Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Lighthouse Repair and Tour Operations at Northwest Seal Rock, California, 15598-15602 [2019-07511]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 84, Number 73 (Tuesday, April 16, 2019)]
[Notices]
[Pages 15598-15602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07511]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG831


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Lighthouse Repair and Tour 
Operations at Northwest Seal Rock, California

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

ACTION: Notice; issuance of an incidental harassment authorization 
renewal.

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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) 
Renewal to the St. George Reef Lighthouse Preservation Society 
(Society) to harass marine mammals incidental to aircraft operations, 
lighthouse renovations, and tour operations associated with 
preservation of the St. George Reef Lighthouse Station (Station) on 
Northwest Seal Rock (NWSR) in the northeast Pacific Ocean.

DATES: This IHA Renewal is valid from April 10, 2019 through April 9, 
2020.

FOR FURTHER INFORMATION CONTACT: Amy Fowler, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application, renewal request, and supporting documents (including NMFS 
Federal Register notices of the original proposed and final 
authorizations, and the previous IHA), as well as a list of the 
references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-research-and-other-activities. In case of problems 
accessing these documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

    The Marine Mammal Protection Act (MMPA, 16 U.S.C. 1361 et seq.) 
prohibits the ``take'' of marine mammals, with certain exceptions. 
Sections 101(a)(5)(A) and (D) of the MMPA 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

[[Page 15599]]

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, notice of a proposed incidental take 
authorization is provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other means of effecting the least practicable adverse 
impact on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e), 
indicate that IHAs may be renewed for additional periods of time, not 
to exceed one year for each reauthorization. In the notice of proposed 
IHA for the initial authorization, NMFS described the circumstances 
under which we would consider issuing a renewal for this activity, and 
requested public comment on a potential Renewal IHA under those 
circumstances. Specifically, on a case-by-case basis, NMFS may issue a 
one-year IHA renewal 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 of 
the initial IHA. All of the following conditions must be met in order 
to issue a Renewal:
     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; and
    (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 initial findings remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed renewal. A description of the renewal process 
may be found on our website at: https://www.fisheries.noaa.gov/iha-renewals.

History of Request

    On April 13, 2018, NMFS issued an IHA to the Society to take marine 
mammals incidental to the lighthouse maintenance and preservation 
project at NWSR, Del Norte County, California (83 FR 19254, May 2, 
2018), effective from February 19, 2018 through February 18, 2019. On 
December 6, 2018, NMFS received an application for the Renewal of the 
initial IHA. As described in the application for renewal, the 
activities for which incidental take is requested are identical to 
those covered in the initial authorization. As required, the applicant 
also provided a preliminary monitoring report (available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-research-and-other-activities) which confirms that 
the applicant has implemented the required mitigation and monitoring, 
and which also shows that no impacts of a scale or nature not 
previously analyzed or authorized have occurred as a result of the 
activities conducted. Notice of the proposed IHA Renewal was published 
in the Federal Register on March 7, 2019 (84 FR 8312).

Description of the Specified Activities and Anticipated Impacts

    The Station is located on NWSR offshore from Crescent City, 
California in the northeast Pacific Ocean. NWSR rises approximately 
5.18 meters (m) (17 feet (ft)) above sea level. Because NWSR has no 
safe landing for boats, the islet is accessed only by helicopter. The 
Society visits the Station to conduct lighthouse renovations and 
periodic maintenance on the Station's optical light system, as well as 
public tours of the historic lighthouse. Station visits occur one 
weekend per month (Friday, Saturday, and Sunday), from November through 
April. The following specific aspects of the Society's activities will 
likely result in the take of marine mammals: Acoustic and visual 
stimuli from (1) helicopter landings/takeoffs; (2) noise generated 
during restoration activities (e.g., painting, plastering, welding, and 
glazing); (3) maintenance activities (e.g., bulb replacement and 
automation of the light system); and (4) human presence. These 
activities are identical to those analyzed in the initial IHA issued by 
NMFS, described in detail in the Federal Register notice of proposed 
IHA (83 FR 8841, March 1, 2018). As in the initial authorization, NMFS 
anticipates that take, by Level B harassment only, of California sea 
lions (Zalophus californianus), harbor seals (Phoca vitulina), Steller 
sea lions (Eumetopias jubatus) of the eastern U.S. Stock, and northern 
fur seals (Callorhinus ursinus) could result from the specified 
activity (83 FR 19254, May 2, 2018).

Description of the Activity and Specific Geographic Region

    A detailed description of the restoration, maintenance, and tour 
operations for which take is authorized may be found in the Notices of 
the Proposed and Final IHAs for the initial authorization (83 FR 8841, 
March 1, 2018; 83 FR 19254, May 2, 2018), along with the Federal 
Register Notice of the Proposed IHA Renewal (84 FR 8312; March 7, 
2019). The location (as described in the Specific Geographic Region 
section of the initial IHA), timing, amount, and nature of the 
specified activities, including the types of equipment planned for use, 
are identical to those described in the previous notices.

