Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Boom Exercise Drills at Point Mugu, California, 47559-47563 [E9-22329]

Download as PDF Federal Register / Vol. 74, No. 178 / Wednesday, September 16, 2009 / Notices International Trade & Industries Co., Ltd.; and Xingtai Coal Chemical Co., Ltd. With the exception of CCT, which withdrew its request for review, as noted above, Petitioners were the only party to request a review of these companies. Partial Rescission Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an administrative review, in whole or in part, if a party who requested the review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review. CCT and Petitioners’ requests were submitted within the 90-day period, and thus are timely. Because CCT and Petitioners’ withdrawal of requests for review are timely and because there is no longer a review request for the above–mentioned companies, in accordance with 19 CFR 351.213(d)(1), we are rescinding this review with respect to the above listed companies. srobinson on DSKHWCL6B1PROD with NOTICES Assessment Rates The Department will instruct U.S. Customs and Border Protection (‘‘CBP’’) to assess antidumping duties on all appropriate entries. For those companies for which this review has been rescinded and which have a separate rate, antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(2). The Department intends to issue appropriate assessment instructions directly to CBP 15 days after publication of this notice. Notification to Importers This notice serves as a final reminder to importers for whom this review is being rescinded, as of the publication date of this notice, of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary’s presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of double antidumping duties. Notification Regarding Administrative Protective Orders This notice also serves as a reminder to parties subject to administrative protective orders (‘‘APO’’) of their responsibility concerning the return or VerDate Nov<24>2008 17:40 Sep 15, 2009 Jkt 217001 destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction. This notice is issued and published in accordance with section 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4). Dated: September 8, 2009. John M. Andersen, Acting Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations. [FR Doc. E9–22337 Filed 9–16–04; 8:45 am] BILLING CODE 3510–DS–S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Availability of Seats for the Stellwagen Bank National Marine Sanctuary Advisory Council AGENCY: Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration, Department of Commerce (DOC) ACTION: Notice and request for applications. The ONMS is seeking applicants for the following seats on The Stellwagen Bank National Marine Sanctuary Advisory Council (Council): Member and Alternate three-year terms for (1) Research; (1) Conservation; (1) Education; (1) Marine Transportation; (1) Recreational Fishing; (1) Mobile Gear Commercial Fishing; (1) At-Large, and (1) At-Large (Member only). Additionally seeking applications for two-year term (1) Education (Member) and (1) Conservation (Alternate) seats. Applicants are chosen based upon their particular expertise and experience in relation to the seat for which they are applying; community and professional affiliations; philosophy regarding the protection and management of marine resources; and possibly the length of residence in the area affected by the sanctuary. Applicants who are chosen as members should expect to serve two and three year terms, pursuant to the Council’s Charter. The Council consists also of three state and three Federal non voting ex-officio seats. SUMMARY: PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 47559 DATES: Applications are due by 18 December 2009. ADDRESSES: Application kits may be obtained from Elizabeth.Stokes@noaa.gov, Stellwagen Bank National Marine Sanctuary, 175 Edward Foster Road, Scituate, MA 02066. Telephone 781–545–8026, ext. 201. Completed applications should be sent to the same address or e-mail, or faxed to 781–545–8036. FOR FURTHER INFORMATION CONTACT: Nathalie.Ward@noaa.gov, External Affairs Coordinator, telephone: 781– 545–8026, ext. 206. SUPPLEMENTARY INFORMATION: The Council was established in March 2001 to assure continued public participation in the management of the Sanctuary. The Council’s 23 members represent a variety of local user groups, as well as the general public, plus seven local, state and Federal government agencies. Since its establishment, the Council has played a vital role in advising NOAA on critical issues and is currently focused on the sanctuary’s final five-year Management Plan. The Stellwagen Bank National Marine Sanctuary encompasses 842 square miles of ocean, stretching between Cape Ann and Cape Cod. Renowned for its scenic beauty and remarkable productivity, the sanctuary supports a rich diversity of marine life including 22 species of marine mammals, more than 30 species of seabirds, over 60 species of fishes, and hundreds of marine invertebrates and plants. Authority: 16 U.S.C. Sections 1431, et seq. (Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary Program) Dated: September 8, 2009. Daniel J. Basta, Director, Office of National Marine Sanctuaries, National Ocean Service, National Oceanic and Atmospheric Administration. [FR Doc. E9–22161 Filed 9–15–09; 8:45 am] BILLING CODE 3510–NK–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XQ29 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Boom Exercise Drills at Point Mugu, California AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. E:\FR\FM\16SEN1.SGM 16SEN1 47560 Federal Register / Vol. 74, No. 178 / Wednesday, September 16, 2009 / Notices ACTION: Notice; issuance of an incidental harassment authorization. SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) regulations, notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to Naval Base Ventura County (NBVC) Point Mugu to take marine mammals, by harassment, incidental to boom deployment exercises at Point Mugu, California. DATES: Effective September 14, 2009, through January 31, 2010. ADDRESSES: A copy of the application containing a list of the references used in this document and the IHA may be obtained by writing to Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910–3225, telephoning the contact listed below (see FOR FURTHER INFORMATION CONTACT), or visiting the internet at: http:// www.nmfs.noaa.gov/pr/permits/ incidental.htm. Documents cited in this notice may also be viewed, by appointment, during regular business hours, at the aforementioned address. FOR FURTHER INFORMATION CONTACT: Candace Nachman, Office of Protected Resources, NMFS, (301) 713–2289, ext 156, or Monica DeAngelis, Southwest Regional Office, (562) 980–3232. SUPPLEMENTARY INFORMATION: srobinson on DSKHWCL6B1PROD with NOTICES Background Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct 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 if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is 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), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined ‘‘negligible impact’’ in 50 CFR 216.103 as ’’...an impact resulting from the specified activity that cannot be VerDate Nov<24>2008 17:40 Sep 15, 2009 Jkt 217001 reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.’’ Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) establishes a 45–day time limit for NMFS review of an application followed by a 30–day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization. Except with respect to certain activities not pertinent here, the MMPA defines ‘‘harassment’’ as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [‘‘Level A harassment’’]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [‘‘Level B harassment’’]. Summary of Request NMFS received an application on May 12, 2009, from NBVC Point Mugu for the taking, by harassment, of marine mammals incidental to boom exercise drills at Point Mugu, California. As part of the NBVC Spill Response Program, boom deployment methods in the area contingency plan (U.S. Coast Guard, 2007) need to be tested to ensure response plans for spills are effective and can realistically be achieved. This will also provide training to spill responders, giving them the required training to successfully deploy the booms in the event of an oil spill. The activity will occur within Mugu Lagoon within NBVC Point Mugu. Watercraft operating in the project area will likely affect seals by causing them to disperse from haul-out sites into the adjacent waters. No harassment by acoustic disturbance is anticipated from the boom exercise drill. NBVC Point Mugu requested an authorization to take harbor seals (Phoca vitulina) by Level B harassment. Description of the Specified Activity The purpose of this exercise is to develop response strategies that will provide the best possible protection for the lagoon in the event of an oil spill. To protect Mugu Lagoon from offshore oil-spills, the boom needs to be deployed near the mouth of the estuary to keep offshore oil from entering PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 sensitive estuarine habitat. The booms will be attached to zodiac watercraft, and the vessels will cross the estuary and anchor the boom on the north and south side of the estuary. Booming strategies were tested in September 2008, where it became evident that the strategy proposed in 2008 could not be accomplished due to strong currents and the fact that the boom was not placed at a wide enough angle. A new boom deployment strategy will now be tested (which includes increasing the angle at which the boom is placed in relation to the current); however, this changes the location of the activity and requires the boom to be situated within a regular harbor seal haul-out. The boom exercise drill will occur annually during the month of September; however, training may need to be rescheduled for October or November (or possibly even later), depending on availability of SUPSALV staff. Therefore, the IHA is effective from September through January 2010. The exercise will last 5 days. Only days 2 through 4 have the potential to disturb harbor seals. A detailed overview of the activity was provided in the Notice of Proposed IHA (74 FR 36463, July 23, 2009). No changes have been made to the proposed activities. Comments and Responses A notice of receipt of NBVC’s application and NMFS’ proposal to issue an IHA to NBVC Point Mugu was published in the Federal Register on July 23, 2009 (74 FR 36463). During the 30–day public comment period, NMFS received a letter from the Marine Mammal Commission, which recommended that NMFS issue the requested IHA provided that all reasonable measures will be taken to ensure the least practicable impact on the subject species and the required mitigation and monitoring activities are carried out, as described in NMFS’ July 23, 2009 Federal Register Notice (74 FR 36463) and the application. All measures proposed in the initial Federal Register notice are included in the authorization and NMFS has determined that they will ensure the least practicable impact on the subject species. NMFS received one other letter from the Bureau of Land Management (BLM). The BLM appreciated the opportunity to comment but stated that the BLM has no jurisdiction or authority with respect to the project, the BLM does not have experience or information relevant to the project, nor does the BLM intend to submit comments regarding the project. E:\FR\FM\16SEN1.SGM 16SEN1 Federal Register / Vol. 74, No. 178 / Wednesday, September 16, 2009 / Notices Description of Marine Mammals in the Area of the Specified Activity Harbor seals are the only marine mammal species that will likely be affected by the activity and that are found in the immediate area of the boom drill exercise. The mudflats within Mugu Lagoon are used for resting, molting, and breeding of harbor seals. Mugu Lagoon is one of the few mainland pupping sites, with 60 pups born in 2008. The harbor seal is not listed as threatened or endangered under the Endangered Species Act (ESA), and the California stock, members of which occur in the Mugu Lagoon, is not considered a strategic stock under the MMPA. No other marine mammals are expected to occur in the area of NBVC’s activity. A description of other marine mammals found in Mugu Lagoon was provided in the Notice of Proposed IHA (74 FR 36463, July 23, 2009). NBVC Point Mugu has compiled information on the abundance, status, and distribution of harbor seals in Mugu Lagoon from surveys that they have conducted every month from April 1992 through February 2009, with the exception of 1998, when counts were made only during the period from June through August and from NMFS Stock Assessment Reports (SARs). This information may be viewed in NBVC Point Mugu’s application (see ADDRESSES). Additional information is available in the NMFS SARs, which are available on the internet at: http:// www.nmfs.noaa.gov/pr/pdfs/sars/ po2008.pdf. srobinson on DSKHWCL6B1PROD with NOTICES Potential Effects on Marine Mammals The boom exercise activities within Mugu Lagoon will introduce boats into the estuary, which are not allowed under normal conditions. It is anticipated that as the boats approach the seals (within approximately 200 ft [61 m]), seals will likely enter the water for safety. It is anticipated that seals located further away from the water (i.e., further up on the haul-out site) will move closer to the water in order to be able to move quickly into the water if needed. Harbor seals hauled out on shore can be disturbed by passing hikers, recreational vehicles, and small boats. This has been noted in many areas, including the western U.S. and Alaska, eastern Canada, and western Europe (e.g., Bowles and Stewart, 1980; Reijnders, 1981; Renouf et al., 1981; Allen et al., 1984; Osborn, 1985; Brasseur, 1993; Suryan, 1993; Swift and Morgan, 1993). Harbor seals spent more time scanning and less time sleeping in VerDate Nov<24>2008 17:40 Sep 15, 2009 Jkt 217001 areas with human disturbance and occasional hunting (Terhune, 1985). In the absence of hunting or active harassment, habituation likely occurs (Awbrey, 1980; Bonner, 1982; Thompson, 1992; Brasseur, 1993). Startle responses or stampedes are not expected to occur, as boats will be visible and will slowly approach the haul-out sites, allowing the seals to see the approaching vessels in advance of their arrival at the haul-out site. This will provide time for individual seals to either move towards or enter the water for safety if necessary. It is anticipated that the seals will move further east down the mudflats or closer towards the mouth of the estuary to avoid the disturbance associated with the presence of the boats and the boom. Although this booming location is used year-round as a haul-out site for harbor seals, impacts to seals as a result of the activity are expected to be minimal and short-term in nature. Impacts are expected to be limited to Level B behavioral harassment. The training exercise will likely displace harbor seals from the immediate proposed activity area, resulting in hauled out seals moving into the water when watercraft (zodiacs) are placing or maintaining the boom in close proximity to hauled out seals. As there are additional mudflats to haul-out on away from the exercise area, seals will likely move to those sites and use as a haul-out during the boom exercise. Additionally, since a majority of the booming activity will occur during hightides when zodiacs area able to navigate in the estuary, very few seals should be displaced, as mudflats would be inundated and most seals would be in the estuarine waters or out foraging. No injury or mortality of harbor seals is anticipated as a result of this activity. Anticipated Effects on Habitat The seals do not feed when hauled out in the lagoon. The seals leave Mugu Lagoon to feed in the open sea (T. Keeney, NBVC Point Mugu