Take of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Seabird Research Activities in Central California, 27991-28000 [2021-11029]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 86, Number 99 (Tuesday, May 25, 2021)]
[Rules and Regulations]
[Pages 27991-28000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11029]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 210519-0111]
RIN 0648-BJ47


Take of Marine Mammals Incidental to Specified Activities; Taking 
Marine Mammals Incidental to Seabird Research Activities in Central 
California

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

ACTION: Final rule; notification of issuance.

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SUMMARY: NMFS Office of Protected Resources, upon request from Point 
Blue Conservation Science (Point Blue), NMFS hereby issues regulations 
and a Letter of Authorization (LOA) to govern the unintentional taking 
of marine mammals incidental to seabird research activities in central 
California 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 July 1, 2021, through June 30, 2026.

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: Amy Fowler, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Purpose and Need for Regulatory Action

    NMFS received an application from Point Blue 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 Point Blue's seabird research 
activities in central 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

[[Page 27992]]

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 Letters of 
Authorization (LOAs). As directed by this legal authority, this final 
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 Point Blue's seabird research activities. These measures 
include:
     Required implementation of mitigation to minimize impact 
to pinnipeds including several measures to approach haulouts cautiously 
to minimize disturbance, and avoiding surveying when pups are present.
     Required monitoring of the research areas to detect the 
presence of marine mammals before initiating surveys.

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made, regulations are 
issued, and notice is provided to the public.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the species or stocks for 
taking for certain subsistence uses (referred to, in shorthand, as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of the takings are set forth.
    The definitions of all applicable MMPA statutory terms cited above 
are included in the relevant sections below.

Summary of Request

    On September 17, 2019, NMFS received a request from Point Blue for 
a proposed rule and LOA to take marine mammals incidental to seabird 
research activities on the central California coast. We determined the 
application was adequate and complete on November 26, 2019. Point 
Blue'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), northern fur seals 
(Callorhinus ursinus), Guadalupe fur seals (Arctocephalus philippii 
townsendi), and Steller sea lions (Eumetopias jubatus), by Level B 
harassment only. Neither Point Blue nor NMFS expects serious injury or 
mortality, or Level A harassment, to result from this activity. On July 
24, 2020, NMFS issued a proposed rule in the Federal Register (85 FR 
44835) soliciting public comments for 30 days. All public comments were 
considered in developing this final rule.
    NMFS previously issued ten Incidental Harassment Authorizations 
(IHAs) to Point Blue for similar work from 2006 through 2020 (72 FR 
71121, December 14, 2007; 73 FR 77011, December 18, 2008; 75 FR 8677, 
February 19, 2010; 77 FR 73989, December 7, 2012; 78 FR 66686, November 
6, 2013; 80 FR 80321, December 24, 2015; 81 FR 34978, June 1, 2016; 82 
FR 31759, July 7, 2017; 83 FR 31372, July 5, 2018; 85 FR 9740, February 
20, 2020). In addition, NMFS issued an IHA for work from October 1, 
2020, through September 30, 2021, during the development of this final 
rule (85 FR 63258; October 7, 2020). Point Blue complied with all the 
requirements (e.g., mitigation, monitoring, and reporting) of the 
previous IHAs and information regarding their monitoring results may be 
found in the Potential Effects of the Specified Activity on Marine 
Mammals and their Habitat and Estimated Take sections.

Description of Proposed Activity

Overview

    Point Blue, along with their research partners Oikonos Ecosystem 
Knowledge and Point Reyes National Seashore, have been conducting 
seabird research in central California for over 30 years. This research 
is conducted under cooperative agreements with the U.S. Fish and 
Wildlife Service (USFWS) in consultation with the Gulf of the 
Farallones National Marine Sanctuary. Point Blue conducts research 
activities on Southeast Farallon Island (SEFI), A[ntilde]o Nuevo Island 
(ANI), and Point Reyes National Seashore (PRNS). Research activities 
include monitoring and censusing seabird colonies, observing seabird 
nesting habitat, restoring nesting burrows, and resupplying a field 
station at SEFI. Research is conducted throughout the year at each of 
the research sites. Researchers accessing and conducting research 
activities on the sites may occasionally cause behavioral disturbance 
(or Level B harassment) of six pinniped species. Point Blue expects 
that the disturbance to pinnipeds from the research activities will be 
minimal and will be limited to Level B harassment.

