Take of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Rocky Intertidal Monitoring Surveys Along the Oregon and California Coasts, 2369-2382 [2020-00394]
Download as PDF
<![CDATA[
Federal Register / Vol. 85, No. 10 / Wednesday, January 15, 2020 / Proposed Rules
information collection burden for small
business concerns with fewer than 25
employees, pursuant to the Small
Business Paperwork Relief Act of 2002,
Public Law 107–198, see 44 U.S.C.
3506(c)(4).
68. Contact Person. For further
information about this rulemaking
proceeding, please contact Michelle
Sclater, Competition Policy Division,
Wireline Competition Bureau, at (202)
418–0388 or michelle.sclater@fcc.gov.
IV. Ordering Clauses
69. It is ordered, pursuant to sections
201 and 251 of the Communications Act
of 1934, as amended, 47 U.S.C. 201, 251,
that the Notice of Proposed Rulemaking
in WC Docket No. 18–336 is adopted.
70. It is further ordered that the
Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Notice of Proposed Rulemaking,
including the Initial Regulatory
Flexibility Analysis, to the Chief
Counsel for Advocacy of the Small
Business Administration.
List of Subjects in 47 CFR Part 52
Communications common carriers,
Telecommunications, Telephone.
PART 52—NUMBERING
1. The authority citation for part 52
remains as follows:
■
2. Amend part 52 by adding subpart
E, consisting of § 52.200, to read as
follows:
■
Subpart E—Universal Dialing Code for
National Suicide Prevention and
Mental Health Crisis Hotline System
jbell on DSKJLSW7X2PROD with PROPOSALS
Designation of 988.
3. Add § 52.200 to read as follows:
§ 52.200 Designation of 988 for a National
Suicide Prevention and Mental Health Crisis
Hotline.
(a) Beginning [EFFECTIVE DATE OF
FINAL RULE], 988 shall be the 3-digit
dialing code for a national suicide
prevention and mental health crisis
hotline system maintained by the
16:46 Jan 14, 2020
Jkt 250001
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 217
Take of Marine Mammals Incidental to
Specified Activities; Taking Marine
Mammals Incidental to Rocky Intertidal
Monitoring Surveys Along the Oregon
and California Coasts
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
NMFS has received a request
from University of California Santa
Cruz’s Partnership for Interdisciplinary
Studies of Coastal Oceans (UCSC/
PISCO) for authorization to take marine
mammals incidental to rocky intertidal
monitoring surveys along the Oregon
and California coasts. Pursuant to the
Marine Mammal Protection Act
(MMPA), NMFS is proposing
regulations to govern that take, and
requests comments on the proposed
regulations. NMFS will consider public
comments prior to making any final
decision on the issuance of the
requested MMPA authorization and
agency responses will be summarized in
the final notice of our decision.
DATES: Comments and information must
be received no later than February 14,
2020.
ADDRESSES: You may submit comments
on this document, identified by NOAA–
SUMMARY:
Authority: 47 U.S.C. 151, 152, 153, 154,
155, 201–205, 207–209, 218, 225–227, 251–
252, 271, 332, unless otherwise noted.
VerDate Sep<11>2014
BILLING CODE 6712–01–P
RIN 0648–BJ37
Proposed Rule
For the reasons discussed in the
preamble, the Federal Communications
Commission proposes to amend 47 CFR
part 52 as follows:
■
[FR Doc. 2019–28429 Filed 1–14–20; 8:45 am]
[Docket No. 200106–0004]
Federal Communications Commission.
Marlene Dortch,
Secretary.
Sec.
52.200
Assistant Secretary for Mental Health
and Substance Use and the Secretary of
Veterans Affairs.
(b) All telecommunications carriers
and interconnected Voice over internet
Protocol (VoIP) providers shall transmit
all calls initiated by an end user dialing
988 to the current toll free access
number for the National Suicide
Prevention Lifeline, presently 1–800–
273–8255 (TALK).
(c) All telecommunications carriers
and interconnected VoIP providers shall
complete all changes to their systems
that are necessary to implement the
designation of the 988 dialing code by
[DATE 18 MONTHS AFTER EFFECTIVE
DATE OF FINAL RULE].
PO 00000
Frm 00043
Fmt 4702
Sfmt 4702
2369
NMFS–2020–0002, by any of the
following methods:
• Electronic submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal. Go to
www.regulations.gov/
#!docketDetail;D=NOAA-NMFS-20200002, click the ‘‘Comment Now!’’ icon,
complete the required fields, and enter
or attach your comments.
• Mail: Submit written comments to
Jolie Harrison, Chief, Permits and
Conservation Division, Office of
Protected Resources, National Marine
Fisheries Service, 1315 East West
Highway, Silver Spring, MD 20910.
Instructions: Comments sent by any
other method, to any other address or
individual, or received after the end of
the comment period, may not be
considered by NMFS. All comments
received are a part of the public record
and will generally be posted for public
viewing on www.regulations.gov
without change. All personal identifying
information (e.g., name, address),
confidential business information, or
otherwise sensitive information
submitted voluntarily by the sender will
be publicly accessible. NMFS will
accept anonymous comments (enter ‘‘N/
A’’ in the required fields if you wish to
remain anonymous). Attachments to
electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF
file formats only.
FOR FURTHER INFORMATION CONTACT:
Dwayne Meadows, Ph.D., 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: https://
www.fisheries.noaa.gov/permit/
incidental-take-authorizations-undermarine-mammal-protection-act. In case
of problems accessing these documents,
please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Availability
A copy of UCSC/PISCO’s application
and any 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 (see
FOR FURTHER INFORMATION CONTACT).
Purpose and Need for Regulatory
Action
This proposed rule would establish a
framework under the authority of the
MMPA (16 U.S.C. 1361 et seq.) to allow
for the authorization of take of marine
E:\FR\FM\15JAP1.SGM
15JAP1
2370
Federal Register / Vol. 85, No. 10 / Wednesday, January 15, 2020 / Proposed Rules
mammals incidental to the UCSC/
PISCO’s rocky intertidal research
activities in Oregon and California.
We received an application from the
UCSC/PISCO requesting five-year
regulations and authorization to take
multiple species of marine mammals.
Take would occur by Level B
harassment incidental to visual
disturbance of pinnipeds during
research activities and use of research
equipment. Please see ‘‘Background’’
below for definitions of harassment.
jbell on DSKJLSW7X2PROD with PROPOSALS
Legal Authority for the Proposed Action
Section 101(a)(5)(A) of the MMPA (16
U.S.C. 1371(a)(5)(A)) directs the
Secretary of Commerce to allow, upon
request, the incidental, but not
intentional taking of small numbers of
marine mammals by U.S. citizens who
engage in a specified activity (other than
commercial fishing) within a specified
geographical region for up to five years
if, after notice and public comment, the
agency makes certain findings and
issues regulations that set forth
permissible methods of taking pursuant
to that activity and other means of
effecting the ‘‘least practicable adverse
impact’’ on the affected species or
stocks and their habitat (see the
discussion below in the Proposed
Mitigation section), as well as
monitoring and reporting requirements.
Section 101(a)(5)(A) of the MMPA and
the implementing regulations at 50 CFR
part 216, subpart I provide the legal
basis for issuing this proposed rule
containing five-year regulations, and for
any subsequent Letters of Authorization
(LOAs). As directed by this legal
authority, this proposed rule contains
mitigation, monitoring, and reporting
requirements.
Summary of Major Provisions Within
the Proposed Rule
Following is a summary of the major
provisions of this proposed rule
regarding UCSC/PISCO’s rocky
intertidal research activities. These
measures include:
• Required implementation of
mitigation to minimize impact to
pinnipeds and avoid disruption to
dependent pups including several
measures to approach haulouts
cautiously to minimize disturbance,
especially when pups are present.
• Required monitoring of the research
areas to detect the presence of marine
mammals before initiating surveys.
Background
The MMPA prohibits the ‘‘take’’ of
marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and
(D) of the MMPA (16 U.S.C. 1361 et
VerDate Sep<11>2014
16:46 Jan 14, 2020
Jkt 250001
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, regulations are issued, and
notice is provided to the public.
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 the species or stocks for
taking for certain subsistence uses
(referred to, in shorthand, as
‘‘mitigation’’); and requirements
pertaining to the mitigation, monitoring
and reporting of the takings are set forth.
The definitions of all applicable
MMPA statutory terms cited above are
included in the relevant sections below.
Summary of Request
On August 12, 2019, NMFS received
a request from UCSC/PISCO for a
proposed rule and LOA to take marine
mammals incidental to rocky intertidal
monitoring surveys along the Oregon
and California coasts. After a series of
revisions, the application was deemed
adequate and complete on October 8,
2019. UCSC/PISCO’s request is for take
of a small number of California sea lion
(Zalophus californianus), Harbor seals
(Phoca vitulina richardii), Northern
elephant seals (Mirounga angustirostris),
and Steller sea lions (Eumetopias
jubatus), by Level B harassment only.
Neither UCSC/PISCO nor NMFS expects
serious injury or mortality, or Level A
harassment, to result from this activity.
NMFS previously issued seven IHAs
to UCSC/PISCO for this work (77 FR
72327, December 5, 2012; 78 FR 79403,
December 30, 2013; 79 FR 73048,
December 9, 2014; 81 FR 7319, February
11, 2016; 82 FR 12568, March 6, 2017;
83 FR 11696, March 16, 2018; 84 FR
17784, April 26, 2019). UCSC/PISCO
complied with all the requirements (e.g.,
mitigation, monitoring, and reporting) of
the previous IHAs and information
regarding their monitoring results may
be found in the Potential Effects of the
Specified Activity on Marine Mammals
and their Habitat and Estimated Take
sections.
National Environmental Policy Act
Description of Proposed Activity
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 a
proposed rule (and subsequent LOAs))
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
(IHAs) 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 preliminarily determined
that the issuance of the proposed rule
qualifies to be categorically excluded
from further NEPA review. We will
review all comments submitted in
response to this proposed rule prior to
concluding our NEPA process or making
a final decision on the request.
PO 00000
Frm 00044
Fmt 4702
Sfmt 4702
Overview
UCSC/PISCO proposes to continue
rocky intertidal monitoring work that
has been ongoing for over 20 years.
UCSC/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.
Research is conducted throughout the
year along the California and Oregon
coasts and will continue indefinitely.
Researchers accessing and conducting
research activities on the sites may
occasionally cause behavioral
disturbance (or Level B harassment) of
four pinniped species. UCSC/PISCO
expects that the disturbance to
pinnipeds from the research activities
will be minimal and will be limited to
Level B harassment.
Dates and Duration
UCSC/PISCO’s research is conducted
throughout the year. Most sites are
sampled one to two times per year over
a 1 to 2-day period (4–6 hours per site)
during a negative low tide series (when
E:\FR\FM\15JAP1.SGM
15JAP1
2371
Federal Register / Vol. 85, No. 10 / Wednesday, January 15, 2020 / Proposed Rules
tides are lower than the average). 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 of the calendar year. Over the
course of this five-year authorization
UCSC/PISCO expects approximately
300 days of survey effort. UCSC/PISCO’s
current IHA expires April 11, 2020, so
these regulations are requested to be
effective April 12, 2020 through April
11, 2025.
Specific Geographic Region
Sampling sites occur along the
California and Oregon coasts.
Community Structure Monitoring
survey 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 Table 1 and the
maps of UCSC/PISCO’s application.
Detailed Description of Specific Activity
Community Structure Monitoring
surveys involve 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 Monitoring sites,
each of which will be visited one to two
times per year (see Table 1 of the
application for specifics for each site)
under the proposed regulations and
LOA and surveyed over a 1-day period
during a low tide series.
Biodiversity Surveys are part of a
long-term monitoring project and are
conducted every 3–5 years across 143
established sites. These Biodiversity
Surveys involve point contact
identification along permanent
transects, mobile invertebrate quadrat
counts, sea star band counts, and tidal
height topographic measurements.
Many of the Biodiversity Survey sites
are also Community Structure sites.
Biodiversity survey sites will be
sampled zero to five times during the
course of these regulations and LOA
(see Tables 3–6 in the application for
details of expected survey frequency).
The intertidal zones where UCSC/
PISCO conducts intertidal monitoring
are also areas where pinnipeds can be
found hauled out (temporarily leaving
the water) on the shore at or adjacent to
some research sites. Pinnipeds have
been recorded at 63 of the 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 or during occasions
when they replace survey marker bolts
using a hand drill. No motorized
equipment is involved in conducting
these surveys.
Proposed mitigation, monitoring, and
reporting measures are described in
detail later in this document (please see
Proposed Mitigation and Proposed
Monitoring and Reporting).
Description of Marine Mammals in the
Area of Specified Activities
Sections 3 and 4 of the application
summarize available information
regarding status and trends, distribution
and habitat preferences, and behavior
and life history, of the potentially
affected species. Additional information
regarding population trends and threats
may be found in NMFS’s Stock
Assessment Reports (SARs; https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/marinemammal-stock-assessments) and more
general information about these species
(e.g., physical and behavioral
descriptions) may be found on NMFS’s
website (https://
www.fisheries.noaa.gov/find-species).
