Rule2021-22858
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Northeast Fisheries Science Center Fisheries and Ecosystem Research
Primary source
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Published
October 21, 2021
Effective
October 21, 2021
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS' Office of Protected Resources (OPR), upon request from NMFS' Northeast Fisheries Science Center (NEFSC), hereby issues regulations to govern the unintentional taking of marine mammals incidental to fisheries research conducted in multiple specified geographical regions over the course of 5 years. These regulations, which allow for the issuance of Letters of Authorization (LOA) for the incidental take of marine mammals during the described activities and specified timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking. Upon publication of this final rule, NMFS will issue an LOA to NEFSC for the effective period of the final rule.
Full Text
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[Federal Register Volume 86, Number 201 (Thursday, October 21, 2021)]
[Rules and Regulations]
[Pages 58434-58472]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-22858]
[[Page 58433]]
Vol. 86
Thursday,
No. 201
October 21, 2021
Part III
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 219
Takes of Marine Mammals Incidental to Specified Activities; Taking
Marine Mammals Incidental to Northeast Fisheries Science Center
Fisheries and Ecosystem Research; Final Rule
Federal Register / Vol. 86 , No. 201 / Thursday, October 21, 2021 /
Rules and Regulations
[[Page 58434]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 219
[Docket No. 210823-0166]
RIN 0648-BK39
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Northeast Fisheries Science Center
Fisheries and Ecosystem Research
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; notice of issuance of Letter of Authorization (LOA)
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SUMMARY: NMFS' Office of Protected Resources (OPR), upon request from
NMFS' Northeast Fisheries Science Center (NEFSC), hereby issues
regulations to govern the unintentional taking of marine mammals
incidental to fisheries research conducted in multiple specified
geographical regions over the course of 5 years. These regulations,
which allow for the issuance of Letters of Authorization (LOA) for the
incidental take of marine mammals during the described activities and
specified timeframes, prescribe the permissible methods of taking and
other means of effecting the least practicable adverse impact on marine
mammal species or stocks and their habitat, as well as requirements
pertaining to the monitoring and reporting of such taking. Upon
publication of this final rule, NMFS will issue an LOA to NEFSC for the
effective period of the final rule.
DATES: Effective from October 21, 2021, through October 21, 2026.
ADDRESSES: A copy of NEFSC's application and supporting documents, as
well as a list of the references cited in this document, may be
obtained online at: <a href="http://www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-southwest-fisheries-science-center-fisheries-and">www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-southwest-fisheries-science-center-fisheries-and</a>. In
case of problems accessing these documents, please call the contact
listed below.
FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Purpose and Need for Regulatory Action
These regulations establish a framework under the authority of the
MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of take of
marine mammals incidental to the NEFSC's fisheries research activities
in the Atlantic Ocean.
We received an application from the NEFSC requesting 5-year
regulations and authorization to take multiple species of marine
mammals. Take would occur by Level B harassment incidental to the use
of active acoustic devices, as well as by visual disturbance of
pinnipeds in the Antarctic, and by Level A harassment, serious injury,
or mortality incidental to the use of fisheries research gear. Please
see ``Background'' below for definitions of harassment.
Legal Authority for the Action
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs
the Secretary of Commerce to allow, upon request, the incidental, but
not intentional taking of small numbers of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) within a specified geographical region for up to 5 years if,
after notice and public comment, the agency makes certain findings and
issues regulations that set forth permissible methods of taking
pursuant to that activity and other means of effecting the ``least
practicable adverse impact'' on the affected species or stocks and
their habitat (see the discussion below in the Mitigation section), as
well as monitoring and reporting requirements. Section 101(a)(5)(A) of
the MMPA and the implementing regulations at 50 CFR part 216, subpart I
provide the legal basis for issuing this rule containing 5-year
regulations, and for any subsequent LOAs. As directed by this legal
authority, this rule contains mitigation, monitoring, and reporting
requirements.
Summary of Major Provisions Within the Regulations
The following provides a summary the major provisions within this
rulemaking for the NEFSC fisheries research activities in the Northwest
Atlantic Ocean. They include, but are not limited to:
<bullet> Training scientists and vessel crew in marine mammal
detection and identification, rule compliance, and marine mammal
handling.
<bullet> Monitoring of the sampling areas to detect the presence of
marine mammals before gear deployment and while gear is in the water.
<bullet> Implementing standard tow durations to reduce the
likelihood of incidental take of marine mammals.
<bullet> Implementing the mitigation strategy known as the ``move-
on rule,'' which incorporates best professional judgment, when
necessary during fisheries research.
<bullet> Removing gear from water if marine mammals are at-risk or
interact with gear.
<bullet> Complying with applicable vessel speed restrictions and
separation distances from marine mammals.
<bullet> Complying with applicable and relevant take reduction
plans for marine mammals.
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are issued or, if the taking is limited to harassment, a notice of a
proposed incidental take authorization may be provided to the public
for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of the takings are set forth. The definitions
of all applicable MMPA statutory terms cited above are included in the
relevant sections below.
Summary of Request
On September 2, 2020, NMFS received an application from NEFSC
requesting promulgation of regulations and issuance of a 5-year LOA to
take marine mammals incidental to fisheries and ecosystem research in
the Atlantic Ocean. NEFSC subsequently submitted revised applications
on October 29, 2020; November 19, 2020; and December 3, 2020. The
December application was deemed adequate and complete on December 9,
2020. In accordance with the MMPA, we
[[Page 58435]]
published a notice of proposed rulemaking in the Federal Register on
June 4, 2021 (86 FR 30080), and requested comments and information from
the public. We did not receive any comments on the proposed rule.
These regulations are the second consecutive 5-year incidental take
regulations issued in response to a petition from NEFSC. The initial
regulations were finalized in 2016 and are effective through September
9, 2021 (81 FR 53061; August 11, 2016). A 5-year LOA was issued to
NEFSC pursuant to those regulations (81 FR 64442, September 20, 2016);
that LOA expires September 9, 2021. To date, NEFSC has complied with
all the requirements (e.g., mitigation, monitoring, and reporting) of
the current LOA and did not exceed authorized take for a species. NEFSC
annual monitoring reports can be found at <a href="http://www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-nefsc-fisheries-and-ecosystem-research">www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-nefsc-fisheries-and-ecosystem-research</a>.
The LOA issued under this final rule authorizes take of a small
number of 10 species of marine mammals by mortality or serious injury
incidental to gear interaction and 32 species or stocks by Level B
harassment incidental to use of active acoustic devices during
fisheries and ecosystem research.
Description of Proposed Activity
Overview
The NEFSC is the research arm of NMFS in the Greater Atlantic
Region (Maine to Virginia). The NEFSC plans, develops, and manages a
multidisciplinary program of basic and applied research to generate the
information necessary for the conservation and management of the
region's living marine resources, including the region's marine and
anadromous fish and invertebrate populations to ensure they remain at
sustainable and healthy levels. The NEFSC collects a wide array of
information necessary to evaluate the status of exploited fishery
resources and the marine environment from fishery independent (i.e.,
non-commercial or recreational fishing) platforms. Surveys are
conducted from NOAA-owned and operated vessels, NOAA chartered vessels,
or research partner-owned or chartered vessels in the state and Federal
waters of the Atlantic Ocean from Maine to Florida.
The NEFSC plans to administer, fund, or conduct 59 fisheries and
ecosystem research survey programs over the 5-year period the
regulations would be effective (Table 1). Of the 59 surveys, only 42
involve gear and equipment with the potential to take marine mammals.
Gear types include towed trawl nets fished at various levels in the
water column, dredges, gillnets, traps, longline and other hook and
line gear. Surveys using any type of seine net (e.g., gillnets), trawl
net, or hook and line (e.g., longlines) have the potential for marine
mammal interaction (e.g., entanglement, hooking) resulting in mortality
or serious injury (M/SI). In addition, the NEFSC conducts hydrographic,
oceanographic, and meteorological sampling concurrent with many of
these surveys which requires the use of active acoustic devices (e.g.,
side-scan sonar, echosounders). These active sonars result in elevated
sound levels in the water column, potentially causing behavioral
disturbance rising to the level of harassment (Level B).
Dates and Duration
NEFSC would conduct research year-round; however, certain surveys
would occur seasonally (Table 1). The regulations and associated LOA
would be valid for 5 years from date of issuance.
Specified Geographical Region
The NEFSC would conduct fisheries research activities off of the
U.S. Atlantic coast within the Northeast U.S. Continental Shelf Large
Marine Ecosystem (NE LME), an area defined as the 200 miles (322 km)
off the shoreline and reaching from the U.S.-Canada border to Cape
Hatteras (Figure 1). The NE LME is divided into four areas: the Gulf of
Maine (GOM), Georges Bank (GB), Southern New England (SNE), and the
Mid-Atlantic Bight (MAB). A small number of NEFSC surveys into the
Southeast U.S. Continental Shelf LME (SE LME) and, rarely, north into
the Scotian Shelf LME. Detailed descriptions of the NEFSC's research
areas were provided in the notice of proposed rulemaking (86 FR 30080,
June 4, 2021). Those descriptions remain accurate and sufficient, and
we refer the reader to that notice rather than reprinting the
information here.
BILLING CODE 3510-22-P
[[Page 58436]]
[GRAPHIC] [TIFF OMITTED] TR21OC21.001
BILLING CODE 3510-22-C
Detailed Description of Specific Activity
A detailed description of NEFSC's planned activities was provided
in the notice of proposed rulemaking (86 FR 30080, June 4, 2021) and is
not repeated here except for the list of surveys provided in Table 1.
No changes have been made to the specified activities described
therein.
[[Page 58437]]
Table 1--Proposed NEFSC Fisheries Research Surveys
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Potential
Project name Survey description Gear Specific gear Area of operation Season Annual days at sea for take
(DAS) (Y/N)
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Long-Term Research
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Benthic Habitat Survey........... Assess habitat distribution and Bottom Trawl........ Conductivity, Georges Bank (GB).. Summer or Fall..... 20................. Y
condition, including disturbance by Temperature, and
commercial fishing and changes as the Depth (CTD), Van
benthic ecosystem recovers from Veen, Plankton
chronic fishing impacts. Also serves trap, Beam Trawl,
to collect data on seasonal migration Dredge, Camera,
of benthic species, collect bottom Sonar.
data for mapping, and provide
indications of climate change through
species shifts.
Fish Collection for Laboratory Trawling/hook and line collection Bottom Trawl........ Net and twine shrimp New York Bight, April-November..... 10................. Y
Experiments. operations undertake to capture high trawl, fishing Sandy Hook Bay.
quality fish for laboratory poles.
experiments.
Habitat Mapping Survey........... Map shallow reef habitats of fisheries Bottom Trawl........ 4-seam, 3 bridle Ocean Shelf off MD. Summer............. 11................. Y
resource species, including warm bottom trawl, beam
season habitats of black sea bass, trawl, CTD, Van
and locate sensitive habitats (e.g., Veen, Plankton
shallow temperate coral habitats) for trap, dredge,
habitat conservation. camera, sonar.
Living Marine Resources Survey... Determine the distribution, abundance, Bottom Trawl........ 4-seam, 3 bridle Cape Hatteras to NJ Spring............. 11................. Y
and recruitment patterns for multiple bottom trawl, beam
species. trawl, CTD, Van
Veen, sonar.
Massachusetts Division of Marine The objective of this project is to Bottom Trawl........ Otter trawl......... Territorial waters Spring and Fall.... 60-72.............. Y
Fisheries Bottom Trawl Surveys. track mature animals and determine from RI to NH
juvenile abundance. borders.
NEAMAP Near Shore Trawl Program-- This project provides data collection Bottom Trawl........ Modified GoM shrimp U.S.-Canada to NH- Spring and Fall.... 30-50.............. Y
Northern Segment. and analysis in support of single and otter trawl. MA border from
multi-species stock assessments Gulf shore to 300 ft
of Maine. It includes the Maine/New depth.
Hampshire inshore trawl program,
conducted by Maine Department of
Marine Resources (MDMR) in the
northern segment.
NEAMAP Near Shore Trawl Program-- This project provides data collection Bottom Trawl........ 4-seam, 3-bridle net Montauk, NY to Cape Spring and Fall.... 30-50.............. Y
Southern Segment. and analysis in support of single and bottom trawl cookie Hatteras, NC from
multispecies stock assessments in the sweep. 20 to 90 ft depth.
Mid-Atlantic. It includes the inshore
trawl program NEAMAP Mid-Atlantic to
Southern New England survey,
conducted by Virginia Institute of
Marine Science, College of William
and Mary (VIMS) in the southern
segment.
NEFOP Observer Bottom Trawl Certification training for new NEFOP Bottom Trawl........ Contracted vessels' Mid-Atlantic Bight April-November (as 18................. Y
Training Trips. Observers. trawl gear. (MAB) and GB. needed), day trips.
NEFSC Northern Shrimp Survey..... The objective of this project is to Bottom Trawl........ 4 seam modified GOM................ Summer............. 22................. Y
determine the distribution and commercial shrimp
abundance of northern shrimp and trawl, positional
collect related data. sensors, mini-log,
CTD.
NEFSC Standard Bottom Trawl This project monitors abundance and Bottom Trawl........ 4-seam, 3-bridle Cape Hatteras to Spring and Fall.... 120................ Y
Surveys (BTS). distribution of mature and juvenile bottom trawl. Western Scotian
fish and invertebrates. Shelf.
NEFSC Bottom Trawl Survey Gear Testing and efficiency evaluation of Bottom Trawl........ 4-seam, 3-bridle Cape Hatteras to Fall............... 14-20.............. Y
Trials. the standardized 4-seam, 3-bridle bottom trawl, twin Western Scotian
bottom trawl (doors, sweeps, trawls. Shelf.
protocols).
[[Page 58438]]
Atlantic Herring Survey.......... This operation collects fisheries- Pelagic Trawl....... 4-seam, 3-bridle net GOM and Northern GB Fall............... 34................. Y
independent herring spawning biomass bottom trawl,
data and also includes survey midwater rope
equipment calibration and performance trawl, acoustics.
tests.
Atlantic Salmon Trawl Survey..... This is a targeted research effort to Pelagic Trawl....... Modified mid-water Inshore and Spring............. 21................. Y
evaluate the marine ecology of trawl that fishes offshore GOM.
Atlantic salmon. at the surface via
pair trawling.
Deepwater Biodiversity........... This project collects fish, cephalopod Pelagic Trawl....... Deep-Sea acoustic/ Western North Summer or Fall..... 16................. Y
and crustacean specimens from 500 to optic/ocean Atlantic.
2,000 m for tissue samples, specimen ographic/eDNA
photos, and documentation of system, trawl
systematic characterization. camera system.
Penobscot Estuarine Fish The objective of this project is fish Pelagic Trawl....... Mamou shrimp trawl Penobscot Estuary Spring, Summer and 12................. Y
Community and Ecosystem Survey. and invertebrate sampling for modified to fish at and Bay, ME. Fall.
biometric and population analysis of surface.
estuarine and coastal species.
Northeast Integrated Pelagic The objective of this project is to Pelagic Trawl....... Mid-water trawls, Cape Hatteras to Summer and Fall.... 80................. Y
Survey. assess the pelagic components of the bong nets, CTD, Western Scotian
ecosystem including water currents, Acoustic Doppler Shelf.
water properties, phytoplankton, Profiler (ADCP),
micro-zooplankton, mesozooplankton, acoustics.
pelagic fish and invertebrates, sea
turtles, marine mammals, and sea
birds.
NEFOP Observer Mid-Water Trawl This program provides certification Pelagic Trawl....... Various commercial MAB and GB......... April-November as 5.................. Y
Training Trip. training for NEFOP Observers. nets. needed (day trips).