Dates and Duration

    Point Blue's research is conducted throughout the year. At SEFI, 
seabird monitoring sites are visited 1-3 times per day for a maximum of 
500 visits per year. Boat landings to re-supply the field station, 
lasting 1-3 hours, are conducted once every two weeks. At ANI, research 
is conducted approximately once a week from April-August, with 
occasional intermittent visits made during the rest of the year. The 
maximum number of visits per year would be 20. Research at PRNS is 
conducted year round, with an emphasis during the seabird nesting 
season, and with occasional intermittent visits the rest of the year. 
The maximum number of visits per year is 20. A component of the seabird 
research involves habitat restoration and monitoring which requires 
sporadic visits from September-November, the time period between the 
seabird breeding season and the elephant seal pupping season.

Specific Geographic Region

    Point Blue will conduct their research activities within the 
vicinity of pinniped haul-out sites in the following locations:
     South Farallon Islands: The South Farallon Islands consist 
of SEFI, located at 37[deg]41'54.32'' N; 123[deg]0'8.33'' W, and West 
End Island. The South Farallon Islands have a land area of 
approximately 120 acres (0.49 square kilometers (km\2\)) and are part 
of the Farallon National Wildlife Refuge. The islands are located near 
the edge of the continental shelf 28 miles (mi) (45.1 km) west of San 
Francisco, California, and lie within the waters of the Gulf of the 
Farallones National Marine Sanctuary;
     A[ntilde]o Nuevo Island: ANI is located at 
37[deg]6'29.25'' N; 122[deg]20'12.20'' W, one-quarter mile (402 meters 
m) offshore of A[ntilde]o Nuevo Point in San Mateo County, California. 
The island lies within the Monterey Bay National Marine Sanctuary and 
the A[ntilde]o Nuevo State Marine Conservation Area; and

[[Page 27993]]

     Point Reyes National Seashore: PRNS is approximately 40 
miles (64.3 km) north of San Francisco Bay and also lies within the 
Gulf of the Farallones National Marine Sanctuary.

Detailed Description of Specific Activity

    A detailed description of Point Blue's planned activities was 
provided in our proposed rule (85 FR 44835; July 24, 2020) and is not 
repeated here. No changes have been made to the specified activities 
described therein.

Comments and Responses

    We published a proposed rule on July 24, 2020 (85 FR 44835) and 
requested comments and information from the public. During the 30-day 
public comment period, we received a comment letter from the Marine 
Mammal Commission (Commission). The Commission's comments and our 
responses are described below. For full detail of the comments and 
recommendations, please see the comment letter, which is available 
online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-point-blue-conservation-science-seabird-and-pinniped-1.
    Comment 1: Due to an increasing number of Steller sea lions 
reported at the SEFI research site, the Commission recommended NMFS 
increase the annual authorized take of Steller sea lions from 65 to 72 
per year.
    Response: NMFS concurs with the Commission's recommendation and has 
increased the authorized take of Steller sea lions accordingly in this 
final rule.
    Comment 2: The Commission recommended that NMFS require Point Blue 
to include raw sightings data with each annual monitoring report and 
ensure that the reporting requirements align with the required 
monitoring information to be collected. Additionally, the Commission 
recommended that NMFS require Point Blue to avoid visits to research 
sites if the number of takes that has been authorized for a given 
species is met.
    Response: NMFS concurs with the Commission's recommendations and 
has revised the LOA and regulations accordingly in this final rule.

Changes From Proposed Rule to Final Rule

    As described above in response to comments from the Commission, in 
this final rule NMFS has increased the authorized take of Steller sea 
lions from 65 to 72 sea lions per year by Level B harassment (see 
response to Comment 1), and has added additional monitoring, reporting, 
and mitigation requirements (see response to Comment 2).

