Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Rocky Intertidal Monitoring Surveys along the Oregon and California Coasts, 72327-72331 [2012-29390]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 77, Number 234 (Wednesday, December 5, 2012)]
[Notices]
[Pages 72327-72331]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29390]



[[Page 72327]]

-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XC283


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Rocky Intertidal Monitoring Surveys 
along the Oregon and California Coasts

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

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 the Partnership for 
Interdisciplinary Study of Coastal Oceans (PISCO) at the University of 
California (UC) Santa Cruz to take marine mammals, by harassment, 
incidental to rocky intertidal monitoring surveys.

DATES: Effective December 3, 2012, through December 2, 2013.

ADDRESSES: A copy of the authorization, application, and associated 
Environmental Assessment (EA) and Finding of No Significant Impact 
(FONSI) may be obtained by writing to Michael Payne, Chief, Permits and 
Conservation Division, Office of Protected Resources, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910, 
telephoning the contact listed below (see FOR FURTHER INFORMATION 
CONTACT), or visiting the Internet at: https://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) 427-8401.

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, other means of 
effecting the least practicable impact on the species or stock and its 
habitat, 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 United States 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

    On July 18, 2012, NMFS received an application from PISCO for the 
taking of marine mammals incidental to rocky intertidal monitoring 
surveys along the Oregon and California coasts. NMFS determined that 
the application was adequate and complete on September 11, 2012. On 
October 19, 2012, we published a notice in the Federal Register of our 
proposal to issue an IHA with preliminary determinations and explained 
the basis for the proposal and preliminary determinations (77 FR 
64320). The notice initiated a 30-day public comment period. Responses 
are discussed below.
    The research group at UC Santa Cruz operates in collaboration with 
two large-scale marine research programs: PISCO and the Multi-agency 
Rocky Intertidal Network. The research group at UC Santa Cruz (PISCO) 
is responsible for many of the ongoing rocky intertidal monitoring 
programs along the Pacific coast. Monitoring occurs at rocky intertidal 
sites, often large bedrock benches, from the high intertidal to the 
water's edge. Long-term monitoring projects include Community Structure 
Monitoring, Intertidal Biodiversity Surveys, Marine Protected Area 
Baseline Monitoring, Intertidal Recruitment Monitoring, and Ocean 
Acidification. Research is conducted throughout the year along the 
California and Oregon coasts and will continue indefinitely. Most sites 
are sampled one to three times per year over a 4-6 hour period during a 
negative low tide series. This IHA is only effective for a 12-month 
period. The following specific aspects of the activities are likely to 
result in the take of marine mammals: Presence of survey personnel near 
pinniped haulout sites and approach of survey personnel towards hauled 
out pinnipeds. Take, by Level B harassment only, of individuals of 
three species of marine mammals is anticipated to result from the 
specified activity.

Description of the Specified Activity and Specified Geographic Region

    PISCO focuses on understanding the nearshore ecosystems of the U.S. 
west coast through a number of interdisciplinary collaborations. PISCO 
integrates long-term monitoring of ecological and oceanographic 
processes at dozens of sites with experimental work in the lab and 
field. A short description is contained here. Additional information 
can be found in PISCO's application (see ADDRESSES) and the Notice of 
Proposed IHA (77 FR 64320, October 19, 2012).
    Community Structure Monitoring involves the use of permanent 
photoplot quadrats which target specific algal and invertebrate 
assemblages (e.g. mussels, rockweeds, barnacles). This project provides 
managers with insight into the causes and consequences of changes in 
species abundance. Each Community Structure site is surveyed over a 1-
day period during a low tide series one to three times a year. Sites, 
location, number of times sampled per year, and typical sampling months 
for each site are presented in Table 1 in PISCO's application (see 
ADDRESSES).
    Biodiversity Surveys, which are part of a long-term monitoring 
project and are conducted every 3-5 years at established sites, involve 
point contact

