Take of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Rocky Intertidal Monitoring Surveys Along the Oregon and California Coasts, 18459-18470 [2020-06358]
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Federal Register / Vol. 85, No. 64 / Thursday, April 2, 2020 / Rules and Regulations
§ 92.31
[Amended]
FOR FURTHER INFORMATION CONTACT:
2. Amend § 92.31 introductory text by
removing ‘‘2019’’.
■
George Wallace,
Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 2020–07034 Filed 4–1–20; 8:45 am]
BILLING CODE 4333–15–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 217
[Docket No. 200323–0085]
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
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule, notification of
issuance.
AGENCY:
NMFS Office of Protected
Resources, upon request from the
University of California Santa Cruz’s
Partnership for Interdisciplinary Studies
of Coastal Oceans (UCSC/PISCO),
hereby issues regulations and a Letter of
Authorization to govern the
unintentional taking of marine
mammals incidental to rocky intertidal
monitoring surveys along the Oregon
and California coasts over the course of
five years. These regulations, which
allow for the issuance of Letters of
Authorization (LOA) for the incidental
take of marine mammals during the
described activities and specified
timeframes, prescribe the permissible
methods of taking and other means of
effecting the least practicable adverse
impact on marine mammal species or
stocks and their habitat, as well as
requirements pertaining to the
monitoring and reporting of such taking.
DATES: Effective from April 12, 2020
through April 11, 2021.
ADDRESSES: 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 below.
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SUMMARY:
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Dwayne Meadows, Ph.D., Office of
Protected Resources, NMFS, (301) 427–
8401.
SUPPLEMENTARY INFORMATION:
Purpose and Need for Regulatory
Action
NMFS 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.
These regulations establish a framework
under the authority of the MMPA (16
U.S.C. 1361 et seq.) to allow for the
issuance of a LOA for the take of marine
mammals incidental to the UCSC/
PISCO’s rocky intertidal research
activities in Oregon and California.
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 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 rule containing five-year
regulations, and for any subsequent
LOAs. As directed by this legal
authority, this proposed rule contains
mitigation, monitoring, and reporting
requirements.
Summary of Major Provisions Within
the Regulations
Following is a summary of the major
provisions of these regulations 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
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18459
cautiously to minimize disturbance,
especially when pups are present; and
• 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 ensure that the
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 lions
(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.
On January 15, 2020 NMFS issued a
notice of proposed rulemaking in the
Federal Register (85 FR 2369) soliciting
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public comments for 30 days. All public
comments were considered in
developing this final rule.
NMFS previously issued seven
incidental harassment authorizations
(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 Activities on Marine
Mammals and Their Habitat and
Estimated Take sections of the proposed
rule (85 FR 2369, January 15, 2020).
Comments and Responses
We received no public comments
pertaining to the proposed rule nor did
we receive any recommendations from
the Marine Mammal Commission.
Changes From Proposed to Final Rule
There are minor changes from the
proposed rule to the final rule. While
more detail can be found later in this
document, we summarize the changes
here.
In the ‘‘Levels of Pinniped Behavioral
Disturbance’’ definition table (7) in the
Monitoring and Reporting section and
the parallel Table 1 within the
regulations, we corrected a
typographical error in the tables. Also in
the Monitoring and Reporting section
we neglected to include an existing
requirement of UCSC/PISCO’s current
IHA, that project field biologists will
function as marine mammal observers
(MMO) which will remain as part of
these regulations.
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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.
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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
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.
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
Description of Proposed Activity
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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.
A detailed description of UCSC/
PISCO’s planned activities was
provided in our notice of proposed
rulemaking (85 FR 2369; January 15,
2020) and is not repeated here. No
changes have been made to the specified
activities described therein.
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
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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).
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TABLE 1—MARINE MAMMALS POTENTIALLY PRESENT IN THE VICINITY OF THE STUDY AREAS
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 ..........
U.S. .......................................
-; N
Steller sea lion .................
Eumetopias jubatus ...............
Eastern U.S. ..........................
-; N
Family Phocidae (earless
seals):
Harbor seal ......................
Phoca vitulina richardii ..........
