of all relevant NWFSC personnel
(rather than from solely their own experience). The outcome should be
increased transparency in decision-making processes where best
professional judgment is appropriate and, to the extent possible, some
degree of standardization across common situations, with an ultimate
goal of reducing marine mammal interactions. It is the responsibility
of the NWFSC to facilitate such exchange.
Handling Procedures and Data Collection
Improved standardization of handling procedures were discussed
previously in ``Mitigation.'' In addition to the benefits implementing
these protocols are believed to have on the animals through increased
post-release survival, NWFSC believes adopting these protocols for data
collection will also increase the information on which ``serious
injury'' (SI) determinations (NMFS, 2012a, b) are based and improve
scientific knowledge about marine mammals that interact with fisheries
research gears and the factors that contribute to these interactions.
NWFSC personnel will be provided standard guidance and training
regarding handling of marine mammals, including how to identify
different species, bring an individual aboard a vessel, assess the
level of consciousness, remove fishing gear, return an individual to
water and log activities pertaining to the interaction.
NWFSC will record interaction information on either existing data
forms created by other NMFS programs or will develop their own
standardized forms. To aid in SI determinations and comply with the
current NMFS Serious Injury Guidelines (NMFS, 2012a, b), researchers
will also answer a series of supplemental questions on the details of
marine mammal interactions.
Finally, for any marine mammals that are killed during fisheries
research activities, scientists will collect data and samples pursuant
to Appendix D of the NWFSC DEA, ``Protected Species Handling Procedures
for NWFSC Fisheries Research Vessels.''
Reporting
As is normally the case, NWFSC will coordinate with the relevant
stranding coordinators for any unusual marine mammal behavior and any
stranding, beached live/dead, or floating marine mammals that are
encountered during field research activities. The NWFSC will follow a
phased approach with regard to the cessation of its activities and/or
reporting of such events, as described in the proposed regulatory texts
following this preamble. In addition, CSs or the cruise leader will
provide reports to NWFSC leadership and to the Office of Protected
Resources (OPR). As a result, when marine mammals interact with survey
gear, whether killed or released alive, a report provided by the CS
will fully describe any observations of the animals, the context
(vessel and conditions), decisions made and rationale for decisions
made in vessel and gear handling. The circumstances of these events are
critical in enabling NWFSC and OPR to better evaluate the conditions
under which takes are most likely occur. We believe in the long term
this will allow the avoidance of these types of events in the future.
The NWFSC will submit annual summary reports to OPR including: (1)
Annual line-kilometers surveyed during which the EK60, ME70, SX90 (or
equivalent sources) were predominant (see ``Estimated Take by Acoustic
Harassment'' for further discussion), specific to each region; (2)
summary information regarding use of all hook and line, seine, and
trawl gear, including number of sets, hook hours, tows, etc., specific
to each research area and gear; (3) accounts of all incidents of marine
mammal interactions, including circumstances of the event and
descriptions of any mitigation procedures implemented or not
implemented and why; (4) summary information related to any disturbance
of pinnipeds, including event-specific
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total counts of animals present, counts of reactions according to the
three-point scale shown in Table 5, and distance of closest approach;
and (5) a written evaluation of the effectiveness of NWFSC mitigation
strategies in reducing the number of marine mammal interactions with
survey gear, including best professional judgment and suggestions for
changes to the mitigation strategies, if any. The period of reporting
will be annually, beginning one year post-issuance of any LOA, and the
report must be submitted not less than ninety days following the end of
a given year. Submission of this information is in service of an
adaptive management framework allowing NMFS to make appropriate
modifications to mitigation and/or monitoring strategies, as necessary,
during the five-year period of validity for these regulations.
NMFS has established a formal incidental take reporting system, the
Protected Species Incidental Take (PSIT) database, requiring that
incidental takes of protected species be reported within 48 hours of
the occurrence. The PSIT generates automated messages to NMFS
leadership and other relevant staff, alerting them to the event and to
the fact that updated information describing the circumstances of the
event has been inputted to the database. The PSIT and CS reports
represent not only valuable real-time reporting and information
dissemination tools but also serve as an archive of information that
may be mined in the future to study why takes occur by species, gear,
region, etc.