[[Page 72328]]

identification along permanent transects, mobile invertebrate quadrat 
counts, sea star band counts, and tidal height topographic 
measurements. Table 2 in PISCO's application (see ADDRESSES) lists 
established biodiversity sites in Oregon and California.
    In September 2007, the state of California began establishing a 
network of Marine Protected Areas along the California coast as part of 
the Marine Life Protection Act (MLPA). Under baseline monitoring 
programs funded by Sea Grant and the Ocean Protection Council, PISCO 
established additional intertidal monitoring sites in the Central Coast 
(Table 3 in PISCO's application), North Central Coast (Table 4 in 
PISCO's application), and South Coast (Table 5 in PISCO's application) 
study regions.
    Intertidal recruitment monitoring collects data on invertebrate 
larval recruitment on a monthly basis at two central California sites. 
Mussel and other bivalve recruits are collected in mesh pot-scrubbers 
bolted into the substrate. Barnacle recruits and cyprids are collected 
on PVC plates covered in non-slip tape and bolted to the substrate.
    The Ocean Margin Ecosystems Group for Acidification Studies is a 
National Science Foundation funded project that involves research at 
eight sites along the California Current upwelling system from Southern 
California into Oregon. PISCO is responsible for research at two of 
these sites, Hopkins and Terrace Point, located in the Monterey Bay 
region of mainland California. The intention of this collaboration is 
to monitor oceanic pH on large spatial and temporal scales and to 
determine if any relationship exists between changing ocean chemistry 
and the states of two key intertidal organisms, the purple urchin and 
the California mussel.

Specified Geographic Location and Activity Timeframe

    PISCO's research is conducted throughout the year along the 
California and Oregon coasts. Figures 1 through 4 in PISCO's 
application depict regularly sampled sites. Red stars in the figures 
indicate sites where pinnipeds are found during monitoring survey 
activities. Most sites are sampled one to three times per year over a 
1-day period (4-6 hours per site) during a negative low tide series. 
Due to the large number of research sites, scheduling constraints, the 
necessity for negative low tides and favorable weather/ocean 
conditions, exact survey dates are variable and difficult to predict. 
Table 1 in PISCO's application (see ADDRESSES) outlines the typical 
sampling season for the various locations. Some sampling is anticipated 
to occur in all months, except for January, August, and September.
    The intertidal zones where PISCO conducts intertidal monitoring are 
also areas where pinnipeds can be found hauled out on the shore at or 
adjacent to some research sites. Accessing portions of the intertidal 
habitat may cause incidental Level B (behavioral) harassment of 
pinnipeds through some unavoidable approaches if pinnipeds are hauled 
out directly in the study plots or while biologists walk from one 
location to another. No motorized equipment is involved in conducting 
these surveys. The species for which Level B harassment is authorized 
are: California sea lions (Zalophus californianus californianus); 
harbor seals (Phoca vitulina richardii); and northern elephant seals 
(Mirounga angustirostris).

Comments and Responses

    A Notice of Proposed IHA was published in the Federal Register on 
October 19, 2012 (77 FR 64320) for public comment. During the 30-day 
public comment period, NMFS received one letter from the Marine Mammal 
Commission (MMC). No other organizations or private citizens provided 
comments on the proposed issuance of an IHA for this activity.
    Comment: The MMC notes that the take table in the application 
underestimated the number of takes based on the take estimation method 
within the text. If that problem is fixed, then the MMC concurs with 
NMFS' preliminary finding and recommends that NMFS issue the requested 
IHA (1) with the proposed mitigation and monitoring measures and (2) 
after revising the number of takes in the take table to be consistent 
with the take estimation method in the text of the application.
    Response: NMFS has included all of the mitigation and monitoring 
measures proposed in the Notice of Proposed IHA (77 FR 64320, October 
19, 2012) in the issued IHA. Additionally, NMFS has corrected the take 
estimates noted in Table 7 of PISCO's application to match the text 
contained on pages 16-18 of the application. Specific changes that were 
made to the table include the removal of takes of northern elephant 
seals at Sea Ranch and Hopkins. The northern elephant seal takes at 
Hopkins were correctly moved to the harbor seal pup columns in the 
table to account for the potential presence of harbor seal pups at that 
location. Take events per year were increased to three at Stillwater 
and Government Point and to two events per year at Carmel Point and 
Piedras Blancas. A small number of harbor seal pup takes are now 
included for Carmel Point. Now that these corrections have been made, 
the take levels outlined in the table match with those described in the 
text. Table 1 in this document reflects the correct number of 
authorized take, by Level B harassment, for each species.

