Take of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Rocky Intertidal Monitoring Surveys Along the Oregon and California Coasts, 13322-13337 [2025-04806]

Download as PDF 13322 Federal Register / Vol. 90, No. 54 / Friday, March 21, 2025 / Proposed Rules subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act (NTTAA) This rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: March 11, 2025. Cheree D. Peterson, Acting Regional Administrator, Region IX. [FR Doc. 2025–04791 Filed 3–20–25; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 217 [Docket No. 250317–0040] RIN 0648–BN36 Take of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Rocky Intertidal Monitoring Surveys Along the Oregon and California Coasts National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. AGENCY: NMFS has received a request from University of California Santa Cruz (UCSC) for Incidental Take Regulations (ITR) and an associated Letter of Authorization (LOA) pursuant to the Marine Mammal Protection Act (MMPA). The requested regulations would govern the authorization of take of marine mammals over 5 years (2025– 2030) incidental to the Multi-Agency Rocky Intertidal Network (MARINe) khammond on DSK9W7S144PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 16:10 Mar 20, 2025 Jkt 265001 rocky intertidal monitoring surveys along the Oregon and California coasts. NMFS requests public comments on this proposed rule. NMFS will consider public comments prior to making any final decision on the promulgation of the requested ITR and issuance of the LOA. Comments and information must be received no later than April 21, 2025. ADDRESSES: A plain language summary of this proposed rule is available at: https://www.regulations.gov/docket/ NOAA-NMFS-2024-0144. • Electronic submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to: https://www.regulations.gov and enter NOAA–NMFS–2024–0144 in the Search box (note: copying and pasting the FDMS Docket Number directly from this document may not yield search results). 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 at: https://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). A copy of UCSC/MARINe’s complete submitted application (Application), 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/action/ incidental-take-authorizationuniversity-california-santa-cruzs-rockyintertidal-monitoring. In case of problems accessing these documents, please call the contact listed below (see FOR FURTHER INFORMATION CONTACT). FOR FURTHER INFORMATION CONTACT: Jennifer Gatzke, Office of Protected Resources, NMFS, (301) 427–8401. SUPPLEMENTARY INFORMATION: DATES: Purpose and Need for Regulatory Action This proposed rule, if adopted, would establish a framework under the authority of the MMPA (16 U.S.C. 1361 et seq.) to authorize, for a 5-year period (2025–2030), take of marine mammals incidental to the UCSC/MARINe’s rocky PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 intertidal research activities in Oregon and California. NMFS received an incidental take authorization (ITA) application from the UCSC/MARINe requesting 5-year regulations and an LOA to take four species of marine mammals by Level B harassment (Application). Take of harbor seal (Phoca vitulina richardii), Steller sea lion (Eumetopias jubatus), northern elephant seal (Mirounga angustirostris), and California sea lion (Zalophus californianus) would occur by Level B harassment only, incidental to visual and auditory disturbance of pinnipeds occurring near research sites. No mortality or serious injury is anticipated or proposed for authorization. Please see the Estimated Take of Marine Mammals section below for definitions of harassment. A previous incidental take authorization was issued in association with this ongoing, long-term project. That authorization was issued to the UCSC Partnership for Interdisciplinary Studies of Coastal Oceans (referred to as UCSC/PISCO). Additional information about that action can be found at: https://www.fisheries.noaa.gov/action/ incidental-take-authorizationuniversity-california-santa-cruz-rockyintertidal-monitoring-0. Legal Authority for the Proposed Action The MMPA prohibits the ‘‘take’’ of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made, regulations are promulgated, and public notice and an opportunity for public comment are provided. 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. NMFS will pay particular attention to (1) rookeries, mating grounds, and areas of similar significance, (2) the availability of the species or stocks for taking for certain subsistence uses (referred to as ‘‘mitigation’’), and (3) the requirements E:\FR\FM\21MRP1.SGM 21MRP1 Federal Register / Vol. 90, No. 54 / Friday, March 21, 2025 / Proposed Rules pertaining to the mitigation, monitoring and reporting of the takings are set forth. The definitions of all applicable MMPA statutory terms cited above are included below. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I, provide the legal basis for proposing and, if appropriate, issuing 5-year regulations and an associated LOA. This proposed rule, if adopted, would establish required mitigation, monitoring, and reporting requirements for the UCSC/MARINe’s activities. khammond on DSK9W7S144PROD with PROPOSALS Summary of Major Provisions Within the Proposed Rule The following is a summary of the major provisions of this proposed rule regarding UCSC/MARINe’s research activities. These provisions include measures requiring: • Mitigation to minimize impact to pinnipeds and avoid disruption to dependent pups including several measures to approach haulouts cautiously to minimize disturbance, especially when pups are present; and • Monitoring of the research areas to detect the presence of marine mammals before initiating surveys. 