NWFSC will also collect and report all necessary data, to the
extent practicable given the primacy of human safety and the well-being
of captured or entangled marine mammals, to facilitate SI
determinations for marine mammals that are released alive. NWFSC will
require that the CS complete data forms and address supplemental
questions, both of which have been developed to aid in SI
determinations. NWFSC understands the critical need to provide as much
relevant information as possible about marine mammal interactions to
inform decisions regarding SI determinations. In addition, the NWFSC
will perform all necessary reporting to ensure that any incidental M/SI
is incorporated as appropriate into relevant SARs.
Adaptive Management
The regulations governing the take of marine mammals incidental to
NWFSC fisheries research survey operations contain an adaptive
management component. The inclusion of an adaptive management component
will be both valuable and necessary within the context of five-year
regulations for activities that have been associated with marine mammal
mortality.
The reporting requirements associated with this final rule are
designed to provide OPR with monitoring data from the previous year to
allow consideration of whether any changes are appropriate. OPR and the
NWFSC will meet annually to discuss the monitoring reports and current
science and whether mitigation or monitoring modifications are
appropriate. The use of adaptive management allows OPR to consider new
information from different sources to determine (with input from the
NWFSC regarding practicability) on an annual or biennial basis if
mitigation or monitoring measures should be modified (including
additions or deletions). Mitigation measures could be modified if new
data suggests that such modifications would have a reasonable
likelihood of reducing adverse effects to marine mammals and if the
measures are practicable.
The following are some of the possible sources of applicable data
to be considered through the adaptive management process: (1) Results
from monitoring reports, as required by MMPA authorizations; (2)
results from general marine mammal and sound research; and (3) any
information which reveals that marine mammals may have been taken in a
manner, extent, or number not authorized by these regulations or
subsequent LOAs.
Impact on Availability of Affected Species for Taking for Subsistence
Uses
There are no relevant subsistence uses of marine mammals implicated
by these actions. Therefore, we have determined that the total taking
of affected species or stocks would not have an unmitigable adverse
impact on the availability of such species or stocks for taking for
subsistence purposes.
Endangered Species Act (ESA)
There are multiple marine mammal species listed under the ESA with
confirmed or possible occurrence in the proposed specified geographical
region. The authorization of incidental take pursuant to the NWFSC's
specified activity would not affect any designated critical habitat.
OPR requested initiation of consultation with NMFS's West Coast
Regional Office (WCRO) under section 7 of the ESA on the promulgation
of five-year regulations and the subsequent issuance of LOAs to NWFSC
under section 101(a)(5)(A) of the MMPA.
On November 10, 2016, the WCRO issued a biological opinion to OPR
and to the NWFSC (concerning the conduct of the specified activities)
which concluded that the issuance of the authorizations is not likely
to jeopardize the continued existence of any listed species and is not
likely to adversely affect any listed marine mammal species. The
opinion also concluded that the issuance of the authorizations would
not affect any designated critical habitat.
National Environmental Policy Act (NEPA)
In compliance with the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.), as implemented by the regulations published
by the Council on Environmental Quality (40 CFR parts 1500-1508), NWFSC
prepared a Programmatic EA to consider the direct, indirect and
cumulative effects to the human environment resulting from the
described research activities. OPR made NWFSC's EA available to the
public for review and comment, in relation to its suitability for
adoption by OPR in order to assess the impacts to the human environment
of issuance of regulations and subsequent LOA to NWFSC. Also in
compliance with NEPA and the CEQ regulations, as well as NOAA
Administrative Order 216-6, OPR relies on NWFSC's EA, which also
addresses OPR's action of issuing incidental take authorizations to
NWFSC, and signed a Finding of No Significant Impact (FONSI) on March
27, 2018. NWFSC's EA and OPR's FONSI for this action may be found
online at www.nmfs.noaa.gov/pr/permits/incidental/research.htm.
Classification
Pursuant to the procedures established to implement Executive Order
12866, the Office of Management and Budget has determined that this
rule is not significant.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA),
the Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration at the proposed rule stage that this rule will not have
a significant economic impact on a substantial number of small
entities. The factual basis for the certification was published in the
proposed rule and is not repeated here. No comments were received
regarding this certification. As a result, a regulatory flexibility
analysis is not required and none has been prepared.
Notwithstanding any other provision of law, no person is required
to respond to, nor shall a person be subject to a penalty for failure
to comply with a collection of information (COI) subject
[[Page 36394]]
to the requirements of the Paperwork Reduction Act (PRA) unless that
COI displays a currently valid OMB control number. This rule does not
contain a COI requirement subject to the provisions of the PRA because
the applicant is a Federal agency.
