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Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules
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 survivallikewise 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 101a5, implicitly acknowledging that the negligible impact standard under section 101a5 is separate from the PBR metric under section 118. In fact, in 1994 Congress also amended section 101a5E 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 101a5A and section 101a5D, showing that Congress understood that the determination of negligible impact and application of PBR may share certain features but are, in fact, different.
Since the introduction of PBR in 1994, NMFS had used the concept almost entirely within the context of implementing sections 117 and 118 and other commercial fisheries managementrelated provisions of the MMPA. Prior to the Courts 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 101a5
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 agencys thoughts regarding the appropriate role of PBR in relation to MMPA programs outside the commercial fishing context have evolved since the agencys early application of PBR to section 101a5
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
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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 101a5A. 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 101a5A, 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 humancaused mortality from other sources does not exceed PBR, then residual PBR
is a positive number, and we consider how the anticipated or potential
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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 applicants 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.
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
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