Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Lighthouse Repair and Tour Operations at Northwest Seal Rock, California, 50304-50320 [2021-19124]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 86, Number 171 (Wednesday, September 8, 2021)]
[Proposed Rules]
[Pages 50304-50320]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19124]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 210830-0172]
RIN 0648-BJ87


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

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS has received a request from the St. George Reef 
Lighthouse Preservation Society (Society) for authorization to take 
marine mammals over the course of 5 years (2021-2026) incidental to 
conducting aircraft operations, lighthouse renovation, light 
maintenance activities, and tour operations on the St. George Reef 
Lighthouse Station (Station) on Northwest Seal Rock (NWSR). Pursuant to 
the Marine Mammal Protection Act (MMPA), NMFS is proposing regulations 
to govern that take, and requests comments on the proposed regulations. 
NMFS will consider public comments prior to making any final decision 
on the issuance of the requested MMPA authorizations and agency 
responses will be summarized in the final notification of our decision.

DATES: Comments and information must be received no later than October 
8, 2021.

ADDRESSES: Submit all electronic public comments via the Federal e-
Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA-
NMFS-2021-0079 in the Search box. Click on the ``Comment'' icon, 
complete the required fields, and enter or attach your comments.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address), confidential business information, 
or otherwise sensitive information submitted voluntarily by the sender 
will be publicly accessible. NMFS will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous). 
Attachments to electronic comments will be accepted in Microsoft Word, 
Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Dwayne Meadows, Ph.D., Office of 
Protected Resources, NMFS, (301) 427-8401. Electronic copies of the 
application and supporting documents, as well as a list of the 
references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Availability

    A copy of the Society's application and any supporting documents, 
as well as a list of the references cited in this document, may be 
obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of 
problems accessing these documents, please call the contact listed 
above (see FOR FURTHER INFORMATION CONTACT).

Purpose and Need for Regulatory Action

    This proposed rule would establish a framework under the authority 
of the MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of 
take of marine mammals incidental to the Society conducting aircraft 
operations, lighthouse renovation, light maintenance activities, and 
tour operations on the Station on NWSR approximately 8 miles (12.9 km) 
northwest of Crescent City, CA.
    We received an application from the Society requesting 5-year 
regulations and authorization to take multiple species of marine 
mammals. Take would occur by Level B harassment incidental to acoustic 
and visual disturbance of pinnipeds during helicopter operations, 
lighthouse repair, and tour operations. Please see Background section 
below for definitions of harassment.

Legal Authority for the Proposed Action

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs 
the Secretary of Commerce to allow, upon request, the incidental, but 
not intentional taking of small numbers of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region for up to 5 years if, 
after notice and public comment, the agency makes certain findings and 
issues regulations that set forth permissible methods of taking 
pursuant to that activity and other means of effecting the ``least 
practicable adverse impact'' on the affected species or stocks and 
their habitat (see the discussion below in the Proposed Mitigation 
section), as well as monitoring and reporting requirements. Section 
101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR 
part 216, subpart I provide the legal basis for issuing this proposed 
rule containing 5-year regulations, and for any subsequent Letters of 
Authorization (LOAs). As directed by this legal authority, this 
proposed rule contains mitigation, monitoring, and reporting 
requirements.

Summary of Major Provisions Within the Proposed Rule

    Following is a summary of the major provisions of this proposed 
rule regarding the Society's activities. These measures include:
     Required implementation of mitigation to minimize impact 
to pinnipeds and avoid disruption to dependent pups including several 
measures to approach haulouts cautiously to minimize disturbance, 
especially when pups are present.
     Required monitoring of the project areas to detect the 
presence of marine mammals before initiating work.

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) 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

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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.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 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.
    The MMPA states that the term ``take'' means to harass, hunt, 
capture, or kill, or attempt to harass, hunt, capture, or kill any 
marine mammal.
    Except with respect to certain activities not pertinent here, 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).

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of a proposed 
rule and subsequent LOAs) with respect to potential impacts on the 
human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 of the Companion Manual for NAO 216-6A, 
which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has 
preliminarily determined that the issuance of the proposed rule 
qualifies to be categorically excluded from further NEPA review.
    Information in the Society's application and this notification 
collectively provide the environmental information related to proposed 
issuance of these regulations and subsequent incidental take 
authorization for public review and comment. We will review all 
comments submitted in response to this notification prior to concluding 
our NEPA process or making a final decision on the request.

Summary of Request

    On March 23, 2020, NMFS received a request from the Society for a 
proposed rule and LOAs to take marine mammals incidental to lighthouse 
maintenance and preservation activities at NWSR, offshore of Crescent 
City, CA. The application was deemed adequate and complete on April 16, 
2020. The Society's request is for take of a small number of California 
sea lions (Zalophus californianus), harbor seals (Phoca vitulina), 
Steller sea lions (Eumetopias jubatus), and northern fur seals 
(Callorhinus ursinus) by Level B harassment only. Neither the Society 
nor NMFS expects serious injury or mortality to result from this 
activity. On June 9, 2020 (85 FR 35268), we published a notice of 
receipt of the Coast Guard's application in the Federal Register, 
requesting comments and information related to the request for 30 days. 
We received no comments.
    NMFS previously issued nine 1-year Incidental Harassment 
Authorizations (IHAs) for similar work (75 FR 4774, January 29, 2010; 
76 FR 10564, February 25, 2011; 77 FR 8811, February 15, 2012; 78 FR 
71576, November 29, 2013; 79 FR 6179, February 3, 2014; 81 FR 9440, 
February 25, 2016; 82 FR 11005, February 17, 2017; 83 FR 19254, May 2, 
2018; and 84 FR 15598, April 16, 2019). Generally speaking, the Society 
complied with the requirements (e.g., mitigation, monitoring, and 
reporting) of the previous IHAs. However, misunderstandings in past 
implementation have resulted in missing or incorrectly recorded 
monitoring data, which necessitates more frequent reporting in the 
first year (at least) of this rule to ensure appropriate monitoring and 
reporting implementation in the future. Information regarding their 
monitoring results may be found in the Potential Effects of Specified 
Activities on Marine Mammals and their Habitat and Estimated Take 
sections.

Description of Proposed Activity

Overview

    The St. George Reef Lighthouse Station was built on NWSR in 1892 
and is listed in the National Register of Historic Places. Covering 
much of the islet's surface, the structure consists of a 14.5 meter (m) 
high (48 foot (ft)) oval-shaped concrete base (the caisson) that holds 
much of the equipment and infrastructure for the lighthouse tower, 
which sits on the top of one end of the base. The square tower consists 
of hundreds of granite blocks topped with a cast iron lantern room 
reaching 45.7 m (150 ft) above sea level. An observation gallery 
platform surrounds the lantern room and provides a 360 degree view to 
the caisson and rocks below.
    The purpose of the project is to conduct annual maintenance of the 
Station's optical light system, emergency maintenance in the event of 
equipment failure, restoration activities, and lighthouse tours. 
Because NWSR has no safe landing area for boats, the Society accesses 
the Station via helicopter. Restoration work sessions can occur over 3-
day weekends or longer one to two week sessions. The following specific 
aspects of the proposed activities would likely result in the take of 
marine mammals: Acoustic and visual stimuli from (1) helicopter 
landings and takeoffs; (2) noise generated during restoration 
activities (e.g., painting, plastering, welding, and glazing); (3) 
maintenance activities (e.g., bulb replacement and automation of the 
light system); and (4) human presence. Thus, NMFS anticipates these 
activities may occasionally cause behavioral disturbance (i.e., Level B 
harassment) of four pinniped species. It is expected that the 
disturbance to pinnipeds from the activities will be minimal and will 
be limited to Level B harassment.
    The regulations proposed here (and any issued LOAs) would replace 
annual IHAs, providing a reduction in the time and effort necessary to 
obtain individual incidental take authorizations.

Dates and Duration

    The Society proposes to conduct the activities (aircraft 
operations, lighthouse restoration and maintenance activities, and 
public tours) with a maximum of 70 helicopter flight days per year. The 
Society's deed restricts normal access from June 1 through October 15 
annually, so currently proposed trips under this application would 
occur from October 16 through May 31. However, the Society is 
attempting to have the deed revised to allow visits at any time of the 
year. Therefore we will consider the implications of possible visits 
during any month of the year in our analyses below and we could issue 
LOAs to cover this time of year should the society be successful in 
revising their deed. The proposed regulations would be valid for a 
period of 5 years (January 1, 2022-December 31, 2026). Over the course 
of this 5-year authorization, the Society proposes a maximum of 350 
days of activities.

Specific Geographic Region

    The Station is located on NWSR (Figure 1), a small, rocky islet 
(41[deg]50'24'' N, 124[deg]22'06'' W), approximately 9

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kilometers (km) (6.0 miles (mi)) offshore of Crescent City, California 
(41[deg]46'48'' N; 124[deg]14'11'' W). NWSR is approximately 91.4 
meters (m) (300 feet (ft)) in diameter and peaks at 5.18 m (17 ft) 
above mean sea level.