Environmental Division, pers. comm., 1998), therefore it is not expected that the boom exercise activities will have any impact on the food or feeding success of these seals. The boom exercise is not expected to cause significant impacts on habitats used by seals in Mugu Lagoon or on the food sources that these seals utilize. Additionally, no loss or modification of the habitat used by harbor seal populations that haul out within Mugu Lagoon is expected. A full description of anticipated effects on habitat was provided in the Notice of Proposed IHA (74 FR 36463, July 23, 2009). PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 47561 Mitigation In order to issue an incidental take authorization (ITA) under Section 101(a)(5)(D) of the MMPA, NMFS must, where applicable, set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (where relevant). The following mitigation measures have been included in the IHA: (1) The exercise will occur outside of the harbor seal pupping season of February through April; (2) If seals are hauled out within the exercise area before commencement of the exercise, a boat will move slowly (i.e., not at full speed, just above idle) towards the animals in order to have them move slowly into the water in order to avoid stampedes into the water; (3) A boat will remain active in the immediate activity area when tides are high enough for boat activity/ movement to reduce the chances of seals hauling out in the exercise area during low activity periods. This would minimize the number of seals likely disturbed should activity levels need to be increased; (4) If the boom placement appears to be holding successfully, then boats will refrain from movement to reduce any additional disturbance events; and (5) The majority of the boom deployment exercise activities will occur at high tide when fewer harbor seals are expected to be on the haulouts. NMFS carefully evaluated the applicant’s proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: • The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals; • The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and • The practicability of the measure for applicant implementation. Based on our evaluation of the applicant’s proposed measures, as well as other measures considered by NMFS, NMFS has determined that the required E:\FR\FM\16SEN1.SGM 16SEN1 47562 Federal Register / Vol. 74, No. 178 / Wednesday, September 16, 2009 / Notices srobinson on DSKHWCL6B1PROD with NOTICES mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Monitoring and Reporting In order to issue an ITA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must, where applicable, set forth ‘‘requirements pertaining to the monitoring and reporting of such taking’’. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. NBVC biologists will monitor the haul-out areas during the exercise to document and characterize any observed responses by harbor seals to the boom exercise drill. The monitoring will be designed to determine if there are disturbance reactions and to determine how many seals are disturbed by boat activity. Every 2 hours (0700– 1600), biologists will count seals hauled out using a spotting scope and identify haul-out locations. Regarding data to be recorded about the seals present, at a minimum, biologists must record numbers and sex of each age class (if determinable), movements of pinnipeds, including number and proportion moving, direction and distance moved, and pace of movement, and description of reactions. NMFS will review the qualifications of each biologist and approve their selection in advance of the proposed activities. NBVC will establish a land-based monitoring program to assess effects on the harbor seals hauled out in the estuary. This monitoring will occur at the area during the entire period when boats are in the water. The monitoring will be conducted via direct observation. Through this method, seal reactions, as indicated by numbers of seals hauled out and haul-out locations, will be documented during the exercise. This monitoring will also provide data required to characterize the extent and nature of ‘‘taking’’. The monitoring work described here has been planned as a self-contained project independent of any other related monitoring projects that may be occurring in the same region. NBVC Point Mugu will discuss coordination of its monitoring program with other entities that may be conducting related work insofar as this VerDate Nov<24>2008 17:40 Sep 15, 2009 Jkt 217001 is practical and desirable. As standard procedure, shore count data will be made available to NMFS staff. NBVC Point Mugu Environmental Division personnel will survey the exercise area prior to activities to count the number of seals and to identify locations before the exercise begins. These marine mammal monitors will also ensure that the mitigation measures (described in the previous section of this document) are being implemented. The biological monitor will make observations as the exercise activities commence and continue to make observations while activities are underway. Depending on results of these initial observations and subsequent planned activities, NBVC’s monitors will decide each day whether monitoring for the entire day is needed. If the boom is in place and holding, and there is no need for boats to re-enter the water, then no monitoring will be conducted, other than surveys every 2 hours. If boats again are required to enter the exercise area, biologists will be called and return immediately to the drill site. NBVC anticipates that monitoring will occur throughout the first morning, and, if the boom is placed successfully, the site will be visited once every 2 hours to conduct a survey, until it is decided to pull the boom. In addition to recording specific biological information described earlier in this section, the marine mammal monitors will record a variety of other information, which will include: (1) Date and time of the activity; (2) tidal state (the number of hours before or after peak flood tide; exact times for local high tides will be determined by consulting relevant tide tables); (3) weather condition; (4) horizontal visibility; (5) occurrence, or planned occurrence of any other event that might result in behavioral reactions by seals within the lagoon and therefore affect numbers hauled out (such as unusual military aircraft activity or other anthropogenic activities in or around the lagoon); (6) current state of the exercise (i.e., boom being placed, remains in place); and (7) approximate distance of boat from seals when seals react and enter the water. NBVC will prepare and submit to the NMFS Office of Protected Resources and NMFS Southwest Regional Office a draft report describing the activities that were conducted, marine mammal monitoring work and results, and other information as described in the preceding paragraphs 90 days after the activities cease or after expiration of the IHA, whichever occurs first. This report would include all monitoring results from each annual exercise event. This PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 report will summarize the results of the activities, summarize seal behavioral observations, and estimate the amount and nature of ‘‘take’’ of seals by harassment or in other ways. It will also provide locations and numbers of seals hauled out away from the exercise area. The 90–day report will be subject to review and comment by NMFS. Any recommendations made by NMFS must be addressed in the final report prior to acceptance by NMFS. If a freshly dead or seriously injured pinniped is found during activity monitoring surveys, the incident must be reported within 48 hours to the NMFS Office of Protected Resources and the NMFS Southwest Regional Office. Estimated Take by Incidental Harassment Except with respect to certain activities not pertinent here, the MMPA defines ‘‘harassment’’ as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment]. Only take by Level B behavioral harassment