Description of Marine Mammals

    As noted in the Federal Register Notice of the Proposed IHA Renewal 
(84 FR 8312; March 7, 2019), a description of the marine mammals in the 
area of the activities for which incidental take is authorized here, 
including information on abundance, status, distribution, and hearing, 
may be found in the Federal Register Notice of the Proposed IHA for the 
initial authorization (83 FR 8841, March 1, 2018). NMFS has reviewed 
the monitoring data from the initial IHA, recent draft Stock Assessment 
Reports, information on relevant Unusual Mortality Events, and other 
scientific

[[Page 15600]]

literature. The draft 2018 Stock Assessment Report notes that the 
estimated abundance of California sea lions has decreased slightly, 
however, neither this nor any other new information affects which 
species or stocks have the potential to be affected or the pertinent 
information in the section Description of Marine Mammals in the Area of 
Specified Activities contained in the supporting documents for the 
initial IHA.

Potential Effects on Marine Mammals and Their Habitat

    As noted in the Federal Register Notice of the Proposed IHA Renewal 
(84 FR 8312; March 7, 2019), the description of the potential effects 
of the specified activity on marine mammals and their habitat for the 
activities for which take is authorized here is found in the Federal 
Register Notice of the Proposed IHA for the initial authorization (83 
FR 8841, March 1, 2018). All of that information and analysis remain 
applicable and valid. NMFS has reviewed the monitoring data from the 
initial IHA, recent draft Stock Assessment Reports, information on 
relevant Unusual Mortality Events, and other scientific literature, and 
determined that no new information affects our initial analysis of 
potential impacts on marine mammals and their habitat.

Public Comments

    A notice of NMFS' proposal to issue a Renewal IHA to the Society 
was published in the Federal Register on March 7, 2019 (84 FR 8312). 
That notice both included information and referenced information from 
the initial IHA Federal Register notices on the Society's activities 
and the specific geographic region; the marine mammal species that had 
the potential to be affected by the activity; the potential effects on 
marine mammals and their habitat; the proposed amount and manner of 
take; the proposed mitigation, monitoring and reporting measures; and 
the preliminary determinations. We also sent direct notice to any party 
that had submitted comments on the initial IHA. NMFS received one 
comment letter, which was from the Marine Mammal Commission 
(Commission). The Commission provided comments as described below, 
concurred with NMFS's preliminary determinations, and recommended the 
issuance of the Renewal IHA to the Society, subject to the inclusion of 
the mitigation, monitoring, and reporting measures.
    Comment: The Commission questioned whether the public notice 
provisions for IHA Renewals fully satisfy the public notice and comment 
provision in the MMPA and discussed the potential burden on reviewers 
of reviewing key documents and developing comments quickly. Therefore 
the Commission recommended that NMFS use the IHA Renewal process 
sparingly and selectively for activities expected to have the lowest 
levels of impacts to marine mammals and that require less complex 
analysis.
    Response: NMFS has taken a number of steps to ensure the public has 
adequate notice, time, and information to be able to comment 
effectively on IHA Renewals within the limitations of processing IHA 
applications efficiently. The Federal Register notice for the initial 
proposed IHA had previously identified the conditions under which a 
one-year Renewal IHA might be appropriate. This information is 
presented in the Request for Public Comments section of the initial IHA 
proposal (citation) and thus encourages submission of comments on the 
potential of a one-year renewal as well as the initial IHA during the 
30-day comment period. In addition, when we receive an application for 
a Renewal IHA, we publish notice of the proposed IHA Renewal in the 
Federal Register and provide an additional 15 days for public comment, 
making a total of 45 days of public comment. We will also directly 
contact all commenters on the initial IHA by email, phone, or, if the 
commenter did not provide email or phone information, by postal service 
to provide them the opportunity to submit any additional comments on 
the proposed Renewal IHA.
    NMFS also strives to ensure the public has access to key 
information needed to submit comments on a proposed IHA, whether an 
initial IHA or a Renewal IHA. The agency's website includes information 
for all projects under consideration, including the application, 
references, and other supporting documents. Each Federal Register 
notice also includes contact information in the event a commenter has 
questions or cannot find the information they seek.
    Regarding the Commission's comment that Renewal IHAs should be 
limited to certain types of projects, NMFS has explained on its website 
and in individual Federal Register notices that Renewal IHAs are 
appropriate where the continuing activities are identical, nearly 
identical, or a subset of the activities for which the initial 30-day 
comment period applied. Where the commenter has likely already reviewed 
and commented on the initial proposed IHA for these activities, the 
abbreviated additional comment period is sufficient for consideration 
of the results of the preliminary monitoring report and new information 
(if any) from the past year.
    Comment: In order to increase efficiencies, the Commission 
recommended that NMFS authorize the incidental taking of marine mammals 
for the Society's future activities via an MMPA rulemaking rather than 
individual IHAs and IHA Renewals.
    Response: We appreciate the interest that the Commission has shown 
in our efforts to streamline the MMPA authorization process. NMFS will 
discuss with the applicant the option of entering into a rulemaking for 
future incidental take authorizations.