Table 1 lists all species with expected
potential for occurrence at survey sites
in California and Oregon and
summarizes information related to the
population or stock, including
regulatory status under the MMPA and
Endangered Species Act (ESA) and
potential biological removal (PBR),
where known. For taxonomy, we follow
Committee on Taxonomy (2018). PBR is
defined by the MMPA as the maximum
number of animals, not including
natural mortalities, that may be removed
from a marine mammal stock while
allowing that stock to reach or maintain
its optimum sustainable population (as
described in NMFS’s SARs). While no
mortality is anticipated or authorized
here, PBR and annual serious injury and
mortality from anthropogenic sources
are included here as gross indicators of
the status of the species and other
threats.
Marine mammal abundance estimates
presented in this document represent
the total number of individuals that
make up a given stock or the total
number estimated within a particular
study or survey area. NMFS’s stock
abundance estimates for most species
represent the total estimate of
individuals within the geographic area,
if known, that comprises that stock. For
some species, this geographic area may
extend beyond U.S. waters. All managed
stocks in this region are assessed in
NMFS’s U.S. 2018 Pacific Marine
Mammal SARs (Carretta et al. 2019). All
values presented in Table 1 are the most
recent available at the time of
publication and are available in the
2018 SARs (available online at: https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/draftmarine-mammal-stock-assessmentreports).
TABLE 1—MARINE MAMMALS POTENTIALLY PRESENT IN THE VICINITY OF THE STUDY AREAS
jbell on DSKJLSW7X2PROD with PROPOSALS
Common name
Scientific name
ESA/MMPA
status; strategic
(Y/N) 1
Stock
Stock abundance (CV,
Nmin, most recent
abundance survey) 2
PBR
Annual
M/SI 3
Order Carnivora—Superfamily Pinnipedia
Family Otariidae (eared seals and sea lions):
California sea lion ............ Zalophus californianus ..........
Steller sea lion .................
Eumetopias jubatus ...............
U.S. .......................................
-; N
Eastern U.S. ..........................
-; N
257,606 (n/a; 233,515;
2014).
41,638 (n/a; 41,638;
2015).
Family Phocidae (earless
seals):
VerDate Sep<11>2014
16:46 Jan 14, 2020
Jkt 250001
PO 00000
Frm 00045
Fmt 4702
Sfmt 4702
E:\FR\FM\15JAP1.SGM
15JAP1
14,011
>320
2,498
108
2372
Federal Register / Vol. 85, No. 10 / Wednesday, January 15, 2020 / Proposed Rules
TABLE 1—MARINE MAMMALS POTENTIALLY PRESENT IN THE VICINITY OF THE STUDY AREAS—Continued
Common name
Scientific name
ESA/MMPA
status; strategic
(Y/N) 1
Stock
Harbor seal ......................
Phoca vitulina richardii ..........
California/Oregon/Washington.
-; N
Northern elephant seal ....
Mirounga angustirostris .........
California ...............................
-; N
Stock abundance (CV,
Nmin, most recent
abundance survey) 2
30,968 (0.157; 27,348;
2012 [CA])/.
UNK (n/a; n/a [OR/
WA]4.
179,000 (n/a; 81,368;
2010).
PBR
Annual
M/SI 3
1,641
43
4,882
8.8
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: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
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.
All species that could potentially
occur in the proposed survey areas are
included in Table 1. As described
below, all four species temporally and
spatially co-occur with the activity to
the degree that take is reasonably likely
to occur, and we have proposed
authorizing it.
In addition, the southern sea otter
may be found from San Francisco south
to the Channel Islands. However, they
are managed by the U.S. Fish and
Wildlife Service and are not considered
further in this document.
jbell on DSKJLSW7X2PROD with PROPOSALS
California Sea Lions
California sea lions (Zalophus
californianus) are distributed along the
west coast of North America from
British Columbia to Baja California and
throughout the Gulf of California.
Breeding occurs on offshore islands
along the west coast of Baja California
and the Gulf of California as well as on
the California Channel Islands. There
are three recognized California sea lion
stocks (U.S. stock, Western Baja stock,
and the Gulf of California stock) with
the U.S. stock ranging from the U.S./
Mexico border into Canada. Although
there is some movement between stocks,
U.S. rookeries are considered to be
isolated from rookeries off of Baja
California (Barlow et al. 1995).
California sea lions were hunted for
several thousand years by indigenous
peoples and early hunters. In the early
1900s, sea lions were killed in an effort
to reduce competition with commercial
fisheries. They were also hunted
commercially from the 1920–1940s.
Following the passage of the MMPA in
1972, as well as limits on killing and
harassment in Mexico, the population
has rapidly increased (Reeves et al.
2002). Declines in pup production did
occur during the 1983–84, 1992–93,
1997–98, and 2003 El Nin˜o events, but
production returned to pre- El Nin˜o
VerDate Sep<11>2014
16:46 Jan 14, 2020
Jkt 250001
levels within 2–5 years (Carretta et al.
2016). In 2013, NOAA declared an
Unusual Mortality Event (UME) due to
the elevated number of sea lion pup
strandings in southern California. The
cause of this event is thought to be
nutritional stress related to declines in
prey availability. This UME is on-going.
They have been observed in the project
vicinity at 28 of the research sites (see
application Table 4).
Steller Sea Lion
Steller sea lions (Eumetopias jubatus)
range along the North Pacific Rim from
northern Japan to California, with
centers of abundance and distribution in
the Gulf of Alaska and Aleutian Islands.
Large numbers of individuals widely
disperse when not breeding (late May to
early July) to access seasonally
important prey resources (Muto et al.
2019). In 1997 NMFS identified two
distinct population segments (DPSs) of
Steller sea lions under the ESA: A
Western DPS and an Eastern DPS (62 FR
24345, May 5, 1997). The Eastern DPS
is not ESA listed, the Western DPS is.
For MMPA purposes the Eastern DPS is
called the Eastern U.S. stock and the
Western DPS is called the Western U.S.
stock. The Steller sea lions along the
Oregon and California coasts are part of
the Eastern Stock (and DPS). Steller sea
lions are rare in the research areas. They
have only been observed in the project
vicinity at Cape Arago in 2009 and have
not been observed during this research
project since then.
Northern Elephant Seal
Northern elephant seals (Mirounga
angustirostris) range widely throughout
the eastern Pacific for most of the year
to forage. They return to haulout
locations along the west coast of the
continental United States including the
Channel Islands, the central California
coast, and islands off Baja California, to
PO 00000
Frm 00046
Fmt 4702
Sfmt 4702
breed and molt. Breeding occurs from
December through early spring, with
males returning to haul-out locations
earlier than females to establish
dominance hierarchies. Molting occurs
from late April to August, with juveniles
and adult females returning earlier than
adult males (Reeves et al. 2002). Due to
very little movement between colonies
in Mexico and those in California, the
California population is considered to
be a separate stock (Carretta et al. 2019).
This species was hunted by
indigenous peoples for several thousand
years and by commercial sealers in the
1800s. By the late 1800s, the species
was thought to be extinct, although
several were seen on Guadalupe Island
in the 1880s and a few dozen to several
hundred survived off of Mexico (Stewart
et al. 1994). The population began
increasing in the early 1900s and
progressively colonized southern and
central California through the 1980s
(Reeves et al. 2002). The species
abundance has grown at 3.8 percent
annually since 1988 (Lowry et al. 2014).
They have been observed in the
project vicinity at 13 of the research
sites (see application Table 5).
Pacific Harbor Seal
Pacific harbor seals (Phoca vitulina
richardii) inhabit near-shore coastal and
estuarine areas from Baja California,
Mexico, to the Pribilof Islands in
Alaska. They are divided into two
subspecies: P. v. stejnegeri in the
western North Pacific, near Japan, and
P. v. richardii in the northeast Pacific
Ocean. The latter subspecies, includes
two MMPA stocks in the project area:
The Oregon and Washington Coast stock
in the outer coastal waters of Oregon
and Washington states, and the
California stock.
In Oregon there are over 40 haulout
sites (Brown et al. 2005) while in
California, over 500 harbor seal haulout
sites are widely distributed along the
E:\FR\FM\15JAP1.SGM
15JAP1
Federal Register / Vol. 85, No. 10 / Wednesday, January 15, 2020 / Proposed Rules
jbell on DSKJLSW7X2PROD with PROPOSALS
mainland and offshore islands, and
include rocky shores, beaches and
intertidal sandbars (Lowry et al. 2005).
Harbor seals mate at sea, and females
give birth during the spring and
summer, although, the pupping season
varies with latitude. Pups are nursed for
an average of 24 days and are ready to
swim minutes after being born. Harbor
seal pupping takes place at many
locations, and rookery size varies from
a few pups to many hundreds of pups.
Pupping generally occurs between
March and June, and molting occurs
between May and July.
A 1999 census of the Oregon/
Washington harbor seal stock found
16,165 individuals, of which 5,735 were
in Oregon (Carretta et al. 2016). The
population was estimated to number
24,732 individuals in the Oregon/
Washington stock (Carretta et al. 2016).
However, the most recent abundance
estimate for the Oregon/Washington
stock is over 8 years old, therefore the
abundance estimate for this stock is
considered unofficial. They have been
observed in the project vicinity at 49 of
the research sites (see application Table
3).
Potential Effects of Specified Activities
on Marine Mammals and Their Habitat
This section includes a summary and
discussion of the ways that components
of the specified activity may impact
marine mammals and their habitat. The
Estimated Take section later in this
document includes a quantitative
analysis of the number of individuals
that are expected to be taken by this
activity. The Negligible Impact Analysis
and Determination section considers the
content of this section, the Estimated
Take section, and the Proposed
Mitigation section, to draw conclusions
regarding the likely impacts of these
activities on the reproductive success or
survivorship of individuals and how
those impacts on individuals are likely
to impact marine mammal species or
stocks.
The appearance of researchers may
have the potential to cause Level B
behavioral harassment of any pinnipeds
hauled out at sampling sites. Although
marine mammals are never deliberately
approached by survey personnel,
approach may be unavoidable if
pinnipeds are hauled out in the
immediate vicinity of the permanent
study plots. Disturbance may result in
reactions ranging from an animal simply
becoming alert to the presence of
researchers (e.g., turning the head,
assuming a more upright posture) to
flushing from the haulout site into the
water. NMFS does not consider the
lesser reactions to constitute behavioral
VerDate Sep<11>2014
16:46 Jan 14, 2020
Jkt 250001
harassment, or Level B harassment
takes, but rather assumes that pinnipeds
that flee some distance or change the
speed or direction of their movement in
response to the presence of researchers
are behaviorally harassed, and thus
subject to Level B taking (see below).
Animals that respond to the presence of
researchers by becoming alert, but do
not move or change the nature of
locomotion as described, are not
considered to have been subject to
behavioral harassment.
Numerous studies have shown that
human activity can flush harbor seals
off haulout sites (Allen et al. 1985;
Suryan and Harvey 1999). The Hawaiian
monk seal (Neomonachus
schauinslandi) has been shown to avoid
beaches that have been disturbed often
by humans (Kenyon 1972). Moreover, in
one case, human disturbance appeared
to cause Steller sea lions to desert a
breeding area at Northeast Point on St.
Paul Island, Alaska (Kenyon 1962).
There are three ways in which
disturbance, as described previously,
could result in more than Level B
harassment of marine mammals. All
three are most likely to be consequences
of stampeding, a potentially dangerous
occurrence in which large numbers of
animals succumb to mass panic and
rush away from a stimulus. The three
situations are: (1) Falling when entering
the water at high-relief locations; (2)
extended separation of mothers and
pups; and (3) crushing of elephant seal
pups by large males during a stampede.
UCSC/PISCO researchers have only
recorded one instance of stampeding,
which occurred in 2013.
Because hauled out animals may
move towards the water when
disturbed, there is the risk of injury if
animals stampede towards shorelines
with precipitous relief (e.g., cliffs).
Shoreline habitats near the survey areas
tend to consist of steeply sloping rocks
with unimpeded and non-obstructed
access to the water. Disturbed, hauled
out animals in these situations are likely
to move toward the water slowly
without risk of unexpectedly falling off
cliffs or encountering barriers or hazards
or that would otherwise prevent them
from leaving the area. Therefore,
research activity poses no risk that
disturbed animals may fall and be
injured or killed as a result of
disturbance at high-relief locations and
thus there is no risk that these
disturbances will result in Level A
harassment or mortality/serious injury.
Few pups are anticipated to be
encountered during the proposed
monitoring surveys. A small number of
harbor seal, northern elephant seal and
California sea lion pups, however, have
PO 00000
Frm 00047
Fmt 4702
Sfmt 4702
2373
been observed during past years.
Though 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
than the other two species. Harbor seals
are very precocious with only a short
period of time in which separation of a
mother from a pup could occur. Pups
are also 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. Finally, the
caution used by researchers in
approaching sites generally precludes
the possibility of behaviors, such as
stampeding, that could result in
extended separation of mothers and
dependent pups, or trampling of pups.
The only habitat modification
associated with the proposed activity is
the placement of permanent bolts and
temporary sampling equipment in the
intertidal zone. The installation of bolts
and sampling equipment is conducted
under the appropriate permits (National
Marine Sanctuary, California State
Parks). Once a particular study has
ended, the respective sampling
equipment is removed; the bolts remain.
No trash or field gear is left at a site.