Apex Predators Pelagic Longline The objectives of this survey are to: Longline............ Yankee and current MD to Canada....... Spring............. 30................. Y
Shark Survey. (1) Monitor the species composition, commercial pelagic
distribution, and abundance of longline gear.
pelagic sharks in the U.S. Atlantic Configured
from Maryland to Canada; (2) tag according to NMFS
sharks for migration and age HMS Regulations.
validation studies; (3) collect
morphological data and biological
samples for age and growth, feeding
ecology, and reproductive studies;
and (4) provide time-series of
abundance from this survey for use in
Atlantic pelagic shark assessments.
Apex Predators Bottom Longline . The objectives of this survey are Longline............ Florida style bottom RI to FL within 40 Spring............. 47................. Y
Coastal Shark Survey. to: (1) Monitor the species longline. fathoms.
composition, distribution, and
abundance of sharks in coastal
Atlantic waters from Florida to
Delaware; (2) tag sharks for
migration and age validation studies;
(3) collect morphometric data and
biological samples for age and
growth, feeding ecology, and
reproductive studies; and (4) provide
time-series of abundance from this
survey for use in Atlantic coastal
shark assessments.
[[Page 58439]]
Apex Predators Pelagic Nursery This project uses opportunistic Longline............ Standard commercial GB to Grand Banks Fall............... 21-55.............. Y
Grounds Study. sampling on board a commercial pelagic longline off Newfoundland,
swordfish longline vessel to: (1) gear. Configured Canada.
Monitor the species composition and according to NMFS
distribution of juvenile pelagic Highly Migratory
sharks on the Grand Banks; (2) tag Species (HMS)
sharks for migration and age Regulations.
validation studies; and (3) collect
morphometric data and biological
samples for age and growth, feeding
ecology, and reproductive studies.
Data from this survey helps determine
the location of pelagic shark
nurseries for use in updating
essential fish habitat designations.
Cooperative Atlantic States Shark This project determines the location Longline and Gillnet Bottom Longline FL to RI........... Summer............. 25 or 40........... Y
Pupping and Nursery (COASTSPAN) of shark nurseries, species Gear, Anchored
Longline and Gillnet Surveys. composition, relative abundance, Sinking Gillnet.
distribution, and migration patterns.
It is used to identify and refine
essential fish habitat and provides
standardized indices of abundance by
species used in multiple species
specific stock assessments. NEFSC
conducts surveys in Delaware, New
Jersey, and Rhode Island estuarine
and coastal waters. Other areas are
surveyed by cooperating institutions
and agencies. In the NE Large Marine
Ecosystem (LME), the Virginia
Institute of Marine Science (VIMS) is
a cooperating partner. South of Cape
Hatteras the South Carolina
Department of Natural Resources
(SCDNR), University of North Florida
(UNF), and Florida Atlantic
University (FAU) are partners.
Cooperative Research Gulf of The objective of this project is to COOP Western-Central Longline............ Western GOM focused Spring and Fall.... 60 stations/year Y
Maine Longline Project. conduct commercial cooperative bottom Gulf of Maine hard on sea mounts. eastern Maine, 90
longline sets to characterize bottom longline stations/year
demersal species of the Western Gulf survey. western-central
of Maine traditionally difficult to GOM.
capture with traditional or research
trawl gear due to the bottom
topography.
NEFOP Observer Bottom Longline This program provides certification Longline............ Commercial bottom MAB and GB......... April-November as 5.................. Y
Training Trips. training for NEFOP observers. longline gear. needed (day trips).
Annual Assessments of Sea Scallop These Atlantic Sea Scallop Research Dredge.............. Scallop dredges, GPM, Georges Bank, Dredge surveys Apr- 50-100............. N
Abundance and Distribution. Set-Aside (RSA) rotational area drop cameras, Other Mid-Atlantic. Sept, Camera
surveys endeavor to monitor scallop Habitat Camera surveys June-Sept.
biomass and derive estimates of Total (HabCam) Versions.
Allowable Catch (TAC) for annual
scallop catch specifications.
Additionally, the surveys monitor
recruitment, growth, and other
biological parameters such as meat
weight, shell height and gonadal
somatic indices.
NEFOP Observer Scallop Dredge This program provides certification Dredge.............. Turtle deflector MAB and GB......... April-November as 6.................. N
Training Trips. training for NEFOP observers. dredge. needed (day trips).
[[Page 58440]]
Annual Standardized Sea Scallop The objective of this project is to Dredge.............. New Bedford dredge, NC to GB........... Summer............. 36................. N
Survey. determine distribution and abundance HabCam V4.
of sea scallops and collect related
data for Ecosystem Management from
concurrent stereo-optic images. It is
conducted by the NEFSC.
Surfclam and Ocean Quahog Dredge The objective of this project is to Dredge.............. Hydraulic-jet dredge Southern VA to GB.. Summer............. 15................. N
Survey. determine distribution and abundance
of Surfclam/ocean quahog and collect
related data.
Coastal Maine Telemetry Network.. The objective of this project is to Other............... Fixed position Penobscot River Year round in GOM 10................. Y
monitor tagged animals entering the acoustic telemetry estuary and bay, and Apr.-Nov. in
Penobscot Bay System and exiting the array receivers on GOM. nearshore areas.
system into the Gulf of Maine. moorings spaced 250-
400 m apart.
Deep-sea Coral Survey............ The objective of this program is to Other............... Remotely Operated Continental shelf Summer............. 16................. Y
determine the species diversity, Vehicles (ROVs), margin, slope, and
community composition, distribution CTD, towed cameras, submarine canyons
and extent of deep sea coral and ADCP, acoustics. and deep basins:
sponge habitats. GOM to Virginia.
Diving Operations................ The objective of this project is to Other............... Wire mesh cages, Long Island Sound.. Year round......... 20................. N
collect growth data on hard clams, lantern nets.
oysters and bay scallops.
Gulf of Maine Ocean Observing This project services oceanographic Other............... ADCP on vessel and GOM and Northern GB Summer............. 12................. N
System Mooring Cruise. moorings operated by the University moorings.
of Maine.
Hydroacoustics Surveys........... This project consists of mobile Acoustic only....... Split-beam and Penobscot Bay and Spring............. 25................. Y
transects conducted throughout the DIDSON. estuary.
estuary and bay to study fish biomass
and distribution.
Marine Estuaries Diadromous This project is a fish community Other............... 1 m and 2 m fyke Penobscot Bay and April-November..... 100................ N
Survey. survey at fixed locations. nets. estuary.
NEFOP Observer Gillnet Training This program provides certification Other............... gillnet gear........ MAB and GB......... April-November as 10................. N
Trips. training for NEFOP Observers. needed (day trips).
Nutrients and Frontal Boundaries. The objective of this project is to Other............... ADP, CTD, MAB................ Feb., May-June, 10................. N
characterize nutrient patterns Hydroacoustics. Aug, and Nov.
associated with distinct water masses
and their boundaries off of coastal
New Jersey and Long Island in
association with biological sampling.
Ocean Acidification.............. The objective of this project is to Other............... CTD, YSI, Hudson River Spring............. 10................. N
develop baseline pH measurements in multinutrient Coastal waters.
the Hudson River water. analyzer, Kemmerer
bottle.
AUV Pilot Studies................ This program provides gear and Other............... AUV................. MA state waters, GB June............... 5.................. N
platform testing.
Rotary Screw Trap (RSTs) Survey.. This project is designed to collect Other............... RST................. Estuaries on April 15-June 15... 60................. N
abundance estimates of Migrating coastal Maine
Atlantic salmon smolts and other rivers.
anadromous species.
Trawling to Support Finfish The objective of this project is to Other............... Combination bottom Long Island Sound.. Summer............. 30................. Y
Aquaculture Research. collect broodstock for laboratory trawl, shrimp
spawning and rearing and experimental trawl, gillnet.
studies.
DelMarVa Habitat Characterization The objective of this project is to Other............... ADCP, CTD, YSI, Coastal waters off August............. 5.................. N
characterize and determine key hard Plankton net, video DE, MD and VA.
bottom habitats in coastal ocean off sled, Ponar grab,
the DelMarVa Peninsula as an adjunct Kemmerer bottle,
to the DelMarVa Reef Survey. sonar.
[[Page 58441]]
DelMarVa Reefs Survey............ The objective of this project is Other............... HABCAM, CTD......... Coastal waters off August............. 5.................. N
determination of extent and DE, MD and VA.
distribution of rock outcrops and
coral habitats and their use by black
sea bass and other reef Fishes.
Miscellaneous Fish Collections The James J. Howard Sandy Hook Marine Other............... Bottom trawl, New York Bight Spring and Fall.... not stated......... Y
and Experimental Survey Gear Laboratory occasionally supports lobster and fish estuary waters.
Trials. short-term research projects pots, beam trawl,
requiring small samples of fish for seine net, trammel
various purposes or to test nets.
alterations of survey gear. These
small and sometimes opportunistic
sampling efforts have used a variety
of gear types other than those listed
under Status Quo projects. The gears
and effort levels listed here are
representative of potential requests
for future research support.
Opportunistic Hydrographic This program consists of opportunistic Other............... Plankton net, Southeast LME Early Summer....... not stated......... N
Sampling. plankton and hydrographic sampling expendable depths <300 m.
during ship transit. bathythermograph.
Monkfish RSA..................... Monkfish Research Set-Aside (RSA) Other............... Commercial gillnets Mid-Atlantic and April-December (end 100-200 sets/year. Y
surveys endeavor to monitor Monkfish of various sizes, Georges Bank. of fishing year). Sets left for 2-3
biomass and derive estimates of Total short durations for days.
Allowable Catch (TAC) for annual sets.
Monkfish catch specifications.
Additionally, the surveys monitor
recruitment, growth, and other
biological parameters.
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Short-Term Cooperative Projects
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Survey Projects.................. Cooperative Industry based surveys to Trawl............... Bottom Trawl........ GOM, GB, SNE, MAB.. Summer and Fall.... 550 tows/year...... Y
enhance data for flatfish utilizing
cookie sweep gear on commercial
platforms.
Survey Projects.................. Cooperative Industry based Trawl............... Pelagic Trawl....... GOM, GB, SNE, MAB.. Summer and Fall 30 tows/year....... Y
catchability studies for Monkfish, Summer and Fall.
Longfin squid, other.
Trawl Comparison Research........ Twin trawl and paired vessel Twin Bottom Trawl... Trawl nets with two GB, SNE, MAB....... Summer and Fall.... 100 DAS............ Y
comparisons of Standardized Bigelow types of sweeps or
Trawl to test rockhopper and cookie doors.
sweeps and varying trawl doors
performance on commercial platforms.
Survey Projects.................. Pot and trap catchability studies for Pot survey.......... Pots and Traps...... SNE, Rhode Island Spring and fall for 2,650 pot sets/year Y
Scup and Black Sea bass. Bight, Nantucket black sea bass.
Sound, MAB waters Year round for
from shore to scup.
shelf edge.
Conservation Engineering Projects Gear and net conservation Cooperative Trawl............... Bottom Trawl........ GOM, GB, SNE, MAB.. Spring, Summer and ~500 tows per year Y
work. Fall. total for all
bottom trawl
conservation
projects.
Conservation Engineering Projects Varied gear and efficiency testing of Trawl............... Bottom Trawl........ GOM, GB, SNE, MAB.. Spring, Summer and ................... Y
fisheries applications. Fall.
Conservation Engineering Projects Cooperative Squid Trawls and studies Trawl............... Bottom Trawl & Beam GOM, GB, SNE, MAB.. Spring, Summer and ................... Y
for squid catchability and trawl. Fall.
selectivity.
Conservation Engineering Projects Commercial scallop dredge finfish and Dredge.............. Dredge.............. GB, SNE, MAB....... April-December (end >1,700 dredge tows/ N
turtle excluder research. Scallop of fishing year). year for all
dredge finfish and turtle excluder dredge
research. conservation
projects.
[[Page 58442]]
Conservation Engineering Projects Commercial hydrodynamic turtle Dredge.............. Hydrodynamic dredge. GB, SNE, MAB....... April-December (end ................... N
deflector dredge testing. of fishing year).
Tagging Projects................. Winter Flounder tagging projects. Trawl............... Bottom Trawl & Otter Coastal waters in Spring and Summer.. up to 650 trawls/ Y
Winter flounder migration patterns. trawl. GOM New Hampshire year.
to Stonington/Mt.
Desert Island, ME.
Tagging Projects................. Spiny dogfish tagging projects. Spiny Hook & Line; Gillnet Hook & Line and GOM and GB waters Spring, Summer and Long line: 5 sets/ Y
dogfish tagging north and south of Gillnet. adjacent to Cape Fall. trip, 15 total
Cape Cod, and Cusk & NE multi-species Cod, MA. Gillnet: 5 sets/
tagging. trip, 15 total.
Tagging Projects................. Monkfish tagging projects............. Gillnet............. Gillnet............. GOM, SNE, MAB...... September-December. 18-20 DAS, 10 short- Y
duration sets/day,
180-200 sets total.
Ropeless Lobster Trap Research... Research to develop ropeless gear/ Lobster Pots/Traps.. Acoustic/mechanical GOM, SNE, MAB Summer and Fall.... 50-100 DAS, 500 N
devices to mitigate/eliminate releases for (Inshore and sets, singles and
interactions with protected species ropeless lobster Offshore). up to 40 pots per
(whales and turtles) by utilizing gear and float set.
commercial lobster gear. lines.
Rod and Reel Tagging of Atlantic Use of rod and reel to capture, tag, Rod and Reel........ Acoustic tags....... ME, Greenland...... Summer and Fall.... 200-500 tags N
Salmon. release Atlantic salmon in applied total.
international and U.S. waters.
Continuous Plankton Recorder A towed continuous plankton recording Towed array......... CPR................. ME to Nova Scotia.. Summer and Fall.... 24 DAS............. N
(CPR) Transect Surveys: GOM. device is deployed from vessels of
opportunity in the Gulf of Maine,
monthly.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Comments and Responses
We published a notice of proposed rulemaking in the Federal
Register on June 4, 2021 (86 FR 30080), and requested comments and
information from the public. During the 30-day comment period, we did
not receive any substantive public comments.
Changes From Proposed Rule to Final Rule
There were no substantive changes from proposed rule to final rule;
however, we have clarified reporting measures (to whom to report and
when) and carried over two measures that were contained in the preamble
of the proposed rule that were inadvertently omitted from the proposed
regulation section. Overall, the final rule is substantively similar to
the proposed rule.
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of NEFSC's LOA application summarize available
information regarding status and trends, distribution and habitat
preferences, and behavior and life history, of the potentially affected
species. Species and stock information is also provided in NMFS' 2015
proposed rule associated with the current LOA (80 FR 39542; July 9,
2015), NMFS's 2016 Final Programmatic Environmental Assessment (EA)
(available at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-nefsc-fisheries-and-ecosystem-research">https://www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-nefsc-fisheries-and-ecosystem-research</a>)
and, where updates are necessary, NMFS 2021 Final supplemental
programmatic EA (available at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-northeast-fisheries-science-center-fisheries-and">https://www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-northeast-fisheries-science-center-fisheries-and</a>). Additional information regarding population trends and
threats may be found in NMFS's Stock Assessment Reports (SARs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS's
website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 3 lists all species or stocks for which take is expected and
authorized for this action, and summarizes information related to the
population or stock, including regulatory status under the MMPA and
Endangered Species Act (ESA) and potential biological removal (PBR),
where known. For taxonomy, we follow Committee on Taxonomy (2020). PBR
is defined by the MMPA as the maximum number of animals, not including
natural mortalities, that may be removed from a marine mammal stock
while allowing that stock to reach or maintain its optimum sustainable
population (as described in NMFS's SARs). PBR and annual serious injury
and mortality from anthropogenic sources are included here as gross
indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS's stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS's U.S. Atlantic and Gulf of Mexico SARs (e.g., Hayes et al.,
2020). All values presented in Table 3 are the most recent available at
the time of publication and are available in the draft 2020 SARs
(available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports</a>).
[[Page 58443]]
We provided a detailed description on each marine mammal species in
the notice of proposed rulemaking for this action (86 FR 30080, June 4,
2020). Since that time, no new information, other than an update to
North Atlantic right whale abundance (which is included in Table 2) is
available that impact our analysis and determinations; therefore, that
information is not repeated here.