is anticipated and authorized as a result of the boom exercise drills. The presence of the boats in the water approaching the haul-out sites have the potential to startle hauled out harbor seals and cause them to enter the water and relocate to other haul-outs closer to the mouth of the lagoon or outside of the lagoon. Although there will be increased boat activity in the area of these haul-out sites, vessel strikes of pinnipeds are not expected to occur, as boats will be approaching at very slow speeds in order to reduce startle reactions by the animals. There is no evidence that the planned activities could result in serious injury or mortality. The mitigation and monitoring measures required to be implemented (mentioned earlier in this document) during the exercise will minimize any potential risk to injury or mortality. The Notice of Proposed IHA (74 FR 36463, July 23, 2009) included an indepth discussion of the methodology used by NBVC to estimate take by harassment incidental to the boom deployment exercise and the numbers of harbor seals that might be affected by the exercise. Additional information can also be found in NBVC’s application (see ADDRESSES). A summary is provided here. E:\FR\FM\16SEN1.SGM 16SEN1 Federal Register / Vol. 74, No. 178 / Wednesday, September 16, 2009 / Notices srobinson on DSKHWCL6B1PROD with NOTICES The Navy estimates the number of hauled out seals within the lagoon using census data obtained during groundbased surveys of the lagoon by staff of the Point Mugu Environmental Division. To estimate the likely potential numbers of harbor seals that might be hauled out within the lagoon during the September period of the activity, the Navy calculated using the low counts in September from 2003–2008, as low counts are usually associated with higher tides when the activity is planned to occur. The mean number of low counts is 57 seals. Take would be expected at the beginning of the exercise as boats are put into the water and seals would be slowly moved off the haul-out. Using mean low numbers for the month of September since 2003, 57 seals could be disturbed and move into the water each time the boats are launched (days 2–4). Seals would likely move to a mudflat away from the boom exercise activity. However once boats are finished deploying the boom and boats return to shore, seals may return to mudflats in the immediate area. In the event NBVC staff need to return to the water to check or adjust the boom, there is a possibility there could be another displacement of seals from the mudflats in the project area. NBVC has projected that it may be necessary to return to the site three times during the day, meaning that there would be three opportunities for seals to return to the exercise area each day (57 seals x 3 movements x 3 days), which would equal 513 individual displacement events (i.e., takes). If the boom placement is successful, it would likely lead to fewer disturbance events. However, if the boom placement is problematic, this could result in additional disturbance events. Moreover, these numbers are likely overestimations of actual take estimates, as harbor seal counts are not conducted during high tide events due to low numbers of seals. Therefore, based on these considerations, NMFS has authorized 513 takes of harbor seals by Level B behavioral harassment incidental to NBVC Point Mugu’s boom exercise drill. Negligible Impact and Small Numbers Analysis and Determination NMFS has defined ‘‘negligible impact’’ in 50 CFR 216.103 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.’’ In making a negligible impact determination, NMFS considers: (1) the number of anticipated mortalities; (2) the number and nature of VerDate Nov<24>2008 17:40 Sep 15, 2009 Jkt 217001 anticipated injuries; (3) the number, nature, and intensity, and duration of Level B harassment; and (4) the context in which the takes occur. No injuries or mortalities are anticipated to occur as a result of NBVC Point Mugu’s boom exercise drills, and none are authorized. Takes will be limited to Level B behavioral harassment over a 3 day period in the month of September (which may possibly slip to October or November, depending on contractor availability). As mentioned previously, NMFS estimates that 513 harbor seal takes may occur as a result of the activity. It is possible that some individual animals may be taken more than once if the animal returns to the site on one of the later days of the exercise. There is no habitat of significance for this species. While Mugu Lagoon is one of the few mainland pupping sites for harbor seals, the activity will occur outside of the harbor seal pupping season of February through April. While these haul-out sites are used for resting throughout the year, few (if any) seals are expected to be found on the haulouts during the drill because the activity will occur at high tide when most animals are in the water. Additionally, there are other haul-out sites in other parts of the lagoon that seals can use during the exercise. The activity is not expected to impact rates of recruitment or survival of harbor seals since no mortality (which would remove individuals from the population) or injury are anticipated to occur. Only short-term Level B behavioral harassment is anticipated to occur over a very short period of time (maximum of 3 days), occurring at very limited times of the day. Additionally, the activity would occur at a time of year when breeding does not occur. Harbor seals are not listed as threatened or endangered under the ESA. Additionally, the California stock of harbor seals is not listed as depleted under the MMPA. Survey counts conducted by NBVC Point Mugu Environmental Division staff indicate that numbers of harbor seals have increased with an average of 83 seals in 1992 to an average of 231 seals in 2006. The most recent SAR for the California stock of harbor seals provides a population estimate of 34,233 individuals (Carretta et al., 2009). The take estimate of 513 individuals represents 1.5 percent of the stock size. This estimate does not take into account that survey data is collected during lower tides when more animals are likely to be present on the haul-out sites and the fact that three events may not need to occur per day on each of the PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 47563 three days. Therefore, it is estimated that 1.5 percent of the California stock of harbor seals will be taken by Level B behavioral harassment during the planned exercise if no animals are taken more than once. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS finds that NBVC Point Mugu’s boom deployment exercise will result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking from the boom deployment exercise will have a negligible impact on the affected species or stocks. Impact on Availability of Affected Species or Stock for Taking for Subsistence Uses There are no relevant subsistence uses of marine mammals implicated by this action. Endangered Species Act (ESA) No species listed under the ESA are expected to be affected by these activities. Therefore, NMFS has determined that a section 7 consultation under the ESA is not required. National Environmental Policy Act (NEPA) In compliance with the NEPA of 1969 (42 U.S.C. 4321 et seq.), a final determination has been made that the activity is categorically excluded from the requirement to prepare an environmental assessment or an environmental impact statement. Authorization As a result of these determinations, NMFS has issued an IHA to NBVC Point Mugu for the take of harbor seals incidental to boom deployment exercises at Point Mugu, California, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. Dated: September 10, 2009. James H. Lecky, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E9–22329 Filed 9–15–09; 8:45 am] BILLING CODE 3510–22–S DEPARTMENT OF EDUCATION Notice of Proposed Information Collection Requests AGENCY: E:\FR\FM\16SEN1.SGM Department of Education. 16SEN1

