Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Rocky Intertidal Monitoring Surveys Along the Oregon and California Coasts, 11696-11703 [2018-05380]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 83, Number 52 (Friday, March 16, 2018)]
[Notices]
[Pages 11696-11703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05380]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XF869


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

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
the Partnership for Interdisciplinary Study of Coastal Oceans (PISCO) 
at the University of California Santa Cruz (UCSC) to incidentally 
harass, by Level B harassment only, marine mammals during rocky 
intertidal monitoring surveys.

DATES: This Authorization is effective from March 12, 2018, through 
March 11, 2019.

FOR FURTHER INFORMATION CONTACT: Rob Pauline, 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/research.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 (as delegated to NMFS) to allow, upon 
request, the incidental, but not intentional, taking of small numbers 
of marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are made and either regulations are issued or, if 
the taking is limited to harassment, a notice of a proposed 
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 
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 (i.e., the issuance of an 
incidental harassment authorization) with respect to potential impacts 
on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (CE B4) (incidental harassment 
authorizations with no anticipated serious injury or mortality) 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. Accordingly, NMFS has determined that the 
issuance of the IHA qualifies to be categorically excluded from further 
NEPA review.

Summary of Request

    On September 26, 2017, NMFS received a request from PISCO for an 
IHA to take marine mammals incidental to rocky intertidal monitoring 
surveys along the Oregon and California coasts. PISCO's request is for 
take of California sea lions (Zalophus californianus), harbor seals 
(Phoca vitulina richardii), and northern elephant seals (Mirounga 
angustirostris). Take is anticipated to result from the specified 
activity by Level B harassment only. Neither PISCO nor NMFS expect 
mortality to result from this activity and, therefore, an IHA is 
appropriate.
    This IHA would cover one year of a larger project for which PISCO 
obtained prior IHAs. This multiyear annual survey involves surveying 
rocky intertidal zones in a number of locations in Oregon and 
California. NMFS has previously issued five IHAs for this ongoing 
survey project (77 FR 72327, December 5, 2012; 78 FR 79403, December 
30, 2013; 79 FR 73048, December 9, 2014; 81 FR 7319, February 2, 2016; 
82 FR 12568, March 6, 2017). PISCO complied with all the requirements 
(e.g., mitigation, monitoring, and reporting) of the

[[Page 11697]]

previous IHAs and information regarding the most recent monitoring 
results may be found in the Monitoring and Reporting section.

Description of Activity

Overview

    PISCO requested an IHA to continue rocky intertidal monitoring work 
that has been ongoing for 20 years. PISCO focuses on understanding the 
nearshore ecosystems of the U.S. west coast through a number of 
interdisciplinary collaborations. The program integrates long-term 
monitoring of ecological and oceanographic processes at dozens of sites 
with experimental work in the lab and field. A short description of 
project components is found below. A detailed description of the 
planned intertidal monitoring project was provided in the Federal 
Register notice for the proposed IHA (83 FR 3308; January 24, 2018). 
Since that time, no changes have been made to the planned monitoring 
activities. Therefore, a detailed description is not provided here. 
Please refer to that Federal Register notice for the description of the 
specific activity.

Dates and Duration

    PISCO's research is conducted throughout the year, but will begin 
no sooner than March 12, 2018 and end on March 11, 2019. Most sites are 
sampled one to two times per year over a 1-day period (4-6 hours per 
site) during a negative low tide series. Due to the large number of 
research sites, scheduling constraints, the necessity for negative low 
tides and favorable weather/ocean conditions, exact survey dates are 
variable and difficult to predict. Some sampling may occur in all 
months.

Specific Geographic Region

    Sampling sites occur along the California and Oregon coasts. 
Community Structure Monitoring sites range from Ecola State Park near 
Cannon Beach, Oregon to Government Point located northwest of Santa 
Barbara, California. Biodiversity Survey sites extend from Ecola State 
Park south to Cabrillo National Monument in San Diego County, 
California. Exact locations of sampling sites can be found in Tables 1 
and 2 of PISCO's application.