Sampling activities are also not
expected to result in any long-term
modifications of haulout use or
abandonment of haulouts since these
sites are only visited one to two times
per year, which minimizes repeated
disturbances. During periods of low tide
(e.g., when tides are 0.6 m (2 ft) or less
and low enough for pinnipeds to
haulout), we would expect the
pinnipeds to return to the haulout site
within 60 minutes of the disturbance
(Allen et al. 1985). The effects to
pinnipeds appear at most to displace the
animals temporarily from their haulout
sites, and we do not expect, and have
not observed during previous
authorizations, that the pinnipeds
would permanently abandon a haulout
site during the conduct of rocky
intertidal surveys. Additionally, impacts
to prey species from survey activities
are not anticipated. Thus, the proposed
activity is not expected to have any
habitat-related effects that could cause
significant or long-term consequences
for individual marine mammals or their
populations.
Estimated Take
This section provides an estimate of
the number of incidental takes proposed
for authorization through this IHA,
which will inform both NMFS’
consideration of ‘‘small numbers’’ and
the negligible impact determination.
E:\FR\FM\15JAP1.SGM
15JAP1
2374
Federal Register / Vol. 85, No. 10 / Wednesday, January 15, 2020 / Proposed Rules
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
proposed to be authorized. As described
previously, no mortality is anticipated
or proposed to be 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 from
2013–2018 at each site from previous
UCSC/PISCO survey activities. Marine
mammal observations are done as part
of research site observations, which
include notes on physical and biological
conditions at the site, completed on
each study day. From 2013–2018
observations were categorized on a four
point scale:
• 0 = observation by researchers from
a distance, no reaction by pinniped
• 1 = pinniped reacted to presence of
researchers with movement <1 meter
• 2 = pinniped reacted to presence of
researchers with short movement of 1–
3 meters
• 3 = pinniped flushed to the water
or moved >3 meters in retreat
A marine mammal is counted as an
‘‘encounter’’ (at least level 0 on the
above scale) if it is seen on access ways
to the site, at the site, or immediately
up-coast or down-coast of the site,
regardless of whether that animal was
considered a ‘‘take’’ under the MMPA.
Marine mammals in the water
immediately offshore are also recorded.
Under the above scale, ‘‘take’’ was only
considered to be level 2 or 3
observations from the above scale. The
maximum number of marine mammals,
by species, seen at any given time
throughout the sampling day (categories
0 through 4) is recorded at the
conclusion of sampling. 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 would
be authorized were based on the
following equation:
Take estimate per survey site = number
of expected animals per site * number
of planned survey events per survey
site
For take estimates, UCSC/PISCO
summed the total number of marine
mammals, by species, ‘‘encountered’’ at
each research site during the period
from 2013 to 2018 (i.e., all observations
score 0 to 4 on the above scale). We then
summed the number of sampling events
where marine mammals were
encountered at each site and calculated
the average number of encounters per
event (see Tables 2–5). These are the
‘‘number of expected animals per site’’
for the equation above. Note the number
of these historical encounters that
qualified as Level B take was less than
40 percent of all encounters (see
application Section 6), so take estimates
are expected to be conservative and
consider potential temporal variation.
The maximum number of planned
survey events per survey site is listed in
Tables 2–5. For Steller sea lions the one
sighting from 2009 was used in this
analysis. The take estimate by species
per survey site calculation results can
also be found in Tables 2–5.
TABLE 2—DATA AND CALCULATIONS TO ESTIMATE PROPOSED TAKE OF HARBOR SEALS
jbell on DSKJLSW7X2PROD with PROPOSALS
Site
Encounters/event
Andrew Molera ...........................................................................................................
Boat House ................................................................................................................
Bob Creek ..................................................................................................................
Bodega .......................................................................................................................
Cat Rock ....................................................................................................................
Cayucos .....................................................................................................................
Del Mar Landing ........................................................................................................
Eel Point ....................................................................................................................
Enderts .......................................................................................................................
False Klamath Cove ..................................................................................................
Fitzgerald Marine Reserve ........................................................................................
Fogarty Creek ............................................................................................................
Franklin Point .............................................................................................................
Government Point ......................................................................................................
Hopkins ......................................................................................................................
Horseshoe Cove ........................................................................................................
Kibesillah Hill .............................................................................................................
Launcher Beach .........................................................................................................
MacKerricher ..............................................................................................................
Mal Coombs ...............................................................................................................
Mill Creek ...................................................................................................................
Occulto .......................................................................................................................
Old Home Beach .......................................................................................................
Partington Cove .........................................................................................................
VerDate Sep<11>2014
16:46 Jan 14, 2020
Jkt 250001
PO 00000
Frm 00048
Fmt 4702
Sfmt 4702
Expected
maximum
# of survey events
2020–2024
1
5
1
9
2
6
5
1
1
1
46
8
6
38
14
6
8
10
2
5
1
3
10
2
E:\FR\FM\15JAP1.SGM
10
10
5
5
1
10
1
2
5
5
1
5
5
10
10
1
5
1
1
1
10
10
1
10
15JAP1
Calculated take
2020–2024
10
50
5
45
2
60
5
2
5
5
46
40
30
380
140
6
40
10
2
5
10
30
10
20
2375
Federal Register / Vol. 85, No. 10 / Wednesday, January 15, 2020 / Proposed Rules
TABLE 2—DATA AND CALCULATIONS TO ESTIMATE PROPOSED TAKE OF HARBOR SEALS—Continued
Site
Encounters/event
Expected
maximum
# of survey events
2020–2024
Calculated take
2020–2024
Pebble Beach ............................................................................................................
Piedras Blancas .........................................................................................................
Point Arena ................................................................................................................
Point Lobos ................................................................................................................
Point Pinos .................................................................................................................
Point Sierra Nevada ..................................................................................................
Sandhill Bluff ..............................................................................................................
Scott Creek ................................................................................................................
Sea Ranch .................................................................................................................
Sea Ridge ..................................................................................................................
Shell Beach ................................................................................................................
Shelter Cove ..............................................................................................................
Soberanes ..................................................................................................................
Stillwater ....................................................................................................................
Stornetta ....................................................................................................................
Terrace Point .............................................................................................................
Treasure Island ..........................................................................................................
Vista del Mar ..............................................................................................................
Waddell ......................................................................................................................
16
3
2
1
7
1
1
1
2
10
1
4
2
9
3
1
6
12
1
5
10
1
10
5
10
10
10
5
1
10
5
10
10
5
10
1
10
10
80
30
2
10
35
10
10
10
10
10
10
20
20
90
15
10
6
120
10
Total ....................................................................................................................
N/A
264
1466
TABLE 3—DATA AND CALCULATIONS TO ESTIMATE PROPOSED TAKE OF CALIFORNIA SEA LIONS
Site
Encounters/event
Expected
maximum
# of survey events
2020–2024
Calculated take
2020–2024
Bodega .......................................................................................................................
Cape Arago ................................................................................................................
Crook Point ................................................................................................................
Cuyler Harbor ............................................................................................................
Del Mar Landing ........................................................................................................
Eel Point ....................................................................................................................
Enderts .......................................................................................................................
False Klamath Cove ..................................................................................................
Franklin Point .............................................................................................................
Government Point ......................................................................................................
Kibesillah Hill .............................................................................................................
Old Stairs ...................................................................................................................
Piedras Blancas .........................................................................................................
Point Lobos ................................................................................................................
Point Pinos .................................................................................................................
Point Sierra Nevada ..................................................................................................
Purisma ......................................................................................................................
Shell Beach ................................................................................................................
Soberanes ..................................................................................................................
Stairs ..........................................................................................................................
Stornetta ....................................................................................................................
Terrace Point .............................................................................................................
3
21
3
1
1
2
3
2
2
11
2
2
25
1
1
1
1
1
3
1
2
1
5
5
1
1
1
2
5
5
5
10
5
1
10
10
5
10
5
10
10
10
5
10
15
105
3
1
1
4
15
10
10
110
10
2
250
10
5
10
5
10
30
10
10
10
Total ....................................................................................................................
N/A
131
636
TABLE 4—DATA AND CALCULATIONS TO ESTIMATE PROPOSED TAKE OF ELEPHANT SEALS
jbell on DSKJLSW7X2PROD with PROPOSALS
Site
Encounters/event
Ano Nuevo .................................................................................................................
Chimney Rock ...........................................................................................................
Crook Point ................................................................................................................
Cuyler Harbor ............................................................................................................
Government Point ......................................................................................................
Harmony Headlands ..................................................................................................
Mill Creek ...................................................................................................................
VerDate Sep<11>2014
16:46 Jan 14, 2020
Jkt 250001
PO 00000
Frm 00049
Fmt 4702
Sfmt 4702
Expected
maximum
# of survey events
2020–2024
5
3
2
2
3
1
1
E:\FR\FM\15JAP1.SGM
1
4
1
1
10
5
10
15JAP1
Calculated take
2020–2024
5
12
2
2
30
5
10
2376
Federal Register / Vol. 85, No. 10 / Wednesday, January 15, 2020 / Proposed Rules
TABLE 4—DATA AND CALCULATIONS TO ESTIMATE PROPOSED TAKE OF ELEPHANT SEALS—Continued
Site
Encounters/event
Expected
maximum
# of survey events
2020–2024
Calculated take
2020–2024
Piedras Blancas .........................................................................................................
Point Sierra Nevada ..................................................................................................
8
1
10
10
80
10
Total ....................................................................................................................
N/A
50
156
TABLE 5—DATA AND CALCULATIONS TO ESTIMATE PROPOSED TAKE OF STELLER SEA LIONS
Site
Encounters/event
Expected
maximum
# of survey events
2020–2024
Calculated take
2020–2024
Cape Arago ................................................................................................................
5
5
25
Total ....................................................................................................................
N/A
5
25
Individual species’ totals for each
survey site were summed to arrive at a
total estimated take number for the
entire project. This is the take that is
proposed to be authorized here (Table
6).
TABLE 6—PROPOSED AUTHORIZED LEVEL B TAKE AND PERCENT OF MMPA STOCK PROPOSED TO BE TAKEN
Proposed authorized take
Species
Percent of
population
Level B
jbell on DSKJLSW7X2PROD with PROPOSALS
Harbor Seal ..................................................................................................................................................
California sea lion ........................................................................................................................................
Northern elephant seal ................................................................................................................................
Steller Sea Lion ...........................................................................................................................................
Proposed Mitigation
In order to issue regulations and an
LOA under Section 101(a)(5)(A) of the
MMPA, NMFS must set forth the
permissible methods of taking pursuant
to the activity, and other means of
effecting the least practicable impact on
the species or stock and its habitat,
paying particular attention to rookeries,
mating grounds, and areas of similar
significance, and on the availability of
the 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 the 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:
VerDate Sep<11>2014
16:46 Jan 14, 2020
Jkt 250001
(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 and
impact on operations.
UCSC/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 for at least five minutes,
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 other pinnipeds are present,
PO 00000
Frm 00050
Fmt 4702
Sfmt 4702
1466
636
156
25
2.6
0.25
0.09
0.06
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
(crouched) in the visual presence of
pinnipeds.
• Researchers 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 UCSC/PISCO has
never observed an offshore predator
while researchers were present at any of
the survey sites.
E:\FR\FM\15JAP1.SGM
15JAP1
Federal Register / Vol. 85, No. 10 / Wednesday, January 15, 2020 / Proposed Rules
• Intentional approach 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.
• 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
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 proposed measures, NMFS
has preliminarily determined that the
proposed mitigation measures provide
the means effecting the least practicable
impact on the affected species or stocks
and their habitat, paying particular
attention to rookeries, mating grounds,
and areas of similar significance.
Proposed Monitoring and Reporting
In order to issue regulations and an
LOA for an activity, Section 101(a)(5)(A)
of the MMPA states that NMFS must set
forth requirements pertaining to the
monitoring and reporting of such taking.
The MMPA implementing regulations at
50 CFR 216.104(a)(13) indicate that
requests for authorizations must include
the suggested means of accomplishing
the necessary monitoring and reporting
that will result in increased knowledge
of the species and of the level of taking
or impacts on populations of marine
mammals that are expected to be
present in the proposed action area.
Effective reporting is critical both to
compliance as well as ensuring that the
most value is obtained from the required
monitoring.
Monitoring and reporting
requirements prescribed by NMFS
should contribute to improved
understanding of one or more of the
following:
• Occurrence of marine mammal
species or stocks in the area in which
take is anticipated (e.g., presence,
abundance, distribution, density).
• Nature, scope, or context of likely
marine mammal exposure to potential
stressors/impacts (individual or
cumulative, acute or chronic), through
better understanding of: (1) Action or
environment (e.g., source
characterization, propagation, ambient
noise); (2) affected species (e.g., life
history, dive patterns); (3) co-occurrence
of marine mammal species with the
action; or (4) biological or behavioral
context of exposure (e.g., age, calving or
feeding areas).
• Individual marine mammal
responses (behavioral or physiological)
to acoustic stressors (acute, chronic, or
cumulative), other stressors, or
cumulative impacts from multiple
stressors.
2377
• How anticipated responses to
stressors impact either: (1) Long-term
fitness and survival of individual
marine mammals; or (2) populations,
species, or stocks.
• Effects on marine mammal habitat
(e.g., marine mammal prey species,
acoustic habitat, or other important
physical components of marine
mammal habitat).
• Mitigation and monitoring
effectiveness.
UCSC/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.
Proposed monitoring requirements in
relation to UCSC/PISCO’s rocky
intertidal monitoring will include
observations made by the applicant.