Table 2--Marine Mammal Present Within the Northeast U.S. Continental Shelf Large Marine Ecosystem
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA
status; Stock abundance (CV, Total annual
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR \3\ M/SI \3\
\1\ abundance survey) \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae (right whales):
North Atlantic right whale...... Eubalaena glacialis... Western Atlantic...... E/D; Y 368 (0, 356, 2020) 0.8 \4\ 18.6
\11\.
Family Balaenopteridae (rorquals):
Blue whale \5\.................. Balaenoptera musculus. Western North Atlantic E/D; Y Unk (n/a, 402, 1980- 0.8 0
2008).
Minke whale..................... Balaenoptera Canadian East Coast... -; N 21,968................ 170 \6\ \7\ 10.6
acutorostrata (0.31, 17,002, 2016)..
acutorostrata.
Sei whale....................... B. borealis borealis.. Nova Scotia........... E/D; Y 6,292 (1.02, 3,098, 6.2 \8\ 1.2
2016).
Fin whale....................... B. physalus physalus.. Western North Atlantic E/D; Y 6,802 (0.24, 5,573, 11 \9\ 2.35
2016).
Humpback whale.................. Megaptera novaeangliae Gulf of Maine......... E/D; Y 1,393 (0.15, 1,375, 22 \10\ 58
novaeangliae. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
Sperm whale..................... Physeter macrocephalus Western North Atlantic E/D; Y 4,349 (0.28, 3,451, 3.9 0
2016).
Family Kogiidae:
Pygmy sperm whale............... Kogia breviceps....... Western North Atlantic -; N 7,750 (0.38, 5,689, 46 0
2016).
Dwarf sperm whale............... K. sima............... Western North Atlantic -; N 7,750 (0.38, 5,689, 46 0
2016).
Family Ziphiidae (beaked whales):
Northern bottlenose whale....... Hyperoodon ampullatus. Western North Atlantic -; N Unk................... Unk 0
Blainville's beaked whale....... Mesplodon densirostris Western North Atlantic -; N 10,107 (0.27, 8,085, 81 0.2
2016) \11\.
Sowerby's beaked whale.......... M. bidens............. Western North Atlantic -; N 10,107 (0.27, 8,085, 81 0
2016) \11\.
Gervais' beaked whale........... M. europaeus
True's beaked whale............. M. mirus
Cuvier's beaked whale........... Ziphius cavirostris... Western North Atlantic -; N 5,744 (0.36, 4,282, 43 0.2
2016).
Family Delphinidae:
Short-beaked common dolphin..... Delphinus delphis Western North Atlantic -; N 172,825 (0.55, 1,125 \7\ 289
delphis. 112,531, 2007).
Pygmy killer whale.............. Feresa attenuata...... Western North Atlantic -; N Unk................... Unk Unk
Short-finned pilot whale........ Globicephala Western North Atlantic -; N 28,924 (0.24, 23,637, 236 160
macrorhynchus. 2016).
Long-finned pilot whale......... G. melas.............. Western North Atlantic -; N 39,215 (0.30, 30,627, 306 21
2016).
Risso's dolphin................. Grampus griseus....... Western North Atlantic -; N 35,493 (0.19, 30,289, 303 54.3
2016).
Fraser's dolphin................ Lagenodelphis hosei... Western North Atlantic -; N Unk................... Unk 0
Atlantic white-sided dolphin.... Lagenorhynchus acutus. Western North Atlantic -; N 93,233 (0.71, 54,443, 544 26
2016).
White-beaked dolphin............ L. albirostris........ Western North Atlantic -; N 536,016 (0.31, 4,153 0
415,344, 2016).
Killer whale.................... Orcinus orca.......... Western North Atlantic -; N Unk................... Unk 0
Melon-headed whale.............. Peponocephala electra. Western North Atlantic -; N Unk................... Unk 0
Pantropical spotted dolphin..... Stenella attenuata.... Western North Atlantic -; N 6,593 (0.52, 4,367, 44 0
2016).
Clymene dolphin................. S. clymene............ Western North Atlantic -; N 4,237 (1.03, 2,071, 21 0
2016.
Striped dolphin................. S. coeruleoalba....... Western North Atlantic -; N 67,036 (0.29, 52,939, 529 0
2016).
Atlantic spotted dolphin........ S. frontalis.......... Western North Atlantic -; N 39,921 (0.27, 32,032, 320 0
2016).
Spinner dolphin................. S. longirostris....... Western North Atlantic -; N 4,102 (0.99, 2,045, 20 0
2016).
Rough-toothed dolphin........... Steno bredanensis..... Western North Atlantic -; N 136 (1.0, 67, 2016)... 0.7 0
Bottlenose dolphin.............. Tursiops truncatus Western North Atlantic -; N 62,851 (0.23, 51,914, 519 28
truncatus. (WNA) Offshore. 2016).
WNA Northern Migratory -/D; Y 6,639 (0.41, 4,759, 48 \12\ 1.2-
Coastal. 2016). 21.5
Family Phocoenidae (porpoises):
Harbor porpoise................. Phocoena phocoena Gulf of Maine/Bay of -; N 95,543 (0.31, 74,034, 851 \7\ 217
phocoena. Fundy Stock. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Gray seal....................... Halichoerus grypus Western North Atlantic -; N 27,131 (0.19, 23,158, 1,389 \7\ 4,729
grypus. 2016).
Harbor seal..................... Phoca vitulina Western North Atlantic -; N 75,834 (0.15, 66,884, 2,006 \7\ 350
vitulina. 2012).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. NMFS automatically designates
any species or stock listed under the ESA as depleted and as a strategic stock under the MMPA.
\2\ NMFS marine mammal stock assessment reports at: <a href="http://www.nmfs.noaa.gov/pr/sars/">www.nmfs.noaa.gov/pr/sars/</a>. CV is coefficient of variation; Nmin is the minimum estimate of stock
abundance. In some cases, abundance and PBR is unknown (Unk) and the CV is not applicable.
\3\ These values, found in NMFS' SARs, represent PBR and annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, subsistence hunting, and ship strike). In some cases PBR is unknown (Unk) because the minimum population size cannot be
determined. Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or as unknown (Unk).
[[Page 58444]]
\4\ Total M/SI of 18.6 for this species is model-derived and not broken down by cause. The fishery contribution of 6.85 is observed interactions only.
\5\ Given the small proportion of the distribution range that has been sampled and considering the low number of blue whales encountered and
photographed, the current data, based on photo-identification, do not allow for an estimate of abundance of this species in the Northwest Atlantic
with a minimum degree of certainty (Sears et al. 1987; Hammond et al. 1990; Sears et al. 1990; Sears and Calambokidis 2002; Fisheries and Oceans
Canada 2009).
\6\ The total estimated human-caused mortality and serious injury to the Canadian East Coast minke whale stock is estimated as 10.6 per year (9.15
attributable to fisheries).
\7\ The NEFSC has historically taken this species in NEFSC research surveys (2004-2015) (see Tables 6-8).
\8\ The total estimated human-caused mortality and serious injury to the Nova Scotia sei whale stock is estimated as 1.2 per year (0.4 attributable to
fisheries).
\9\ The total estimated human-caused mortality and serious injury to the Western North Atlantic fin whale stock is estimated as 2.35 per year (1.55
attributable to fisheiries).
\10\ Total M/SI of 58 for this species is model-derived and not broken down by cause. The fishery contribution of 9.5 is observed interactions obly.
\11\ Pace et al., 2021. The total number of this species of beaked whale off the eastern U.S. and Canadian Atlantic coast is unknown, and seasonal
abundance estimates are not available for this stock. However, several estimates of the undifferentiated complex of beaked whales (Ziphius and
Mesoplodon spp.) from selected regions are available for select time periods (Barlow et al. 2006) as well as two estimates of Mesoplodon spp. beaked
whales alone (Waring et al., 2015).
\12\ The Northern migratory stock of common bottlenose dolphins may interact with unobserved fisheries. Therefore, a range of human-caused mortality and
serious injury for this stock is presented.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
Detailed descriptions of the potential effects of the various
elements of the NEFSC's specified activity on marine mammals and their
habitat were provided in the proposed rule (86 FR 30080, June 4, 2021)
as well as the 2016 Programmatic EA. Additionally, detailed
descriptions of the potential effects of similar specified activities
have also been provided in other Federal Register notices (e.g., 81 FR
38516, June 13, 2016; 83 FR 37638; August 1, 2018; 84 FR 6576, February
27, 2019), and section 7 of NEFSC's application provides a discussion
of the potential effects of their specified activity, which we have
reviewed for accuracy and completeness. No significant new information
is available, and these discussions provide the necessary, adequate and
relevant information regarding the potential effects of NEFSC's
specified activity on marine mammals and their habitat. Therefore, we
refer the reader to these documents rather than repeating the
information here. The referenced information includes a summary and
discussion of the ways that components of the specified activity (e.g.,
gear deployment, use of active acoustic sources, visual disturbance)
may impact marine mammals and their habitat.
As stated previously, the use of certain research gears, including
trawl nets, gillnets, longline gear, and fyke nets, has the potential
to result in interaction with marine mammals. In the event of a marine
mammal interaction with research gear, injury, serious injury, or
mortality may result from entanglement or hooking. Exposure to sound
through the use of active acoustic systems for research purposes may
result in Level B harassment. However, as detailed in the previously
referenced discussions, Level A harassment in the form of permanent
threshold shift (PTS) is extremely unlikely to occur, and we consider
such effects discountable. Finally, it is expected that hauled
pinnipeds may be disturbed by approaching researchers such that Level B
harassment could occur. Ship strike is not a reasonably anticipated
outcome of NEFSC research activities, given the small amount of
distance covered by research vessels, use of observers, and their
relatively slow speed in comparison to commercial shipping traffic
(i.e., the primary cause of marine mammal vessel strikes).
With specific reference to Level B harassment that may occur as a
result of acoustic exposure, we note that the analytical methods from
the original 2016 analysis are retained here. However, the state of
science with regard to our understanding of the likely potential
effects of the use of systems like those used by NEFSC has advanced in
the preceding 5 years, as have readily available approaches to
estimating the acoustic footprints of such sources, with the result
that we view this analysis as highly conservative. Although more recent
literature provides documentation of marine mammal responses to the use
of these and similar acoustic systems (e.g., Cholewiak et al., 2017;
Quick et al., 2017; Varghese et al., 2020), the described responses do
not generally comport with the degree of severity that should be
associated with Level B harassment, as defined by the MMPA. We retain
the 2016 analytical approach for consistency with existing analyses and
for purposes of efficiency here, and consider this acceptable because
the approach provides a conservative estimate of potential incidents of
Level B harassment. In summary, while we authorize the amount of take
by Level B harassment indicated in the Estimated Take section, and
consider these potential takings at face value in our negligible impact
analysis, it is uncertain whether use of these acoustic systems are
likely to cause take at all, much less at the estimated levels.
The Estimated Take section later in this document includes a
quantitative analysis of the number of individuals that are expected to
be taken by this activity. The Negligible Impact Analysis and
Determinations section considers the potential effects of the specified
activity, the Estimated Take section, and the Mitigation section, to
draw conclusions regarding the likely impacts of these activities on
the reproductive success or survivorship of individuals and how those
impacts on individuals are likely to impact marine mammal species or
stocks.
Estimated Take
This section provides an estimate of the number of incidental takes
to be authorized through a LOA, which will inform both NMFS'
consideration of ``small numbers'' and the negligible impact
determination.
Except with respect to certain activities not pertinent here,
section 3(18) of the MMPA defines ``harassment'' as any act of pursuit,
torment, or annoyance, which (i) has the potential to injure a marine
mammal or marine mammal stock in the wild (Level A harassment); or (ii)
has the potential to disturb a marine mammal or marine mammal stock in
the wild by causing disruption of behavioral patterns, including, but
not limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
Take of marine mammals incidental to NEFSC research activities
could occur as a result of (1) injury or mortality due to gear
interaction (Level A harassment, serious injury, or mortality); (2)
behavioral disturbance resulting from the use of active acoustic
sources (Level B harassment only); or (3) behavioral disturbance of
pinnipeds resulting from incidental approach of researchers and
research vessels (Level B harassment only). Below we describe how the
potential take is estimated.
Estimated Take Due to Gear Interaction
To estimate the number of potential takes that could occur by M/SI
and Level A through gear interaction, consideration of past
interactions between gear (i.e., trawl, gillnet, and fyke gear) used by
NEFSC and specific marine mammal species provides important context. We
also considered other species that have not been taken by NEFSC but are
similar enough in
[[Page 58445]]
nature and behavioral patterns as to consider them having the potential
to be entangled. As described in the Potential Effects of Marine
Mammals and their Habitat section, NEFSC has a history of taking marine
mammals in fishing gear, albeit a very small amount compared to the
amount of fishing effort. From 2004-2015, eight marine mammals were
killed in interactions with trawl gear (common dolphin, gray seal), six
were killed due to capture in gillnets (Common bottlenose, Northern
South Carolina estuarine stock, gray seal, harbor porpoise and
bottlenose dolphin), and one suffered mortality in a fyke net (harbor
seal). Also over that time period, one minke whale was caught in trawl
gear and released alive. We note these interactions occurred prior to
implementation of the existing regulations which heightened mitigation
and monitoring efforts. From 2016-2018, no marine mammals were taken
incidental to fishing. A lethal take of a common dolphin during a
Cooperative Research NTAP cruise sponsored by the Center occurred in
late September 2019. The gear was a 4 seam 3 bridle Bigelow net with a
spread restrictor cable. In 2020, no takes occurred.
Historical Interactions--In order to estimate the number of
potential incidents of take that could occur by M/SI through gear
interaction, we first consider the NEFSC's past record of such
incidents, and then consider in addition other species that may have
similar vulnerabilities to the NEFSC's trawl, gillnet, and fyke net
gear for which we have historical interaction records. We describe
historical interactions with NEFSC research gear in Tables 6, 7, and 8.
Available records are for the years 2004 through the present. Please
see Figure 4.2-2 in the NEFSC EA for specific locations of these
incidents up through 2020.
Table 6--Historical Interactions With Trawl Gear
----------------------------------------------------------------------------------------------------------------
Number
Gear Survey Date Species Number released Total
killed alive
----------------------------------------------------------------------------------------------------------------
Gourock high speed midwater Atlantic 10/8/2004 Short-beaked 2 0 2
rope trawl. Herring Survey. common dolphin
(Western NA
stock).
Bottom trawl (4-seam, 3 NEFSC Standard 11/11/2007 Short-beaked 1 0 1
bridle). Bottom Trawl common dolphin
Survey. (Western NA
stock).
Gourock high speed midwater Atlantic 10/11/2009 Minke whale.... 0 \1\ 1 1
rope trawl. Herring Survey.
Bottom trawl (4-seam, 3 Spring Bottom 4/4/15 Gray seal...... \2\ 1 0 1
bridle). Trawl Survey.
Bottom trawl (4-seam, 3 Cooperative 9/24/19 Short-beaked 1 0 1
bridle). NTAP. common dolphin
(Western NA
stock).
----------------------------------------------------------------------------------------------------------------
Total individuals captured (total number of interactions Short-beaked 4 0 4
given in parentheses). common dolphin ......... ......... .........
(4). 0 1 1
Minke whale (1) 1 0 1
Gray seal (1)..
----------------------------------------------------------------------------------------------------------------
\1\ According to the incident report, ``The net's cod end and whale were brought aboard just enough to undo the
cod end and free the whale. It was on deck for about 5 minutes. While on deck, it was vocalizing and moving
its tail up and down. The whale swam away upon release and appeared to be fine. Estimated length was 19
feet.'' The NEFSC later classified this incidental take as a serious injury using NMFS criteria for such
determinations published in January 2012 (Cole and Henry, 2013).
\2\ The NEFSC filed an incident report for this incidental take on April 4, 2015.