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 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 the Committee on Taxonomy (2019). 
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. 2019 Pacific and Alaska Marine Mammal SARs (Carretta et al. 
2020a; Muto et al., 2020a) and draft U.S. 2020 Pacific and Alaska 
Marine Mammal SARs (Caretta et al., 2020b; Muto et al., 2020b). All 
values presented in Table 1 are the most recent available at the time 
of publication and are available in the 2019 and draft 2020 SARs 
(available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

[[Page 27994]]



                                     Table 1--Marine Mammals Potentially Present in the Vicinity of the Study Areas
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                                                                                      ESA/MMPA status;   Stock abundance (CV,
            Common name                  Scientific name              Stock           Strategic (Y/N)      Nmin, most recent        PBR      Annual M/SI
                                                                                            \1\          abundance survey) \2\                   \3\
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                                                         Order Carnivora--Superfamily Pinnipedia
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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             43,201 (n/a; 43,201;          2,592          113
                                                                                                         2017).
    Northern fur seal..............  Callorhinus ursinus...  California............  -/-; N             14,050 (n/a; 7,524;             451         >0.8
                                                                                                         2013).
                                                             Eastern Pacific.......  -/D; Y             620,660 (0.2, 525,333,       11,295          399
                                                                                                         2016).
    Guadalupe fur seal.............  Arctocephalus           Mexico to California..  T/D; Y             34,187 (n/a; 31,019;          1,062         >1.2
                                      philippii townsendi.                                               2013).
Family Phocidae (earless seals):
    Harbor seal....................  Phoca vitulina          California............  -/-; N             30,968 (n/a; 27,348;          1,641           43
                                      richardii.                                                         2012).
    Northern elephant seal.........  Mirounga                California............  -/-; N             179,000 (n/a; 81,368;         4,882          8.8
                                      angustirostris.                                                    2010).
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\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 strikes). 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.

    All species that could potentially occur in the survey areas are 
included in Table 1. All six species temporally and spatially co-occur 
with the activity to the degree that take is reasonably likely to occur 
and has been authorized. Detailed descriptions of these species were 
provided in our proposed rule (85 FR 44835; July 24, 2020) and are not 
repeated here. No new information is available. The southern sea otter 
(Enhydra lutris nereis) may be found at SEFI and ANI. However, they are 
managed by the USFWS and are not considered further in this document.

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 
proposed rule (85 FR 44835; July 24, 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 and material referenced 
therein, as well as the content and material referenced in 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 
authorized by this final rule, and this estimate informs 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 and required mitigation, no Level A harassment, serious 
injury, or mortality is anticipated or authorized. As described 
previously, no mortality is anticipated or authorized for this 
activity. Below we describe how the take is estimated.

Marine Mammal Occurrence and Take Calculation and Estimation

    Take estimates are based on take reported by Point Blue in the last 
five years (Table 2). With the exception of Steller sea lions, Point 
Blue's requested annual take was calculated as the maximum annual 
recorded take for each species over the last five years with a 10 
percent increase (to account for potential population growth over the 
course of the five-year authorization), or the authorized take from the 
most recent IHA, whichever was greater. As stated above, due to the 
increased presence and reported takes of Steller sea lions at SEFI, the 
Marine Mammal Commission recommended that in this final rule NMFS 
increase the authorized take of Steller sea lions from 65 in the 
proposed rule to 72 takes by Level B harassment per year, and this 
change has been included in this final rule.
    Take of northern fur seals and Guadalupe fur seals has not been 
authorized in Point Blue's past IHAs. However, the northern fur seal 
colony in the Farallon Islands is expanding, and northern fur seals are 
beginning to haul out in areas that are regularly visited by 
researchers and in areas that are critical for access to the island. 
There is also some potential for Guadalupe fur seals to be present at 
the Farallon Islands, though they are not expected to occur as 
frequently as northern fur seals. Therefore, Point Blue has requested, 
and NMFS has authorized, 20 annual takes by Level B harassment of 
northern fur seals and 5 annual takes by Level B harassment of 
Guadalupe fur seals.

[[Page 27995]]