Detailed Description of Specific Activity

Lighthouse Restoration Activities
    Restoration and maintenance activities would involve the removal 
and restoration of interior plaster and paint, refurbishing structural 
and decorative metal, reworking original metal support beams throughout 
the lantern room and elsewhere, replacing glass as necessary, upgrading 
the present electrical system; and annual or biannual light beacon 
maintenance. The Society proposes to transport no more than 12 work 
crew members (requiring up to four round-trip flights) and equipment to 
NWSR for each restoration work session. Traditional work sessions in 
the past have been over 3-day long weekends. The Society now proposes 
to add occasional longer one to two week work sessions to address 
additional restoration needs.
Public Tours
    The Society began conducting public tours to the lighthouse by 
helicopter in 1998 in conjunction with restoration activities and 
proposes to conduct public tours at the Station on one day of a 
traditional 3-day work session and on one to two weekend days of the 
longer work trips. The maximum number of expected tourists is 36 people 
per tour day.
Light Maintenance
    As required by the United States Coast Guard, in order to maintain 
St. George Reef Lighthouse as a Private Aid to Navigation, the Society 
needs to conduct maintenance of the light. Normally this would occur in 
conjunction with a longer restoration work session. However, if the 
beacon light fails, the Society proposes to send a crew of two to three 
people to the Station by helicopter as soon as possible to repair the 
beacon light. Each repair event requires a 1-day trip to the Station.
    The Society's deed currently limits visits between June 1 and 
October 15 of each year, but does permit limited emergency light repair 
trips to the station during that time. Should the Society be successful 
in eliminating the deed restriction on visitation dates, no light 
maintenance trips would be considered ``emergency''.
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TP08SE21.004

BILLING CODE 3510-22-C
Aircraft Operations
    Because NWSR has no safe landing area for boats, the proposed 
restoration, maintenance, and touring activities require the Society to 
transport work personnel, equipment, and tourists from the California 
mainland to NWSR by small helicopter. Helicopter landings take place 
adjacent to the tower on top of the oval base caisson. The landing area 
is small, so only small helicopters can be accommodated. The helicopter 
seats four passengers and one pilot and can also carry cargo in a net 
below the helicopter.
    The number of flights per day varies by activity (restoration, 
tours, or light maintenance). We count each arrival and departure 
flight separately. For traditional 3-day restoration work sessions the 
12 work crew members are transported to the Station on the morning of 
the first day (typically a Friday). The first flight would depart from 
Crescent City Airport no earlier than 8:30 a.m. for a 6-minute flight 
to Northwest Seal Rock. The helicopter would land and take-off 
immediately after offloading personnel and equipment every 20 minutes. 
To transport all 12 people and gear requires 4 departures and 4 
arrivals on the first day for a total of 8 flights. The total duration 
of the first day's aerial operations would last for approximately 4 
hours (hrs) and would end at approximately 12:30 p.m. Crew members 
would remain overnight at the Station and would not return to the 
mainland until the third day.
    For the second day, the Society may conduct a maximum of four 
flights (two arrivals and two departures) to transport additional 
materials, if needed. The total duration of the second day's aerial

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operations could last up to 3 hrs. Second-day operations are only 
conducted if needed; flights on the second day do not always occur.
    For the final day of operations, the Society could conduct a 
maximum of eight flights (four arrivals and four departures) to 
transport the crew members and equipment/material back to the Crescent 
City Airport. The total duration of the third day's helicopter 
operations could last up to 2 hrs. Thus the total number of flights for 
restoration work on a 3 day trip is 20 (i.e., 8 Friday, 4 Saturday, 8 
Sunday). The Society proposes no more than 14 3-day work sessions per 
year.
    The number of flights and days of flights on a one to two week 
restoration trip would be similar to a 3 day trip. That is eight 
flights on the first and last days of the trip plus four flights 
potentially on 1 day in the middle of the trip as needed. The Society 
is proposing no more than eight long trips per year. To date no more 
than three trips per year have ever been conducted. The Society would 
have no more than two restoration work trips per month.
    On a 3-day restoration trip tours may occur on the last day. The 
tours would be scheduled on a weekend day on the beginning and or the 
end of the work party for the one to two week duration restoration 
trips. Additional flights would be conducted solely for the transport 
of tourists to and from the Lighthouse; those flights would be 
conducted in the later hours of the morning and early afternoon. The 
maximum number of expected tourists is 36 people per tour day. Thus the 
number of helicopter flights needed for tourists is 18 (9 arrivals and 
9 departures). It is expected that each flight would land every 15-20 
minutes. The scheduled duration of each visit is one hour per tour 
group (each tour group is one helicopter load of people). The last tour 
group would leave the island before 2 p.m. The total number of 
helicopter flights on a tour day is thus no more than 26 (18 for 
tourists, 8 for work crew members).
    Light maintenance is expected to take no longer than 3 hours and 
one crew of two-three people. Only one-two helicopter landings at the 
Lighthouse are anticipated to ferry the crew an equipment to service 
the light. Thus a light maintenance trip requires a maximum of four 
flights on one day.
    Most if not all of the disturbance from the Society's activity 
occurs on the flight days. When helicopters are not at the Station work 
crews remain inside or on the platform far above the marine mammals on 
the rocks below. Thus the number of flight days represents the general 
extent of the disturbance from these activities. The society proposes 
no more than 70 days of flight operations per year (4 for regular or 
emergency light maintenance trips and 66 for work restoration trips 
(with additional flights, but not days of flight activity on no more 
than 30 tour days).
    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see Proposed 
Mitigation and Proposed Monitoring and Reporting).

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS's 
website (https://www.fisheries.noaa.gov/find-species).
    Table 1 lists all species or stocks for which take is expected and 
proposed to be authorized for this action, and summarizes information 
related to the population or stock, including regulatory status under 
the MMPA and the Endangered Species Act (ESA) and potential biological 
removal (PBR), where known. For taxonomy, we follow Committee on 
Taxonomy (2020). 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. Pacific Marine Mammal SARs (e.g., Carretta et al. 2020). 
All values presented in Table 1 are the most recent available at the 
time of publication and are available in the 2019 SARs (Carretta et al. 
2020) and draft 2020 SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

                    Table 1--Species That Spatially Co-Occur With the Activity to the Degree That Take Is Reasonably Likely To Occur
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                                                                                         ESA/MMPA status;    Stock abundance (CV,
             Common name                  Scientific name               Stock             Strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
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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).
    Northern fur seal...............  Callorhinus ursinus....  California Breeding....  -, D, N             14,050 (N/A, 7,524,           451        1.8
                                                                                                             2013).
    Steller sea lion................  Eumetopias jubatus.....  Eastern U.S............  -, -, N             43,201 a (see SAR,          2,592        113
                                                                                                             43,201, 2017).
Family Phocidae (earless seals)

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    Pacific harbor seal.............  Phoca vitulina           California.............  -, -, N             30,968 (N/A, 27,348,        1,641         43
                                       richardii.                                                            2012).
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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/draft-marine-mammal-stock-assessment-reports, CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\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 Mortality/Serious Injury (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.

    As indicated above, all four species (with four managed stocks) in 
Table 1 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur, and we have proposed 
authorizing it. All species that could potentially occur in the 
proposed survey areas are included in Table 1.

California Sea Lion

    California sea lions occur from Vancouver Island, British Columbia, 
to the southern tip of Baja California. Sea lions breed on the offshore 
islands of southern and central California from May through July (Heath 
and Perrin, 2008). During the non-breeding season, adult and subadult 
males and juveniles migrate northward along the coast to central and 
northern California, Oregon, Washington, and Vancouver Island 
(Jefferson et al., 1993). They return south the following spring (Heath 
and Perrin 2008, Lowry and Forney 2005). Females and some juveniles 
tend to remain closer to rookeries (Antonelis et al., 1990; Melin et 
al., 2008). Adult females generally remain south of Monterey Bay, 
California throughout the year, feeding in coastal waters in the summer 
and offshore waters in the winter, alternating between foraging and 
nursing their pups on shore until the next pupping/breeding season 
(Melin and DeLong, 2000; Melin et al., 2008). In warm water years (El 
Ni[ntilde]o), some females range as far north as Washington and Oregon, 
presumably following prey. The current maximum population growth rate 
for California sea lions is 12 percent (Carretta et al., 2019).
    Crescent Coastal Research (CCR) conducted a 3-year survey of the 
wildlife species on NWSR for the Society. They reported that counts of 
California sea lions on NWSR varied greatly (from 6 to 541) during the 
observation period from April 1997 through July 2000. CCR reported that 
counts for California sea lions during the spring (April-May), summer 
(June-August), and fall (September-October), averaged 60, 154, and 235, 
respectively (CCR 2001). NMFS Southwest Fisheries Science Center 
(SWFSC) conducted 14 annual marine mammal surveys over 19 years (1998 
to 2017) at St. George Reef. California sea lions were last documented 
at NWSR in July of 2003 (11) (unpublished data, Beth Jaime, NMFS SWFSC, 
pers. comm., 2020).