Table 7--Historical Interactions With Gillnet Gear
----------------------------------------------------------------------------------------------------------------
Number
Gear Survey Date Species Number released Total
killed alive
----------------------------------------------------------------------------------------------------------------
Gillnet...................... COASTSPAN...... 11/29/2008 Common 1 0 1
Bottlenose
dolphin
(Northern
South Carolina
Estuarine
System stock)
\1\.
Gillnet...................... NEFOP Observer 5/4/2009 Gray seal...... 1 0 1
Gillnet
Training Trips.
Gillnet...................... NEFOP Observer 5/4/2009 Harbor porpoise 1 0 1
Gillnet
Training Trips.
----------------------------------------------------------------------------------------------------------------
Total individuals captured (total number of interactions Bottlenose 1 0 1
given in parentheses). dolphin (1). 1 0 1
Gray seal (1).. 1 0 1
Harbor porpoise
(1).
----------------------------------------------------------------------------------------------------------------
\1\ In 2008, the COASTSPAN gillnet survey caught and killed one common bottlenose dolphin in 2008 while a
cooperating institution was conducting the survey in South Carolina. This was the only occurrence of
incidental take in these surveys. Although no genetic information is available from this dolphin, based on the
location of the event, NMFS retrospectively assigned this mortality to the Northern South Carolina Estuarine
System stock in 2015 from the previous classification as the western North Atlantic stock (Waring et al.,
2014).
[[Page 58446]]
Table 8--Historical Interactions With Fyke Net Gear
----------------------------------------------------------------------------------------------------------------
Number
Gear Survey Date Species Number released Total
killed alive
----------------------------------------------------------------------------------------------------------------
Fyke Net..................... Maine Estuaries 10/25/2010 Harbor seal.... 1 0 1
Diadromous
Survey.
----------------------------------------------------------------------------------------------------------------
Total...................................................................... 1 0 1
----------------------------------------------------------------------------------------------------------------
The NEFSC has no recorded interactions with any gear other than
midwater and bottom trawl, gillnet, and fyke net gears. As noted
previously in Potential Effects of the Specified Activity on Marine
Mammals, we anticipate future interactions with the same gear types.
In order to use these historical interaction records in a
precautionary manner as the basis for the take estimation process, and
because we have no specific information to indicate whether any given
future interaction might result in M/SI versus Level A harassment, we
conservatively assume that all interactions equate to mortality.
In order to estimate the potential number of incidents of M/SI take
that could occur incidental to the NEFSC's use of midwater and bottom
trawl, gillnet, fyke net, and longline gear in the Atlantic coast
region over the 5-year period the rule would be effective (2021-2026),
we first look at the six species described that have been taken
historically and then evaluate the potential vulnerability of
additional species to these gears.
Table 9 shows the average annual captures rate of these six species
and the projected 5-year totals for this rule, for trawl, gillnet, and
fyke net gear. Below we describe how these data were used to estimate
future take for these and proxy species which also have the potential
to be taken.
Table 9--Average Rate of Animal Gear Interaction From 2004-2020
------------------------------------------------------------------------
Average rate
Gear Species per year (2004-
2020)
------------------------------------------------------------------------
Trawl.......................... Short-beaked common 0.27
dolphin. 0.06
Minke whale............ 0.06
Gray seal..............
Gillnet........................ Common bottlenose 0.06
dolphin. 0.06
Harbor porpoise........ 0.06
Gray seal..............
Fyke net....................... Harbor seal............ 0.06
------------------------------------------------------------------------
The NEFSC estimated takes for NEFSC gear that: (1) Had a prior take
in the historical record, or (2) by analogy to commercial fishing gear.
Further, given the rare events of M/SI in NEFSC fishery research, the
NEFSC binned gear into categories (e.g., trawls) rather than
partitioning take by gear, as it would result in estimated takes that
far exceed the recorded take history.
Vulnerability of analogous species to different gear types is
informed by the record of interactions by the analogous and reference
species with commercial fisheries using gear types similar to those
used in research. Furthermore, when determining the amount of take
requested, we make a distinction between analogous species thought to
have the same vulnerability for incidental take as the reference
species and those analogous species that may have a similar
vulnerability. In those cases thought to have the same vulnerability,
the request is for the same number per year as the reference species.
In those cases thought to have similar vulnerability, the request is
less than the reference species. For example, the NEFSC believes the
vulnerability of harbor seals to be taken in gillnets is the same as
for gray seals (one per year) and thus requests one harbor seal per
year (total of 5 over the authorization period). Alternatively, the
potential for take of Atlantic white-sided dolphins in gillnets is
expected to be similar to harbor porpoise (one per year), and the
reduced request relative to this reference species is one Atlantic
white sided dolphin over the entire 5-year authorization period.
The approach outlined here reflects: (1) Concern that some species
with which we have not had historical interactions may interact with
these gears, (2) acknowledgment of variation between sets, and (3)
understanding that many marine mammals are not solitary so if a set
results in take, the take could be greater than one animal. In these
particular instances, the NEFSC estimates the take of these species to
be equal to the maximum interactions per any given set of a reference
species historically taken during 2004-2019.
Trawls--To estimate the requested taking of analogous species, the
NEFSC identified several species in the western North Atlantic Ocean
which may have similar vulnerability to research-based trawls as the
short-beaked common dolphin. Short-beaked common dolphins were taken in
2004 (two individuals in one trawl set) and in 2019 (one dolphin during
a bottom trawl). The NEFSC therefore, estimates one take of a short-
beaked common dolphin per year over the 5-year period to be
precautionary (i.e., 5 total). On the basis of similar vulnerability of
other dolphin species, the NEFSC estimates two potential takes over the
5-year authorization period for each of the following species in
trawls: Risso's dolphin, common bottlenose dolphin (offshore and
northern coastal migratory stock), Atlantic-white-sided dolphin, white-
beaked dolphin, Atlantic spotted dolphin, and harbor porpoise. For
these species, we propose to authorize a total taking by M/SI of two
individuals over the 5-year timespan (Table 10).
In light of the low level of interaction and the mitigation
measures to specifically reduce interactions with dolphins during
COASTSPAN surveys
[[Page 58447]]
such as hand-checking the gill net every 20 minutes, no takes are
requested from the Southern Migratory, Coastal or Estuarine stocks of
common bottlenose dolphin. Other dolphin species may have similar
vulnerabilities as those listed above but because of the timing and
location of NEFSC research activities, the NEFSC concluded that the
likelihood for take of these species was low and therefore is not
requesting, nor it NMFS proposing to authorize, take for the following
species: Pantropical spotted dolphin, striped dolphin, Fraser's
dolphin, rough-toothed dolphin, Clymene dolphin, and spinner dolphin.
In 2015, one gray seal was killed during a trawl survey. Similar to
other gear, the NEFSC believes that harbor seals have a similar
vulnerability for incidental take as gray seals in this type of gear.
To be conservative, for the period of this authorization, the NEFSC has
requested one take by trawl for harbor seals each year over the 5-year
authorization period. Thus, for harbor and gray seals, we propose to
authorize a total taking by M/SI of 5 individuals over the 5-year
timespan for trawl gear (Table 10).
Gillnets--To estimate the requested take of analogous species for
gillnets, the NEFSC identified several species in the western North
Atlantic Ocean which may have similar vulnerability to research-based
gillnet surveys as the short-beaked common dolphin--due to similar
behaviors and distributions in the survey areas.
Gillnet surveys typically occur nearshore in bays and estuaries.
One gray seal and one harbor porpoise were caught during a Northeast
Fisheries Observer Program training gillnet survey. The NEFSC believes
that harbor seals have the same vulnerability to be taken in gillnets
as gray seals and therefore estimates 5 takes of harbor seals in
gillnets over the 5-year authorization period. For this species, we
propose to authorize a total taking by M/SI of 5 individuals over the
5-year timespan (see Table 10).
Likewise, the NEFSC believes that Atlantic white-sided dolphins and
short-beaked common dolphins have a similar vulnerability to be taken
in gillnets as harbor porpoise and bottlenose dolphins (Waring et al.,
2014) and estimates one take each of Atlantic white-sided dolphin and
short-beaked common dolphin in gillnet gear over the 5-year
authorization period. For these species, we propose to authorize a
total taking by M/SI of one individual (per species) over the 5-year
timespan (Table 10).
In 2008, a cooperating institution conducting the COASTSPAN gillnet
survey in South Carolina caught and killed one bottlenose dolphin.
Despite years of effort since that time, this was the only occurrence
of incidental take in these surveys. The survey now imposes strict
monitoring and mitigation measures (see sections below on Mitigation
and Monitoring and Reporting). With regard to common bottlenose
dolphins, M/SI takes are only requested for offshore and Northern
migratory stocks (10 total over the 5-year period). Given the lack of
recent take and the implementation of additional monitoring and
mitigation measures, the NEFSC is not requesting, and NMFS is not
proposing to authorize, take of bottlenose dolphins belonging to the
Southern Coastal Migratory or Estuarine stocks as the NEFSC considers
there to be a remote chance of incidentally taking a bottlenose dolphin
from the estuarine stocks. However, in the future, if there is a
bottlenose dolphin take from the estuarine stocks as confirmed by
genetic sampling, the NEFSC will reconsider its take request in
consultation and coordination with OPR and the Atlantic Bottlenose
Dolphin Take Reduction Team.
In 2009, one gray seal was killed during a gillnet survey. Similar
to other gear, the NEFSC believes that harbor seals have a similar
vulnerability for incidental take as gray seals in this type of gear.
To be conservative, for the period of this authorization, the NEFSC has
requested one take by gillnet for harbor seals each year over the 5-
year authorization period. Thus, for harbor and gray seals, we propose
to authorize a total taking by M/SI of 5 individual over the 5-year
timespan (Table 10).
Fyke nets--For fyke nets, the NEFSC believes that gray seals have a
similar vulnerability for incidental take as harbor seals which
interacted once in a single fyke net set during the past 11 years.
However, to be conservative, for the period of this authorization, the
NEFSC has requested one take by fyke net for gray seals each year over
the 5-year authorization period. Thus, for gray seals, we propose to
authorize a total taking by M/SI of 5 individual over the 5-year
timespan (Table 10).
Longlines--While the NEFSC has not historically interacted with
large whales or other cetaceans in its longline gear, it is well
documented that some of these species are taken in commercial longline
fisheries. The 2020 List of Fisheries classifies commercial fisheries
based on prior interactions with marine mammals. Although the NEFSC
used this information to help make an informed decision on the
probability of specific cetacean and large whale interactions with
longline gear, many other factors were also taken into account (e.g.,
relative survey effort, survey location, similarity in gear type,
animal behavior, prior history of NEFSC interactions with longline
gear, etc.). Therefore, there are several species that have been shown
to interact with commercial longline fisheries but for which the NEFSC
is not requesting take. For example, the NEFSC is not requesting take
of large whales, long-finned pilot whales, and short-finned pilot
whales in longline gear. Although these species could become entangled
in longline gear, the probability of interaction with NEFSC longline
gear is extremely low considering a low level of survey effort relative
to that of commercial fisheries, the short length of the mainline, and
low numbers of hooks used. Based on the amount of fish caught by
commercial fisheries versus NEFSC fisheries research, the ``footprint''
of research effort compared to commercial fisheries is very small. For
example, NEFSC uses a shorter mainline length and lower number of hooks
relative to that of commercial fisheries. The NEFSC considered
previously caught species in analogous commercial fisheries to have a
higher probability of take; however, all were not included for
potential take by the NEFSC. Additionally, marine mammals have never
been caught or entangled in NEFSC longline gear; if interactions occur
marine mammals depredate caught fish from the gear but leave the hooks
attached and unaltered. They have never been hooked nor had hooks taken
off gear during depredation. However, such gear could be considered
analogous to potential commercial longline surveys that may be
conducted elsewhere (e.g., Garrison, 2007; Roche et al. 2007; Straley
et al., 2014). Given that the NEFSC experienced a single interaction of
a common dolphin during the effective period of the current LOA to
date, the issuance of this amount of take, by species, is reasonably
conservative.
The amount of take authorized, by M/SI, is identical to that
authorized to the NEFSC for the 2016-2020 LOA except for take
pertaining to the southern migratory coastal stock of bottlenose
dolphins. The 2016-2021 LOA authorizes 8 takes from this stock.
According to the SAR, during the warm water months of July-August, the
stock is presumed to occupy coastal waters north of Cape Lookout, North
Carolina, to Assateague, Virginia. North of Cape Hatteras during summer
months, there
[[Page 58448]]
is strong separation between the coastal and offshore morphotypes
(Kenney 1990; Garrison et al. 2017a), and the coastal morphotype is
nearly completely absent in waters >20 m. However, the NEFSC has
determined that because research effort is low in the habitat range of
this stock and NEFSC has no documented takes of dolphins belonging to
the southern migratory coastal stock, they are not requesting, and NMFS
is not proposing to authorize take.
Table 10--Total Estimated M/SI Due to Gear Interaction in the Atlantic Coast Region
----------------------------------------------------------------------------------------------------------------
5-Year total, 5-Year total, 5-Year total, 5-Year total, 5-Year total,
Species trawl \1\ gillnet \1\ longline \1\ fyke net \1\ all gears
----------------------------------------------------------------------------------------------------------------
Minke whale..................... 5 0 0 0 5
Risso's dolphin................. 2 0 1 0 3
Atlantic white-sided dolphin.... 2 1 0 0 3
White-beaked dolphin............ 2 0 0 0 2
Short-beaked common dolphin..... 5 1 1 0 7
Atlantic spotted dolphin........ 2 0 0 0 2
Common bottlenose dolphin (WNA 2 5 1 0 8
offshore stock) \1\............
Common bottlenose dolphin (WNA 2 5 1 0 8
N. Migratory stock) \1\........
Harbor porpoise................. 2 5 0 0 7
Harbor seal..................... 5 5 0 5 15
Gray seal....................... 5 5 0 5 15
----------------------------------------------------------------------------------------------------------------
\1\ The NEFSC re-evaluated sampling locations and effort after submission of their LOA application and is not
requesting takes for the southern migratory stock of bottlenose dolphins as fishing effort is very low.
Estimated Take From Scientific Sonar
As described previously, we believe it unlikely that NEFSC use of
active acoustic sources is realistically likely to cause Level B
harassment of marine mammals. However, per NEFSC request, we
conservatively assume that, at worst, Level B harassment may result
from exposure to noise from these sources, and we carry forward the
analytical approach developed in support of the 2015 rule. At that
time, in order to quantify the potential for Level B harassment to
occur, NMFS developed an analytical framework considering
characteristics of the active acoustic systems, their expected patterns
of use, and characteristics of the marine mammal species that may
interact with them. The framework incorporated a number of deliberately
precautionary, simplifying assumptions, and the resulting exposure
estimates, which are presumed here to equate to take by Level B
harassment (as defined by the MMPA), may be seen as an overestimate of
the potential for such effects to occur as a result of the operation of
these systems.
Regarding the potential for Level A harassment in the form of
permanent threshold shift to occur, the very short duration sounds
emitted by these sources reduces the likely level of accumulated energy
an animal is exposed to. An individual would have to remain
exceptionally close to a sound source for unrealistic lengths of time,
suggesting the likelihood of injury occurring is exceedingly small.
Potential Level A harassment is therefore not considered further in
this analysis.
Authorized takes from the use of active acoustic scientific sonar
sources (e.g., echosounders) would be by Level B harassment only, in
the form of disruption of behavioral patterns for individual marine
mammals resulting from exposure to the use of active acoustic sources.
Based on the nature of the activity, Level A harassment is neither
anticipated nor authorized.