California/Oregon/Washington.
-; N
Northern elephant seal ...........
Mirounga angustirostris .........
California ...............................
-; N
257,606 (n/a; 233,515;
2014).
41,638 (n/a; 41,638;
2015).
14,011
>320
2,498
108
30,968 (0.157; 27,348;
2012 [CA])/.
UNK (n/a; n/a [OR/
WA] 4.
179,000 (n/a; 81,368;
2010).
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. 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. Detailed
descriptions of these species were
provided in our notice of proposed
rulemaking (85 FR 2369; January 15,
2020) and are not repeated here. No new
information is available.
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Potential Effects of Specified Activities
on Marine Mammals and Their Habitat
We provided discussion of the
potential effects of the specified activity
on marine mammals and their habitat in
our Federal Register notice of proposed
rulemaking (85 FR 2369; January 15,
2020) and it is not repeated here. The
proposed rule included 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 final
rule 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 the Negligible Impact
Analysis and Determination section and
the material it references, the Estimated
Take section, and the 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.
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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.
Harassment is the only type of take
expected to result from these activities.
Except with respect to certain activities
not pertinent here, section 3(18) of the
MMPA defines ‘‘harassment’’ as any act
of pursuit, torment, or annoyance,
which (i) has the potential to injure a
marine mammal or marine mammal
stock in the wild (Level A harassment);
or (ii) has the potential to disturb a
marine mammal or marine mammal
stock in the wild by causing disruption
of behavioral patterns, including, but
not limited to, migration, breathing,
nursing, breeding, feeding, or sheltering
(Level B harassment).
Authorized takes would be by Level B
harassment only, in the form of
disruption of behavioral patterns for
individual marine mammals resulting
from exposure to researchers. Based on
the nature of the activity, Level A
harassment is neither anticipated nor
authorized. As described previously, no
mortality or serious injury is anticipated
or authorized for this activity. Below we
describe how the potential take is
estimated.
Marine Mammal Occurrence
In this section we provide information
about the presence, density, or group
dynamics of marine mammals that will
inform the take calculations. Take
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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; and
• 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, a ‘‘take’’ was
only considered to occur during level 2
or 3 observations under 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.
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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
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Site
Encounters/event
Expected
maximum
# of survey events
2020–2024
Calculated take
2020–2024
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 .........................................................................................................
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 ......................................................................................................................
1
5
1
9
2
6
5
1
1
1
46
8
6
38
14
6
8
10
2
5
1
3
10
2
16
3
2
1
7
1
1
1
2
10
1
4
2
9
3
1
6
12
1
10
10
5
5
1
10
1
2
5
5
1
5
5
10
10
1
5
1
1
1
10
10
1
10
5
10
1
10
5
10
10
10
5
1
10
5
10
10
5
10
1
10
10
10
50
5
45
2
60
5
2
5
5
46
40
30
380
140
6
40
10
2
5
10
30
10
20
80
30
2
10
35
10
10
10
10
10
10
20
20
90
15
10
6
120
10
Total ....................................................................................................................
N/A
264
1466
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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
Site
Encounters/event
Expected
maximum
# of survey events
2020–2024
Calculated take
2020–2024
Ano Nuevo .................................................................................................................
Chimney Rock ...........................................................................................................
Crook Point ................................................................................................................
Cuyler Harbor ............................................................................................................
Government Point ......................................................................................................
Harmony Headlands ..................................................................................................
Mill Creek ...................................................................................................................
Piedras Blancas .........................................................................................................
Point Sierra Nevada ..................................................................................................
5
3
2
2
3
1
1
8
1
1
4
1
1
10
5
10
10
10
5
12
2
2
30
5
10
80
10
Total ....................................................................................................................
N/A
50
156
TABLE 5—DATA AND CALCULATIONS TO ESTIMATE PROPOSED TAKE OF STELLER SEA LIONS
Site
Encounters/event
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
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Expected
maximum
# of survey events
2020–2024
entire project. This is the take that is
authorized here (Table 6).