                        Table 2--Reported Take Observations From Previous IHAs, and Requested Annual Takes by Level B Harassment
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                                                            Reported take observations for all activities                               Total requested
                                                  -----------------------------------------------------------------  Authorized takes   annual takes by
                     Species                                                                                         from most recent       Level B
                                                       2014         2015         2016         2017         2018            IHA             harassment
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California sea lion..............................       10,048       36,417       23,173       22,752       17,487             32,623             40,059
Northern elephant seal...........................          145          175          119          202           85                239                239
Pacific harbor seal..............................          284          292          175          234          229                304                321
Steller sea lion.................................           59           31           32           35            5                 43                 65
Northern fur seal................................            0            0            0            0            0                  0                 20
Guadalupe fur seal...............................            0            0            0            0            0                  0                  5
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                 Table 3--Authorized Take by Level B Harassment and Percent of MMPA Stock Taken
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                                                            Authorized annual   Authorized total
              Species                        Stock           take by Level B    take by Level B     Percent of
                                                                harassment         harassment        Stock \1\
----------------------------------------------------------------------------------------------------------------
California sea lion................  U.S..................             40,059            200,295           15.55
Northern elephant seal.............  California breeding..                239              1,195            0.13
Pacific harbor seal................  California...........                321              1,605            1.04
Steller sea lion...................  Eastern U.S..........                 72                360            0.83
Northern fur seal \2\..............  California...........                 20                100            0.14
                                     Eastern Pacific......  .................  .................          < 0.01
Guadalupe fur seal.................  Mexico to California.                  5                 25            0.01
----------------------------------------------------------------------------------------------------------------
\1\ Reflects annual take number.
\2\ As either stock may occur in the project area, for the purposes of calculating the percentage of the stock
  impacted, the take is being analyzed as if all authorized takes occurred within each stock.

Mitigation

    In order to issue regulations and an LOA under Section 101(a)(5)(A) 
of the MMPA, NMFS must set forth the permissible methods of taking 
pursuant to the activity, and other means of effecting the least 
practicable impact on the species or stock and its habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the species or stock for 
taking for certain subsistence uses (latter not applicable for this 
action). NMFS regulations require applicants for incidental take 
authorizations to include information about the availability and 
feasibility (economic and technological) of equipment, methods, and 
manner of conducting the activity or other means of effecting the least 
practicable adverse impact upon the affected species or stocks and 
their habitat (50 CFR 216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned), and;
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost and impact on 
operations.
    To reduce the potential for disturbance from acoustic and visual 
stimuli associated with survey activities, Point Blue will implement 
the following mitigation measures:
     Slow approach to beaches for boat landings to avoid 
stampede, provide animals opportunity to enter water, and avoid vessel 
strikes;
     Observe a site from a distance, using binoculars if 
necessary, to detect any marine mammals prior to approach to determine 
if mitigation is required (i.e., if 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);
     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);
     Avoid visits to sites when pups are present, if the number 
of takes that have been authorized are met, or if species for which 
authorization has not been granted are present;
     Monitor for offshore predators and do not approach hauled 
out pinnipeds if great white sharks (Carcharodon carcharias) or killer 
whales (Orcinus orca) are present. If Point Blue and/or its designees 
see pinniped predators in the area, they must not disturb the pinnipeds 
until the area is free of predators;
     Keep voices hushed and bodies low to the ground in the 
visual presence of pinnipeds;
     Conduct seabird observations at North Landing on SEFI in 
an observation blind, shielded from the view of hauled out pinnipeds;
     Crawl slowly to access seabird nest boxes on ANI if 
pinnipeds are within view; and
     Coordinate research visits to intertidal areas of SEFI (to 
reduce potential take) and coordinate research activities for ANI to 
minimize the number of trips to the island.
    Based on our evaluation of the applicant's proposed measures, and 
the proven efficacy and practicability of

[[Page 27996]]

these mitigation measures in previous Point Blue incidental take 
authorizations, NMFS has determined that the required mitigation 
measures provide the means effecting the least practicable impact on 
the affected species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.

Monitoring and Reporting

    In order to issue 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 action area. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.
    Point Blue will contribute to the knowledge of pinnipeds in 
California 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 
pinnipeds or carcasses, allowing transmittal of the information to 
appropriate agencies and personnel; and (3) rare or unusual species of 
marine mammals for agency follow-up.
    Required monitoring protocols for Point Blue will include the 
following:
    (1) Record of date, time, and location (or closest point of 
ingress) of each visit to the research site;
    (2) Composition of the marine mammals sighted, such as species, 
gender, and life history stage (e.g., adult, sub-adult, pup);
    (3) Information on the numbers (by species) of marine mammals 
observed during the activities;
    (4) Estimated number of marine mammals (by species) that may have 
been harassed during the activities;
    (5) Behavioral responses or modifications of behaviors that may be 
attributed to the specific activities and a description of the specific 
activities occurring during that time (e.g., pedestrian approach, 
vessel approach); and
    (6) Information on the weather, including the tidal state and 
horizontal visibility.
    The lead biologist will serve as an observer to record incidental 
take. For consistency, any reactions by pinnipeds to researchers will 
be recorded according to a three-point scale shown in Table 4. Note 
that only observations of disturbance noted in Levels 2 and 3 should be 
recorded as takes.