Authorized Take

    Detailed descriptions of the methods and inputs used to estimate 
take for the specified activity are found in the Federal Register 
Notices of the Proposed and Final IHAs for the initial authorization 
(83 FR 8841, March 1, 2018; 83 FR 19254, May 2, 2018). Specifically, 
the number of days of operation and marine mammal occurrence data 
applicable to this authorization remain unchanged from the previously 
issued IHA. Accordingly, all methodology and analysis in the Federal 
Register notices for the proposed and final initial IHA remain 
applicable and accurate, as explained in the Federal Register Notice of 
the Proposed IHA Renewal (84 FR 8312; March 7, 2019). We therefore 
determine that the species and stocks affected, methods of take, and 
types of take remain unchanged from the initial IHA, as do the number 
of takes for each species, which are indicated below in Table 1.
    In their 2018 monitoring report, the Society reported a total of 40 
takes of California sea lions, three takes of Steller sea lions, and 
zero takes of northern fur seals and harbor seals from four visits to 
NWSR. All takes qualified as Level B harassment in the form of 
behavioral disturbance. These take numbers fall far below the take 
authorized in the initial IHA (83 FR 19254, May 2, 2018) and the 
identical numbers authorized in this IHA Renewal, which are indicated 
below.

[[Page 15601]]



                                   Table 1--Authorized Take of Marine Mammals
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                                      Maximum         Days of
             Species               observed per      proposed     Estimated take       Stock        Percent of
                                        day          activity                        abundance         stock
----------------------------------------------------------------------------------------------------------------
California sea lion (Zalophus                160              18           2,880         257,606             1.1
 californianus).................
Steller sea lion (Eumetopias                 155              18           2,790          41,638             6.7
 jubatus).......................
Pacific harbor seal (Phoca                     2              18              36          30,968            0.35
 vitulina)......................
Northern fur seal (Callorhinus                 1              18              18          14,050            0.12
 ursinus).......................
----------------------------------------------------------------------------------------------------------------