List of Subjects in 50 CFR Part 219
Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and recordkeeping requirements, Seafood,
Transportation.
Dated: July 24, 2018.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, NMFS amends 50 CFR part 219
as follows:
PART 219--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for part 219 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq.
0
2. Add subpart E to part 219 to read as follows:
Subpart E--Taking Marine Mammals Incidental to Northwest Fisheries
Science Center Fisheries Research in the Pacific Ocean
Sec.
219.41 Specified activity and specified geographical region.
219.42 Effective dates.
219.43 Permissible methods of taking.
219.44 Prohibitions.
219.45 Mitigation requirements.
219.46 Requirements for monitoring and reporting.
219.47 Letters of Authorization.
219.48 Renewals and modifications of Letters of Authorization.
219.49 [Reserved]
219.50 [Reserved]
Subpart E--Taking Marine Mammals Incidental to Northwest Fisheries
Science Center Fisheries Research in the Pacific Ocean
Sec. 219.41 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the National Marine
Fisheries Service's (NMFS) Northwest Fisheries Science Center (NWFSC)
and those persons it authorizes or funds to conduct activities on its
behalf for the taking of marine mammals that occurs in the area
outlined in paragraph (b) of this section and that occurs incidental to
research survey program operations.
(b) The taking of marine mammals by NWFSC may be authorized in a
Letter of Authorization (LOA) only if it occurs within the California
Current Ecosystem, including Puget Sound and the Columbia River.
Sec. 219.42 Effective dates.
Regulations in this subpart are effective from August 27, 2018,
through August 28, 2023.
Sec. 219.43 Permissible methods of taking.
(a) Under LOAs issued pursuant to Sec. 216.106 of this chapter and
Sec. 219.47, the Holder of the LOA (hereinafter ``NWFSC'') may
incidentally, but not intentionally, take marine mammals within the
area described in Sec. 219.41(b) by Level B harassment associated with
use of active acoustic systems and physical or visual disturbance of
hauled-out pinnipeds and by Level A harassment, serious injury, or
mortality associated with use of hook and line gear, trawl gear, and
seine gear, provided the activity is in compliance with all terms,
conditions, and requirements of the regulations in this subpart and the
applicable LOA.
Sec. 219.44 Prohibitions.
Notwithstanding takings contemplated in Sec. 219.41 and authorized
by a LOA issued under Sec. 216.106 of this chapter and Sec. 219.47,
no person in connection with the activities described in Sec. 219.41
may:
(a) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a LOA issued under Sec. 216.106 of
this chapter and Sec. 219.47;
(b) Take any marine mammal not specified in such LOA;
(c) Take any marine mammal specified in such LOAs in any manner
other than as specified;
(d) Take a marine mammal specified in such LOA if NMFS determines
such taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
(e) Take a marine mammal specified in such LOA if NMFS determines
such taking results in an unmitigable adverse impact on the
availability of such species or stock of marine mammal for taking for
subsistence uses.
Sec. 219.45 Mitigation requirements.
When conducting the activities identified in Sec. 219.41(a), the
mitigation measures contained in any LOA issued under Sec. 216.106 of
this chapter and Sec. 219.47 must be implemented. These mitigation
measures shall include but are not limited to:
(a) General conditions:
(1) NWFSC shall take all necessary measures to coordinate and
communicate in advance of each specific survey with the National
Oceanic and Atmospheric Administration's (NOAA) Office of Marine and
Aviation Operations (OMAO) or other relevant parties on non-NOAA
platforms to ensure that all mitigation measures and monitoring
requirements described herein, as well as the specific manner of
implementation and relevant event-contingent decision-making processes,
are clearly understood and agreed upon;
(2) NWFSC shall coordinate and conduct briefings at the outset of
each survey and as necessary between ship's crew (Commanding Officer/
master or designee(s), as appropriate) and scientific party in order to
explain responsibilities, communication procedures, marine mammal
monitoring protocol, and operational procedures;
(3) NWFSC shall coordinate as necessary on a daily basis during
survey cruises with OMAO personnel or other relevant personnel on non-
NOAA platforms to ensure that requirements, procedures, and decision-
making processes are understood and properly implemented;
(4) When deploying any type of sampling gear at sea, NWFSC shall at
all times monitor for any unusual circumstances that may arise at a
sampling site and use best professional judgment to avoid any potential
risks to marine mammals during use of all research equipment; and
(5) NWFSC shall implement handling and/or disentanglement protocols
as specified in the guidance that shall be provided to NWFSC survey
personnel.
