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Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules developed to aid in SI determinations.
NEFSC understands the critical need to provide as much relevant information as possible about marine mammal interactions to inform decisions regarding SI determinations. In addition, the NEFSC will perform all necessary reporting to ensure that any incidental M/SI is incorporated as appropriate into relevant SARs.
Negligible Impact Analysis and Determination IntroductionNMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival 50 CFR 216.103. A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival i.e., populationlevel effects. An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be taken by mortality, serious injury, and Level A
or Level B harassment, we consider other factors, such as the likely nature of any behavioral responses e.g., intensity, duration, the context of any such responses e.g., critical reproductive time or location, migration, as well as effects on habitat, and the likely effectiveness of mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS implementing regulations 54 FR 40338; September 29, 1989, the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the baseline e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, and specific consideration of take by M/SI
previously authorized for other NMFS
research activities.
We note here that the takes from potential gear interactions enumerated below could result in non-serious injury, but their worst potential outcome mortality is analyzed for the purposes of the negligible impact determination. We discuss here the connection, and differences, between the legal mechanisms for authorizing incidental take under section 101a5
for activities such as NEFSCs research activities, and for authorizing incidental take from commercial fisheries. In 1988,
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Congress amended the MMPAs 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. 136220 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 101a5A process. OSP is defined in section 3 of the MMPA 16
U.S.C. 13629 as the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element.
Through section 2, an overarching goal of the statute is to ensure that each species or stock of marine mammal is maintained at or returned to its OSP.
PBR values are calculated by NMFS as the level of annual removal from a stock that will allow that stock to equilibrate within OSP at least 95 percent of the time, and is the product of factors relating to the minimum population estimate of the stock Nmin, the productivity rate of the stock at a small population size, and a recovery factor.
Determination of appropriate values for these three elements incorporates significant precaution, such that application of the parameter to the management of marine mammal stocks may be reasonably certain to achieve the goals of the MMPA. For example, calculation of Nmin incorporates the precision and variability associated with abundance information, while also providing reasonable assurance that the stock size is equal to or greater than the estimate Barlow et al., 1995. In general, the three factors are developed on a stock-specific basis in consideration of one another in order to produce conservative PBR values that
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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 stocks 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 Congresss intent under section 101a5, 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 101a5 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 101a5A reference use of PBR to make the negligible impact finding or authorize incidental take through multiyear regulations, nor does its companion provision at 101a5D for authorizing
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