TABLE 6—AUTHORIZED LEVEL B TAKE AND PERCENT OF MMPA STOCK TO BE TAKEN
Proposed authorized take
Species
Level B
Harbor Seal ..................................................................................................................................................
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% of population
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TABLE 6—AUTHORIZED LEVEL B TAKE AND PERCENT OF MMPA STOCK TO BE TAKEN—Continued
Proposed authorized take
Species
Level B
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California sea lion ........................................................................................................................................
Northern elephant seal ................................................................................................................................
Steller Sea Lion ...........................................................................................................................................
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), and 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
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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.
• 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
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636
156
25
0.25
0.09
0.06
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 determined that these mitigation
measures provide the means effecting
the least practicable impact on the
affected species or stocks and their
habitat, paying particular attention to
rookeries, mating grounds, and areas of
similar significance.
Monitoring and Reporting
In order to issue 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 to ensure 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);
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• Individual marine mammal
responses (behavioral or physiological)
to acoustic stressors (acute, chronic, or
cumulative), other stressors, or
cumulative impacts from multiple
stressors;
• How anticipated responses to
stressors impact either: (1) Long-term
fitness and survival of individual
marine mammals; or (2) populations,
species, or stocks;
• Effects on marine mammal habitat
(e.g., marine mammal prey species,
acoustic habitat, or other important
physical components of marine
mammal habitat); and
• Mitigation and monitoring
effectiveness.
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.
Project field biologists will function as
marine mammal observers (MMO).
Minimum qualifications for MMOs
include an undergraduate degree in
biology.
18465
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.
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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 in response to the source of disturbance, ranging from short withdrawals at
least twice the animal’s body length to longer retreats over the beach, or if already
moving a change of direction of greater than 90 degrees.
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;
(5) Species identification or
description of the animal(s) involved;
(6) Fate of the animal(s); and
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(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
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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
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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.
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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-haul out
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
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
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of any responses (e.g., intensity,
duration), the context of any responses
(e.g., critical reproductive time or
location, migration), the 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 6, 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 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 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
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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
Mitigation section).
Typically, even those reactions
constituting Level B harassment would
result in at most, 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 the 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
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implementation of the 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 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
monitoring and mitigation measures,
NMFS finds that the total marine
mammal take from the proposed activity
will have a negligible impact on all
affected marine mammal species or
stocks.
Small Numbers
As noted above, only small numbers
of incidental take may be authorized
under section 101(a)(5)(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 authorizes
is 0.06 to 2.6 percent of any stock’s best
population estimate (Table 6). 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
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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 mitigation and
monitoring measures) and the
anticipated take of marine mammals,
NMFS finds that small numbers of
marine mammals will be taken relative
to the population size of the affected
species or stocks.
Unmitigable Adverse Impact Analysis
and Determination
There are no relevant subsistence uses
of the affected marine mammal stocks or
species implicated by this action.
Therefore, NMFS has determined that
the total taking of affected species or
stocks would not have an unmitigable
adverse impact on the availability of
such species or stocks for taking for
subsistence purposes.
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 promulgation
of regulations and subsequent issuance
of LOAs) with respect to potential
impacts on the human environment.
This action is consistent with categories
of activities identified in Categorical
Exclusion B4 (IHAs with no anticipated
serious injury or mortality) of the
Companion Manual for NOAA
Administrative Order 216–6A, which do
not individually or cumulatively have
the potential for significant impacts on
the quality of the human environment
and for which we have not identified
any extraordinary circumstances that
would preclude this categorical
exclusion. Accordingly, NMFS has
determined that the issuance of the final
rule qualifies to be categorically
excluded from further NEPA review.
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 authorized or expected to
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18467
result from this activity. Therefore,
NMFS has determined that formal
consultation under section 7 of the ESA
is not required for this action.
Classification
Pursuant to the procedures
established to implement Executive
Order 12866, the Office of Management
and Budget has determined that this
final 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
final rule 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 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 final rule contains a collectionof-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 217
Exports, Fish, Imports, Indians,
Labeling, Marine mammals, Penalties,
Reporting and recordkeeping
requirements, Seafood, Transportation.