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 evaluate the proposed action (i.e., promulgation of regulations and subsequent issuance of a 5-year LOA) and alternatives with respect to potential impacts on the human environment. This action is consistent with categories of activities identified in Categorical Exclusion B4 (incidental harassment authorizations (IHAs) with no anticipated serious injury or mortality) of the Companion Manual for 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 issuance of the proposed rule qualifies to be categorically excluded from further NEPA review. Information in the Application and this document 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 VerDate Sep<11>2014 16:10 Mar 20, 2025 Jkt 265001 submitted in response to this notice of proposed rulemaking prior to concluding our NEPA process and prior to making a final decision on the request for incidental take authorization. Summary of UCSC/MARINe Request On September 6, 2024, NMFS received the initial Application requesting authorization for take of four species of marine mammals incidental to rocky intertidal monitoring surveys along the Oregon and California coasts. After the applicant responded to our questions and submitted a revised Application, NMFS determined the Application was adequate and complete on November 26, 2024. On December 5, 2024, we published a notice of receipt of the Application in the Federal Register, requesting comments and information related to the request for 30 days (89 FR 96645). We received no public comments. The UCSC/MARINe requests authorization to take the following four species of pinnipeds: harbor seal (Phoca vitulina richardii), Steller sea lion (Eumetopias jubatus), northern elephant seal (Mirounga angustirostris), and California sea lion (Zalophus californianus) by Level B harassment only. The proposed regulations would be valid for 5 years (2025–2030). Neither UCSC/MARINe nor NMFS expects Level A harassment, serious injury, or mortality to result from this activity and no such take is authorized by this action. NMFS previously issued seven IHAs (77 FR 72327, December 5, 2012; 78 FR 79403, December 30, 2013; 79 FR 73048, December 9, 2014; 81 FR 7319, February 11, 2016; 82 FR 12568, March 6, 2017; 83 FR 11696, March 16, 2018; 84 FR 17784, April 26, 2019) to UCSC/PISCO for this work before issuing a final rule and associated LOA in 2020 (85 FR 18459, April 2, 2020). UCSC/PISCO complied with all the requirements (e.g., mitigation, monitoring, and reporting) of the previous IHAs and LOA. UCSC monitoring results from 2013 to 2024 may be found in the Application, which is available online at: https:// www.fisheries.noaa.gov/action/ incidental-take-authorizationuniversity-california-santa-cruzs-rockyintertidal-monitoring. Description of Proposed Activity Overview UCSC/MARINe proposes to continue rocky intertidal monitoring work that has been ongoing for over 20 years. UCSC/MARINe focuses on understanding the nearshore ecosystems of the U.S. west coast through a number PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 13323 of interdisciplinary collaborations. The program integrates long-term monitoring of ecological and oceanographic processes at dozens of sites with experimental work in the lab and field. Research is conducted throughout the year along the California and Oregon coasts and is expected to continue indefinitely. Researchers accessing and conducting research activities on the sites may occasionally result in the incidental take of four pinniped species by incidental, Level B harassment. UCSC/MARINe expects, and NMFS concurs, that the disturbance to pinnipeds from the research activities will be limited to Level B harassment. Take by Level A harassment, serious injury, or mortality is not authorized by this action. Dates and Duration UCSC/MARINE’s research is conducted throughout the year. Most sites are sampled one to two times per year over a 1 to 2-day period (4–6 hours per site) during a negative low tide series (when tides are lower than the average). Due to the large number of research sites, scheduling constraints, the necessity for negative low tides and favorable weather/ocean conditions, exact survey dates are variable and difficult to predict. Some sampling may occur in all months of the calendar year. Over the course of this 5-year effective period for the proposed rule, UCSC/ MARINe expects approximately 300 days of survey effort. The regulations would become effective as soon as possible and would be effective for a period of five years. Specific Geographic Region Sampling sites occur along the California and Oregon coasts. Community structure monitoring survey sites range from Ecola State Park near Cannon Beach, Oregon to Government Point located northwest of Santa Barbara, California. Biodiversity survey sites extend from Ecola State Park south to Cabrillo National Monument in San Diego County, California. Exact locations of sampling sites can be found in table 1 of the Application, along with maps at: https://www.fisheries. noaa.gov/action/incidental-takeauthorization-university-californiasanta-cruzs-rocky-intertidal-monitoring. Detailed Description of Specific Activity Community structure monitoring surveys involve the use of permanent photoplot quadrats, which target specific algal and invertebrate assemblages (e.g., mussels, rockweeds, barnacles). Each