Agencies

[Federal Register Volume 74, Number 178 (Wednesday, September 16, 2009)]
[Notices]
[Pages 47559-47563]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-22329]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XQ29


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Boom Exercise Drills at Point Mugu, 
California

AGENCY:  National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

[[Page 47560]]


ACTION:  Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulations, notification is hereby given that NMFS has issued an 
Incidental Harassment Authorization (IHA) to Naval Base Ventura County 
(NBVC) Point Mugu to take marine mammals, by harassment, incidental to 
boom deployment exercises at Point Mugu, California.

DATES: Effective September 14, 2009, through January 31, 2010.

ADDRESSES: A copy of the application containing a list of the 
references used in this document and the IHA may be obtained by writing 
to Michael Payne, Chief, Permits, Conservation and Education Division, 
Office of Protected Resources, National Marine Fisheries Service, 1315 
East-West Highway, Silver Spring, MD 20910-3225, telephoning the 
contact listed below (see FOR FURTHER INFORMATION CONTACT), or visiting 
the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. 
Documents cited in this notice may also be viewed, by appointment, 
during regular business hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Candace Nachman, Office of Protected 
Resources, NMFS, (301) 713-2289, ext 156, or Monica DeAngelis, 
Southwest Regional Office, (562) 980-3232.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct 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 if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
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), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
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.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the U.S. can apply for an authorization to 
incidentally take small numbers of marine mammals by harassment. 
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of 
an application followed by a 30-day public notice and comment period on 
any proposed authorizations for the incidental harassment of marine 
mammals. Within 45 days of the close of the comment period, NMFS must 
either issue or deny the authorization.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as:
    any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild [``Level A harassment'']; or (ii) has the potential to disturb 
a marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering 
[``Level B harassment''].

Summary of Request

    NMFS received an application on May 12, 2009, from NBVC Point Mugu 
for the taking, by harassment, of marine mammals incidental to boom 
exercise drills at Point Mugu, California. As part of the NBVC Spill 
Response Program, boom deployment methods in the area contingency plan 
(U.S. Coast Guard, 2007) need to be tested to ensure response plans for 
spills are effective and can realistically be achieved. This will also 
provide training to spill responders, giving them the required training 
to successfully deploy the booms in the event of an oil spill. The 
activity will occur within Mugu Lagoon within NBVC Point Mugu. 
Watercraft operating in the project area will likely affect seals by 
causing them to disperse from haul-out sites into the adjacent waters. 
No harassment by acoustic disturbance is anticipated from the boom 
exercise drill. NBVC Point Mugu requested an authorization to take 
harbor seals (Phoca vitulina) by Level B harassment.

Description of the Specified Activity

    The purpose of this exercise is to develop response strategies that 
will provide the best possible protection for the lagoon in the event 
of an oil spill. To protect Mugu Lagoon from offshore oil-spills, the 
boom needs to be deployed near the mouth of the estuary to keep 
offshore oil from entering sensitive estuarine habitat. The booms will 
be attached to zodiac watercraft, and the vessels will cross the 
estuary and anchor the boom on the north and south side of the estuary. 
Booming strategies were tested in September 2008, where it became 
evident that the strategy proposed in 2008 could not be accomplished 
due to strong currents and the fact that the boom was not placed at a 
wide enough angle. A new boom deployment strategy will now be tested 
(which includes increasing the angle at which the boom is placed in 
relation to the current); however, this changes the location of the 
activity and requires the boom to be situated within a regular harbor 
seal haul-out.
    The boom exercise drill will occur annually during the month of 
September; however, training may need to be rescheduled for October or 
November (or possibly even later), depending on availability of SUPSALV 
staff. Therefore, the IHA is effective from September through January 
2010. The exercise will last 5 days. Only days 2 through 4 have the 
potential to disturb harbor seals. A detailed overview of the activity 
was provided in the Notice of Proposed IHA (74 FR 36463, July 23, 
2009). No changes have been made to the proposed activities.