Dated: March 23, 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 amended as follows:
PART 217—REGULATIONS
GOVERNING THE TAKE OF MARINE
MAMMALS INCIDENTAL TO
SPECIFIED ACTIVITIES
1. The authority citation for part 217
continues to read as follows:
■
Authority: 16 U.S.C. 1361 et seq., unless
otherwise noted.
■
2. Add subpart K to read as follows:
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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]
Subpart K—Taking Marine Mammals
Incidental to Rocky Intertidal
Monitoring Surveys Along the Oregon
and California Coasts
§ 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
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;
(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
must 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 must avoid pinnipeds
along access ways to sites by locating
and taking a different access way.
Researchers must 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 must avoid making
loud noises (i.e., using hushed voices)
and keep bodies low to the ground in
the visual presence of pinnipeds.
(4) Researchers must 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 must promptly vacate
sites at the conclusion of sampling.
(b) Pup protection measure.
Intentional approach must 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.
§ 217.105 Requirements for monitoring
and reporting.
(a) Visual monitoring program. (1)
Standard information recorded must
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 must 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 to this paragraph
(a)(3). Only observations of disturbance
Levels 2 and 3 should be recorded as
takes.
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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.
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TABLE 1 TO PARAGRAPH (a)(3)—LEVELS OF PINNIPED BEHAVIORAL DISTURBANCE—Continued
Level
Type of response
Definition
2 .........................
Movement ......................................
3 .........................
Flush ..............................................
Movements in response to the source of disturbance, ranging from short withdrawals at
least twice the animal’s body length to longer retreats over the beach, or if already
moving a change of direction of greater than 90 degrees.
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 this subpart 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
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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 this subpart 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 paragraph (e) of
this section). The report must include a
summary of the information gathered
pursuant to the monitoring
requirements set forth in paragraph (a)
of this section 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. 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 this subpart,
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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 this subpart.
(c) If an LOA expires prior to the
expiration date of this subpart, 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
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 this subpart.
(g) Notice of issuance or denial of an
LOA shall be published in the Federal
Register within 30 days of a
determination.
§ 217.107 Renewals and modifications of
Letters of Authorization.
(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 this
subpart (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 this subpart were implemented.
(b) For an LOA modification or
renewal requests by the applicant that
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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 this
subpart 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
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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 this subpart.
(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 this subpart or
subsequent LOAs.
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(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. 2020–06358 Filed 4–1–20; 8:45 am]
BILLING CODE 3510–22–P
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[Federal Register Volume 85, Number 64 (Thursday, April 2, 2020)]
[Rules and Regulations]
[Pages 18459-18470]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06358]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 200323-0085]
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: Final rule, notification of issuance.
-----------------------------------------------------------------------
SUMMARY: NMFS Office of Protected Resources, upon request from the
University of California Santa Cruz's Partnership for Interdisciplinary
Studies of Coastal Oceans (UCSC/PISCO), hereby issues regulations and a
Letter of Authorization to govern the unintentional taking of marine
mammals incidental to rocky intertidal monitoring surveys along the
Oregon and California coasts over the course of five years. These
regulations, which allow for the issuance of Letters of Authorization
(LOA) for the incidental take of marine mammals during the described
activities and specified timeframes, prescribe the permissible methods
of taking and other means of effecting the least practicable adverse
impact on marine mammal species or stocks and their habitat, as well as
requirements pertaining to the monitoring and reporting of such taking.
DATES: Effective from April 12, 2020 through April 11, 2021.
ADDRESSES: 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 below.
FOR FURTHER INFORMATION CONTACT: Dwayne Meadows, Ph.D., Office of
Protected Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Purpose and Need for Regulatory Action
NMFS 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.
These regulations establish a framework under the authority of the MMPA
(16 U.S.C. 1361 et seq.) to allow for the issuance of a LOA for the
take of marine mammals incidental to the UCSC/PISCO's rocky intertidal
research activities in Oregon and California.
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 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 rule containing five-year
regulations, and for any subsequent LOAs. As directed by this legal
authority, this proposed rule contains mitigation, monitoring, and
reporting requirements.