(b) For all research surveys using trawl, hook and line, or seine
gear in Puget Sound, the move-on rule mitigation protocol described in
paragraph (c)(3) of this section shall be implemented upon observation
of killer whales at any distance.
(c) Trawl survey protocols:
(1) NWFSC shall conduct trawl operations as soon as is practicable
upon arrival at the sampling station;
(2) NWFSC shall initiate marine mammal watches (visual observation)
a minimum of ten minutes prior to beginning of net deployment but shall
also conduct monitoring during pre-set activities including trackline
reconnaissance, CTD casts, and plankton or bongo net hauls. Marine
mammal watches shall be conducted by scanning the surrounding waters
with the naked eye and rangefinding binoculars (or monocular). During
nighttime operations, visual observation shall be conducted using the
naked eye and available vessel lighting;
(3) NWFSC shall implement the move-on rule mitigation protocol, as
[[Page 36395]]
described in this paragraph. If one or more marine mammals are observed
within 500 meters (m) of the planned location in the 10 minutes before
setting the trawl gear, and are considered at risk of interacting with
the vessel or research gear, or appear to be approaching the vessel and
are considered at risk of interaction, NWFSC shall either remain onsite
or move on to another sampling location. If remaining onsite, the set
shall be delayed. If the animals depart or appear to no longer be at
risk of interacting with the vessel or gear, a further 10 minute
observation period shall be conducted. If no further observations are
made or the animals still do not appear to be at risk of interaction,
then the set may be made. If the vessel is moved to a different section
of the sampling area, the move-on rule mitigation protocol would begin
anew. If, after moving on, marine mammals remain at risk of
interaction, the NWFSC shall move again or skip the station. Marine
mammals that are sighted further than 500 m from the vessel shall be
monitored to determine their position and movement in relation to the
vessel to determine whether the move-on rule mitigation protocol should
be implemented. NWFSC may use best professional judgment in making
these decisions;
(4) NWFSC shall maintain visual monitoring effort during the entire
period of time that trawl gear is in the water (i.e., throughout gear
deployment, fishing, and retrieval). If marine mammals are sighted
before the gear is fully removed from the water, NWFSC shall take the
most appropriate action to avoid marine mammal interaction. NWFSC may
use best professional judgment in making this decision;
(5) If trawling operations have been suspended because of the
presence of marine mammals, NWFSC may resume trawl operations when
practicable only when the animals are believed to have departed the
area. NWFSC may use best professional judgment in making this
determination;
(6) When conducting surface trawls using the Nordic 264 net,
dedicated crew with no other tasks shall conduct required marine mammal
monitoring. Marine mammal monitoring shall be staffed in a stepwise
process, with a minimum of two observers beginning pre-set monitoring
and increasing to a minimum of four observers prior to and during gear
deployment. During the tow, a minimum of three observers shall conduct
required monitoring;
(7) NWFSC shall implement standard survey protocols to minimize
potential for marine mammal interactions, including maximum tow
durations at target depth and maximum tow distance, and shall carefully
empty the trawl as quickly as possible upon retrieval. Trawl nets must
be cleaned prior to deployment;
(8) NWFSC must install and use a marine mammal excluder device at
all times when the Nordic 264 trawl net is used;
(9) NWFSC must install and use acoustic deterrent devices whenever
the Nordic 264 trawl net is used, with two pairs of the devices
installed near the net opening. NWFSC must ensure that the devices are
operating properly before deploying the net;
(10) For use of the Kodiak surface trawl in Puget Sound, trawl
survey protocols described in this section apply only to cetaceans; and
(11) Trawl survey protocols described in this section do not apply
to use of pair trawl gear in the Columbia River.