Northern Fur Seal

    Northern fur seals occur from southern California north to the 
Bering Sea and west to the Sea of Okhotsk and Honshu Island of Japan. 
NMFS recognizes two separate stocks of northern fur seals within U.S. 
waters: An Eastern Pacific stock distributed among sites in Alaska, 
British Columbia, and islets along the west coast of U.S. waters (i.e., 
St. Paul, St. George, and Bogoslof); and a California stock (including 
San Miguel Island and the Farallon Islands) (Muto et al., 2018).
    Northern fur seals breed in Alaska and migrate along the west coast 
during fall and winter. Due to their pelagic habitat, they are rarely 
seen from shore in the continental United States, but individuals 
occasionally come ashore on islands well offshore (i.e., Farallon 
Islands and Channel Islands in California). During the breeding season, 
approximately 45 percent of the worldwide population inhabits the 
Pribilof Islands in the Southern Bering Sea, with the remaining animals 
spread throughout the North Pacific Ocean (Caretta et al., 2015).
    Northern fur seals have not been observed during the NMFS SWFSC's 
marine mammal surveys of St. George Reef from 1998 to 2017 (Beth Jaime, 
NMFS, pers. comm., 2020). However, CCR observed one male northern fur 
seal on Northwest Seal Rock in October, 1998 (CCR 2001). It is possible 
that a few animals may use the island more often than indicated by the 
surveys, if they were mistaken for other otariid species (i.e., eared 
seals or fur seals and sea lions) (M. DeAngelis, NMFS, pers. comm., 
2007).

Steller Sea Lions

    Steller sea lions range extends from the North Pacific Rim from 
northern Japan to California with areas of abundance in the Gulf of 
Alaska and Aleutian Islands (Muto et al., 2019). Steller sea lions 
consist of two distinct stocks: The western and eastern stocks divided 
at 144[deg] West longitude (Cape Suckling, Alaska). The western stock 
of Steller sea lions inhabit central and western Gulf of Alaska, 
Aleutian Islands, as well as coastal waters and breed in Asia (e.g., 
Japan and Russia). The eastern stock includes sea lions living in 
southeast Alaska, British Columbia, California, Oregon, and Washington 
and is the only one in the project area. The stock was delisted under 
the ESA in 2013.
    The species is not known to migrate, but individuals, especially 
juveniles and adult males, disperse widely outside of the breeding 
season (late May through early August), thus potentially intermixing 
eastern and western stocks (Muto et al., 2018). Steller sea lions give 
birth in May through July and breeding commences a couple of weeks 
after birth. Pups are weaned during the winter and spring of the 
following year.
    A northward shift in the overall breeding distribution has 
occurred, with a contraction of the range in southern California and 
new rookeries established in southeastern Alaska (Pitcher et al., 
2007). Overall, counts of pups in California, Oregon, British Columbia, 
and Southeast Alaska, as well as counts of non-pups in the same regions 
plus Washington has increased steadily since the 1980s. Stock increase 
has been attributed to escalation of pup counts in all regions (NMFS 
2013).
    Steller sea lion numbers at NWSR ranged from 20 to 355 animals 
between 1997 and 2000 (CCR 2001). Counts of

[[Page 50310]]

Steller sea lions during the spring (April-May), summer (June-August), 
and fall (September-October), averaged 68, 110, and 56, respectively 
(CCR 2001). A multi-year survey at NWSR between 2000 and 2004 showed 
Steller sea lion numbers ranging from 175 to 354 in July (M. Lowry, 
NMFS/SWFSC, unpubl. data). The SWFSC surveys document a consistent 
presence of Steller sea lions at NWSR in 11 out of 14 of yearly surveys 
between 1998 and 2017 with an average of 240 individuals (Beth Jaime, 
NMFS, pers. comm., 2020). The largest presence of Steller sea lions at 
St. George Reef is found on Southwest Seal Rock, approximately 6 km 
(3.7 miles) from NWSR, with an average of 915 individuals observed 
among the SWFSC surveys (unpublished data, Beth Jaime, NMFS/SWFSC, 
pers. comm., 2020). Southwest Seal Rock is a rookery that has contained 
up to 450 pups (Wright et al. 2017). Adults with pups are known to 
relocate from there to NWSR in the fall. (CCR 2001). Winter use of NWSR 
by Steller sea lions is thought to be minimal, due to inundation of the 
natural portion of the island by large swells.

Pacific Harbor Seal

    Harbor seals are widely distributed in the North Atlantic and North 
Pacific. Phoca vitulina richardii inhabits coastal and estuarine areas 
from Mexico to Alaska (Carretta et al., 2020) and is the only stock 
present in the action area.
    In California, over 500 harbor seal haulout sites are widely 
distributed along the mainland and offshore islands, and include rocky 
shores, beaches and intertidal sandbars (Lowry et al., 2005). Harbor 
seals mate at sea and females give birth during the spring and summer, 
although, the pupping season varies with latitude. Females nurse their 
pups for an average of 24 days and pups are ready to swim minutes after 
being born. Harbor seal pupping takes place at many locations and 
rookery size varies from a few pups to many hundreds of pups. The 
nearest harbor seal rookery relative to the proposed project site is at 
Castle Rock National Wildlife Refuge, located approximately located 965 
m (0.6 mi) south of Point St. George, and 2.4 km (1.5 mi) north of the 
Crescent City Harbor in Del Norte County, California (US Fish and 
Wildlife Service (USFWS) 2007).
    CCR noted that harbor seal use of NWSR was minimal, with only one 
sighting of a group of six animals, during 20 observation surveys from 
1997 through 2000 (CCR 2001). They hypothesized that harbor seals may 
avoid the islet because of its distance from shore, relatively steep 
topography, and full exposure to rough and frequently turbulent sea 
swells. The SWFSC surveys did not record harbor seals at NWSR 
(unpublished data, Beth Jaime, NMFS/SWFSC, pers. comm., 2020).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The Estimated Take section later in this document 
includes a quantitative analysis of the number of individuals that are 
expected to be taken by this activity. The Negligible Impact Analysis 
and Determination section considers the content of this section, the 
Estimated Take section, and the Proposed Mitigation section, to draw 
conclusions regarding the likely impacts of these activities on the 
reproductive success or survivorship of individuals and how those 
impacts on individuals are likely to impact marine mammal species or 
stocks.
    Acoustic and visual stimuli generated by: (1) Helicopter landings/
takeoffs; (2) restoration activities (e.g., painting, plastering, 
welding, and glazing); (3) maintenance activities (e.g., bulb 
replacement and automation of the light system); and (4) human presence 
may have the potential to cause behavioral disturbance.

Noise

    This section includes a brief explanation of the sound measurements 
frequently used in the discussions of acoustic effects in this proposed 
rule. Sound pressure is the sound force per unit area, and is usually 
measured in micropascals ([micro]Pa), where 1 pascal (Pa) is the 
pressure resulting from a force of one newton exerted over an area of 
one square meter. Sound pressure level (SPL) is the ratio of a measured 
sound pressure and a reference level. The commonly used reference 
pressure is 1 [micro]Pa for under water, and the units for SPLs are dB 
re: 1 [micro]Pa. The commonly used reference pressure is 20 [micro]Pa 
for in air, and the units for SPLs are dB: 20 [micro]Pa.

SPL (in decibels (dB)) = 20 log (pressure/reference pressure).

    SPL is an instantaneous measurement expressed as the peak, the 
peak-peak, or the root mean square (rms). Root mean square is the 
square root of the arithmetic average of the squared instantaneous 
pressure values. All references to SPL in this document refer to the 
rms unless otherwise noted. SPL does not take into account the duration 
of a sound.
    Noise testing on the helicopter that has been used by the Society, 
a Robinson R66, as required for Federal Aviation Administration (FAA) 
approval, required an overflight at 150 m (492 ft) above ground level, 
109 knots (202 km/hr) and a maximum gross weight of 1,225 kg (2,700 
lbs). The noise level measured on the ground at this distance and speed 
was 84.5 dB re: 20 [micro]Pa (A-weighted). FAA testing also measured 
the sound levels on the ground for a typical helicopter takeoff and 
approach as 87.8 dB re: 20 [micro]Pa (A-weighted) (Robinson 2017). 
Based on this information, we expect that the received sound levels at 
the landing area on the Station's caisson would be between 84.5 and 
87.8 dB re: 20 [micro]Pa (A-weighted). These sound levels are below the 
NMFS behavioral threshold for airborne pinniped disturbance (90 dB for 
harbor seals and 100dB for all other pinnipeds) (NMFS 2016).
    There is a dearth of information on acoustic effects of helicopter 
overflights on pinniped hearing and communication (Richardson, et al., 
1995) and to NMFS' knowledge, there has been no specific documentation 
of temporary threshold shift (TTS), let alone permanent threshold shift 
(PTS), in free-ranging pinnipeds exposed to helicopter operations 
during realistic field conditions (Baker et al., 2012; Scheidat et al., 
2011).
    The primary factor that may influence abrupt movements of animals 
is engine noise, specifically changes in engine noise. The physical 
presence of aircraft could also lead to non-auditory effects on marine 
mammals involving visual or other cues. Airborne sound from a low-
flying helicopter or airplane may be heard by marine mammals while at 
the surface or underwater. Responses by mammals could include hasty 
dives or turns, change in course, or flushing and stampeding from a 
haulout site. There are few well documented studies of the impacts of 
aircraft overflight over pinniped haulout sites or rookeries, and many 
of those that exist, are specific to military activities (Efroymson et 
al., 2001). In 2008, NMFS issued an IHA to the USFWS for the take of 
small numbers of Steller sea lions and Pacific harbor seals, incidental 
to rodent eradication activities on an islet offshore of Rat Island, AK 
conducted by helicopter. The 15-minute aerial treatment consisted of 
the helicopter slowly approaching the islet at an elevation of over 
1,000 ft (304.8 m); gradually decreasing altitude in slow circles; and 
applying the rodenticide in a single pass and returning to Rat Island.