Summary of Major Provisions Within the Regulations
Following is a summary of the major provisions of these regulations
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; and
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 ensure that the 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 lions (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. On
January 15, 2020 NMFS issued a notice of proposed rulemaking in the
Federal Register (85 FR 2369) soliciting
[[Page 18460]]
public comments for 30 days. All public comments were considered in
developing this final rule.
NMFS previously issued seven incidental harassment authorizations
(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 Activities on Marine
Mammals and Their Habitat and Estimated Take sections of the proposed
rule (85 FR 2369, January 15, 2020).
Comments and Responses
We received no public comments pertaining to the proposed rule nor
did we receive any recommendations from the Marine Mammal Commission.
Changes From Proposed to Final Rule
There are minor changes from the proposed rule to the final rule.
While more detail can be found later in this document, we summarize the
changes here.
In the ``Levels of Pinniped Behavioral Disturbance'' definition
table (7) in the Monitoring and Reporting section and the parallel
Table 1 within the regulations, we corrected a typographical error in
the tables. Also in the Monitoring and Reporting section we neglected
to include an existing requirement of UCSC/PISCO's current IHA, that
project field biologists will function as marine mammal observers (MMO)
which will remain as part of these regulations.
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 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.
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
A detailed description of UCSC/PISCO's planned activities was
provided in our notice of proposed rulemaking (85 FR 2369; January 15,
2020) and is not repeated here. No changes have been made to the
specified activities described therein.
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).
[[Page 18461]]
Table 1--Marine Mammals Potentially Present in the Vicinity of the Study Areas
--------------------------------------------------------------------------------------------------------------------------------------------------------
Stock abundance (CV,
Common name Scientific name Stock ESA/MMPA status; Nmin, most recent PBR Annual M/
strategic (Y/N)\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):
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. 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.
Detailed descriptions of these species were provided in our notice of
proposed rulemaking (85 FR 2369; January 15, 2020) and are not repeated
here. No new information is available.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
We provided discussion of the potential effects of the specified
activity on marine mammals and their habitat in our Federal Register
notice of proposed rulemaking (85 FR 2369; January 15, 2020) and it is
not repeated here. The proposed rule included 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
final rule 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 the Negligible Impact Analysis and Determination section and
the material it references, the Estimated Take section, and the
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.
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.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes would be by Level B harassment only, in the form
of disruption of behavioral patterns for individual marine mammals
resulting from exposure to researchers. Based on the nature of the
activity, Level A harassment is neither anticipated nor authorized. As
described previously, no mortality or serious injury is anticipated or
authorized for this activity. Below we describe how the potential take
is estimated.
Marine Mammal Occurrence
In this section we provide 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; and
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, a ``take'' was only considered to occur during level 2 or
3 observations under 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.
[[Page 18462]]
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
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
----------------------------------------------------------------------------------------------------------------
[[Page 18463]]
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
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 authorized here (Table 6).
Table 6--Authorized Level B Take and Percent of MMPA Stock To Be Taken
------------------------------------------------------------------------
Proposed authorized take
Species -------------------------------------
Level B % of population
------------------------------------------------------------------------
Harbor Seal....................... 1466 2.6
[[Page 18464]]
California sea lion............... 636 0.25
Northern elephant seal............ 156 0.09
Steller Sea Lion.................. 25 0.06
------------------------------------------------------------------------
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), and 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.
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 determined that these mitigation measures provide the means
effecting the least practicable impact on the affected species or
stocks and their habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance.
Monitoring and Reporting
In order to issue 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 to ensure 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);
[[Page 18465]]
Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and
Mitigation and monitoring effectiveness.
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. Project field biologists will
function as marine mammal observers (MMO). Minimum qualifications for
MMOs include an undergraduate degree in biology.
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 in response to
the source of disturbance,
ranging from short
withdrawals at least twice
the animal's body length
to longer retreats over
the beach, or if already
moving a change of
direction of greater than
90 degrees.
3...................... Flush............. All retreats (flushes) to
the water.