Description of Marine Mammals in the Area of the Specified Activity

    Several pinniped species can be found along the California and 
Oregon coasts. The three that are most likely to occur at some of the 
research sites are California sea lion, harbor seal, and northern 
elephant seal. None of these species are listed as threatened or 
endangered under the U.S. Endangered Species Act (ESA) or as depleted 
under the MMPA. On rare occasions, PISCO researchers have seen very 
small numbers (i.e., five or fewer) of Steller sea lions at one of the 
sampling sites. These sightings are rare. Therefore, encounters are not 
expected. However, if Steller sea lions are sighted before approaching 
a sampling site, researchers will abandon approach and return at a 
later date. For this reason, this species is not considered further in 
this IHA.
    We refer the public to Carretta et al. (2011) for general 
information on these species which are presented below this section. 
The publication is available on the internet at: https://www.nmfs.noaa.gov/pr/pdfs/sars/po2011.pdf. Additional information on 
the status, distribution, seasonal distribution, and life history can 
also be found in PISCO's application and NMFS' Notice of Proposed IHA 
(77 FR 64320, October 19, 2012). The information has not changed and is 
therefore not repeated here.
    California (southern) sea otters (Enhydra lutris nereis), listed as 
threatened under the ESA and categorized as depleted under the MMPA, 
usually range in coastal waters within 2 km (1.2 mi) of shore. This 
species is managed by the U.S. Fish and Wildlife Service and is not 
considered further in this notice.

Potential Effects of the Specified Activity on Marine Mammals

    The appearance of researchers may have the potential to cause Level 
B harassment of any pinnipeds hauled out at sampling sites. Although 
marine mammals are never deliberately approached by abalone survey 
personnel, approach may be unavoidable if pinnipeds are hauled out in 
the immediate vicinity of the permanent study plots. Disturbance may 
result in reactions ranging from an

[[Page 72329]]

animal simply becoming alert to the presence of researchers (e.g., 
turning the head, assuming a more upright posture) to flushing from the 
haul-out site into the water. NMFS does not consider the lesser 
reactions to constitute behavioral harassment, or Level B harassment 
takes, but rather assumes that pinnipeds that move greater than 1 m 
(3.3 ft) or change the speed or direction of their movement in response 
to the presence of researchers are behaviorally harassed, and thus 
subject to Level B taking. Animals that respond to the presence of 
researchers by becoming alert, but do not move or change the nature of 
locomotion as described, are not considered to have been subject to 
behavioral harassment. NMFS' Notice of Proposed IHA (77 FR 64320, 
October 19, 2012) contains information regarding potential impacts to 
marine mammals from the specified activity. The information has not 
changed and is therefore not repeated here.
    Typically, even those reactions constituting Level B harassment 
would result at most in temporary, short-term disturbance. In any given 
study season, researchers will visit sites one to three times per year 
for a total of 4-6 hours per visit. Therefore, disturbance of pinnipeds 
resulting from the presence of researchers lasts only for short periods 
of time and is separated by significant amounts of time in which no 
disturbance occurs. Because such disturbance is sporadic, rather than 
chronic, and of low intensity, individual marine mammals are unlikely 
to incur any detrimental impacts to vital rates or ability to forage 
and, thus, loss of fitness. Correspondingly, even local populations, 
much less the overall stocks of animals, are extremely unlikely to 
accrue any significantly detrimental impacts.
    NMFS does not anticipate that the activities would result in the 
injury, serious injury, or mortality of pinnipeds because pups are only 
found at a couple of the sampling locations during certain times of the 
year and that many rookeries occur on the offshore islands and not the 
mainland areas where the activities would occur. In addition, 
researchers will exercise appropriate caution approaching sites, 
especially when pups are present and will redirect activities when pups 
are present.