           Table 4--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.
------------------------------------------------------------------------
* Only observations of disturbance Levels 2 and 3 are recorded as takes.

    This information will be incorporated into a monitoring report for 
NMFS. The monitoring report will cover the period from January 1 
through December 31 of each year of the authorization. Point Blue will 
submit annual report data on a calendar year schedule, regardless of 
the LOA's initiation or expiration dates. This ensures that data from 
all consecutive months will be collected and, therefore, can be 
analyzed to estimate authorized take for future incidental take 
authorizations regardless of the existing authorization's issuance 
date. Point Blue will submit a draft monitoring report for the 
activities to NMFS Office of Protected Resources by April 1 of each 
year. A final report will be prepared and submitted within 30 days 
following resolution of any comments on the draft report from NMFS. If 
no comments are received from NMFS, the draft monitoring report will be 
considered to be the final report. The final annual report after year 
five may be included as part of the final report (see below).
    Point Blue must also report observations of unusual pinniped 
behaviors, numbers, or distributions and tag-bearing carcasses to the 
NMFS West Coast Regional Office.
    In the event that personnel discovers an injured or dead marine 
mammal, Point Blue shall report the incident to the NMFS Office of 
Protected Resources, and the NMFS West Coast Regional Stranding 
Coordinator as soon as feasible. If the death or injury was clearly 
caused by Point Blue's activities, Point Blue must immediately cease 
the

[[Page 27997]]

specified activities until NMFS is able to review the circumstances of 
the incident and determine what, if any, additional measures are 
appropriate to ensure compliance with the terms of the LOA. Point Blue 
must not resume their activities until notified by NMFS. The report 
must include the following information:
    (1) Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    (2) Species identification (if known) or description of the 
animal(s) involved;
    (3) Condition of the animal(s) (including carcass condition if the 
animal is dead);
    (4) Observed behaviors of the animal(s), if alive;
    (5) If available, photographs or video footage of the animal(s); 
and
    (6) General circumstances under which the animal was discovered.
    A draft final report shall be submitted to the 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 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.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
taken through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    To avoid repetition, the discussion of our analyses applies to all 
the species listed in Table 3, given that the anticipated effects of 
this activity on these different marine mammal stocks are expected to 
be similar. For reasons stated previously in this document and based on 
the following factors, NMFS does not expect Point Blue's specified 
activities to cause long-term behavioral disturbance that would 
negatively impact an individual animal's fitness, or result in injury, 
serious injury, or mortality. Although Point Blue's survey activities 
may disturb marine mammals, NMFS expects those impacts to occur to 
localized groups of animals at or near survey sites. Behavioral 
disturbance would be limited to short-term startle responses and 
localized behavioral changes due to the short duration (ranging from 
<15 minutes for visits at most locations up to 2-5 hours from April-
August at SEFI) of the research activities. At some locations, where 
resupply activities occur, visits will occur once every two weeks. 
Minor and brief responses including short-duration startle reactions, 
are not likely to constitute disruption of behavioral patterns, such as 
migration, nursing, breeding, feeding, or sheltering. These short 
duration disturbances (in many cases animals will return in 30 minutes 
or less) will generally allow marine mammals to reoccupy haulouts 
relatively quickly; therefore, these disturbances would not be 
anticipated to result in long-term disruption of important behaviors. 
No surveys will occur at or near rookeries as researchers will have 
limited access to SEFI, ANI, and PRNS during the pupping season and 
will not approach sites should pups be observed. Furthermore, breeding 
animals tend to be concentrated in areas that researchers are not 
scheduled to visit. Therefore, NMFS does not expect mother and pup 
separation or crushing of pups during stampedes.
    Level B behavioral harassment of pinnipeds may occur during the 
operation of small motorboats. However, exposure to boats and 
associated engine noise would be brief and would not occur on a 
frequent basis. Results from studies demonstrate that pinnipeds 
generally return to their sites and do not permanently abandon haul-out 
sites after exposure to motorboats (Henry and Hammil 2001; Johnson and 
Acevedo-Gutierrez 2007). The chance of a vessel strike is very low due 
to small boat size and slow transit speeds. Researchers will delay 
ingress into the landing areas until after the pinnipeds enter the 
water and will cautiously operate vessels at slow speeds.
    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;
     There is no activity near rookeries and researchers will 
avoid areas where pups are present;
     There is likely to be limited impact from boats due to 
their small size, maneuverability and the requirement to delay ingress 
until after hauled out pinnipeds have entered the water;
     No impacts to pinniped habitat are anticipated; and
     Only limited behavioral disturbance in the form of short-
duration startle reactions is expected, and mitigation requirements 
employed by researchers (e.g. move slowly, use hushed voices) should 
further decrease disturbance levels.
    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 required monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
Point Blue's planned activity will have a negligible impact on all 
affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Sections 101(a)(5)(A) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, where estimated numbers are 
available, NMFS compares the number of individuals taken to the most 
appropriate estimation of abundance of the relevant species or stock in 
our determination of whether an authorization is limited to small 
numbers of marine mammals. Additionally, other qualitative factors may 
be considered in the analysis, such as the temporal or spatial scale of 
the activities.
    The annual amount of take NMFS has authorized is less than one-
third of any stock's best population estimate (Table