Generally speaking, we estimate take by considering: (1) Acoustic
thresholds above which NMFS believes the best available science
indicates marine mammals will be behaviorally harassed or incur some
degree of permanent hearing impairment; (2) the area or volume of water
that will be ensonified above these levels in a day; (3) the density or
occurrence of marine mammals within these ensonified areas; and, (4)
and the number of days of activities. We note that while these basic
factors can contribute to a basic calculation to provide an initial
prediction of takes, additional information that can qualitatively
inform take estimates is also sometimes available (e.g., previous
monitoring results or average group size). Below, we describe the
factors considered here in more detail and present the take estimate.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur PTS of some degree (equated to Level A
harassment). As described in detail for NEFSC and other science centers
in previously issued Federal Register notices (e.g., 85 FR 53606,
August 28, 2020; 88 FR 27028, May 6, 2020), the use of the sources used
by NMFS Science Centers, including NEFSC, do not have the potential to
cause Level A harassment; therefore, our discussion is limited to
behavioral harassment (Level B harassment).
Level B Harassment for non-explosive sources--Though significantly
driven by received level, the onset of behavioral disturbance from
anthropogenic noise exposure is also informed to varying degrees by
other factors related to the source (e.g., frequency, predictability,
duty cycle), the environment (e.g., bathymetry), and the receiving
animals (hearing, motivation, experience, demography, behavioral
context) and can be difficult to predict (Southall et al., 2007,
Ellison et al., 2012). Based on what the available science indicates
and the practical need to use a threshold based on a factor that is
both predictable and measurable for most activities, NMFS uses a
generalized acoustic threshold based on received level to estimate the
onset of behavioral harassment. NMFS predicts that marine mammals are
likely to be behaviorally harassed in a manner we consider Level B
harassment when exposed to underwater anthropogenic noise above
received levels of 120 decibels (dB) re 1 microPascal ([mu]Pa) root
mean square (rms) for continuous (e.g., vibratory pile-driving,
drilling) and above 160 dB re 1 [mu]Pa (rms) for intermittent (e.g.,
scientific sonar) sources. NEFSC surveys include the use of non-
impulsive, intermittent sources and therefore the 160 dB re 1 [mu]Pa
(rms) threshold is applicable.
The operating frequencies of active acoustic systems used by the
NEFSC range from 30-333 kilohertz (kHz) (see Table 2). Examination of
these sources considers operational patterns of use
[[Page 58449]]
relative to each other, and which sources would have the largest
potential impact zone when used simultaneously. NEFSC determined that
the EK60, ME70, and DSM 300 sources comprise the total effective
exposures relative to line-kilometers surveyed (see Section 6.5 of the
Application). Acoustic disturbance takes are calculated for these three
dominant sources. Of these dominant acoustic sources, only the EK60 can
use a frequency within the hearing range of baleen whales (18 kHz).
Therefore, for North Atlantic right whales and all other baleen whales,
Level B harassment is only expected for exposure to the EK60. The other
two dominant sources are outside of their hearing range. The ADCP Ocean
Surveyor operates at 75 kHz, which is outside of baleen whale hearing
capabilities. Therefore, we would not expect any exposures to these
signals to result in behavioral harassment in baleen whales.
The assessment paradigm for active acoustic sources used in NEFSC
fisheries research is relatively straightforward and has a number of
key simple and conservative assumptions. NMFS' current acoustic
guidance requires in most cases that we assume Level B harassment
occurs when a marine mammal receives an acoustic signal at or above a
simple step-function threshold. Estimating the number of exposures at
the specified received level requires several determinations, each of
which is described sequentially below:
(1) A detailed characterization of the acoustic characteristics of
the effective sound source or sources in operation;
(2) The operational areas exposed to levels at or above those
associated with Level B harassment when these sources are in operation;
(3) A method for quantifying the resulting sound fields around
these sources; and
(4) An estimate of the average density for marine mammal species in
each area of operation.
Quantifying the spatial and temporal dimension of the sound
exposure footprint (or ``swath width'') of the active acoustic devices
in operation on moving vessels and their relationship to the average
density of marine mammals enables a quantitative estimate of the number
of individuals for which sound levels exceed the relevant threshold for
each area. The number of potential incidents of Level B harassment is
ultimately estimated as the product of the volume of water ensonified
at 160 dB rms or higher and the volumetric density of animals
determined from simple assumptions about their vertical stratification
in the water column. Specifically, reasonable assumptions based on what
is known about diving behavior across different marine mammal species
were made to segregate those that predominately remain in the upper 200
m of the water column versus those that regularly dive deeper during
foraging and transit. Methods for estimating each of these calculations
are described in greater detail in the following sections, along with
the simplifying assumptions made, and followed by the take estimates.
Sound source characteristics--An initial characterization of the
general source parameters for the primary active acoustic sources
operated by the NEFSC was conducted, enabling a full assessment of all
sound sources used by the NEFSC. This auditing of the active acoustic
sources also enabled a determination of the predominant sources that,
when operated, would have sound footprints exceeding those from any
other simultaneously used sources. These sources were effectively those
used directly in acoustic propagation modeling to estimate the zones
within which the 160 dB rms received level would occur.
Many of these sources can be operated in different modes and with
different output parameters. In modeling their potential impact areas,
those features among the sources identified in Table 2 (e.g., lowest
operating frequency) that would lead to the most precautionary estimate
of maximum received level ranges (i.e., largest ensonified area) were
used. The effective beam patterns took into account the normal modes in
which these sources are typically operated. While these signals are
brief and intermittent, a conservative assumption was taken in ignoring
the temporal pattern of transmitted pulses in calculating Level B
harassment events. Operating characteristics of each of the predominant
sound sources were used in the calculation of effective line-kilometers
and area of exposure for each source in each survey.
Calculating effective line-kilometers--As described below, based on
the operating parameters for each source type, an estimated volume of
water ensonified at or above the 160 dB rms threshold was calculated.
In all cases where multiple sources are operated simultaneously, the
one with the largest estimated acoustic footprint was considered to be
the effective source. Two depth zones were defined for each of the four
research areas: 0-200 m and > 200 m. Effective line distance and volume
ensonified was calculated for each depth strata (0-200 m and > 200 m),
where appropriate. In some cases, this resulted in different sources
being predominant in each depth stratum for all line km (i.e., the
total linear distance traveled during acoustic survey operations) when
multiple sources were in operation. This was accounted for in
estimating overall exposures for species that utilize both depth strata
(deep divers). For each ecosystem area, the total number of line km
that would be surveyed was determined, as was the relative percentage
of surveyed line km associated with each source. The total line-
kilometers for each survey, the dominant source, the effective
percentages associated with each depth, and the effective total volume
ensonified are given below (Table 12).
From the sources identified in Table 2, the NEFSC identified six of
the eight as having the largest potential impact zones during
operations based on their relatively lower output frequency, higher
output power, and operational pattern of use: EK60, ME70, DSM 300, ADCP
Ocean Surveyor, Simrad EQ50, and Netmind (80 FR 39542, July 9, 2015).
Further examination of these six sources considers operational patterns
of use relative to each other, and which sources would have the largest
potential impact zone when used simultaneously. NEFSC determined that
the EK60, ME 70, and DSM 300 sources comprise the total effective
exposures relative to line-kilometers surveyed acoustic disturbance
takes are calculated for these three dominant sources. Of these
dominant acoustic sources, only the EK 60 can use a frequency within
the hearing range of baleen whales (18k Hz). Therefore, for NARW and
all other baleen whales, Level B harassment is only expected for
exposure to the EK60. The other two dominant sources are outside of
their hearing range.
Calculating volume of water ensonified--The cross-sectional area of
water ensonified to a 160 dB rms received level was calculated using a
simple spherical spreading model of sound propagation loss (20 log R)
such that there would be 60 dB of attenuation over 1,000 m. Spherical
spreading is a reasonable assumption even in relatively shallow waters
since, taking into account the beam angle, the reflected energy from
the seafloor will be much weaker than the direct source and the volume
influenced by the reflected acoustic energy would be much smaller over
the relatively short ranges involved. We also accounted for the
frequency-dependent absorption coefficient and beam pattern of these
sound sources, which is generally highly directional. The lowest
frequency was used for systems that are operated over a range of
frequencies. The vertical
[[Page 58450]]
extent of this area is calculated for two depth strata.
Following the determination of effective sound exposure area for
transmissions considered in two dimensions (Table 11), the next step
was to determine the effective volume of water ensonified at or above
160 dB rms for the entirety of each survey. For each of the three
predominant sound sources, the volume of water ensonified is estimated
as the athwartship cross-sectional area (in square kilometers) of sound
at or above 160 dB rms multiplied by the total distance traveled by the
ship. Where different sources operating simultaneously would be
predominant in each different depth strata, the resulting cross-
sectional area calculated took this into account. Specifically, for
shallow-diving species this cross-sectional area was determined for
whichever was predominant in the shallow stratum, whereas for deeper-
diving species this area was calculated from the combined effects of
the predominant source in the shallow stratum and the (sometimes
different) source predominating in the deep stratum. This creates an
effective total volume characterizing the area ensonified when each
predominant source is operated and accounts for the fact that deeper-
diving species may encounter a complex sound field in different
portions of the water column. Volumetric densities are presented in
Table 12.
Table 11--Effective Exposure Areas for Predominant Acoustic Sources
Across Two Depth Strata
------------------------------------------------------------------------
Effective exposure Effective exposure
Active acoustic system area: sea surface to area: sea surface to
200 m depth (km\2\) depth >200 m (km\2\)
------------------------------------------------------------------------
EK60........................ 0.0142 0.1411
ME70........................ 0.0201 0.0201
DSM300...................... 0.0004 0.0004
------------------------------------------------------------------------
Marine Mammal Density
As described in the 2015 proposed rule (80 FR 39542, July 9, 2015),
marine mammals were categorized into two generalized depth strata:
surface-associated (0-200 m) or deep-diving (0 to >200 m). These depth
strata are based on reasonable assumptions of behavior (Reynolds III
and Rommell 1999). Animals in the shallow-diving strata were assumed to
spend a majority of their lives (>75 percent) at depths of 200 m or
shallower. For shallow-diving species, the volumetric density is the
area density divided by 0.2 km (i.e., 200 m). The animal's volumetric
density and exposure to sound is limited by this depth boundary.
Species in the deeper diving strata were assumed to regularly dive
deeper than 200 m and spend significant time at depth. For deeper
diving species, the volumetric density is calculated as the area
density divided by a nominal value of 0.5 km (i.e., 500 m), consistent
with the approach used in the 2016 Final Rule (81 FR 53061, August 11,
2016). Where applicable, both LME and offshore volumetric densities are
provided. As described in Section 6.5 of NEFSC's application, level of
effort and acoustic gear types used by NEFSC differ in these areas and
takes are calculated for each area (LME and offshore).
Table 12--Marine Mammal and Volumetric Density in the Ensonfied Areas
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dive profile/ Offshore
vertical habitat LME area LME volumetric Offshore Volumetric
Common name ---------------------- density (per density (per density (per density (per
0-200 m >200 m km\2\) \1\ \2\ km\3\) \3\ km\2\) \2\ \4\ km\3\) \5\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cetaceans
--------------------------------------------------------------------------------------------------------------------------------------------------------
NARW \6\.......................................................... X ......... 0.0030 0.0150 0 0
Humpback whale.................................................... X ......... 0.0016 0.00800 0 0
Fin whale......................................................... X ......... 0.0048 0.02400 0.00005 0.00025
Sei whale......................................................... X ......... 0.0008 0.00400 0 0
Minke whale....................................................... X ......... 0.002 0.01000 0 0
Blue whale........................................................ X ......... 0.000009 0.00005 0.000009 0.00005
Sperm whale....................................................... ......... X 0 0 0.0056 0.01120
Dwarf sperm whale................................................. ......... X 0 0 0.005 0.01000
Pygmy sperm whale................................................. ......... X 0 0 0.005 0.01000
Killer Whale...................................................... X ......... 0.000009 0.00005 0.000009 0.00005
Pygmy killer whale................................................ X ......... 0.000009 0.00005 0.000009 0.00005
Northern bottlenose whale......................................... ......... X 0 0 0.00009 0.00018
Cuvier's beaked whale............................................. ......... X 0 0 0.0062 0.01240
Mesoplodon beaked whales.......................................... ......... X 0 0 0.0046 0.00920
Melon-headed whale................................................ X ......... 0 0 0.0010 0.00500
Risso's dolphin................................................... X ......... 0.0020 0.01000 0.0128 0.06400
Long-finned pilot whale........................................... ......... X 0.0220 0.11000 0.0220 0.04400
Short-finned pilot whale.......................................... ......... X 0.0220 0.11000 0.0220 0.04400
Atlantic white-sided dolphin...................................... X ......... 0.0453 0.22650 0 0
White-beaked dolphin.............................................. X ......... 0.00003 0.00015 0 0
Short-beaked common dolphin....................................... X ......... 0.0891 0.44550 0 0
Atlantic spotted dolphin.......................................... X ......... 0.0013 0.00650 0.0241 0.12050
Pantropical spotted dolphin....................................... X ......... 0 0 0.0015 0.00750
Striped dolphin................................................... X ......... 0 0 0.0614 0.30700
Fraser's dolphin.................................................. X ......... 0 0 0.0004 0.000200
Rough toothed dolphin............................................. X ......... 0.0005 0.00250 0.0010 0.000200
[[Page 58451]]
Clymene dolphin................................................... X ......... 0.0032 0.01600 0 0
Spinner dolphin................................................... X ......... 0 0 0.0002 0.00100
Common bottlenose dolphin offshore stock.......................... X ......... 0 0 0.1615 0.3230
Common bottlenose dolphin coastal stocks.......................... X ......... 0.1359 0.6795 0 0
Harbor porpoise................................................... X ......... 0.0403 0.20150 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pinnipeds
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor Seal....................................................... X ......... 0.2844 1.4220 0 0
Gray Seal......................................................... X ......... 0.0939 0.4695 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ LME is the area in shore of the 200 m depth contour.
\2\ Source: Unless otherwise stated Roberts, Best et al. (2016).
\3\ LME volumetric density is the LME area density divided by 0.2 km.
\4\ Offshore is the area offshore of the 200 m depth contour.
\5\ Offshore volumetric density is the offshore area density divided by 0.2 km or 0.5 km for shallow or deep diving species or 0.5 km for deep diving
species.
\6\ Density from Roberts, Schick et al. (2020).
Using Area of Ensonification and Volumetric Density to Estimate
Exposures
Estimates of potential incidents of Level B harassment (i.e.,
potential exposure to levels of sound at or exceeding the 160 dB rms
threshold) are then calculated by using (1) the combined results from
output characteristics of each source and identification of the
predominant sources in terms of acoustic output; (2) their relative
annual usage patterns for each operational area; (3) a source-specific
determination made of the area of water associated with received sounds
at the extent of a depth boundary; and (4) determination of a
biologically-relevant volumetric density of marine mammal species in
each area. Estimates of Level B harassment by acoustic sources are the
product of the volume of water ensonified at 160 dB rms or higher for
the predominant sound source for each relevant survey and the
volumetric density of animals for each species. Source- and stratum-
specific exposure estimates are the product of these ensonified volumes
and the species-specific volumetric densities (Table 12). The general
take estimate equation for each source in each depth statrum is density
* (ensonified volume * line kms). The humpback whale and exposure to
sound from the EK 60 can be used to demonstrate the calculation:
1. EK60 ensonified volume; 0-200 m: 0.0142 km\2\ * 16058.8 km =
228.03 km\3\
2. Estimated exposures to sound >=160 dB rms; humpback whale; EK60,
LME region: (0.008 humpback whales/km\3\ * 228.03 km\3\ = 1.8 estimated
humpback exposures to SPLs >=160 dB rms resulting from use of the EK60
in the 0-200 m depth stratum.
Similar calculations were conducted for the ME 70 and DSM300 for
each animal in the LME region, with the exception of baleen whales, as
these sound sources are outside of their hearing range. Totals in
Tables 13 and 14 represent the total take of marine mammals, by
species, across all relevant surveys and sources rounded up to the
nearest whole number.
BILLING CODE 3510-22-P
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BILLING CODE 3510-22-C
Estimated Take Due to Physical Disturbance
Estimated take due to physical disturbance could potentially occur
in the Penobscot River Estuary as a result of the unintentional
approach of NEFSC vessels to pinnipeds hauled out on ledges.