Information recorded will include
species counts (with numbers of pups/
juveniles) of animals present before
approaching, numbers of observed
disturbances (based on the scale below),
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 threepoint scale shown in Table 7. Note that
only observations of disturbance Levels
2 and 3 should be recorded as takes.
jbell on DSKJLSW7X2PROD with PROPOSALS
TABLE 7—LEVELS OF PINNIPED BEHAVIORAL DISTURBANCE
Level
Type of response
Definition
1 .........................
Alert ................................................
2 .........................
Movement ......................................
3 .........................
Flush ..............................................
Seal head orientation or brief movement in response to disturbance, which may include
turning head towards the disturbance, craning head and neck while holding the body
rigid in a u-shaped position, changing from a lying to a sitting position, or brief movement of less than twice the animal’s body length.
Movements away from the source of disturbance, ranging from short withdrawals at
least twice the animal’s body length to longer retreats over the beach, or if already
moving a change of direction of greater than 90 degrees.
All retreats (flushes) to the water.
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
VerDate Sep<11>2014
16:46 Jan 14, 2020
Jkt 250001
monitoring report for NMFS and raw
data will be provided.
If at any time the specified activity
clearly causes the take of a marine
mammal in a manner prohibited by
these regulations or LOA, such as an
injury (Level A harassment), serious
injury, or mortality, UCSC/PISCO shall
immediately cease the specified
activities and report the incident to the
Office of Protected Resources, NMFS,
PO 00000
Frm 00051
Fmt 4702
Sfmt 4702
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;
E:\FR\FM\15JAP1.SGM
15JAP1
jbell on DSKJLSW7X2PROD with PROPOSALS
2378
Federal Register / Vol. 85, No. 10 / Wednesday, January 15, 2020 / Proposed Rules
(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) (if equipment is available).
Activities shall not resume until
NMFS is able to review the
circumstances of the prohibited take.
NMFS will work with UCSC/PISCO to
determine what measures are necessary
to minimize the likelihood of further
prohibited take and ensure MMPA
compliance. UCSC/PISCO may not
resume the activities until notified by
NMFS via letter, email, or telephone.
In the event that UCSC/PISCO
discovers an injured or dead marine
mammal and determines that the cause
of the injury or death is unknown and
the death is relatively recent (e.g., in
less than a moderate state of
decomposition), UCSC/PISCO shall
immediately report the incident to the
Office of Protected Resources, NMFS,
and the West Coast Regional Stranding
Coordinator, NMFS. The report must
include the same information identified
in the paragraph above. Activities may
continue while NMFS reviews the
circumstances of the incident. NMFS
will work with UCSC/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 regulations
and LOA (e.g., previously wounded
animal, carcass with moderate to
advanced decomposition, or scavenger
damage), UCSC/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. UCSC/
PISCO shall provide photographs, video
footage (if available) or other
documentation of the stranded animal
sighting to NMFS and the Marine
Mammal Stranding Network. Activities
may continue while NMFS reviews the
circumstances of the incident.
A draft annual report shall be
submitted to NMFS Office of Protected
Resources within 90 days after the
conclusion of each annual field season.
The final annual report after year five
may be included as part of the final
report (see below). The report will
include a summary of the information
gathered pursuant to the monitoring
requirements set forth above and in the
LOA. A final annual report shall be
submitted to the Director of the NMFS
Office of Protected Resources within 30
days after receiving comments from
NMFS on the draft annual report. If no
VerDate Sep<11>2014
16:46 Jan 14, 2020
Jkt 250001
comments are received from NMFS, the
draft annual report will be considered
the final report.
A draft final report shall be submitted
to NMFS Office of Protected Resources
within 60 days after the conclusion of
the fifth year. A final report shall 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
UCSC/PISCO complied with the
mitigation and monitoring that were
required under the prior IHAs issued
from 2013 to 2019. In compliance with
those IHAs, they submitted reports
detailing the activities and marine
mammal monitoring they conducted.
The IHAs required UCSC/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. These monitoring results
were discussed above in the Estimated
Take section.
Based on the results from the
monitoring reports, we conclude that
these results support our original
findings that the mitigation measures set
forth in the recent 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 (Table 3) 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., populationlevel effects). An estimate of the number
of takes alone is not enough information
PO 00000
Frm 00052
Fmt 4702
Sfmt 4702
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).
To avoid repetition, the discussion of
our analyses applies to all the species
listed in Table 7, given that the
anticipated effects of this activity on
these different marine mammal stocks
are expected to be similar. There is little
information about the nature or severity
of the impacts, or the size, status, or
structure of any of these species or
stocks that would lead to a different
analysis for this activity. Research
activities have the potential to disturb or
displace marine mammals. Specifically,
the project activities may result in take,
in the form of Level B harassment from
researchers movements and equipment
handling. Potential takes could occur if
individuals of these species are present
nearby when these activities are
underway.
No injuries or mortalities are
anticipated to occur as a result of UCSC/
PISCO’s rocky intertidal monitoring
surveys and none are proposed to be
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 proposed surveys. As shown in
E:\FR\FM\15JAP1.SGM
15JAP1
jbell on DSKJLSW7X2PROD with PROPOSALS
Federal Register / Vol. 85, No. 10 / Wednesday, January 15, 2020 / Proposed Rules
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, UCSC/PISCO 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. The potential for harassment is
further minimized through the approach
method and the implementation of the
planned mitigation measures (see
Proposed Mitigation section).
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
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 proposed
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
VerDate Sep<11>2014
16:46 Jan 14, 2020
Jkt 250001
permanent bolts and temporary research
equipment 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 proposed
mitigation and monitoring measures,
NMFS finds that the total marine
mammal take from UCSC/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 preliminary determination that the
impacts resulting from this activity are
not expected to adversely affect the
species or stock through effects on
annual rates of recruitment or survival:
• No serious injury or mortality, or
Level A harassment, 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 are anticipated; and
• Mitigation measures are anticipated
to be effective in minimizing the
number and severity of takes by Level
B harassment, which are expected to be
of short duration.
Based on the analysis contained
herein of the likely effects of the
specified activity on marine mammals
and their habitat, and taking into
consideration the implementation of the
proposed monitoring and mitigation
measures, NMFS preliminarily finds
that the total marine mammal take from
the proposed activity will have a
negligible impact on all affected marine
mammal species or stocks.
Small Numbers
As noted above, only small numbers
of incidental take may be authorized
under Sections 101(a)(5)(A) 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.
PO 00000
Frm 00053
Fmt 4702
Sfmt 4702
2379
The amount of take NMFS proposes to
authorize is 0.06 to 2.6 percent of any
stock’s best population estimate (Table
7). These are all likely conservative
estimates because they assume all
encounters result in take, which has not
historically been the case. The Oregon/
Washington stock of harbor seals has no
official NMFS abundance estimate as
the most recent estimate is greater than
eight years old. Nevertheless, the most
recent estimate was 27,348 animals and
it is highly unlikely this number has
drastically declined.
Based on the analysis contained
herein of the proposed activity
(including the proposed mitigation and
monitoring measures) and the
anticipated take of marine mammals,
NMFS preliminarily finds that small
numbers of marine mammals will be
taken relative to the population size of
the affected species or stocks.
Unmitigable Adverse Impact Analysis
and Determination
There are no relevant subsistence uses
of the affected marine mammal stocks or
species implicated by this action.
Therefore, NMFS has preliminarily
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.
No incidental take of ESA-listed
species is proposed for authorization or
expected to result from this activity.
Therefore, NMFS has determined that
formal consultation under section 7 of
the ESA is not required for this action.
Request for Information
NMFS requests interested persons to
submit comments, information, and
suggestions concerning the UCSC/
PISCO request and the proposed
regulations (see ADDRESSES). All
comments will be reviewed and
evaluated as we prepare a final rule and
make final determinations on whether
to issue the requested authorization.
This notice and referenced documents
provide all environmental information
relating to our proposed action for
public review.
E:\FR\FM\15JAP1.SGM
15JAP1
2380
Federal Register / Vol. 85, No. 10 / Wednesday, January 15, 2020 / Proposed Rules
Classification
Pursuant to the procedures
established to implement Executive
Order 12866, the Office of Management
and Budget has determined that this
proposed rule is not significant.
Pursuant to section 605(b) of the
Regulatory Flexibility Act (RFA), the
Chief Counsel for Regulation of the
Department of Commerce has certified
to the Chief Counsel for Advocacy of the
Small Business Administration that this
proposed rule, if adopted, would not
have a significant economic impact on
a substantial number of small entities.
UCSC/PISCO is the sole entity that
would be subject to the requirements in
these proposed regulations, and UCSC/
PISCO is not a small governmental
jurisdiction, small organization, or small
business, as defined by the RFA.
Because of this certification, a
regulatory flexibility analysis is not
required and none has been prepared.
This proposed rule contains a
collection-of-information requirement
subject to the provisions of the
Paperwork Reduction Act (PRA).
Notwithstanding any other provision of
law, no person is required to respond to
nor shall a person be subject to a
penalty for failure to comply with a
collection of information subject to the
requirements of the PRA unless that
collection of information displays a
currently valid OMB control number.
These requirements have been approved
by OMB under control number 0648–
0151 and include applications for
regulations, subsequent LOAs, and
reports.
Exports, Fish, Imports, Indians,
Labeling, Marine mammals, Penalties,
Reporting and recordkeeping
requirements, Seafood, Transportation.
Dated: January 7, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
jbell on DSKJLSW7X2PROD with PROPOSALS
For reasons set forth in the preamble,
50 CFR part 217 is proposed to be
amended as follows:
1. The authority citation for part 217
continues to read as follows:
■
Authority: 16 U.S.C. 1361 et seq.
2. Add subpart K to part 217 to read
as follows:
■
VerDate Sep<11>2014
16:46 Jan 14, 2020
Jkt 250001
Sec.
217.100 Specified activity and specified
geographical region.
217.101 Effective dates.
217.102 Permissible methods of taking.
217.103 Prohibitions.
217.104 Mitigation requirements.
217.105 Requirements for monitoring and
reporting.
217.106 Letters of Authorization.
217.107 Renewals and modifications of
Letters of Authorization.
217.108—217.109 [Reserved]
§ 217.100 Specified activity and specified
geographical region.
(a) Regulations in this subpart apply
only to the University of California
Santa Cruz’s Partnership for
Interdisciplinary Studies of Coastal
Oceans (UCSC/PISCO) and those
persons it authorizes or funds to
conduct activities on its behalf for the
taking of marine mammals that occurs
in the areas outlined in paragraph (b) of
this section and that occur incidental to
rocky intertidal monitoring research
surveys.
(b) The taking of marine mammals by
UCSC/PISCO may be authorized in a
Letter of Authorization (LOA) only if it
occurs on the coasts of Oregon or
California.
§ 217.101
Effective dates.
Regulations in this subpart are
effective from April 12, 2020 through
April 11, 2025.
§ 217.102
List of Subjects in 50 CFR Part 219
PART 217—REGULATIONS
GOVERNING THE TAKE OF MARINE
MAMMALS INCIDENTAL TO
SPECIFIED ACTIVITES
Subpart K—Taking Marine Mammals
Incidental to Rocky Intertidal
Monitoring Surveys Along the Oregon
and California Coasts
Permissible methods of taking.
Under LOAs issued pursuant to
§ 216.106 of this chapter and § 217.106,
the Holder of the LOA (hereinafter
‘‘UCSC/PISCO’’) may incidentally, but
not intentionally, take marine mammals
within the area described in
§ 217.100(b) by Level B harassment
associated with rocky intertidal
monitoring activities, provided the
activity is in compliance with all terms,
conditions, and requirements of the
regulations in this subpart and the
appropriate LOA.
§ 217.103
Prohibitions.
Notwithstanding takings
contemplated in § 217.100 and
authorized by a LOA issued under
§ 216.106 of this chapter and § 217.106,
no person in connection with the
activities described in § 217.100 may:
(a) Violate, or fail to comply with, the
terms, conditions, and requirements of
this subpart or a LOA issued under
§ 216.106 of this chapter and § 217.106;
PO 00000
Frm 00054
Fmt 4702
Sfmt 4702
(b) Take any marine mammal not
specified in such LOA;
(c) Take any marine mammal
specified in such LOA in any manner
other than as specified in § 217.102;
(d) Take a marine mammal specified
in such LOA if NMFS determines such
taking results in more than a negligible
impact on the species or stocks of such
marine mammal; or
(e) Take a marine mammal specified
in such LOA if NMFS determines such
taking results in an unmitigable adverse
impact on the species or stock of such
marine mammal for taking for
subsistence uses.
§ 217.104
Mitigation requirements.
When conducting the activities
identified in § 217.100(a), the mitigation
measures contained in any LOA issued
under § 216.106 of this chapter and
§ 217.106 must be implemented. These
mitigation measures shall include but
are not limited to:
(a) General conditions:
(1) Researchers will observe a site
from a distance for at least five minutes,
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 other species of pinnipeds are present,
researchers will approach with caution,
walking slowly, quietly, and close to the
ground to avoid surprising any hauledout individuals and to reduce flushing/
stampeding of individuals).
(2) 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
approach 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).
(3) Researchers will avoid making
loud noises (i.e., using hushed voices)
and keep bodies low to the ground in
the visual presence of pinnipeds.
(4) Researchers 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.
(5) Researchers will promptly vacate
sites at the conclusion of sampling.