[[Page 27998]]

3), which NMFS considers to be small relative to stock abundance. In 
fact, for all species but California sea lions, the annual take by 
Level B harassment is less than 2 percent of stock abundance. 
Additionally, these are all likely conservative estimates because we 
assume all takes are of different individual animals which is likely 
not the case considering haulout site fidelity in pinnipeds.
    Based on the analysis contained herein of Point Blue's planned 
activity (including the required mitigation and monitoring measures) 
and the anticipated take of marine mammals, NMFS finds that small 
numbers of marine mammals will be taken relative to the population size 
of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or stocks would 
not have an unmitigable adverse impact on the availability of such 
species or stocks for taking for subsistence purposes.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
Point Blue's seabird research activities would contain an adaptive 
management component.
    The reporting requirements associated with this rule are designed 
to provide NMFS with monitoring data from the previous year to allow 
consideration of whether any changes are appropriate. The use of 
adaptive management allows NMFS to consider new information from 
different sources to determine (with input from Point Blue regarding 
practicability) on an annual basis if mitigation or monitoring measures 
should be modified (including additions or deletions). Mitigation 
measures could be modified if new data suggests that such modifications 
would have a reasonable likelihood of reducing adverse effects to 
marine mammals and if the measures are practicable.
    The following are some of the possible sources of applicable data 
to be considered through the adaptive management process: (1) Results 
from Point Blue's monitoring from the previous year(s); (2) results 
from other marine mammal research or studies; and (3) any information 
that reveals marine mammals may have been taken in a manner, extent or 
number not authorized by these regulations or subsequent LOAs.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of a final 
rule (and subsequent LOAs)) with respect to potential impacts on the 
human environment. This action is consistent with categories of 
activities identified in Categorical Exclusion B4 (incidental 
harassment authorizations (IHAs) with no anticipated serious injury or 
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has 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.
    The NMFS Office of Protected Resources is authorizing the 
incidental take of Guadalupe fur seals which are listed under the ESA. 
We requested initiation of consultation under section 7 of the ESA with 
NMFS West Coast Region (WCR) on August 26, 2020, for the issuance of 
this LOA. On September 2, 2020, NMFS WCR determined our issuance of the 
LOA to Point Blue was not likely to adversely affect the Guadalupe fur 
seal or the critical habitat of any ESA-listed species or result in the 
take of any marine mammals in violation of the ESA.

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 action would not have a significant economic 
impact on a substantial number of small entities. Point Blue is the 
sole entity that would be subject to the requirements in these 
regulations, and Point Blue 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: May 20, 2021
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set forth in the preamble, NOAA amends 50 CFR part 217 
as follows:

PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS 
INCIDENTAL TO SPECIFIED ACTIVITES

0
1. The authority citation for part 217 continues to read as follows:

    Authority: 16 U.S.C. 1361 et seq.