Comments and Responses

    A notice of receipt of NBVC's application and NMFS' proposal to 
issue an IHA to NBVC Point Mugu was published in the Federal Register 
on July 23, 2009 (74 FR 36463). During the 30-day public comment 
period, NMFS received a letter from the Marine Mammal Commission, which 
recommended that NMFS issue the requested IHA provided that all 
reasonable measures will be taken to ensure the least practicable 
impact on the subject species and the required mitigation and 
monitoring activities are carried out, as described in NMFS' July 23, 
2009 Federal Register Notice (74 FR 36463) and the application. All 
measures proposed in the initial Federal Register notice are included 
in the authorization and NMFS has determined that they will ensure the 
least practicable impact on the subject species. NMFS received one 
other letter from the Bureau of Land Management (BLM). The BLM 
appreciated the opportunity to comment but stated that the BLM has no 
jurisdiction or authority with respect to the project, the BLM does not 
have experience or information relevant to the project, nor does the 
BLM intend to submit comments regarding the project.

[[Page 47561]]

Description of Marine Mammals in the Area of the Specified Activity

    Harbor seals are the only marine mammal species that will likely be 
affected by the activity and that are found in the immediate area of 
the boom drill exercise. The mudflats within Mugu Lagoon are used for 
resting, molting, and breeding of harbor seals. Mugu Lagoon is one of 
the few mainland pupping sites, with 60 pups born in 2008. The harbor 
seal is not listed as threatened or endangered under the Endangered 
Species Act (ESA), and the California stock, members of which occur in 
the Mugu Lagoon, is not considered a strategic stock under the MMPA. No 
other marine mammals are expected to occur in the area of NBVC's 
activity. A description of other marine mammals found in Mugu Lagoon 
was provided in the Notice of Proposed IHA (74 FR 36463, July 23, 
2009).
    NBVC Point Mugu has compiled information on the abundance, status, 
and distribution of harbor seals in Mugu Lagoon from surveys that they 
have conducted every month from April 1992 through February 2009, with 
the exception of 1998, when counts were made only during the period 
from June through August and from NMFS Stock Assessment Reports (SARs). 
This information may be viewed in NBVC Point Mugu's application (see 
ADDRESSES). Additional information is available in the NMFS SARs, which 
are available on the internet at: http://www.nmfs.noaa.gov/pr/pdfs/sars/po2008.pdf.

Potential Effects on Marine Mammals

    The boom exercise activities within Mugu Lagoon will introduce 
boats into the estuary, which are not allowed under normal conditions. 
It is anticipated that as the boats approach the seals (within 
approximately 200 ft [61 m]), seals will likely enter the water for 
safety. It is anticipated that seals located further away from the 
water (i.e., further up on the haul-out site) will move closer to the 
water in order to be able to move quickly into the water if needed.
    Harbor seals hauled out on shore can be disturbed by passing 
hikers, recreational vehicles, and small boats. This has been noted in 
many areas, including the western U.S. and Alaska, eastern Canada, and 
western Europe (e.g., Bowles and Stewart, 1980; Reijnders, 1981; Renouf 
et al., 1981; Allen et al., 1984; Osborn, 1985; Brasseur, 1993; Suryan, 
1993; Swift and Morgan, 1993). Harbor seals spent more time scanning 
and less time sleeping in areas with human disturbance and occasional 
hunting (Terhune, 1985). In the absence of hunting or active 
harassment, habituation likely occurs (Awbrey, 1980; Bonner, 1982; 
Thompson, 1992; Brasseur, 1993).
    Startle responses or stampedes are not expected to occur, as boats 
will be visible and will slowly approach the haul-out sites, allowing 
the seals to see the approaching vessels in advance of their arrival at 
the haul-out site. This will provide time for individual seals to 
either move towards or enter the water for safety if necessary. It is 
anticipated that the seals will move further east down the mudflats or 
closer towards the mouth of the estuary to avoid the disturbance 
associated with the presence of the boats and the boom.
    Although this booming location is used year-round as a haul-out 
site for harbor seals, impacts to seals as a result of the activity are 
expected to be minimal and short-term in nature. Impacts are expected 
to be limited to Level B behavioral harassment. The training exercise 
will likely displace harbor seals from the immediate proposed activity 
area, resulting in hauled out seals moving into the water when 
watercraft (zodiacs) are placing or maintaining the boom in close 
proximity to hauled out seals. As there are additional mudflats to 
haul-out on away from the exercise area, seals will likely move to 
those sites and use as a haul-out during the boom exercise. 
Additionally, since a majority of the booming activity will occur 
during high-tides when zodiacs area able to navigate in the estuary, 
very few seals should be displaced, as mudflats would be inundated and 
most seals would be in the estuarine waters or out foraging. No injury 
or mortality of harbor seals is anticipated as a result of this 
activity.

Anticipated Effects on Habitat

    The seals do not feed when hauled out in the lagoon. The seals 
leave Mugu Lagoon to feed in the open sea (T. Keeney, NBVC Point Mugu 
Environmental Division, pers. comm., 1998), therefore it is not 
expected that the boom exercise activities will have any impact on the 
food or feeding success of these seals. The boom exercise is not 
expected to cause significant impacts on habitats used by seals in Mugu 
Lagoon or on the food sources that these seals utilize. Additionally, 
no loss or modification of the habitat used by harbor seal populations 
that haul out within Mugu Lagoon is expected. A full description of 
anticipated effects on habitat was provided in the Notice of Proposed 
IHA (74 FR 36463, July 23, 2009).