Description of Required Mitigation, Monitoring, and Reporting Measures

    As explained in the Federal Register Notice of the Proposed IHA 
Renewal (84 FR 8312; March 7, 2019), a complete discussion of 
mitigation, monitoring, and reporting measures under the MMPA, as well 
as the specific mitigation, monitoring, and reporting measures 
appropriate for the Society's activities, was provided in the Federal 
Register Notices of the Proposed IHA (83 FR 8841; March 1, 2018) and 
Final IHA. (83 FR 19254, May 2, 2018) for the initial IHA. All of that 
discussion remains applicable and valid for this renewal IHA. 
Additionally, the discussion of least practicable adverse impact 
included in those documents remains accurate. NMFS therefore determined 
that the mitigation, monitoring, and reporting measures included as 
requirements in the Federal Register Notice announcing the issuance of 
the initial IHA (83 FR 19254, May 2, 2018) are appropriate and would be 
continued in this Renewal IHA. The following measures, which are 
identical to those in the initial IHA, are included in the Renewal IHA:
    The Society will conduct restoration and touring activities at a 
maximum of once per month over the course of the year, with the 
exception of between May 1, 2019 through October 31, 2019 when no 
restoration or touring activities would occur (barring potential 
emergency light repairs during this time). Each restoration session 
will last no more than three days. Maintenance of the light beacon will 
occur only in conjunction with restoration activities (except if an 
emergency light repair is needed from May 1, 2019 through October 31, 
2019).
    The Society will ensure that its helicopter approach patterns to 
the Station and timing techniques are conducted at times when marine 
mammals are less likely to be disturbed. To the extent possible, the 
helicopter should approach NWSR when the tide is too high for the 
marine mammals to haul out on NWSR. Additionally, since the most severe 
impacts (stampede) precede rapid and direct helicopter approaches, the 
Society's initial approach to the station must be offshore from the 
island at a relatively high altitude (e.g., 800-1,000 ft, or 244-305 
m). Before the final approach, the helicopter must circle lower and 
approach from the area with the lowest pinniped density. If for any 
safety reasons (e.g., wind condition) the Society cannot conduct these 
types of helicopter approach and timing techniques, they must postpone 
the restoration and maintenance activities for that day.
    The Society is required to instruct its members and restoration 
crews to avoid making unnecessary noise and avoid visual detection by 
pinnipeds around the base of the station. Although Crescent Coastal 
Research reported no impacts from these activities in a 2001 study (CCR 
2001), it is relatively simple for the Society to avoid this potential 
impact. The door to the lower platform must remain closed and 
barricaded to all tourists and other personnel since the lower platform 
is used at times by pinnipeds.
    A NMFS-approved, experienced biologist must be present on the first 
flight of each day of the activity. This observer must be able to 
identify all species of pinnipeds expected to use the island, and 
qualified to determine age and sex classes when viewing conditions 
allow. The observer will record data including species counts, numbers 
of observed disturbances, and descriptions of the disturbance behaviors 
during the activities, including location, date, and time of the event. 
In addition, the Society will record observations regarding the number 
and species of any marine mammals either observed in the water or 
hauled out.
    Aerial photographic surveys provide an accurate means of 
documenting species composition, age, and sex class of pinnipeds using 
the project site during human activity periods. The Society must 
complete aerial photo coverage from the same helicopter used to 
transport the Society's personnel to the island during restoration 
trips. The Society will take photographs of all marine mammals hauled 
out on the island from an altitude greater than 300 m (984 ft) by a 
skilled photographer, on the first flight of each day of activities. 
These photographs will be forwarded to a biologist capable of 
discerning marine mammal species. The following shall be provided to 
NMFS: Data in the form of a report with a data table, any other 
significant observations related to marine mammals, and a report of 
restoration activities (see below). The original photographs will be 
made available to NMFS or other marine mammal experts for inspection 
and further analysis, if requested.
    The Society is required to submit a draft report to NMFS' Office of 
Protected Resources no later than 90 days after the conclusion of 
restoration activities in April. The report must include a summary of 
the information gathered pursuant to the monitoring requirements 
described here and set forth in the final IHA. The Society must submit 
a final report to NMFS within 30 days after receiving comments from 
NMFS on the draft report. If the Society receives no comments from NMFS 
on the draft report, NMFS will consider the draft report to be the 
final report.
    The report will describe the operations conducted and sightings of 
marine mammals near the project. The report must provide:
    1. A summary and table of the dates, times, and weather during all 
activities;
    2. Species, number, location, and behavior of any marine mammals 
observed throughout all monitoring activities;
    3. An estimate of the number (by species) of marine mammals exposed 
to human presence associated with the Society's activities; and
    4. A description of the implementation and effectiveness of the 
monitoring and mitigation measures of the IHA and full documentation of 
methods, results, and interpretation pertaining to all monitoring.

Findings and Determinations

    The lighthouse restoration, maintenance, and public tour activities 
conducted by the Society are identical to those analyzed in the initial 
IHA, as are the number of days of activity, the method of taking, and 
the effects of the

[[Page 15602]]

action. The potential effects of the Society's activities are limited 
to Level B harassment in the form of behavioral disturbance. In 
analyzing the effects of the activities in the initial IHA, NMFS 
determined that the Society's activities would have a negligible impact 
on the affected species or stocks and that the authorized take numbers 
of each species or stock were small relative to the relevant stocks 
(i.e., less than 7 percent of all stocks). The numbers of marine 
mammals authorized in this Renewal IHA are identical to those 
authorized in the initial IHA. The mitigation measures and monitoring 
and reporting requirements as described above also are identical to the 
initial IHA.
    All of the information and analysis from the initial IHA remains 
applicable and valid for the findings and determinations under this 
Renewal IHA. In addition, there is no new information that 
substantively affects or suggests that our analysis or findings should 
change from those reached for the initial IHA. This includes 
consideration of the estimated abundance of California sea lions 
decreasing slightly. Based on the information and analysis contained 
here and in the referenced documents, NMFS has determined the 
following: (1) The required mitigation measures will effect the least 
practicable impact on marine mammal species or stocks and their 
habitat; (2) the authorized takes will have a negligible impact on the 
affected marine mammal species or stocks; (3) the authorized takes 
represent small numbers of marine mammals relative to the affected 
stock abundances; (4) the authorized takes will not have an unmitigable 
adverse impact on taking for subsistence purposes as no relevant 
subsistence uses of marine mammals are implicated by these activities; 
and (5) appropriate monitoring and reporting requirements are included.

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 (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 Renewal IHA qualifies to be categorically 
excluded from further NEPA review.

Endangered Species Act

    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.
    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.

IHA Renewal

    NMFS has issued an IHA Renewal that includes the previously 
described mitigation, monitoring, and reporting requirements to the 
Society for the harassment of small numbers of four species of marine 
mammals incidental to conducting lighthouse restoration, maintenance, 
and public tour operations at NWSR once per month, from November 
through April.

    Dated: April 10, 2019.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2019-07511 Filed 4-15-19; 8:45 am]
 BILLING CODE 3510-22-P