Anticipated Effects on Marine Mammal Habitat

    The only habitat modification associated with the activity is the 
placement of permanent bolts and other sampling equipment in the 
intertidal. Bolts are installed during the set-up of a site and, at 
existing sites, this has already occurred. In some instances, bolts 
will need to be replaced or installed for new plots. Bolts are 7.6 to 
12.7 cm (2 to 5 in) long, stainless steel 1 cm (\3/8\ in) Hex or 
Carriage bolts. They are installed by drilling a hole with a battery 
powered DeWalt 24 volt rotary hammer drill with a 1 cm (\3/8\ in) bit. 
The bolts protrude 1.3-7.6 cm (0.5-3 in) above the rock surface and are 
held in place with marine epoxy. Although the drill does produce 
noticeable noise, researchers have never observed an instance where 
near-by or offshore marine mammals were disturbed by it. Any marine 
mammal at the site would likely be disturbed by the presence of 
researchers and retreat to a distance where the noise of the drill 
would not increase the disturbance. In most instances, wind and wave 
noise also drown out the noise of the drill. The installation of bolts 
and other sampling equipment is conducted under the appropriate permits 
(Monterey Bay National Marine Sanctuary, California State Parks). Once 
a particular study has ended, the respective sampling equipment is 
removed. No trash or field gear is left at a site. Thus, the activity 
is not expected to have any habitat-related effects, including to 
marine mammal prey species, that could cause significant or long-term 
consequences for individual marine mammals or their populations.

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).
    PISCO shall implement several mitigation measures to reduce 
potential take by Level B (behavioral disturbance) harassment. Measures 
include: (1) Conducting slow movements and staying close to the ground 
to prevent or minimize stampeding; (2) avoiding loud noises (i.e., 
using hushed voices); (3) avoiding pinnipeds along access ways to sites 
by locating and taking a different access way and vacating the area as 
soon as sampling of the site is completed; (4) monitoring the offshore 
area for predators (such as killer whales and white sharks) and avoid 
flushing of pinnipeds when predators are observed in nearshore waters; 
(5) using binoculars to detect pinnipeds before close approach to avoid 
being seen by animals; (6) only flushing pinnipeds if they are located 
in the sampling plots and there are no other means to accomplish the 
survey (however, flushing must be done slowly and quietly so as not to 
cause a stampede); (7) no intentional flushing if pups are present at 
the sampling site; and (8) rescheduling sampling if Steller sea lions 
are present at the site.
    The methodologies and actions noted in this section will be 
utilized and are included as mitigation measures in the IHA to ensure 
that impacts to marine mammals are mitigated to the lowest level 
practicable. The primary method of mitigating the risk of disturbance 
to pinnipeds, which will be in use at all times, is the selection of 
judicious routes of approach to study sites, avoiding close contact 
with pinnipeds hauled out on shore, and the use of extreme caution upon 
approach. In no case will marine mammals be deliberately approached by 
survey personnel, and in all cases every possible measure will be taken 
to select a pathway of approach to study sites that minimizes the 
number of marine mammals potentially harassed. In general, researchers 
will stay inshore of pinnipeds whenever possible to allow maximum 
escape to the ocean. Each visit to a given study site will last for 
approximately 4-6 hours, after which the site is vacated and can be re-
occupied by any marine mammals that may have been disturbed by the 
presence of researchers. By arriving before low tide, worker presence 
will tend to encourage pinnipeds to move to other areas for the day 
before they haul out and settle onto rocks at low tide.
    PISCO will suspend sampling and monitoring operations immediately 
if an injured marine mammal is found in the vicinity of the project 
area and the monitoring activities could aggravate its condition.
    NMFS has carefully evaluated PISCO'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;

[[Page 72330]]