Detailed Description of Specific Activity

    Community Structure Monitoring involves the use of permanent 
photoplot quadrats, which target specific algal and invertebrate 
assemblages (e.g. mussels, rockweeds, barnacles). Each photoplot is 
photographed and scored for percent cover. The Community Structure 
Monitoring approach is based largely on surveys that quantify the 
percent cover and distribution of algae and invertebrates that 
constitute these communities. This approach allows researchers to 
quantify both the patterns of abundance of targeted species, as well as 
characterize changes in the communities in which they reside. Such 
information provides managers with insight into the causes and 
consequences of changes in species abundance. There are a total of 48 
Community Structure sites, each of which will be visited in 2018 under 
the IHA and surveyed over a 1-day period during a low tide series one 
to two times a year.
    Biodiversity Surveys are part of a long-term monitoring project and 
are conducted every 3-5 years across 142 established sites. Nineteen 
Biodiversity Survey sites will be visited in 2018. These Biodiversity 
Surveys involve point contact identification along permanent transects, 
mobile invertebrate quadrat counts, sea star band counts, and tidal 
height topographic measurements. Five of the Biodiversity Survey sites 
are also Community Structure sites, leaving 14 sites that are only 
Biodiversity Survey sites. As such, a total of 62 unique sites would be 
visited under the IHA.
    The intertidal zones where PISCO conducts intertidal monitoring are 
also areas where pinnipeds can be found hauled out on the shore at or 
adjacent to some research sites. Pinnipeds have been recorded at 17 out 
of the 62 survey sites. Accessing portions of the intertidal habitat at 
these locations may cause incidental Level B (behavioral) harassment of 
pinnipeds through some unavoidable approaches if pinnipeds are hauled 
out directly in the study plots or while biologists walk from one 
location to another. No motorized equipment is involved in conducting 
these surveys.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the 
Federal Register on January 24, 2018 (83 FR 3308). During the 30-day 
public comment period, the Marine Mammal Commission (Commission) 
submitted a letter on February 5, 2018. The Commission provided 
comments as described below and concurred with NMFS's finding that 
recommended the issuance of an IHA to PISCO, subject to the inclusion 
of the mitigation, monitoring, and reporting measures.
    Comment: The Commission requested clarification of certain issues 
associated with NMFS's notice that one-year renewals could be issued in 
certain limited circumstances and expressed concern that the process 
would bypass the public notice and comment requirements. The Commission 
also suggested that NMFS should discuss the possibility of renewals 
through a more general route, such as a rulemaking, instead of notice 
in a specific authorization. The Commission further recommended that if 
NMFS did not pursue a more general route, that the agency provide the 
Commission and the public with a legal analysis supporting our 
conclusion that this process is consistent with the requirements of 
section 101(a)(5)(D) of the MMPA.
    Response: The process of issuing a renewal IHA does not bypass the 
public notice and comment requirements of the MMPA. The notice of the 
proposed IHA expressly notifies the public that under certain, limited 
conditions an applicant could seek a renewal IHA for an additional 
year. The notice describes the conditions under which such a renewal 
request could be considered and expressly seeks public comment in the 
event such a renewal is sought. Importantly, such renewals would be 
limited to where the activities are identical or nearly identical to 
those analyzed in the proposed IHA, monitoring does not indicate 
impacts that were not previously analyzed and authorized, and the 
mitigation and monitoring requirements remain the same, all of which 
allow the public to comment on the appropriateness and effects of a 
renewal at the same time the public provides comments on the initial 
IHA. NMFS has, however, modified the language for future proposed IHAs 
to clarify that all IHAs, including renewal IHAs, are valid for no more 
than one year and that the agency would consider only one renewal for a 
project at this time. In addition, notice of issuance or denial of a 
renewal IHA would be published in the Federal Register, as are all 
IHAs.
    The option for issuing renewal IHAs has been in NMFS's incidental 
take regulations since 1996. Nonetheless, NMFS will provide additional 
information to the Commission as well as consider the best way to 
provide addition information to the public on the renewal process.

