Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Coast Boulevard Improvements Project, La Jolla, California, 19221-19237 [2017-08402]

Download as PDF Federal Register / Vol. 82, No. 79 / Wednesday, April 26, 2017 / Notices Conclusion Based on the criteria and findings discussed above, we preliminarily determine that critical circumstances exist with respect to imports of softwood lumber shipped by J.D. Irving and ‘‘all others.’’ We preliminarily determine that critical circumstances do not exist with respect to Canfor, Resolute, Tolko, and West Fraser. Final Critical Circumstances Determinations We will issue final determinations concerning critical circumstances when we issue our final subsidy and lessthan-fair-value determinations. All interested parties will have the opportunity to address the Department’s determinations with regard to critical circumstances in case briefs to be submitted after completion of the preliminary subsidy and less than fair value determinations. mstockstill on DSK30JT082PROD with NOTICES International Trade Commission Notification In accordance with sections 703(f) and 733(f) of the Act, we will notify the ITC of our determinations. Suspension of Liquidation In accordance with section 703(e)(2) of the Act, because we have preliminarily found that critical circumstances exist with regard to imports exported by certain producers and exporters, if we make an affirmative preliminary determination that countervailable subsidies have been provided to these same producers/ exporters at above de minimis rates,12 we will instruct U.S. Customs and Border Protection (CBP) to suspend liquidation of all entries of subject merchandise from these producers/ exporters that are entered, or withdrawn from warehouse, for consumption on or after the date that is 90 days prior to the effective date of ‘‘provisional measures’’ (e.g., the date of publication in the Federal Register of the notice of an affirmative preliminary determination that countervailable subsidies have been provided at above de minimis rates). At such time, we will also instruct CBP to require a cash deposit equal to the estimated preliminary subsidy rates reflected in the preliminary determination published in the Federal Register. This suspension of liquidation will remain in effect until further notice. In accordance with section 733(e)(2) of the Act, because we have preliminarily found that critical circumstances exist with regard to 12 The preliminary subsidy determination is currently scheduled for April 24, 2017. VerDate Sep<11>2014 18:43 Apr 25, 2017 Jkt 241001 imports exported by certain producers and exporters, if we make an affirmative preliminary determination that sales at less than fair value have been made by these same producers/exporters at above de minimis rates, we will instruct CBP to suspend liquidation of all entries of subject merchandise from these producers/exporters that are entered, or withdrawn from warehouse, for consumption on or after the date that is 90 days prior to the effective date of ‘‘provisional measures’’ (e.g., the date of publication in the Federal Register of the notice of an affirmative preliminary determination of sales at less than fair value at above de minimis rates). At such time, we will also instruct CBP to require a cash deposit equal to the estimated preliminary dumping margins reflected in the preliminary determination published in the Federal Register. This suspension of liquidation will remain in effect until further notice. This notice is issued and published pursuant to section 777(i) of the Act and 19 CFR 351.206(C)(2). Dated: April 13, 2017. Ronald K. Lorentzen, Acting Assistant Secretary for Enforcement and Compliance. [FR Doc. 2017–08469 Filed 4–25–17; 8:45 am] BILLING CODE 3510–DS–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XF319 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Coast Boulevard Improvements Project, La Jolla, California National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed incidental harassment authorization (IHA); request for comments. AGENCY: NMFS has received a request from the City of San Diego for authorization to take marine mammals incidental to Coast Boulevard improvements in La Jolla, California. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an IHA to incidentally take marine mammals during the specified activities. DATES: Comments and information must be received no later than May 26, 2017. SUMMARY: PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 19221 Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 EastWest Highway, Silver Spring, MD 20910 and electronic comments should be sent to ITP.Carduner@noaa.gov. Instructions: NMFS is not responsible for comments sent by any other method, to any other address or individual, or received after the end of the comment period. Comments received electronically, including all attachments, must not exceed a 25megabyte file size. Attachments to electronic comments will be accepted in Microsoft Word or Excel or Adobe PDF file formats only. All comments received are a part of the public record and will generally be posted online at www.nmfs.noaa.gov/pr/permits/ incidental/construction.htm without change. All personal identifying information (e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. FOR FURTHER INFORMATION CONTACT: Jordan Carduner, Office of Protected Resources, NMFS, (301) 427–8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: www.nmfs.noaa.gov/pr/permits/ incidental/construction.htm. In case of problems accessing these documents, please call the contact listed above. SUPPLEMENTARY INFORMATION: ADDRESSES: 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. An 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 E:\FR\FM\26APN1.SGM 26APN1 19222 Federal Register / Vol. 82, No. 79 / Wednesday, April 26, 2017 / Notices 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. The MMPA states that the term ‘‘take’’ means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal. 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). mstockstill on DSK30JT082PROD with NOTICES National Environmental Policy Act To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216–6A, NMFS must review our proposed action with respect to environmental consequences on the human environment. Accordingly, NMFS has preliminarily determined that the issuance of the proposed IHA qualifies to be categorically excluded from further NEPA review. This action is consistent with categories of activities identified in CE B4 of the Companion Manual for NOAA Administrative Order 216–6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. We will review all comments submitted in response to this notice prior to concluding our NEPA process in making a final decision on the IHA request. Summary of Request NMFS received a request from the City of San Diego (City) for an IHA to take marine mammals incidental to Coast Boulevard improvements in La Jolla, California. The City’s request was for harassment only and NMFS concurs that mortality is not expected to result from this activity. Therefore, an IHA is appropriate. VerDate Sep<11>2014 18:43 Apr 25, 2017 Jkt 241001 The City’s application for incidental take authorization was received on December 16, 2016. On March 1, 2017, we deemed the City’s application for authorization to be adequate and complete. The planned activity is not expected to exceed one year, hence we do not expect subsequent MMPA incidental harassment authorizations would be issued for this particular activity. The planned activities include improvements to an existing public parking lot, sidewalk, and landscaping areas located on the bluff tops above Children’s Pool, a public beach located in La Jolla, California. Species that are expected to be taken by the planned activity include harbor seal, California sea lion, and northern elephant seal. Take by Level B harassment only is expected; no injury or mortality of marine mammals is expected to result from the proposed activity. This would be the first IHA issued for this activity, if issued. The City applied for, and was granted, IHAs in 2013 2014 and 2015 (NMFS 2013; 2014; 2015) for a lifeguard station demolition and construction project at Children’s Pool beach. NMFS published notices in the Federal Register announcing the issuance of these IHAs on July 8, 2013 (78 FR 40705), June 6, 2014 (79 FR 32699), and July 13, 2015 (80 FR 39999), respectively. The City also applied for, and was granted, an IHA in 2016 (NMFS 2016) for a sand sampling project at Children’s Pool beach. NMFS published a notice in the Federal Register announcing the issuance of the IHA on June 3, 2016 (81FR 35739). Description of Proposed Activity Overview The City of San Diego plans to conduct improvements to an existing public parking lot, sidewalk, and landscaping areas located on the bluff tops above Children’s Pool to upgrade public access and safety. Demolition activities would include the removal of existing parking lot paving; concrete curb, gutter, and sidewalk; and the removal of existing irrigation and plant materials. Construction activities would include subgrade preparation, asphalt paving, and marking of parking stalls; pouring of concrete curb, gutter, and sidewalk; construction of rock walls, installation of fencing, placement of landscape boulders, installation of landscaping and irrigation; and finishing and clean up. The City has requested an IHA for incidental take, via Level B harassment only, of harbor seals that routinely haul out on the beach below the project, as well as California PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 sea lions and northern elephant seals that occasionally haul out on the beach. The City has determined that noise from demolition and construction associated with the planned project has the potential to result in behavioral harassment of pinnipeds on Children’s Pool. No injury or mortality of marine mammals is expected as a result of the planned activities. The expectation that behavioral harassment of pinnipeds would result from the planned activities is based on monitoring reports from the recent demolition and construction of the Children’s Pool lifeguard station project, for which the City was issued Incidental Harassment Authorizations in 2013, 2014 and 2015 (Hanan & Associates 2016). Dates and Duration The planned project would occur from June 1, 2017 through December 14, 2017. Activities would occur Monday through Saturday only, and no work would be planned on all applicable California and Federal holidays. There would be a total of 164 available days during which project activities could occur. No construction would occur during the Seal Pupping Season Moratorium (December 15 to May 15) and for an additional two weeks to accommodate lactation and weaning of late season pups. Thus construction would not occur from December 15th to May 29th. The IHA, if issued, would be valid from June 1, 2017 through December 14, 2017. Specified Geographic Region The location of the project would be La Jolla, California. All planned project related activities would occur atop the 20 to 40-foot bluffs above Children’s Pool beach, adjacent to the Children’s Pool Lifeguard Station located at 8271⁄2 Coast Boulevard, La Jolla, California (See Figure 1 of the City’s IHA application). Detailed Description of Specific Activities Children’s Pool beach was created in 1932 by building a breakwater wall that allowed for a protected pool for swimming. Since then, the pool has partially filled with sand and the beach has widened to approximately 50 meter (m) (164 feet (ft)) at low tide. The planned project would include improvements to an existing public parking lot, sidewalk, and landscaping areas located on top of a coastal bluff above Children’s Pool beach. Components of the project include the demolition and construction of an asphalt parking lot; concrete curb, gutter, and sidewalk; placement of E:\FR\FM\26APN1.SGM 26APN1 Federal Register / Vol. 82, No. 79 / Wednesday, April 26, 2017 / Notices landscape boulders; and the delivery and hauling away of materials. These components of the project would require the use of a variety of heavy equipment, machinery, and trucks, such as concrete breaker, jackhammer, backhoe, bobcat, dump trucks, cement/ pump truck, paver, and roller. See Table 1 for a description of the various project components and potential associated sound source levels (see ‘‘Potential Effects of Specified Activities on Marine 19223 Mammals and their Habitat’’ later in this document for a discussion of potential effects of acoustic sources on marine mammals). TABLE 1—ACTIVITIES PLANNED DURING THE PROPOSED PROJECT AND ESTIMATED DURATION AND MAXIMUM SOUND LEVELS Task Related activities Mobilization & temporary facilities. Install: temporary perimeter fencing, temporary utilities, temporary office trailer (if needed), temporary sanitary facilities. Remove hardscape (planters, curb and sidewalk) and landscaping, debris to be hauled via Coast Boulevard. Demolition & site clearing. Site preparation & utilities. Site improvements ........ Final inspection, demobilization. mstockstill on DSK30JT082PROD with NOTICES 1 Tierra Equipment required Rough grade site, modify underground utilities if necessary. Construct concrete walls, curbs, and planters, fine grade, irrigation, hardscape, landscape, hand rail. Remove construction equipment, inspection, make corrections. Maximum sound level from activities, estimated at 1m (dB re 20 μPa) 1 Estimated dates and duration (weeks) truck, backhoe, trailer, small auger, hand/ power tools. excavator, hydraulic ram, jackhammer, trucks, hand/power tools. loader, backhoe, truck 100 June 1–June 30 (4 weeks) 110 July 3–July 14 (2 weeks) 110 backhoe, truck, hand/ power tools, concrete pump/truck, fork lift. truck, hand/power tools 110 July 17–August 11 (4 weeks) August 14–November 3 (12 weeks) 100 November 6–December 1 (4 weeks) Data 2016 The equipment planned for use during the proposed project is very similar to that used during the demolition and construction of the Children’s Pool lifeguard station project. Based on monitoring reports associated with IHAs issued for the demolition and construction of the Children’s Pool lifeguard station project, equipment used for that project caused sound levels that resulted harassment (Level B) of pinnipeds at Children’s Pool beach. The highest sound levels estimated during construction of the Children’s Pool lifeguard station were 100 to 110 decibels (dB) root mean squared (rms). Results of acoustic monitoring during the lifeguard station project showed peak values of 91 to 103 dB rms within 15 to 20 m (49 to 66 ft) of construction activities (Hanan & Associates 2016). Children’s Pool is designated as a shared-use beach. The beach and surrounding waters are used for swimming, surfing, kayaking, diving, tide pooling, and nature watching. Harbor seals, in particular, draw many visitors. During the harbor seal pupping season (December 15 through May 15), the beach is closed to the public. Outside of the pupping season, beach access and recreational uses are permitted by the City, provided that there is no direct harassment of harbor seals. A guideline rope strung along the upper part of the beach, as well as signage, encourage the public to respect VerDate Sep<11>2014 18:43 Apr 25, 2017 Jkt 241001 the seals in the area and view them at a safe distance. Studies indicate that harbor seals are habituated to human presence at Children’s Pool (Tierra Data 2015); however, habituation or reaction to human activity depends on the individual seal and the circumstances. Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see ‘‘Proposed Mitigation’’ and ‘‘Proposed Monitoring and Reporting’’). Description of Marine Mammals in the Area of Specified Activities Three species are considered to cooccur with the City’s planned activities: Harbor seals (Phoca vitulina), which are by far the dominant observed marine mammal in the project area, as well as California sea lions (Zalophus californianus) and northern elephant seals (Mirounga angustirostris) which also occasionally haul out in the project area, in far lower numbers. This section provides summary information regarding local occurrence of these species. We have reviewed the City’s detailed species descriptions, including life history information, for accuracy and completeness and refer the reader to Sections 3 and 4 of the City’s IHA application, as well as to NMFS’s Stock Assessment Reports (SAR; www.nmfs.noaa.gov/pr/sars/), instead of reprinting all of the information here. Additional general information about PO 00000 Frm 00027 Fmt 4703 Sfmt 4703 these species (e.g., physical and behavioral descriptions) may be found on NMFS’s Web site (www.nmfs.noaa.gov/pr/species/ mammals/). Northern fur seals (Callorhinus ursinus) and Guadalupe fur seals (Arctocephalus townsendi) have been observed at beaches near the project location on rare occasions, and a northern fur seal was recently observed hauled out at La Jolla Cove, less than a mile from Children’s Pool beach (pers comm D. Hanan, Hanan & Associates, to D. Youngkin, NMFS, Feb 4, 2016). Beginning in January 2015, elevated strandings of Guadalupe fur seal pups and juveniles were observed in California. The Working Group on Marine Mammal Unusual Mortality Events determined that the ongoing stranding event meets the criteria for an Unusual Mortality event (UME) and declared strandings of Guadalupe fur seals from 2015 through 2017 to be one continuous UME. The causes and mechanisms of this UME remain under investigation. Fur seals do not generally to haul out in urban mainland beaches such as Children’s Pool, and their presence would likely be attributed to sickness or injury if they were observed in the project location. Therefore, their occurrence at Children’s Pool would be considered extralimital and would not be expected. Thus these species are not considered further in this proposed E:\FR\FM\26APN1.SGM 26APN1 19224 Federal Register / Vol. 82, No. 79 / Wednesday, April 26, 2017 / Notices IHA. The planned activities would not be conducted if marine mammal species other than those proposed for authorization in this document were present on Children’s Pool. Table 2 lists all species with expected potential for occurrence in the project location and summarizes information related to the population or stock, including PBR, where known. For taxonomy, we follow Committee on Taxonomy (2016). For status of species, we provide information regarding U.S. regulatory status under the MMPA and ESA. Abundance estimates presented here represent the total number of individuals that make up a given stock or the total number estimated within a particular study area. NMFS’s stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. PBR, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population, is considered in concert with known sources of ongoing anthropogenic mortality to assess the population-level effects of the anticipated mortality from a specific project (as described in NMFS’s SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality are included here as gross indicators of the status of the species and other threats. All values presented in Table 2 are the most recent available at the time of publication and are available in NMFS’s SARs (e.g., Carretta et al., 2016). Please see the SARs, available at www.nmfs.noaa.gov/pr/sars, for more detailed accounts of these stocks’ status and abundance. TABLE 2—MARINE MAMMAL SPECIES POTENTIALLY PRESENT IN THE PROJECT AREA Species Stock abundance (CV, Nmin, most recent abundance survey) 2 ESA/MMPA status; Strategic (Y/N) 1 Stock PBR 3 Annual M/SI 4 Relative occurrence in project area; season of occurrence Order Carnivora—Superfamily Pinnipedia Family Otariidae (eared seals and sea lions) California sea lion ............... U.S. ....................... -; N ............................ 296,750 (n/a; 153,337; 2011). 9,200 389 Abundant; year-round Family Phocidae (earless seals) Harbor seal ......................... Northern elephant seal ....... California ............... California breeding -; N ............................ -; N ............................ 30,968 (n/a; 27,348; 2012) 179,000 (n/a; 81,368; 2010) 1,641 4,882 43 8.8 Rare; year-round Rare; year-round 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; N min is the minimum estimate of stock abundance. In some cases, CV is not applicable. 3 Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP). 4 These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). mstockstill on DSK30JT082PROD with NOTICES Harbor Seals Harbor seals inhabit coastal and estuarine waters and shoreline areas of the northern hemisphere from temperate to polar regions. The eastern North Pacific subspecies is found from Baja California north to the Aleutian Islands and into the Bering Sea. Multiple lines of evidence support the existence of geographic structure among harbor seal populations from California to Alaska (Carretta et al., 2016). However, because stock boundaries are difficult to meaningfully draw from a biological perspective, three separate harbor seal stocks are recognized for management purposes along the west coast of the continental U.S.: (1) Washington inland waters (2) Oregon and Washington coast, and (3) California (Carretta et al., 2016). Placement of a stock boundary at the California-Oregon border is not based on biology but is considered a political and jurisdictional convenience (Carretta et al., 2016). In addition, harbor seals may occur in Mexican VerDate Sep<11>2014 18:43 Apr 25, 2017 Jkt 241001 waters, but these animals are not considered part of the California stock. Only the California stock is expected to be found in the project area. Harbor seals are not protected under the Endangered Species Act (ESA); the California stock is not listed as depleted under the MMPA, and is not considered a strategic stock under the MMPA because annual human-caused mortality (43) is significantly less than the calculated potential biological removal (PBR; 1,641) (Carretta et al., 2016). The population appears to be stabilizing at what may be its carrying capacity and fishery mortality is declining. The best abundance estimate of the California stock of harbor seals is 30,968 and the minimum population size of this stock is 27,348 individuals (Carretta et al., 2016). The beaches and rocks at, or near, the Children’s Pool are known haul out sites for harbor seals. Starting in the mid1990s there was an increase in numbers of harbor seals using the beaches and rocks in the area around Children’s Pool PO 00000 Frm 00028 Fmt 4703 Sfmt 4703 (Yochem and Stewart 1998). As a result, the City commissioned several studies for harbor seal abundance trends at this site (Yochem and Stewart 1998; Hanan & Associates 2004, 2011). Abundances at any given time may range from a low of 0 to 15 seals to a maximum that rarely exceeds 200 seals at Children’s Pool, and 250 individuals in the vicinity (Linder 2011; Hanan & Associates 2014). When abundances are low, seals tend to cluster on the western side of Children’s Pool, and when abundances are high, the seals spread out along the beach. A limiting factor to the maximum number of individuals observed at Children’s Pool at any given time likely relates to the area available for haulouts (Linder 2011). Several factors influence the variability in harbor seal abundance, including daily foraging and resting patterns, season, weather conditions, and movements by transient individuals. Generally, the highest abundances occur during the months of April and May, at the end of the E:\FR\FM\26APN1.SGM 26APN1 Federal Register / Vol. 82, No. 79 / Wednesday, April 26, 2017 / Notices mstockstill on DSK30JT082PROD with NOTICES pupping season and beginning of the molting season (Linder 2011). Radio tagging and photographic studies have identified that only a portion of seals utilizing a haulout site are present at any specific moment or day (Hanan 1996, 2005; Gilbert et.al. 2005; Harvey and Goley 2011; Linder 2011; Hanan & Associates 2014). These studies further indicate that seals are constantly moving along the coast, including to/from offshore islands (California Channel Islands, Las Islas Coronados). Linder (2011) estimated that there may be as many as 600 harbor seals using Children’s Pool beach during a year associated with the coastal movements of transient individuals, and suggested that the haul out at Children’s Pool Beach is possibly part of a regional network of interconnected resting and pupping sites. California Sea Lion California sea lions range from the Gulf of California north to the Gulf of Alaska, with breeding areas located in the Gulf of California, western Baja California, and southern California. Five genetically distinct geographic populations have been identified: (1) Pacific Temperate, (2) Pacific Subtropical, (3) Southern Gulf of California, (4) Central Gulf of California and (5) Northern Gulf of California (Schramm et al., 2009). Rookeries for the Pacific Temperate population are found within U.S. waters and just south of the U.S.