(b) Pup protection measure:
(1) Intentional approach 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
E:\FR\FM\15JAP1.SGM
15JAP1
Federal Register / Vol. 85, No. 10 / Wednesday, January 15, 2020 / Proposed Rules
disturbance to mothers and dependent
pups.
(2) [Reserved]
§ 217.105 Requirements for monitoring
and reporting.
(a) Visual monitoring program. (1)
Standard 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.
(2) UCSC/PISCO will note
observations of:
(i) Unusual behaviors, numbers, or
distributions of pinnipeds, such that
any potential follow-up research can be
conducted by the appropriate personnel;
(ii) Tag-bearing carcasses of
pinnipeds, allowing transmittal of the
2381
information to appropriate agencies and
personnel; and
(iii) Rare or unusual species of marine
mammals for agency follow-up.
(3) For consistency, any reactions by
pinnipeds to researchers will be
recorded according to a three-point
scale shown in Table 1. Only
observations of disturbance Levels 2 and
3 should be recorded as takes.
jbell on DSKJLSW7X2PROD with PROPOSALS
TABLE 1 TO PARAGRAPH (a)(3)—LEVELS OF PINNIPED BEHAVIORAL DISTURBANCE
Level
Type of response
Definition
1 .........................
Alert ................................................
2 .........................
Movement ......................................
3 .........................
Flush ..............................................
Seal head orientation or brief movement in response to disturbance, which may include
turning head towards the disturbance, craning head and neck while holding the body
rigid in a u-shaped position, changing from a lying to a sitting position, or brief movement of less than twice the animal’s body length.
Movements away from the source of disturbance, ranging from short withdrawals at
least twice the animal’s body length to longer retreats over the beach, or if already
moving a change of direction of greater than 90 degrees.
All retreats (flushes) to the water.
(4) Information regarding physical
and biological conditions pertaining to
a site, as well as the date and time that
research was conducted are also noted.
(b) Prohibited Take. (1) If at any time
the specified activity clearly causes the
take of a marine mammal in a manner
prohibited by these regulations or LOA,
such as an injury (Level A harassment),
serious injury, or mortality, UCSC/
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:
(i) Time and date of the incident;
(ii) Description of the incident;
(iii) Environmental conditions (e.g.,
wind speed and direction, Beaufort sea
state, cloud cover, and visibility);
(iv) Description of all marine mammal
observations in the 24 hours preceding
the incident;
(v) Species identification or
description of the animal(s) involved;
(vi) Fate of the animal(s); and
(vii) Photographs or video footage of
the animal(s) (if equipment is available).
(2) Activities shall not resume until
NMFS is able to review the
circumstances of the prohibited take.
NMFS will work with UCSC/PISCO to
determine what measures are necessary
to minimize the likelihood of further
prohibited take and ensure MMPA
compliance. UCSC/PISCO may not
resume the activities until notified by
NMFS via letter, email, or telephone.
(c) Notification of dead or injured
marine mammals. (1) In the event that
UCSC/PISCO discovers an injured or
VerDate Sep<11>2014
16:46 Jan 14, 2020
Jkt 250001
dead marine mammal and determines
that the cause of the injury or death is
unknown and the death is relatively
recent (e.g., in less than a moderate state
of decomposition), UCSC/PISCO shall
immediately report the incident to the
Office of Protected Resources, NMFS,
and the West Coast Regional Stranding
Coordinator, NMFS. The report must
include the information identified in
paragraph (b)(1) of this section.
Activities may continue while NMFS
reviews the circumstances of the
incident. NMFS will work with UCSC/
PISCO to determine whether additional
mitigation measures or modifications to
the activities are appropriate.
(2) 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 regulations
and LOA (e.g., previously wounded
animal, carcass with moderate to
advanced decomposition, or scavenger
damage), UCSC/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. UCSC/
PISCO shall provide photographs, video
footage (if available) or other
documentation of the stranded animal
sighting to NMFS and the Marine
Mammal Stranding Network. Activities
may continue while NMFS reviews the
circumstances of the incident.
(d) Annual report. (1) A draft annual
report shall be submitted to NMFS
Office of Protected Resources within 90
days after the conclusion of each annual
field season. The final annual report
after year five may be included as part
PO 00000
Frm 00055
Fmt 4702
Sfmt 4702
of the final report (see below). The
report will include a summary of the
information gathered pursuant to the
monitoring requirements set forth above
and in the LOA.
(2) A final annual report shall be
submitted to the Director of the NMFS
Office of Protected Resources within 30
days after receiving comments from
NMFS on the draft annual report. If no
comments are received from NMFS, the
draft annual report will be considered
the final report.
(e) Final report. (1) A draft final report
shall be submitted to NMFS Office of
Protected Resources within 60 days after
the conclusion of the fifth year. A final
report shall 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.
§ 217.106
Letters of Authorization.
(a) To incidentally take marine
mammals pursuant to these regulations,
UCSC/PISCO must apply for and obtain
an LOA.
(b) An LOA, unless suspended or
revoked, may be effective for a period of
time not to exceed the expiration date
of these regulations.
(c) If an LOA expires prior to the
expiration date of these regulations,
UCSC/PISCO may apply for and obtain
a renewal of the LOA.
(d) In the event of projected changes
to the activity or to mitigation and
monitoring measures required by an
E:\FR\FM\15JAP1.SGM
15JAP1
2382
Federal Register / Vol. 85, No. 10 / Wednesday, January 15, 2020 / Proposed Rules
LOA, UCSC/PISCO must apply for and
obtain a modification of the LOA as
described in § 217.107.
(e) The LOA shall set forth:
(1) Permissible methods and numbers
of incidental taking;
(2) Means of effecting the least
practicable adverse impact (i.e.,
mitigation) on the species, its habitat,
and on the availability of the species for
subsistence uses; and
(3) Requirements for monitoring and
reporting.
(f) Issuance of the LOA shall be based
on a determination that the level of
taking will be consistent with the
findings made for the total taking
allowable under these regulations.
(g) Notice of issuance or denial of an
LOA shall be published in the Federal
Register within thirty days of a
determination.
§ 217.107 Renewals and modifications of
Letters of Authorization.
jbell on DSKJLSW7X2PROD with PROPOSALS
(a) An LOA issued under § 216.106 of
this chapter and § 217.106 for the
activity identified in § 217.100(a) shall
be renewed or modified upon request by
the applicant, provided that:
(1) The proposed specified activity
and mitigation, monitoring, and
reporting measures, as well as the
anticipated impacts, are the same as
those described and analyzed for these
regulations (excluding changes made
pursuant to the adaptive management
provision in paragraph (c)(1) of this
section), and
VerDate Sep<11>2014
16:46 Jan 14, 2020
Jkt 250001
(2) NMFS’ Office of Protected
Resources determines that the
mitigation, monitoring, and reporting
measures required by the previous LOA
under these regulations were
implemented.
(b) For an LOA modification or
renewal requests by the applicant that
include changes to the activity or the
mitigation, monitoring, or reporting
(excluding changes made pursuant to
the adaptive management provision in
paragraph (c)(1) of this section) that do
not change the findings made for the
regulations or result in no more than a
minor change in the total estimated
number of takes (or distribution by
species or years), NMFS’ Office of
Protected Resources may publish a
notice of proposed LOA in the Federal
Register, including the associated
analysis of the change, and solicit
public comment before issuing the LOA.
(c) An LOA issued under § 216.106 of
this chapter and § 217.106 for the
activity identified in § 217.100(a) may
be modified by NMFS’ Office of
Protected Resources under the following
circumstances:
(1) Adaptive Management—NMFS’
Office of Protected Resources may
modify (including augment) the existing
mitigation, monitoring, or reporting
measures (after consulting with UCSC/
PISCO regarding the practicability of the
modifications) if doing so creates a
reasonable likelihood of more
effectively accomplishing the goals of
PO 00000
Frm 00056
Fmt 4702
Sfmt 9990
the mitigation and monitoring set forth
in the preamble for these regulations.
(i) Possible sources of data that could
contribute to the decision to modify the
mitigation, monitoring, or reporting
measures in an LOA:
(A) Results from UCSC/PISCO’s
monitoring from the previous year(s).
(B) Results from other marine
mammal and/or sound research or
studies.
(C) Any information that reveals
marine mammals may have been taken
in a manner, extent or number not
authorized by these regulations or
subsequent LOAs.
(ii) If, through adaptive management,
the modifications to the mitigation,
monitoring, or reporting measures are
substantial, NMFS’ Office of Protected
Resources will publish a notice of
proposed LOA in the Federal Register
and solicit public comment.
(2) Emergencies—If NMFS’ Office of
Protected Resources determines that an
emergency exists that poses a significant
risk to the well-being of the species or
stocks of marine mammals specified in
LOAs issued pursuant to § 216.106 of
this chapter and § 217.106, an LOA may
be modified without prior notice or
opportunity for public comment. Notice
would be published in the Federal
Register within thirty days of the action.
§§ 217.108–217.109
[Reserved]
[FR Doc. 2020–00394 Filed 1–14–20; 8:45 am]
BILLING CODE 3510–22–P
E:\FR\FM\15JAP1.SGM
15JAP1
]]>Agencies
[Federal Register Volume 85, Number 10 (Wednesday, January 15, 2020)]
[Proposed Rules]
[Pages 2369-2382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00394]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 200106-0004]
RIN 0648-BJ37
Take 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: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS has received a request from University of California
Santa Cruz's Partnership for Interdisciplinary Studies of Coastal
Oceans (UCSC/PISCO) for authorization to take marine mammals incidental
to rocky intertidal monitoring surveys along the Oregon and California
coasts. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is
proposing regulations to govern that take, and requests comments on the
proposed regulations. NMFS will consider public comments prior to
making any final decision on the issuance of the requested MMPA
authorization and agency responses will be summarized in the final
notice of our decision.
DATES: Comments and information must be received no later than February
14, 2020.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2020-0002, by any of the following methods:
Electronic submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2020-0002, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: Submit written comments to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources,
National Marine Fisheries Service, 1315 East West Highway, Silver
Spring, MD 20910.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information submitted voluntarily by the sender
will be publicly accessible. NMFS will accept anonymous comments (enter
``N/A'' in the required fields if you wish to remain anonymous).
Attachments to electronic comments will be accepted in Microsoft Word,
Excel, or Adobe PDF file formats only.
FOR FURTHER INFORMATION CONTACT: Dwayne Meadows, Ph.D., 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: 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:
Availability
A copy of UCSC/PISCO's application and any 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 (see FOR FURTHER INFORMATION CONTACT).
Purpose and Need for Regulatory Action
This proposed rule would establish a framework under the authority
of the MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of
take of marine
[[Page 2370]]
mammals incidental to the UCSC/PISCO's rocky intertidal research
activities in Oregon and California.
We received an application from the UCSC/PISCO requesting five-year
regulations and authorization to take multiple species of marine
mammals. Take would occur by Level B harassment incidental to visual
disturbance of pinnipeds during research activities and use of research
equipment. Please see ``Background'' below for definitions of
harassment.
Legal Authority for the Proposed Action
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs
the Secretary of Commerce to allow, upon request, the incidental, but
not intentional taking of small numbers of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) within a specified geographical region for up to five years
if, after notice and public comment, the agency makes certain findings
and issues regulations that set forth permissible methods of taking
pursuant to that activity and other means of effecting the ``least
practicable adverse impact'' on the affected species or stocks and
their habitat (see the discussion below in the Proposed Mitigation
section), as well as monitoring and reporting requirements. Section
101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR
part 216, subpart I provide the legal basis for issuing this proposed
rule containing five-year regulations, and for any subsequent Letters
of Authorization (LOAs). As directed by this legal authority, this
proposed rule contains mitigation, monitoring, and reporting
requirements.
Summary of Major Provisions Within the Proposed Rule
Following is a summary of the major provisions of this proposed
rule regarding UCSC/PISCO's rocky intertidal research activities. These
measures include:
Required implementation of mitigation to minimize impact
to pinnipeds and avoid disruption to dependent pups including several
measures to approach haulouts cautiously to minimize disturbance,
especially when pups are present.
Required monitoring of the research areas to detect the
presence of marine mammals before initiating surveys.
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. 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, regulations are
issued, and notice is provided to the public.
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 the species or stocks for
taking for certain subsistence uses (referred to, in shorthand, as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of the takings are set forth.
The definitions of all applicable MMPA statutory terms cited above
are included in the relevant sections below.
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 a proposed
rule (and subsequent LOAs)) 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 (IHAs) 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
preliminarily determined that the issuance of the proposed rule
qualifies to be categorically excluded from further NEPA review. We
will review all comments submitted in response to this proposed rule
prior to concluding our NEPA process or making a final decision on the
request.
Summary of Request
On August 12, 2019, NMFS received a request from UCSC/PISCO for a
proposed rule and LOA to take marine mammals incidental to rocky
intertidal monitoring surveys along the Oregon and California coasts.
After a series of revisions, the application was deemed adequate and
complete on October 8, 2019. UCSC/PISCO's request is for take of a
small number of California sea lion (Zalophus californianus), Harbor
seals (Phoca vitulina richardii), Northern elephant seals (Mirounga
angustirostris), and Steller sea lions (Eumetopias jubatus), by Level B
harassment only. Neither UCSC/PISCO nor NMFS expects serious injury or
mortality, or Level A harassment, to result from this activity.
