Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Rocky Intertidal Monitoring Surveys Along the Oregon and California Coasts, 17784-17788 [2019-08392]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 84, Number 81 (Friday, April 26, 2019)]
[Notices]
[Pages 17784-17788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08392]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG817


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 
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 Partnership for Interdisciplinary Study of Coastal 
Oceans (PISCO) at the University of California Santa Cruz (UCSC) to 
harass marine mammals incidental to rocky intertidal monitoring surveys 
along the Oregon and California Coasts.

DATES: This IHA Renewal is valid from April 12, 2019 through April 11, 
2020.

FOR FURTHER INFORMATION CONTACT: Rob Pauline, 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/permit/incidental-take-authorizations-under-marine-mammal-protection-act. 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 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 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

[[Page 17785]]

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: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals.

History of Request

    On March 8, 2018, NMFS issued an IHA to PISCO to take marine 
mammals incidental to rocky intertidal monitoring surveys at multiple 
locations on the coasts of Oregon and California (83 FR 11696; March 
16, 2018), effective from March 12, 2018 through March 11, 2019. This 
multiyear annual survey involves surveying rocky intertidal zones at a 
number of coastal locations. On January 8, 2019, NMFS received an 
application for a Renewal of the initial IHA. As described in the 
application for Renewal, the activities for which incidental take has 
been requested are nearly identical to those covered in the initial 
IHA. 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 
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 8316).

Description of the Specified Activities and Anticipated Impacts

    PISCO plans 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 154 separate sites with 
experimental work in the lab and field. Research is conducted 
throughout the year along the Oregon and California coasts and will 
continue as long as funding is available. The research being conducted 
under the Renewal IHA will be nearly identical to that analyzed under 
the initial IHA. Since the issuance of the initial IHA a new site that 
had never been surveyed previously (Waddell) was added to the site 
inventory as part of a study examining ecosystem level effects of sea 
star wasting syndrome (SSWS). There are six additional biodiversity 
sites (i.e., Ecola, Roads End, Otter Rock, Seal Rock, Graduation Point 
and North Head) that were not visited or analyzed as part of the 
initial IHA. Researchers accessing and conducting research activities 
on the sites may occasionally cause behavioral disturbance (i.e., Level 
B harassment) of three pinniped species at 16 of the sites (described 
in PISCO's application for the 2018 IHA). PISCO's request is for the 
following instances of take: 90 California sea lion takes (Zalophus 
californianus), 255 harbor seal takes (Phoca vitulina richardii), and 
50 northern elephant seal takes (Mirounga angustirostris). These are 
the same levels of take that were authorized under the initial IHA. 
PISCO expects that the disturbance to pinnipeds from the research 
activities will be minimal and will be limited to Level B harassment, 
as described in the documents associated with the initial IHA.

Description of the Activity and Specific Geographic Region

    A detailed description of the planned intertidal monitoring project 
was provided in the Federal Register Notices of the Proposed IHA (83 FR 
3308; January 24, 2018) and Final IHA (83 FR 11696; March 16, 2018) for 
the initial IHA, along with the Federal Register Notice of the Proposed 
IHA Renewal (84 FR 8316; March 7, 2019). Overall, the specified 
geographic region, the amount of activity, and the nature of the 
activities are identical to those described in previous notices. The 
frequency of visits and total visits to a particular site may vary 
across years, and within an annual plan once submitted, but the 
description of the action and the marine mammal analysis included in 
the 2018 IHA were designed to capture such variations. As noted above, 
154 sites are visited and surveyed as part of the research, although 
take of marine mammals does not occur at every site (marine mammals are 
not present at all sites). A few sites are visited monthly, while many 
sites are surveyed between 1 and 4 times annually. In 2018, a new site 
that had never been surveyed previously (Waddell) was added to the site 
inventory as part of a study examining ecosystem level effects of sea 
star wasting syndrome (SSWS). There are six additional biodiversity 
sites (i.e., Ecola, Roads End, Otter Rock, Seal Rock, Graduation Point 
and North Head) that were not visited or analyzed as part of the 
initial IHA. This Renewal IHA is effective for a period of one year 
from the date of issuance.