[[Page 50311]]

The gradual and deliberate approach to the islet resulted in the sea 
lions present initially becoming aware of the helicopter and calmly 
moving into the water. Further, the USFWS reported that all responses 
fell well within the range of Level B harassment (i.e., limited, short-
term displacement resulting from aircraft noise due to helicopter 
overflights).
    Several factors complicate the analysis of long- and short-term 
effects for aircraft overflights. Information on behavioral effects of 
overflights by military aircraft (or component stressors) on most 
wildlife species is sparse. Moreover, models that relate behavioral 
changes to abundance or reproduction, and those that relate behavioral 
or hearing effects thresholds from one population to another are 
generally not available. In addition, the aggregation of sound 
frequencies, durations, and the view of the aircraft into a single 
exposure metric is not always the best predictor of effects and it may 
also be difficult to calculate. Overall, there has been no indication 
that single or occasional aircraft flying above pinnipeds in water 
cause long term displacement of these animals (Richardson et al., 
1995). The Lowest Observed Adverse Effects Level (LOAEL) for aircraft 
elevation disturbance are rather variable for pinnipeds on land, 
ranging from just over 150 m (492 ft) to about 2,000 m (6,562 ft) 
(Efroymson et al., 2001). Bowles and Stewart (1980) estimated an LOAEL 
of 305 m (1,000 ft) for helicopters (low and landing) affecting 
California sea lions and harbor seals observed on San Miguel Island, 
CA; animals responded to some degree by moving within the haulout and 
entering into the water, stampeding into the water, or clearing the 
haul out completely. Both species always responded with the raising of 
their heads. California sea lions appeared to react more to the visual 
cue of the helicopter than the noise.
    It is possible that the initial helicopter approach to NWSR would 
cause a subset of the marine mammals hauled out to react. CCR found a 
range of from 0 to 40 percent of all pinnipeds present on the island 
were temporarily displaced (flushed) due to initial helicopter landings 
in 1998. Their data suggested that the majority of these animals 
returned to the island once helicopter activities ceased, over a period 
of minutes to 2 hours (CCR, 2001). Far fewer animals flushed into the 
water on subsequent takeoffs and landings, suggesting rapid habituation 
to helicopter landing and departure (CCR, 2001; Guy Towers, Society, 
pers. comm.). CCR's data also showed that the number of pinnipeds that 
flush is low when takeoffs and landings occur less than 30 minutes 
apart, which is the case for all of the flights by the Society. 
Observations from monitoring to date for this work confirms the above 
pattern of partial flushing at initial landing and increasing 
habituation thereafter.
    Any noise associated with restoration and maintenance activities is 
likely to be from light construction (e.g., sanding, hammering, or use 
of hand drills). The Society will confine all restoration activities to 
inside the existing structure, which would occur mostly on the upper 
levels of the Station. Pinnipeds hauled out on NWSR do not have access 
to the upper levels of the Station and sound levels are not likely to 
exceed the thresholds.

Human Presence

    The appearance of Society personnel may have the potential to cause 
Level B harassment of marine mammals hauled out on NWSR. Disturbance 
includes a variety of effects, from subtle to conspicuous changes in 
behavior, movement, and displacement. Disturbance may result in 
reactions ranging from an animal simply becoming alert to the presence 
of the Society's restoration personnel (e.g., turning the head, 
assuming a more upright posture) to flushing from the haulout site into 
the water. NMFS does not consider the lesser reactions to constitute 
behavioral harassment, or Level B harassment takes, but rather assumes 
that pinnipeds that move greater than two body lengths or longer, or if 
already moving, a change of direction of greater than 90 degrees in 
response to the disturbance, or pinnipeds that flush into the water, 
are behaviorally harassed, and thus considered incidentally taken by 
Level B harassment. NMFS uses a 3-point scale (Table 2) to determine 
which disturbance reactions constitute take under the MMPA. Levels two 
and three (movement and flush) are considered take, whereas level one 
(alert) is not. Animals that respond to the presence of the Society's 
personnel by becoming alert, but do not move or change the nature of 
locomotion as described, are not considered to have been subject to 
behavioral harassment.

  Table 2--Disturbance Scale of Pinniped Responses to In-Air Sources To
                             Determine Take
------------------------------------------------------------------------
                             Type of
         Level               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 Levels 2 and 3 are considered take, whereas Level 1 is not.

    Reactions to human presence, if any, depend on species, state of 
maturity, experience, current activity, reproductive state, time of 
day, and many other factors (Richardson et al., 1995; Southall et al., 
2007; Weilgart 2007). If a marine mammal does react briefly to human 
presence by changing its behavior or moving a small distance, the 
impacts of the change are unlikely to be significant to the individual, 
let alone the stock or population. However, if visual stimuli from 
human presence displace marine mammals from an important feeding or 
breeding area for a prolonged period, impacts on individuals and 
populations could be significant (e.g., Lusseau and Bejder 2007; 
Weilgart, 2007). Nevertheless, this is not likely to occur during the 
proposed activities since rapid habituation or movement to nearby 
haulouts is expected to occur after a potential pinniped flush.
    Disturbances resulting from human activity can impact short- and 
long-term pinniped haulout behavior (Renouf et al., 1981; Schneider and 
Payne, 1983; Terhune and Almon, 1983; Allen et al., 1984; Stewart, 
1984; Suryan and

[[Page 50312]]

Harvey, 1999; and Kucey and Trites, 2006). Numerous studies have shown 
that human activity can flush harbor seals off haulout sites (Allen et 
al., 1984; Calambokidis et al., 1991; and Suryan and Harvey 1999) or 
lead Hawaiian monk seals (Neomonachus schauinslandi) to avoid beaches 
(Kenyon 1972). In one case, human disturbance appeared to cause Steller 
sea lions to desert a breeding area at Northeast Point on St. Paul 
Island, Alaska (Kenyon 1962).
    In cases where vessels actively approached marine mammals (e.g., 
whale watching or dolphin watching boats), scientists have documented 
that animals exhibit altered behavior such as increased swimming speed, 
erratic movement, and active avoidance behavior (Acevedo, 1991; Trites 
and Bain, 2000; Williams et al., 2002; Constantine et al., 2003), 
reduced blow interval (Richter et al., 2003), disruption of normal 
social behaviors (Lusseau 2003; 2006), and the shift of behavioral 
activities which may increase energetic costs (Constantine et al., 
2003; 2004). In 1997, Henry and Hammil (2001) conducted a study to 
measure the impacts of small boats (i.e., kayaks, canoes, motorboats 
and sailboats) on harbor seal haul out behavior in Metis Bay, Quebec, 
Canada. During that study, the authors noted that the most frequent 
disturbances (n=73) were caused by lower speed, lingering kayaks, and 
canoes (33.3 percent) as opposed to motorboats (27.8 percent) 
conducting high speed passes. The seal's flight reactions could be 
linked to a surprise factor by kayaks and canoes which approach slowly, 
quietly, and low on the water making them look like predators. However, 
the authors note that once the animals were disturbed, there did not 
appear to be any significant lingering effect on the recovery of 
numbers to their pre-disturbance levels. In conclusion, the study 
showed that boat traffic at current levels has only a temporary effect 
on the haul out behavior of harbor seals.
    In 2004, Acevedo-Gutierrez and Johnson (2007) evaluated the 
efficacy of buffer zones for watercraft around harbor seal haulout 
sites on Yellow Island, Washington. The authors estimated the minimum 
distance between the vessels and the haulout sites; categorized the 
vessel types; and evaluated seal responses to the disturbances. During 
the course of the 7-weekend study, the authors recorded 14 human-
related disturbances which were associated with stopped powerboats and 
kayaks. During these events, hauled out seals became noticeably active 
and moved into the water. The flushing occurred when stopped kayaks and 
powerboats were at distances as far as 453 and 1,217 ft (138 and 371 
m), respectively. The authors note that the seals were unaffected by 
passing powerboats, even those approaching as close as 128 ft (39 m), 
possibly indicating that the animals had become tolerant of the brief 
presence of the vessels and ignored them. The authors reported that on 
average, the seals quickly recovered from the disturbances and returned 
to the haulout site in less than or equal to 60 minutes. Seal numbers 
did not return to pre-disturbance levels within 180 minutes of the 
disturbance less than one quarter of the time observed. The study 
concluded that the return of seal numbers to pre-disturbance levels and 
the relatively regular seasonal cycle in abundance throughout the area 
counter the idea that disturbances from powerboats may result in site 
abandonment (Johnson and Acevedo-Gutierrez, 2007).