NMFS previously issued seven IHAs to UCSC/PISCO for this work (77
FR 72327, December 5, 2012; 78 FR 79403, December 30, 2013; 79 FR
73048, December 9, 2014; 81 FR 7319, February 11, 2016; 82 FR 12568,
March 6, 2017; 83 FR 11696, March 16, 2018; 84 FR 17784, April 26,
2019). UCSC/PISCO complied with all the requirements (e.g., mitigation,
monitoring, and reporting) of the previous IHAs and information
regarding their monitoring results may be found in the Potential
Effects of the Specified Activity on Marine Mammals and their Habitat
and Estimated Take sections.
Description of Proposed Activity
Overview
UCSC/PISCO proposes to continue rocky intertidal monitoring work
that has been ongoing for over 20 years. UCSC/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. Research
is conducted throughout the year along the California and Oregon coasts
and will continue indefinitely. Researchers accessing and conducting
research activities on the sites may occasionally cause behavioral
disturbance (or Level B harassment) of four pinniped species. UCSC/
PISCO expects that the disturbance to pinnipeds from the research
activities will be minimal and will be limited to Level B harassment.
Dates and Duration
UCSC/PISCO's research is conducted throughout the year. Most sites
are sampled one to two times per year over a 1 to 2-day period (4-6
hours per site) during a negative low tide series (when
[[Page 2371]]
tides are lower than the average). 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 of the
calendar year. Over the course of this five-year authorization UCSC/
PISCO expects approximately 300 days of survey effort. UCSC/PISCO's
current IHA expires April 11, 2020, so these regulations are requested
to be effective April 12, 2020 through April 11, 2025.
Specific Geographic Region
Sampling sites occur along the California and Oregon coasts.
Community Structure Monitoring survey 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 Table 1
and the maps of UCSC/PISCO's application.
Detailed Description of Specific Activity
Community Structure Monitoring surveys involve 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 Monitoring sites, each of which will be visited one
to two times per year (see Table 1 of the application for specifics for
each site) under the proposed regulations and LOA and surveyed over a
1-day period during a low tide series.
Biodiversity Surveys are part of a long-term monitoring project and
are conducted every 3-5 years across 143 established sites. These
Biodiversity Surveys involve point contact identification along
permanent transects, mobile invertebrate quadrat counts, sea star band
counts, and tidal height topographic measurements. Many of the
Biodiversity Survey sites are also Community Structure sites.
Biodiversity survey sites will be sampled zero to five times during the
course of these regulations and LOA (see Tables 3-6 in the application
for details of expected survey frequency).
The intertidal zones where UCSC/PISCO conducts intertidal
monitoring are also areas where pinnipeds can be found hauled out
(temporarily leaving the water) on the shore at or adjacent to some
research sites. Pinnipeds have been recorded at 63 of the 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 or
during occasions when they replace survey marker bolts using a hand
drill. No motorized equipment is involved in conducting these surveys.
Proposed mitigation, monitoring, and reporting measures are
described in detail later in this document (please see Proposed
Mitigation and Proposed Monitoring and Reporting).
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history, of the potentially affected species.
Additional information regarding population trends and threats may be
found in NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS's
website (https://www.fisheries.noaa.gov/find-species).
Table 1 lists all species with expected potential for occurrence at
survey sites in California and Oregon and summarizes information
related to the population or stock, including regulatory status under
the MMPA and Endangered Species Act (ESA) and potential biological
removal (PBR), where known. For taxonomy, we follow Committee on
Taxonomy (2018). PBR is defined by the MMPA as the maximum number of
animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its
optimum sustainable population (as described in NMFS's SARs). While no
mortality is anticipated or authorized here, PBR and annual serious
injury and mortality from anthropogenic sources are included here as
gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS's stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS's U.S. 2018 Pacific Marine Mammal SARs (Carretta et al. 2019). All
values presented in Table 1 are the most recent available at the time
of publication and are available in the 2018 SARs (available online at:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).
Table 1--Marine Mammals Potentially Present in the Vicinity of the Study Areas
--------------------------------------------------------------------------------------------------------------------------------------------------------
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\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and sea lions):
California sea lion............. Zalophus californianus. U.S.................... -; N 257,606 (n/a; 233,515; 14,011 >320
2014).
Steller sea lion................ Eumetopias jubatus..... Eastern U.S............ -; N 41,638 (n/a; 41,638; 2,498 108
2015).
Family Phocidae (earless seals):
[[Page 2372]]
Harbor seal..................... Phoca vitulina California/Oregon/ -; N 30,968 (0.157; 27,348; 1,641 43
richardii. Washington. 2012 [CA])/.
UNK (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: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
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.
All species that could potentially occur in the proposed survey
areas are included in Table 1. As described below, all four species
temporally and spatially co-occur with the activity to the degree that
take is reasonably likely to occur, and we have proposed authorizing
it.
In addition, the southern sea otter may be found from San Francisco
south to the Channel Islands. However, they are managed by the U.S.
Fish and Wildlife Service and are not considered further in this
document.
California Sea Lions
California sea lions (Zalophus californianus) are distributed along
the west coast of North America from British Columbia to Baja
California and throughout the Gulf of California. Breeding occurs on
offshore islands along the west coast of Baja California and the Gulf
of California as well as on the California Channel Islands. There are
three recognized California sea lion stocks (U.S. stock, Western Baja
stock, and the Gulf of California stock) with the U.S. stock ranging
from the U.S./Mexico border into Canada. Although there is some
movement between stocks, U.S. rookeries are considered to be isolated
from rookeries off of Baja California (Barlow et al. 1995).
California sea lions were hunted for several thousand years by
indigenous peoples and early hunters. In the early 1900s, sea lions
were killed in an effort to reduce competition with commercial
fisheries. They were also hunted commercially from the 1920-1940s.
Following the passage of the MMPA in 1972, as well as limits on killing
and harassment in Mexico, the population has rapidly increased (Reeves
et al. 2002). Declines in pup production did occur during the 1983-84,
1992-93, 1997-98, and 2003 El Ni[ntilde]o events, but production
returned to pre- El Ni[ntilde]o levels within 2-5 years (Carretta et
al. 2016). In 2013, NOAA declared an Unusual Mortality Event (UME) due
to the elevated number of sea lion pup strandings in southern
California. The cause of this event is thought to be nutritional stress
related to declines in prey availability. This UME is on-going. They
have been observed in the project vicinity at 28 of the research sites
(see application Table 4).
Steller Sea Lion
Steller sea lions (Eumetopias jubatus) range along the North
Pacific Rim from northern Japan to California, with centers of
abundance and distribution in the Gulf of Alaska and Aleutian Islands.
Large numbers of individuals widely disperse when not breeding (late
May to early July) to access seasonally important prey resources (Muto
et al. 2019). In 1997 NMFS identified two distinct population segments
(DPSs) of Steller sea lions under the ESA: A Western DPS and an Eastern
DPS (62 FR 24345, May 5, 1997). The Eastern DPS is not ESA listed, the
Western DPS is. For MMPA purposes the Eastern DPS is called the Eastern
U.S. stock and the Western DPS is called the Western U.S. stock. The
Steller sea lions along the Oregon and California coasts are part of
the Eastern Stock (and DPS). Steller sea lions are rare in the research
areas. They have only been observed in the project vicinity at Cape
Arago in 2009 and have not been observed during this research project
since then.
Northern Elephant Seal
Northern elephant seals (Mirounga angustirostris) range widely
throughout the eastern Pacific for most of the year to forage. They
return to haulout locations along the west coast of the continental
United States including the Channel Islands, the central California
coast, and islands off Baja California, to breed and molt. Breeding
occurs from December through early spring, with males returning to
haul-out locations earlier than females to establish dominance
hierarchies. Molting occurs from late April to August, with juveniles
and adult females returning earlier than adult males (Reeves et al.
2002). Due to very little movement between colonies in Mexico and those
in California, the California population is considered to be a separate
stock (Carretta et al. 2019).
This species was hunted by indigenous peoples for several thousand
years and by commercial sealers in the 1800s. By the late 1800s, the
species was thought to be extinct, although several were seen on
Guadalupe Island in the 1880s and a few dozen to several hundred
survived off of Mexico (Stewart et al. 1994). The population began
increasing in the early 1900s and progressively colonized southern and
central California through the 1980s (Reeves et al. 2002). The species
abundance has grown at 3.8 percent annually since 1988 (Lowry et al.
2014).
They have been observed in the project vicinity at 13 of the
research sites (see application Table 5).
Pacific Harbor Seal
Pacific harbor seals (Phoca vitulina richardii) inhabit near-shore
coastal and estuarine areas from Baja California, Mexico, to the
Pribilof Islands in Alaska. They are divided into two subspecies: P. v.
stejnegeri in the western North Pacific, near Japan, and P. v.
richardii in the northeast Pacific Ocean. The latter subspecies,
includes two MMPA stocks in the project area: The Oregon and Washington
Coast stock in the outer coastal waters of Oregon and Washington
states, and the California stock.
In Oregon there are over 40 haulout sites (Brown et al. 2005) while
in California, over 500 harbor seal haulout sites are widely
distributed along the
[[Page 2373]]
mainland and offshore islands, and include rocky shores, beaches and
intertidal sandbars (Lowry et al. 2005). Harbor seals mate at sea, and
females give birth during the spring and summer, although, the pupping
season varies with latitude. Pups are nursed for an average of 24 days
and are ready to swim minutes after being born. Harbor seal pupping
takes place at many locations, and rookery size varies from a few pups
to many hundreds of pups. Pupping generally occurs between March and
June, and molting occurs between May and July.
A 1999 census of the Oregon/Washington harbor seal stock found
16,165 individuals, of which 5,735 were in Oregon (Carretta et al.
2016). The population was estimated to number 24,732 individuals in the
Oregon/Washington stock (Carretta et al. 2016). However, the most
recent abundance estimate for the Oregon/Washington stock is over 8
years old, therefore the abundance estimate for this stock is
considered unofficial. They have been observed in the project vicinity
at 49 of the research sites (see application Table 3).
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
This section includes a summary and discussion of the ways that
components of the specified activity may impact marine mammals and
their habitat. The Estimated Take section later in this document
includes a quantitative analysis of the number of individuals that are
expected to be taken by this activity. The Negligible Impact Analysis
and Determination section considers the content of this section, the
Estimated Take section, and the Proposed Mitigation section, to draw
conclusions regarding the likely impacts of these activities on the
reproductive success or survivorship of individuals and how those
impacts on individuals are likely to impact marine mammal species or
stocks.
The appearance of researchers may have the potential to cause Level
B behavioral harassment of any pinnipeds hauled out at sampling sites.
Although marine mammals are never deliberately approached by survey
personnel, approach may be unavoidable if pinnipeds are hauled out in
the immediate vicinity of the permanent study plots. Disturbance may
result in reactions ranging from an animal simply becoming alert to the
presence of researchers (e.g., turning the head, assuming a more
upright posture) to flushing from the haulout site into the water. NMFS
does not consider the lesser reactions to constitute behavioral
harassment, or Level B harassment takes, but rather assumes that
pinnipeds that flee some distance or change the speed or direction of
their movement in response to the presence of researchers are
behaviorally harassed, and thus subject to Level B taking (see below).
Animals that respond to the presence of researchers by becoming alert,
but do not move or change the nature of locomotion as described, are
not considered to have been subject to behavioral harassment.
Numerous studies have shown that human activity can flush harbor
seals off haulout sites (Allen et al. 1985; Suryan and Harvey 1999).
The Hawaiian monk seal (Neomonachus schauinslandi) has been shown to
avoid beaches that have been disturbed often by humans (Kenyon 1972).
Moreover, in one case, human disturbance appeared to cause Steller sea
lions to desert a breeding area at Northeast Point on St. Paul Island,
Alaska (Kenyon 1962).
There are three ways in which disturbance, as described previously,
could result in more than Level B harassment of marine mammals. All
three are most likely to be consequences of stampeding, a potentially
dangerous occurrence in which large numbers of animals succumb to mass
panic and rush away from a stimulus. The three situations are: (1)
Falling when entering the water at high-relief locations; (2) extended
separation of mothers and pups; and (3) crushing of elephant seal pups
by large males during a stampede. UCSC/PISCO researchers have only
recorded one instance of stampeding, which occurred in 2013.
Because hauled out animals may move towards the water when
disturbed, there is the risk of injury if animals stampede towards
shorelines with precipitous relief (e.g., cliffs). Shoreline habitats
near the survey areas tend to consist of steeply sloping rocks with
unimpeded and non-obstructed access to the water. Disturbed, hauled out
animals in these situations are likely to move toward the water slowly
without risk of unexpectedly falling off cliffs or encountering
barriers or hazards or that would otherwise prevent them from leaving
the area. Therefore, research activity poses no risk that disturbed
animals may fall and be injured or killed as a result of disturbance at
high-relief locations and thus there is no risk that these disturbances
will result in Level A harassment or mortality/serious injury.
Few pups are anticipated to be encountered during the proposed
monitoring surveys. A small number of harbor seal, northern elephant
seal and California sea lion pups, however, have been observed during
past years. Though 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
than the other two species. Harbor seals are very precocious with only
a short period of time in which separation of a mother from a pup could
occur. Pups are also 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. Finally, the caution
used by researchers in approaching sites generally precludes the
possibility of behaviors, such as stampeding, that could result in
extended separation of mothers and dependent pups, or trampling of
pups.