The NEFSC uses three gear types (fyke nets, rotary screw traps, and
Mamou shrimp trawl) to monitor fish communities in the Penobscot River
Estuary. The NEFSC conducts the annual surveys over specific sampling
periods which could use any gear type: Mamou trawling is conducted
year-round; fyke net surveys are conducted April-November; and rotary
screw trap surveys from April-June.
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We anticipate that trawl and fyke net surveys may disturb harbor
seals and gray seals hauled out on tidal ledges through physical
presence of researchers. The NEFSC conducts these surveys in upper
Penobscot Bay above Fort Point Ledge where there is only one minor seal
ledge (Odum Ledge) used by approximately 50 harbor seals (i.e., based
on a June 2001 survey). In 2017, only 20 seals were observed in the
water during the Penobscot Bay surveys (NEFSC 2018) as described below.
Although one cannot assume that the number of seals using this region
is stable over the April-November survey period; use of this area by
seals likely lower in spring and autumn.
There were no observations of gray seals in the 2001 survey, but
recent anecdotal information suggests that a few gray seals may share
the haulout site. These fisheries research activities do not entail
intentional approaches to seals on ledges (i.e., boats avoid close
approach to tidal ledges and no gear is deployed near the tidal
ledges); only behavioral disturbance incidental to small boat
activities is anticipated. It is likely that some pinnipeds on the
ledges would move or flush from the haulout into the water in response
to the presence or sound of NEFSC survey vessels. Behavioral responses
may be considered according to the scale shown in Table 15. We consider
responses corresponding to Levels 2-3 to constitute Level B harassment.
Table 15--Seal Response to Disturbance
------------------------------------------------------------------------
Level Type of response Definition
------------------------------------------------------------------------
1....................... Alert................ Seal head orientation
or brief movement in
response to
disturbance, which may
include turning head
towards the
disturbance, craning
head and neck while
holding the body rigid
in a u-shaped
position, changing
from a lying to a
sitting position, or
brief movement of less
than twice the
animal's body length.
2....................... Movement............. Movements in response
to the source of
disturbance, ranging
from short withdrawals
at least twice the
animal's body length
to longer retreats
over the beach, or if
already moving a
change of direction of
greater than 90
degrees.
3....................... Flush................ All retreats (flushes)
to the water.
------------------------------------------------------------------------
Only two research projects would involve the physical presence of
researchers that may result in Level B incidental harassment of
pinnipeds on haulouts. These surveys would occur in Penobscot Bay.
Seals observed by NEFSC researchers on haulouts and in adjacent waters
from 2017 through 2020 are presented in Table 16. The 2016 final rule
(81 FR 53061, August 11, 2016) estimated that all hauled out seals
could be disturbed by passing research skiffs. This was a conservative
assumption given that only 20 seals were observed in the water during
the actual 2017 Penobscot Bay surveys (NEFSC 2018b), and researchers
have estimated that only about 10 percent of hauled out seals had been
visibly disturbed in the past (NMFS 2016). Thus, for this rule, it is
assumed that 10 percent of the animals hauled out could be flushed into
the water and taken. The resulting requested take is estimated based on
the number of days per year the activity might take place, times the
number of seals potentially affected (10 percent of the number hauled).
Table 17 provides the estimated annual and 5-year takes of harbor and
gray seals due to behavioral harassment during surveys in the lower
estuary of the Penobscot River.
Table 16--Seals Observed in Penobscot Bay During Hydroacoustic Surveys From 2017-2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
2017 2018 2019
-----------------------------------------------------------------------------------------------
Species Count on Count on Count on
haulout Count in water haulout Count in water haulout Count in water
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seals............................................ 242 65 401 52 330 50
Gray seals.............................................. 2 17 11 2 33 29
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 17--Estimated Take, by Level B Harassment, of Pinnipeds During Penobscot River Survey
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Estimated annual instances of harassment
Estimated number of ------------------------------------------------ 5-Year total
number of seals harassment takes
Common name seals hauled potentially Fyke net 100 Mamou Shrimp requested all
out 1 disturbed per DAS Trawl 12 DAS Total gears
day 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seals......................................... 400 40 4,000 480 4,480 22,400
Gray seals........................................... 30 3 300 36 336 1,680
--------------------------------------------------------------------------------------------------------------------------------------------------------
Summary of Estimated Incidental Take
Here we provide summary tables detailing the total incidental take
authorized on an annual basis for the NEFSC in the Atlantic coast
region, as well as other information relevant to the negligible impact
analyses.
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Table 18--Total Take Authorized, by M/SI and Level B Harassment, Over 5 Years
[2021-2026]
----------------------------------------------------------------------------------------------------------------
Annual level B take
5-Year total M/------------------------------------------------ Total 5-yr
Common name SI take Total (percent level B take
authorization LME Offshore of population) 2021-2026
----------------------------------------------------------------------------------------------------------------
NARW............................ 0 4 0 4 (<1) 20
Humpback whale.................. 0 2 0 2 (<1) 10
Fin whale....................... 0 6 1 7 (<1) 35
Sei whale....................... 0 1 0 1 (<1) 5
Minke whale..................... 5 3 0 3 (<1) 15
Blue whale...................... 0 1 1 2 (<1) 10
Sperm whale..................... 0 0 5 5 (<1) 25
Dwarf sperm whale............... 0 0 4 4 (<1) 20
Pygmy sperm whale............... 0 0 4 4 (<1) 20
Killer Whale.................... 0 1 1 2 (<1) 10
Pygmy killer whale.............. 0 1 1 2 (<1) 10
Northern bottlenose whale....... 0 0 1 1 (<1) 5
Cuvier's beaked whale........... 0 0 5 5 (<1) 25
Mesoplodon beaked whale......... 0 0 4 4 (<1) 20
Melon-headed whale.............. 0 0 1 1 (<1) 5
Risso's dolphin................. 3 12 9 21 (<1) 105
Long-finned pilot whale......... 0 129 17 146 (<1) 730
Short-finned pilot whale........ 0 129 17 146 (<1) 730
Atlantic white-sided dolphin.... 3 265 0 281 (<1) 1,325
White-beaked common dolphin..... 2 1 0 1 (<1) 5
Short-beaked common dolphin..... 7 520 0 520 (<1) 2,600
Atlantic spotted dolphin........ 2 8 16 24 (<1) 120
Pantropical spotted dolphin..... 0 0 1 1 (<1) 5
Striped dolphin................. 0 0 41 41 (<1) 205
Fraser's dolphin................ 0 0 1 1 (<1) 5
Rough toothed dolphin........... 0 3 1 4 (3) 20
Clymene dolphin................. 0 19 0 19 (<1) 95
Spinner dolphin................. 0 0 5 5 (<1) 25
Bottlenose dolphin \1\.......... \1\ 16 794 43 837 (12) 4,185
Harbor Porpoise................. 7 236 0 236 (<1) 1,180
Harbor seals \2\................ 15 1,660 0 6,140 (8.1) 30,700
4,480
Gray seals \2\.................. 15 549 0 885 (3.2) 4,425
336
----------------------------------------------------------------------------------------------------------------
\1\ Eight M/SI takes each from the offshore and northern migratory coastal stocks, over the 5-year period.
\2\ For Level B takes, the first number is disturbance due to acoustic sources, the second is physical
disturbance due to surveys in Penobscot Bay.
Mitigation
In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, we
carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned); and
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, impact on
operations, and, in the case of a military readiness activity,
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity.
Mitigation for Marine Mammals and Their Habitat
The NEFSC has invested significant time and effort in identifying
technologies, practices, and equipment to minimize the impact of the
proposed activities on marine mammal species and stocks and their
habitat. The mitigation measures discussed here have been determined to
be both effective and practicable and, in some cases, have already been
implemented by the NEFSC. In addition, while not currently being
investigated, any future
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potentially effective and practicable gear modification mitigation
measures are part of the adaptive management strategy included in this
rule.
General Measures
Visual Monitoring--Effective monitoring is a key step in
implementing mitigation measures and is achieved through regular marine
mammal watches. Marine mammal watches are a standard part of conducting
NEFSC fisheries research activities, particularly those activities that
use gears that are known to or potentially interact with marine
mammals. Marine mammal watches and monitoring occur during daylight
hours prior to deployment of gear (e.g., trawls, longline gear), and
they continue until gear is brought back on board. If marine mammals
are sighted in the area within 15 minutes prior to deployment of gear
and are considered to be at risk of interaction with the research gear,
then the sampling station is either moved or canceled or the activity
is suspended until there are no sightings for 15 minutes within 1nm of
sampling location. On smaller vessels, the Chief Scientist (CS) and the
vessel operator are typically those looking for marine mammals and
other protected species. When marine mammal researchers are on board
(distinct from marine mammal observers dedicated to monitoring for
potential gear interactions), they will record the estimated species
and numbers of animals present and their behavior. If marine mammal
researchers are not on board or available, then the CS in cooperation
with the vessel operator will monitor for marine mammals and provide
training as practical to bridge crew and other crew to observe and
record such information.
Coordination and Communication--When NEFSC survey effort is
conducted aboard NOAA-owned vessels, there are both vessel officers and
crew and a scientific party. Vessel officers and crew are not composed
of NEFSC staff but are employees of NOAA's Office of Marine and
Aviation Operations (OMAO), which is responsible for the management and
operation of NOAA fleet ships and aircraft and is composed of uniformed
officers of the NOAA Commissioned Corps as well as civilians. The
ship's officers and crew provide mission support and assistance to
embarked scientists, and the vessel's Commanding Officer (CO) has
ultimate responsibility for vessel and passenger safety and, therefore,
decision authority regarding the implementation of mitigation measures.
When NEFSC survey effort is conducted aboard cooperative platforms
(i.e., non-NOAA vessels), ultimate responsibility and decision
authority again rests with non-NEFSC personnel (i.e., vessel's master
or captain). Although the discussion throughout this Rule does not
always explicitly reference those with decision-making authority from
cooperative platforms, all mitigation measures apply with equal force
to non-NOAA vessels and personnel as they do to NOAA vessels and
personnel. Decision authority includes the implementation of mitigation
measures (e.g., whether to stop deployment of trawl gear upon
observation of marine mammals). The scientific party involved in any
NEFSC survey effort is composed, in part or whole, of NEFSC staff and
is led by a CS. Therefore, because the NEFSC--not OMAO or any other
entity that may have authority over survey platforms used by NEFSC--is
the applicant to whom any incidental take authorization issued under
the authority of these regulations would be issued, we require that the
NEFSC take all necessary measures to coordinate and communicate in
advance of each specific survey with OMAO, or other relevant parties,
to ensure that all mitigation measures and monitoring requirements
described herein, as well as the specific manner of implementation and
relevant event-contingent decision-making processes, are clearly
understood and agreed-upon. This may involve description of all
required measures when submitting cruise instructions to OMAO or when
completing contracts with external entities. NEFSC will coordinate and
conduct briefings at the outset of each survey and as necessary between
the ship's crew (CO/master or designee(s), as appropriate) and
scientific party in order to explain responsibilities, communication
procedures, marine mammal monitoring protocol, and operational
procedures. The CS will be responsible for coordination with the
Officer on Deck (OOD; or equivalent on non-NOAA platforms) to ensure
that requirements, procedures, and decision-making processes are
understood and properly implemented.
The NEFSC will coordinate with the local Northeast Regional
Stranding Coordinator and the NMFS Stranding Coordinator for any
unusual protected species behavior and any stranding, beached live/
dead, or floating protected species that are encountered during field
research activities. If a large whale is alive and entangled in fishing
gear, the vessel will immediately call the U.S. Coast Guard at VHF Ch.
16 and/or the appropriate Marine Mammal Health and Stranding Response
Network for instructions. All entanglements (live or dead) and vessel
strikes must be reported immediately to the NOAA Fisheries Marine
Mammal Stranding Hotline at 888-755-6622. In addition, any entanglement
or vessel strike must be reported to the NMFS Protected Species
Incidental Take database (PSIT) within 48 hours of the event happening
(see Monitoring and Reporting).
Vessel Speed Limits and Course Alteration
When NEFSC research vessels are actively sampling, cruise speeds
are less than 5 knots (kts), typically 2-4 kts, a speed at which the
probability of collision and serious injury of large whales is de
minimus. However, transit speed between active sampling stations will
range from 10-12 kts, except in areas where vessel speeds are regulated
to lower speeds.
On 9 December 2013, NMFS published a ``Final rule to remove sunset
provision of the Final Rule Implementing Vessel Speed Restrictions to
Reduce the Threat of Ship Collisions with NARWs'' (78 FR 73726). The
2013 final rule continued the vessel speed restrictions to reduce the
threat of ship collisions with NARWs that were originally published in
a final rule on October 10, 2008 (73 FR 60173). The rule requires that
vessels 65 feet and greater in length travel at 10 knots or less near
key port entrances and in certain areas of right whale aggregation
along the U.S. eastern seaboard, known as ``Seasonal Management
Areas''. The spatial and temporal locations of SMAs from Maine to
Florida can be found at: <a href="https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales#vessel-speed-restrictions">https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales#vessel-speed-restrictions</a>. In addition, Right Whale Slow
Zones is a program that notifies vessel operators of areas where
maintaining speeds of 10 knots or less can help protect right whales
from vessel collisions. Under this program, NOAA Fisheries provides
maps and coordinates to vessel operators indicating areas where right
whales have been detected. Mariners are encouraged to avoid these areas
or reduce speeds to 10 knots or less while transiting through these
areas for 15 days. Right Whale Slow Zones are established around areas
where right whales have been recently seen or heard. These areas are
identical to Dynamic Management Areas (DMA) when triggered by right
whale visual sightings, but they will also be established when right
whale detections are confirmed from acoustic receivers. All NEFSC
vessels over 65 ft (19.8 m)
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will abide by all speed and course restrictions in SMAs and DMAs. Prior
to and during research surveys, NEFSC will maintain awareness if right
whales have been detected in transit or fishing areas.
Handling Procedures
Handling procedures are those taken to return a live animal to the
sea or process a dead animal. The NEFSC will implement a number of
handling protocols to minimize potential harm to marine mammals that
are incidentally taken during the course of fisheries research
activities. In general, protocols have already been prepared for use on
commercial fishing vessels. Although commercial fisheries take larger
quantities of marine mammals than fisheries research, the nature of
such takes by entanglement or capture are similar. Therefore, the NEFSC
would adopt commercial fishery disentanglement and release protocols
(summarized below), which should increase post-release survival.
Handling or disentangling marine mammals carries inherent safety risks,
and using best professional judgment and ensuring human safety is
paramount.
Captured or entangled live or injured marine mammals are released
from research gear and returned to the water as soon as possible with
no gear or as little gear remaining on the animal as possible. Animals
are released without removing them from the water if possible, and data
collection is conducted in such a manner as not to delay release of the
animal(s) or endanger the crew. NEFSC is responsible for training NEFSC
and partner affiliates on how to identify different species; handle and
bring marine mammals aboard a vessel; assess the level of
consciousness; remove fishing gear; and return marine mammals to water.
Human safety is always the paramount concern.
Move-On Rule
For all research surveys using gear that has the potential to hook
or entangle a marine mammal, the NEFSC must implement move-on rule
mitigation protocol upon observation of any marine mammal other than
dolphins and porpoises attracted to the vessel (see specific gear types
below for marine mammal monitoring details). Specifically, if one or
more marine mammals (other than dolphins and porpoises) are observed
near the sampling area 15 minutes prior to setting gear and are
considered at risk of interacting with the vessel or research gear, or
appear to be approaching the vessel and are considered at risk of
interaction, NEFSC must either remain onsite or move on to another
sampling location. If remaining onsite, the set must be delayed until
the animal(s) depart or appear to no longer be at risk of interacting
with the vessel or gear. If gear deployment or retrieval is suspended
due to protected species presence, resume only after there are no
sightings for 15 minutes within 1nm of sampling location. At such time,
the NEFSC may deploy gear. The NEFSC must use best professional
judgment, in making decisions related to deploying gear.