0
2. Add subpart M to read as follows:
Subpart M--Taking Marine Mammals Incidental to Seabird Research 
Activities in Central California
Sec.
217.120 Specified activity and specified geographical region.
217.121 Effective dates.
217.122 Permissible methods of taking.
217.123 Prohibitions.
217.124 Mitigation requirements.
217.125 Requirements for monitoring and reporting.
217.126 Letters of Authorization.
217.127 Renewals and modifications of Letters of Authorization.
217.128-217.129 [Reserved]

[[Page 27999]]

Subpart M--Taking Marine Mammals Incidental to Seabird Research 
Activities in Central California


Sec.  217.120  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the incidental taking 
of marine mammals during seabird research activities by Point Blue 
Conservation Science (Point Blue) and those persons it authorizes or 
funds to conduct activities on its behalf in the areas outlined in 
paragraph (b) of this section.
    (b) The incidental taking of marine mammals by Point Blue may only 
occur in California on Southeast Farallon Island, A[ntilde]o Nuevo 
Island, and Point Reyes National Seashore in accordance with a Letter 
of Authorization (LOA) issued under Sec. Sec.  216.106 of this chapter 
and 217.126.


Sec.  217.121  Effective dates.

    Regulations in this subpart are effective from July 1, 2021, 
through June 30, 2026.


Sec.  217.122  Permissible methods of taking.

    Under LOAs issued pursuant to Sec. Sec.  216.106 of this chapter 
and 217.126, the Holder of the LOA (hereinafter ``Point Blue'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  217.120(b) by Level B harassment associated 
with seabird research activities, provided the activity is in 
compliance with all terms, conditions, and requirements of the 
regulations in this subpart and the appropriate LOA.


Sec.  217.123  Prohibitions.

    Except for the takings contemplated in Sec.  217.120 and authorized 
by a LOA issued under Sec. Sec.  216.106 of this chapter and 217.126, 
it is unlawful for any person to do any of the following in connection 
with the activities described in Sec.  217.120 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 217.126;
    (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.  217.122;
    (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.  217.124  Mitigation requirements.

    When conducting the activities identified in Sec.  217.120(a), the 
mitigation measures contained in any LOA issued under Sec. Sec.  
216.106 of this chapter and 217.126 must be implemented. These 
mitigation measures shall include but are not limited to the following 
general conditions:
    (a) All persons must slowly approach beaches for boat landings. 
Boat landings must avoid causing stampede and provide marine mammals 
with an opportunity to safely enter the water. Vessel strikes are 
prohibited.
    (b) All persons must observe a site from a distance, using 
binoculars if necessary, to detect any marine mammals prior to approach 
to determine if mitigation is required (i.e., if pinnipeds are present, 
researchers must approach with caution, walking slowly, quietly, and 
close to the ground to avoid surprising any hauled-out marine mammals 
and to reduce flushing/stampeding of individuals).
    (c) All persons 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 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).
    (d) All persons must avoid visits to sites when pups are present, 
if the number of takes that have been authorized are met, or if species 
for which authorization has not been granted are present.
    (e) All persons must monitor for offshore predators and must not 
approach hauled out pinnipeds if great white sharks (Carcharodon 
carcharias) or killer whales (Orcinus orca) are observed to be present. 
If Point Blue and/or its designees see pinniped predators in the area, 
they must not disturb the pinnipeds until the lead biologist determines 
the area is free of predators based on best professional judgment.
    (f) All persons must keep voices hushed and bodies low to the 
ground in the visual presence of pinnipeds.
    (g) All persons must conduct seabird observations at North Landing 
on Southeast Farallon Island in an observation blind, shielded from the 
view of hauled out pinnipeds.
    (h) All persons must crawl slowly to access seabird nest boxes on 
A[ntilde]o Nuevo Island if pinnipeds are within view.
    (i) Researchers must coordinate research visits to intertidal areas 
of Southeast Farallon Island and coordinate research activities for 
A[ntilde]o Nuevo Island to minimize the number of trips to these areas.


Sec.  217.125  Requirements for monitoring and reporting.