The only habitat modification associated with the proposed activity
is the placement of permanent bolts and temporary sampling equipment in
the intertidal zone. The installation of bolts and sampling equipment
is conducted under the appropriate permits (National Marine Sanctuary,
California State Parks). Once a particular study has ended, the
respective sampling equipment is removed; the bolts remain. No trash or
field gear is left at a site. Sampling activities are also not expected
to result in any long-term modifications of haulout use or abandonment
of haulouts since these sites are only visited one to two times per
year, which minimizes repeated disturbances. During periods of low tide
(e.g., when tides are 0.6 m (2 ft) or less and low enough for pinnipeds
to haulout), we would expect the pinnipeds to return to the haulout
site within 60 minutes of the disturbance (Allen et al. 1985). The
effects to pinnipeds appear at most to displace the animals temporarily
from their haulout sites, and we do not expect, and have not observed
during previous authorizations, that the pinnipeds would permanently
abandon a haulout site during the conduct of rocky intertidal surveys.
Additionally, impacts to prey species from survey activities are not
anticipated. Thus, the proposed activity is not expected to have any
habitat-related effects that could cause significant or long-term
consequences for individual marine mammals or their populations.
Estimated Take
This section provides an estimate of the number of incidental takes
proposed for authorization through this IHA, which will inform both
NMFS' consideration of ``small numbers'' and the negligible impact
determination.
[[Page 2374]]
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 proposed to be
authorized. As described previously, no mortality is anticipated or
proposed to be 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 from 2013-2018 at each site from previous UCSC/PISCO
survey activities. Marine mammal observations are done as part of
research site observations, which include notes on physical and
biological conditions at the site, completed on each study day. From
2013-2018 observations were categorized on a four point scale:
0 = observation by researchers from a distance, no
reaction by pinniped
1 = pinniped reacted to presence of researchers with
movement <1 meter
2 = pinniped reacted to presence of researchers with short
movement of 1-3 meters
3 = pinniped flushed to the water or moved >3 meters in
retreat
A marine mammal is counted as an ``encounter'' (at least level 0 on
the above scale) if it is seen on access ways to the site, at the site,
or immediately up-coast or down-coast of the site, regardless of
whether that animal was considered a ``take'' under the MMPA. Marine
mammals in the water immediately offshore are also recorded. Under the
above scale, ``take'' was only considered to be level 2 or 3
observations from the above scale. The maximum number of marine
mammals, by species, seen at any given time throughout the sampling day
(categories 0 through 4) is recorded at the conclusion of sampling. 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 would be
authorized were based on the following equation:
Take estimate per survey site = number of expected animals per site *
number of planned survey events per survey site
For take estimates, UCSC/PISCO summed the total number of marine
mammals, by species, ``encountered'' at each research site during the
period from 2013 to 2018 (i.e., all observations score 0 to 4 on the
above scale). We then summed the number of sampling events where marine
mammals were encountered at each site and calculated the average number
of encounters per event (see Tables 2-5). These are the ``number of
expected animals per site'' for the equation above. Note the number of
these historical encounters that qualified as Level B take was less
than 40 percent of all encounters (see application Section 6), so take
estimates are expected to be conservative and consider potential
temporal variation. The maximum number of planned survey events per
survey site is listed in Tables 2-5. For Steller sea lions the one
sighting from 2009 was used in this analysis. The take estimate by
species per survey site calculation results can also be found in Tables
2-5.
Table 2--Data and Calculations To Estimate Proposed Take of Harbor Seals
----------------------------------------------------------------------------------------------------------------
Expected maximum
Site Encounters/event # of survey Calculated take
events 2020-2024 2020-2024
----------------------------------------------------------------------------------------------------------------
Andrew Molera.......................................... 1 10 10
Boat House............................................. 5 10 50
Bob Creek.............................................. 1 5 5
Bodega................................................. 9 5 45
Cat Rock............................................... 2 1 2
Cayucos................................................ 6 10 60
Del Mar Landing........................................ 5 1 5
Eel Point.............................................. 1 2 2
Enderts................................................ 1 5 5
False Klamath Cove..................................... 1 5 5
Fitzgerald Marine Reserve.............................. 46 1 46
Fogarty Creek.......................................... 8 5 40
Franklin Point......................................... 6 5 30
Government Point....................................... 38 10 380
Hopkins................................................ 14 10 140
Horseshoe Cove......................................... 6 1 6
Kibesillah Hill........................................ 8 5 40
Launcher Beach......................................... 10 1 10
MacKerricher........................................... 2 1 2
Mal Coombs............................................. 5 1 5
Mill Creek............................................. 1 10 10
Occulto................................................ 3 10 30
Old Home Beach......................................... 10 1 10
Partington Cove........................................ 2 10 20
[[Page 2375]]
Pebble Beach........................................... 16 5 80
Piedras Blancas........................................ 3 10 30
Point Arena............................................ 2 1 2
Point Lobos............................................ 1 10 10
Point Pinos............................................ 7 5 35
Point Sierra Nevada.................................... 1 10 10
Sandhill Bluff......................................... 1 10 10
Scott Creek............................................ 1 10 10
Sea Ranch.............................................. 2 5 10
Sea Ridge.............................................. 10 1 10
Shell Beach............................................ 1 10 10
Shelter Cove........................................... 4 5 20
Soberanes.............................................. 2 10 20
Stillwater............................................. 9 10 90
Stornetta.............................................. 3 5 15
Terrace Point.......................................... 1 10 10
Treasure Island........................................ 6 1 6
Vista del Mar.......................................... 12 10 120
Waddell................................................ 1 10 10
--------------------------------------------------------
Total.............................................. N/A 264 1466
----------------------------------------------------------------------------------------------------------------
Table 3--Data and Calculations To Estimate Proposed Take of California Sea Lions
----------------------------------------------------------------------------------------------------------------
Expected maximum
Site Encounters/event # of survey Calculated take
events 2020-2024 2020-2024
----------------------------------------------------------------------------------------------------------------
Bodega................................................. 3 5 15
Cape Arago............................................. 21 5 105
Crook Point............................................ 3 1 3
Cuyler Harbor.......................................... 1 1 1
Del Mar Landing........................................ 1 1 1
Eel Point.............................................. 2 2 4
Enderts................................................ 3 5 15
False Klamath Cove..................................... 2 5 10
Franklin Point......................................... 2 5 10
Government Point....................................... 11 10 110
Kibesillah Hill........................................ 2 5 10
Old Stairs............................................. 2 1 2
Piedras Blancas........................................ 25 10 250
Point Lobos............................................ 1 10 10
Point Pinos............................................ 1 5 5
Point Sierra Nevada.................................... 1 10 10
Purisma................................................ 1 5 5
Shell Beach............................................ 1 10 10
Soberanes.............................................. 3 10 30
Stairs................................................. 1 10 10
Stornetta.............................................. 2 5 10
Terrace Point.......................................... 1 10 10
--------------------------------------------------------
Total.............................................. N/A 131 636
----------------------------------------------------------------------------------------------------------------
Table 4--Data and Calculations To Estimate Proposed Take of Elephant Seals
----------------------------------------------------------------------------------------------------------------
Expected maximum
Site Encounters/event # of survey Calculated take
events 2020-2024 2020-2024
----------------------------------------------------------------------------------------------------------------
Ano Nuevo.............................................. 5 1 5
Chimney Rock........................................... 3 4 12
Crook Point............................................ 2 1 2
Cuyler Harbor.......................................... 2 1 2
Government Point....................................... 3 10 30
Harmony Headlands...................................... 1 5 5
Mill Creek............................................. 1 10 10
[[Page 2376]]
Piedras Blancas........................................ 8 10 80
Point Sierra Nevada.................................... 1 10 10
--------------------------------------------------------
Total.............................................. N/A 50 156
----------------------------------------------------------------------------------------------------------------
Table 5--Data and Calculations To Estimate Proposed Take of Steller Sea Lions
----------------------------------------------------------------------------------------------------------------
Expected maximum
Site Encounters/event # of survey Calculated take
events 2020-2024 2020-2024
----------------------------------------------------------------------------------------------------------------
Cape Arago............................................. 5 5 25
--------------------------------------------------------
Total.............................................. N/A 5 25
----------------------------------------------------------------------------------------------------------------
Individual species' totals for each survey site were summed to
arrive at a total estimated take number for the entire project. This is
the take that is proposed to be authorized here (Table 6).
Table 6--Proposed Authorized Level B Take and Percent of MMPA Stock
Proposed To Be Taken
------------------------------------------------------------------------
Proposed authorized take
-------------------------------------
Species Percent of
Level B population
------------------------------------------------------------------------
Harbor Seal....................... 1466 2.6
California sea lion............... 636 0.25
Northern elephant seal............ 156 0.09
Steller Sea Lion.................. 25 0.06
------------------------------------------------------------------------
Proposed Mitigation
In order to issue regulations and an LOA under Section 101(a)(5)(A)
of the MMPA, NMFS must set forth the permissible methods of taking
pursuant to the activity, and other means of effecting the least
practicable impact on the species or stock and its habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the 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 the 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 and impact on
operations.
UCSC/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 for at
least five minutes, 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 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 (crouched) in the
visual presence of pinnipeds.
Researchers 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
UCSC/PISCO has never observed an offshore predator while researchers
were present at any of the survey sites.
[[Page 2377]]
Intentional approach 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.
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 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 proposed measures, NMFS
has preliminarily determined that the proposed mitigation measures
provide the means effecting the least practicable impact on the
affected species or stocks and their habitat, paying particular
attention to rookeries, mating grounds, and areas of similar
significance.
Proposed Monitoring and Reporting
In order to issue regulations and an LOA for an activity, Section
101(a)(5)(A) of the MMPA states that NMFS must set forth requirements
pertaining to the monitoring and reporting of such taking. The MMPA
implementing regulations at 50 CFR 216.104(a)(13) indicate that
requests for authorizations must include the suggested means of
accomplishing the necessary monitoring and reporting that will result
in increased knowledge of the species and of the level of taking or
impacts on populations of marine mammals that are expected to be
present in the proposed action area. Effective reporting is critical
both to compliance as well as ensuring that the most value is obtained
from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density).
Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) Action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas).
Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors.
How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks.
Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat).
Mitigation and monitoring effectiveness.
UCSC/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.
Proposed monitoring requirements in relation to UCSC/PISCO's rocky
intertidal monitoring will include observations made by the applicant.
Information recorded will include species counts (with numbers of pups/
juveniles) of animals present before approaching, numbers of observed
disturbances (based on the scale below), 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 7. Note that only observations of disturbance
Levels 2 and 3 should be recorded as takes.
Table 7--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 away from the
source of disturbance,
ranging from short
withdrawals at least twice
the animal's body length
to longer retreats over
the beach, or if already
moving a change of
direction of greater than
90 degrees.
3...................... Flush............. All retreats (flushes) to
the water.
------------------------------------------------------------------------
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 and raw data will be
provided.
If at any time the specified activity clearly causes the take of a
marine mammal in a manner prohibited by these regulations or LOA, such
as an injury (Level A harassment), serious injury, or mortality, UCSC/
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;
[[Page 2378]]
(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) (if equipment is
available).
Activities shall not resume until NMFS is able to review the
circumstances of the prohibited take. NMFS will work with UCSC/PISCO to
determine what measures are necessary to minimize the likelihood of
further prohibited take and ensure MMPA compliance. UCSC/PISCO may not
resume the activities until notified by NMFS via letter, email, or
telephone.
In the event that UCSC/PISCO discovers an injured or dead marine
mammal and determines that the cause of the injury or death is unknown
and the death is relatively recent (e.g., in less than a moderate state
of decomposition), UCSC/PISCO shall immediately report the incident to
the Office of Protected Resources, NMFS, and the West Coast Regional
Stranding Coordinator, NMFS. The report must include the same
information identified in the paragraph above. Activities may continue
while NMFS reviews the circumstances of the incident. NMFS will work
with UCSC/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 regulations and LOA (e.g.,
previously wounded animal, carcass with moderate to advanced
decomposition, or scavenger damage), UCSC/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.
UCSC/PISCO shall provide photographs, video footage (if available) or
other documentation of the stranded animal sighting to NMFS and the
Marine Mammal Stranding Network. Activities may continue while NMFS
reviews the circumstances of the incident.
A draft annual report shall be submitted to NMFS Office of
Protected Resources within 90 days after the conclusion of each annual
field season. The final annual report after year five may be included
as part of the final report (see below). The report will include a
summary of the information gathered pursuant to the monitoring
requirements set forth above and in the LOA. A final annual report
shall be submitted to the Director of the NMFS Office of Protected
Resources within 30 days after receiving comments from NMFS on the
draft annual report. If no comments are received from NMFS, the draft
annual report will be considered the final report.
A draft final report shall be submitted to NMFS Office of Protected
Resources within 60 days after the conclusion of the fifth year. A
final report shall 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
UCSC/PISCO complied with the mitigation and monitoring that were
required under the prior IHAs issued from 2013 to 2019. In compliance
with those IHAs, they submitted reports detailing the activities and
marine mammal monitoring they conducted. The IHAs required UCSC/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. These monitoring results
were discussed above in the Estimated Take section.
Based on the results from the monitoring reports, we conclude that
these results support our original findings that the mitigation
measures set forth in the recent 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 (Table 3) 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).
