(a) Regulations in this subpart apply only to the National Marine Fisheries Service's (NMFS) Southwest Fisheries Science Center (SWFSC) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs incidental to research survey program operations.

(b) The taking of marine mammals by SWFSC may be authorized in a Letter of Authorization (LOA) only if it occurs within the California Current Ecosystem (CCE) or Antarctic Marine Living Resources Ecosystem (AMLR).

Regulations in this subpart are effective from January 15, 2021 through January 15, 2026.

Under LOAs issued pursuant to §§ 216.106 of this chapter and 219.7, the Holder of the LOA (hereinafter “SWFSC”) may incidentally, but not intentionally, take marine mammals within the area described in § 219.1(b) by Level B harassment associated with use of active acoustic systems and physical or visual disturbance of hauled-out pinnipeds and by Level A harassment, serious injury, or mortality associated with use of fisheries research gear, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.

(a) Notwithstanding takings contemplated in § 219.1 and authorized by a LOA issued under §§ 216.106 of this chapter and 219.7, no person in connection with the activities described in § 219.1 may:

(1) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 of this chapter and 219.7;

(2) Take any marine mammal not specified in such LOA;

(3) Take any marine mammal specified in such LOA in any manner other than as specified;

(4) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or

(5) Take a marine mammal specified in such LOA if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.

(b) [Reserved]

When conducting the activities identified in § 219.1(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 219.7 must be implemented.

(a) General conditions. (1) SWFSC must take all necessary measures to coordinate and communicate in advance of each specific survey with the National Oceanic and Atmospheric Administration's (NOAA) Office of Marine and Aviation Operations (OMAO) or other relevant parties on non-NOAA platforms 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.

(2) SWFSC must coordinate and conduct briefings at the outset of each survey and as necessary between ship's crew (Commanding Officer/master or designee(s), as appropriate) and scientific party in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.

(3) SWFSC must coordinate as necessary on a daily basis during survey cruises with OMAO personnel or other relevant personnel on non-NOAA platforms to ensure that requirements, procedures, and decision-making processes are understood and properly implemented.

(4) When deploying any type of sampling gear at sea, SWFSC must at all times monitor for any unusual circumstances that may arise at a sampling site and use best professional judgment to avoid any potential risks to marine mammals during use of all research equipment.

(5) SWFSC must implement handling and/or disentanglement protocols as specified in guidance provided to SWFSC survey personnel.

(b) Trawl survey protocols. (1) SWFSC must conduct trawl operations as soon as is practicable upon arrival at the sampling station.

(2) SWFSC must initiate marine mammal watches (visual observation) at least 15 minutes prior to beginning of net deployment (or for the amount of time to travel between stations if less than 15 minutes) but must also conduct monitoring during any pre-set activities including CTD casts and plankton or bongo net hauls.

(3) In the CCE, SWFSC must implement the move-on rule mitigation protocol, as described in this paragraph. If one or more marine mammals, with the exception of baleen whales, are observed within 1 nautical mile (nmi) of the planned sampling location during the visual observation period, SWFSC must move on to another sampling location. If, after moving on, marine mammals remain within 1 nmi, the SWFSC must move again or skip the station. SWFSC may use best professional judgment in making these decisions but may not elect to conduct trawl survey activity when marine mammals other than baleen whales remain within the 1-nmi zone.

(4) SWFSC must maintain visual monitoring effort during the entire period of time that trawl gear is in the water (i.e., throughout gear deployment, fishing, and retrieval). If marine mammals are sighted before the gear is fully removed from the water, SWFSC must take the most appropriate action to avoid marine mammal interaction. SWFSC may use best professional judgment in making this decision.

(5) If trawling operations have been suspended because of the presence of marine mammals, SWFSC may resume trawl operations when practicable only when the animals are believed to have departed the 1 nmi area. SWFSC may use best professional judgment in making this determination.

(6) SWFSC must implement standard survey protocols to minimize potential for marine mammal interactions, including maximum tow durations at target depth and maximum tow distance, and shall carefully empty the trawl as quickly as possible upon retrieval. Trawl nets must be cleaned prior to deployment.

(7) SWFSC must install and use a marine mammal excluder device at all times when the Nordic 264 trawl net or any other net is used for which the device is appropriate.

(8) SWFSC must install and use acoustic deterrent devices whenever any midwater trawl net is used, with two to four devices placed along the footrope and/or headrope of the net. SWFSC must ensure that the devices are operating properly before deploying the net.

(c) Pelagic longline survey protocols. (1) SWFSC must deploy longline gear as soon as is practicable upon arrival at the sampling station.

(2) SWFSC must initiate marine mammal watches (visual observation) no less than 15 minutes (or for the duration of transit between locations, if shorter than 15 minutes) prior to both deployment and retrieval of longline gear.