Stampede

    There are other ways in which disturbance, as described previously, 
could result in more than Level B harassment of marine mammals. They 
are most likely to be consequences of stampeding, a potentially 
dangerous occurrence in which large numbers of animals succumb to mass 
panic and rush away from a stimulus. These situations are particularly 
injurious when: (1) Animals fall when entering the water at high-relief 
locations; (2) there is extended separation of mothers and pups; and 
(3) crushing of pups by large males occurs during a stampede. However, 
NMFS does not expect any of these scenarios to occur at NWSR as the 
proposed action occurs outside of the pupping/breeding season, no 
mother/pup pairs are expected to be at the Station, there are no cliffs 
on NWSR, and previous monitoring has not recorded stampeding events 
during prior authorizations. The haulout sites at NWSR consist of 
ridges with unimpeded and non-obstructive access to the water. If 
disturbed, the small number of hauled out adult animals may move toward 
the water without risk of encountering barriers or hazards that would 
otherwise prevent them from leaving the area or increase injury 
potential. Moreover, the proposed area would not be crowded with large 
numbers of Steller sea lions, further eliminating the possibility of 
potentially injurious mass movements of animals attempting to vacate 
the haulout. Thus, in this case, NMFS considers the risk of injury, 
serious injury, or death to hauled out animals as extremely low.

Stress Responses

    An animal's perception of a threat may be sufficient to trigger 
stress responses consisting of some combination of behavioral 
responses, autonomic nervous system responses, neuroendocrine 
responses, or immune responses (e.g., Seyle, 1950; Moberg, 2000). In 
many cases, an animal's first and sometimes most economical (in terms 
of energetic costs) response is behavioral avoidance of the potential 
stressor. Autonomic nervous system responses to stress typically 
involve changes in heart rate, blood pressure, and gastrointestinal 
activity. These responses have a relatively short duration and may or 
may not have a significant long-term effect on an animal's fitness.
    Neuroendocrine stress responses often involve the hypothalamus-
pituitary-adrenal system. Virtually all neuroendocrine functions that 
are affected by stress--including immune competence, reproduction, 
metabolism, and behavior--are regulated by pituitary hormones. Stress-
induced changes in the secretion of pituitary hormones have been 
implicated in failed reproduction, altered metabolism, reduced immune 
competence, and behavioral disturbance (e.g., Moberg, 1987; Blecha, 
2000). Increases in the circulation of glucocorticoids are also equated 
with stress (Romano et al., 2004).
    The primary distinction between stress (which is adaptive and does 
not normally place an animal at risk) and ``distress'' is the cost of 
the response. During a stress response, an animal uses glycogen stores 
that can be quickly replenished once the stress is alleviated. In such 
circumstances, the cost of the stress response would not pose serious 
fitness consequences. However, when an animal does not have sufficient 
energy reserves to satisfy the energetic costs of a stress response, 
energy resources must be diverted from other functions. This state of 
distress will last until the animal replenishes its energetic reserves 
sufficient to restore normal function.
    Relationships between these physiological mechanisms, animal 
behavior, and the costs of stress responses are well-studied through 
controlled experiments and for both laboratory and free-ranging animals 
(e.g., Holberton et al., 1996; Hood et al., 1998; Jessop et al., 2003; 
Krausman et al., 2004; Lankford et al., 2005). Stress responses due to 
exposure to anthropogenic sounds or other stressors and their effects 
on marine mammals have also been reviewed (Fair and Becker, 2000; 
Romano et al., 2002b)

[[Page 50313]]

and, more rarely, studied in wild populations (e.g., Romano et al., 
2002a). For example, Rolland et al. (2012) found that noise reduction 
from reduced ship traffic in the Bay of Fundy was associated with 
decreased stress in North Atlantic right whales. These and other 
studies lead to a reasonable expectation that some marine mammals will 
experience physiological stress responses upon exposure to acoustic 
stressors and that it is possible that some of these would be 
classified as ``distress.'' In addition, any animal experiencing TTS 
would likely also experience stress responses (NRC, 2003), however 
distress is an unlikely result of this project based on observations of 
marine mammals during previous projects in the area.

Auditory Masking

    Sound can disrupt behavior through masking, or interfering with, an 
animal's ability to detect, recognize, or discriminate between acoustic 
signals of interest (e.g., those used for intraspecific communication 
and social interactions, prey detection, predator avoidance, 
navigation) (Richardson et al., 1995; Erbe et al., 2016). Masking 
occurs when the receipt of a sound is interfered with by another 
coincident sound at similar frequencies and at similar or higher 
intensity, and may occur whether the sound is natural (e.g., snapping 
shrimp, wind, waves, precipitation) or anthropogenic (e.g., shipping, 
aircraft, sonar) in origin. The ability of a noise source to mask 
biologically important sounds depends on the characteristics of both 
the noise source and the signal of interest (e.g., signal-to-noise 
ratio, temporal variability, direction), in relation to each other and 
to an animal's hearing abilities (e.g., sensitivity, frequency range, 
critical ratios, frequency discrimination, directional discrimination, 
age or TTS hearing loss), and existing ambient noise and propagation 
conditions.
    Under certain circumstances, marine mammals experiencing 
significant masking could also be impaired from maximizing their 
performance fitness in survival and reproduction. Therefore, when the 
coincident (masking) sound is man-made, it may be considered harassment 
when disrupting or altering critical behaviors. It is important to 
distinguish TTS and PTS, which persist after the sound exposure, from 
masking, which occurs during the sound exposure. Because masking 
(without resulting in TS) is not associated with abnormal physiological 
function, it is not considered a physiological effect, but rather a 
potential behavioral effect.
    The frequency range of the potentially masking sound is important 
in determining any potential behavioral impacts. For example, low-
frequency signals may have less effect on high-frequency echolocation 
sounds produced by odontocetes but are more likely to affect detection 
of mysticete communication calls and other potentially important 
natural sounds such as those produced by surf and some prey species. 
The masking of communication signals by anthropogenic noise may be 
considered as a reduction in the communication space of animals (e.g., 
Clark et al., 2009) and may result in energetic or other costs as 
animals change their vocalization behavior (e.g., Miller et al., 2000; 
Foote et al., 2004; Parks et al., 2007; Di Iorio and Clark, 2009; Holt 
et al., 2009). Masking can be reduced in situations where the signal 
and noise come from different directions (Richardson et al., 1995), 
through amplitude modulation of the signal, or through other 
compensatory behaviors (Houser and Moore, 2014). Masking can be tested 
directly in captive species (e.g., Erbe, 2008), but in wild populations 
it must be either modeled or inferred from evidence of masking 
compensation. There are few studies addressing real-world masking 
sounds likely to be experienced by marine mammals in the wild (e.g., 
Branstetter et al., 2013).
    Masking affects both senders and receivers of acoustic signals and 
can potentially have long-term chronic effects on marine mammals at the 
population level as well as at the individual level. All anthropogenic 
sound sources, but especially chronic and lower-frequency signals 
(e.g., from vessel traffic), contribute to elevated ambient sound 
levels, thus intensifying masking.

Anticipated Effects on Marine Mammal Habitat

    The only direct habitat modification associated with the proposed 
activity is the restoration of the existing light station structures. 
Indirect effects of the activities on nearby feeding or haulout habitat 
are not expected. Increased noise levels are not likely to affect 
acoustic habitat or adversely affect marine mammal prey in the vicinity 
of the project area because source levels are low, transient, well away 
from the water, and do not readily transmit into the water. The Society 
would remove all waste, discarded materials and equipment from the 
island after each visit. Thus, NMFS does not expect that the proposed 
activity would have any effects on marine mammal habitat and NMFS 
expects that there will be no long- or short-term physical impacts to 
pinniped habitat on NWSR.

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization through this rulemaking, 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 helicopter operations and lighthouse 
maintenance activities. Based on the nature of the activity, Level A 
harassment is neither anticipated nor proposed to be authorized. As 
discussed earlier, behavioral (Level B) harassment is limited to 
movement and flushing, defined by the disturbance scale of pinniped 
responses to in-air sources to determine take (Table 2). Furthermore, 
no mortality is anticipated or proposed to be authorized for this 
activity. Below we describe how the take is estimated.