------------------------------------------------------------------------
In addition, observations regarding the number and species of any
marine mammals observed, either in the water or hauled out, at or
adjacent to a site, are recorded as part of field observations during
research activities. Information regarding physical and biological
conditions pertaining to a site, as well as the date and time that
research was conducted are also noted. This information will be
incorporated into a monitoring report for NMFS 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;
(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
[[Page 18466]]
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-haul out 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), the 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 6, 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
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 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
Mitigation section).
Typically, even those reactions constituting Level B harassment
would result in at most, 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 the 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
[[Page 18467]]
implementation of the 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 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 monitoring and mitigation
measures, NMFS finds that the total marine mammal take from the
proposed activity will have a negligible impact on all affected marine
mammal species or stocks.
Small Numbers
As noted above, only small numbers of incidental take may be
authorized under section 101(a)(5)(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 authorizes is 0.06 to 2.6 percent of any
stock's best population estimate (Table 6). 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 mitigation and monitoring measures) and the anticipated
take of marine mammals, NMFS finds that small numbers of marine mammals
will be taken relative to the population size of the affected species
or stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.
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 promulgation of
regulations and subsequent issuance of LOAs) with respect to potential
impacts on the human environment. This action is consistent with
categories of activities identified in Categorical Exclusion B4 (IHAs
with no anticipated serious injury or mortality) of the Companion
Manual for NOAA Administrative Order 216-6A, which do not individually
or cumulatively have the potential for significant impacts on the
quality of the human environment and for which we have not identified
any extraordinary circumstances that would preclude this categorical
exclusion. Accordingly, NMFS has determined that the issuance of the
final rule qualifies to be categorically excluded from further NEPA
review.
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 authorized or expected
to result from this activity. Therefore, NMFS has determined that
formal consultation under section 7 of the ESA is not required for this
action.
Classification
Pursuant to the procedures established to implement Executive Order
12866, the Office of Management and Budget has determined that this
final 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 final rule 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
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 final 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 217
Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and recordkeeping requirements, Seafood,
Transportation.
Dated: March 23, 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 amended
as follows:
PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS
INCIDENTAL TO SPECIFIED ACTIVITIES
0
1. The authority citation for part 217 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
0
2. Add subpart K to read as follows:
[[Page 18468]]
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]
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.
(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. Sec. 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 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. Sec. 216.106 of this chapter and
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. Sec. 216.106
of this chapter and 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. Sec.
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 must 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 must avoid pinnipeds along access ways to sites by
locating and taking a different access way. Researchers must 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 must avoid making loud noises (i.e., using hushed
voices) and keep bodies low to the ground in the visual presence of
pinnipeds.
(4) Researchers must 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 must promptly vacate sites at the conclusion of
sampling.
(b) Pup protection measure. Intentional approach must 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.
Sec. 217.105 Requirements for monitoring and reporting.
(a) Visual monitoring program. (1) Standard information recorded
must 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 must 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 to this
paragraph (a)(3). 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.
[[Page 18469]]
2...................... Movement.......... Movements in response to
the source of disturbance,
ranging from short
withdrawals at least twice
the animal's body length
to longer retreats over
the beach, or if already
moving a change of
direction of greater than
90 degrees.
3...................... Flush............. All retreats (flushes) to
the water.
------------------------------------------------------------------------
(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
this subpart 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 this subpart
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 paragraph (e) of this
section). The report must include a summary of the information gathered
pursuant to the monitoring requirements set forth in paragraph (a) of
this section 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. 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 this subpart,
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 this subpart.
(c) If an LOA expires prior to the expiration date of this subpart,
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 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 this subpart.
(g) Notice of issuance or denial of an LOA shall be published in
the Federal Register within 30 days of a determination.
Sec. 217.107 Renewals and modifications of Letters of Authorization.
(a) An LOA issued under Sec. Sec. 216.106 of this chapter and
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 this subpart (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 this subpart were implemented.
(b) For an LOA modification or renewal requests by the applicant
that
[[Page 18470]]
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 this subpart 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. Sec. 216.106 of this chapter and
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 this subpart.
(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 this subpart 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. Sec. 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.
Sec. Sec. 217.108--217.109 [Reserved]
[FR Doc. 2020-06358 Filed 4-1-20; 8:45 am]
BILLING CODE 3510-22-P