Description of Marine Mammals in the Area of Specified Activities

    A detailed description of the species likely to be affected by the 
monitoring project, including brief introductions to the species and 
relevant stocks as well as available information regarding population 
trends and threats, and information regarding local occurrence, were 
provided in the Federal Register notice for the proposed IHA (83 FR

[[Page 11698]]

3308; January 24, 2018). Since that time, we are not aware of any 
changes in the status of these species and stocks; therefore, detailed 
descriptions are not provided here. Please refer to that Federal 
Register notice for these descriptions as well as to NMFS' website 
(www.nmfs.noaa.gov/pr/species/mammals/) for generalized species 
accounts.

                                     Table 1--Marine Mammals Potentially Present in the Vicinity of the Study Areas
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                                                                                         ESA/ MMPA status;   Stock abundance (CV,
             Common name                  Scientific name               Stock             Strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
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                                                         Order Carnivora--Superfamily Pinnipedia
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                                                      Family Otariidae (eared seals and sea lions)
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California sea lion.................  Zalophus californianus.  U.S....................  -; N                296,750 (n/a; 153,337;      9,200        389
                                                                                                             2011).
Steller sea lion....................  Eumetopias jubatus.....  Eastern U.S............  -; N                41,638 (n/a; 41,638;        2,498        108
                                                                                                             2015).
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                                                             Family Phocidae (earless seals)
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Harbor seal.........................  Phoca vitulina           California/Oregon/       -; N                30,968 (0.157; 27,348;      1,641         43
                                       richardii.               Washington.                                  2012 [CA])/24,732 (n/
                                                                                                             a; n/a [OR/WA] \4\.
Northern elephant seal..............  Mirounga angustirostris  California.............  -; N                179,000 (n/a; 81,368;       4,882        8.8
                                                                                                             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 [explain if this is the case].
\3\ 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). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
  associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ The most recent abundance estimate is >8 years old, there is no current estimate of abundance available for this stock.
Note--Italicized species are not expected or authorized to be taken.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effect of stressors associated with the specified activity 
(e.g., pedestrian researchers) has the potential to result in 
behavioral harassment of marine mammals in the vicinity of the action 
areas. The Federal Register notice for the proposed IHA (83 FR 3308; 
January 24, 2018) included a discussion of the effects of such 
disturbance on marine mammals, therefore that information is not 
repeated here.
    NMFS described potential impacts to marine mammal habitat in detail 
in our Federal Register notice of proposed authorization (83 FR 3308; 
January 24, 2018). In summary, the project activities would not modify 
existing marine mammal habitat. Because of the short duration of the 
activities and the relatively small area of the habitat that may be 
affected, the impacts to marine mammal habitat are not expected to 
cause significant or long-term negative consequences for individual 
marine mammals or their populations

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized 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).
    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 researchers. Based on the nature of the 
activity, Level A harassment is neither anticipated nor authorized.
    As described previously, no mortality is anticipated or authorized 
for this activity. Below we describe how the take is estimated.

Marine Mammal Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations. Take estimates are based on historical marine mammal 
observations at each site from previous PISCO survey activities. Marine 
mammal observations are done as part of PISCO site observations, which 
include notes on physical and biological conditions at the site. The 
maximum number of marine mammals, by species, seen at any given time 
throughout the sampling day is recorded at the conclusion of sampling. 
A marine mammal is counted if it is seen on access ways to the site, at 
the site, or immediately up-coast or down-coast of the site. Marine 
mammals in the water immediately offshore are also recorded. Any other 
relevant information, including the location of a marine mammal 
relevant to the site, any unusual behavior, and the presence of pups is 
also noted.