-Mexico border, and animals belonging to this population may be found from the Gulf of Alaska to Mexican waters off Baja California. Animals belonging to other populations (e.g., Pacific Subtropical) may range into U.S. waters during non-breeding periods. For management purposes, a stock of California sea lions comprising those animals at rookeries within the U.S. is defined (i.e., the U.S. stock of California sea lions) (Carretta et al., 2016). Pup production at the Coronado Islands rookery in Mexican waters is considered an insignificant contribution to the overall size of the Pacific Temperate population (Lowry and Maravilla-Chavez, 2005). California sea lions are not protected under the ESA and the U.S. stock of California sea lions is not listed as depleted under the MMPA. Total annual human-caused mortality (389) is substantially less than the PBR (estimated at 9,200 per year); therefore, California sea lions are not considered a strategic stock under the MMPA. There are indications that the California sea lion may have reached or is approaching carrying capacity, although more data are needed to confirm that VerDate Sep<11>2014 18:43 Apr 25, 2017 Jkt 241001 leveling in growth persists (Carretta et al., 2016). The best abundance estimate of the U.S. stock is 296,750 and the minimum population size of this stock is 153,337 individuals (Carretta et al., 2016). Beginning in January 2013, elevated strandings of California sea lion pups were observed in southern California, with live sea lion strandings nearly three times higher than the historical average. Findings to date indicate that a likely contributor to the large number of stranded, malnourished pups was a change in the availability of sea lion prey for nursing mothers, especially sardines. The Working Group on Marine Mammal Unusual Mortality Events determined that the ongoing stranding event meets the criteria for a UME and declared California sea lion strandings from 2013 through 2016 to be one continuous UME. The causes and mechanisms of this event remain under investigation (www.nmfs.noaa.gov/pr/ health/mmume/ californiasealions2013.htm). California sea lions have been observed in the water, or on the beach or rocks at and near Children’s Pool, though these areas are used only occasionally as haulout locations for the species (Yochem and Stewart 1998; Hanan & Associates 2004, 2011; Linder 2011). Monitoring associated with the Children’s Pool Lifeguard Station construction project from June 28, 2015–June 27, 2016 documented a total of 71 California sea lions on Children’s Pool beach, as well as 83 California sea lions on seal rock (an outcropping approximately 91 m north of the beach); five California sea lions on South Casa Beach; and one California sea lion on the offshore reef off South Casa Beach (Hanan & Associates 2016). Observers recorded data only during construction, so it is possible there were more days throughout the year in which California sea lions hauled out on the beach. Evaluation of Children’s Pool docent data from 2014 to 2016 (Seal Conservancy 2016), indicates that California sea lions were observed on Children’s Pool beach on 67 days in 2014, 14 days in 2015, and 95 days in 2016. Northern Elephant Seals Northern elephant seals gather at breeding areas, located primarily on offshore islands of Baja California and California, from approximately December to March before dispersing for feeding. Males feed near the eastern Aleutian Islands and in the Gulf of Alaska, while females feed at sea south of 45° N (Stewart and Huber, 1993; Le Boeuf et al., 1993). Adults then return PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 19225 to land between March and August to molt, with males returning later than females, before dispersing again to their respective feeding areas between molting and the winter breeding season. Populations of northern elephant seals in the U.S. and Mexico are derived from a few tens or hundreds of individuals surviving in Mexico after being nearly hunted to extinction (Stewart et al., 1994). Given the recent derivation of most rookeries, no genetic differentiation would be expected. Although movement and genetic exchange continues between rookeries, most elephant seals return to their natal rookeries when they start breeding (Huber et al., 1991). The California breeding population is now demographically isolated from the Baja California population and is considered to be a separate stock. Northern elephant seals are not protected under the ESA and the California breeding population is not listed as depleted under the MMPA. Total annual human-caused mortality (8.8) is substantially less than the PBR (estimated at 4,882 per year); therefore, northern elephant seals are not considered a strategic stock under the MMPA. Modeling of pup counts indicates that the population has reached its Maximum Net Productivity Level, but has not yet reached carrying capacity (Carretta et al., 2016). The best abundance estimate of the California breeding population of northern elephant seals is 179,000 and the minimum population size of this stock is 81,368 individuals (Carretta et al., 2016). Northern elephant seals have been observed in the water, or on the beach or rocks at and near Children’s Pool, though these areas are used only occasionally as haulout locations for the species (Yochem and Stewart 1998; Hanan & Associates 2004, 2011; Linder 2011). During monitoring associated with the Children’s Pool Lifeguard Station construction project, juvenile northern elephant seals were documented on Children’s Pool beach on a total of 26 days in the period from June 28, 2015–June 27, 2016 (Hanan & Associates 2016), and 28 days in the period from June 28, 2014–June 27, 2015 (Hanan & Associates 2015). Observers recorded data only during construction, so it is possible there were more days throughout the year in which elephant seals hauled out on the beach. Children’s Pool docent data indicates that Northern elephant seals used the beach as a haulout location on 38 days in 2014 and 36 days in 2015 (Seal Conservancy 2016). E:\FR\FM\26APN1.SGM 26APN1 19226 Federal Register / Vol. 82, No. 79 / Wednesday, April 26, 2017 / Notices Potential Effects of Specified Activities on Marine Mammals and Their Habitat This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The ‘‘Estimated Take by Incidental Harassment’’ section later in this document will include a quantitative analysis of the number of individuals that are expected to be taken by this activity. The ‘‘Negligible Impact Analysis and Determination’’ section will consider the content of this section, the ‘‘Estimated Take by Incidental Harassment’’ section, and the ‘‘Proposed Mitigation’’ section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks. mstockstill on DSK30JT082PROD with NOTICES Description of Sound Sources Acoustic sources associated with the City’s proposed activities are expected to include various types of construction and demolition equipment, such as jackhammers, concrete saws, cement pumps, and hand tools (Table 1). Sound sources may be pulsed or non-pulsed. Pulsed sound sources (e.g., sonic booms, explosions, gunshots, impact pile driving) produce signals that are brief (typically considered to be less than one second), broadband, atonal transients (ANSI 1986; Harris 1998; NIOSH 1998; ISO 2003; ANSI 2005) and occur either as isolated events or repeated in some succession. Pulsed sounds are all characterized by a relatively rapid rise from ambient pressure to a maximal pressure value followed by a rapid decay period that may include a period of diminishing, oscillating maximal and minimal pressures, and generally have an increased capacity to induce physical injury as compared with sounds that lack these features. Non-pulsed sounds can be tonal, narrowband, or broadband, brief or prolonged, and may be either continuous or non-continuous (ANSI 1995; NIOSH 1998). Some of these nonpulsed sounds can be transient signals of short duration but without the essential properties of pulses (e.g., rapid rise time). Examples of non-pulsed sounds include those produced by rocket launches and landings, vessels, aircraft, machinery operations such as drilling or dredging, and vibratory pile driving. The duration of such sounds, as received at a distance, can be greatly extended in a highly reverberant environment. VerDate Sep<11>2014 18:43 Apr 25, 2017 Jkt 241001 Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in hertz (Hz) or cycles per second. Wavelength is the distance between two peaks of a sound wave; lower frequency sounds have longer wavelengths than higher frequency sounds and attenuate (decrease) more rapidly in shallower water. Amplitude is the height of the sound pressure wave or the ‘loudness’ of a sound and is typically measured using the decibel scale. A dB is the ratio between a measured pressure (with sound) and a reference pressure (sound at a constant pressure, established by scientific standards). It is a logarithmic unit that accounts for large variations in amplitude; therefore, relatively small changes in dB ratings correspond to large changes in sound pressure. When referring to sound pressure levels (SPLs; the sound force per unit area), sound is referenced in the context of underwater sound pressure to 1 microPascal (mPa). One pascal is the pressure resulting from a force of one newton exerted over an area of one square meter. The source level (SL) represents the sound level at a distance of 1 m from the source (referenced to 1 mPa). The received level is the sound level at the listener’s position. Note that all underwater sound levels in this document are referenced to a pressure of 1 mPa and all airborne sound levels in this document are referenced to a pressure of 20 mPa. Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse, and is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick 1983). Root mean square accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels (Hastings and Popper 2005). This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures. Acoustic Effects Here, we first provide background information on marine mammal hearing before discussing the potential effects of acoustic sources on marine mammals. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 marine mammal species have equal hearing capabilities (e.g., Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. (2007) recommended that marine mammals be divided into functional hearing groups based on directly measured or estimated hearing ranges on the basis of available behavioral response data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data. Subsequently, NMFS (2016) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 dB threshold from the normalized composite audiograms, with the exception for lower limits for lowfrequency cetaceans where the lower bound was deemed to be biologically implausible and the lower bound from Southall et al. (2007) retained. The functional groups and the associated frequencies are indicated below (note that these frequency ranges correspond to the range for the composite group, with the entire range not necessarily reflecting the capabilities of every species within that group): • Low-frequency cetaceans (mysticetes): Generalized hearing is estimated to occur between approximately 7 Hz and 35 kHz, with best hearing estimated to be from 100 Hz to 8 kHz; • Mid-frequency cetaceans (larger toothed whales, beaked whales, and most delphinids): Generalized hearing is estimated to occur between approximately 150 Hz and 160 kHz, with best hearing from 10 to less than 100 kHz; • High-frequency cetaceans (porpoises, river dolphins, and members of the genera Kogia and Cephalorhynchus; including two members of the genus Lagenorhynchus, on the basis of recent echolocation data and genetic data): Generalized hearing is estimated to occur between approximately 275 Hz and 160 kHz. • Pinnipeds in water; Phocidae (true seals): Generalized hearing is estimated to occur between approximately 50 Hz to 86 kHz, with best hearing between 1– 50 kHz; • Pinnipeds in water; Otariidae (eared seals): Generalized hearing is estimated to occur between 60 Hz and 39 kHz, with best hearing between 2–48 kHz. The pinniped functional hearing group was modified from Southall et al. (2007) on the basis of data indicating that phocid species have consistently demonstrated an extended frequency range of hearing compared to otariids, especially in the higher frequency range E:\FR\FM\26APN1.SGM 26APN1 Federal Register / Vol. 82, No. 79 / Wednesday, April 26, 2017 / Notices mstockstill on DSK30JT082PROD with NOTICES ¨ (Hemila et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 2013). For more detail concerning these groups and associated frequency ranges, please see NMFS (2016) for a review of available information. Three marine mammal species (one otariid and two phocid pinnipeds) have the reasonable potential to co-occur with the proposed survey activities. Please refer to Table 2. The effects of sounds on marine mammals are dependent on several factors, including the species, size, behavior (feeding, nursing, resting, etc.), and depth (if underwater) of the animal; the intensity and duration of the sound; and the sound propagation properties of the environment. Impacts to marine species can result from physiological and behavioral responses to both the type and strength of the acoustic signature (Viada et al., 2008). The type and severity of behavioral impacts are more difficult to define due to limited studies addressing the behavioral effects of sounds on marine mammals. Potential effects from impulsive sound sources can range in severity from effects such as behavioral disturbance or tactile perception to physical discomfort, slight injury of the internal organs and the auditory system, or mortality (Yelverton et al., 1973). The effects of sounds from the proposed activities are expected to result in behavioral disturbance of marine mammals. Due to the expected sound levels of the equipment proposed for use and the distance of the planned activity from marine mammal habitat, the effects of sounds from the proposed activities are not expected to result in temporary or permanent hearing impairment (TTS and PTS, respectively), non-auditory physical or physiological effects, or masking in marine mammals. Data from monitoring reports associated with IHAs issued previously for similar activities in the same location as the planned activities provides further support for the assertion that TTS, PTS, non-auditory physical or physiological effects, and masking are not likely to occur (Hanan & Associates 2014; 2015; 2016). Therefore, TTS, PTS, non-auditory physical or physiological effects, and masking are not discussed further in this section. Disturbance Reactions Disturbance includes a variety of effects, including subtle changes in behavior, more conspicuous changes in activities, and displacement. Behavioral responses to sound are highly variable and context-specific and reactions, if any, depend on species, state of maturity, experience, current activity, VerDate Sep<11>2014 18:43 Apr 25, 2017 Jkt 241001 reproductive state, auditory sensitivity, time of day, and many other factors (Richardson et al., 1995; Wartzok et al., 2003; Southall et al., 2007). Habituation can occur when an animal’s response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok et al., 2003). Animals are most likely to habituate to sounds that are predictable and unvarying. The opposite process is sensitization, when an unpleasant experience leads to subsequent responses, often in the form of avoidance, at a lower level of exposure. Behavioral state may affect the type of response as well. For example, animals that are resting may show greater behavioral change in response to disturbing sound levels than animals that are highly motivated to remain in an area for feeding (Richardson et al., 1995; NRC, 2003; Wartzok et al., 2003). Controlled experiments with captive marine mammals have shown pronounced behavioral reactions, including avoidance of loud underwater sound sources (Ridgway et al., 1997; Finneran et al., 2003). Observed responses of wild marine mammals to loud pulsed sound sources (typically seismic guns or acoustic harassment devices) have been varied but often consist of avoidance behavior or other behavioral changes suggesting discomfort (Morton and Symonds, 2002; Thorson and Reyff, 2006; see also Gordon et al., 2004; Wartzok et al., 2003; Nowacek et al., 2007). The onset of noise can result in temporary, short term changes in an animal’s typical behavior and/or avoidance of the affected area. These behavioral changes may include (Richardson et al., 1995): Reduced/ increased vocal activities; changing/ cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior; avoidance of areas where sound sources are located; and/or flight responses. The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could potentially be biologically significant if the change affects growth, survival, or reproduction. The onset of behavioral disturbance from anthropogenic sound depends on both external factors (characteristics of sound sources and their paths) and the specific characteristics of the receiving animals (hearing, motivation, experience, demography) and is difficult to predict (Southall et al., 2007). PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 19227 Marine mammals that occur in the project area could be exposed to airborne sounds associated with construction and demolition activities that have the potential to result in behavioral harassment, depending on an animal’s distance from the sound. Airborne sound could potentially affect pinnipeds that are hauled out. Most likely, airborne sound would cause behavioral responses similar to those discussed above in relation to underwater sound. For instance, anthropogenic sound could cause hauled out pinnipeds to exhibit changes in their normal behavior, such as reduction in vocalizations, or cause them to temporarily abandon their habitat and move further from the source. Hauled out pinnipeds may flush into the water, which can potentially result in pup abandonment. Sitespecific monitoring data described below indicate that pup abandonment is not likely to occur at this site as a result of the specified activity. Behavioral Responses of Pinnipeds to Construction and Demolition The City has monitored pinniped responses to construction at Children’s Pool beach for the past three years as a requirement of previously issued IHAs for construction of the lifeguard station on the bluffs above Children’s Pool (NMFS 2013; 2014; 2015). The equipment associated with the planned construction and demolition activities at Coast Boulevard would be very similar to the equipment associated with the IHAs issued previously for the lifeguard station construction project, sound levels are expected to be substantially similar, and the project location and marine mammal species affected are expected to be the same. Thus, we rely on observational data on responses of pinnipeds to demolition and construction of the lifeguard station at Children’s Pool beach in drawing conclusions about expected pinniped responses to sound associated with the planned project. NMFS previously issued three consecutive IHAs to the City of San Diego for the incidental take of marine mammals associated with the demolition of the existing lifeguard station at Children’s Pool beach and the construction of a new lifeguard station at the same location, from June 2013 through June 2016 (NMFS 2013; 2014; 2015). The first IHA was effective June 28, 2013 through June 27, 2014; the second IHA was valid June 28, 2014 through June 27, 2015; the third IHA was valid June 28, 2015 through June 27, 2016. All of the IHAs authorized take of Pacific harbor seals, California E:\FR\FM\26APN1.SGM 26APN1 19228 Federal Register / Vol. 82, No. 79 / Wednesday, April 26, 2017 / Notices sea lions, and northern elephant seals, in the form of Level B harassment, incidental to demolition and construction activities. From 2013–2016, protected species observers collected data over a total of 3,376 hourly counts at seven sites around the project and Children’s Pool beach. Observed reactions of pinnipeds at Children’s Pool to demolition and construction of the lifeguard station ranged from no response to heads-up alerts, from startle responses to some movements on land, and some movements into the water (Hanan & Associates 2014; 2015; 2016). There were no documented occurrences of take by Level A harassment throughout the three years of monitoring (Hanan & Associates 2014; 2015; 2016). Data from the three years of monitoring also suggests there was no site abandonment on the part of harbor seals a result of the project (Hanan & Associates 2014; 2015; 2016). Based on the data from these three previously issued IHAs, we expect that any behavioral responses by pinnipeds to the planned project would be very similar to those that resulted from the previously authorized lifeguard station project: From no response to heads-up alerts, startle responses, some movements on land, and some movements into the water (flushing). Estimated Take by Incidental Harassment This section provides an estimate of the number of incidental takes proposed for authorization through this IHA, which will inform both NMFS’ consideration of whether the number of takes is ‘‘small’’ and the negligible impact determination. Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of 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 authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to sounds associated with the planned construction and demolition activities. Based on the nature of the activity, Level A harassment is neither anticipated nor proposed to be authorized. The death of a marine mammal is also a type of incidental take. However, in the case of the planned project it is unlikely that injurious or lethal takes would occur even in the absence of the planned mitigation and monitoring measures, and no mortality is anticipated or proposed to be authorized for this activity. The current NMFS thresholds for behavioral harassment of pinnipeds from airborne noise are shown in Table 3. TABLE 3—CURRENT NMFS CRITERIA FOR PINNIPED HARASSMENT RESULTING FROM EXPOSURE TO AIRBORNE SOUND Species Harbor seals Other pinniped species. Level B harassment threshold 90 dB re 20 μPa. 100 dB re 20 μPa. Level A harassment threshold Not defined Not defined NMFS currently uses a three-tiered scale to determine whether the response of a pinniped on land to acoustic or visual stimuli is considered an alert, a movement, or a flush. NMFS considers the behaviors that meet the definitions of both movements and flushes to qualify as behavioral harassment. Thus a pinniped on land is considered by NMFS to have been behaviorally harassed if it moves greater than two times its body length, or if the animal is already moving and changes direction and/or speed, or if the animal flushes from land into the water. Animals that become alert without such movements are not considered harassed. See Table 4 for a summary of the pinniped disturbance scale. TABLE 4—LEVELS OF PINNIPED BEHAVIORAL DISTURBANCE ON LAND Type of response Definition 1 ......................... Alert ...................... 2 ......................... Movement ............ 3 ......................... mstockstill on DSK30JT082PROD with NOTICES Level Flush .................... Seal head orientation or brief movement in response to disturbance, which may include turning head towards the disturbance, craning head and neck while holding the body rigid in a u-shaped position, changing from a lying to a sitting position, or brief movement of less than twice the animal’s body length. Movements away from the source of disturbance, ranging from short withdrawals at least twice the animal’s body length to longer retreats over the beach, or if already moving a change of direction of greater than 90 degrees. All retreats (flushes) to the water. Given the many uncertainties in predicting the quantity and types of impacts of sound on marine mammals, it is common practice to estimate how many animals are likely to be present within a particular distance of a given activity, or exposed to a particular level of sound. In practice, depending on the amount of information available to characterize daily and seasonal movement and distribution of affected marine mammals, it can be difficult to distinguish between the number of individuals harassed and the instances of harassment and, when duration of the VerDate Sep<11>2014 18:43 Apr 25, 2017 Jkt 241001 activity is considered, it can result in a take estimate that overestimates the number of individuals harassed. In particular, for stationary activities such as the proposed project, it is more likely that some smaller number of individuals may accrue a number of incidences of harassment per individual than for each incidence to accrue to a new individual, especially if those individuals display some degree of residency or site fidelity and the impetus to use the site is stronger than the deterrence presented by the harassing activity. PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 The take calculations presented here rely on the best information currently available for marine mammal populations in the Children’s Pool area. Below we describe how the take was estimated for the planned project. Pacific Harbor Seal The take estimate for harbor seal was based on the following steps: (1) Estimate the total area (m2) of harbor seal haulout habitat available at Children’s Pool; (2) Estimate the total area of available haulout habitat expected to be ensonified to the airborne Level B E:\FR\FM\26APN1.SGM 26APN1 mstockstill on DSK30JT082PROD with NOTICES Federal Register / Vol. 82, No. 79 / Wednesday, April 26, 2017 / Notices harassment threshold for harbor seals (90 dB re 20 mPa) based on total haulout area and the percentage of total haulout area expected to be ensonified to the Level B harassment threshold; (3) Estimate the daily number of seals exposed to sounds above Level B harassment threshold by multiplying the total area of haulout habitat expected to be ensonified to the Level B threshold by the expected daily number of seals on Children’s Pool; (4) Estimate the total number of anticipated harbor seals taken over the duration of the project by multiplying the daily number of seals exposed to noise above the Level B harassment threshold by the number of total project days in which project-related sounds may exceed the Level B harassment threshold. As described above, Children’s Pool is designated as a shared-use beach. The beach and surrounding waters are used for swimming, surfing, kayaking, diving, tide pooling, and nature watching, thus the beach is shared between humans and pinnipeds. To discourage people from harassing pinnipeds hauled out on the beach, a guideline rope, oriented parallel to the water, bisects the beach into upper (western) and lower (eastern) beach areas; people are encouraged to stay on the western side of the guideline rope, allowing seals to use the eastern section of beach that provides access to the water. The City’s estimate of available pinniped habitat was based on the total area of the beach between the guideline rope and the mean lower low water line. Thus, the area considered for this analysis to be available as haulout habitat is the total area east of the rope and west of the mean lower low water line, while the area west of the rope is assumed to be unavailable as pinniped habitat (See Figure 5 in the IHA application for the location of the guideline rope, and the area assumed to be available haulout habitat). The City estimated that there are 2,509 m2 east of the guideline rope; therefore it is assumed that there is a total of 2,509 m2 of available pinniped habitat on Children’s Pool (Figure 5 in IHA application). The City estimated the area of available harbor seal habitat at Children’s Pool beach that would be ensonified to the Level B harassment threshold by estimating the distance to the Level B harassment threshold from sounds associated with the planned activities, then calculating the percentage of available haulout