(3) SWFSC must implement the move-on rule mitigation protocol, as described in this paragraph. If one or more marine mammals, with the exception of groups of five or fewer California sea lions, are observed within 1 nmi of the planned sampling location during the visual observation period, SWFSC must move on to another sampling location. If, after moving on, marine mammals remain within 1 nmi, the SWFSC must move again or skip the station. SWFSC may use best professional judgment in making these decisions but may not elect to conduct pelagic longline survey activity when animals remain within the 1-nmi zone.

(4) SWFSC must maintain visual monitoring effort during the entire period of gear deployment and retrieval. If marine mammals are sighted before the gear is fully deployed or retrieved, SWFSC must take the most appropriate action to avoid marine mammal interaction. SWFSC may use best professional judgment in making this decision.

(5) If deployment or retrieval operations have been suspended because of the presence of marine mammals, SWFSC may resume such operations when practicable only when the animals are believed to have departed the 1 nmi area. SWFSC may use best professional judgment in making this decision.

(6) SWFSC must implement standard survey protocols, including maximum soak durations and a prohibition on chumming.

(d) Purse seine survey protocols. (1) SWFSC must conduct purse seine operations as soon as is practicable upon arrival at the sampling station.

(2) SWFSC must conduct marine mammal watches (visual observation) prior to beginning of net deployment.

(3) SWFSC must implement the move-on rule mitigation protocol, as described in this paragraph for use of purse seine gear. If one or more killer whales or small cetaceans (i.e., dolphin or porpoise) or five or more pinnipeds are observed within 500 m of the planned sampling location before setting the purse seine gear, SWFSC must either remain onsite or move on to another sampling location. If remaining onsite, the set must be delayed. If the animals depart or appear to no longer be at risk of interacting with the vessel or gear, a further observation period must be conducted. If no further observations are made or the animals still do not appear to be at risk of interaction, then the set may be made. If the vessel is moved to a different area, the move-on rule mitigation protocol would begin anew. If, after moving on, marine mammals remain at risk of interaction, the SWFSC must move again or skip the station. Marine mammals that are sighted further than 500 m from the vessel must be monitored to determine their position and movement in relation to the vessel to determine whether the move-on rule mitigation protocol should be implemented. SWFSC may use best professional judgment in making these decisions.

(4) SWFSC must maintain visual monitoring effort during the entire period of time that purse seine gear is in the water (i.e., throughout gear deployment, fishing, and retrieval). If marine mammals are sighted before the gear is fully removed from the water, SWFSC must take the most appropriate action to avoid marine mammal interaction. SWFSC may use best professional judgment in making this decision.

(5) If purse seine operations have been suspended because of the presence of marine mammals, SWFSC may resume seine operations when practicable only when the animals are believed to have departed the area. SWFSC may use best professional judgment in making this determination.

(6) If any cetaceans are observed in a purse seine net, SWFSC must immediately open the net and free the animals.

(a) Compliance coordinator. SWFSC must designate a compliance coordinator who shall be responsible for ensuring compliance with all requirements of any LOA issued pursuant to § 216.106 of this chapter and § 219.7 and for preparing for any subsequent request(s) for incidental take authorization.

(b) Visual monitoring program. (1) Marine mammal visual monitoring must occur prior to deployment of trawl, hook and line, and purse seine gear, respectively; throughout deployment of gear and active fishing of research gears (not including longline soak time); prior to retrieval of longline gear; and throughout retrieval of all research gear.

(2) Marine mammal watches must be conducted by watch-standers (those navigating the vessel and/or other crew) at all times when the vessel is being operated.

(3) SWFSC must monitor any potential disturbance of pinnipeds on ice, paying particular attention to the distance at which different species of pinniped are disturbed. Disturbance must be recorded according to a three-point scale representing increasing seal response to disturbance.

(c) Training. (1) SWFSC must conduct annual training for all chief scientists and other personnel who may be responsible for conducting dedicated marine mammal visual observations to explain mitigation measures and monitoring and reporting requirements, mitigation and monitoring protocols, marine mammal identification, completion of datasheets, and use of equipment. SWFSC may determine the agenda for these trainings.

(2) SWFSC must also dedicate a portion of training to discussion of best professional judgment, including use in any incidents of marine mammal interaction and instructive examples where use of best professional judgment was determined to be successful or unsuccessful.

(3) SWFSC must coordinate with NMFS' Northwest Fisheries Science Center (NWFSC) regarding surveys conducted in the CCE, such that training and guidance related to handling procedures and data collection is consistent.

(d) Handling procedures and data collection. (1) SWFSC must implement standardized marine mammal handling, disentanglement, and data collection procedures. These standard procedures will be subject to approval by NMFS's Office of Protected Resources (OPR).

(2) When practicable, for any marine mammal interaction involving the release of a live animal, SWFSC must collect necessary data to facilitate a serious injury determination.

(3) SWFSC must provide its relevant personnel with standard guidance and training regarding handling of marine mammals, including how to identify different species, bring an individual aboard a vessel, assess the level of consciousness, remove fishing gear, return an individual to water, and log activities pertaining to the interaction.