Mitigation

    In order to issue an incidental take authorization (ITA) under 
Section 101(a)(5)(D) of the MMPA, NMFS must, where applicable, set 
forth the permissible methods of taking pursuant to such activity, and 
other means of effecting the least practicable impact on such species 
or stock and its habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance, and on the 
availability of such species or stock for taking for certain 
subsistence uses (where relevant).
    The following mitigation measures have been included in the IHA: 
(1) The exercise will occur outside of the harbor seal pupping season 
of February through April; (2) If seals are hauled out within the 
exercise area before commencement of the exercise, a boat will move 
slowly (i.e., not at full speed, just above idle) towards the animals 
in order to have them move slowly into the water in order to avoid 
stampedes into the water; (3) A boat will remain active in the 
immediate activity area when tides are high enough for boat activity/
movement to reduce the chances of seals hauling out in the exercise 
area during low activity periods. This would minimize the number of 
seals likely disturbed should activity levels need to be increased; (4) 
If the boom placement appears to be holding successfully, then boats 
will refrain from movement to reduce any additional disturbance events; 
and (5) The majority of the boom deployment exercise activities will 
occur at high tide when fewer harbor seals are expected to be on the 
haul-outs.
    NMFS carefully evaluated the applicant's proposed mitigation 
measures and considered a range of other measures in the context of 
ensuring that NMFS prescribes the means of effecting the least 
practicable impact on the affected marine mammal species and stocks and 
their habitat. Our evaluation of potential measures included 
consideration of the following factors in relation to one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     The practicability of the measure for applicant 
implementation.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has determined that the 
required

[[Page 47562]]

mitigation measures provide the means of effecting the least 
practicable impact on marine mammal species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance.

Monitoring and Reporting

    In order to issue an ITA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must, where applicable, set forth 
``requirements pertaining to the monitoring and reporting of such 
taking''. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) 
indicate that requests for ITAs must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the action area.
    NBVC biologists will monitor the haul-out areas during the exercise 
to document and characterize any observed responses by harbor seals to 
the boom exercise drill. The monitoring will be designed to determine 
if there are disturbance reactions and to determine how many seals are 
disturbed by boat activity. Every 2 hours (0700-1600), biologists will 
count seals hauled out using a spotting scope and identify haul-out 
locations. Regarding data to be recorded about the seals present, at a 
minimum, biologists must record numbers and sex of each age class (if 
determinable), movements of pinnipeds, including number and proportion 
moving, direction and distance moved, and pace of movement, and 
description of reactions. NMFS will review the qualifications of each 
biologist and approve their selection in advance of the proposed 
activities.
    NBVC will establish a land-based monitoring program to assess 
effects on the harbor seals hauled out in the estuary. This monitoring 
will occur at the area during the entire period when boats are in the 
water. The monitoring will be conducted via direct observation. Through 
this method, seal reactions, as indicated by numbers of seals hauled 
out and haul-out locations, will be documented during the exercise. 
This monitoring will also provide data required to characterize the 
extent and nature of ``taking''. The monitoring work described here has 
been planned as a self-contained project independent of any other 
related monitoring projects that may be occurring in the same region. 
NBVC Point Mugu will discuss coordination of its monitoring program 
with other entities that may be conducting related work insofar as this 
is practical and desirable. As standard procedure, shore count data 
will be made available to NMFS staff.
    NBVC Point Mugu Environmental Division personnel will survey the 
exercise area prior to activities to count the number of seals and to 
identify locations before the exercise begins. These marine mammal 
monitors will also ensure that the mitigation measures (described in 
the previous section of this document) are being implemented. The 
biological monitor will make observations as the exercise activities 
commence and continue to make observations while activities are 
underway. Depending on results of these initial observations and 
subsequent planned activities, NBVC's monitors will decide each day 
whether monitoring for the entire day is needed. If the boom is in 
place and holding, and there is no need for boats to re-enter the 
water, then no monitoring will be conducted, other than surveys every 2 
hours. If boats again are required to enter the exercise area, 
biologists will be called and return immediately to the drill site. 
NBVC anticipates that monitoring will occur throughout the first 
morning, and, if the boom is placed successfully, the site will be 
visited once every 2 hours to conduct a survey, until it is decided to 
pull the boom.
    In addition to recording specific biological information described 
earlier in this section, the marine mammal monitors will record a 
variety of other information, which will include: (1) Date and time of 
the activity; (2) tidal state (the number of hours before or after peak 
flood tide; exact times for local high tides will be determined by 
consulting relevant tide tables); (3) weather condition; (4) horizontal 
visibility; (5) occurrence, or planned occurrence of any other event 
that might result in behavioral reactions by seals within the lagoon 
and therefore affect numbers hauled out (such as unusual military 
aircraft activity or other anthropogenic activities in or around the 
lagoon); (6) current state of the exercise (i.e., boom being placed, 
remains in place); and (7) approximate distance of boat from seals when 
seals react and enter the water.
    NBVC will prepare and submit to the NMFS Office of Protected 
Resources and NMFS Southwest Regional Office a draft report describing 
the activities that were conducted, marine mammal monitoring work and 
results, and other information as described in the preceding paragraphs 
90 days after the activities cease or after expiration of the IHA, 
whichever occurs first. This report would include all monitoring 
results from each annual exercise event. This report will summarize the 
results of the activities, summarize seal behavioral observations, and 
estimate the amount and nature of ``take'' of seals by harassment or in 
other ways. It will also provide locations and numbers of seals hauled 
out away from the exercise area. The 90-day report will be subject to 
review and comment by NMFS. Any recommendations made by NMFS must be 
addressed in the final report prior to acceptance by NMFS. If a freshly 
dead or seriously injured pinniped is found during activity monitoring 
surveys, the incident must be reported within 48 hours to the NMFS 
Office of Protected Resources and the NMFS Southwest Regional Office.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment]. Only take by Level B behavioral 
harassment is anticipated and authorized as a result of the boom 
exercise drills. The presence of the boats in the water approaching the 
haul-out sites have the potential to startle hauled out harbor seals 
and cause them to enter the water and relocate to other haul-outs 
closer to the mouth of the lagoon or outside of the lagoon. Although 
there will be increased boat activity in the area of these haul-out 
sites, vessel strikes of pinnipeds are not expected to occur, as boats 
will be approaching at very slow speeds in order to reduce startle 
reactions by the animals. There is no evidence that the planned 
activities could result in serious injury or mortality. The mitigation 
and monitoring measures required to be implemented (mentioned earlier 
in this document) during the exercise will minimize any potential risk 
to injury or mortality.
    The Notice of Proposed IHA (74 FR 36463, July 23, 2009) included an 
in-depth discussion of the methodology used by NBVC to estimate take by 
harassment incidental to the boom deployment exercise and the numbers 
of harbor seals that might be affected by the exercise. Additional 
information can also be found in NBVC's application (see ADDRESSES). A 
summary is provided here.