Marine Mammal Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.
    The Society's monitoring efforts reported zero marine mammals 
present on NWSR, in 2010. Furthermore, operations were not conducted in 
the years 2013 through 2016; thus, monitoring was not conducted. No 
visits occurred in 2020. Visits have occurred in all other years since 
2010.
    Steller sea lions were first reported during restoration trips 
conducted in April (9) and November (350, with a maximum of 155/day) of 
2011 (St. George Reef Lighthouse Preservation Society (SGRLPS) 2011). 
Zero observations of Steller sea lions were reported during the one 
2012 restoration trip and three 2017 trips conducted

[[Page 50314]]

(SGRLPS 2012, 2018). Four trips were conducted in 2018 (February, 
March, April, and November); only the November session reported any 
individuals (three) on site (SGRLPS 2018). One restoration trip was 
conducted in November 2019 and had 22 Steller sea lions present (SGRLPS 
2020). In the event of an emergency trip to the lighthouse for repairs 
in summer, or if deed restrictions are changed, more Steller sea lions 
may be present in June and July (up to 350-400 animals based on CCR 
(2001)).
    The maximum number of California sea lions present per day (160) 
was observed during the November 2011 trip. The April and November 2011 
trip maximums were 2 and 430 individuals, respectively (SGRLPS 2011). 
Zero California sea lions were reported during the March 2012 trip 
(SGRLPS 2012). In 2017, the Society reported 16 and zero California sea 
lions during March and April trips, and 16 during a November trip for a 
landing zone inspection (SGRLPS 2017). Observations for the 2018 season 
totaled 40 individuals among its four trips (SGRLPS 2018). Eighteen 
California sea lions were reported during the November 2019 trip with a 
maximum of 10 per day (SGRLPS 2020). Should deed restrictions be 
altered to allow access during summer months, numbers could be somewhat 
higher based on the data in CCR (2001).
    Northern fur seals have not been observed during any of the 
Society's work from 2010 through 2019 (SGRLPS 2010; 2011; 2012; 2017; 
2018; 2020).
    The Society first reported 2 Pacific harbor seals on site during 
the March 2012 restoration trip (SGRLPS 2012). Zero harbor seals were 
reported during the 2017, 2018, or 2019 work seasons (SGRLPS 2017; 
2018; 2020).

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate. The monitoring 
observations described above serve as the underpinnings of the take 
estimate calculation used to determine 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 species = maximum number of observations/day during 
prior monitoring * number of proposed operations days

    Based on the Society's previous monitoring reports, the maximum 
number of observations per day for each species is: Steller sea lions 
155, California sea lions 160, and Pacific harbor seals 2. No Northern 
fur seals have been seen in prior project monitoring but one was 
observed during the survey work for this project by CCR (2001), so we 
use one for these calculations.
    As discussed above, The Society is proposing no more than 70 flight 
days per year. This is an optimistic estimate that far exceeds prior 
efforts, but given adequate funding there is the need for extensive 
restoration work to the Station so the Society requested consideration 
of the additional days of work in the take estimate. Therefore NMFS 
estimates that approximately 10,850 Steller sea lions (calculated by 
multiplying the maximum single-day count of Steller sea lions that 
could be present (155) by 70 days of activities), 11,200 California sea 
lions, 140 Pacific harbor seals, and 70 Northern fur seals could be 
potentially taken by Level B behavioral harassment annually over the 
course of this rulemaking (Table 3). NMFS bases these estimates of the 
numbers of marine mammals that might be affected on consideration of 
the number of marine mammals that could be on NWSR in a worst case 
scenario based on prior monitoring. Should deed restrictions be altered 
to allow access during summer months, numbers of California sea lions 
and Steller's sea lions could be somewhat higher during a couple of 
those months based on the data in CCR (2001). Given these increases are 
limited in duration, only a fraction of the potential flight days could 
occur in summer, and the conservative nature of the maximum daily 
counts relative to the average observed animal counts from prior 
monitoring discussed above, we believe the proposed take estimates are 
adequately precautionary.

       Table 3--Proposed Annual Level B Harassment Take Calculations and Percentage of Each Stock Affected
----------------------------------------------------------------------------------------------------------------
                                                                      Days of
                     Species                      Maximum number     proposed      Proposed take    Percent of
                                                      per day        activity                          stock
----------------------------------------------------------------------------------------------------------------
California sea lion.............................             160              70          11,200             4.3
Steller sea lion................................             155              70          10,580            25.1
Pacific harbor seal.............................               2              70             140             0.5
Northern fur seal...............................               1              70              70             0.5
----------------------------------------------------------------------------------------------------------------

Proposed Mitigation

    In order to promulgate regulations and issue LOAs under Section 
101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods 
of taking pursuant to such activity, and other means of effecting the 
least practicable impact on such 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 does not have a regulatory definition for ``least 
practicable adverse impact.'' 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;

[[Page 50315]]

    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost and impact on 
operations.
    The mitigation strategies described below largely follow those 
required and successfully implemented under previous incidental take 
authorizations issued in association with this project.
    The following mitigation measures are proposed:
     No more than six flight days (up to two work trips) per 
month;
     Avoid direct physical interaction with marine mammals 
during activity. If a marine mammal comes within 10 m of such activity, 
operations must cease until the animal leaves of its own accord;
     Conduct training between construction supervisors and 
crews and tourists and the marine mammal monitoring team and relevant 
Society staff prior to the start of all visits and when new personnel 
join the work, so that responsibilities, communication procedures, 
monitoring protocols, and operational procedures are clearly 
understood. Visitors to the Station will be instructed to avoid 
unnecessary noise and not expose themselves visually to pinnipeds 
around the base of the lighthouse;
     Halt loud outside activity upon observation on NWSR of 
either a species for which incidental take is not authorized or a 
species for which incidental take has been authorized but the 
authorized number of takes has been met;
     Keep the door to the lower platform closed and barricaded 
to all tourists and other personnel. The door will only be opened when 
necessary and at a time when no animals are present on the lower 
platform;
     Ensure that helicopter approach patterns to the NWSR shall 
be such that the timing and techniques are least disturbing to marine 
mammals. To the extent possible, the helicopter should approach NWSR 
when the tide is too high for marine mammals to haul out on NWSR. Avoid 
rapid and direct approaches by the helicopter to the station by 
approaching NWSR at a relatively high altitude (e.g., 800-1,000 ft; 
244-305 m). Before the final approach, the helicopter shall circle 
lower, and approach from an area where the density of pinnipeds is the 
lowest. If for any safety reasons (e.g., wind conditions or visibility) 
such helicopter approach and timing techniques cannot be achieved, the 
Society must abort the restoration and maintenance session for the day;
     Employ a protected species observer (PSO) and establish 
monitoring locations as described in the application and Section 5 of 
any LOA. The Holder must monitor the project area to the maximum extent 
possible based on the required number of PSOs, required monitoring 
locations, and environmental conditions. For all helicopter flights at 
least one PSO must be used; and
     Monitoring must take place for all take-offs and landings.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures provide the means 
effecting the least practicable impact on the affected species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Proposed Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
proposed action area. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density).
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas).
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors.
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks.
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat).
     Mitigation and monitoring effectiveness.

Visual Monitoring

     Monitoring must be conducted by qualified, NMFS-approved 
PSOs, in accordance with the following: PSOs must be independent and 
have no other assigned tasks during monitoring periods. At least one 
PSO must have prior experience performing the duties of a PSO. Other 
PSOs may substitute other relevant experience, education (degree in 
biological science or related field), or training. PSOs resumes must be 
approved by NMFS prior to beginning any activity subject to these 
regulations.
     PSOs must record all observations of marine mammals as 
described in Section 5 of any LOA, regardless of distance from the 
activity. PSOs shall document any behavioral reactions in concert with 
distance from the activity.
    PSOs must have the following additional qualifications:
     Ability to conduct field observations and collect data 
according to assigned protocols;
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates, times, and reason for implementation 
of mitigation (or why mitigation was not implemented when required); 
and marine mammal behavior;
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary;
     The Society must establish the following monitoring 
locations. For the first flight of the day a PSO with high definition 
camera will be on the first flight to the station. During all other

[[Page 50316]]

takeoffs and landings a PSO will be stationed on the platform of the 
lantern room gallery or on the last departing helicopter;
     Aerial photo coverage of the island will be completed by 
an observer using a high definition camera. Photographs of all marine 
mammals hauled out on the island will be taken at an altitude greater 
than 300 meters. Photographs of marine mammals present at the last 
flight of the day will be taken from the helicopter or from the lantern 
room gallery platform just before the last flight; and
     The Society and/or its designees must forward the 
photographs to a biologist capable of discerning marine mammal species 
if one is not present on the trip. The Society must provide the data to 
NMFS in the form of a report with a data table, any other significant 
observations related to marine mammals, and a report of restoration 
activities. The Society must make available the original photographs to 
NMFS or to other marine mammal experts for inspection and further 
analysis.