photoplot is photographed and scored for percent E:\FR\FM\21MRP1.SGM 21MRP1 13324 Federal Register / Vol. 90, No. 54 / Friday, March 21, 2025 / Proposed Rules cover. The community structure monitoring approach is based largely on surveys that quantify the percent cover and distribution of algae and invertebrates that constitute these communities. This approach allows researchers to quantify both the patterns of abundance of targeted species, as well as characterize changes in the communities in which they reside. Such information provides managers with insight into the causes and consequences of changes in species abundance. There are a total of 49 community structure monitoring sites, each of which will be visited one to two times per year (see table 1 of the Application for details of each site) and surveyed over a 1-day period during a low tide series. Biodiversity surveys are part of a long-term monitoring project and are conducted every 3–5 years across 150 established sites. These biodiversity surveys involve point contact identification along permanent transects, mobile invertebrate quadrat counts, sea star band counts, and tidal height topographic measurements. Many of the biodiversity survey sites are also community structure sites. During the five-year period of effectiveness for the regulations, biodiversity survey sites will be sampled zero to five times (see tables 3–6 in the Application for details of expected survey frequency). The intertidal zones where UCSC/ MARINe conducts intertidal monitoring are also areas where pinnipeds can be found hauled out (i.e., temporarily leaving the water) on the shore at or adjacent to some research sites. Accessing portions of the intertidal habitat at these locations may cause incidental Level B harassment of pinnipeds through some unavoidable approaches if pinnipeds are hauled out directly in the study plots or while biologists walk from one location to another. Disturbance may also occur when researchers replace survey marker bolts using an electric rotary hammer drill. UCSC/MARINe also plans the occasional use of unmanned aerial vehicles (UAVs), which is a new component to this survey activity. They operate two quadcopter UAV models: a Da-Jiang Innovations (DJI) Miniature Autonomous Vehicle with Intelligent Controller (MAVIC) 2 Pro and a DJI Mavic 3 Enterprise. UCSC/MARINe conducts flights from 10–30 meters altitude for mapping and photography. UAVs can cause behavioral response in pinnipeds from both visual and acoustic stimuli. This response can range from alertness to flushing (i.e., disturbing from its position) depending on factors such as UAV altitude, conditions such as ambient noise from swell and wind, and the pinniped’s level of habituation to disturbance (Christiansen et al. 2016, Pérez Tadeo et al. 2023). UAVs trigger a stronger response when hovering compared to when in motion (Pérez Tadeo et al. 2023). UCSC/MARINe UAV flights typically occur at 10–30 meters altitude and are done autonomously (while under control of a licensed UAV pilot) to map the survey area and to achieve proper image overlap for photogrammetry processing. Flight speed is typically 1 to 2 meters/second and hovering only occurs during takeoff and landing. If pinnipeds are present during a UAV flight and a response is triggered by the UAV, the pilot will take control of the UAV and increase altitude before ending the flight to minimize effects on the animals. Please see the Proposed Mitigation and Proposed Monitoring and Reporting sections for the proposed mitigation, monitoring, and reporting measures. 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) at: https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/marinemammal-stock-assessments. More general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS’s website at: 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 activity 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. 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 (16 U.S.C. 1362(20)). While no serious injury or mortality is anticipated or authorized by this action, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species or stocks 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’ U.S. Pacific and Alaska SARs. All values presented in table 1 are the most recent available at the time of publication (including from the Final 2023 SARs) and are available online at: https://www.fisheries.noaa.gov/ national/marine-mammal-protection/ marine-mammal-stock-assessments. TABLE 1—MARINE MAMMALS POTENTIALLY PRESENT NEAR THE UCSC/MARINe RESEARCH SITES, ACCORDING TO THE MOST RECENT NMFS SARS khammond on DSK9W7S144PROD with PROPOSALS Common name Scientific name ESA/ MMPA status; strategic (Y/N) 1 Stock Stock abundance (CV, Nmin, most recent abundance survey) 2 PBR Annual M/SI 3 Order Carnivora—Superfamily Pinnipedia Family Otariidae (eared seals and sea lions): California sea lion ................ Steller sea lion ..................... Family Phocidae (earless seals): Harbor seal ........................... VerDate Sep<11>2014 16:10 Mar 20, 2025 Zalophus californianus ...... Eumetopias jubatus .......... U.S ......................... Eastern U.S ........... -; N -; N 257,606 (n/a; 233,515; 2014) ...... 36,308 (n/a; 36,308; 2022) .......... 14,011 2,178 (U.S. only) Phoca vitulina ................... California ................ -; N 30,968 (n/a; 27,348; 2012) .......... 