To avoid repetition, the discussion of our analyses applies to all
the species listed in Table 7, given that the anticipated effects of
this activity on these different marine mammal stocks are expected to
be similar. There is little information about the nature or severity of
the impacts, or the size, status, or structure of any of these species
or stocks that would lead to a different analysis for this activity.
Research activities have the potential to disturb or displace marine
mammals. Specifically, the project activities may result in take, in
the form of Level B harassment from researchers movements and equipment
handling. Potential takes could occur if individuals of these species
are present nearby when these activities are underway.
No injuries or mortalities are anticipated to occur as a result of
UCSC/PISCO's rocky intertidal monitoring surveys and none are proposed
to be 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 proposed surveys. As shown in
[[Page 2379]]
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, UCSC/PISCO 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. The potential for harassment is further
minimized through the approach method and the implementation of the
planned mitigation measures (see Proposed Mitigation section).
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 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 proposed
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 and temporary research equipment 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 proposed
mitigation and monitoring measures, NMFS finds that the total marine
mammal take from UCSC/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 preliminary determination that the impacts resulting from
this activity are not expected to adversely affect the species or stock
through effects on annual rates of recruitment or survival:
No serious injury or mortality, or Level A harassment, 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 are anticipated; and
Mitigation measures are anticipated to be effective in
minimizing the number and severity of takes by Level B harassment,
which are expected to be of short duration.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the proposed monitoring and
mitigation measures, NMFS preliminarily finds that the total marine
mammal take from the proposed activity will have a negligible impact on
all affected marine mammal species or stocks.
Small Numbers
As noted above, only small numbers of incidental take may be
authorized under Sections 101(a)(5)(A) 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.
The amount of take NMFS proposes to authorize is 0.06 to 2.6
percent of any stock's best population estimate (Table 7). These are
all likely conservative estimates because they assume all encounters
result in take, which has not historically been the case. The Oregon/
Washington stock of harbor seals has no official NMFS abundance
estimate as the most recent estimate is greater than eight years old.
Nevertheless, the most recent estimate was 27,348 animals and it is
highly unlikely this number has drastically declined.
Based on the analysis contained herein of the proposed activity
(including the proposed mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS preliminarily finds that small
numbers of marine mammals will be taken relative to the population size
of the affected species or stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
preliminarily 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.
No incidental take of ESA-listed species is proposed for
authorization or expected to result from this activity. Therefore, NMFS
has determined that formal consultation under section 7 of the ESA is
not required for this action.
Request for Information
NMFS requests interested persons to submit comments, information,
and suggestions concerning the UCSC/PISCO request and the proposed
regulations (see ADDRESSES). All comments will be reviewed and
evaluated as we prepare a final rule and make final determinations on
whether to issue the requested authorization. This notice and
referenced documents provide all environmental information relating to
our proposed action for public review.
[[Page 2380]]
Classification
Pursuant to the procedures established to implement Executive Order
12866, the Office of Management and Budget has determined that this
proposed rule is not significant.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA),
the Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
UCSC/PISCO is the sole entity that would be subject to the requirements
in these proposed regulations, and UCSC/PISCO is not a small
governmental jurisdiction, small organization, or small business, as
defined by the RFA. Because of this certification, a regulatory
flexibility analysis is not required and none has been prepared.
This proposed rule contains a collection-of-information requirement
subject to the provisions of the Paperwork Reduction Act (PRA).
Notwithstanding any other provision of law, no person is required to
respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the PRA unless that collection of information displays a currently
valid OMB control number. These requirements have been approved by OMB
under control number 0648-0151 and include applications for
regulations, subsequent LOAs, and reports.
List of Subjects in 50 CFR Part 219
Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and recordkeeping requirements, Seafood,
Transportation.
Dated: January 7, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, 50 CFR part 217 is proposed
to be amended as follows:
PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS
INCIDENTAL TO SPECIFIED ACTIVITES
0
1. The authority citation for part 217 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq.
0
2. Add subpart K to part 217 to read as follows:
Subpart K--Taking Marine Mammals Incidental to Rocky Intertidal
Monitoring Surveys Along the Oregon and California Coasts
Sec.
217.100 Specified activity and specified geographical region.
217.101 Effective dates.
217.102 Permissible methods of taking.
217.103 Prohibitions.
217.104 Mitigation requirements.
217.105 Requirements for monitoring and reporting.
217.106 Letters of Authorization.
217.107 Renewals and modifications of Letters of Authorization.
217.108--217.109 [Reserved]
Sec. 217.100 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the University of
California Santa Cruz's Partnership for Interdisciplinary Studies of
Coastal Oceans (UCSC/PISCO) and those persons it authorizes or funds to
conduct activities on its behalf for the taking of marine mammals that
occurs in the areas outlined in paragraph (b) of this section and that
occur incidental to rocky intertidal monitoring research surveys.
(b) The taking of marine mammals by UCSC/PISCO may be authorized in
a Letter of Authorization (LOA) only if it occurs on the coasts of
Oregon or California.
Sec. 217.101 Effective dates.
Regulations in this subpart are effective from April 12, 2020
through April 11, 2025.
Sec. 217.102 Permissible methods of taking.
Under LOAs issued pursuant to Sec. 216.106 of this chapter and
Sec. 217.106, the Holder of the LOA (hereinafter ``UCSC/PISCO'') may
incidentally, but not intentionally, take marine mammals within the
area described in Sec. 217.100(b) by Level B harassment associated
with rocky intertidal monitoring activities, provided the activity is
in compliance with all terms, conditions, and requirements of the
regulations in this subpart and the appropriate LOA.
Sec. 217.103 Prohibitions.
Notwithstanding takings contemplated in Sec. 217.100 and
authorized by a LOA issued under Sec. 216.106 of this chapter and
Sec. 217.106, no person in connection with the activities described in
Sec. 217.100 may:
(a) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a LOA issued under Sec. 216.106 of
this chapter and Sec. 217.106;
(b) Take any marine mammal not specified in such LOA;
(c) Take any marine mammal specified in such LOA in any manner
other than as specified in Sec. 217.102;
(d) Take a marine mammal specified in such LOA if NMFS determines
such taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
(e) Take a marine mammal specified in such LOA if NMFS determines
such taking results in an unmitigable adverse impact on the species or
stock of such marine mammal for taking for subsistence uses.
Sec. 217.104 Mitigation requirements.
When conducting the activities identified in Sec. 217.100(a), the
mitigation measures contained in any LOA issued under Sec. 216.106 of
this chapter and Sec. 217.106 must be implemented. These mitigation
measures shall include but are not limited to:
(a) General conditions:
(1) Researchers will observe a site from a distance for at least
five minutes, 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 other species of 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).
(2) 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 approach 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).
(3) Researchers will avoid making loud noises (i.e., using hushed
voices) and keep bodies low to the ground in the visual presence of
pinnipeds.
(4) Researchers 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.
(5) Researchers will promptly vacate sites at the conclusion of
sampling.
(b) Pup protection measure:
(1) Intentional approach 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
[[Page 2381]]
disturbance to mothers and dependent pups.
(2) [Reserved]
Sec. 217.105 Requirements for monitoring and reporting.
(a) Visual monitoring program. (1) Standard 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.
(2) UCSC/PISCO will note observations of:
(i) Unusual behaviors, numbers, or distributions of pinnipeds, such
that any potential follow-up research can be conducted by the
appropriate personnel;
(ii) Tag-bearing carcasses of pinnipeds, allowing transmittal of
the information to appropriate agencies and personnel; and
(iii) Rare or unusual species of marine mammals for agency follow-
up.
(3) For consistency, any reactions by pinnipeds to researchers will
be recorded according to a three-point scale shown in Table 1. Only
observations of disturbance Levels 2 and 3 should be recorded as takes.
Table 1 to Paragraph (a)(3)--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 away from the
source of disturbance,
ranging from short
withdrawals at least twice
the animal's body length
to longer retreats over
the beach, or if already
moving a change of
direction of greater than
90 degrees.
3...................... Flush............. All retreats (flushes) to
the water.
------------------------------------------------------------------------
(4) Information regarding physical and biological conditions
pertaining to a site, as well as the date and time that research was
conducted are also noted.
(b) Prohibited Take. (1) If at any time the specified activity
clearly causes the take of a marine mammal in a manner prohibited by
these regulations or LOA, such as an injury (Level A harassment),
serious injury, or mortality, UCSC/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:
(i) Time and date of the incident;
(ii) Description of the incident;
(iii) Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, and visibility);
(iv) Description of all marine mammal observations in the 24 hours
preceding the incident;
(v) Species identification or description of the animal(s)
involved;
(vi) Fate of the animal(s); and
(vii) Photographs or video footage of the animal(s) (if equipment
is available).
(2) Activities shall not resume until NMFS is able to review the
circumstances of the prohibited take. NMFS will work with UCSC/PISCO to
determine what measures are necessary to minimize the likelihood of
further prohibited take and ensure MMPA compliance. UCSC/PISCO may not
resume the activities until notified by NMFS via letter, email, or
telephone.
(c) Notification of dead or injured marine mammals. (1) In the
event that UCSC/PISCO discovers an injured or dead marine mammal and
determines that the cause of the injury or death is unknown and the
death is relatively recent (e.g., in less than a moderate state of
decomposition), UCSC/PISCO shall immediately report the incident to the
Office of Protected Resources, NMFS, and the West Coast Regional
Stranding Coordinator, NMFS. The report must include the information
identified in paragraph (b)(1) of this section. Activities may continue
while NMFS reviews the circumstances of the incident. NMFS will work
with UCSC/PISCO to determine whether additional mitigation measures or
modifications to the activities are appropriate.
(2) 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
regulations and LOA (e.g., previously wounded animal, carcass with
moderate to advanced decomposition, or scavenger damage), UCSC/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. UCSC/PISCO shall provide photographs, video
footage (if available) or other documentation of the stranded animal
sighting to NMFS and the Marine Mammal Stranding Network. Activities
may continue while NMFS reviews the circumstances of the incident.
(d) Annual report. (1) A draft annual report shall be submitted to
NMFS Office of Protected Resources within 90 days after the conclusion
of each annual field season. The final annual report after year five
may be included as part of the final report (see below). The report
will include a summary of the information gathered pursuant to the
monitoring requirements set forth above and in the LOA.
(2) A final annual report shall be submitted to the Director of the
NMFS Office of Protected Resources within 30 days after receiving
comments from NMFS on the draft annual report. If no comments are
received from NMFS, the draft annual report will be considered the
final report.
(e) Final report. (1) A draft final report shall be submitted to
NMFS Office of Protected Resources within 60 days after the conclusion
of the fifth year. A final report shall 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.
Sec. 217.106 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, UCSC/PISCO must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these
regulations, UCSC/PISCO may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an
[[Page 2382]]
LOA, UCSC/PISCO must apply for and obtain a modification of the LOA as
described in Sec. 217.107.
(e) The LOA shall set forth:
(1) Permissible methods and numbers of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the
level of taking will be consistent with the findings made for the total
taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA shall be published in
the Federal Register within thirty days of a determination.
Sec. 217.107 Renewals and modifications of Letters of Authorization.
(a) An LOA issued under Sec. 216.106 of this chapter and Sec.
217.106 for the activity identified in Sec. 217.100(a) shall be
renewed or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations (excluding changes
made pursuant to the adaptive management provision in paragraph (c)(1)
of this section), and
(2) NMFS' Office of Protected Resources determines that the
mitigation, monitoring, and reporting measures required by the previous
LOA under these regulations were implemented.
(b) For an LOA modification or renewal requests by the applicant
that include changes to the activity or the mitigation, monitoring, or
reporting (excluding changes made pursuant to the adaptive management
provision in paragraph (c)(1) of this section) that do not change the
findings made for the regulations or result in no more than a minor
change in the total estimated number of takes (or distribution by
species or years), NMFS' Office of Protected Resources may publish a
notice of proposed LOA in the Federal Register, including the
associated analysis of the change, and solicit public comment before
issuing the LOA.
(c) An LOA issued under Sec. 216.106 of this chapter and Sec.
217.106 for the activity identified in Sec. 217.100(a) may be modified
by NMFS' Office of Protected Resources under the following
circumstances:
(1) Adaptive Management--NMFS' Office of Protected Resources may
modify (including augment) the existing mitigation, monitoring, or
reporting measures (after consulting with UCSC/PISCO regarding the
practicability of the modifications) if doing so creates a reasonable
likelihood of more effectively accomplishing the goals of the
mitigation and monitoring set forth in the preamble for these
regulations.
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from UCSC/PISCO's monitoring from the previous year(s).
(B) Results from other marine mammal and/or sound research or
studies.
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by these regulations or
subsequent LOAs.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS'
Office of Protected Resources will publish a notice of proposed LOA in
the Federal Register and solicit public comment.
(2) Emergencies--If NMFS' Office of Protected Resources determines
that an emergency exists that poses a significant risk to the well-
being of the species or stocks of marine mammals specified in LOAs
issued pursuant to Sec. 216.106 of this chapter and Sec. 217.106, an
LOA may be modified without prior notice or opportunity for public
comment. Notice would be published in the Federal Register within
thirty days of the action.
Sec. Sec. 217.108-217.109 [Reserved]
[FR Doc. 2020-00394 Filed 1-14-20; 8:45 am]
BILLING CODE 3510-22-P