Description of Marine Mammals

    As noted in the Federal Register Notice of the Proposed IHA Renewal 
(84 FR 8316; March 7, 2019), a description of the marine mammals in the 
areas of the activity for which incidental take is authorized may be 
found in the Federal Register Notice of the Proposed IHA (83 FR 3308; 
January 24, 2018) for the initial authorization. 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 neither this nor any other 
new information affects which species or stocks have the potential to 
be affected or the pertinent information in the Description of the 
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 8316; 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 is found in the Federal 
Register Notice of the Proposed IHA (83 FR 3308; January 24, 2018) for 
the initial authorization. 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.

Estimated 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 (83 FR 3308; January 24, 2018) and Final IHA 
(83 FR 11696; March 16,

[[Page 17786]]

2018) for the initial authorization, with updated information 
associated with new sites provided in the Federal Register Notice of 
the Proposed IHA Renewal (84 FR 8316; March 7, 2019). As part of the 
initial IHA, PISCO had estimated that Level B harassment of marine 
mammals was likely to occur at 16 sites (see 2018 application), 
conservatively based on the predicted number of visits to the sites and 
historical observational data (using maximum observations). These same 
16 sites will be surveyed under the Renewal IHA. PISCO is requesting 
and NMFS is authorizing the same level of take for the 16 sites as was 
authorized under the initial IHA.
    PISCO provided a preliminary marine mammal monitoring report 
covering March 12, 2018 through December 31, 2018 and recorded Level B 
harassment of 87 harbor seal takes and 1 California sea lion take. No 
northern elephant seal takes were reported. The total recorded take 
numbers are well below the take numbers authorized by NMFS in 2018 (255 
harbor seal, 90 California sea lion, and 50 northern elephant seal). 
The preliminary monitoring report indicated that take by Level B 
harassment was recorded at eight sites in 2018 (of 64 sites visited and 
5 of the 16 sites at which take was expected). At one site (Government 
Point), 20 more harbor seal takes occurred than predicted at that site, 
however, at other sites fewer marine mammal takes occurred than 
predicted. PISCO submitted a draft final monitoring report on March 27, 
2019. Fifteen survey sites were visited between December 31, 2018 and 
the effective end date of the IHA on March 11, 2019. No takes were 
recorded during any of these 15 site visits. Variation in predicted 
marine mammal presence is expected across sites, and, further, as 
described in the 2018 application and IHA Federal Register notices, the 
number of predicted visits to a particular site may also vary. However, 
the conservative take estimate methodology continues to ensure that the 
total authorized take and effect analysis remains appropriate.
    There is one new site, Waddell, which was not addressed in the 
initial IHA, since PISCO had not secured funding for the SSWS study 
when the initial authorization was issued. PISCO did, however, monitor 
and record observations during 12 visits to Waddell between March 12, 
2018 and March 11, 2019 after funding had been secured. PISCO recorded 
one harbor seal take. Seals are known to be rare at the Waddell site, 
and with only a single observation over a 12 month period at this 
location, PISCO believes, and NMFS agrees, that take is not likely at 
this site. Therefore, we are not increasing the total number of 
authorized takes for harbor seals. There are six biodiversity sites 
which will be visited in 2019 that were not visited or analyzed as part 
of the initial IHA. However, based on historical monitoring records the 
presence of marine mammals is unlikely and take is not authorized for 
any of these sites.
    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 8316; 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.