1,641 Jkt 265001 PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 E:\FR\FM\21MRP1.SGM 21MRP1 >321 92.3 43 13325 Federal Register / Vol. 90, No. 54 / Friday, March 21, 2025 / Proposed Rules TABLE 1—MARINE MAMMALS POTENTIALLY PRESENT NEAR THE UCSC/MARINe RESEARCH SITES, ACCORDING TO THE MOST RECENT NMFS SARS—Continued Common name Northern elephant seal ......... Scientific name ESA/ MMPA status; strategic (Y/N) 1 Stock Mirounga angustirostris .... Oregon/Washington -; N California ................ -; N Stock abundance (CV, Nmin, most recent abundance survey) 2 24,732 (unknown; 16,165 mean; 1999) 4. 187,386 (n/a; 85,369; 2013) ........ PBR Annual M/SI 3 unknown 10.6 5,122 13.7 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 in the near future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 3 These Mortality/Serious Injury (M/SI) values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases. 4 The most recent abundance estimate for this stock (24,732 animals) is from 1999 surveys (Final 2023 SAR), with a mean calculated at 16,165 animals. We note that although the southern sea otter may be found from San Francisco south to the Channel Islands, that species is managed by the U.S. Fish and Wildlife Service and are not considered further in this document. khammond on DSK9W7S144PROD with PROPOSALS California Sea Lions California sea lions (Zalophus californianus) are distributed along the west coast of North America from British Columbia to Baja California and throughout the Gulf of California. Breeding occurs on offshore islands along the west coast of Baja California and the Gulf of California as well as on the California Channel Islands. There are three recognized California sea lion stocks (U.S. stock, Western Baja stock, and the Gulf of California stock) with the U.S. stock ranging from the U.S./ Mexico border into Canada. Although there is some movement between stocks, U.S. rookeries are considered to be isolated from rookeries off of Baja California (Barlow et al. 1995). Following the passage of the MMPA in 1972, as well as limits on killing and harassment in Mexico, the population has rapidly increased (Reeves et al. 2002). Declines in pup production did occur during the 1983–84, 1992–93, 1997–98, and 2003 El Niño events, but production returned to pre-El Niño levels within 2–5 years (Carretta et al. 2017). In 2013, due to the elevated number of sea lion pup strandings in southern California, NOAA declared an Unusual Mortality Event (UME), which lasted until September 2016. The cause of this event was thought to be nutritional stress related to declines in prey availability. California sea lions have been observed in the project vicinity at 41 of the research sites (see Application table 4). VerDate Sep<11>2014 16:10 Mar 20, 2025 Jkt 265001 Steller Sea Lion Steller sea lions (Eumetopias jubatus) range along the North Pacific Rim from northern Japan to California, with centers of abundance and distribution in the Gulf of Alaska and Aleutian Islands. Outside of their late May to early July breeding season, large numbers of individuals widely disperse to access seasonally important prey resources (Muto et al. 2019). In 1997, NMFS identified two distinct population segments (DPSs) of Steller sea lions under the ESA: a Western DPS and an Eastern DPS (62 FR 24345, May 5, 1997). While the Western DPS is listed as endangered, the Eastern DPS is not. For MMPA purposes, the Eastern DPS is called the Eastern U.S. stock and the Western DPS is called the Western U.S. stock. The Steller sea lions along the Oregon and California coasts are part of the Eastern Stock (and DPS). Steller sea lions are rare in the research areas. They have only been observed in the project vicinity at Cape Arago in 2009 and have not been observed during this research project since then. Northern Elephant Seal Northern elephant seals (Mirounga angustirostris) range widely throughout the eastern Pacific for most of the year to forage. They return to haulout locations along the west coast of the continental United States including the Channel Islands, the central California coast, and islands off Baja California, to breed and molt. Breeding occurs from mid-December through the end of March, with males returning to haulout locations earlier than females to establish dominance hierarchies. Molting occurs from late April to August, with juveniles and adult females returning to haulout locations earlier than adult males (Reeves et al. 2002). Due to very little movement between colonies in Mexico and those PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 in California, the California population is considered to be a separate stock (Carretta et al. 2019). This species was hunted for several thousand years and thought to be extinct. (Stewart et al. 1994). The population began increasing in the early 1900s and progressively colonized southern and central California through the 1980s (Reeves et al. 2002). The population is reported to have grown at 3.1 percent annually since 1988 (Lowry et al. 2020) and have been observed at 14 of the research sites (see Application table 5). Pacific Harbor Seal Before federal protections, commercial hunting of harbor seals along the west coast depleted the California stock to isolated groups in the hundreds (Bartholomew and Boolootian 1960), but the population increased in the late 1900s (Carretta et al. 2023). Under the MMPA, harbor seals are not considered to be ‘depleted’, nor are they listed as ‘threatened’ or ‘endangered’ under the ESA. Based on currently available data, minimum numbers of serious injury and mortality, due to fishery interactions, research activities, and other human related causes, are thought to be low when compared to