(d) Hook and line (including longline) survey protocols:
(1) NWFSC shall deploy hook and line gear as soon as is practicable
upon arrival at the sampling station;
(2) NWFSC shall initiate marine mammal watches (visual observation)
no less than 30 minutes prior to both deployment and retrieval of
longline gear. Marine mammal watches shall be conducted by scanning the
surrounding waters with the naked eye and range-finding binoculars (or
monocular). During nighttime operations, visual observation shall be
conducted using the naked eye and available vessel lighting;
(3) NWFSC shall implement the move-on rule mitigation protocol, as
described in this paragraph. If one or more marine mammals are observed
within 500 m of the planned location in the ten minutes before gear
deployment, and are considered at risk of interacting with the vessel
or research gear, or appear to be approaching the vessel and are
considered at risk of interaction, NWFSC shall either remain onsite or
move on to another sampling location. If remaining onsite, the set
shall be delayed. If the animals depart or appear to no longer be at
risk of interacting with the vessel or gear, a further 10 minute
observation period shall be conducted. If no further observations are
made or the animals still do not appear to be at risk of interaction,
then the set may be made. If the vessel is moved to a different section
of the sampling area, the move-on rule mitigation protocol would begin
anew. If, after moving on, marine mammals remain at risk of
interaction, the NWFSC shall move again or skip the station. Marine
mammals that are sighted further than 500 m from the vessel shall be
monitored to determine their position and movement in relation to the
vessel to determine whether the move-on rule mitigation protocol should
be implemented. NWFSC may use best professional judgment in making
these decisions;
(4) NWFSC shall maintain visual monitoring effort during the entire
period of gear deployment and retrieval. If marine mammals are sighted
before the gear is fully deployed or retrieved, NWFSC shall take the
most appropriate action to avoid marine mammal interaction. NWFSC may
use best professional judgment in making this decision;
(5) If deployment or retrieval operations have been suspended
because of the presence of marine mammals, NWFSC may resume such
operations when practicable only when the animals are believed to have
departed the area. NWFSC may use best professional judgment in making
this decision;
(6) NWFSC shall implement standard survey protocols, including
maximum soak durations and a prohibition on chumming; and
(7) For hook and line surveys in Puget Sound, but not including
longline surveys, hook and line survey protocols described in this
section apply only to cetaceans.
(e) Seine survey protocols:
(1) NWFSC shall conduct seine operations as soon as is practicable
upon arrival at the sampling station;
(2) NWFSC shall conduct marine mammal watches (visual observation)
prior to beginning of net deployment. Marine mammal watches shall be
conducted by scanning the surrounding waters with the naked eye and
rangefinding binoculars (or monocular);
(3) NWFSC shall implement the move-on rule mitigation protocol, as
described in this paragraph for use of purse seine gear. If one or more
small cetaceans (i.e., dolphin or porpoise) or five or more pinnipeds
are observed within 500 m of the planned location before setting the
seine gear, and are considered at risk of interacting with the vessel
or research gear, or appear to be approaching the vessel and are
considered at risk of interaction, NWFSC shall either remain onsite or
move on to another sampling location. If remaining onsite, the set
shall be delayed. If the animals depart or appear to no longer be at
risk of interacting with the vessel or gear, a further ten minute
observation period shall be conducted. If no further observations are
made or the animals still do not appear to be at risk of interaction,
then the set may be made. If the vessel is moved to
[[Page 36396]]
a different area, the move-on rule mitigation protocol would begin
anew. If, after moving on, marine mammals remain at risk of
interaction, the NWFSC shall move again or skip the station. Marine
mammals that are sighted further than 500 m from the vessel shall be
monitored to determine their position and movement in relation to the
vessel to determine whether the move-on rule mitigation protocol should
be implemented. NWFSC may use best professional judgment in making
these decisions;
(4) NWFSC shall maintain visual monitoring effort during the entire
period of time that seine gear is in the water (i.e., throughout gear
deployment, fishing, and retrieval). If marine mammals are sighted
before the gear is fully removed from the water, NWFSC shall take the
most appropriate action to avoid marine mammal interaction. NWFSC may
use best professional judgment in making this decision;
(5) If seine operations have been suspended because of the presence
of marine mammals, NWFSC may resume seine operations when practicable
only when the animals are believed to have departed the area. NWFSC may
use best professional judgment in making this determination;
(6) If any cetaceans are observed in a purse seine net, NWFSC shall
immediately open the net and free the animals; and
(7) NWFSC shall not make beach seine sets within 200 m of any
hauled-out pinniped, and shall immediately remove the gear from the
water upon observation of any marine mammal attempting to interact with
the gear.
Sec. 219.46 Requirements for monitoring and reporting.
(a) NWFSC shall designate a compliance coordinator who shall be
responsible for ensuring compliance with all requirements of any LOA
issued pursuant to Sec. 216.106 of this chapter and Sec. 219.47 and
for preparing for any subsequent request(s) for incidental take
authorization.