habitat at Children’s Pool that would be ensonified to that threshold based on the total available habitat and the VerDate Sep<11>2014 18:43 Apr 25, 2017 Jkt 241001 distance to the Level B harassment threshold. To estimate the distance to the in-air Level B harassment threshold for harbor seals (90 dB rms) for the planned project, the City first used a spherical spreading loss model, assuming average atmospheric conditions. The spreading loss model predicted that the 90 dB isopleth would be reached at 10 m (33 ft). However, data from in situ recordings conducted during the lifeguard station project at Children’s Pool indicated that peak sound levels of 90 to 103 dB were recorded at distances of 15 m to 20 m (49 to 66 ft) from the source when the loudest construction equipment (source levels ranging from 100 to 110 dB) was operating. The City estimated that the loudest potential sound sources associated with the planned project would be approximately 110 dB rms (Table 1), based on manufacturer specifications and previous recordings of similar equipment used during the lifeguard station project at Children’s Pool (Hanan & Associates 2014; 2015; 2016). Therefore, the City estimated that for the sound sources expected to result in the largest isopleths (those with SLs estimated at up to 110 dB), the area expected to be ensonified to the in-air Level B harassment threshold for harbor seals (90 dB rms) would extend to approximately 20 m from the sound source. To be conservative, the City used this distance (20 m) based on the data from previous site-specific monitoring, rather than the results of the spherical spreading loss model, to estimate the predicted distance to the in-air Level B harassment threshold for harbor seals. Based on the estimated distance to the in-air Level B harassment threshold for harbor seals (20 m from the sound source), the City estimated 647 m2 of total available harbor seal habitat at Children’s Pool beach would be ensonified to the Level B harassment threshold, the City therefore estimated that approximately 25.8 percent (647/ 2,509) of available harbor seal haulout habitat at Children’s Pool beach would be ensonified to the Level B harassment threshold (Figure 5 in IHA application). This information has been used to derive the take estimate only; the entire beach would be observed in order to document potential actual take. The estimated daily take of harbor seals was based on the number of harbor seals expected to occur daily in the area ensonified to the Level B harassment threshold. In their IHA application, the City estimated that 200 harbor seals would be present on Children’s Pool beach per day, based on literature that PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 19229 reported this number as the maximum number of seals recorded at Children’s Pool (Linder 2011). However, NMFS believes it is more appropriate to use the average number of seals observed on Children’s Pool beach, as opposed to the maximum number of seals, to estimate the likely number of takes of harbor seals as a result of the planned project. During 3,376 hourly counts associated with monitoring for IHAs issued for construction and demolition at the lifeguard station at Children’s Pool in 2013–14, 2014–15, and 2015–16, there was an average of 54.5 harbor seals (including pups) recorded daily on Children’s Pool beach (pers. comm., D. Hanan, Hanan & Associates, to J. Carduner, NMFS, April 04, 2017). We therefore estimated that 55 harbor seals would occur on Children’s Pool per day, and used this number to estimate take of harbor seals as a result of the planned project. Based on an estimate of 55 total harbor seals on Children’s Pool per day, and an estimated 25.8 percent of total haulout habitat ensonified to the Level B harassment threshold for harbor seals, we estimated that an average of 14.2 (rounded to 15) takes of harbor seals by Level B harassment would occur per day. The City estimated that the total duration of the project would be 164 days. However, activities involving equipment that could result in sound source levels of 101–110 dB would occur on a maximum of 108 project days (pers. comm., D. Langsford, Tierra Data, to, J. Carduner, NMFS, April 03, 2017). Based on the distance of the project to Children’s Pool and previous monitoring reports, we believe it is unlikely that project-related activities with expected source levels at or below 100 dB rms would result in sound exposure levels at or above 90 dB among any pinnipeds at Children’s Pool. Planned project-related activities would occur on top of a natural cliff in an area of increasing elevation above the beach, therefore we do not believe visual stimuli from the project would result in behavioral harassment of any marine mammals. Therefore, we do not expect that activities with expected source levels of 100 dB and below would result in take of marine mammals. Thus, our take estimate is based on the number of days in which source levels associated with the planned project could be between 100 and 110 dB rms. Based on an estimate of 15 takes of harbor seals per day by Level B harassment, over a total of 108 days the project would be expected to result in a total of 1,620 takes of harbor seals by Level B harassment. We therefore propose to E:\FR\FM\26APN1.SGM 26APN1 19230 Federal Register / Vol. 82, No. 79 / Wednesday, April 26, 2017 / Notices authorize a total of 1,620 incidental takes of harbor seals by Level B harassment only. The City requested authorization for the 8,528 takes of harbor seals, however, based on the rationale described above, we propose to authorize 1,620 incidental takes of 1,620 harbor seals. California Sea Lion As described above, California sea lions are occasional visitors to Children’s Pool. The most reliable estimates of likely California sea lion occurrence in the project area come from monitoring reports associated with IHAs issued previously for demolition and construction of the lifeguard station at Children’s Pool. In 2015–16 there were 71 observations of California sea lions on Children’s Pool over 209 days of monitoring, for an average of one California sea lion observed on Children’s Pool approximately every three days. Based on this ratio, we estimate that a total of 55 observations of California sea lions on Children’s Pool during the entire duration of the project (164 days); however as described above we do not think take is likely to occur on days in which source levels are below 100 dB. We expect one take of California sea lion would occur for every 3 days of the project in which source levels are anticipated to be between 101–110 dB (108 total days). We therefore propose to authorize 36 incidental takes of California sea lions by Level B harassment only. This is considered a conservative estimate as the threshold for Level B harassment for California sea lions is different than that for harbor seals (Table 3). The City requested authorization for 100 takes of California sea lions, however we instead propose to authorize 36 incidental takes of California sea lions. Northern Elephant Seal As described above, northern elephant seals are occasional visitors to Children’s Pool. The most reliable estimates of likely northern elephant seal occurrence in the project area come from monitoring reports associated with IHAs issued previously for demolition and construction of the lifeguard station at Children’s Pool. In 2015–16 there were 26 observations of northern elephant seals on Children’s Pool over 209 days of monitoring, for an average of one northern elephant seal observed on Children’s Pool approximately every eight days. Based on this ratio, we estimate a total of 20 northern elephant seals would be observed on Children’s Pool during the entire duration of the project (164 days); however as described above we do not think take is likely to occur on days in which source levels are below 100 dB. We expect one northern elephant seal take would occur for every eight days of the project in which source levels are anticipated to be between 101–110 dB (108 total days). We therefore propose to authorize 14 incidental takes of northern elephant seals by Level B harassment only. This is considered a conservative estimate as the threshold for Level B harassment for northern elephant seals is different than that for harbor seals (Table 3). The City requested authorization for 50 takes of northern elephant seals, however we instead propose to authorize 14 incidental takes of northern elephant seals. TABLE 5—SUMMARY OF ESTIMATED NUMBERS OF MARINE MAMMALS POTENTIALLY TAKEN BY THE PLANNED PROJECT Level A takes Species Harbor seal .............................................................................................................................................. California sea lion .................................................................................................................................... Northern elephant seal ............................................................................................................................ mstockstill on DSK30JT082PROD with NOTICES Effects of Specified Activities on Subsistence Uses of Marine Mammals 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. Proposed Mitigation In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must 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 (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) VerDate Sep<11>2014 18:43 Apr 25, 2017 Jkt 241001 of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)). In evaluating how mitigation may or may not be appropriate to ensure the least practicable impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully balance two primary factors: (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat—which considers the nature of the potential adverse impact being mitigated (likelihood, scope, range), as well as the likelihood that the measure will be effective if implemented; and the likelihood of effective implementation, and; (2) the practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 Level B takes 0 0 0 1,620 36 14 Total 1,620 36 14 personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity. Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below: 1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal). 2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only). 3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to activities expected to result in the take of marine mammals E:\FR\FM\26APN1.SGM 26APN1 Federal Register / Vol. 82, No. 79 / Wednesday, April 26, 2017 / Notices mstockstill on DSK30JT082PROD with NOTICES (this goal may contribute to 1, above, or to reducing harassment takes only). 4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing the severity of harassment takes only). 5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/ disturbance of habitat during a biologically important time. 6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation. Mitigation for Marine Mammals and Their Habitat The City has proposed several mitigation measures. These measures include the following: • Moratorium during harbor seal pupping season: Demolition and construction would be prohibited during the Pacific harbor seal pupping season (December 15th to May 15th) and for an additional two weeks to accommodate lactation and weaning of late season pups. Thus construction would be prohibited from December 15th to May 29th. This measure is designed to avoid any potential adverse impacts to pups that may otherwise occur, such as abandonment by mothers as a result of harassment. • Activities limited to daylight hours only: Construction and demolition would be limited to daylight hours only (7 a.m. to 7 p.m., or 30 minutes before sunset depending on time of year). This measure is designed to facilitate the ability of MMOs to effectively monitor potential instances of harassment and to accurately document behavioral responses of pinnipeds to projectrelated activities. • Timing constraints for very loud equipment: To minimize potential impacts to marine mammals, construction and demolition activity involving use of very loud equipment (e.g., jackhammers) would be scheduled during the daily period of lowest pinniped haul-out occurrence, between the hours of 8:30 a.m. to 3:30 p.m., to the maximum extent practical. This measure is designed to minimize the number of pinnipeds exposed to sounds that may result in harassment. VerDate Sep<11>2014 18:43 Apr 25, 2017 Jkt 241001 Construction and demolition may be extended from 7 a.m. to 7 p.m. (daylight hours only) to help ensure the project is completed in 2017, prior to the moratorium during the harbor seal pupping season starting December 15th, so as to reduce the overall duration of the project. • Marine mammal observers (MMO): Trained MMOs would be used to detect and document project-related impacts to marine mammals, including any behavioral responses to the project. This measure is designed to facilitate the City’s ability to increase the understanding of the effects of the action on marine mammal species and stocks. More information about this measure is contained in the ‘‘Proposed Monitoring’’ section below. Based on our evaluation of the applicant’s proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Proposed Monitoring and Reporting In order to issue an IHA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must 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 authorizations 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. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring. Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following: • Occurrence of marine mammal species or stocks in the area in which take is anticipated (e.g., presence, abundance, distribution, density). • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 19231 action; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas). • Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors. • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks. • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat). • Mitigation and monitoring effectiveness. Proposed Monitoring The City has developed a Monitoring Plan specific to the project which establishes protocols for both acoustic and marine mammal monitoring. The objectives of the Monitoring Plan are to observe and document real-time sound levels in the project area, to document observed behavioral responses to project activities, and to record instances of marine mammal harassment. Monitoring would be conducted before, during, and after project activities to evaluate the impacts of the project on marine mammals. The Monitoring Plan can be found in Appendix C of the City’s IHA application. The Monitoring Plan encompasses both acoustic monitoring and marine mammal monitoring. Marine mammal monitoring would be conducted to assess the number and species, behavior, and responses of marine mammals to project-related activities as well as other sources of disturbance, as applicable. Acoustic monitoring would measure in-air sound pressure levels during ambient conditions and during project activities to measure sound levels associated with the project and to determine distances within which Level B acoustic harassment disturbance are expected to occur. More details are provided below. Acoustic Monitoring Monitors would collect real-time acoustic data of construction activities to determine SPL values during demolition and construction activities, and to determine distances to zones within which SPLs are expected to meet or exceed airborne Level B harassment thresholds for harbor seals and other pinnipeds. Environmental data would also be collected to provide information on the weather, visibility, sea state, and E:\FR\FM\26APN1.SGM 26APN1 19232 Federal Register / Vol. 82, No. 79 / Wednesday, April 26, 2017 / Notices tide conditions during monitoring surveys. Sound level meters would be used to document SPLs at near-field and farfield locations during all surveys, and to determine the distances to Level B harassment thresholds. Far-field locations will include the western end of the beach, the middle of the guideline rope and the eastern edge of the beach. The total number and locations of the monitoring stations would be determined during each survey based on the location of construction activities and likelihood for sound levels to meet or exceed in-air SPL harassment thresholds in areas where marine mammals are observed at Children’s Pool. Refer to Section 3 of the Monitoring Plan for further details on the acoustic monitoring plan. mstockstill on DSK30JT082PROD with NOTICES Marine Mammal Monitoring Marine mammal monitoring would be conducted by qualified MMOs to document behavioral responses of marine mammals to the planned project. Monitors would document the behavior of marine mammals, the number and types of responses to disturbance, and the apparent cause of any reactions. Marine mammals displaying behavioral responses to disturbance would be assessed for the apparent cause of disturbance. All responses to stimuli related to the project would be documented; responses that rise to the level of behavioral harassment (Table 4) would be documented as takes. Marine mammal observations may be made from vantage points on the beach or from overlook areas that provide an unobstructed view of the beach. Monitoring on the beach would be behind the guideline rope to minimize potential disturbance to hauled out marine mammals. The following data would be collected during the marine mammal monitoring surveys: • Dates and times of marine mammal observations. • Location of observations. • Construction activities occurring during each observation period. Any substantial change in construction activities (especially cessation) during observation periods should be noted. • Human activity in the area; number of people on the beach, adjacent overlooks, and in the water. • Counts by species of pinnipeds, and if possible sex and age class. • Number and type of responses to disturbance, such as alert, flush, vocalization, or other with a description. • Apparent cause of reaction. VerDate Sep<11>2014 18:43 Apr 25, 2017 Jkt 241001 The extent of marine mammal monitoring required would depend on recorded sound levels of the activities performed; sound levels would be verified through acoustic monitoring as described above. At the start of each new phase of demolition and construction (i.e., same type of activity and equipment), a full day of marine mammal monitoring would occur. This monitoring would include a PreConstruction Activity Survey, hourly Construction Activity Surveys, and a Post-Construction Activity Survey. PreConstruction Activity Surveys would include recordings of the times of observations, environmental conditions, and maximum ambient SPLs at the recording location at the top of the bluff adjacent to the project site, and at the three far-field locations, and would occur at least 30 minutes prior to the start of construction activities. Hourly Construction Activity Surveys would record times of observations, environmental conditions, and maximum SPLs at near-field and farfield locations. Post-Construction Activity Surveys would record times of observations, environmental conditions, and maximum ambient SPLs at all monitoring locations surveyed during the Construction Activity Surveys. Marine mammal monitoring data will be collected, as noted above. The number of days of subsequent monitoring required after the first day of monitoring for each new construction phase would depend on the results of acoustic monitoring, as follows: (a) If Acoustic monitoring on the first day of a new phase of construction documents sound levels of 90 dB rms or greater at any far-field location, then daily monitoring would be required throughout that phase of construction. (b) If Acoustic monitoring on the first day of a new phase of construction documents sound levels of 90 dB rms or greater at the near-field location, but not at any far-field location, then a minimum of two additional days of monitoring would be required to confirm far-field sound levels remain less than 90 dB rms for construction phase durations of less than 4 weeks. Monitoring would be conducted weekly to confirm far-field sound levels remain less than 90 dB rms for construction phase durations of greater than 4 weeks. If during the additional monitoring, sound levels of 90 dB or greater are recorded at any far-field location, then daily monitoring would be required until the end of that construction phase. (c) If Acoustic monitoring on the first day of a new phase of construction documents sound levels of less than 90 dB rms at the near-field location(s), then PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 one additional day of monitoring would be conducted to confirm near-field sound levels remain less than 90 dB rms. If a sound level of greater than 90 dB rms is measured at the near-field location on the second day of monitoring, then additional days of monitoring would be conducted consistent with the specification listed under item (b) above. Marine mammal monitoring would be conducted by a qualified MMO with the following minimum qualifications: • Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water’s surface, with the ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target; • A minimum of a Bachelor’s degree in biological science, wildlife management, mammalogy, or related field; • Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience). • Experience or training in the field identification of marine mammals, and identification of marine mammal behavior; • Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations; • Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area, as needed; and • Writing skills sufficient to prepare a report of observations. As noted above, Guadalupe and northern fur seals would be considered extralimital to the project area; however, as fur seals have been occasionally observed in the area, the MMO would ensure that take of fur seals is avoided. In the event that a fur seal or another species of marine mammal for which take is not authorized in the IHA, if issued, are observed either on the rocks, beach, or in the water at Children’s Pool prior to commencement of activities, the MMO would alert the stranding network, as the occurrence of these species would typically indicate a sick/ injured animal, and activities would be postponed until coordination with the stranding network is complete (including any potential 24-hour or 48hour wait/observation period) and/or the animal either leaves, or is collected by the stranding network. Marine mammal monitoring protocols are described in greater detail in Section 4 of the City’s Monitoring Plan. E:\FR\FM\26APN1.SGM 26APN1 Federal Register / Vol. 82, No. 79 / Wednesday, April 26, 2017 / Notices mstockstill on DSK30JT082PROD with NOTICES Proposed Reporting A final monitoring report would include data collected during marine mammal monitoring and acoustic and environmental monitoring as described above. The monitoring report would include a narrative description of project related activities, counts of marine mammals by species, sex and age class, a summary of marine mammal species/count data, a summary of marine mammal responses to projectrelated disturbance, and responses to other types of disturbances. The monitoring report would also include a discussion of seasonal and daily variations in the abundance of marine mammals at Children’s Pool, the relative percentage of marine mammals observed to react to construction activities and their observed reactions, and the number of marine mammals taken as a result of the project based on the criteria shown in Table 4. A draft report would be submitted to NMFS within 60 calendar days of the completion of acoustic measurements and marine mammal monitoring. The results would be summarized in tabular/ graphical forms and include descriptions of acoustic sound levels and marine mammal observations according to type of construction activity and equipment. A final report would be prepared and submitted to NMFS within 30 days following receipt of comments on the draft report from NMFS. Proposed reporting measures are described in greater detail in Section 6 of the City’s Monitoring Plan. If issued, this would be the first IHA issued for the planned activity. Monitoring reports from IHAs issued to the City in 2013, 2014, and 2015 for the lifeguard station construction project at Children’s Pool reported that pinniped responses to that project ranged from no response to heads-up alerts, from startle responses to some movements on land, and some movements into the water (Hanan & Associates 2014; 2015; 2016). There were no documented occurrences of Level A takes throughout the three years of monitoring (Hanan & Associates 2014; 2015; 2016). Data from the three years of monitoring indicates no site abandonment by harbor seals a result of the project (Hanan & Associates 2014; 2015; 2016). Monitoring reports from previous IHAs issued to the City for lifeguard tower construction at Children’s Pool can be found on our Web site at: www.nmfs.noaa.gov/pr/ permits/incidental/construction.htm. The monitoring report from the previous IHA issued to the City for a sand quality study at Children’s Pool can be found VerDate Sep<11>2014 18:43 Apr 25, 2017 Jkt 241001 on our Web site at: www.nmfs.noaa.gov/ pr/permits/incidental/research.htm. Negligible Impact Analysis and Determination NMFS has defined negligible impact 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 (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., populationlevel effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be ‘‘taken’’ through harassment, NMFS considers other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS’s implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels). If a marine mammal responds to a stimulus by changing its behavior (e.g., through relatively minor changes in locomotion direction/speed or vocalization behavior), the response may or may not constitute taking at the individual level, and is unlikely to affect the stock or the species as a whole. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on animals or on the stock or species could potentially be significant (e.g., Lusseau and Bejder 2007; Weilgart 2007). Although the City’s planned activities may disturb pinnipeds hauled out at Children’s Pool, any project-related impacts are expected to occur to a small, localized group of marine mammals, in relation to the overall stocks of marine mammals considered here. Pinnipeds would likely become alert or, at most, flush into the water in response to PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 19233 sounds from the planned project. Disturbance is not expected to occur during particularly sensitive times for any marine mammal species, as mitigation measures have been specifically designed to avoid projectrelated activity during harbor seal pupping season to eliminate the possibility for pup injury or mother-pup separation. No injury, serious injury, or mortality is anticipated, nor is the proposed action likely to result in longterm impacts such as permanent abandonment of the haulout (Hanan & Associates 2016). Children’s Pool is not known as an important feeding area for harbor seals, but does serve as a harbor seal rookery. Therefore, if displacement of seals or adverse effects to pups were an expected outcome of the planned activity, impacts to the stock could potentially result. However, site abandonment is not expected to occur as a result of the planned project. We base this expectation on results of previous monitoring reports from the three consecutive IHAs issued to the City for construction and demolition of the lifeguard station at Children’s Pool. Over three-plus years of consecutive monitoring (2013–2016) there was no site abandonment by harbor seals a result of the project (Hanan & Associates 2014; 2015; 2016). Adverse effects to pups are not expected to occur. The moratorium on project-related activity during the harbor seal pupping season (December 15–May 15) is expected to minimize any potential adverse effects to pups such as mother-pup separation. Takes of harbor seal as a result of the project are expected to be low relative to stock size (approximately five percent). Additionally, as there are an estimated 600 harbor seals using Children’s Pool beach during a year (Linder 2011), proposed authorized takes of harbor seals (Table 5) are expected to be repeated incidences of take to a smaller number of individuals, and not individuals taken, as described above. These takes are not expected to interfere with breeding, sheltering or feeding. For the reasons stated above, we do not expect the planned project to affect annual rates of recruitment or survival for harbor seals. Children’s Pool does not represent an important feeding or breeding area for either northern elephant seals or California sea lion, and neither species uses the project location as a pupping site. Takes of both species are expected to be very low relative to the stock sizes (less than one percent of the stock for each species) and no take by Level A harassment is anticipated to occur as a result of the project for either northern E:\FR\FM\26APN1.SGM 26APN1 19234 Federal Register / Vol. 82, No. 79 / Wednesday, April 26, 2017 / Notices elephant seals or California sea lions. Takes that occur are expected to be in the form of behavioral harassment, specifically changes in direction or possibly flushing to the water. These takes are not expected to interfere with breeding, sheltering or feeding. For the reasons stated above, we do not expect the planned project to affect annual rates of recruitment or survival for northern elephant seals or California sea lions. In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival: • No mortality is anticipated or authorized. • No injury is expected. Over the course of 3,376 hourly counts associated with monitoring for IHAs issued to the City for construction and demolition of the lifeguard station at Children’s Pool in 2013–14, 2014–15, and 2015–16, no takes by Level A harassment were documented. As the planned project would entail equipment with similar expected sound levels to those that occurred during the lifeguard station project at Children’s Pool, but would occur further from the haulout location than the lifeguard station project, we do not expect take by Level A harassment to occur as a result of the planned project. • Behavioral disturbance—Takes are expected to be in the form of behavioral disturbance only. Based on the sound levels anticipated and based on the monitoring reports from previous IHAs issued for similar activities at the same location, behavioral responses are expected to range from no response to alerts, to movements or changes in direction, to possible movements into the water (flushes). Planned mitigation described above is expected to limit the number and/or severity of behavioral responses, and those that occur are not expected to be severe. • Important Areas—As described above, there are no important feeding, breeding or pupping areas that would be affected by the planned project for northern elephant seals and California sea lions. For harbor seal, Children’s Pool represents a pupping location. However, as described above, mitigation measures including the moratorium during pupping season (December 15 to May 15) are expected to avoid any potential impacts to pups, such as mother-pup separation. Data from the three years of monitoring suggests that despite documented instances of harassment resulting from the lifeguard station project, there was no site abandonment a result of the project (Hanan & Associates 2014; 2015; 2016). Therefore, the planned project is not expected to negatively affect pups of any species, and is not expected to result in any impacts to annual rates of recruitment or survival. • Species/Stock scale—As described above, the planned project would impact only a very small percentage of the stocks (approximately five percent for harbor seal, less than one percent for northern elephant seal and California sea lion) and would only impact all marine mammal stocks over a very small portion of their ranges. • Species/stock status—No marine mammal species for which take authorization is proposed are listed as threatened or endangered under the ESA and no mammal stocks for which take authorization is proposed are determined to be strategic or depleted under the MMPA. 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 proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks. Small Numbers As noted above, only small numbers of incidental take may be authorized under Section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. The numbers of marine mammals authorized to be taken for harbor seal, California sea lion, and northern elephant seal, would be considered small relative to the relevant stocks or populations (approximately five percent for harbor seal and less than one percent for northern elephant seal and California sea lion) even if each estimated take occurred to a new individual. However we believe it is extremely unlikely that each estimated take would occur to a new individual, and more likely that multiple takes would accrue to the same individuals. As described above, depending on the amount of information available to characterize daily and seasonal movement and distribution of affected marine mammals, it can be difficult to distinguish between the number of individuals harassed and the instances of harassment, and this can result in a take estimate that overestimates the number of individuals harassed. In particular, for stationary activities, such as the proposed project, it is more likely that some smaller number of individuals may accrue a number of incidences of harassment per individual than for each incidence to accrue to a new individual. This is especially true for those individuals display some degree of residency or site fidelity and the impetus to use the site is stronger than the deterrence presented by the harassing activity, as is the case with harbor seals that use Children’s Pool as a haulout. For the reasons described above, we expect that there will almost certainly be some overlap in individuals present day-to-day at the project site, and the proposed total numbers of authorized takes are expected to occur only within a small portion of the overall regional stocks. Thus while we propose to authorize the instances of incidental take shown in Table 6, we believe that the number of individual marine mammals that would be incidentally taken by the proposed project would be substantially lower than these numbers. mstockstill on DSK30JT082PROD with NOTICES TABLE 6—ESTIMATED NUMBERS OF TAKE AND PERCENTAGES OF MARINE MAMMAL STOCKS THAT MAY BE TAKEN Proposed Level B take authorized Species Harbor seal .............................................................................................................................................. California sea lion .................................................................................................................................... VerDate Sep<11>2014 18:43 Apr 25, 2017 Jkt 241001 PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 E:\FR\FM\26APN1.SGM 1,620 36 26APN1 Stock abundance estimate 1 30,968 296,750 Percentage of stock or population (percent) 5 <1 19235 Federal Register / Vol. 82, No. 79 / Wednesday, April 26, 2017 / Notices TABLE 6—ESTIMATED NUMBERS OF TAKE AND PERCENTAGES OF MARINE MAMMAL STOCKS THAT MAY BE TAKEN— Continued Proposed Level B take authorized Species Northern elephant seal ............................................................................................................................ 1 NMFS 179,000 Percentage of stock or population (percent) <1 2015 marine mammal stock assessment reports (Carretta et al., 2016) available online at: www.nmfs.noaa.gov/pr/sars/. Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks. Unmitigable Adverse Impact Analysis and Determination There are no relevant subsistence uses of the affected marine mammal stocks or species 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) Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults internally with our ESA Interagency Cooperation Division whenever we propose to authorize take for endangered or threatened species. No incidental take of ESA-listed species is proposed for authorization or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action. Proposed Authorization mstockstill on DSK30JT082PROD with NOTICES 14 Stock abundance estimate 1 As a result of these preliminary determinations, NMFS proposes to issue an IHA to the City of San Diego for conducting demolition and construction at Coast Boulevard, La Jolla, California, from June 1, 2017 through December 14, 2017, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. This section contains a draft of the IHA VerDate Sep<11>2014 18:43 Apr 25, 2017 Jkt 241001 itself. The wording contained in this section is proposed for inclusion in the IHA (if issued). 1. This Incidental Harassment Authorization (IHA) is valid from June 1, 2017 through December 14, 2017. This IHA is valid only for demolition and construction activities associated with the public parking lot, sidewalk, and landscaping improvement project at Coast Boulevard in La Jolla, California. 2. General Conditions (a) A copy of this IHA must be in the possession of the City, its designees, and work crew personnel operating under the authority of this IHA. (b) The species authorized for taking are the Pacific harbor seal (Phoca vitulina), California sea lion (Zalophus californianus), and northern elephant seal (Mirounga angustirostris). (c) The taking, by Level B harassment only, is limited to the species listed in condition 2(b). (d) The take by injury (Level A harassment), serious injury, or death, or the taking of any other species of marine mammal not listed in condition 2(b), is prohibited and may result in the modification, suspension, or revocation of this IHA. (e) The City shall conduct briefings between construction supervisors and crews, marine mammal monitoring team, and acoustical monitoring team prior to the start of all demolition and construction activities, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures. 3. Mitigation Measures The holder of this Authorization is required to implement the following mitigation measures. (a) Demolition and construction shall be prohibited during the Pacific harbor seal pupping season (December 15th to May 15th) and for an additional two weeks to accommodate lactation and weaning of late season pups. (b) Demolition and construction shall be limited to daylight hours only (7:00 a.m. to 7:00 p.m., or 30 minutes before sunset depending on time of year). (c) Construction and demolition activity involving use of very loud PO 00000 Frm 00039 Fmt 4703 Sfmt 4703 equipment (e.g., jackhammers) shall be scheduled between the hours of 8:30 a.m. to 3:30 p.m., to the maximum extent practical, but may be extended from 7:00 a.m. to 7:00 p.m. (daylight hours only). (d) Monitoring shall be conducted by a trained marine mammal observer (MMO). (i) The MMO shall have no other construction-related tasks while conducting monitoring and shall be trained on species identification, how to observe, and how to fill out the data sheets prior to any construction or demolition activities. (ii) Monitoring shall take place from 30 minutes prior to initiation of demolition or construction activity through 30 minutes post-completion of such activity. (iii) The MMO shall have the following minimum qualifications: 1. Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water’s surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target; 2. A minimum of a Bachelor’s degree in biological science, wildlife management, mammalogy, or related field; 3. Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience); 4. Experience or training in the field identification of marine mammals, and identification of marine mammal behavior; 5. Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations; 6. Writing skills sufficient to prepare a report of observations; and 7. Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary. 4. Monitoring The holder of this Authorization is required to implement the following monitoring measures: E:\FR\FM\26APN1.SGM 26APN1 mstockstill on DSK30JT082PROD with NOTICES 19236 Federal Register / Vol. 82, No. 79 / Wednesday, April 26, 2017 / Notices (a) The City shall collect sighting data and shall record observed behavioral responses to project activities for marine mammal species observed in the region of activity during the period of activity; (b) All visual marine mammal information shall be recorded as described in the Monitoring Plan (Appendix C, Section 4 of the IHA Application) and shall include the following: (i) Dates and times of marine mammal observations; (ii) Location of observations (description); (iii) Construction activities occurring during each observation period including any substantial change in construction activities; (iv) Human activity in the area; (v) Counts by species of pinnipeds, and if possible sex and age class; (vi) Number and type of marine mammal responses to disturbance; and (vii) Apparent causes of marine mammal responses (e.g., construction project, aircraft, human activity, other pinniped, other animal, swimmer/diver, watercraft, or other with a description). (c) In the event that a fur seal, is observed on the rocks, beach, or in the water prior to commencement of activities, the MMO shall alert the stranding network and all activities shall be postponed until coordination with the stranding network is complete (including any potential 24-hour or 48hour wait/observation period) and/or the animal either leaves, or is collected by the stranding network. (d) Acoustic recordings shall include the following: (i) One location (at minimum) will be monitored close to the construction site (near field) and adjacent to the edge of the bluff overlooking Children’s Pool. This will be a mobile station that will move based on the actual location of construction activities; (ii) If the loudest construction activities are more than 15 m (49 ft) from the edge of the bluff, acoustic data also will be recorded at an additional near-field location closer to the construction/demolition activities; (iii) Three fixed monitoring stations will be established parallel to the guideline rope (far-field); (iv) If SPLs of 90 dB rms or greater are measured at any far-field monitoring station, additional monitoring will be conducted to determine the far-field extent of the 90 dB isopleth, and 100 dB isopleth, as applicable; and (v) Acoustic monitor shall record time of observations, environmental conditions, and SPLs at applicable monitoring stations 30 minutes prior to the start of demolition/construction, VerDate Sep<11>2014 18:43 Apr 25, 2017 Jkt 241001 every hour during demolition/ construction, and 30 minutes after cessation of demolition/construction activities. (e) At the start of each new phase of construction, a full day of acoustic monitoring shall occur. The number of days of monitoring required after the first full day of monitoring for each new construction phase shall depend on results of acoustic monitoring, as follows: (i) If acoustic monitoring on the first day of a new phase of construction documents sound levels of 90 dB rms or greater at any far-field location, daily monitoring shall be required throughout that phase of construction; (ii) If acoustic monitoring on the first day of a new phase of construction documents sound levels of 90 dB rms or greater at the near-field location, but not at any far-field location, then a minimum of two additional days of monitoring shall be required to confirm far-field sound levels remain less than 90 dB rms for construction phase durations of less than 4 weeks. Acoustic monitoring shall be conducted weekly to confirm far-field sound levels remain less than 90 dB rms for construction phase durations of greater than 4 weeks. If during the additional monitoring, sound levels of 90 dB or greater are recorded at any far-field location, then daily monitoring shall be required until the end of that construction phase; and (iii) If Acoustic monitoring on the first day of a new phase of construction documents sound levels of less than 90 dB rms at the near-field location(s), then one additional day of monitoring shall be conducted to confirm near-field sound levels remain less than 90 dB rms. If a sound level of greater than 90 dB rms is measured at the near-field location on the second day of monitoring, additional days of monitoring shall be conducted consistent with the specification listed under item 4(d)(ii). 5. Reporting The holder of this Authorization is required to: (a) Submit a draft report on all monitoring conducted under the IHA within 90 calendar days of the completion of marine mammal and acoustic monitoring or sixty days prior to the issuance of any subsequent IHA for this project, whichever comes first; (b) Submit a final report within 30 days following resolution of comments on the draft report from NMFS. This report must contain the informational elements described in the Monitoring Plan at minimum, and shall also include: PO 00000 Frm 00040 Fmt 4703 Sfmt 4703 (i) Results of the marine mammal monitoring plan including the elements described in 4(b); and (ii) Results of acoustic monitoring as described in the Monitoring Plan. (c) Reporting injured or dead marine mammals: (i) In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this IHA, such as injury or mortality, the City will immediately cease the specified activities and report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator, NMFS. The report must include the following information: 1. Time and date of the incident; 2. Description of the incident; 3. Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility); 4. Description of all marine mammal observations and active sound source use in the 24 hours preceding the incident; 5. Species identification or description of the animal(s) involved; 6. Fate of the animal(s); and 7. Photographs or video footage of the animal(s). Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with the City to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The City may not resume their activities until notified by NMFS. (ii) In the event that the City discovers an injured or dead marine mammal, and the MMO determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition), the City will immediately report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator, NMFS. The report must include the same information identified in 5(c)(i) of this IHA. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with the City to determine whether additional mitigation measures or modifications to the activities are appropriate. (iii) In the event that the City discovers an injured or dead marine mammal, and the MMO determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the City will report the incident to the Office of Protected E:\FR\FM\26APN1.SGM 26APN1 Federal Register / Vol. 82, No. 79 / Wednesday, April 26, 2017 / Notices Resources, NMFS, and the West Coast Regional Stranding Coordinator, NMFS, within 24 hours of the discovery. The City will provide photographs or video footage or other documentation of the stranded animal sighting to NMFS. This Authorization may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein, or if NMFS determines the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals. Request for Public Comments We request comment on our analyses, the draft authorization, and any other aspect of this Notice of Proposed IHA for the proposed demolition and construction at Coast Boulevard, La Jolla, California. Please include with your comments any supporting data or literature citations to help inform our final decision on the request for MMPA authorization. Dated: April 18, 2017. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2017–08402 Filed 4–25–17; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE Patent and Trademark Office mstockstill on DSK30JT082PROD with NOTICES Submission for OMB Review; Comment Request; Initial Patent Applications The United States Patent and Trademark Office (USPTO) will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35). Agency: United States Patent and Trademark Office, Department of Commerce. Title: Initial Patent Applications. OMB Control Number: 0651–0032. Form Number(s): PTO/SB/01, PTO/ SB/01A, PTO/SB/02, PTO/SB/02A, PTO/SB/02B, PTO/SB/02CN, PTO/SB/ 02DE, PTO/SB/02ES, PTO/SB/02FR, PTO/SB/02IT, PTO/SB/02JP, PTO/SB/ 02KR, PTO/SB/02LR, PTO/SB/02NL, PTO/SB/02RU, PTO/SB/02SE, PTO/SB/ 03, PTO/SB/03A, PTO/SB/04, PTO/SB/ 06, PTO/SB/07, PTO/SB/14 EFS-Web, PTO/SB/16, PTO/SB/16 EFS-Web, PTO/ SB/17, PTO/SB/29, PTO/SB/29A, PTO/ SB/101, PTO/SB/102, PTO/SB/103, PTO/SB/104, PTO/SB/105, PTO/SB/ 106, PTO/SB/107, PTO/SB/108, PTO/ SB/109, PTO/SB/110, PTO/AIA/01, VerDate Sep<11>2014 18:43 Apr 25, 2017 Jkt 241001 PTO/AIA/02, PTO/AIA/03, PTO/AIA/ 04, PTO/AIA/08, PTO/AIA/09, PTO/ AIA/10, PTO/AIA/11, PTO/AIA/14, PTO/AIA/15, PTO/AIA/18, PTO/AIA/ 19, PTO/AIA/01CN, PTO/AIA/01DE, PTO/AIA/01ES, PTO/AIA/01FR, PTO/ AIA/01IT, PTO/AIA/01JP, PTO/AIA/ 01KR, PTO/AIA/01NL, PTO/AIA/01RU, PTO/AIA/01SE, PTO/AIA/02CN, PTO/ AIA/02DE, PTO/AIA/02ES, PTO/AIA/ 02FR, PTO/AIA/02IT, PTO/AIA/02JP, PTO/AIA/02KR, PTO/AIA/02NL, PTO/ AIA/02RU, and PTO/AIA/02SE. Type of Request: Regular. Number of Respondents: 636,003. Average Hours per Respondent: The USPTO estimate that it takes the public approximately between 30 minutes (0.50 hours) to 40 hours to complete this information, depending on the complexity of the request. This includes the time to gather the necessary information, prepare the application, petition, or paper submissions, and submit the completed request to the USPTO. Burden Hours: 15,757,081.50 hours. Cost Burden: $1,127,541,338.53. Needs and Uses: This collection of information is required by, inter alia, 35 U.S.C. 131 and 37 CFR 1.16 through 1.84 and 1.495(b). Each patent application must provide sufficient information to allow the USPTO to examine properly the application, petition, or paper to determine whether the application, petition, or paper meets the criteria set forth in the patent statutes and regulations. The various fee and application transmittal forms, the declarations, the cover sheets, the petitions, and the papers filed under 37 CFR 1.41(c), 1.41(a)(2) (pre-AIA), 1.48(d), 1.53(c)(2), and 1.53(c)(2) (prePLT (AIA)) permit applicants to supply all of the information necessary to process the application and enables the USPTO to ensure that all of the information has been provided in order to process the application. Frequency: On occasion. Affected Public: Individuals or households; businesses or other forprofits; non-profit institutions; and the Federal Government. Respondent’s Obligation: Required to Obtain or Retain Benefits. OMB Desk Officer: Nicholas A. Fraiser, email: Nicholas_A._Fraiser@omb.eop.gov. Once submitted, the request will be publicly available in electronic format through reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB. Further information can be obtained by: PO 00000 Frm 00041 Fmt 4703 Sfmt 4703 19237 • Email: InformationCollection@upsto.gov. Include ‘‘0651–0032 copy request’’ in the subject line of the message. • Mail: Marcie Lovett, Records and Information Governance Division Director, Office of the Chief Technology Officer, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313–1450. Written comments and recommendations for the proposed information collection should be sent on or before May 26, 2017 to Nicholas A. Fraser, OMB Desk Officer, via email to Nicholas_A._Fraser@omb.eop.gov, or by fax to 202–395–5167, marked to the attention of Nicholas A. Fraser. Marcie Lovett, Records and Information Governance Division Director, OCTO, United States Patent and Trademark Office. [FR Doc. 2017–08419 Filed 4–25–17; 8:45 am] BILLING CODE 3510–16–P DEPARTMENT OF COMMERCE Patent and Trademark Office Submission for OMB Review; Comment Request; Patent Trial Appeal Board (PTAB) Actions The United States Patent and Trademark Office (USTPO) will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35). Agency: United States Patent and Trademark Office, Commerce. Title: Patent Trial Appeal Board (PTAB) Actions. OMB Control Number: 0651–0063. Form Number(s): None. Type of Request: Revision of a currently existing collection. Number of Respondents: 23,660. Average Hours per Response: Between 2 and 32 hours, depending upon the instrument used. Burden Hours: 555,098 hours. Cost Burden: $46,049,937.65. Needs and Uses: The Patent Trial and Appeal Board (PTAB or Board) is established by statute under 35 U.S.C. 6. This statute directs that PTAB ‘‘shall on written appeal of an applicant, review adverse decisions of examiners upon applications for patent and shall determine priority and patentability of invention in interferences.’’ PTAB has the authority, under pre-AIA sections of the Patent Act, i.e., 35 U.S.C. 134, 135, 306, and 315, to decide ex parte and inter partes appeals and interferences. The membership of the Board is E:\FR\FM\26APN1.SGM 26APN1