     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 final mitigation measures, NMFS has 
determined that they 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 proposed action area.
    PISCO can add to the knowledge of pinnipeds in California and 
Oregon by noting observations of: (1) Unusual behaviors, numbers, or 
distributions of pinnipeds, such that any potential follow-up research 
can be conducted by the appropriate personnel; (2) tag-bearing 
carcasses of pinnipeds, allowing transmittal of the information to 
appropriate agencies and personnel; and (3) rare or unusual species of 
marine mammals for agency follow-up.
    Monitoring requirements in relation to PISCO's rocky intertidal 
monitoring include observations made by the applicant. Information 
recorded will include species counts (with numbers of pups/juveniles 
when possible), numbers of observed disturbances, and descriptions of 
the disturbance behaviors during the monitoring surveys, including 
location, date, and time of the event. In addition, observations 
regarding the number and species of any marine mammals observed, either 
in the water or hauled out, at or adjacent to the site, will be 
recorded as part of field observations during research activities. 
Observations of unusual behaviors, numbers, or distributions of 
pinnipeds will be reported to NMFS so that any potential follow-up 
observations can be conducted by the appropriate personnel. In 
addition, observations of tag-bearing pinniped carcasses as well as any 
rare or unusual species of marine mammals will be reported to NMFS. 
Information regarding physical and biological conditions pertaining to 
a site, as well as the date and time that research was conducted will 
also be noted.
    If at any time injury, serious injury, or mortality of the species 
for which take is authorized should occur, or if take of any kind of 
any other marine mammal occurs, and such action may be a result of the 
research, PISCO will suspend research activities and contact NMFS 
immediately to determine how best to proceed to ensure that another 
injury or death does not occur and to ensure that the applicant remains 
in compliance with the MMPA.
    A draft final report must be submitted to NMFS Office of Protected 
Resources within 60 days after the conclusion of the 2012-2013 field 
season or 60 days prior to the start of the next field season if a new 
IHA will be requested. The report will include a summary of the 
information gathered pursuant to the monitoring requirements set forth 
in the IHA. A final report must be submitted to the Director of the 
NMFS Office of Protected Resources and to the NMFS Southwest Office 
Regional Administrator within 30 days after receiving comments from 
NMFS on the draft final report. If no comments are received from NMFS, 
the draft final report will be considered to be the final report.

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].
    All anticipated takes would be by Level B harassment, involving 
temporary changes in behavior. The mitigation and monitoring measures 
are expected to minimize the possibility of injurious or lethal takes 
such that take by injury, serious injury, or mortality is considered 
remote. Animals hauled out close to the actual survey sites may be 
disturbed by the presence of biologists and may alter their behavior or 
attempt to move away from the researchers.
    As discussed earlier, NMFS considers an animal to have been 
harassed if it moved greater than 1 m (3.3 ft) in response to the 
researcher's presence or if the animal was already moving and changed 
direction and/or speed, or if the animal flushed into the water. 
Animals that became alert without such movements were not considered 
harassed.
    For the purpose of this IHA, only Oregon and California sites that 
are frequently sampled and have a marine mammal presence during 
sampling were included in take estimates. Sites where only Biodiversity 
Surveys are conducted were not included due to the infrequency of 
sampling and rarity of occurrences of pinnipeds during sampling. In 
addition, Steller sea lions are not included in take estimates as they 
will not be disturbed by researchers or research activities since 
activities will not occur or be suspended if Steller sea lions are 
present. A small number of harbor seal and northern elephant seal pup 
takes are anticipated as pups may be present at several sites during 
spring and summer sampling
    Takes estimates are based on marine mammal observations from each 
site. Marine mammal observations are done as part of PISCO site 
observations, which include notes on physical and biological conditions 
at the site. The maximum number of marine mammals, by species, seen at 
any given time throughout the sampling day is recorded at the 
conclusion of sampling. A marine mammal is counted if it is seen on 
access ways to the site, at the site, or immediately up-coast or down-
coast of the site. Marine mammals in the water immediately offshore are 
also recorded. Any other relevant information, including the location 
of a marine mammal relevant to the site, any unusual behavior, and the 
presence of pups is also noted.
    These observations formed the basis from which researchers with 
extensive knowledge and experience at each site estimated the actual 
number of marine mammals that may be subject to take. In most cases the 
number of takes is based on the maximum number of marine mammals that 
have been observed at a site throughout the history of the site (2-3 
observation per year for 5-10 years or more). Section 6 in PISCO's 
application outlines the number of visits per year for each sampling 
site and the potential number of pinnipeds anticipated to be 
encountered at each site.
    Since receipt of PISCO's application and publication of the Notice 
of Proposed IHA, PISCO has indicated that one of the sampling sites, 
Occulto (34.88122, -120.63954), has developed a small presence of adult 
harbor seals. This site is visited three times per year for Community 
Structure Monitoring. Based on this small presence, PISCO

[[Page 72331]]

and NMFS estimate that there may be up to five takes of adult harbor 
seals per event with up to three events per year. This slight increase 
in the amount of adult harbor seal takes is small and does not change 
the overall percentage of the population taken by Level B behavioral 
harassment. Additionally, it does not alter the analysis supporting 
NMFS' preliminary determinations and was considered and evaluated by 
NMFS prior to making final determinations in advance of its final 
decision on issuance of the IHA.
    Based on this information, NMFS has authorized the take, by Level B 
harassment only, of 56 California sea lions, 487 harbor seals, and 30 
northern elephant seals. These numbers are considered to be maximum 
take estimates; therefore, actual take may be slightly less if animals 
decide to haul out at a different location for the day or animals are 
out foraging at the time of the survey activities.