(b) Visual monitoring program:
(1) Marine mammal visual monitoring shall occur prior to deployment
of trawl, seine, and hook and line gear, respectively; throughout
deployment of gear and active fishing of research gears (not including
longline soak time); prior to retrieval of longline gear; and
throughout retrieval of all research gear;
(2) Marine mammal watches shall be conducted by watch-standers
(those navigating the vessel and/or other crew) at all times when the
vessel is being operated; and
(3) NWFSC shall conduct census counts of established pinniped
haulouts in the Columbia River and Puget Sound that are disturbed by
NWFSC research activity, and shall record disturbance of hauled-out
pinnipeds due to NWFSC research activity, paying particular attention
to the distance at which different species of pinniped are disturbed.
Disturbance shall be recorded according to a three-point scale of
response severity.
(c) Training:
(1) NWFSC must conduct annual training for all chief scientists and
other personnel who may be responsible for conducting dedicated marine
mammal visual observations to explain mitigation measures and
monitoring and reporting requirements, mitigation and monitoring
protocols, marine mammal identification, completion of datasheets, and
use of equipment. NWFSC may determine the agenda for these trainings;
(2) NWFSC shall also dedicate a portion of training to discussion
of best professional judgment, including use in any incidents of marine
mammal interaction and instructive examples where use of best
professional judgment was determined to be successful or unsuccessful;
and
(3) NWFSC shall coordinate with NMFS's Southwest Fisheries Science
Center (SWFSC) regarding surveys conducted in the California Current
Ecosystem, such that training and guidance related to handling
procedures and data collection is consistent.
(d) Handling procedures and data collection:
(1) NWFSC must develop and implement standardized marine mammal
handling, disentanglement, and data collection procedures. These
standard procedures will be subject to approval by NMFS's Office of
Protected Resources (OPR);
(2) When practicable, for any marine mammal interaction involving
the release of a live animal, NWFSC shall collect necessary data to
facilitate a serious injury determination;
(3) NWFSC shall provide its relevant personnel with standard
guidance and training regarding handling of marine mammals, including
how to identify different species, bring an individual aboard a vessel,
assess the level of consciousness, remove fishing gear, return an
individual to water, and log activities pertaining to the interaction;
and
(4) NWFSC shall record such data on standardized forms, which will
be subject to approval by OPR. NWFSC shall also answer a standard
series of supplemental questions regarding the details of any marine
mammal interaction.
(e) Reporting:
(1) NWFSC shall report all incidents of marine mammal interaction
to NMFS's Protected Species Incidental Take database within 48 hours of
occurrence and shall provide supplemental information to OPR upon
request. Information related to marine mammal interaction (animal
captured or entangled in research gear) must include details of survey
effort, full descriptions of any observations of the animals, the
context (vessel and conditions), decisions made, and rationale for
decisions made in vessel and gear handling;
(2) Annual reporting:
(i) NWFSC shall submit an annual summary report to OPR not later
than 90 days following the end of a given year. NWFSC shall provide a
final report within thirty days following resolution of comments on the
draft report:
(ii) These reports shall contain, at minimum, the following:
(A) Annual line-kilometers surveyed during which the EK60, ME70,
SX90 (or equivalent sources) were predominant and associated pro-rated
estimates of actual take;
(B) Summary information regarding use of all hook and line, seine,
and trawl gear, including number of sets, hook hours, tows, etc.,
specific to each gear;
(C) Accounts of all incidents of marine mammal interactions,
including circumstances of the event and descriptions of any mitigation
procedures implemented or not implemented and why;
(D) Summary information related to disturbance of hauled-out
pinnipeds, including event-specific total counts of animals present,
counts of reactions according to the three-point scale, and distance of
closest approach;
(E) A written evaluation of the effectiveness of NWFSC mitigation
strategies in reducing the number of marine mammal interactions with
survey gear, including best professional judgment and suggestions for
changes to the mitigation strategies, if any;
(F) Final outcome of serious injury determinations for all
incidents of marine mammal interactions where the animal(s) were
released alive; and
(G) A summary of all relevant training provided by NWFSC and any
coordination with SWFSC or NMFS's West Coast Regional Office.
(f) Reporting of injured or dead marine mammals:
(1) In the unanticipated event that the activity defined in Sec.