Agencies

[Federal Register Volume 82, Number 79 (Wednesday, April 26, 2017)]
[Notices]
[Pages 19221-19237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-08402]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XF319


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Coast Boulevard Improvements 
Project, La Jolla, California

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

ACTION: Proposed incidental harassment authorization (IHA); request for 
comments.

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

SUMMARY: NMFS has received a request from the City of San Diego for 
authorization to take marine mammals incidental to Coast Boulevard 
improvements in La Jolla, California. Pursuant to the Marine Mammal 
Protection Act (MMPA), NMFS is requesting comments on its proposal to 
issue an IHA to incidentally take marine mammals during the specified 
activities.

DATES: Comments and information must be received no later than May 26, 
2017.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Physical comments should be sent to 
1315 East-West Highway, Silver Spring, MD 20910 and electronic comments 
should be sent to ITP.Carduner@noaa.gov.
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments received electronically, including 
all attachments, must not exceed a 25-megabyte file size. Attachments 
to electronic comments will be accepted in Microsoft Word or Excel or 
Adobe PDF file formats only. All comments received are a part of the 
public record and will generally be posted online at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm without change. All personal 
identifying information (e.g., name, address) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.

FOR FURTHER INFORMATION CONTACT: Jordan Carduner, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing these 
documents, please call the contact listed above.

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.
    An 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

[[Page 19222]]

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.
    The MMPA states that the term ``take'' means to harass, hunt, 
capture, kill or attempt to harass, hunt, capture, or kill any marine 
mammal.
    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).

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action with respect to environmental 
consequences on the human environment.
    Accordingly, NMFS has preliminarily determined that the issuance of 
the proposed IHA qualifies to be categorically excluded from further 
NEPA review. This action is consistent with categories of activities 
identified in CE B4 of the Companion Manual for NOAA Administrative 
Order 216-6A, which do not individually or cumulatively have the 
potential for significant impacts on the quality of the human 
environment and for which we have not identified any extraordinary 
circumstances that would preclude this categorical exclusion.
    We will review all comments submitted in response to this notice 
prior to concluding our NEPA process in making a final decision on the 
IHA request.

Summary of Request

    NMFS received a request from the City of San Diego (City) for an 
IHA to take marine mammals incidental to Coast Boulevard improvements 
in La Jolla, California. The City's request was for harassment only and 
NMFS concurs that mortality is not expected to result from this 
activity. Therefore, an IHA is appropriate.
    The City's application for incidental take authorization was 
received on December 16, 2016. On March 1, 2017, we deemed the City's 
application for authorization to be adequate and complete. The planned 
activity is not expected to exceed one year, hence we do not expect 
subsequent MMPA incidental harassment authorizations would be issued 
for this particular activity.
    The planned activities include improvements to an existing public 
parking lot, sidewalk, and landscaping areas located on the bluff tops 
above Children's Pool, a public beach located in La Jolla, California. 
Species that are expected to be taken by the planned activity include 
harbor seal, California sea lion, and northern elephant seal. Take by 
Level B harassment only is expected; no injury or mortality of marine 
mammals is expected to result from the proposed activity. This would be 
the first IHA issued for this activity, if issued. The City applied 
for, and was granted, IHAs in 2013 2014 and 2015 (NMFS 2013; 2014; 
2015) for a lifeguard station demolition and construction project at 
Children's Pool beach. NMFS published notices in the Federal Register 
announcing the issuance of these IHAs on July 8, 2013 (78 FR 40705), 
June 6, 2014 (79 FR 32699), and July 13, 2015 (80 FR 39999), 
respectively. The City also applied for, and was granted, an IHA in 
2016 (NMFS 2016) for a sand sampling project at Children's Pool beach. 
NMFS published a notice in the Federal Register announcing the issuance 
of the IHA on June 3, 2016 (81FR 35739).

Description of Proposed Activity

Overview

    The City of San Diego plans to conduct improvements to an existing 
public parking lot, sidewalk, and landscaping areas located on the 
bluff tops above Children's Pool to upgrade public access and safety. 
Demolition activities would include the removal of existing parking lot 
paving; concrete curb, gutter, and sidewalk; and the removal of 
existing irrigation and plant materials. Construction activities would 
include subgrade preparation, asphalt paving, and marking of parking 
stalls; pouring of concrete curb, gutter, and sidewalk; construction of 
rock walls, installation of fencing, placement of landscape boulders, 
installation of landscaping and irrigation; and finishing and clean up. 
The City has requested an IHA for incidental take, via Level B 
harassment only, of harbor seals that routinely haul out on the beach 
below the project, as well as California sea lions and northern 
elephant seals that occasionally haul out on the beach.
    The City has determined that noise from demolition and construction 
associated with the planned project has the potential to result in 
behavioral harassment of pinnipeds on Children's Pool. No injury or 
mortality of marine mammals is expected as a result of the planned 
activities. The expectation that behavioral harassment of pinnipeds 
would result from the planned activities is based on monitoring reports 
from the recent demolition and construction of the Children's Pool 
lifeguard station project, for which the City was issued Incidental 
Harassment Authorizations in 2013, 2014 and 2015 (Hanan & Associates 
2016).

Dates and Duration

    The planned project would occur from June 1, 2017 through December 
14, 2017. Activities would occur Monday through Saturday only, and no 
work would be planned on all applicable California and Federal 
holidays. There would be a total of 164 available days during which 
project activities could occur. No construction would occur during the 
Seal Pupping Season Moratorium (December 15 to May 15) and for an 
additional two weeks to accommodate lactation and weaning of late 
season pups. Thus construction would not occur from December 15th to 
May 29th. The IHA, if issued, would be valid from June 1, 2017 through 
December 14, 2017.

Specified Geographic Region

    The location of the project would be La Jolla, California. All 
planned project related activities would occur atop the 20 to 40-foot 
bluffs above Children's Pool beach, adjacent to the Children's Pool 
Lifeguard Station located at 827\1/2\ Coast Boulevard, La Jolla, 
California (See Figure 1 of the City's IHA application).

Detailed Description of Specific Activities

    Children's Pool beach was created in 1932 by building a breakwater 
wall that allowed for a protected pool for swimming. Since then, the 
pool has partially filled with sand and the beach has widened to 
approximately 50 meter (m) (164 feet (ft)) at low tide. The planned 
project would include improvements to an existing public parking lot, 
sidewalk, and landscaping areas located on top of a coastal bluff above 
Children's Pool beach. Components of the project include the demolition 
and construction of an asphalt parking lot; concrete curb, gutter, and 
sidewalk; placement of

[[Page 19223]]

landscape boulders; and the delivery and hauling away of materials. 
These components of the project would require the use of a variety of 
heavy equipment, machinery, and trucks, such as concrete breaker, 
jackhammer, backhoe, bobcat, dump trucks, cement/pump truck, paver, and 
roller. See Table 1 for a description of the various project components 
and potential associated sound source levels (see ``Potential Effects 
of Specified Activities on Marine Mammals and their Habitat'' later in 
this document for a discussion of potential effects of acoustic sources 
on marine mammals).

     Table 1--Activities Planned During the Proposed Project and Estimated Duration and Maximum Sound Levels
----------------------------------------------------------------------------------------------------------------
                                                                               Maximum sound
                                                                                level from
                                                                                activities,     Estimated dates
              Task                  Related activities    Equipment required   estimated at      and duration
                                                                               1m (dB re 20         (weeks)
                                                                                [mu]Pa) \1\
----------------------------------------------------------------------------------------------------------------
Mobilization & temporary         Install: temporary       truck, backhoe,                100  June 1-June 30 (4
 facilities.                      perimeter fencing,       trailer, small                      weeks)
                                  temporary utilities,     auger, hand/power
                                  temporary office         tools.
                                  trailer (if needed),
                                  temporary sanitary
                                  facilities.
Demolition & site clearing.....  Remove hardscape         excavator,                     110  July 3-July 14 (2
                                  (planters, curb and      hydraulic ram,                      weeks)
                                  sidewalk) and            jackhammer,
                                  landscaping, debris to   trucks, hand/
                                  be hauled via Coast      power tools.
                                  Boulevard.
Site preparation & utilities...  Rough grade site,        loader, backhoe,               110  July 17-August 11
                                  modify underground       truck.                              (4 weeks)
                                  utilities if necessary.
Site improvements..............  Construct concrete       backhoe, truck,                110  August 14-November
                                  walls, curbs, and        hand/power tools,                   3 (12 weeks)
                                  planters, fine grade,    concrete pump/
                                  irrigation, hardscape,   truck, fork lift.
                                  landscape, hand rail.
Final inspection,                Remove construction      truck, hand/power              100  November 6-
 demobilization.                  equipment, inspection,   tools.                              December 1 (4
                                  make corrections.                                            weeks)
----------------------------------------------------------------------------------------------------------------
\1\ Tierra Data 2016

    The equipment planned for use during the proposed project is very 
similar to that used during the demolition and construction of the 
Children's Pool lifeguard station project. Based on monitoring reports 
associated with IHAs issued for the demolition and construction of the 
Children's Pool lifeguard station project, equipment used for that 
project caused sound levels that resulted harassment (Level B) of 
pinnipeds at Children's Pool beach. The highest sound levels estimated 
during construction of the Children's Pool lifeguard station were 100 
to 110 decibels (dB) root mean squared (rms). Results of acoustic 
monitoring during the lifeguard station project showed peak values of 
91 to 103 dB rms within 15 to 20 m (49 to 66 ft) of construction 
activities (Hanan & Associates 2016).
    Children's Pool is designated as a shared-use beach. The beach and 
surrounding waters are used for swimming, surfing, kayaking, diving, 
tide pooling, and nature watching. Harbor seals, in particular, draw 
many visitors. During the harbor seal pupping season (December 15 
through May 15), the beach is closed to the public. Outside of the 
pupping season, beach access and recreational uses are permitted by the 
City, provided that there is no direct harassment of harbor seals. A 
guideline rope strung along the upper part of the beach, as well as 
signage, encourage the public to respect the seals in the area and view 
them at a safe distance. Studies indicate that harbor seals are 
habituated to human presence at Children's Pool (Tierra Data 2015); 
however, habituation or reaction to human activity depends on the 
individual seal and the circumstances.
    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see ``Proposed 
Mitigation'' and ``Proposed Monitoring and Reporting'').

Description of Marine Mammals in the Area of Specified Activities

    Three species are considered to co-occur with the City's planned 
activities: Harbor seals (Phoca vitulina), which are by far the 
dominant observed marine mammal in the project area, as well as 
California sea lions (Zalophus californianus) and northern elephant 
seals (Mirounga angustirostris) which also occasionally haul out in the 
project area, in far lower numbers. This section provides summary 
information regarding local occurrence of these species. We have 
reviewed the City's detailed species descriptions, including life 
history information, for accuracy and completeness and refer the reader 
to Sections 3 and 4 of the City's IHA application, as well as to NMFS's 
Stock Assessment Reports (SAR; www.nmfs.noaa.gov/pr/sars/), instead of 
reprinting all of the information here. Additional general information 
about these species (e.g., physical and behavioral descriptions) may be 
found on NMFS's Web site (www.nmfs.noaa.gov/pr/species/mammals/).
    Northern fur seals (Callorhinus ursinus) and Guadalupe fur seals 
(Arctocephalus townsendi) have been observed at beaches near the 
project location on rare occasions, and a northern fur seal was 
recently observed hauled out at La Jolla Cove, less than a mile from 
Children's Pool beach (pers comm D. Hanan, Hanan & Associates, to D. 
Youngkin, NMFS, Feb 4, 2016). Beginning in January 2015, elevated 
strandings of Guadalupe fur seal pups and juveniles were observed in 
California. The Working Group on Marine Mammal Unusual Mortality Events 
determined that the ongoing stranding event meets the criteria for an 
Unusual Mortality event (UME) and declared strandings of Guadalupe fur 
seals from 2015 through 2017 to be one continuous UME. The causes and 
mechanisms of this UME remain under investigation. Fur seals do not 
generally to haul out in urban mainland beaches such as Children's 
Pool, and their presence would likely be attributed to sickness or 
injury if they were observed in the project location. Therefore, their 
occurrence at Children's Pool would be considered extralimital and 
would not be expected. Thus these species are not considered further in 
this proposed

[[Page 19224]]

IHA. The planned activities would not be conducted if marine mammal 
species other than those proposed for authorization in this document 
were present on Children's Pool.
    Table 2 lists all species with expected potential for occurrence in 
the project location and summarizes information related to the 
population or stock, including PBR, where known. For taxonomy, we 
follow Committee on Taxonomy (2016). For status of species, we provide 
information regarding U.S. regulatory status under the MMPA and ESA. 
Abundance estimates presented here represent the total number of 
individuals that make up a given stock or the total number estimated 
within a particular study area. NMFS's stock abundance estimates for 
most species represent the total estimate of individuals within the 
geographic area, if known, that comprises that stock. For some species, 
this geographic area may extend beyond U.S. waters. PBR, defined by the 
MMPA as the maximum number of animals, not including natural 
mortalities, that may be removed from a marine mammal stock while 
allowing that stock to reach or maintain its optimum sustainable 
population, is considered in concert with known sources of ongoing 
anthropogenic mortality to assess the population-level effects of the 
anticipated mortality from a specific project (as described in NMFS's 
SARs). While no mortality is anticipated or authorized here, PBR and 
annual serious injury and mortality are included here as gross 
indicators of the status of the species and other threats.
    All values presented in Table 2 are the most recent available at 
the time of publication and are available in NMFS's SARs (e.g., 
Carretta et al., 2016). Please see the SARs, available at 
www.nmfs.noaa.gov/pr/sars, for more detailed accounts of these stocks' 
status and abundance.

                                         Table 2--Marine Mammal Species Potentially Present in the Project Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  Stock abundance  (CV,                              Relative occurrence
                                                              ESA/MMPA status;      Nmin, most recent                 Annual M/SI     in project area;
              Species                       Stock           Strategic (Y/N) \1\   abundance survey) \2\    PBR \3\        \4\             season of
                                                                                                                                         occurrence
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      Family Otariidae (eared seals and sea lions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
California sea lion...............  U.S..................  -; N.................  296,750 (n/a;               9,200          389    Abundant; year-round
                                                                                   153,337; 2011).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Family Phocidae (earless seals)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal.......................  California...........  -; N.................  30,968 (n/a; 27,348;        1,641           43    Rare; year-round
                                                                                   2012).
Northern elephant seal............  California breeding..  -; N.................  179,000 (n/a; 81,368;       4,882            8.8  Rare; year-round
                                                                                   2010).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of
  stock abundance. In some cases, CV is not applicable.
\3\ Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a
  marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP).
\4\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike).

Harbor Seals

    Harbor seals inhabit coastal and estuarine waters and shoreline 
areas of the northern hemisphere from temperate to polar regions. The 
eastern North Pacific subspecies is found from Baja California north to 
the Aleutian Islands and into the Bering Sea. Multiple lines of 
evidence support the existence of geographic structure among harbor 
seal populations from California to Alaska (Carretta et al., 2016). 
However, because stock boundaries are difficult to meaningfully draw 
from a biological perspective, three separate harbor seal stocks are 
recognized for management purposes along the west coast of the 
continental U.S.: (1) Washington inland waters (2) Oregon and 
Washington coast, and (3) California (Carretta et al., 2016). Placement 
of a stock boundary at the California-Oregon border is not based on 
biology but is considered a political and jurisdictional convenience 
(Carretta et al., 2016). In addition, harbor seals may occur in Mexican 
waters, but these animals are not considered part of the California 
stock. Only the California stock is expected to be found in the project 
area.
    Harbor seals are not protected under the Endangered Species Act 
(ESA); the California stock is not listed as depleted under the MMPA, 
and is not considered a strategic stock under the MMPA because annual 
human-caused mortality (43) is significantly less than the calculated 
potential biological removal (PBR; 1,641) (Carretta et al., 2016). The 
population appears to be stabilizing at what may be its carrying 
capacity and fishery mortality is declining. The best abundance 
estimate of the California stock of harbor seals is 30,968 and the 
minimum population size of this stock is 27,348 individuals (Carretta 
et al., 2016).
    The beaches and rocks at, or near, the Children's Pool are known 
haul out sites for harbor seals. Starting in the mid-1990s there was an 
increase in numbers of harbor seals using the beaches and rocks in the 
area around Children's Pool (Yochem and Stewart 1998). As a result, the 
City commissioned several studies for harbor seal abundance trends at 
this site (Yochem and Stewart 1998; Hanan & Associates 2004, 2011). 
Abundances at any given time may range from a low of 0 to 15 seals to a 
maximum that rarely exceeds 200 seals at Children's Pool, and 250 
individuals in the vicinity (Linder 2011; Hanan & Associates 2014).
    When abundances are low, seals tend to cluster on the western side 
of Children's Pool, and when abundances are high, the seals spread out 
along the beach. A limiting factor to the maximum number of individuals 
observed at Children's Pool at any given time likely relates to the 
area available for haulouts (Linder 2011). Several factors influence 
the variability in harbor seal abundance, including daily foraging and 
resting patterns, season, weather conditions, and movements by 
transient individuals. Generally, the highest abundances occur during 
the months of April and May, at the end of the

[[Page 19225]]

pupping season and beginning of the molting season (Linder 2011).
    Radio tagging and photographic studies have identified that only a 
portion of seals utilizing a haulout site are present at any specific 
moment or day (Hanan 1996, 2005; Gilbert et.al. 2005; Harvey and Goley 
2011; Linder 2011; Hanan & Associates 2014). These studies further 
indicate that seals are constantly moving along the coast, including 
to/from offshore islands (California Channel Islands, Las Islas 
Coronados). Linder (2011) estimated that there may be as many as 600 
harbor seals using Children's Pool beach during a year associated with 
the coastal movements of transient individuals, and suggested that the 
haul out at Children's Pool Beach is possibly part of a regional 
network of interconnected resting and pupping sites.