Trawl Surveys (Beam, Mid-Water, and Bottom Trawls)
The NEFSC deploys trawl nets in all layers of the water column. For
all beam, mid-water, and bottom trawl, the NEFSC will initiate visual
observation for protected species no less than 15 minutes prior to gear
deployment. NEFSC will scan the surrounding waters with the naked eye
and rangefinding binoculars and will continue visual monitoring while
gear is deployed. During nighttime operations, NEFSC will observe with
the naked eye and any available vessel lighting. If protected species
are sighted within 15 minutes before setting gear, the OOD may
determine whether to implement the ``move-on'' rule and transit to a
different section of the sampling area. Trawl gear will not be deployed
if protected species are sighted near the ship unless there is no risk
of interaction as determined by the OOD or CS. If, after moving on,
protected species are still visible from the vessel and appear at risk,
the OOD may decide to move again, skip the station, or wait until the
marine mammal(s) leave the area and/or are considered no longer at
risk. If gear deployment or retrieval is suspended due to protected
species presence, fishing may commence after there are no sightings for
15 minutes within 1nm of sampling location. If deploying bongo plankton
or other small net prior to trawl gear, NEFSC will continue visual
observations until trawl gear is ready to be deployed.
NEFSC trawl surveys will follow the standard tow durations of no
more than 30 minutes at target depth for distances less than 3 nautical
miles (nm). The exceptions to the 30-minute tow duration are the
Atlantic Herring Acoustic Pelagic Trawl Survey and the Deepwater
Biodiversity Survey where total time in the water (deployment, fishing,
and haul-back) is 40 to 60 minutes and 180 minutes, respectively. Trawl
tow distances will be not more than 3 nmi to reduce the likelihood of
incidentally taking marine mammals. Typical tow distances are 1-2 nmi,
depending on the survey and trawl speed. Bottom trawl tows will be made
in either straight lines or following depth contours, whereas other
tows targeting fish aggregations and deep-water biodiversity tows may
be made along oceanographic or bathymetric features. In all cases,
sharp course changes will be avoided in all surveys.
In many cases, trawl operations will be the first activity
undertaken upon arrival at a new station, in order to reduce the
opportunity to attract marine mammals to the vessel. However, in some
cases it will be necessary to conduct plankton tows prior to deploying
trawl gear in order to avoid trawling through extremely high densities
of jellies and similar taxa that are numerous enough to severely damage
trawl gear.
Once the trawl net is in the water, observations will continue
around the vessel to maintain a lookout for the presence of marine
mammals. If marine mammals are sighted before the gear is fully
retrieved, resume only after there are no sightings for 15 minutes
within 1 nmi of the sampling location. The OOD may also use the most
appropriate response to avoid incidental take in consultation with the
CS and other experienced crew as necessary. This judgment will be based
on his/her past experience operating gears around marine mammals and
NEFSC training sessions that will facilitate dissemination of CS.
Captain expertise operating in these situations (e.g., factors that
contribute to marine mammal gear interactions and those that aid in
successfully avoiding these events). These judgments take into
consideration the species, numbers, and behavior of the animals, the
status of the trawl net operation (net opening, depth, and distance
from the stern), the time it would take to retrieve the net, and safety
considerations for changing speed or course. For instance, a whale
transiting through the area off in the distance might only require a
short move from the designated station while a pod of dolphins gathered
around the vessel may require a longer move from the station or
possibly cancellation if they follow the vessel. It may sometimes be
safer to continue trawling until the marine mammals have lost interest
or transited through the area before beginning haulback operations. In
other situations, swift retrieval of the net may be the best course of
action. If trawling is delayed because of protected species presence,
trawl operations only resume when the animals have no longer been
sighted or are no longer at risk. In any case, no gear will be deployed
if marine
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mammals or other protected species have been sighted that may be a risk
of interaction with gear. Gear will be retrieved immediately if marine
mammals are believed to be at risk of entanglement or observed as being
entangled.
The acoustical cues generated during haulback may attract marine
mammals. The NEFSC will continue monitoring for the presence of marine
mammals during haulback. Care will be taken when emptying the trawl to
avoid damage to any marine mammals that may be caught in the gear but
are not visible upon retrieval. NEFSC will open the codend of the net
close to the deck/sorting area to avoid damage to animals that may be
caught in gear. The gear will be emptied as close to the deck/sorting
area and as quickly as possible after retrieval in order to determine
whether or not marine mammals, or any other protected species, are
present.
Gillnet Surveys
The NEFSC will limit gillnet soak times to the least amount of time
required to conduct sampling. Gillnet research will only be conducted
during daylight hours. NEFSC will conduct marine mammal monitoring
beginning 15 minutes prior to deploying the gear and continue until
gear is back on deck. For the COASTSPAN gillnet surveys, NEFSC must
actively monitor for potential bottlenose dolphin entanglements by
hand-checking the gillnet every 30 minutes or if a disturbance in the
net is observed (even if marine mammals are not observed).
NEFSC will pull gear immediately if disturbance in the nets is
observed. All gillnets will be designed with minimal net slack and
excess floating and trailing lines will be removed. NEFSC will set only
new of fully repaired gill nets thereby eliminating holes, and modify
nets to avoid large vertical gaps between float line and net as well as
lead line and net when set. If a marine mammal is sighted during
approach to a station or prior to deploying gear, nets would not be
deployed until the animal has left the area, is on a path away from
where the net would be set, or has not been re-sighted within 15
minutes. Alternatively, the research team may move the vessel to an
area clear of marine mammals. If the vessel moves, the 15-minute
observation period is repeated. Monitoring by all available crew would
continue while the net is being deployed, during the soak, and during
haulback.
If protected species are not sighted during the 15-minute
observation period, the gear may be set. Waters surrounding the net and
the net itself would be continuously monitored during the soak. If
protected species are sighted during the soak and appear to be at risk
of interaction with the gear, then the gear is pulled immediately. If
fishing operations are halted, operations resume when animal(s) have
not been sighted within 15 minutes or are determined to no longer be at
risk. In other instances, the station is moved or cancelled. If any
disturbance in the gear is observed in the gear, the net will be
immediately checked or pulled.
The NEFSC will clean gear prior and during deployment. The catch
will be emptied as quickly as possible. On Observer Training cruises,
acoustic pingers and weak links are used on all gillnets consistent
with the regulations and TRPs for commercial fisheries. All NEFOP
protocols are followed as per current NEFOP Observer Manual. NEFSC must
ensure that surveys deploy acoustic deterrent devices on gillnets in
areas where required for commercial fisheries. NEFSC must ensure that
the devices are operating properly before deploying the net.
Longline Surveys
Similar to other surveys, NEFSC will deploy longline gear as soon
as practicable upon arrival on station. They will initiate visual
observations for marine mammals no less than 15 minutes prior to
deployment and continue until gear is back on deck. Observers will scan
surrounding waters with the naked eye and binoculars (or monocular).
Monitoring, albeit limited visibility, will occur during nighttime
surveys using the naked eye and available vessel lighting. If marine
mammals are sighted within 1nmi of the station within 15 minutes before
setting gear, NEFSC will suspend gear deployment until the animals have
moved on a path away from the station or implement the move-on rule. If
gear deployment or retrieval is suspended due to presence of marine
mammals, resume operations only after there are no sightings for at
least 15 minutes within 1nmi of sampling location. In no case will
longlines be deployed if animals are considered at-risk of interaction.
When visibility allows, the OOD, CS, and crew standing watch will
conduct set checks every 15 minutes to look for hooked, trapped, or
entangled marine mammals. In addition, chumming is prohibited.
Fyke Net Surveys
NEFSC will conduct monitoring of marine mammals 15 minutes prior to
setting gear. If marine mammals are observed within 100 m of the
station, NEFSC will delay setting the gear until the marine mammal(s)
has moved past and on a path away from the station or implement the
move-on rule. Similar to other gear measures, fyke nets will not be
deployed in the animal(s) is deemed at-risk of interaction. If marine
mammals are observed during sampling, gear will be pulled if the marine
mammals is deemed at-risk of interacting with the gear. NEFSC will
conduct monitoring and retrieval of gear every 12 to 24 hour soak
period.
Fyke nets equal or greater to 2 m will be fitted with a marine
mammal excluder device. The exclusion device consists of a grate the
dimensions of which were based on exclusion devices on Penobscot
Hydroelectric fishway facilities that are four to six inches and allow
for passage of numerous target species including river herring, eels,
striped bass, and adult salmon. The 1-m fyke net does not require an
excluder device as the opening is 12 cm. These small openings will
prevent marine mammals from entering the nets.
Pot/Trap Surveys
All pot/trap surveys will implement that same mitigation as
described for longline surveys.
Dredge Surveys
For all scallop and hydraulic clam dredges, the OOD, CS or others
will scan for marine mammals for 15 minutes prior to deploying gear. If
marine mammals are observed within 1 nm of the station, NEFSC will
delay setting the gear until the marine mammal(s) has moved past and on
a path away from the station or implement the move-on rule or the OOD
or CS may implement the move-on rule. Dredge gear will not be deployed
in the marine mammal is considered at-risk of interaction.
Sampling will be conducted upon arrival at the station and continue
until gear is back on deck. Similar to trawl gear, care will be taken
when emptying the nets to avoid damage to any marine mammals that may
be caught in the gear but are not visible upon retrieval. NEFSC will
empty the net close to the deck/sorting area to avoid damage to marine
mammals that may be caught in gear. The gear will be emptied as quickly
as possible after retrieval in order to determine whether or not marine
mammals are present.
Based on our evaluation of these measures, NMFS has determined that
the mitigation measures provide the means effecting the least
practicable impact on the affected species or stocks and their habitat,
paying particular attention to rookeries, mating grounds, and areas of
similar significance.
[[Page 58459]]
Monitoring and Reporting
In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104 (a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present in the
specified geographic region. Effective reporting is critical both to
compliance as well as ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
<bullet> 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);
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
<bullet> How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and
<bullet> Mitigation and monitoring effectiveness.
NEFSC must designate a compliance coordinator who must be
responsible for ensuring compliance with all requirements of any LOA
issued pursuant to these regulations and for preparing for any
subsequent request(s) for incidental take authorization.
Since the 2016 final rule, NEFSC has made its training, operations,
data collection, animal handling, and sampling protocols more
systematic in order to improve its ability to understand how mitigation
measures influence interaction rates and ensure its research operations
are conducted in an informed manner and consistent with lessons learned
from those with experience operating these gears in close proximity to
marine mammals. In addition, NMFS has established a formal incidental
take reporting system, the PSIT database, requiring that incidental
takes of protected species be reported within 48 hours of the
occurrence. The PSIT generates automated messages to agency leadership
and other relevant staff and alerts them to the event and that updated
information describing the circumstances of the event have been
inputted into the database. It is in this spirit that we propose the
monitoring requirements described below.
Visual Monitoring
Marine mammal watches are a standard part of conducting fisheries
research activities and are implemented as described previously in the
Mitigation section. Dedicated marine mammal visual monitoring occurs as
described (1) for some period prior to deployment of most research
gear; (2) throughout deployment and active fishing of all research
gears; (3) for some period prior to retrieval of longline gear; and (4)
throughout retrieval of all research gear. This visual monitoring is
performed by trained NEFSC personnel or other trained crew during the
monitoring period. Observers record the species and estimated number of
animals present and their behaviors. This may provide valuable
information towards an understanding of whether certain species may be
attracted to vessels or certain survey gears. Separately, personnel on
watch (those navigating the vessel and other crew; these will typically
not be NEFSC personnel) monitor for marine mammals at all times when
the vessel is being operated. The primary focus for this type of watch
is to avoid striking marine mammals and to generally avoid navigational
hazards. These personnel on watch typically have other duties
associated with navigation and other vessel operations and are not
required to record or report to the scientific party data on marine
mammal sightings, except when gear is being deployed, soaking, or
retrieved or when marine mammals are observed in the path of the ship
during transit.
NEFSC will also monitor disturbance of hauled out pinnipeds
resulting from the presence of researchers, paying particular attention
to the distance at which pinnipeds are disturbed. Disturbance will be
recorded according to the three-point scale, representing increasing
seal response to disturbance, as shown in Table 15.
Training
NMFS considers the suite of monitoring and operational procedures
required through this rulemaking to be necessary to avoid adverse
interactions with protected species and still allow NEFSC to fulfill
its scientific missions. However, some mitigation measures such as the
move-on rule require judgments about the risk of gear interactions with
protected species and the best procedures for minimizing that risk on a
case-by-case basis. Vessel operators and Chief Scientists are charged
with making those judgments at sea. They are all highly experienced
professionals but there may be inconsistencies across the range of
research surveys conducted and funded by NEFSC in how those judgments
are made. In addition, some of the mitigation measures described above
could also be considered ``best practices'' for safe seamanship and
avoidance of hazards during fishing (e.g., prior surveillance of a
sample site before setting trawl gear). At least for some of the
research activities considered, explicit links between the
implementation of these best practices and their usefulness as
mitigation measures for avoidance of protected species may not have
been formalized and clearly communicated with all scientific parties
and vessel operators. NMFS therefore proposes a series of improvements
to NEFSC protected species training, awareness, and reporting
procedures. NMFS expects these new procedures will facilitate and
improve the implementation of the mitigation measures described above.
NEFSC will continue to use the process for its Chief Scientists and
vessel operators to communicate with each other about their experiences
with marine mammal interactions during research work with the goal of
improving decision-making regarding avoidance of adverse interactions.
As noted above, there are many situations where professional judgment
is used to decide the best course of action for avoiding marine mammal
interactions before and during the time research gear is in the water.
The intent of this mitigation measure is to draw on the collective
experience of people who have been making those decisions, provide a
forum for the exchange of information about what went right and what
went wrong, and try to determine
[[Page 58460]]
if there are any rules-of-thumb or key factors to consider that would
help in future decisions regarding avoidance practices. NEFSC would
coordinate not only among its staff and vessel captains but also with
those from other fisheries science centers and institutions with
similar experience.
NEFSC would also continue utilizing the formalized marine mammal
training program required for all NEFSC research projects and for all
crew members that may be posted on monitoring duty or handle
incidentally caught marine mammals. Training programs would be
conducted on a regular basis and would include topics such as
monitoring and sighting protocols, species identification, decision-
making factors for avoiding take, procedures for handling and
documenting marine mammals caught in research gear, and reporting
requirements. The Observer Program currently provides protected species
training (and other types of training) for NMFS-certified observers
placed on board commercial fishing vessels. NEFSC Chief Scientists and
appropriate members of NEFSC research crews will be trained using
similar monitoring, data collection, and reporting protocols for marine
mammal as is required by the Observer Program. All NEFSC research crew
members that may be assigned to monitor for the presence of marine
mammals during future surveys will be required to attend an initial
training course and refresher courses annually or as necessary. The
implementation of this training program would formalize and standardize
the information provided to all research crew that might experience
marine mammal interactions during research activities.
For all NEFSC research projects and vessels, written cruise
instructions and protocols for avoiding adverse interactions with
marine mammals will be reviewed and, if found insufficient, made fully
consistent with the Observer Program training materials and any
guidance on decision-making that arises out of the two training
opportunities described above. In addition, informational placards and
reporting procedures will be reviewed and updated as necessary for
consistency and accuracy. All NEFSC research cruises already include
pre-sail review of marine mammal protocols for affected crew but NEFSC
will also review its briefing instructions for consistency and
accuracy.
NEFSC will continue to coordinate with GARFO, NEFSC fishery
scientists, NOAA research vessel personnel, and other NMFS staff as
appropriate to review data collection, marine mammal interactions, and
refine data collection and mitigation protocols, as required. NEFSC
will also coordinate with NMFS' Office of Science and Technology to
ensure training and guidance related to handling procedures and data
collection is consistent with other fishery science centers, where
appropriate.