219.41(a) clearly causes the take of a marine mammal in a prohibited
manner, NWFSC personnel
[[Page 36397]]
engaged in the research activity shall immediately cease such activity
until such time as an appropriate decision regarding activity
continuation can be made by the NWFSC Director (or designee). The
incident must be reported immediately to OPR and the West Coast
Regional Stranding Coordinator, NMFS. OPR will review the circumstances
of the prohibited take and work with NWFSC to determine what measures
are necessary to minimize the likelihood of further prohibited take and
ensure MMPA compliance. The immediate decision made by NWFSC regarding
continuation of the specified activity is subject to OPR concurrence.
The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) Description of the incident;
(iii) Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility);
(iv) Description of all marine mammal observations in the 24 hours
preceding the incident;
(v) Species identification or description of the animal(s)
involved;
(vi) Status of all sound source use in the 24 hours preceding the
incident;
(vii) Water depth;
(viii) Fate of the animal(s); and
(ix) Photographs or video footage of the animal(s);
(2) In the event that NWFSC discovers an injured or dead marine
mammal and determines that the cause of the injury or death is unknown
and the death is relatively recent (e.g., in less than a moderate state
of decomposition), NWFSC shall immediately report the incident to OPR
and the West Coast Regional Stranding Coordinator, NMFS. The report
must include the information identified in paragraph (f)(1) of this
section. Activities may continue while OPR reviews the circumstances of
the incident. OPR will work with NWFSC to determine whether additional
mitigation measures or modifications to the activities are appropriate;
(3) In the event that NWFSC discovers an injured or dead marine
mammal and determines that the injury or death is not associated with
or related to the activities defined in Sec. 219.41(a) (e.g.,
previously wounded animal, carcass with moderate to advanced
decomposition, scavenger damage), NWFSC shall report the incident to
OPR and the West Coast Regional Stranding Coordinator, NMFS, within 24
hours of the discovery. NWFSC shall provide photographs or video
footage or other documentation of the stranded animal sighting to OPR.
Sec. 219.47 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, NWFSC must apply for and obtain a Letter of Authorization
(LOA).
(b) An LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these
regulations, NWFSC may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, NWFSC must apply
for and obtain a modification of the LOA as described in Sec. 219.48
of this chapter.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the
level of taking will be consistent with the findings made for the total
taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA shall be published in
the Federal Register within thirty days of a determination.
Sec. 219.48 Renewals and modifications of Letters of Authorization.
(a) An LOA issued under Sec. 216.106 of this chapter and Sec.
219.47 for the activity identified in Sec. 219.41(a) shall be renewed
or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations (excluding changes
made pursuant to the adaptive management provision in paragraph (c)(1)
of this section), and
(2) OPR determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under these regulations were
implemented.
(b) For an LOA modification or renewal requests by the applicant
that include changes to the activity or the mitigation, monitoring, or
reporting measures (excluding changes made pursuant to the adaptive
management provision in paragraph (c)(1) of this section) that do not
change the findings made for the regulations or result in no more than
a minor change in the total estimated number of takes (or distribution
by species or years), OPR may publish a notice of proposed LOA in the
Federal Register, including the associated analysis of the change, and
solicit public comment before issuing the LOA.
(c) An LOA issued under Sec. 216.106 of this chapter and Sec.
219.47 for the activity identified in Sec. 219.41(a) may be modified
by OPR under the following circumstances:
(1) Adaptive Management--OPR may modify (including augment) the
existing mitigation, monitoring, or reporting measures (after
consulting with NWFSC regarding the practicability of the
modifications) if doing so creates a reasonable likelihood of more
effectively accomplishing the goals of the mitigation and monitoring
set forth in the preamble for these regulations;
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from NWFSC's monitoring from the previous year(s);
(B) Results from other marine mammal and/or sound research or
studies; and
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by these regulations or
subsequent LOAs.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, OPR will
publish a notice of proposed LOA in the Federal Register and solicit
public comment.
(2) Emergencies--If OPR determines that an emergency exists that
poses a significant risk to the well-being of the species or stocks of
marine mammals specified in LOAs issued pursuant to Sec. 216.106 of
this chapter and Sec. 219.47, an LOA may be modified without prior
notice or opportunity for public comment. Notice would be published in
the Federal Register within thirty days of the action.
Sec. 219.49 [Reserved]
Sec. 219.50 [Reserved]
[FR Doc. 2018-16115 Filed 7-26-18; 8:45 am]
BILLING CODE 3510-22-P