    (a) Visual monitoring. When conducting activities under an LOA, 
Point Blue must conduct a visual monitoring program and record 
information as required by the LOA and this subpart.
    (1) Standard information recorded must include species counts (with 
age/sex classes noted 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) The lead biologist must serve as an observer to record 
incidental take.
    (3) The lead biologist must record the following:
    (i) The date, time, and location (or closest point of ingress) of 
each visit to the research site;
    (ii) Composition of the marine mammals sighted, such as species, 
sex, and life history stage (e.g., adult, sub-adult, pup);
    (iii) The number (by species) of marine mammals observed during the 
activities;
    (iv) Estimated number of marine mammals (by species) that may have 
been disturbed during the activities, using a three-point scale of 
disturbance contained in an LOA issued under Sec. Sec.  216.106 of this 
chapter and 217.126. Disturbance Levels 2 and 3 must be recorded as 
takes;
    (v) Behavioral responses or modifications in behaviors that may be 
attributed to the specific activities and a description of the specific 
activities occurring during that time (e.g., pedestrian approach, 
vessel approach);
    (vi) Information on the weather, including the tidal state and 
horizontal visibility; and
    (vii) If applicable, note the presence of any offshore predators 
(date, time, number, and species).
    (4) Point Blue must report observations of unusual behaviors, 
numbers, or distributions of pinnipeds, or of tag-bearing carcasses, to 
the NMFS West Coast Regional Office.
    (b) Prohibited take. (1) In the event that personnel discovers an 
injured or dead marine mammal, Point Blue shall report the incident to 
the Office of Protected Resources, NMFS, and the West Coast Regional 
Stranding Coordinator, NMFS as soon as feasible. If the death or injury 
was caused by Point Blue's activities, Point Blue must

[[Page 28000]]

immediately cease activities conducted under its LOA until NMFS is able 
to review the circumstances of the incident and determine what, if any, 
additional measures are appropriate to ensure compliance with the terms 
of the LOA. Point Blue must not resume their activities until notified 
by NMFS. The report must include the following information:
    (i) Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    (ii) Species identification (if known) or description of the 
animal(s) involved;
    (iii) Condition of the animal(s) (including carcass condition if 
the animal is dead);
    (iv) Observed behaviors of the animal(s), if alive;
    (v) If available, photographs or video footage of the animal(s); 
and
    (vi) General circumstances under which the animal was discovered.
    (c) Annual report. (1) A draft annual report covering the period of 
January 1 through December 31 of each year must be submitted to NMFS 
Office of Protected Resources by April 1 of each year. The final annual 
report after year five may be included as part of the final report (see 
below). The report must include the information gathered pursuant to 
the monitoring requirements set forth above and in the LOA at minimum, 
and must also include raw sightings data.
    (2) A final annual report must 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.
    (d) Final report. A draft final report must be submitted to NMFS 
Office of Protected Resources within 60 days after the conclusion of 
the fifth year. A final report must be submitted to the Director of the 
NMFS Office of Protected Resources 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.  217.126  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, Point Blue must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) If an LOA expires prior to the expiration date of these 
regulations, Point Blue 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, Point Blue must 
apply for and obtain a modification of the LOA as described in Sec.  
217.127.
    (e) The LOA shall set forth:
    (1) Permissible methods and numbers of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA shall be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of an LOA shall be published in 
the Federal Register within thirty days of a determination.


Sec.  217.127  Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec. Sec.  216.106 of this chapter and 
217.126 for the activity identified in Sec.  217.120(a) shall be 
renewed or modified upon request by the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision in paragraph (c)(1) 
of this section), and
    (2) NMFS' Office of Protected Resources determines that the 
mitigation, monitoring, and reporting measures required by the previous 
LOA under these regulations were implemented.
    (b) For an LOA modification or renewal requests by the applicant 
that includes changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in paragraph (c)(1) of this section) that do not change the 
findings made for the regulations or result in no more than a minor 
change in the total estimated number of takes (or distribution by 
species or years), NMFS' Office of Protected Resources may publish a 
notice of proposed LOA in the Federal Register, including the 
associated analysis of the change, and solicit public comment before 
issuing the LOA.
    (c) An LOA issued under Sec. Sec.  216.106 of this chapter and 
217.126 for the activity identified in Sec.  217.120(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 Point Blue regarding the 
practicability of the modifications) if doing so creates a reasonable 
likelihood of more effectively accomplishing the goals of the 
mitigation and monitoring set forth in the preamble for these 
regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA 
include:
    (A) Results from Point Blue's monitoring from the previous year(s);
    (B) Results from other marine mammal and/or sound research or 
studies; and
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS' 
Office of Protected Resources will publish a notice of proposed LOA in 
the Federal Register and solicit public comment.
    (2) Emergencies. If NMFS' Office of Protected Resources determines 
that an emergency exists that poses a significant risk to the well-
being of the species or stocks of marine mammals specified in LOAs 
issued pursuant to Sec. Sec.  216.106 of this chapter and 217.126, 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.  217.128-217.129  [Reserved]

[FR Doc. 2021-11029 Filed 5-24-21; 8:45 am]
BILLING CODE 3510-22-P