(4) SWFSC must record such data on standardized forms, which will be subject to approval by OPR. SWFSC must also answer a standard series of supplemental questions regarding the details of any marine mammal interaction.

(e) Reporting. (1) SWFSC must report all incidents of marine mammal interaction to NMFS's Protected Species Incidental Take database within 48 hours of occurrence and must provide supplemental information to OPR upon request. Information related to marine mammal interaction (animal captured or entangled in research gear) must include details of survey effort, full descriptions of any observations of the animals, the context (vessel and conditions), decisions made, and rationale for decisions made in vessel and gear handling.

(2) SWFSC must submit annual reports including:

(i) An annual summary report to OPR not later than 90 days following the end of a given year. SWFSC must provide a final report within 30 days following resolution of comments on the draft report.

(ii) These reports must contain, at minimum, the following:

(A) Annual line-kilometers surveyed during which predominant active acoustic sources were used;

(B) Summary information regarding use of all hook and line, purse seine, and trawl gear, including number of sets, hook hours, tows, etc., specific to each gear;

(C) Accounts of all incidents of significant marine mammal interactions, including circumstances of the event and descriptions of any mitigation procedures implemented or not implemented and why, and, for interactions due to use of pelagic longline or purse seine, whether the move-on rule was waived due to the presence of five or fewer California sea lions;

(D) Summary information related to any on-ice disturbance of pinnipeds, including raw sightings data and the event-specific total counts of animals present, counts of reactions according to a three-point scale of response severity and numbers of takes (differentiated by species and age class), the distance at which a pinniped is disturbed and the closest point of approach for each disturbance event;

(E) A written evaluation of the effectiveness of SWFSC mitigation strategies in reducing the number of marine mammal interactions with survey gear, including best professional judgment and suggestions for changes to the mitigation strategies, if any;

(F) Final outcome of serious injury determinations for all incidents of marine mammal interactions where the animal(s) were released alive; and

(G) A summary of all relevant training provided by SWFSC and any coordination with NWFSC or NMFS' West Coast Regional Office.

(f) Reporting of injured or dead marine mammals. (1) In the event that personnel involved in the survey activities covered by the authorization discover an injured or dead marine mammal, SWFSC must report the incident to OPR and to the appropriate West Coast Regional Stranding Coordinator as soon as feasible. The report must include the following information:

(i) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);

(ii) Species identification (if known) or description of the animal(s) involved;

(iii) Condition of the animal(s) (including carcass condition if the animal is dead);

(iv) Observed behaviors of the animal(s), if alive;

(v) If available, photographs or video footage of the animal(s); and

(vi) General circumstances under which the animal was discovered.

(2) In the event of a ship strike of a marine mammal by any vessel involved in the activities covered by the authorization, SWFSC must report the incident to OPR and to the appropriate West Coast Regional Stranding Coordinator as soon as feasible. The report must include the following information:

(i) Time, date, and location (latitude/longitude) of the incident;

(ii) Species identification (if known) or description of the animal(s) involved;

(iii) Vessel's speed during and leading up to the incident;

(iv) Vessel's course/heading and what operations were being conducted (if applicable);

(v) Status of all sound sources in use;

(vi) 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;

(vii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility) immediately preceding the strike;

(viii) Estimated size and length of animal that was struck;

(ix) Description of the behavior of the marine mammal immediately preceding and following the strike;

(x) If available, description of the presence and behavior of any other marine mammals immediately preceding the strike;

(xi) Estimated fate of the animal (e.g., dead, injured but alive, injured and moving, blood or tissue observed in the water, status unknown, disappeared); and

(xii) To the extent practicable, photographs or video footage of the animal(s).

(a) To incidentally take marine mammals pursuant to these regulations, SWFSC must apply for and obtain an LOA.

(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.

(c) If an LOA expires prior to the expiration date of these regulations, SWFSC may apply for and obtain a renewal of the LOA.

(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, SWFSC must apply for and obtain a modification of the LOA as described in § 219.8.

(e) The LOA shall set forth:

(1) Permissible methods of incidental taking;

(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and

(3) Requirements for monitoring and reporting.

(f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.

(g) Notice of issuance or denial of an LOA shall be published in the Federal Register within thirty days of a determination.

(a) An LOA issued under §§ 216.106 of this chapter and 219.7 for the activity identified in § 219.1(a) shall be renewed or modified upon request by the applicant, provided that:

(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and

(2) OPR determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.

(b) For an LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), OPR may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.

(c) An LOA issued under §§ 216.106 of this chapter and 219.7 for the activity identified in § 219.1(a) may be modified by OPR under the following circumstances:

(1) OPR may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with SWFSC regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations.

(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:

(A) Results from SWFSC's monitoring from the previous year(s);

(B) Results from other marine mammal and/or sound research or studies;

(C) Any information that reveals marine mammals may have been taken in a manner; and extent or number not authorized by these regulations or subsequent LOAs.

(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, OPR will publish a notice of proposed LOA in the Federal Register and solicit public comment.

(2) If OPR determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 219.7, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within thirty days of the action.