Take Calculation and Estimation

    The observations described above formed the basis from which 
researchers with extensive knowledge and experience at each site 
estimated the actual number of marine mammals that may be subject to 
take. Take estimates for each species for which take is authorized were 
based on the following equation:

Take estimate per survey site = (number of expected animals per site *

[[Page 11699]]

number of survey days per survey site)

    For take estimates, PISCO looked at sites that have consistently 
had a marine mammal presence and used the maximum number of marine 
mammals previously observed at these sites that could be subject to 
take (e.g. pinnipeds on the site, nearby, or along access ways and not 
including any pinnipeds in the water or on offshore rocks). At many 
sites, the number of marine mammals is quite variable and PISCO may 
observe fewer than the number used for take estimates. There are also 
limited occasions where PISCO observes pinnipeds at sites where they 
had not previously seen any.
    Individual species' totals for each survey site were summed to 
arrive at a total estimated take number. Numbers are rounded up to the 
nearest value of 5 (e.g., a maximum of 7 observed animals would be 
rounded up to 10). Section 6 in PISCO's application outlines the number 
of visits per year for each sampling site and the potential number of 
pinnipeds anticipated to be encountered at each site. Tables 2, 3, 4 in 
PISCO's application outlines the number of potential takes per site.
    Harbor seals are expected to occur at 15 locations with expected 
taken numbers ranging from 5 to 25 animals per visit (Table 2 in 
PISCO's application). These locations will be subject to 21 site visits 
under the IHA. It is anticipated that there will be 230 exposures of 
adult harbor seals and 25 exposures of weaned pups. Therefore, NMFS has 
authorized 255 harbor seal takes. This is an increase over the proposed 
number of 203 takes included in the notice for the proposed IHA (83 FR 
3308; January 24, 2018). The increase is due to draft 2017 monitoring 
plan data which showed increased take of adult seals at several 
locations (i.e., Fogarty Creek, Shelter Cove, Bodega, Franklin Point, 
and Cayucos) which was not included in the application resulting in a 
total of 230 adult seal expsoures. Also, the number of pup exposures 
was increased from 13 to 25 as the takes at several sites listed in the 
application were rounded up to the nearest 5 (i.e., Fogarty Creek, 
Stillwater, Point Pinos, and Carmel Point).
    California sea lions are expected to be present at five sites with 
eight scheduled visits as shown in Table 3 in the application. Eighty-
five adult and five pup exposures are expected to be taken. Therefore, 
NMFS has authorized 90 California sea lion takes.
    Northern elephant seals are only expected to occur at one site this 
year, Piedras Blancs, which will experience two separate visits (See 
Table 4 in application). Up to 10 adult and 40 weaned pup exposures are 
anticipated. Therefore, NMFS has authorized 50 Northern elephant seal 
takes.
    NMFS has authorized the take, by Level B harassment only, of 255 
harbor seals, 90 California sea lions, and 50 northern elephant seals. 
These numbers are considered to be maximum take estimates; therefore, 
actual take may be less if animals decide to haul out at a different 
location for the day or animals are out foraging at the time of the 
survey activities.

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 adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider 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. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned) the likelihood of effective implementation (probability 
implemented as planned); 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.
    PISCO will implement several mitigation measures to reduce 
potential take by Level B (behavioral disturbance) harassment. Measures 
are listed below.
     Researchers will observe a site from a distance, using 
binoculars if necessary, to detect any marine mammals prior to approach 
to determine if mitigation is required (i.e., site surveys will not be 
conducted if Steller sea lions, northern fur seals, or Guadalupe fur 
seals are present; if other pinnipeds are present, researchers will 
approach with caution, walking slowly, quietly, and close to the ground 
to avoid surprising any hauled-out individuals and to reduce flushing/
stampeding of individuals).
     Researchers will avoid pinnipeds along access ways to 
sites by locating and taking a different access way. Researchers will 
keep a safe distance from and not approach any marine mammal while 
conducting research, unless it is absolutely necessary to flush a 
marine mammal in order to continue conducting research (i.e., if a site 
cannot be accessed or sampled due to the presence of pinnipeds).
     Researchers will avoid making loud noises (i.e., using 
hushed voices) and keep bodies low to the ground in the visual presence 
of pinnipeds.
     Researches will monitor the offshore area for predators 
(such as killer whales and white sharks) and avoid flushing of 
pinnipeds when predators are observed in nearshore waters. Note that 
PISCO has never observed an offshore predator while researchers were 
present at any of the survey sites.
     Intentional flushing will not occur if dependent pups are 
present to avoid mother/pup separation and trampling of pups. Staff 
shall reschedule work at sites where pups are present, unless other 
means of accomplishing the work can be done without causing disturbance 
to mothers and dependent pups.
     To avoid take of Steller sea lions, northern fur seals, or 
Guadalupe fur seals, any site where they are present will not be 
approached and will be sampled at a later date.
     Researchers will promptly vacate sites at the conclusion 
of sampling.
    The primary method of mitigating the risk of disturbance to 
pinnipeds, which will be in use at all times, is the selection of 
judicious routes of approach to study sites, avoiding close contact 
with pinnipeds hauled out on shore, and the use of extreme caution upon 
approach. Each visit to a given study site will last for approximately 
4-6