Reporting

    A draft marine mammal monitoring report will be submitted to NMFS 
within 90 days after the completion of each activity period, or 60 days 
prior to a requested date of issuance of any future LOAs for projects 
at the same location, whichever comes first. For the first year of the 
activities, at least, the reports will be submitted quarterly; 
following submission of the first three quarterly reports, NMFS will 
evaluate whether it is appropriate to modify subsequent annual LOAs 
require annual reports, based on whether the information provided in 
the first three quarterly reports adequately complies with the 
requirement. The report will include an overall description of work 
completed, a narrative regarding marine mammal sightings, and 
associated PSO data sheets. Specifically, the report must include:
     Dates and times (begin and end) of all marine mammal 
monitoring.
     Activities occurring during each daily observation period.
     PSO locations during marine mammal monitoring.
     Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including Beaufort sea state and any other relevant 
weather conditions including cloud cover, fog, sun glare, and overall 
visibility to the horizon, and estimated observable distance.
     Upon each flight, the following information will be 
reported: Name of PSO who sighted the animal(s) and PSO location and 
activity at time of sighting; time of sighting; identification of the 
animal(s) (e.g., genus/species, lowest possible taxonomic level, or 
unidentified), PSO confidence in identification, and the composition of 
the group if there is a mix of species; distance and bearing of the 
nearest marine mammal observed relative to the activity for each 
flight; estimated number of animals (min/max/best estimate); estimated 
number of animals by cohort (adults, juveniles, neonates, group 
composition, etc.); animal's closest point of approach to activity; and 
description of any marine mammal behavioral observations (e.g., 
observed behaviors such as feeding or traveling), including an 
assessment of behavioral responses thought to have resulted from the 
activity (e.g., no response or changes in behavioral state such as 
ceasing feeding, changing direction, flushing) using pinniped 
disturbance scale (Table 2).
     Number of marine mammals detected, by species.
     Detailed information about any implementation of any 
mitigation triggered, a description of specific actions that ensued, 
and resulting changes in behavior of the animal(s), if any.
    If no comments are received from NMFS within 30 days, the draft 
final report will constitute the final report. If comments are 
received, a final report addressing NMFS comments must be submitted 
within 30 days after receipt of comments.

Reporting Injured or Dead Marine Mammals

    In the event that personnel involved in the activities discover an 
injured or dead marine mammal, the LOA-holder must immediately cease 
the specified activities and report the incident to the Office of 
Protected Resources (OPR) ([email protected]), NMFS and 
to West Coast Regional Stranding Coordinator as soon as feasible. If 
the death or injury was clearly caused by the specified activity, the 
Society must immediately cease the 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 and regulations. The LOA-holder must not resume their 
activities until notified by NMFS. The report must include the 
following information:
     Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
     Species identification (if known) or description of the 
animal(s) involved;
     Condition of the animal(s) (including carcass condition if 
the animal is dead);
     Observed behaviors of the animal(s), if alive;
     If available, photographs or video footage of the 
animal(s); and
     General circumstances under which the animal was 
discovered.

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).
    Activities associated with the restoration, light maintenance and 
tour projects, as described previously, have the potential to disturb 
or displace marine mammals. Specifically, the specified activities may 
result in take, in the form of Level B harassment (behavioral 
disturbance) from in-air sounds and visual disturbance. Potential takes 
could occur if individual marine mammals are present nearby when 
activity is happening.

[[Page 50317]]

    No serious injury or mortality would be expected even in the 
absence of the proposed mitigation measures. For all species, no Level 
A harassment is anticipated given the nature of the activities, i.e., 
much of the anticipated activity would involve noises below thresholds 
and visual disturbance from tens of meters away, and measures designed 
to minimize the possibility of injury. The potential for injury is 
small for pinnipeds, and is expected to be essentially eliminated 
through implementation of the planned mitigation measures.
    Effects on individuals that are taken by Level B harassment, on the 
basis of reports in the literature as well as monitoring from other 
similar activities, will likely be limited to reactions such as alerts 
or movements away from the lighthouse structure. Most likely, 
individuals will simply move away from the sound source and be 
temporarily displaced from the areas.
    Reporting from prior years of these activities has similarly 
reported no apparently consequential behavioral reactions or long-term 
effects on marine mammal populations as noted above. Repeated exposures 
of individuals to relatively low levels of sound and visual disturbance 
outside of preferred habitat areas are unlikely to significantly 
disrupt critical behaviors. Thus, even repeated Level B harassment of 
some small subset of the overall stock is unlikely to result in any 
significant realized decrease in viability for the affected 
individuals, and thus would not result in any adverse impact to the 
stock as a whole. Level B harassment will be reduced to the level of 
least practicable adverse impact through use of mitigation measures 
described herein and, if sound and visual disturbance produced by 
project activities is sufficiently disturbing, animals are likely to 
simply avoid the area while the activity is occurring.
    In combination, we believe that these factors, as well as the 
available body of evidence from other similar activities, demonstrate 
that the potential effects of the specified activities will have only 
minor, short-term effects on individuals. The specified activities are 
not expected to impact rates of recruitment or survival and will 
therefore not result in population-level impacts.
    In summary and as described above, the following factors primarily 
support our preliminary determination that the impacts resulting from 
this activity are not expected to adversely affect the species or stock 
through effects on annual rates of recruitment or survival:
     No mortality is anticipated or authorized.
     No important habitat areas have been identified within the 
project area.
     For all species, NWSR is a very small and peripheral part 
of their range.
     Monitoring reports from prior activities at the site have 
documented little to no effect on individuals of the same species 
impacted by the specified activities.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed activity will have a negligible impact on 
all affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Sections 101(a)(5)(A) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, where estimated numbers are 
available, NMFS compares the number of individuals taken to the most 
appropriate estimation of abundance of the relevant species or stock in 
our determination of whether an authorization is limited to small 
numbers of marine mammals. When the predicted number of individuals to 
be taken is fewer than one third of the species or stock abundance, the 
take is considered to be of small numbers. Additionally, other 
qualitative factors may be considered in the analysis, such as the 
temporal or spatial scale of the activities.
    The amount of take NMFS proposes to authorize is below one third of 
the estimated stock abundance of all species (in fact, take of 
individuals is less than 10 percent of the abundance of all of the 
affected stocks except Steller sea lions, see Table 3). This is likely 
a conservative estimate because they assume all takes are of different 
individual animals which is likely not the case, especially within 
individual trips. Many individuals seen within a single multi-day trip 
are likely to be the same across consecutive days, but PSOs would count 
them as separate takes across days.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals will be taken relative to the population size 
of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
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 
Society lighthouse repair and tour operation activities would contain 
an adaptive management component.
    The reporting requirements associated with this proposed rule are 
designed to provide NMFS with monitoring data from the prior year(s) 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 the Society 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. Additionally, 
monitoring or reporting measures may be modified if appropriate and, in 
this case, the rule specifies quarterly monitoring and reporting 
requirements for the first year, which may subsequently be modified to 
annual requirements, based on NMFS evaluation of the first three 
reports.
    The following are some of the possible sources of applicable data 
to be considered through the adaptive management process: (1) Results 
from monitoring reports, as required by MMPA authorizations; (2) 
results from general marine mammal and sound research; and (3) any 
information which reveals that marine mammals may have been taken in a 
manner, extent, or number not authorized by these regulations or 
subsequent LOAs.

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. To ensure

[[Page 50318]]

ESA compliance for the issuance of IHAs, NMFS consults internally 
whenever we propose to authorize take for endangered or threatened 
species, in this case with the West Coast Regional Protected Resources 
Division Office.
    No incidental take of ESA-listed species is proposed for 
authorization or expected to result from this activity. Therefore, NMFS 
has determined that formal consultation under section 7 of the ESA is 
not required for this action.

Request for Information

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning the Society's request and the proposed 
regulations (see ADDRESSES). All comments will be reviewed and 
evaluated as we prepare a final rule and make final determinations on 
whether to issue the requested authorization. This notification and 
referenced documents provide all environmental information relating to 
our proposed action for public review.

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
proposed rule is not significant.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The Society, a 501(c)(3) non-profit whose mission is to preserve the 
St. George Reef lighthouse, is the sole entity that would be subject to 
the requirements in these proposed regulations, and the Society is not 
a small governmental jurisdiction, small organization, or small 
business, as defined by the RFA. Because of this certification, a 
regulatory flexibility analysis is not required and none has been 
prepared.
    This proposed rule contains a collection-of-information requirement 
subject to the provisions of the Paperwork Reduction Act. 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: August 31, 2021.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set forth in the preamble, 50 CFR part 217 is proposed 
to be amended as follows:

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

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

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

0
2. Add subpart F to part 217 to read as follows:
Subpart F--Taking Marine Mammals Incidental to Lighthouse Repair and 
Tour Operations at Northwest Seal Rock, California
Sec.
217.50 Specified activity and specified geographical region.
217.51 Effective dates.
217.52 Permissible methods of taking.
217.53 Prohibitions.
217.54 Mitigation requirements.
217.55 Requirements for monitoring and reporting.
217.56 Letters of Authorization.
217.57 Renewals and modifications of Letters of Authorization.
217.58 [Reserved]
217.59 [Reserved]

Subpart F--Taking Marine Mammals Incidental to Lighthouse Repair 
and Tour Operations at Northwest Seal Rock, California


Sec.  217.50   Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the St. George Reef 
Lighthouse Preservation Society (Society) 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 occurs incidental to lighthouse repair and tour 
operation activities.
    (b) The taking of marine mammals by the Society may be authorized 
in a Letter of Authorization (LOA) only if it occurs within Pacific 
Ocean waters in the vicinity of Northwest Seal Rock near Crescent City, 
California.