Reporting
NMFS has established a formal incidental take reporting system, the
Protected Species Incidental Take (PSIT) database, requiring that
incidental takes of protected species be reported within 48 hours of
the occurrence. The PSIT generates automated messages to NMFS
leadership and other relevant staff, alerting them to the event and to
the fact that updated information describing the circumstances of the
event has been inputted to the database. The PSIT and CS reports
represent not only valuable real-time reporting and information
dissemination tools but also serve as an archive of information that
may be mined in the future to study why takes occur by species, gear,
region, etc. The NEFSC is required to report all takes of protected
species, including marine mammals, to this database within 48 hours of
the occurrence and following standard protocol.
In the unanticipated event that NEFSC fisheries research activities
clearly cause the take of a marine mammal in a prohibited manner, NEFSC
personnel engaged in the research activity must immediately cease such
activity until such time as an appropriate decision regarding activity
continuation can be made by the NEFSC Director (or designee). The
incident must be reported immediately to OPR and the NMFS GARFO. OPR
will review the circumstances of the prohibited take and work with
NEFSC to determine what measures are necessary to minimize the
likelihood of further prohibited take and ensure MMPA compliance. The
immediate decision made by NEFSC regarding continuation of the
specified activity is subject to OPR concurrence. The report must
include the following information:
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) Description of the incident including, but not limited to,
monitoring prior to and occurring at time of the incident;
(iii) Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility);
(iv) Description of all marine mammal observations in the 24 hours
preceding the incident;
(v) Species identification or description of the animal(s)
involved;
(vi) Status of all sound source use in the 24 hours preceding the
incident;
(vii) Water depth;
(viii) Fate of the animal(s) (e.g., dead, injured but alive,
injured and moving, blood or tissue observed in the water, status
unknown, disappeared, etc.); and
(ix) Photographs or video footage of the animal(s).
In the event that NEFSC discovers an injured or dead marine mammal
and determines that the cause of the injury or death is unknown and the
death is relatively recent (e.g., in less than a moderate state of
decomposition), NEFSC must immediately report the incident to OPR and
the NMFS GARFO The report must include the information identified
above. Activities may continue while OPR reviews the circumstances of
the incident. OPR will work with NEFSC to determine whether additional
mitigation measures or modifications to the activities are appropriate.
In the event that NEFSC discovers an injured or dead marine mammal
and determines that the injury or death is not associated with or
related to NEFSC fisheries research activities (e.g., previously
wounded animal, carcass with moderate to advanced decomposition,
scavenger damage), NEFSC must report the incident to OPR and GARFO,
NMFS, within 24 hours of the discovery. NEFSC must provide photographs
or video footage or other documentation of the stranded animal sighting
to OPR.
In the event of a ship strike of a marine mammal by any NEFSC or
partner vessel involved in the activities covered by the authorization,
NEFSC or partner must immediately report the information described
above, as well as the following additional information:
(i) Vessel's speed during and leading up to the incident;
(ii) Vessel's course/heading and what operations were being
conducted;
(iii) Status of all sound sources in use;
(iv) Description of avoidance measures/requirements that were in
place at the time of the strike and what additional measures were
taken, if any, to avoid strike;
(v) Estimated size and length of animal that was struck; and
(vi) Description of the behavior of the marine mammal immediately
preceding and following the strike.
NEFSC will also collect and report all necessary data, to the
extent practicable given the primacy of human safety and the well-being
of captured or entangled marine mammals, to facilitate serious injury
(SI) determinations for marine
[[Page 58461]]
mammals that are released alive. NEFSC will require that the CS
complete data forms and address supplemental questions, both of which
have been developed to aid in SI determinations. NEFSC understands the
critical need to provide as much relevant information as possible about
marine mammal interactions to inform decisions regarding SI
determinations. In addition, the NEFSC will perform all necessary
reporting to ensure that any incidental M/SI is incorporated as
appropriate into relevant SARs.
Negligible Impact Analysis and Determination
Introduction--NMFS has defined negligible impact as an impact
resulting from the specified activity that cannot be reasonably
expected to, and is not reasonably likely to, adversely affect the
species or stock through effects on annual rates of recruitment or
survival (50 CFR 216.103). A negligible impact finding is based on the
lack of likely adverse effects on annual rates of recruitment or
survival (i.e., population-level effects). An estimate of the number of
takes alone is not enough information on which to base an impact
determination. In addition to considering estimates of the number of
marine mammals that might be ``taken'' by mortality, serious injury,
and Level A or Level B harassment, we consider other factors, such as
the likely nature of any behavioral responses (e.g., intensity,
duration), the context of any such responses (e.g., critical
reproductive time or location, migration), as well as effects on
habitat, and the likely effectiveness of mitigation. We also assess the
number, intensity, and context of estimated takes by evaluating this
information relative to population status. Consistent with the 1989
preamble for NMFS' implementing regulations (54 FR 40338; September 29,
1989), the impacts from other past and ongoing anthropogenic activities
are incorporated into this analysis via their impacts on the baseline
(e.g., as reflected in the regulatory status of the species, population
size and growth rate where known, ongoing sources of human-caused
mortality, and specific consideration of take by M/SI previously
authorized for other NMFS research activities).
We note here that the takes from potential gear interactions
enumerated below could result in non-serious injury, but their worst
potential outcome (mortality) is analyzed for the purposes of the
negligible impact determination. We discuss here the connection, and
differences, between the legal mechanisms for authorizing incidental
take under section 101(a)(5) for activities such as NEFSC's research
activities, and for authorizing incidental take from commercial
fisheries. In 1988, Congress amended the MMPA's provisions for
addressing incidental take of marine mammals in commercial fishing
operations. Congress directed NMFS to develop and recommend a new long-
term regime to govern such incidental taking (see MMC, 1994). The need
to develop a system suited to the unique circumstances of commercial
fishing operations led NMFS to suggest a new conceptual means and
associated regulatory framework. That concept, PBR, and a system for
developing plans containing regulatory and voluntary measures to reduce
incidental take for fisheries that exceed PBR were incorporated as
sections 117 and 118 in the 1994 amendments to the MMPA.
PBR is defined in section 3 of the MMPA (16 U.S.C. 1362(20)) as the
maximum number of animals, not including natural mortalities, that may
be removed from a marine mammal stock while allowing that stock to
reach or maintain its optimum sustainable population (OSP) and,
although not controlling, can be one measure considered among other
factors when evaluating the effects of M/SI on a marine mammal species
or stock during the section 101(a)(5)(A) process. OSP is defined in
section 3 of the MMPA (16 U.S.C. 1362(9)) as the number of animals
which will result in the maximum productivity of the population or the
species, keeping in mind the carrying capacity of the habitat and the
health of the ecosystem of which they form a constituent element.
Through section 2, an overarching goal of the statute is to ensure that
each species or stock of marine mammal is maintained at or returned to
its OSP.
PBR values are calculated by NMFS as the level of annual removal
from a stock that will allow that stock to equilibrate within OSP at
least 95 percent of the time, and is the product of factors relating to
the minimum population estimate of the stock (N<INF>min</INF>), 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 N<INF>min</INF> incorporates the precision and
variability associated with abundance information, while also providing
reasonable assurance that the stock size is equal to or greater than
the estimate (Barlow et al., 1995). In general, the three factors are
developed on a stock-specific basis in consideration of one another in
order to produce conservative PBR values that appropriately account for
both imprecision that may be estimated, as well as potential bias
stemming from lack of knowledge (Wade, 1998).
Congress called for PBR to be applied within the management
framework for commercial fishing incidental take under section 118 of
the MMPA. As a result, PBR cannot be applied appropriately outside of
the section 118 regulatory framework without consideration of how it
applies within the section 118 framework, as well as how the other
statutory management frameworks in the MMPA differ from the framework
in section 118. PBR was not designed and is not used as an absolute
threshold limiting commercial fisheries. Rather, it serves as a means
to evaluate the relative impacts of those activities on marine mammal
stocks. Even where commercial fishing is causing M/SI at levels that
exceed PBR, the fishery is not suspended. When M/SI exceeds PBR in the
commercial fishing context under section 118, NMFS may develop a take
reduction plan, usually with the assistance of a take reduction team.
The take reduction plan will include measures to reduce and/or minimize
the taking of marine mammals by commercial fisheries to a level below
the stock's PBR. That is, where the total annual human-caused M/SI
exceeds PBR, NMFS is not required to halt fishing activities
contributing to total M/SI but rather utilizes the take reduction
process to further mitigate the effects of fishery activities via
additional bycatch reduction measures. In other words, under section
118 of the MMPA, PBR does not serve as a strict cap on the operation of
commercial fisheries that may incidentally take marine mammals.
Similarly, to the extent PBR may be relevant when considering the
impacts of incidental take from activities other than commercial
fisheries, using it as the sole reason to deny (or issue) incidental
take authorization for those activities would be inconsistent with
Congress's intent under section 101(a)(5), NMFS' long-standing
regulatory definition of ``negligible impact,'' and the use of PBR
under section 118. The standard for authorizing incidental take for
activities other than commercial fisheries under section 101(a)(5)
continues to be, among other things that are not related to PBR,
whether the total taking will have a negligible impact on the species
or stock. Nowhere does section 101(a)(5)(A) reference use of PBR to
[[Page 58462]]
make the negligible impact finding or authorize incidental take through
multi-year regulations, nor does its companion provision at
101(a)(5)(D) for authorizing non-lethal incidental take under the same
negligible-impact standard. NMFS' MMPA implementing regulations state
that take has a negligible impact when it does not adversely affect the
species or stock through effects on annual rates of recruitment or
survival--likewise without reference to PBR. When Congress amended the
MMPA in 1994 to add section 118 for commercial fishing, it did not
alter the standards for authorizing non-commercial fishing incidental
take under section 101(a)(5), implicitly acknowledging that the
negligible impact standard under section 101(a)(5) is separate from the
PBR metric under section 118. In fact, in 1994 Congress also amended
section 101(a)(5)(E) (a separate provision governing commercial fishing
incidental take for species listed under the Endangered Species Act) to
add compliance with the new section 118 but retained the standard of
the negligible impact finding under section 101(a)(5)(A) (and section
101(a)(5)(D)), showing that Congress understood that the determination
of negligible impact and application of PBR may share certain features
but are, in fact, different.
Since the introduction of PBR in 1994, NMFS had used the concept
almost entirely within the context of implementing sections 117 and 118
and other commercial fisheries management-related provisions of the
MMPA. Prior to the Court's ruling in Conservation Council for Hawaii v.
National Marine Fisheries Service, 97 F. Supp. 3d 1210 (D. Haw. 2015)
and consideration of PBR in a series of section 101(a)(5) rulemakings,
there were a few examples where PBR had informed agency deliberations
under other MMPA sections and programs, such as playing a role in the
issuance of a few scientific research permits and subsistence takings.
But as the Court found when reviewing examples of past PBR
consideration in Georgia Aquarium v. Pritzker, 135 F. Supp. 3d 1280
(N.D. Ga. 2015), where NMFS had considered PBR outside the commercial
fisheries context, ``it has treated PBR as only one `quantitative tool'
and [has not used it] as the sole basis for its impact analyses.''
Further, the agency's thoughts regarding the appropriate role of PBR in
relation to MMPA programs outside the commercial fishing context have
evolved since the agency's early application of PBR to section
101(a)(5) decisions. Specifically, NMFS' denial of a request for
incidental take authorization for the U.S. Coast Guard in 1996
seemingly was based on the potential for lethal take in relation to PBR
and did not appear to consider other factors that might also have
informed the potential for ship strike in relation to negligible impact
(61 FR 54157; October 17, 1996).
The MMPA requires that PBR be estimated in SARs and that it be used
in applications related to the management of take incidental to
commercial fisheries (i.e., the take reduction planning process
described in section 118 of the MMPA and the determination of whether a
stock is ``strategic'' as defined in section 3), but nothing in the
statute requires the application of PBR outside the management of
commercial fisheries interactions with marine mammals. Nonetheless,
NMFS recognizes that as a quantitative metric, PBR may be useful as a
consideration when evaluating the impacts of other human-caused
activities on marine mammal stocks. Outside the commercial fishing
context, and in consideration of all known human-caused mortality, PBR
can help inform the potential effects of M/SI requested to be
authorized under 101(a)(5)(A). As noted by NMFS and the U.S. Fish and
Wildlife Service in our implementation regulations for the 1986
amendments to the MMPA (54 FR 40341, September 29, 1989), the Services
consider many factors, when available, in making a negligible impact
determination, including, but not limited to, the status of the species
or stock relative to OSP (if known); whether the recruitment rate for
the species or stock is increasing, decreasing, stable, or unknown; the
size and distribution of the population; and existing impacts and
environmental conditions. In this multi-factor analysis, PBR can be a
useful indicator for when, and to what extent, the agency should take
an especially close look at the circumstances associated with the
potential mortality, along with any other factors that could influence
annual rates of recruitment or survival.
When considering PBR during evaluation of effects of M/SI under
section 101(a)(5)(A), we first calculate a metric for each species or
stock that incorporates information regarding ongoing anthropogenic M/
SI into the PBR value (i.e., PBR minus the total annual anthropogenic
mortality/serious injury estimate in the SAR), which is called
``residual PBR'' (Wood et al., 2012). We first focus our analysis on
residual PBR because it incorporates anthropogenic mortality occurring
from other sources. If the ongoing human-caused mortality from other
sources does not exceed PBR, then residual PBR is a positive number,
and we consider how the anticipated or potential incidental M/SI from
the activities being evaluated compares to residual PBR using the
framework in the following paragraph. If the ongoing anthropogenic
mortality from other sources already exceeds PBR, then residual PBR is
a negative number and we consider the M/SI from the activities being
evaluated as described further below.
When ongoing total anthropogenic mortality from the applicant's
specified activities does not exceed PBR and residual PBR is a positive
number, as a simplifying analytical tool we first consider whether the
specified activities could cause incidental M/SI that is less than 10
percent of residual PBR (the ``insignificance threshold,'' see below).
If so, we consider M/SI from the specified activities to represent an
insignificant incremental increase in ongoing anthropogenic M/SI for
the marine mammal stock in question that alone (i.e., in the absence of
any other take) will not adversely affect annual rates of recruitment
and survival. As such, this amount of M/SI would not be expected to
affect rates of recruitment or survival in a manner resulting in more
than a negligible impact on the affected stock unless there are other
factors that could affect reproduction or survival, such as Level A
and/or Level B harassment, or other considerations such as information
that illustrates uncertainty involved in the calculation of PBR for
some stocks. In a few prior incidental take rulemakings, this threshold
was identified as the ``significance threshold,'' but it is more
accurately labeled an insignificance threshold, and so we use that
terminology here. Assuming that any additional incidental take by Level
A or Level B harassment from the activities in question would not
combine with the effects of the authorized M/SI to exceed the
negligible impact level, the anticipated M/SI caused by the activities
being evaluated would have a negligible impact on the species or stock.
However, M/SI above the 10 percent insignificance threshold does not
indicate that the M/SI associated with the specified activities is
approaching a level that would necessarily exceed negligible impact.
Rather, the 10 percent insignificance threshold is meant only to
identify instances where additional analysis of the anticipated M/SI is
not required because the negligible impact standard clearly will not be
exceeded on that basis alone.
[[Page 58463]]
Where the anticipated M/SI is near, at, or above residual PBR,
consideration of other factors (positive or negative), including those
outlined above, as well as mitigation is especially important to
assessing whether the M/SI will have a negligible impact on the species
or stock. PBR is a conservative metric and not sufficiently precise to
serve as an absolute predictor of population effects upon which
mortality caps would appropriately be based. For example, in some cases
stock abundance (which is one of three key inputs into the PBR
calculation) is underestimated because marine mammal survey data within
the U.S. Exclusive Economic Zone (EEZ) are used to calculate the
abundance even when the stock range extends well beyond the U.S. EEZ.
An underestimate of abundance could result in an underestimate of PBR.
Alternatively, we sometimes may not have complete M/SI data beyond the
U.S. EEZ to compare to PBR, which could result in an overestimate of
residual PBR. The accuracy and certainty around the data that feed any
PBR calculation, such
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.