[[Page 11700]]

hours, after which the site is vacated and can be re-occupied by any 
marine mammals that may have been disturbed by the presence of 
researchers. Also, by arriving before low tide, worker presence will 
tend to encourage pinnipeds to move to other areas for the day before 
they haul out and settle onto rocks at low tide.
    Based on our evaluation of the applicant's measures, NMFS has 
determined that the required 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.

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 
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); and
     Mitigation and monitoring effectiveness.
    PISCO will contribute to the knowledge of pinnipeds in California 
and Oregon by noting observations of: (1) Unusual behaviors, numbers, 
or distributions of pinnipeds, such that any potential follow-up 
research can be conducted by the appropriate personnel; (2) tag-bearing 
carcasses of pinnipeds, allowing transmittal of the information to 
appropriate agencies and personnel; and (3) rare or unusual species of 
marine mammals for agency follow-up.
    Monitoring requirements in relation to PISCO's rocky intertidal 
monitoring will include observations made by the applicant. Information 
recorded will include species counts (with numbers of pups/juveniles 
when possible) of animals present before approaching, numbers of 
observed disturbances, and descriptions of the disturbance behaviors 
during the monitoring surveys, including location, date, and time of 
the event. For consistency, any reactions by pinnipeds to researchers 
will be recorded according to a three-point scale shown in Table 2. 
Note that only observations of disturbance Levels 2 and 3 should be 
recorded as takes.

           Table 2--Levels of Pinniped Behavioral Disturbance
------------------------------------------------------------------------
          Level                Type of 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 in
                                                      response to 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.
------------------------------------------------------------------------

    In addition, observations regarding the number and species of any 
marine mammals observed, either in the water or hauled-out, at or 
adjacent to a site, are recorded as part of field observations during 
research activities. Information regarding physical and biological 
conditions pertaining to a site, as well as the date and time that 
research was conducted are also noted. This information will be 
incorporated into a monitoring report for NMFS.
    If at any time the specified activity clearly causes the take of a 
marine mammal in a manner prohibited by this IHA, such as an injury 
(Level A harassment), serious injury, or mortality, PISCO shall 
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 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 PISCO to 
determine what measures are necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. PISCO may not 
resume the activities until notified by NMFS.
    In the event that an injured or dead marine mammal is discovered 
and it is determined 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), PISCO shall immediately report the

[[Page 11701]]

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 the paragraph above IHA. Activities may 
continue while NMFS reviews the circumstances of the incident. NMFS 
will work with PISCO to determine whether additional mitigation 
measures or modifications to the activities are appropriate.
    In the event that an injured or dead marine mammal is discovered 
and it is determined 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), PISCO shall report the incident to the Office of 
Protected Resources, NMFS, and the West Coast Regional Stranding 
Coordinator, NMFS, within 24 hours of the discovery. PISCO shall 
provide photographs, video footage or other documentation of the 
stranded animal sighting to NMFS. Activities may continue while NMFS 
reviews the circumstances of the incident.
    A draft final report must be submitted to NMFS Office of Protected 
Resources within 60 days after the conclusion of the 2018 field season 
or 60 days prior to the start of the next field season if a new IHA 
will be requested. The report will include a summary of the information 
gathered pursuant to the monitoring requirements set forth in the IHA. 
A final report must be submitted to the Director of the NMFS Office of 
Protected Resources and to the NMFS West Coast Regional Administrator 
within 30 days after receiving comments from NMFS on the draft final 
report. If no comments are received from NMFS, the draft final report 
will be considered the final report.

