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Federal Register / Vol. 86, No. 106 / Friday, June 4, 2021 / Proposed Rules 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. 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 as the abundance estimates, must be carefully considered to evaluate whether the calculated PBR
accurately reflects the circumstances of the particular stock. M/SI that exceeds PBR may still potentially be found to be negligible in light of other factors that offset concern, especially when robust mitigation and adaptive management provisions are included.
PBR was designed as a tool for evaluating mortality and is defined as the number of animals that can be removed while allowing that stock to reach or maintain its OSP. OSP is defined as a population that falls within a range from the population level that is the largest supportable within the ecosystem to the population level that results in maximum net productivity, and thus is an aspirational management goal of the overall statute with no specific timeframe by which it should be met. PBR is designed to ensure minimal deviation from this overarching goal, with the formula for PBR typically ensuring that growth towards OSP is not reduced by more than 10 percent or equilibrates to OSP 95 percent of the time. As PBR is applied by NMFS, it provides that growth toward OSP is not reduced by more than 10 percent, which certainly allows a stock to reach or maintain its OSP in a conservative and precautionary mannerand we can therefore clearly conclude that if PBR
were not exceeded, there would not be adverse effects on the affected species or stocks. Nonetheless, it is equally clear that in some cases the time to reach this aspirational OSP level could be slowed by more than 10 percent i.e., total human-caused mortality in excess of PBR could be allowed without adversely affecting a species or stock through effects on its rates of
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recruitment or survival. Thus even in situations where the inputs to calculate PBR are thought to accurately represent factors such as the species or stocks abundance or productivity rate, it is still possible for incidental take to have a negligible impact on the species or stock even where M/SI exceeds residual PBR
or PBR.
PBR is helpful in informing the analysis of the effects of mortality on a species or stock because it is important from a biological perspective to be able to consider how the total mortality in a given year may affect the population.
However, section 101a5A of the MMPA indicates that NMFS shall authorize the requested incidental take from a specified activity if we find that the total of such taking i.e., from the specified activity will have a negligible impact on such species or stock. In other words, the task under the statute is to evaluate the applicants anticipated take in relation to their takes impact on the species or stock, not other entities impacts on the species or stock. Neither the MMPA nor NMFS implementing regulations call for consideration of other unrelated activities and their impacts on the species or stock. In fact, in response to public comments on the implementing regulations NMFS
explained that such effects are not considered in making negligible impact findings under section 101a5, although the extent to which a species or stock is being impacted by other anthropogenic activities is not ignored.
Such effects are reflected in the baseline of existing impacts as reflected in the species or stocks abundance, distribution, reproductive rate, and other biological indicators.
Our evaluation of the M/SI for each of the species and stocks for which M/SI
could occur follows. In addition, all mortality authorized for some of the same species or stocks over the next several years pursuant to our final rulemakings for the NMFS Southeast Fisheries Science Center SEFSC and U.S. Navy has been incorporated into the residual PBR. By considering the maximum potential incidental M/SI in relation to PBR and ongoing sources of anthropogenic mortality, we begin our evaluation of whether the potential incremental addition of M/SI through NEFSC research activities may affect the species or stocks annual rates of recruitment or survival. We also consider the interaction of those mortalities with incidental taking of that species or stock by harassment pursuant to the specified activity.
We first consider maximum potential incidental M/SI for each stock Table 10 in consideration of NMFSs
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threshold for identifying insignificant M/SI take 10 percent of residual PBR
69 FR 43338; July 20, 2004. By considering the maximum potential incidental M/SI in relation to PBR and ongoing sources of anthropogenic mortality, we begin our evaluation of whether the potential incremental addition of M/SI through NEFSC
research activities may affect the species or stocks annual rates of recruitment or survival. We also consider the interaction of those mortalities with incidental taking of that species or stock by harassment pursuant to the specified activity.
Summary of Estimated Incidental Take Here we provide a summary of the total incidental take authorization on an annual basis, as well as other information relevant to the negligible impact analysis. Table 19 shows information relevant to our negligible impact analysis concerning the annual amount of M/SI take that could occur for each stock when considering the proposed incidental take along with other sources of M/SI. As noted previously, although some gear interactions may result in Level A
harassment or the release of an uninjured animal, for the purposes of the negligible impact analysis, we assume that all of these takes could potentially be in the form of M/SI.
We previously authorized take of marine mammals incidental to fisheries research operations conducted by the SEFSC see 85 FR 27028, May 6, 2020
and U.S. Navy 84 FR 70712, December 23, 2019. This take would occur to some of the same stocks for which we may authorize take incidental to NEFSC
fisheries research operations. Therefore, in order to evaluate the likely impact of the take by M/SI in this rule, we consider not only other ongoing sources of human-caused mortality but the potential mortality authorized for SEFSC fisheries and ecosystem research and U.S. Navy testing and training in the Atlantic Ocean. As used in this document, other ongoing sources of human-caused anthropogenic mortality refers to estimates of realized or actual annual mortality reported in the SARs and does not include authorized or unknown mortality.
Below, we consider the total taking by M/SI for NEFSC activities and previously authorized for SEFSC and Navy activities together to produce a maximum annual M/SI take level including take of unidentified marine mammals that could accrue to any relevant stock and compare that value to the stocks PBR value, considering ongoing sources of anthropogenic
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