         Table 1--Authorized Take Numbers by Level B Harassment
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                                                            Authorized
                         Species                               take
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Harbor seal.............................................             255
California sea lion.....................................              90
Northern elephant seal..................................              50
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Description of Mitigation, Monitoring and Reporting Measures

    As explained in the Federal Register Notice of the Proposed IHA 
Renewal (84 FR 8316; 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 PISCO's activity at these particular sites, was 
provided in the Federal Register Notices of the Proposed IHA (83 FR 
3308; January 24, 2018) and Final IHA (83 FR 11696; March 16, 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 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:
     Researchers shall observe a site from a distance, using 
binoculars if necessary, to detect any marine mammals prior to approach 
to determine if mitigation is required;
     Researchers shall approach a site with caution (slowly and 
quietly), keep bodies low to the ground and avoid pinnipeds along 
access ways to sites, by locating and taking a different access way if 
possible;
     Researchers shall 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 shall 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;
     Intentional flushing shall be avoided if pups are present. 
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;
     Any site where Steller sea lions, northern fur seals, or 
Guadalupe fur seals are present shall not be approached and shall be 
sampled at a later date;
     Personnel shall vacate the study area as soon as sampling 
of the site is completed;
     Detailed monitoring information will include species 
counts, number of disturbances, description of disturbance behaviors, 
and information regarding physical and biological conditions at a given 
site;
     Submit a draft monitoring report to NMFS Office of 
Protected Resources within 60 days after the conclusion of the 2019-
2020 field season or 60 days prior to the start of the next field 
season if a new IHA will be requested; and
     Reporting injured or dead marine mammals to appropriate 
authorities, including NMFS Office of Protected Resources and NMFS West 
Coast Regional Stranding Coordinator.

Public Comments

    A notice of NMFS' proposal to issue a Renewal IHA to PISCO was 
published in the Federal Register on March 7, 2019 (84 FR 8316). That 
notice both included information and referenced information from the 
initial IHA notices on PISCO's activity 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

[[Page 17787]]

manner of take; the proposed mitigation, monitoring and reporting 
measures; and the preliminary determinations. 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 issuance of the Renewal IHA 
to PISCO, 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 
to 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 proposed 
initial 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 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 will 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 the name and contact information of the lead 
agency staff 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 proposed initial IHA for these activities, the 
abbreviated additional comment period should be sufficient for 
consideration of the results of the preliminary monitoring report and 
new information from the past year.
    Comment: In order to increase efficiencies, the Commission 
recommended that NMFS authorize the incidental taking of marine mammals 
for future PISCO 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.

Findings and Determinations

    In the context of the activities that are likely to result in 
incidental take of marine mammals, the rocky intertidal monitoring 
surveys planned by PISCO for 2019 are nearly identical to those 
conducted under the initial IHA in 2018. The only changes are that a 
new SSWS site, and six biodiversity sites described in the Federal 
Register Notice of the Proposed IHA Renewal, would be visited under the 
Renewal IHA, but no takes are anticipated or requested for these 
locations. Planned survey activities could result in Level B harassment 
consisting of temporary, short-term behavioral disturbance. In 
analyzing the effects of the activities in the initial IHA, and in 
consideration of the implementation of the required mitigation 
measures, NMFS determined that the total marine mammal incidental take 
from PISCO's rocky intertidal monitoring program would not adversely 
affect annual rates of recruitment or survival and, therefore, would 
have a negligible impact on the affected species or stocks. NMFS also 
concluded that the numbers of animals authorized for incidental take 
are small relative to the relevant species or stocks (0.65-0.82 percent 
for harbor seals, and <0.01 percent for California sea lions and 
northern elephant seals). As discussed above, the same amount and type 
of take is authorized under this Renewal 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. 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.

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. 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.

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 IHA) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or 
mortality)

[[Page 17788]]

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.

IHA Renewal

    NMFS has issued an IHA Renewal that includes the previously 
described mitigation, monitoring, and reporting requirements to PISCO 
for the harassment of small numbers of the three marine mammal species 
incidental to conducting rocky intertidal monitoring surveys off the 
coasts of Oregon and California for a period of one year.

    Dated: April 22, 2019.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2019-08392 Filed 4-25-19; 8:45 am]
 BILLING CODE 3510-22-P