Monitoring Results From Previously Authorized Activities

    PISCO complied with the mitigation and monitoring that were 
required under the IHA issued in February 2016. In compliance with the 
IHA, PISCO submitted a report detailing the activities and marine 
mammal monitoring they conducted. The IHA required PISCO to conduct 
counts of pinnipeds present at study sites prior to approaching the 
sites and to record species counts and any observed reactions to the 
presence of the researchers.
    From December 3, 2016, through February 2, 2017 researchers 
conducted rocky intertidal sampling at numerous sites in California and 
Oregon (see Table 12 in PISCO's 2016 monitoring report). Tables 7, 8, 
and 9 in PISCO's monitoring report outline marine mammal observations 
and reactions. During this period there were 96 takes of harbor seals, 
1 take of California sea lions, and 22 takes of northern elephant 
seals. NMFS had authorized the take of 203 harbor seals, 720 California 
sea lions, and 40 Northern Elephant seals under that IHA. PISCO also 
submitted a preliminary monitoring report associated with the existing 
IHA for the period covering February 21, 2017 through November 30, 
2017. PISCO recorded 63 takes of harbor seals and 3 takes of California 
sea lions. There were no takes of northern elephant seals. NMFS had 
authorized the take of 233 harbor seals, 90 California sea lions, and 
60 northern elephant seals under the existing IHA.
    Based on the results from the monitoring report, we conclude that 
these results support our original findings that the mitigation 
measures set forth in the 2016 and 2017 IHAs effected the least 
practicable impact on the species or stocks. There were no stampede 
events during these years and most disturbances were Level 1 and 2 from 
the disturbance scale meaning the animal did not fully flush but 
observed or moved slightly in response to researchers. Those that did 
fully flush to the water did so slowly. Most of these animals tended to 
observe researchers from the water and then re-haulout farther up-coast 
or down-coast of the site within approximately 30 minutes of the 
disturbance.

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).
    No injuries or mortalities are anticipated to occur as a result of 
PISCO's rocky intertidal monitoring surveys and none are authorized. 
The risk of marine mammal injury, serious injury, or mortality 
associated with rocky intertidal monitoring increases somewhat if 
disturbances occur during breeding season. These situations present 
increased potential for mothers and dependent pups to become separated 
and, if separated pairs do not quickly reunite, the risk of mortality 
to pups (e.g., through starvation) may increase. Separately, adult male 
elephant seals may trample elephant seal pups if disturbed, which could 
potentially result in the injury, serious injury, or mortality of the 
pups. Few pups are anticipated to be encountered during the planned 
surveys. As shown in previous monitoring reports, however, limited 
numbers of harbor seal, northern elephant seal, and California sea lion 
pups have been observed at several sites during past years. Harbor 
seals are very precocious with only a short period of time in which 
separation of a mother from a pup could occur. Although elephant seal 
pups are occasionally present when researchers visit survey sites, risk 
of pup mortalities is very low because elephant seals are far less 
reactive to researcher presence compared to the other two species. 
Further, elephant seal pups are typically found on sand beaches, while 
study sites are located in the rocky intertidal zone, meaning that 
there is typically a buffer between researchers and pups. The caution 
used by researchers in approaching sites generally precludes the 
possibility of behavior, such as stampeding, that could result in 
extended separation of mothers and dependent pups or trampling of pups. 
Finally, no research would occur where separation of mother and her 
nursing pup or crushing of pups can become a concern.
    Typically, even those reactions constituting Level B harassment 
would result at most in temporary, short-term behavioral disturbance. 
In any given study season, researchers will visit select sites one to 
two times per year for

[[Page 11702]]