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 a variety of factors, including but not limited to: (1) 
The number of anticipated mortalities; (2) the number and nature of 
anticipated injuries; (3) the number, nature, intensity, and duration 
of Level B harassment; and (4) the context in which the take occurs.
    No injuries or mortalities are anticipated to occur as a result of 
PISCO's rocky intertidal monitoring, and none are authorized. The 
behavioral harassments that could occur would be of limited duration, 
as researchers only conduct sampling one to three times per year at 
each site for a total of 4-6 hours per sampling event. Therefore, 
disturbance will be limited to a short duration, allowing pinnipeds to 
reoccupy the sites within a short amount of time.
    Some of the pinniped species may use some of the sites during 
certain times of year to conduct pupping and/or breeding. However, some 
of these species prefer to use the offshore islands for these 
activities. At the sites where pups may be present, PISCO will 
implement certain mitigation measures, such as no intentional flushing 
if dependent pups are present, which will avoid mother/pup separation 
and trampling of pups.
    Of the three marine mammal species anticipated to occur in the 
activity areas, none are listed under the ESA. Table 1 in this document 
presents the abundance of each species or stock, the authorized take 
estimates, and the percentage of the affected populations or stocks 
that may be taken by harassment. Based on these estimates, PISCO would 
take less than 1.6% of each species or stock. Because these are maximum 
estimates, actual take numbers are likely to be lower, as some animals 
may select other haulout sites the day the researchers are present.
    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 required mitigation and 
monitoring measures, NMFS finds that the rocky intertidal monitoring 
program will result in the incidental take of small numbers of marine 
mammals, by Level B harassment only, and that the total taking from the 
rocky intertidal monitoring program will have a negligible impact on 
the affected species or stocks.

Table 1--Population Abundance Estimates, Total Authorized Level B Take, and Percentage of Population That May Be
            Taken for the Potentially Affected Species During the Rocky Intertidal Monitoring Program
----------------------------------------------------------------------------------------------------------------
                                                                 Total authorized level   Percentage of stock or
               Species                       Abundance *                 B take                 population
----------------------------------------------------------------------------------------------------------------
Harbor Seal..........................                   30,196                      487                      1.6
California Sea Lion..................                  296,750                       56                     0.02
Northern Elephant Seal...............                  124,000                       30                     0.02
----------------------------------------------------------------------------------------------------------------
* Abundance estimates are taken from the 2011 U.S. Pacific Marine Mammal Stock Assessments (Carretta et al.,
  2012).

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. Therefore, NMFS has determined that the total taking of 
affected species or stocks would not have an unmitigable adverse impact 
on the availability of such species or stocks for taking for 
subsistence purposes.

Endangered Species Act (ESA)

    None of the marine mammals for which incidental take is authorized 
are listed as threatened or endangered under the ESA. NMFS' Permits and 
Conservation Division worked with the NMFS Southwest Regional Office to 
ensure that effects to Steller sea lions would be avoided and 
incidental take would not occur. Therefore, NMFS has determined that 
issuance of the IHA to PISCO under section 101(a)(5)(D) of the MMPA 
will have no effect on species listed as threatened or endangered under 
the ESA.

National Environmental Policy Act (NEPA)

    NMFS has prepared an EA that includes an analysis of potential 
environmental effects associated with NMFS' issuance of an IHA to PISCO 
to take marine mammals incidental to conducting rocky intertidal 
monitoring surveys along the California and Oregon coasts. NMFS has 
finalized the EA and prepared a FONSI for this action. Therefore, 
preparation of an Environmental Impact Statement is not necessary.

Authorization

    As a result of these determinations, NMFS has authorized the take 
of marine mammals incidental to PISCO's rocky intertidal monitoring 
research activities, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated.

    Dated: November 30, 2012.
Matthew J. Brookhart,
Acting Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2012-29390 Filed 12-4-12; 8:45 am]
BILLING CODE 3510-22-P