California Sea Lion

    California sea lions range from the Gulf of California north to the 
Gulf of Alaska, with breeding areas located in the Gulf of California, 
western Baja California, and southern California. Five genetically 
distinct geographic populations have been identified: (1) Pacific 
Temperate, (2) Pacific Subtropical, (3) Southern Gulf of California, 
(4) Central Gulf of California and (5) Northern Gulf of California 
(Schramm et al., 2009). Rookeries for the Pacific Temperate population 
are found within U.S. waters and just south of the U.S.-Mexico border, 
and animals belonging to this population may be found from the Gulf of 
Alaska to Mexican waters off Baja California. Animals belonging to 
other populations (e.g., Pacific Subtropical) may range into U.S. 
waters during non-breeding periods. For management purposes, a stock of 
California sea lions comprising those animals at rookeries within the 
U.S. is defined (i.e., the U.S. stock of California sea lions) 
(Carretta et al., 2016). Pup production at the Coronado Islands rookery 
in Mexican waters is considered an insignificant contribution to the 
overall size of the Pacific Temperate population (Lowry and Maravilla-
Chavez, 2005).
    California sea lions are not protected under the ESA and the U.S. 
stock of California sea lions is not listed as depleted under the MMPA. 
Total annual human-caused mortality (389) is substantially less than 
the PBR (estimated at 9,200 per year); therefore, California sea lions 
are not considered a strategic stock under the MMPA. There are 
indications that the California sea lion may have reached or is 
approaching carrying capacity, although more data are needed to confirm 
that leveling in growth persists (Carretta et al., 2016). The best 
abundance estimate of the U.S. stock is 296,750 and the minimum 
population size of this stock is 153,337 individuals (Carretta et al., 
2016).
    Beginning in January 2013, elevated strandings of California sea 
lion pups were observed in southern California, with live sea lion 
strandings nearly three times higher than the historical average. 
Findings to date indicate that a likely contributor to the large number 
of stranded, malnourished pups was a change in the availability of sea 
lion prey for nursing mothers, especially sardines. The Working Group 
on Marine Mammal Unusual Mortality Events determined that the ongoing 
stranding event meets the criteria for a UME and declared California 
sea lion strandings from 2013 through 2016 to be one continuous UME. 
The causes and mechanisms of this event remain under investigation 
(www.nmfs.noaa.gov/pr/health/mmume/californiasealions2013.htm).
    California sea lions have been observed in the water, or on the 
beach or rocks at and near Children's Pool, though these areas are used 
only occasionally as haulout locations for the species (Yochem and 
Stewart 1998; Hanan & Associates 2004, 2011; Linder 2011). Monitoring 
associated with the Children's Pool Lifeguard Station construction 
project from June 28, 2015-June 27, 2016 documented a total of 71 
California sea lions on Children's Pool beach, as well as 83 California 
sea lions on seal rock (an outcropping approximately 91 m north of the 
beach); five California sea lions on South Casa Beach; and one 
California sea lion on the offshore reef off South Casa Beach (Hanan & 
Associates 2016). Observers recorded data only during construction, so 
it is possible there were more days throughout the year in which 
California sea lions hauled out on the beach. Evaluation of Children's 
Pool docent data from 2014 to 2016 (Seal Conservancy 2016), indicates 
that California sea lions were observed on Children's Pool beach on 67 
days in 2014, 14 days in 2015, and 95 days in 2016.

Northern Elephant Seals

    Northern elephant seals gather at breeding areas, located primarily 
on offshore islands of Baja California and California, from 
approximately December to March before dispersing for feeding. Males 
feed near the eastern Aleutian Islands and in the Gulf of Alaska, while 
females feed at sea south of 45[deg] N (Stewart and Huber, 1993; Le 
Boeuf et al., 1993). Adults then return to land between March and 
August to molt, with males returning later than females, before 
dispersing again to their respective feeding areas between molting and 
the winter breeding season. Populations of northern elephant seals in 
the U.S. and Mexico are derived from a few tens or hundreds of 
individuals surviving in Mexico after being nearly hunted to extinction 
(Stewart et al., 1994). Given the recent derivation of most rookeries, 
no genetic differentiation would be expected. Although movement and 
genetic exchange continues between rookeries, most elephant seals 
return to their natal rookeries when they start breeding (Huber et al., 
1991). The California breeding population is now demographically 
isolated from the Baja California population and is considered to be a 
separate stock.
    Northern elephant seals are not protected under the ESA and the 
California breeding population is not listed as depleted under the 
MMPA. Total annual human-caused mortality (8.8) is substantially less 
than the PBR (estimated at 4,882 per year); therefore, northern 
elephant seals are not considered a strategic stock under the MMPA. 
Modeling of pup counts indicates that the population has reached its 
Maximum Net Productivity Level, but has not yet reached carrying 
capacity (Carretta et al., 2016). The best abundance estimate of the 
California breeding population of northern elephant seals is 179,000 
and the minimum population size of this stock is 81,368 individuals 
(Carretta et al., 2016).
    Northern elephant seals have been observed in the water, or on the 
beach or rocks at and near Children's Pool, though these areas are used 
only occasionally as haulout locations for the species (Yochem and 
Stewart 1998; Hanan & Associates 2004, 2011; Linder 2011). During 
monitoring associated with the Children's Pool Lifeguard Station 
construction project, juvenile northern elephant seals were documented 
on Children's Pool beach on a total of 26 days in the period from June 
28, 2015-June 27, 2016 (Hanan & Associates 2016), and 28 days in the 
period from June 28, 2014-June 27, 2015 (Hanan & Associates 2015). 
Observers recorded data only during construction, so it is possible 
there were more days throughout the year in which elephant seals hauled 
out on the beach. Children's Pool docent data indicates that Northern 
elephant seals used the beach as a haulout location on 38 days in 2014 
and 36 days in 2015 (Seal Conservancy 2016).

[[Page 19226]]

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The ``Estimated Take by Incidental Harassment'' section 
later in this document will include a quantitative analysis of the 
number of individuals that are expected to be taken by this activity. 
The ``Negligible Impact Analysis and Determination'' section will 
consider the content of this section, the ``Estimated Take by 
Incidental Harassment'' section, and the ``Proposed Mitigation'' 
section, to draw conclusions regarding the likely impacts of these 
activities on the reproductive success or survivorship of individuals 
and how those impacts on individuals are likely to impact marine mammal 
species or stocks.

Description of Sound Sources

    Acoustic sources associated with the City's proposed activities are 
expected to include various types of construction and demolition 
equipment, such as jackhammers, concrete saws, cement pumps, and hand 
tools (Table 1). Sound sources may be pulsed or non-pulsed.
    Pulsed sound sources (e.g., sonic booms, explosions, gunshots, 
impact pile driving) produce signals that are brief (typically 
considered to be less than one second), broadband, atonal transients 
(ANSI 1986; Harris 1998; NIOSH 1998; ISO 2003; ANSI 2005) and occur 
either as isolated events or repeated in some succession. Pulsed sounds 
are all characterized by a relatively rapid rise from ambient pressure 
to a maximal pressure value followed by a rapid decay period that may 
include a period of diminishing, oscillating maximal and minimal 
pressures, and generally have an increased capacity to induce physical 
injury as compared with sounds that lack these features.
    Non-pulsed sounds can be tonal, narrowband, or broadband, brief or 
prolonged, and may be either continuous or non-continuous (ANSI 1995; 
NIOSH 1998). Some of these non-pulsed sounds can be transient signals 
of short duration but without the essential properties of pulses (e.g., 
rapid rise time). Examples of non-pulsed sounds include those produced 
by rocket launches and landings, vessels, aircraft, machinery 
operations such as drilling or dredging, and vibratory pile driving. 
The duration of such sounds, as received at a distance, can be greatly 
extended in a highly reverberant environment.
    Sound travels in waves, the basic components of which are 
frequency, wavelength, velocity, and amplitude. Frequency is the number 
of pressure waves that pass by a reference point per unit of time and 
is measured in hertz (Hz) or cycles per second. Wavelength is the 
distance between two peaks of a sound wave; lower frequency sounds have 
longer wavelengths than higher frequency sounds and attenuate 
(decrease) more rapidly in shallower water. Amplitude is the height of 
the sound pressure wave or the `loudness' of a sound and is typically 
measured using the decibel scale. A dB is the ratio between a measured 
pressure (with sound) and a reference pressure (sound at a constant 
pressure, established by scientific standards). It is a logarithmic 
unit that accounts for large variations in amplitude; therefore, 
relatively small changes in dB ratings correspond to large changes in 
sound pressure. When referring to sound pressure levels (SPLs; the 
sound force per unit area), sound is referenced in the context of 
underwater sound pressure to 1 microPascal ([mu]Pa). One pascal is the 
pressure resulting from a force of one newton exerted over an area of 
one square meter. The source level (SL) represents the sound level at a 
distance of 1 m from the source (referenced to 1 [mu]Pa). The received 
level is the sound level at the listener's position. Note that all 
underwater sound levels in this document are referenced to a pressure 
of 1 [micro]Pa and all airborne sound levels in this document are 
referenced to a pressure of 20 [micro]Pa.
    Root mean square (rms) is the quadratic mean sound pressure over 
the duration of an impulse, and is calculated by squaring all of the 
sound amplitudes, averaging the squares, and then taking the square 
root of the average (Urick 1983). Root mean square accounts for both 
positive and negative values; squaring the pressures makes all values 
positive so that they may be accounted for in the summation of pressure 
levels (Hastings and Popper 2005). This measurement is often used in 
the context of discussing behavioral effects, in part because 
behavioral effects, which often result from auditory cues, may be 
better expressed through averaged units than by peak pressures.

Acoustic Effects

    Here, we first provide background information on marine mammal 
hearing before discussing the potential effects of acoustic sources on 
marine mammals.
    To appropriately assess the potential effects of exposure to sound, 
it is necessary to understand the frequency ranges marine mammals are 
able to hear. Current data indicate that not all marine mammal species 
have equal hearing capabilities (e.g., Richardson et al., 1995; Wartzok 
and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et 
al. (2007) recommended that marine mammals be divided into functional 
hearing groups based on directly measured or estimated hearing ranges 
on the basis of available behavioral response data, audiograms derived 
using auditory evoked potential techniques, anatomical modeling, and 
other data. Subsequently, NMFS (2016) described generalized hearing 
ranges for these marine mammal hearing groups. Generalized hearing 
ranges were chosen based on the approximately 65 dB threshold from the 
normalized composite audiograms, with the exception for lower limits 
for low-frequency cetaceans where the lower bound was deemed to be 
biologically implausible and the lower bound from Southall et al. 
(2007) retained. The functional groups and the associated frequencies 
are indicated below (note that these frequency ranges correspond to the 
range for the composite group, with the entire range not necessarily 
reflecting the capabilities of every species within that group):
     Low-frequency cetaceans (mysticetes): Generalized hearing 
is estimated to occur between approximately 7 Hz and 35 kHz, with best 
hearing estimated to be from 100 Hz to 8 kHz;
     Mid-frequency cetaceans (larger toothed whales, beaked 
whales, and most delphinids): Generalized hearing is estimated to occur 
between approximately 150 Hz and 160 kHz, with best hearing from 10 to 
less than 100 kHz;
     High-frequency cetaceans (porpoises, river dolphins, and 
members of the genera Kogia and Cephalorhynchus; including two members 
of the genus Lagenorhynchus, on the basis of recent echolocation data 
and genetic data): Generalized hearing is estimated to occur between 
approximately 275 Hz and 160 kHz.
     Pinnipeds in water; Phocidae (true seals): Generalized 
hearing is estimated to occur between approximately 50 Hz to 86 kHz, 
with best hearing between 1-50 kHz;
     Pinnipeds in water; Otariidae (eared seals): Generalized 
hearing is estimated to occur between 60 Hz and 39 kHz, with best 
hearing between 2-48 kHz.
    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range

[[Page 19227]]

(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2016) for a review of available information. 
Three marine mammal species (one otariid and two phocid pinnipeds) have 
the reasonable potential to co-occur with the proposed survey 
activities. Please refer to Table 2.
    The effects of sounds on marine mammals are dependent on several 
factors, including the species, size, behavior (feeding, nursing, 
resting, etc.), and depth (if underwater) of the animal; the intensity 
and duration of the sound; and the sound propagation properties of the 
environment. Impacts to marine species can result from physiological 
and behavioral responses to both the type and strength of the acoustic 
signature (Viada et al., 2008). The type and severity of behavioral 
impacts are more difficult to define due to limited studies addressing 
the behavioral effects of sounds on marine mammals. Potential effects 
from impulsive sound sources can range in severity from effects such as 
behavioral disturbance or tactile perception to physical discomfort, 
slight injury of the internal organs and the auditory system, or 
mortality (Yelverton et al., 1973).
    The effects of sounds from the proposed activities are expected to 
result in behavioral disturbance of marine mammals. Due to the expected 
sound levels of the equipment proposed for use and the distance of the 
planned activity from marine mammal habitat, the effects of sounds from 
the proposed activities are not expected to result in temporary or 
permanent hearing impairment (TTS and PTS, respectively), non-auditory 
physical or physiological effects, or masking in marine mammals. Data 
from monitoring reports associated with IHAs issued previously for 
similar activities in the same location as the planned activities 
provides further support for the assertion that TTS, PTS, non-auditory 
physical or physiological effects, and masking are not likely to occur 
(Hanan & Associates 2014; 2015; 2016). Therefore, TTS, PTS, non-
auditory physical or physiological effects, and masking are not 
discussed further in this section.

Disturbance Reactions

    Disturbance includes a variety of effects, including subtle changes 
in behavior, more conspicuous changes in activities, and displacement. 
Behavioral responses to sound are highly variable and context-specific 
and reactions, if any, depend on species, state of maturity, 
experience, current activity, reproductive state, auditory sensitivity, 
time of day, and many other factors (Richardson et al., 1995; Wartzok 
et al., 2003; Southall et al., 2007).
    Habituation can occur when an animal's response to a stimulus wanes 
with repeated exposure, usually in the absence of unpleasant associated 
events (Wartzok et al., 2003). Animals are most likely to habituate to 
sounds that are predictable and unvarying. The opposite process is 
sensitization, when an unpleasant experience leads to subsequent 
responses, often in the form of avoidance, at a lower level of 
exposure. Behavioral state may affect the type of response as well. For 
example, animals that are resting may show greater behavioral change in 
response to disturbing sound levels than animals that are highly 
motivated to remain in an area for feeding (Richardson et al., 1995; 
NRC, 2003; Wartzok et al., 2003).
    Controlled experiments with captive marine mammals have shown 
pronounced behavioral reactions, including avoidance of loud underwater 
sound sources (Ridgway et al., 1997; Finneran et al., 2003). Observed 
responses of wild marine mammals to loud pulsed sound sources 
(typically seismic guns or acoustic harassment devices) have been 
varied but often consist of avoidance behavior or other behavioral 
changes suggesting discomfort (Morton and Symonds, 2002; Thorson and 
Reyff, 2006; see also Gordon et al., 2004; Wartzok et al., 2003; 
Nowacek et al., 2007).
    The onset of noise can result in temporary, short term changes in 
an animal's typical behavior and/or avoidance of the affected area. 
These behavioral changes may include (Richardson et al., 1995): 
Reduced/increased vocal activities; changing/cessation of certain 
behavioral activities (such as socializing or feeding); visible startle 
response or aggressive behavior; avoidance of areas where sound sources 
are located; and/or flight responses.
    The biological significance of many of these behavioral 
disturbances is difficult to predict, especially if the detected 
disturbances appear minor. However, the consequences of behavioral 
modification could potentially be biologically significant if the 
change affects growth, survival, or reproduction. The onset of 
behavioral disturbance from anthropogenic sound depends on both 
external factors (characteristics of sound sources and their paths) and 
the specific characteristics of the receiving animals (hearing, 
motivation, experience, demography) and is difficult to predict 
(Southall et al., 2007).
    Marine mammals that occur in the project area could be exposed to 
airborne sounds associated with construction and demolition activities 
that have the potential to result in behavioral harassment, depending 
on an animal's distance from the sound. Airborne sound could 
potentially affect pinnipeds that are hauled out. Most likely, airborne 
sound would cause behavioral responses similar to those discussed above 
in relation to underwater sound. For instance, anthropogenic sound 
could cause hauled out pinnipeds to exhibit changes in their normal 
behavior, such as reduction in vocalizations, or cause them to 
temporarily abandon their habitat and move further from the source. 
Hauled out pinnipeds may flush into the water, which can potentially 
result in pup abandonment. Site-specific monitoring data described 
below indicate that pup abandonment is not likely to occur at this site 
as a result of the specified activity.

Behavioral Responses of Pinnipeds to Construction and Demolition

    The City has monitored pinniped responses to construction at 
Children's Pool beach for the past three years as a requirement of 
previously issued IHAs for construction of the lifeguard station on the 
bluffs above Children's Pool (NMFS 2013; 2014; 2015). The equipment 
associated with the planned construction and demolition activities at 
Coast Boulevard would be very similar to the equipment associated with 
the IHAs issued previously for the lifeguard station construction 
project, sound levels are expected to be substantially similar, and the 
project location and marine mammal species affected are expected to be 
the same. Thus, we rely on observational data on responses of pinnipeds 
to demolition and construction of the lifeguard station at Children's 
Pool beach in drawing conclusions about expected pinniped responses to 
sound associated with the planned project.
    NMFS previously issued three consecutive IHAs to the City of San 
Diego for the incidental take of marine mammals associated with the 
demolition of the existing lifeguard station at Children's Pool beach 
and the construction of a new lifeguard station at the same location, 
from June 2013 through June 2016 (NMFS 2013; 2014; 2015). The first IHA 
was effective June 28, 2013 through June 27, 2014; the second IHA was 
valid June 28, 2014 through June 27, 2015; the third IHA was valid June 
28, 2015 through June 27, 2016. All of the IHAs authorized take of 
Pacific harbor seals, California

[[Page 19228]]

sea lions, and northern elephant seals, in the form of Level B 
harassment, incidental to demolition and construction activities.
    From 2013-2016, protected species observers collected data over a 
total of 3,376 hourly counts at seven sites around the project and 
Children's Pool beach. Observed reactions of pinnipeds at Children's 
Pool to demolition and construction of the lifeguard station ranged 
from no response to heads-up alerts, from startle responses to some 
movements on land, and some movements into the water (Hanan & 
Associates 2014; 2015; 2016). There were no documented occurrences of 
take by Level A harassment throughout the three years of monitoring 
(Hanan & Associates 2014; 2015; 2016). Data from the three years of 
monitoring also suggests there was no site abandonment on the part of 
harbor seals a result of the project (Hanan & Associates 2014; 2015; 
2016). Based on the data from these three previously issued IHAs, we 
expect that any behavioral responses by pinnipeds to the planned 
project would be very similar to those that resulted from the 
previously authorized lifeguard station project: From no response to 
heads-up alerts, startle responses, some movements on land, and some 
movements into the water (flushing).

Estimated Take by Incidental Harassment

    This section provides an estimate of the number of incidental takes 
proposed for authorization through this IHA, which will inform both 
NMFS' consideration of whether the number of takes is ``small'' and the 
negligible impact determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of 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 authorized takes would be by Level B harassment only, in the 
form of disruption of behavioral patterns for individual marine mammals 
resulting from exposure to sounds associated with the planned 
construction and demolition activities. Based on the nature of the 
activity, Level A harassment is neither anticipated nor proposed to be 
authorized. The death of a marine mammal is also a type of incidental 
take. However, in the case of the planned project it is unlikely that 
injurious or lethal takes would occur even in the absence of the 
planned mitigation and monitoring measures, and no mortality is 
anticipated or proposed to be authorized for this activity. The current 
NMFS thresholds for behavioral harassment of pinnipeds from airborne 
noise are shown in Table 3.

  Table 3--Current NMFS Criteria for Pinniped Harassment Resulting From
                       Exposure to Airborne Sound
------------------------------------------------------------------------
                                  Level B harassment  Level A harassment
             Species                   threshold           threshold
------------------------------------------------------------------------
Harbor seals....................  90 dB re 20         Not defined
                                   [micro]Pa.
Other pinniped species..........  100 dB re 20        Not defined
                                   [micro]Pa.
------------------------------------------------------------------------

    NMFS currently uses a three-tiered scale to determine whether the 
response of a pinniped on land to acoustic or visual stimuli is 
considered an alert, a movement, or a flush. NMFS considers the 
behaviors that meet the definitions of both movements and flushes to 
qualify as behavioral harassment. Thus a pinniped on land is considered 
by NMFS to have been behaviorally harassed if it moves greater than two 
times its body length, or if the animal is already moving and changes 
direction and/or speed, or if the animal flushes from land into the 
water. Animals that become alert without such movements are not 
considered harassed. See Table 4 for a summary of the pinniped 
disturbance scale.

       Table 4--Levels of Pinniped Behavioral Disturbance on Land
------------------------------------------------------------------------
                                   Type of
            Level                  response            Definition
------------------------------------------------------------------------
1............................  Alert..........  Seal head orientation or
                                                 brief movement in
                                                 response to
                                                 disturbance, which may
                                                 include turning head
                                                 towards the
                                                 disturbance, craning
                                                 head and neck while
                                                 holding the body rigid
                                                 in a u-shaped position,
                                                 changing from a lying
                                                 to a sitting position,
                                                 or brief movement of
                                                 less than twice the
                                                 animal's body length.
2............................  Movement.......  Movements away from the
                                                 source of disturbance,
                                                 ranging from short
                                                 withdrawals at least
                                                 twice the animal's body
                                                 length to longer
                                                 retreats over the
                                                 beach, or if already
                                                 moving a change of
                                                 direction of greater
                                                 than 90 degrees.
3............................  Flush..........  All retreats (flushes)
                                                 to the water.
------------------------------------------------------------------------

    Given the many uncertainties in predicting the quantity and types 
of impacts of sound on marine mammals, it is common practice to 
estimate how many animals are likely to be present within a particular 
distance of a given activity, or exposed to a particular level of 
sound. In practice, depending on the amount of information available to 
characterize daily and seasonal movement and distribution of affected 
marine mammals, it can be difficult to distinguish between the number 
of individuals harassed and the instances of harassment and, when 
duration of the activity is considered, it can result in a take 
estimate that overestimates the number of individuals harassed. In 
particular, for stationary activities such as the proposed project, it 
is more likely that some smaller number of individuals may accrue a 
number of incidences of harassment per individual than for each 
incidence to accrue to a new individual, especially if those 
individuals display some degree of residency or site fidelity and the 
impetus to use the site is stronger than the deterrence presented by 
the harassing activity.
    The take calculations presented here rely on the best information 
currently available for marine mammal populations in the Children's 
Pool area. Below we describe how the take was estimated for the planned 
project.