4-6 hours per visit. Therefore, disturbance of pinnipeds resulting from 
the presence of researchers lasts only for short periods. These short 
periods of disturbance lasting less than a day are separated by months 
or years. Community structure sites are visited at most twice per year 
and the visits occur in different seasons. Biodiversity surveys take 
place at a given location once every 3-5 years.
    Of the marine mammal species anticipated to occur in the planned 
activity areas, none are listed under the ESA. Taking into account the 
planned mitigation measures, effects to marine mammals are generally 
expected to be restricted to short-term changes in behavior or 
temporary abandonment of haulout sites, pinnipeds are not expected to 
permanently abandon any area that is surveyed by researchers, as is 
evidenced by continued presence of pinnipeds at the sites during annual 
monitoring counts. No adverse effects to prey species are anticipated 
and habitat impacts are limited and highly localized, consisting of the 
placement of permanent bolts in the intertidal zone. 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 requied mitigation and 
monitoring measures, NMFS finds that the total marine mammal take from 
PISCO's rocky intertidal monitoring program will not adversely affect 
annual rates of recruitment or survival and, therefore, will have a 
negligible impact on the affected species or stocks.
    In summary and as described above, the following factors primarily 
support our 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 pinniped mortality is anticipated or authorized;
     Only a small number of pups are expected to be disturbed;
     Effects of the survey activities would be limited to 
short-term, localized behavioral changes;
     Nominal impacts to pinniped habitat; and
     Effectiveness of mitigation measures.
    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 monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the planned 
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, where estimated numbers are 
available, 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. Additionally, other qualitative factors may 
be considered in the analysis, such as the temporal or spatial scale of 
the activities.

Table 3--Population Abundance Estimates, Total Authorized Level B Take, and Percentage of Population That May Be
        Taken for the Potentially Affected Species During the Planned Rocky Intertidal Monitoring Program
----------------------------------------------------------------------------------------------------------------
                                                                                                   Percentage of
                             Species                                Abundance *     Authorized       stock or
                                                                                   Level B take     population
----------------------------------------------------------------------------------------------------------------
Harbor seal.....................................................      \1\ 30,968             255      <0.82-1.03
                                                                      \2\ 24,732
California sea lion.............................................         296,750              90           <0.01
Northern elephant seal..........................................         179,000              50           <0.01
----------------------------------------------------------------------------------------------------------------
* Abundance estimates are taken from the 2016 U.S. Pacific Marine Mammal Stock Assessments (Carretta et al.,
  2016).
\1\ California stock abundance estimate.
\2\ Oregon/Washington stock abundance estimate from 1999-Most recent surveys.

    Table 3 presents the abundance of each species or stock, the 
authorized take estimates, and the percentage of the affected 
populations or stocks that may be taken by Level B harassment. The 
numbers of animals authorized to be taken would be considered small 
relative to the relevant stocks or populations (0.82-1.03 percent for 
harbor seals, and <0.01 percent for California sea lions and northern 
elephant seals).
    Based on the analysis contained herein of the planned activity 
(including the required mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS 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, in this case with the ESA Interagency 
Cooperation Division whenever we authorize take for endangered or 
threatened species.
    No incidental take of ESA-listed species is authorized 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.

Authorization

    As a result of these determinations, we have issued an IHA to PISCO 
for conducting the described activities related to rocky intertidal 
monitoring

[[Page 11703]]

surveys along the Oregon and Washington coasts from March 12, 2018 
through March 11, 2019 provided the previously described mitigation, 
monitoring, and reporting requirements are incorporated.
    On a case-by-case basis, NMFS may issue a second one-year IHA 
without additional notice when (1) another year of identical or nearly 
identical activities as described in the Specified Activities section 
is planned or (2) the activities would not be completed by the time the 
IHA expires and a second IHA would allow for completion of the 
activities beyond that described in the Dates and Duration section, 
provided all of the following conditions are met:
     A request for renewal is received no later than 60 days 
prior to expiration of the current IHA.
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted beyond the 
initial dates either are identical to the previously analyzed 
activities or include changes so minor (e.g., reduction in pile size) 
that the changes do not affect the previous analyses, take estimates, 
or mitigation and monitoring requirements.
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
     Upon review of the request for renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures remain the same and appropriate, 
and the original findings remain valid.

    Dated: March 13, 2018.
Donna S. Wieting,
 Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2018-05380 Filed 3-15-18; 8:45 am]
 BILLING CODE 3510-22-P