population sizes of stocks (Carretta et al. 2023). A complete count of harbor seals is not possible because it relies upon all animals being hauled out of the water at the same time, and pups enter the water almost immediately following birth. Pacific harbor seals (Phoca vitulina richardii) inhabit near-shore coastal and estuarine areas from Baja California, Mexico, to the Pribilof Islands in Alaska. They are divided into two subspecies: P. v. stejnegeri in the western North Pacific, near Japan, and P. v. richardii in the northeast Pacific Ocean. The latter subspecies includes two stocks protected under the MMPA E:\FR\FM\21MRP1.SGM 21MRP1 13326 Federal Register / Vol. 90, No. 54 / Friday, March 21, 2025 / Proposed Rules khammond on DSK9W7S144PROD with PROPOSALS in the project area: the Oregon and Washington Coast stock in the outer coastal waters of Oregon and Washington States, and the California stock (Carretta et al. 2019). In Oregon there are over 40 haulout sites (Brown et al. 2005), while in California, over 500 harbor seal haulout sites are widely distributed along the mainland and offshore islands, and include rocky shores, beaches and intertidal sandbars (Lowry et al. 2005). Harbor seals mate at sea, and females give birth during the spring and summer, although, the pupping season varies with latitude. Pups are nursed for an average of 24 days and are ready to swim minutes after being born. Harbor seal pupping takes place at many locations, and rookery size varies from a few pups to many hundreds of pups. Pupping generally occurs between March and June, and molting occurs between May and July. Potential Effects of Specified Activities on Marine Mammals and Their Habitat This section includes a discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The Estimated Take of Marine Mammals 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 of Marine Mammals section, and the Proposed Mitigation section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks. The presence of researchers has the potential for the incidental take of pinnipeds hauled out at sampling sites by Level B harassment of. If pinnipeds are hauled out in the immediate vicinity of the permanent study plots, approach by survey personnel may be unavoidable in order to conduct the research. Disturbance from such approach may result in reactions ranging from an animal simply becoming alert to the presence of researchers (e.g., turning the head, assuming a more upright posture) to flushing from the haulout site into the water. NMFS does not consider these lesser reactions to constitute take by Level B harassment, but rather assumes that more substantive responses (e.g., flight over greater distance or notable change in the speed or direction of their movement in response to the presence of researchers) constitute behavioral VerDate Sep<11>2014 16:10 Mar 20, 2025 Jkt 265001 harassment. Animals that respond to the presence of researchers by becoming alert, but do not move or change the nature of locomotion as described, are not considered to have been subject to Level B harassment. Numerous studies have shown that human activity can flush harbor seals off haulout sites (Allen et al. 1985, Suryan and Harvey 1999). The Hawaiian monk seal (Neomonachus schauinslandi) has been shown to avoid beaches that have been disturbed often by humans (Kenyon 1972). Moreover, in one case, human disturbance appeared to cause Steller sea lions to desert a breeding area at Northeast Point on St. Paul Island, Alaska (Kenyon 1962). There are several ways in which disturbance, as described previously, could potentially result in Level A harassment, which is defined as any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal or marine mammal stock in the wild (16 U.S.C. 1362(18)(A)(i)). Stampeding, a potentially dangerous occurrence in which large numbers of animals succumb to mass panic and rush away from a stimulus, can lead to injury. The risks for injury are (1) falling when entering the water at high-relief locations; (2) extended separation of mothers and pups; and (3) crushing of elephant seal pups by large males during a stampede. UCSC researchers have only recorded one instance of stampeding, which occurred in 2013. Because pups are typically found on sand beaches, and the study sites are located in the rocky intertidal zone, there is typically a buffer between researchers and pups. The caution exercised by researchers in approaching sites generally precludes the possibility of behaviors that could result in extended separation of mothers and dependent pups, or trampling of pups (e.g., stampeding). Because hauled out animals may move towards the water when disturbed, there is the risk of injury if animals stampede towards shorelines with precipitous relief (e.g., cliffs). Shoreline habitats near the survey areas tend to consist of steeply sloping rocks with unimpeded and unobstructed access to the water. If disturbed, hauled out animals in these situations are likely to move toward the water slowly without risk of unexpectedly falling off cliffs or encountering barriers or hazards or that would otherwise prevent them from leaving the area. Using a cautious approach (i.e., following mitigation measures), research activity is not likely to risk injury or death as a result of disturbance at these high-relief locations. Therefore, it is unlikely that PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 these disturbances will result in Level A harassment, serious injury, or mortality, and NMFS is not proposing to authorize take by Level A harassment, serious