Sec.  217.51   Effective dates.

    Regulations in this subpart are effective from [EFFECTIVE DATE OF 
FINAL RULE] through [DATE 5 YEARS AFTER EFFECTIVE DATE OF FINAL RULE].


Sec.  217.52   Permissible methods of taking.

    Under LOAs issued pursuant to Sec. Sec.  216.106 of this chapter 
and 217.56, the Holder of the LOA (hereinafter ``Society'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  217.50(b) by Level B harassment associated with 
lighthouse repair and tour operation activities, provided the activity 
is in compliance with all terms, conditions, and requirements of the 
regulations in this subpart and the appropriate LOA.


Sec.  217.53   Prohibitions.

    Except for taking authorized by a LOA issued under Sec. Sec.  
216.106 of this chapter and 217.56, it shall be unlawful for any person 
to do any of the following in connection with the activities described 
in Sec.  217.50 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 217.56;
    (b) Take any marine mammal not specified in such LOAs;
    (c) Take any marine mammal specified in such LOAs in any manner 
other than as specified;
    (d) Take a marine mammal specified in such LOAs 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 LOAs 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.  217.54   Mitigation requirements.

    When conducting the activities identified in Sec.  217.50(a), the 
mitigation measures contained in any LOA issued under Sec. Sec.  
216.106 of this chapter and 217.56 must be implemented. These 
mitigation measures shall include but are not limited to:
    (a) General conditions. (1) A copy of any issued LOA must be in the 
possession of the Society, supervisory personnel, pilot, protected 
species observers (PSOs), and any other relevant designees of the 
Holder operating under the authority of this LOA at all times that 
activities subject to this LOA are being conducted.
    (2) The Society shall conduct training between supervisors and 
crews and the marine mammal monitoring team and relevant Society staff 
prior to the start of all trips and when new personnel join the work, 
so that responsibilities, communication procedures, monitoring 
protocols, and operational procedures are clearly understood. Visitors 
to the Station will be instructed to avoid

[[Page 50319]]

unnecessary noise and not expose themselves visually to pinnipeds 
around the base of the lighthouse.
    (3) Avoid direct physical interaction with marine mammals during 
activity. If a marine mammal comes within 10 m of such activity, 
operations must cease until the animal leaves of its own accord.
    (4) Loud outside activity must be halted upon observation on 
Northwest Seal Rock (NWSR) of either a species for which incidental 
take is not authorized or a species for which incidental take has been 
authorized but the authorized number of takes has been met.
    (5) No more than two restoration trips, or 6 days of flight 
operations, are permitted per month.
    (b) Protocols. (1) The door to the lower platform will remain 
closed and barricaded to all tourists and other personnel. The door 
will only be opened when necessary and at a time when no animals are 
present on the lower platform.
    (2) The pilot will ensure that helicopter approach patterns to the 
NWSR shall be such that the timing and techniques are least disturbing 
to marine mammals. To the extent possible, the helicopter should 
approach NWSR when the tide is too high for marine mammals to haul out 
on NWSR. Avoid rapid and direct approaches by the helicopter to the 
station by approaching NWSR at a relatively high altitude (e.g., 800-
1,000 ft; 244-305 m). Before the final approach, the helicopter shall 
circle lower, and approach from an area where the density of pinnipeds 
is the lowest. If for any safety reasons (e.g., wind conditions or 
visibility) such helicopter approach and timing techniques cannot be 
achieved, the Society must abort the restoration and maintenance 
session for the day.
    (3) Monitoring shall be conducted by a trained PSO, who shall have 
no other assigned tasks during monitoring periods. Trained PSOs shall 
be placed at the best vantage point(s) practicable to monitor for 
marine mammals and implement mitigation procedures when applicable. The 
Society shall adhere to the following additional PSO qualifications:
    (i) Independent PSOs are required;
    (ii) At least one PSO must have prior experience working as an 
observer;
    (iii) Other observers may substitute education (degree in 
biological science or related field) or training for experience; and
    (iv) The Society shall submit PSO resumes for approval by NMFS 
prior to beginning any activity subject to these regulations.
    (4) The PSO must monitor the project area to the maximum extent 
possible based on the required monitoring locations and environmental 
conditions. They must record all observations of marine mammals as 
described in Section 5 of any LOA, regardless of distance from the 
activity. Monitoring must take place for all take-offs and landings.


Sec.  217.55   Requirements for monitoring and reporting.

    (a) PSOs shall document any behavioral reactions in concert with 
distance from any project activity.
    (b) Reporting--(1) Reporting frequency. (i) The Society shall 
submit a quarterly summary report to NMFS not later than 90 days 
following the end of each work quarter; after the first three quarterly 
submissions, NMFS will evaluate whether it is appropriate to modify to 
annual reports, and modify future LOAs as appropriate to indicate 
annual reporting requirements if so. The Society shall provide a final 
report within 30 days following resolution of comments on each draft 
report.
    (ii) These reports shall contain, at minimum, the following:
    (A) Dates and times (begin and end) of all marine mammal 
monitoring;
    (B) Activities occurring during each daily observation period;
    (C) PSO locations during marine mammal monitoring;
    (D) Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including Beaufort sea state and any other relevant 
weather conditions including cloud cover, fog, sun glare, and overall 
visibility to the horizon, and estimated observable distance;
    (E) Upon each flight, the following information: Name of PSO who 
sighted the animal(s) and PSO location and activity at time of 
sighting; time of sighting; identification of the animal(s) (e.g., 
genus/species, lowest possible taxonomic level, or unidentified), PSO 
confidence in identification, and the composition of the group if there 
is a mix of species; distance and bearing of each marine mammal 
observed relative to the activity for each flight; estimated number of 
animals (min/max/best estimate); estimated number of animals by cohort 
(adults, juveniles, neonates, group composition, etc.); animal's 
closest point of approach and estimated time spent within the 
harassment zone; and description of any marine mammal behavioral 
observations (e.g., observed behaviors such as feeding or traveling), 
including an assessment of behavioral responses thought to have 
resulted from the activity (e.g., no response or changes in behavioral 
state such as ceasing feeding, changing direction, flushing, or 
breaching);
    (F) Number of marine mammals detected, by species; and
    (G) Detailed information about any implementation of any mitigation 
triggered, a description of specific actions that ensued, and resulting 
changes in behavior of the animal(s), if any.
    (2) The Society shall submit a comprehensive summary report to NMFS 
not later than 90 days following the conclusion of marine mammal 
monitoring efforts described in this subpart.
    (c) Reporting of injured or dead marine mammals. (1) In the event 
that personnel involved in the construction activities discover an 
injured or dead marine mammal, the LOA-holder must immediately cease 
the specified activities and report the incident to the Office of 
Protected Resources (OPR) ([email protected]), NMFS and 
to West Coast Regional Stranding Coordinator as soon as feasible. If 
the death or injury was clearly caused by activities specified at Sec.  
217.50, the Society must immediately cease the 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 these regulations and LOAs. The LOA-holder 
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.
    (2) [Reserved]


Sec.  217.56   Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the Society 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, the

[[Page 50320]]

Society 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, the Society must 
apply for and obtain a modification of the LOA as described in Sec.  
217.207.
    (e) The LOA shall set forth:
    (1) Permissible methods 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 30 days of a determination.


Sec.  217.57   Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec. Sec.  216.106 of this chapter and 
217.206 for the activity identified in Sec.  217.200(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 determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For LOA modification or renewal requests by the applicant that 
include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in paragraph (c)(1) of this section) that do not change the 
findings made for the regulations or result in no more than a minor 
change in the total estimated number of takes (or distribution by 
species or years), NMFS 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 
217.206 for the activity identified in Sec.  217.200(a) may be modified 
by NMFS under the following circumstances:
    (1) Adaptive management. NMFS may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting with the Society regarding the practicability of the 
modifications) if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of the mitigation and monitoring 
set forth in the preamble for these regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from the Society's monitoring from the previous 
year(s).
    (B) Results from other marine mammal and/or sound or disturbance 
research or studies.
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
will publish a notice of proposed LOA in the Federal Register and 
solicit public comment.
    (2) Emergencies. If NMFS 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 217.206, an LOA may be modified without prior 
notice or opportunity for public comment. Notice would be published in 
the Federal Register within 30 days of the action.


Sec. Sec.  217.58-217.59   [Reserved]

[FR Doc. 2021-19124 Filed 9-7-21; 8:45 am]
BILLING CODE 3510-22-P