Pacific Harbor Seal

    The take estimate for harbor seal was based on the following steps:
    (1) Estimate the total area (m\2\) of harbor seal haulout habitat 
available at Children's Pool;
    (2) Estimate the total area of available haulout habitat expected 
to be ensonified to the airborne Level B

[[Page 19229]]

harassment threshold for harbor seals (90 dB re 20 [micro]Pa) based on 
total haulout area and the percentage of total haulout area expected to 
be ensonified to the Level B harassment threshold;
    (3) Estimate the daily number of seals exposed to sounds above 
Level B harassment threshold by multiplying the total area of haulout 
habitat expected to be ensonified to the Level B threshold by the 
expected daily number of seals on Children's Pool;
    (4) Estimate the total number of anticipated harbor seals taken 
over the duration of the project by multiplying the daily number of 
seals exposed to noise above the Level B harassment threshold by the 
number of total project days in which project-related sounds may exceed 
the Level B harassment threshold.
    As described above, Children's Pool is designated as a shared-use 
beach. The beach and surrounding waters are used for swimming, surfing, 
kayaking, diving, tide pooling, and nature watching, thus the beach is 
shared between humans and pinnipeds. To discourage people from 
harassing pinnipeds hauled out on the beach, a guideline rope, oriented 
parallel to the water, bisects the beach into upper (western) and lower 
(eastern) beach areas; people are encouraged to stay on the western 
side of the guideline rope, allowing seals to use the eastern section 
of beach that provides access to the water. The City's estimate of 
available pinniped habitat was based on the total area of the beach 
between the guideline rope and the mean lower low water line. Thus, the 
area considered for this analysis to be available as haulout habitat is 
the total area east of the rope and west of the mean lower low water 
line, while the area west of the rope is assumed to be unavailable as 
pinniped habitat (See Figure 5 in the IHA application for the location 
of the guideline rope, and the area assumed to be available haulout 
habitat). The City estimated that there are 2,509 m\2\ east of the 
guideline rope; therefore it is assumed that there is a total of 2,509 
m\2\ of available pinniped habitat on Children's Pool (Figure 5 in IHA 
application).
    The City estimated the area of available harbor seal habitat at 
Children's Pool beach that would be ensonified to the Level B 
harassment threshold by estimating the distance to the Level B 
harassment threshold from sounds associated with the planned 
activities, then calculating the percentage of available haulout 
habitat at Children's Pool that would be ensonified to that threshold 
based on the total available habitat and the distance to the Level B 
harassment threshold.
    To estimate the distance to the in-air Level B harassment threshold 
for harbor seals (90 dB rms) for the planned project, the City first 
used a spherical spreading loss model, assuming average atmospheric 
conditions. The spreading loss model predicted that the 90 dB isopleth 
would be reached at 10 m (33 ft). However, data from in situ recordings 
conducted during the lifeguard station project at Children's Pool 
indicated that peak sound levels of 90 to 103 dB were recorded at 
distances of 15 m to 20 m (49 to 66 ft) from the source when the 
loudest construction equipment (source levels ranging from 100 to 110 
dB) was operating. The City estimated that the loudest potential sound 
sources associated with the planned project would be approximately 110 
dB rms (Table 1), based on manufacturer specifications and previous 
recordings of similar equipment used during the lifeguard station 
project at Children's Pool (Hanan & Associates 2014; 2015; 2016). 
Therefore, the City estimated that for the sound sources expected to 
result in the largest isopleths (those with SLs estimated at up to 110 
dB), the area expected to be ensonified to the in-air Level B 
harassment threshold for harbor seals (90 dB rms) would extend to 
approximately 20 m from the sound source. To be conservative, the City 
used this distance (20 m) based on the data from previous site-specific 
monitoring, rather than the results of the spherical spreading loss 
model, to estimate the predicted distance to the in-air Level B 
harassment threshold for harbor seals.
    Based on the estimated distance to the in-air Level B harassment 
threshold for harbor seals (20 m from the sound source), the City 
estimated 647 m\2\ of total available harbor seal habitat at Children's 
Pool beach would be ensonified to the Level B harassment threshold, the 
City therefore estimated that approximately 25.8 percent (647/2,509) of 
available harbor seal haulout habitat at Children's Pool beach would be 
ensonified to the Level B harassment threshold (Figure 5 in IHA 
application). This information has been used to derive the take 
estimate only; the entire beach would be observed in order to document 
potential actual take.
    The estimated daily take of harbor seals was based on the number of 
harbor seals expected to occur daily in the area ensonified to the 
Level B harassment threshold. In their IHA application, the City 
estimated that 200 harbor seals would be present on Children's Pool 
beach per day, based on literature that reported this number as the 
maximum number of seals recorded at Children's Pool (Linder 2011). 
However, NMFS believes it is more appropriate to use the average number 
of seals observed on Children's Pool beach, as opposed to the maximum 
number of seals, to estimate the likely number of takes of harbor seals 
as a result of the planned project. During 3,376 hourly counts 
associated with monitoring for IHAs issued for construction and 
demolition at the lifeguard station at Children's Pool in 2013-14, 
2014-15, and 2015-16, there was an average of 54.5 harbor seals 
(including pups) recorded daily on Children's Pool beach (pers. comm., 
D. Hanan, Hanan & Associates, to J. Carduner, NMFS, April 04, 2017). We 
therefore estimated that 55 harbor seals would occur on Children's Pool 
per day, and used this number to estimate take of harbor seals as a 
result of the planned project. Based on an estimate of 55 total harbor 
seals on Children's Pool per day, and an estimated 25.8 percent of 
total haulout habitat ensonified to the Level B harassment threshold 
for harbor seals, we estimated that an average of 14.2 (rounded to 15) 
takes of harbor seals by Level B harassment would occur per day.
    The City estimated that the total duration of the project would be 
164 days. However, activities involving equipment that could result in 
sound source levels of 101-110 dB would occur on a maximum of 108 
project days (pers. comm., D. Langsford, Tierra Data, to, J. Carduner, 
NMFS, April 03, 2017). Based on the distance of the project to 
Children's Pool and previous monitoring reports, we believe it is 
unlikely that project-related activities with expected source levels at 
or below 100 dB rms would result in sound exposure levels at or above 
90 dB among any pinnipeds at Children's Pool. Planned project-related 
activities would occur on top of a natural cliff in an area of 
increasing elevation above the beach, therefore we do not believe 
visual stimuli from the project would result in behavioral harassment 
of any marine mammals. Therefore, we do not expect that activities with 
expected source levels of 100 dB and below would result in take of 
marine mammals. Thus, our take estimate is based on the number of days 
in which source levels associated with the planned project could be 
between 100 and 110 dB rms. Based on an estimate of 15 takes of harbor 
seals per day by Level B harassment, over a total of 108 days the 
project would be expected to result in a total of 1,620 takes of harbor 
seals by Level B harassment. We therefore propose to

[[Page 19230]]

authorize a total of 1,620 incidental takes of harbor seals by Level B 
harassment only. The City requested authorization for the 8,528 takes 
of harbor seals, however, based on the rationale described above, we 
propose to authorize 1,620 incidental takes of 1,620 harbor seals.

California Sea Lion

    As described above, California sea lions are occasional visitors to 
Children's Pool. The most reliable estimates of likely California sea 
lion occurrence in the project area come from monitoring reports 
associated with IHAs issued previously for demolition and construction 
of the lifeguard station at Children's Pool. In 2015-16 there were 71 
observations of California sea lions on Children's Pool over 209 days 
of monitoring, for an average of one California sea lion observed on 
Children's Pool approximately every three days. Based on this ratio, we 
estimate that a total of 55 observations of California sea lions on 
Children's Pool during the entire duration of the project (164 days); 
however as described above we do not think take is likely to occur on 
days in which source levels are below 100 dB. We expect one take of 
California sea lion would occur for every 3 days of the project in 
which source levels are anticipated to be between 101-110 dB (108 total 
days). We therefore propose to authorize 36 incidental takes of 
California sea lions by Level B harassment only. This is considered a 
conservative estimate as the threshold for Level B harassment for 
California sea lions is different than that for harbor seals (Table 3). 
The City requested authorization for 100 takes of California sea lions, 
however we instead propose to authorize 36 incidental takes of 
California sea lions.

Northern Elephant Seal

    As described above, northern elephant seals are occasional visitors 
to Children's Pool. The most reliable estimates of likely northern 
elephant seal occurrence in the project area come from monitoring 
reports associated with IHAs issued previously for demolition and 
construction of the lifeguard station at Children's Pool. In 2015-16 
there were 26 observations of northern elephant seals on Children's 
Pool over 209 days of monitoring, for an average of one northern 
elephant seal observed on Children's Pool approximately every eight 
days. Based on this ratio, we estimate a total of 20 northern elephant 
seals would be observed on Children's Pool during the entire duration 
of the project (164 days); however as described above we do not think 
take is likely to occur on days in which source levels are below 100 
dB. We expect one northern elephant seal take would occur for every 
eight days of the project in which source levels are anticipated to be 
between 101-110 dB (108 total days). We therefore propose to authorize 
14 incidental takes of northern elephant seals by Level B harassment 
only. This is considered a conservative estimate as the threshold for 
Level B harassment for northern elephant seals is different than that 
for harbor seals (Table 3). The City requested authorization for 50 
takes of northern elephant seals, however we instead propose to 
authorize 14 incidental takes of northern elephant seals.

   Table 5--Summary of Estimated Numbers of Marine Mammals Potentially
                      Taken by the Planned Project
------------------------------------------------------------------------
                                     Level A      Level B
             Species                  takes        takes        Total
------------------------------------------------------------------------
Harbor seal......................            0        1,620        1,620
California sea lion..............            0           36           36
Northern elephant seal...........            0           14           14
------------------------------------------------------------------------

Effects of Specified Activities on Subsistence Uses of Marine Mammals

    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.

Proposed Mitigation

    In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, 
NMFS must 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 (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting such 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable impact on species or stocks and their 
habitat, as well as subsistence uses where applicable, we carefully 
balance two primary factors: (1) The manner in which, and the degree to 
which, the successful implementation of the measure(s) is expected to 
reduce impacts to marine mammals, marine mammal species or stocks, and 
their habitat--which considers the nature of the potential adverse 
impact being mitigated (likelihood, scope, range), as well as the 
likelihood that the measure will be effective if implemented; and the 
likelihood of effective implementation, and; (2) the practicability of 
the measures for applicant implementation, which may consider such 
things as cost, impact on operations, and, in the case of a military 
readiness activity, personnel safety, practicality of implementation, 
and impact on the effectiveness of the military readiness activity.
    Any mitigation measure(s) prescribed by NMFS should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    1. Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    2. A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to 
activities expected to result in the take of marine mammals (this goal 
may contribute to 1, above, or to reducing harassment takes only).
    3. A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to activities expected to result in the take of marine mammals

[[Page 19231]]

(this goal may contribute to 1, above, or to reducing harassment takes 
only).
    4. A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to activities 
expected to result in the take of marine mammals (this goal may 
contribute to 1, above, or to reducing the severity of harassment takes 
only).
    5. Avoidance or minimization of adverse effects to marine mammal 
habitat, paying special attention to the food base, activities that 
block or limit passage to or from biologically important areas, 
permanent destruction of habitat, or temporary destruction/disturbance 
of habitat during a biologically important time.
    6. For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.

Mitigation for Marine Mammals and Their Habitat

    The City has proposed several mitigation measures. These measures 
include the following:
     Moratorium during harbor seal pupping season: Demolition 
and construction would be prohibited during the Pacific harbor seal 
pupping season (December 15th to May 15th) and for an additional two 
weeks to accommodate lactation and weaning of late season pups. Thus 
construction would be prohibited from December 15th to May 29th. This 
measure is designed to avoid any potential adverse impacts to pups that 
may otherwise occur, such as abandonment by mothers as a result of 
harassment.
     Activities limited to daylight hours only: Construction 
and demolition would be limited to daylight hours only (7 a.m. to 7 
p.m., or 30 minutes before sunset depending on time of year). This 
measure is designed to facilitate the ability of MMOs to effectively 
monitor potential instances of harassment and to accurately document 
behavioral responses of pinnipeds to project-related activities.
     Timing constraints for very loud equipment: To minimize 
potential impacts to marine mammals, construction and demolition 
activity involving use of very loud equipment (e.g., jackhammers) would 
be scheduled during the daily period of lowest pinniped haul-out 
occurrence, between the hours of 8:30 a.m. to 3:30 p.m., to the maximum 
extent practical. This measure is designed to minimize the number of 
pinnipeds exposed to sounds that may result in harassment. Construction 
and demolition may be extended from 7 a.m. to 7 p.m. (daylight hours 
only) to help ensure the project is completed in 2017, prior to the 
moratorium during the harbor seal pupping season starting December 
15th, so as to reduce the overall duration of the project.
     Marine mammal observers (MMO): Trained MMOs would be used 
to detect and document project-related impacts to marine mammals, 
including any behavioral responses to the project. This measure is 
designed to facilitate the City's ability to increase the understanding 
of the effects of the action on marine mammal species and stocks. More 
information about this measure is contained in the ``Proposed 
Monitoring'' section below.
    Based on our evaluation of the applicant's proposed measures, NMFS 
has preliminarily determined that the proposed mitigation measures 
provide the means effecting the least practicable impact on the 
affected species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.

Proposed Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must 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 
authorizations 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. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density).
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas).
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors.
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks.
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat).
     Mitigation and monitoring effectiveness.

Proposed Monitoring

    The City has developed a Monitoring Plan specific to the project 
which establishes protocols for both acoustic and marine mammal 
monitoring. The objectives of the Monitoring Plan are to observe and 
document real-time sound levels in the project area, to document 
observed behavioral responses to project activities, and to record 
instances of marine mammal harassment. Monitoring would be conducted 
before, during, and after project activities to evaluate the impacts of 
the project on marine mammals. The Monitoring Plan can be found in 
Appendix C of the City's IHA application.
    The Monitoring Plan encompasses both acoustic monitoring and marine 
mammal monitoring. Marine mammal monitoring would be conducted to 
assess the number and species, behavior, and responses of marine 
mammals to project-related activities as well as other sources of 
disturbance, as applicable. Acoustic monitoring would measure in-air 
sound pressure levels during ambient conditions and during project 
activities to measure sound levels associated with the project and to 
determine distances within which Level B acoustic harassment 
disturbance are expected to occur. More details are provided below.

Acoustic Monitoring

    Monitors would collect real-time acoustic data of construction 
activities to determine SPL values during demolition and construction 
activities, and to determine distances to zones within which SPLs are 
expected to meet or exceed airborne Level B harassment thresholds for 
harbor seals and other pinnipeds. Environmental data would also be 
collected to provide information on the weather, visibility, sea state, 
and

[[Page 19232]]

tide conditions during monitoring surveys.
    Sound level meters would be used to document SPLs at near-field and 
far-field locations during all surveys, and to determine the distances 
to Level B harassment thresholds. Far-field locations will include the 
western end of the beach, the middle of the guideline rope and the 
eastern edge of the beach. The total number and locations of the 
monitoring stations would be determined during each survey based on the 
location of construction activities and likelihood for sound levels to 
meet or exceed in-air SPL harassment thresholds in areas where marine 
mammals are observed at Children's Pool. Refer to Section 3 of the 
Monitoring Plan for further details on the acoustic monitoring plan.

Marine Mammal Monitoring

    Marine mammal monitoring would be conducted by qualified MMOs to 
document behavioral responses of marine mammals to the planned project. 
Monitors would document the behavior of marine mammals, the number and 
types of responses to disturbance, and the apparent cause of any 
reactions. Marine mammals displaying behavioral responses to 
disturbance would be assessed for the apparent cause of disturbance. 
All responses to stimuli related to the project would be documented; 
responses that rise to the level of behavioral harassment (Table 4) 
would be documented as takes.
    Marine mammal observations may be made from vantage points on the 
beach or from overlook areas that provide an unobstructed view of the 
beach. Monitoring on the beach would be behind the guideline rope to 
minimize potential disturbance to hauled out marine mammals.
    The following data would be collected during the marine mammal 
monitoring surveys:
     Dates and times of marine mammal observations.
     Location of observations.
     Construction activities occurring during each observation 
period. Any substantial change in construction activities (especially 
cessation) during observation periods should be noted.
     Human activity in the area; number of people on the beach, 
adjacent overlooks, and in the water.
     Counts by species of pinnipeds, and if possible sex and 
age class.
     Number and type of responses to disturbance, such as 
alert, flush, vocalization, or other with a description.
     Apparent cause of reaction.
    The extent of marine mammal monitoring required would depend on 
recorded sound levels of the activities performed; sound levels would 
be verified through acoustic monitoring as described above. At the 
start of each new phase of demolition and construction (i.e., same type 
of activity and equipment), a full day of marine mammal monitoring 
would occur. This monitoring would include a Pre-Construction Activity 
Survey, hourly Construction Activity Surveys, and a Post-Construction 
Activity Survey. Pre-Construction Activity Surveys would include 
recordings of the times of observations, environmental conditions, and 
maximum ambient SPLs at the recording location at the top of the bluff 
adjacent to the project site, and at the three far-field locations, and 
would occur at least 30 minutes prior to the start of construction 
activities. Hourly Construction Activity Surveys would record times of 
observations, environmental conditions, and maximum SPLs at near-field 
and far-field locations. Post-Construction Activity Surveys would 
record times of observations, environmental conditions, and maximum 
ambient SPLs at all monitoring locations surveyed during the 
Construction Activity Surveys. Marine mammal monitoring data will be 
collected, as noted above. The number of days of subsequent monitoring 
required after the first day of monitoring for each new construction 
phase would depend on the results of acoustic monitoring, as follows:
    (a) If Acoustic monitoring on the first day of a new phase of 
construction documents sound levels of 90 dB rms or greater at any far-
field location, then daily monitoring would be required throughout that 
phase of construction.
    (b) If Acoustic monitoring on the first day of a new phase of 
construction documents sound levels of 90 dB rms or greater at the 
near-field location, but not at any far-field location, then a minimum 
of two additional days of monitoring would be required to confirm far-
field sound levels remain less than 90 dB rms for construction phase 
durations of less than 4 weeks. Monitoring would be conducted weekly to 
confirm far-field sound levels remain less than 90 dB rms for 
construction phase durations of greater than 4 weeks. If during the 
additional monitoring, sound levels of 90 dB or greater are recorded at 
any far-field location, then daily monitoring would be required until 
the end of that construction phase.
    (c) If Acoustic monitoring on the first day of a new phase of 
construction documents sound levels of less than 90 dB rms at the near-
field location(s), then one additional day of monitoring would be 
conducted to confirm near-field sound levels remain less than 90 dB 
rms. If a sound level of greater than 90 dB rms is measured at the 
near-field location on the second day of monitoring, then additional 
days of monitoring would be conducted consistent with the specification 
listed under item (b) above.
    Marine mammal monitoring would be conducted by a qualified MMO with 
the following minimum qualifications:
     Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface, 
with the ability to estimate target size and distance; use of 
binoculars may be necessary to correctly identify the target;
     A minimum of a Bachelor's degree in biological science, 
wildlife management, mammalogy, or related field;
     Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience).
     Experience or training in the field identification of 
marine mammals, and identification of marine mammal behavior;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area, as needed; and
     Writing skills sufficient to prepare a report of 
observations.
    As noted above, Guadalupe and northern fur seals would be 
considered extralimital to the project area; however, as fur seals have 
been occasionally observed in the area, the MMO would ensure that take 
of fur seals is avoided. In the event that a fur seal or another 
species of marine mammal for which take is not authorized in the IHA, 
if issued, are observed either on the rocks, beach, or in the water at 
Children's Pool prior to commencement of activities, the MMO would 
alert the stranding network, as the occurrence of these species would 
typically indicate a sick/injured animal, and activities would be 
postponed until coordination with the stranding network is complete 
(including any potential 24-hour or 48-hour wait/observation period) 
and/or the animal either leaves, or is collected by the stranding 
network.
    Marine mammal monitoring protocols are described in greater detail 
in Section 4 of the City's Monitoring Plan.