injury, or mortality resulting from this research activity. A small number of harbor seal, northern elephant seal, and California sea lion pups have been observed in the research area during past years, and few pups are expected to be present during the proposed monitoring surveys. Though elephant seal pups are occasionally present when researchers visit survey sites, risk of pup mortalities is low because elephant seals are far less reactive to researcher presence than the other two species. Due to the implementation of mitigation measures, it is unlikely that harbor seal pups will be injured. Surveys are timed to avoid harbor seal breeding season (March through June), and researchers shall abort the survey if they arrive and see harbor seal pups are present. The only habitat modification associated with the proposed activity is the placement of permanent bolts and temporary sampling equipment in the intertidal zone. The installation of bolts and sampling equipment is conducted under the appropriate permits (National Marine Sanctuary, California State Parks). Once a particular study has ended, the respective sampling equipment is removed, while the bolts remain. No trash or field gear is left at a site. Since these sites are only visited one to two times per year, minimizing repeated disturbances, sampling activities are not expected to result in long-term modifications of haulout use, nor haulout abandonment. During periods of low tide (e.g., when tides are 0.6 m (2 ft) or less and low enough for pinnipeds to haul out), we would expect the pinnipeds to return to the haulout site within 60 minutes of the disturbance (Allen et al. 1985). During prior authorizations, only temporary displacement from haulouts has been observed, so we do not expect that pinnipeds will permanently abandon a haulout site during the conduct of rocky intertidal surveys. Additionally, impacts to prey species from survey activities are not anticipated. Thus, the proposed activity is not expected to have any habitatrelated effects that could cause significant or long-term consequences for individual marine mammals or their populations. Estimated Take of Marine Mammals This section provides an estimate of the number of incidental takes of the four species of pinnipeds by Level B harassment proposed for authorization through this proposed rule, which will E:\FR\FM\21MRP1.SGM 21MRP1 Federal Register / Vol. 90, No. 54 / Friday, March 21, 2025 / Proposed Rules inform both NMFS’ consideration of ‘‘small numbers’’ and the negligible impact determination. Harassment, defined previously in the Purpose and Need for Regulatory Action section, is the only type of take expected to result from these activities. Authorized takes would be by Level B harassment only, in the form of potential disruption of behavioral patterns for individual marine mammals resulting from exposure to researchers and the operation of their equipment. Based on the nature of the activity, Level A harassment is neither anticipated nor proposed to be authorized. As described previously, no mortality is anticipated or proposed to be authorized for this activity. We describe how the proposed take numbers are estimated below. Monitoring reports from the previously issued LOA (2020–2025), including Level B harassment take numbers, are available on our website at: https:// www.fisheries.noaa.gov/action/ incidental-take-authorizationuniversity-california-santa-cruz-rockyintertidal-monitoring-0. Marine Mammal Occurrence khammond on DSK9W7S144PROD with PROPOSALS In this section, we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations. Take estimates are based on historical marine mammal observations from 2013–2024 at each site from previous UCSC/PISCO (MARINe) survey activities. Marine mammal observations are recorded as part of research site observations, including notes on physical and biological conditions at the site, completed on each study day. From VerDate Sep<11>2014 16:10 Mar 20, 2025 Jkt 265001 2013–2024 observations were categorized on a four point scale: • 0 = observation by researchers from a distance, no reaction by pinniped • 1 = pinniped reacted to presence of researchers with movement <1 meter • 2 = pinniped reacted to presence of researchers with short movement of 1–3 meters • 3 = pinniped flushed (i.e., disturbed from its position) to the water or moved >3 meters in retreat A marine mammal is recorded as an ‘‘encounter’’ (i.e., at least level 0 on the above scale) if it is seen on access ways to the site, at the site, or immediately up-coast or down-coast of the site, regardless of whether that animal was considered a take under the MMPA. Also recorded are marine mammals in the water immediately offshore. Using the above scale, level 2 and level 3 observations constitute a take under the MMPA. Once sampling is concluded, researchers record the maximum number of marine mammals (by species) sighted at any given time throughout the sampling day (categories 0 through 3). Other relevant information is also noted, including the location of a marine mammal relevant to the site, unusual behavior, and the presence of pups. Take Calculation and Estimation Researchers with extensive knowledge and experience at each site estimated the actual number of marine mammal takes likely to occur, using the observations described above. Take estimates for each species were based on the following equation: Take estimate/survey site = # of expected animals/site * # of planned survey events/survey site. PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 13327 UCSC/MARINe