[[Page 47563]]

    The Navy estimates the number of hauled out seals within the lagoon 
using census data obtained during ground-based surveys of the lagoon by 
staff of the Point Mugu Environmental Division. To estimate the likely 
potential numbers of harbor seals that might be hauled out within the 
lagoon during the September period of the activity, the Navy calculated 
using the low counts in September from 2003-2008, as low counts are 
usually associated with higher tides when the activity is planned to 
occur. The mean number of low counts is 57 seals. Take would be 
expected at the beginning of the exercise as boats are put into the 
water and seals would be slowly moved off the haul-out. Using mean low 
numbers for the month of September since 2003, 57 seals could be 
disturbed and move into the water each time the boats are launched 
(days 2-4). Seals would likely move to a mudflat away from the boom 
exercise activity. However once boats are finished deploying the boom 
and boats return to shore, seals may return to mudflats in the 
immediate area. In the event NBVC staff need to return to the water to 
check or adjust the boom, there is a possibility there could be another 
displacement of seals from the mudflats in the project area. NBVC has 
projected that it may be necessary to return to the site three times 
during the day, meaning that there would be three opportunities for 
seals to return to the exercise area each day (57 seals x 3 movements x 
3 days), which would equal 513 individual displacement events (i.e., 
takes). If the boom placement is successful, it would likely lead to 
fewer disturbance events. However, if the boom placement is 
problematic, this could result in additional disturbance events. 
Moreover, these numbers are likely overestimations of actual take 
estimates, as harbor seal counts are not conducted during high tide 
events due to low numbers of seals. Therefore, based on these 
considerations, NMFS has authorized 513 takes of harbor seals by Level 
B behavioral harassment incidental to NBVC Point Mugu's boom exercise 
drill.

Negligible Impact and Small Numbers Analysis and Determination

    NMFS has defined ``negligible impact'' in 50 CFR 216.103 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.'' In making a negligible impact determination, NMFS 
considers: (1) the number of anticipated mortalities; (2) the number 
and nature of anticipated injuries; (3) the number, nature, and 
intensity, and duration of Level B harassment; and (4) the context in 
which the takes occur.
    No injuries or mortalities are anticipated to occur as a result of 
NBVC Point Mugu's boom exercise drills, and none are authorized. Takes 
will be limited to Level B behavioral harassment over a 3 day period in 
the month of September (which may possibly slip to October or November, 
depending on contractor availability). As mentioned previously, NMFS 
estimates that 513 harbor seal takes may occur as a result of the 
activity. It is possible that some individual animals may be taken more 
than once if the animal returns to the site on one of the later days of 
the exercise.
    There is no habitat of significance for this species. While Mugu 
Lagoon is one of the few mainland pupping sites for harbor seals, the 
activity will occur outside of the harbor seal pupping season of 
February through April. While these haul-out sites are used for resting 
throughout the year, few (if any) seals are expected to be found on the 
haul-outs during the drill because the activity will occur at high tide 
when most animals are in the water. Additionally, there are other haul-
out sites in other parts of the lagoon that seals can use during the 
exercise. The activity is not expected to impact rates of recruitment 
or survival of harbor seals since no mortality (which would remove 
individuals from the population) or injury are anticipated to occur. 
Only short-term Level B behavioral harassment is anticipated to occur 
over a very short period of time (maximum of 3 days), occurring at very 
limited times of the day. Additionally, the activity would occur at a 
time of year when breeding does not occur.
    Harbor seals are not listed as threatened or endangered under the 
ESA. Additionally, the California stock of harbor seals is not listed 
as depleted under the MMPA. Survey counts conducted by NBVC Point Mugu 
Environmental Division staff indicate that numbers of harbor seals have 
increased with an average of 83 seals in 1992 to an average of 231 
seals in 2006.
    The most recent SAR for the California stock of harbor seals 
provides a population estimate of 34,233 individuals (Carretta et al., 
2009). The take estimate of 513 individuals represents 1.5 percent of 
the stock size. This estimate does not take into account that survey 
data is collected during lower tides when more animals are likely to be 
present on the haul-out sites and the fact that three events may not 
need to occur per day on each of the three days. Therefore, it is 
estimated that 1.5 percent of the California stock of harbor seals will 
be taken by Level B behavioral harassment during the planned exercise 
if no animals are taken more than once.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, NMFS finds that NBVC Point Mugu's boom deployment exercise 
will result in the incidental take of small numbers of marine mammals, 
by Level B harassment only, and that the total taking from the boom 
deployment exercise will have a negligible impact on the affected 
species or stocks.

Impact on Availability of Affected Species or Stock for Taking for 
Subsistence Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action.

Endangered Species Act (ESA)

    No species listed under the ESA are expected to be affected by 
these activities. Therefore, NMFS has determined that a section 7 
consultation under the ESA is not required.

National Environmental Policy Act (NEPA)

    In compliance with the NEPA of 1969 (42 U.S.C. 4321 et seq.), a 
final determination has been made that the activity is categorically 
excluded from the requirement to prepare an environmental assessment or 
an environmental impact statement.

Authorization

    As a result of these determinations, NMFS has issued an IHA to NBVC 
Point Mugu for the take of harbor seals incidental to boom deployment 
exercises at Point Mugu, California, provided the previously mentioned 
mitigation, monitoring, and reporting requirements are incorporated.

    Dated: September 10, 2009.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E9-22329 Filed 9-15-09; 8:45 am]
BILLING CODE 3510-22-S