Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Pacific Islands Fisheries Science Center Fisheries Research

<RULE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 219</CFR> <DEPDOC>[Docket No. 250505-0076]</DEPDOC> <RIN>RIN 0648-BG31</RIN> <SUBJECT>Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Pacific Islands Fisheries Science Center Fisheries Research</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Final rule; notice of issuance of letter of authorization. <SUM> <HD SOURCE="HED">SUMMARY:</HD> NMFS' Office of Protected Resources (OPR), upon request from NMFS' Pacific Islands Fisheries Science Center (PIFSC), 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 (LOAs) 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 PIFSC for the effective period of the final rule. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Effective May 16, 2025, the sunset date of January 15, 2026, for part 219 added at 86 FR 3868, Jan. 15, 2021, is removed. This rule is effective as of May 16, 2025, except for amendatory instruction 4, which is effective from May 16, 2025 through May 15, 2030. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> A copy of PIFSC's application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: <E T="03">www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-pifsc-fisheries-and-ecosystem-research.</E> In case of problems accessing these documents, please call the contact listed below. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Benjamin Laws, Office of Protected Resources, NMFS, (301) 427-8401. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Availability</HD> A copy of PIFSC's application and any supporting documents, as well as a list of the references cited in this document, may be obtained online at: <E T="03">https://www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-pifsc-fisheries-and-ecosystem-research.</E> In case of problems accessing these documents, please call the contact listed above (see <E T="02">FOR FURTHER INFORMATION CONTACT</E> ). <HD SOURCE="HD1">Purpose and Need for Regulatory Action</HD> These regulations establish a framework under the authority of the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1361 <E T="03">et seq.</E> ) to allow for the authorization of take of marine mammals incidental to the PIFSC's fisheries research activities in the Hawaiian Archipelago, Mariana Archipelago, American Samoa Archipelago, and Western and Central Pacific Ocean. We received an application from the PIFSC requesting 5-year regulations and an LOA 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, 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. <HD SOURCE="HD2">Legal Authority for the Final Action</HD> 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. <HD SOURCE="HD2">Summary of Major Provisions Within the Regulations</HD> Following is a summary of the major provisions of this final rule regarding PIFSC fisheries research activities. These measures include, but are not limited to: • Monitoring the sampling areas to detect the presence of marine mammals before and during deployment of certain research gear; • Delaying setting or haul in gear if marine mammal interaction may occur; • Hauling gear immediately if marine mammals may interact with gear; and • Implementing the mitigation strategy known as the “move-on rule,” which incorporates best professional judgment, when necessary during certain research fishing operations. <HD SOURCE="HD1">Background</HD> 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 <E T="03">et seq.</E> ) 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 set forth requirements pertaining to the mitigation, monitoring and reporting of the takings. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below. <HD SOURCE="HD1">Summary of Request</HD> On November 30, 2015, we received an adequate and complete application from PIFSC requesting authorization to take small numbers of marine mammals incidental to fisheries research activities. On December 7, 2015 (80 FR 75997), we published a notice of receipt of PIFSC's application in the <E T="04">Federal Register</E> , requesting comments and information related to the PIFSC request. The public comment period was open for 30 days, from December 7, 2015, through January 1, 2016. We received joint comments from The Humane Society of the United States and Whale and Dolphin Conservation (HSUS/WDC). These comments were considered in development of the proposed rule and are available online at: <E T="03">https://www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-pifsc-fisheries-and-ecosystem-research.</E> In accordance with the MMPA, we published a notice of proposed rulemaking in the <E T="04">Federal Register</E> on March 22, 2021 (86 FR 15298), and requested comments and information from the public. The public comment period was open for thirty days, from March 22, 2021, through April 21, 2021. We did not receive any comments on the proposed rule. As explained below, subsequent to the publication of the proposed rule, PIFSC advised NMFS of an additional research program that was not identified in the proposed rule. Despite the time that has elapsed since the PIFSC's application was initially received and publication of the proposed rule and although the additional research program was not identified in the proposed rule, we believe it is unnecessary to engage in another round of notice and comments because the description of the specified activity that can be expected to result in incidental take of marine mammals, the type of incidental take authorization that is being requested, the method of incidental take, and the anticipated impact of the activity on the species or stock of marine mammals remains unchanged. Further, new science and information necessary to evaluate this application that has become available since the PIFSC submitted their application has been considered and is addressed in this rule. NMFS has reviewed newly available information since publication of the proposed rule for comment, including updated SARs and scientific literature, and determined that there is no new information that would warrant new solicitation of public comment. PIFSC plans to conduct fisheries research using trawl gear used at various levels in the water column, hook-and-line gear (including longlines with multiple hooks, bottomfishing, and trolling), and deployed instruments (including various traps). If a marine mammal interacts with gear deployed by PIFSC, the outcome could potentially be Level A harassment, serious ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 295k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━