[[Page 19233]]

Proposed Reporting

    A final monitoring report would include data collected during 
marine mammal monitoring and acoustic and environmental monitoring as 
described above. The monitoring report would include a narrative 
description of project related activities, counts of marine mammals by 
species, sex and age class, a summary of marine mammal species/count 
data, a summary of marine mammal responses to project-related 
disturbance, and responses to other types of disturbances. The 
monitoring report would also include a discussion of seasonal and daily 
variations in the abundance of marine mammals at Children's Pool, the 
relative percentage of marine mammals observed to react to construction 
activities and their observed reactions, and the number of marine 
mammals taken as a result of the project based on the criteria shown in 
Table 4.
    A draft report would be submitted to NMFS within 60 calendar days 
of the completion of acoustic measurements and marine mammal 
monitoring. The results would be summarized in tabular/graphical forms 
and include descriptions of acoustic sound levels and marine mammal 
observations according to type of construction activity and equipment. 
A final report would be prepared and submitted to NMFS within 30 days 
following receipt of comments on the draft report from NMFS. Proposed 
reporting measures are described in greater detail in Section 6 of the 
City's Monitoring Plan.
    If issued, this would be the first IHA issued for the planned 
activity. Monitoring reports from IHAs issued to the City in 2013, 
2014, and 2015 for the lifeguard station construction project at 
Children's Pool reported that pinniped responses to that project ranged 
from no response to heads-up alerts, from startle responses to some 
movements on land, and some movements into the water (Hanan & 
Associates 2014; 2015; 2016). There were no documented occurrences of 
Level A takes throughout the three years of monitoring (Hanan & 
Associates 2014; 2015; 2016). Data from the three years of monitoring 
indicates no site abandonment by harbor seals a result of the project 
(Hanan & Associates 2014; 2015; 2016). Monitoring reports from previous 
IHAs issued to the City for lifeguard tower construction at Children's 
Pool can be found on our Web site at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. The monitoring report from the previous 
IHA issued to the City for a sand quality study at Children's Pool can 
be found on our Web site at: www.nmfs.noaa.gov/pr/permits/incidental/research.htm.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact 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 (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects).
    An estimate of the number of takes alone is not enough information 
on which to base an impact determination. In addition to considering 
estimates of the number of marine mammals that might be ``taken'' 
through harassment, NMFS considers other factors, such as the likely 
nature of any responses (e.g., intensity, duration), the context of any 
responses (e.g., critical reproductive time or location, migration), as 
well as effects on habitat, and the likely effectiveness of the 
mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    If a marine mammal responds to a stimulus by changing its behavior 
(e.g., through relatively minor changes in locomotion direction/speed 
or vocalization behavior), the response may or may not constitute 
taking at the individual level, and is unlikely to affect the stock or 
the species as a whole. However, if a sound source displaces marine 
mammals from an important feeding or breeding area for a prolonged 
period, impacts on animals or on the stock or species could potentially 
be significant (e.g., Lusseau and Bejder 2007; Weilgart 2007).
    Although the City's planned activities may disturb pinnipeds hauled 
out at Children's Pool, any project-related impacts are expected to 
occur to a small, localized group of marine mammals, in relation to the 
overall stocks of marine mammals considered here. Pinnipeds would 
likely become alert or, at most, flush into the water in response to 
sounds from the planned project. Disturbance is not expected to occur 
during particularly sensitive times for any marine mammal species, as 
mitigation measures have been specifically designed to avoid project-
related activity during harbor seal pupping season to eliminate the 
possibility for pup injury or mother-pup separation. No injury, serious 
injury, or mortality is anticipated, nor is the proposed action likely 
to result in long-term impacts such as permanent abandonment of the 
haulout (Hanan & Associates 2016).
    Children's Pool is not known as an important feeding area for 
harbor seals, but does serve as a harbor seal rookery. Therefore, if 
displacement of seals or adverse effects to pups were an expected 
outcome of the planned activity, impacts to the stock could potentially 
result. However, site abandonment is not expected to occur as a result 
of the planned project. We base this expectation on results of previous 
monitoring reports from the three consecutive IHAs issued to the City 
for construction and demolition of the lifeguard station at Children's 
Pool. Over three-plus years of consecutive monitoring (2013-2016) there 
was no site abandonment by harbor seals a result of the project (Hanan 
& Associates 2014; 2015; 2016). Adverse effects to pups are not 
expected to occur. The moratorium on project-related activity during 
the harbor seal pupping season (December 15-May 15) is expected to 
minimize any potential adverse effects to pups such as mother-pup 
separation. Takes of harbor seal as a result of the project are 
expected to be low relative to stock size (approximately five percent). 
Additionally, as there are an estimated 600 harbor seals using 
Children's Pool beach during a year (Linder 2011), proposed authorized 
takes of harbor seals (Table 5) are expected to be repeated incidences 
of take to a smaller number of individuals, and not individuals taken, 
as described above. These takes are not expected to interfere with 
breeding, sheltering or feeding. For the reasons stated above, we do 
not expect the planned project to affect annual rates of recruitment or 
survival for harbor seals.
    Children's Pool does not represent an important feeding or breeding 
area for either northern elephant seals or California sea lion, and 
neither species uses the project location as a pupping site. Takes of 
both species are expected to be very low relative to the stock sizes 
(less than one percent of the stock for each species) and no take by 
Level A harassment is anticipated to occur as a result of the project 
for either northern

[[Page 19234]]

elephant seals or California sea lions. Takes that occur are expected 
to be in the form of behavioral harassment, specifically changes in 
direction or possibly flushing to the water. These takes are not 
expected to interfere with breeding, sheltering or feeding. For the 
reasons stated above, we do not expect the planned project to affect 
annual rates of recruitment or survival for northern elephant seals or 
California sea lions.
    In summary and as described above, the following factors primarily 
support our preliminary determination that the impacts resulting from 
this activity are not expected to adversely affect the species or stock 
through effects on annual rates of recruitment or survival:
     No mortality is anticipated or authorized.
     No injury is expected. Over the course of 3,376 hourly 
counts associated with monitoring for IHAs issued to the City for 
construction and demolition of the lifeguard station at Children's Pool 
in 2013-14, 2014-15, and 2015-16, no takes by Level A harassment were 
documented. As the planned project would entail equipment with similar 
expected sound levels to those that occurred during the lifeguard 
station project at Children's Pool, but would occur further from the 
haulout location than the lifeguard station project, we do not expect 
take by Level A harassment to occur as a result of the planned project.
     Behavioral disturbance--Takes are expected to be in the 
form of behavioral disturbance only. Based on the sound levels 
anticipated and based on the monitoring reports from previous IHAs 
issued for similar activities at the same location, behavioral 
responses are expected to range from no response to alerts, to 
movements or changes in direction, to possible movements into the water 
(flushes). Planned mitigation described above is expected to limit the 
number and/or severity of behavioral responses, and those that occur 
are not expected to be severe.
     Important Areas--As described above, there are no 
important feeding, breeding or pupping areas that would be affected by 
the planned project for northern elephant seals and California sea 
lions. For harbor seal, Children's Pool represents a pupping location. 
However, as described above, mitigation measures including the 
moratorium during pupping season (December 15 to May 15) are expected 
to avoid any potential impacts to pups, such as mother-pup separation. 
Data from the three years of monitoring suggests that despite 
documented instances of harassment resulting from the lifeguard station 
project, there was no site abandonment a result of the project (Hanan & 
Associates 2014; 2015; 2016). Therefore, the planned project is not 
expected to negatively affect pups of any species, and is not expected 
to result in any impacts to annual rates of recruitment or survival.
     Species/Stock scale--As described above, the planned 
project would impact only a very small percentage of the stocks 
(approximately five percent for harbor seal, less than one percent for 
northern elephant seal and California sea lion) and would only impact 
all marine mammal stocks over a very small portion of their ranges.
     Species/stock status--No marine mammal species for which 
take authorization is proposed are listed as threatened or endangered 
under the ESA and no mammal stocks for which take authorization is 
proposed are determined to be strategic or depleted under the MMPA.
    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 proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed activity will have a negligible impact on 
all affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Section 101(a)(5)(D) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, NMFS compares the number of 
individuals taken to the most appropriate estimation of abundance of 
the relevant species or stock in our determination of whether an 
authorization is limited to small numbers of marine mammals.
    The numbers of marine mammals authorized to be taken for harbor 
seal, California sea lion, and northern elephant seal, would be 
considered small relative to the relevant stocks or populations 
(approximately five percent for harbor seal and less than one percent 
for northern elephant seal and California sea lion) even if each 
estimated take occurred to a new individual. However we believe it is 
extremely unlikely that each estimated take would occur to a new 
individual, and more likely that multiple takes would accrue to the 
same individuals.
    As described above, depending on the amount of information 
available to characterize daily and seasonal movement and distribution 
of affected marine mammals, it can be difficult to distinguish between 
the number of individuals harassed and the instances of harassment, and 
this can result in a take estimate that overestimates the number of 
individuals harassed. In particular, for stationary activities, such as 
the proposed project, it is more likely that some smaller number of 
individuals may accrue a number of incidences of harassment per 
individual than for each incidence to accrue to a new individual. This 
is especially true for those individuals display some degree of 
residency or site fidelity and the impetus to use the site is stronger 
than the deterrence presented by the harassing activity, as is the case 
with harbor seals that use Children's Pool as a haulout.
    For the reasons described above, we expect that there will almost 
certainly be some overlap in individuals present day-to-day at the 
project site, and the proposed total numbers of authorized takes are 
expected to occur only within a small portion of the overall regional 
stocks. Thus while we propose to authorize the instances of incidental 
take shown in Table 6, we believe that the number of individual marine 
mammals that would be incidentally taken by the proposed project would 
be substantially lower than these numbers.

   Table 6--Estimated Numbers of Take and Percentages of Marine Mammal
                        Stocks That May Be Taken
------------------------------------------------------------------------
                                     Proposed      Stock      Percentage
                                     Level B     abundance   of stock or
             Species                   take       estimate    population
                                    authorized      \1\       (percent)
------------------------------------------------------------------------
Harbor seal......................        1,620       30,968            5
California sea lion..............           36      296,750           <1

[[Page 19235]]

 
Northern elephant seal...........           14      179,000           <1
------------------------------------------------------------------------
\1\ NMFS 2015 marine mammal stock assessment reports (Carretta et al.,
  2016) available online at: www.nmfs.noaa.gov/pr/sars/.

    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals will be taken relative to the population size 
of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species 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)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally with our ESA Interagency Cooperation Division 
whenever we propose to authorize take for endangered or threatened 
species.
    No incidental take of ESA-listed species is proposed for 
authorization or expected to result from this activity. Therefore, NMFS 
has determined that formal consultation under section 7 of the ESA is 
not required for this action.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to the City of San Diego for conducting demolition and 
construction at Coast Boulevard, La Jolla, California, from June 1, 
2017 through December 14, 2017, provided the previously mentioned 
mitigation, monitoring, and reporting requirements are incorporated. 
This section contains a draft of the IHA itself. The wording contained 
in this section is proposed for inclusion in the IHA (if issued).
    1. This Incidental Harassment Authorization (IHA) is valid from 
June 1, 2017 through December 14, 2017. This IHA is valid only for 
demolition and construction activities associated with the public 
parking lot, sidewalk, and landscaping improvement project at Coast 
Boulevard in La Jolla, California.
    2. General Conditions
    (a) A copy of this IHA must be in the possession of the City, its 
designees, and work crew personnel operating under the authority of 
this IHA.
    (b) The species authorized for taking are the Pacific harbor seal 
(Phoca vitulina), California sea lion (Zalophus californianus), and 
northern elephant seal (Mirounga angustirostris).
    (c) The taking, by Level B harassment only, is limited to the 
species listed in condition 2(b).
    (d) The take by injury (Level A harassment), serious injury, or 
death, or the taking of any other species of marine mammal not listed 
in condition 2(b), is prohibited and may result in the modification, 
suspension, or revocation of this IHA.
    (e) The City shall conduct briefings between construction 
supervisors and crews, marine mammal monitoring team, and acoustical 
monitoring team prior to the start of all demolition and construction 
activities, and when new personnel join the work, in order to explain 
responsibilities, communication procedures, marine mammal monitoring 
protocol, and operational procedures.
    3. Mitigation Measures
    The holder of this Authorization is required to implement the 
following mitigation measures.
    (a) Demolition and construction shall be prohibited during the 
Pacific harbor seal pupping season (December 15th to May 15th) and for 
an additional two weeks to accommodate lactation and weaning of late 
season pups.
    (b) Demolition and construction shall be limited to daylight hours 
only (7:00 a.m. to 7:00 p.m., or 30 minutes before sunset depending on 
time of year).
    (c) Construction and demolition activity involving use of very loud 
equipment (e.g., jackhammers) shall be scheduled between the hours of 
8:30 a.m. to 3:30 p.m., to the maximum extent practical, but may be 
extended from 7:00 a.m. to 7:00 p.m. (daylight hours only).
    (d) Monitoring shall be conducted by a trained marine mammal 
observer (MMO).
    (i) The MMO shall have no other construction-related tasks while 
conducting monitoring and shall be trained on species identification, 
how to observe, and how to fill out the data sheets prior to any 
construction or demolition activities.
    (ii) Monitoring shall take place from 30 minutes prior to 
initiation of demolition or construction activity through 30 minutes 
post-completion of such activity.
    (iii) The MMO shall have the following minimum qualifications:
    1. Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance; use of binoculars 
may be necessary to correctly identify the target;
    2. A minimum of a Bachelor's degree in biological science, wildlife 
management, mammalogy, or related field;
    3. Experience and ability to conduct field observations and collect 
data according to assigned protocols (this may include academic 
experience);
    4. Experience or training in the field identification of marine 
mammals, and identification of marine mammal behavior;
    5. Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
    6. Writing skills sufficient to prepare a report of observations; 
and
    7. Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.
    4. Monitoring
    The holder of this Authorization is required to implement the 
following monitoring measures:

[[Page 19236]]

    (a) The City shall collect sighting data and shall record observed 
behavioral responses to project activities for marine mammal species 
observed in the region of activity during the period of activity;
    (b) All visual marine mammal information shall be recorded as 
described in the Monitoring Plan (Appendix C, Section 4 of the IHA 
Application) and shall include the following:
    (i) Dates and times of marine mammal observations;
    (ii) Location of observations (description);
    (iii) Construction activities occurring during each observation 
period including any substantial change in construction activities;
    (iv) Human activity in the area;
    (v) Counts by species of pinnipeds, and if possible sex and age 
class;
    (vi) Number and type of marine mammal responses to disturbance; and
    (vii) Apparent causes of marine mammal responses (e.g., 
construction project, aircraft, human activity, other pinniped, other 
animal, swimmer/diver, watercraft, or other with a description).
    (c) In the event that a fur seal, is observed on the rocks, beach, 
or in the water prior to commencement of activities, the MMO shall 
alert the stranding network and all activities shall be postponed until 
coordination with the stranding network is complete (including any 
potential 24-hour or 48-hour wait/observation period) and/or the animal 
either leaves, or is collected by the stranding network.
    (d) Acoustic recordings shall include the following:
    (i) One location (at minimum) will be monitored close to the 
construction site (near field) and adjacent to the edge of the bluff 
overlooking Children's Pool. This will be a mobile station that will 
move based on the actual location of construction activities;
    (ii) If the loudest construction activities are more than 15 m (49 
ft) from the edge of the bluff, acoustic data also will be recorded at 
an additional near-field location closer to the construction/demolition 
activities;
    (iii) Three fixed monitoring stations will be established parallel 
to the guideline rope (far-field);
    (iv) If SPLs of 90 dB rms or greater are measured at any far-field 
monitoring station, additional monitoring will be conducted to 
determine the far-field extent of the 90 dB isopleth, and 100 dB 
isopleth, as applicable; and
    (v) Acoustic monitor shall record time of observations, 
environmental conditions, and SPLs at applicable monitoring stations 30 
minutes prior to the start of demolition/construction, every hour 
during demolition/construction, and 30 minutes after cessation of 
demolition/construction activities.
    (e) At the start of each new phase of construction, a full day of 
acoustic monitoring shall occur. The number of days of monitoring 
required after the first full day of monitoring for each new 
construction phase shall depend on results of acoustic monitoring, as 
follows:
    (i) If acoustic monitoring on the first day of a new phase of 
construction documents sound levels of 90 dB rms or greater at any far-
field location, daily monitoring shall be required throughout that 
phase of construction;
    (ii) If acoustic monitoring on the first day of a new phase of 
construction documents sound levels of 90 dB rms or greater at the 
near-field location, but not at any far-field location, then a minimum 
of two additional days of monitoring shall be required to confirm far-
field sound levels remain less than 90 dB rms for construction phase 
durations of less than 4 weeks. Acoustic monitoring shall be conducted 
weekly to confirm far-field sound levels remain less than 90 dB rms for 
construction phase durations of greater than 4 weeks. If during the 
additional monitoring, sound levels of 90 dB or greater are recorded at 
any far-field location, then daily monitoring shall be required until 
the end of that construction phase; and
    (iii) If Acoustic monitoring on the first day of a new phase of 
construction documents sound levels of less than 90 dB rms at the near-
field location(s), then one additional day of monitoring shall be 
conducted to confirm near-field sound levels remain less than 90 dB 
rms. If a sound level of greater than 90 dB rms is measured at the 
near-field location on the second day of monitoring, additional days of 
monitoring shall be conducted consistent with the specification listed 
under item 4(d)(ii).
    5. Reporting
    The holder of this Authorization is required to:
    (a) Submit a draft report on all monitoring conducted under the IHA 
within 90 calendar days of the completion of marine mammal and acoustic 
monitoring or sixty days prior to the issuance of any subsequent IHA 
for this project, whichever comes first;
    (b) Submit a final report within 30 days following resolution of 
comments on the draft report from NMFS. This report must contain the 
informational elements described in the Monitoring Plan at minimum, and 
shall also include:
    (i) Results of the marine mammal monitoring plan including the 
elements described in 4(b); and
    (ii) Results of acoustic monitoring as described in the Monitoring 
Plan.
    (c) Reporting injured or dead marine mammals:
    (i) In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by this IHA, 
such as injury or mortality, the City will immediately cease the 
specified activities and report the incident to the Office of Protected 
Resources, NMFS, and the West Coast Regional Stranding Coordinator, 
NMFS. The report must include the following information:
    1. Time and date of the incident;
    2. Description of the incident;
    3. Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    4. Description of all marine mammal observations and active sound 
source use in the 24 hours preceding the incident;
    5. Species identification or description of the animal(s) involved;
    6. Fate of the animal(s); and
    7. Photographs or video footage of the animal(s).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with the City to 
determine what measures are necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. The City may not 
resume their activities until notified by NMFS.
    (ii) In the event that the City discovers an injured or dead marine 
mammal, and the MMO determines that the cause of the injury or death is 
unknown and the death is relatively recent (e.g., in less than a 
moderate state of decomposition), the City will immediately report the 
incident to the Office of Protected Resources, NMFS, and the West Coast 
Regional Stranding Coordinator, NMFS.
    The report must include the same information identified in 5(c)(i) 
of this IHA. Activities may continue while NMFS reviews the 
circumstances of the incident. NMFS will work with the City to 
determine whether additional mitigation measures or modifications to 
the activities are appropriate.
    (iii) In the event that the City discovers an injured or dead 
marine mammal, and the MMO determines that the injury or death is not 
associated with or related to the activities authorized in the IHA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), the City will report the incident 
to the Office of Protected

[[Page 19237]]

Resources, NMFS, and the West Coast Regional Stranding Coordinator, 
NMFS, within 24 hours of the discovery. The City will provide 
photographs or video footage or other documentation of the stranded 
animal sighting to NMFS.
    This Authorization may be modified, suspended or withdrawn if the 
holder fails to abide by the conditions prescribed herein, or if NMFS 
determines the authorized taking is having more than a negligible 
impact on the species or stock of affected marine mammals.

Request for Public Comments

    We request comment on our analyses, the draft authorization, and 
any other aspect of this Notice of Proposed IHA for the proposed 
demolition and construction at Coast Boulevard, La Jolla, California. 
Please include with your comments any supporting data or literature 
citations to help inform our final decision on the request for MMPA 
authorization.

    Dated: April 18, 2017.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2017-08402 Filed 4-25-17; 8:45 am]
 BILLING CODE 3510-22-P