summed the total number of each species of marine mammal ‘‘encountered’’ at each research site during the period from 2013 to 2024 (observations score between 0 to 3 on the above scale). To calculate the number of expected animals per site, they summed the number of sampling events where marine mammals were encountered at each site and calculated the average number of encounters per event (see tables 2–5). Less than 40 percent of all encounters qualified as incidental take by Level B harassment (see Application Section 6); therefore, calculated take estimates are expected to be conservative. The maximum number of planned survey events per survey site is listed in tables 2–5. For Steller sea lions, the single sighting from 2009 was used in this analysis. Calculation results for the take estimate by species per survey site can also be found in tables 2–5. In coming years, UCSC plans to reestablish monitoring plots for historic black abalone (an endangered marine gastropod) on Ano Nuevo Island, CA. Since they did not have monitoring data to inform their take estimates, these estimates were calculated based on prior experience on the island, as well as discussions with Ano Nuevo Reserve personnel and other UCSC researchers who conduct studies on the island. Site visits are planned for the fall during non-breeding season for marine mammals. Locations of fall sea lion and elephant seal haulouts were compared to the research plots to establish the best estimates for species occurrence per site. BILLING CODE 3510–22–P E:\FR\FM\21MRP1.SGM 21MRP1 VerDate Sep<11>2014 Federal Register / Vol. 90, No. 54 / Friday, March 21, 2025 / Proposed Rules 16:10 Mar 20, 2025 Jkt 265001 PO 00000 Frm 00018 Fmt 4702 Sfmt 4725 E:\FR\FM\21MRP1.SGM 21MRP1 EP21MR25.004</GPH> khammond on DSK9W7S144PROD with PROPOSALS 13328 13329 Federal Register / Vol. 90, No. 54 / Friday, March 21, 2025 / Proposed Rules BILLING CODE 3510–22–C TABLE 3—DATA AND CALCULATIONS TO ESTIMATE PROPOSED TAKE OF CALIFORNIA SEA LIONS khammond on DSK9W7S144PROD with PROPOSALS Alder Creek .................................................................................................................. Andrew Molera ............................................................................................................. Bird Rock ..................................................................................................................... Bodega ......................................................................................................................... Cape Arago .................................................................................................................. Cayucos ....................................................................................................................... Crook Point .................................................................................................................. Cuyler Harbor .............................................................................................................. Del Mar Landing .......................................................................................................... VerDate Sep<11>2014 16:10 Mar 20, 2025 Jkt 265001 PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 Expected maximum number of survey events 2025–2030 1 1 30.5 2.75 15.5 1 3 1 6.5 E:\FR\FM\21MRP1.SGM 0 10 1 5 5 5 0 1 1 21MRP1 Calculated take 2025–2030 0 10 31 14 78 5 0 1 7 EP21MR25.005</GPH> Encounters/ event Site 13330 Federal Register / Vol. 90, No. 54 / Friday, March 21, 2025 / Proposed Rules TABLE 3—DATA AND CALCULATIONS TO ESTIMATE PROPOSED TAKE OF CALIFORNIA SEA LIONS—Continued Expected maximum number of survey events 2025–2030 Site Encounters/ event Calculated take 2025–2030 Eel Point ...................................................................................................................... Enderts ......................................................................................................................... False Klamath Cove .................................................................................................... Franklin Point ............................................................................................................... Fraser Cove ................................................................................................................. Gerstle Cove ................................................................................................................ Government Point ........................................................................................................ Kibesillah Hill ............................................................................................................... Marker poles ................................................................................................................ Middle West ................................................................................................................. Old Stairs ..................................................................................................................... Otter Harbor ................................................................................................................. Partington Cove ........................................................................................................... Piedras Blancas ........................................................................................................... Point Conception ......................................................................................................... Point Dume .................................................................................................................. Point Lobos .................................................................................................................. Point Pinos ................................................................................................................... Point Sierra Nevada .................................................................................................... Punta Arena ................................................................................................................. Purisma ........................................................................................................................ Sandhill Bluff ................................................................................................................ Scott Creek .................................................................................................................. Sea Lion Rookery ........................................................................................................ Sea Ranch ................................................................................................................... Shell Beach .................................................................................................................. Shelter Cove ................................................................................................................ Soberanes .................................................................................................................... Stairs ............................................................................................................................ Stillwater ...................................................................................................................... Stornetta ...................................................................................................................... Terrace Point ............................................................................................................... Ano Nuevo Island ........................................................................................................ 1.5 2 2.3 2 1 1 3.5 1.5 200 1 1.5 13 1 27.5 1 4 1 1 1 1 1 6 1 40 3 1 1.5 2.5 1 1.5 1.3 1.6 ........................ 2 5 5 5 1 5 25 5 0 1 1 0 5 5 1 0 10 5 5 0 5 10 10 1 5 5 5 5 5 10 5 10 5 3 10 12 10 1 5 88 8 0 1 2 0 5 138 1 0 10 5 5 0 5 60 10 40 15 5 8 13 5 15 7 17 2,500 Total ...................................................................................................................... ........................ ................................ 3,150 khammond on DSK9W7S144PROD with PROPOSALS TABLE 4—DATA AND CALCULATIONS TO ESTIMATE PROPOSED TAKE OF ELEPHANT SEALS Expected maximum number of survey events 2025–2030 Site Encounters/ event Calculated take 2025–2030 Ano Nuevo ................................................................................................................... Boat House .................................................................................................................. Chimney Rock ............................................................................................................. Coches Prietos ............................................................................................................ Crook Point .................................................................................................................. Cuyler Harbor .............................................................................................................. Government Point ........................................................................................................ Harmony Headlands .................................................................................................... Marker Poles ................................................................................................................ Mill Creek ..................................................................................................................... Otter Harbor ................................................................................................................. Piedras Blancas ........................................................................................................... Point Sierra Nevada .................................................................................................... Tranquility Beach ......................................................................................................... Ano Nuevo Island ........................................................................................................ 5 5.5 12.8 1 1.5 1.5 3 1 200 1 4.5 7.8 1 50 ........................ 1 10 5 0 0 1 25 5 0 10 0 5 5 0 5 5 55 64 0 0 2 75 5 0 10 0 39 5 0 500 Total ...................................................................................................................... ........................ ................................ 760 TABLE 5—DATA AND CALCULATIONS TO ESTIMATE PROPOSED TAKE OF STELLER SEA LIONS Cape Arago .................................................................................................................. VerDate Sep<11>2014 16:10 Mar 20, 2025 Jkt 265001 Expected maximum number of survey events 2025–2030 Encounters/ event Site PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 5 E:\FR\FM\21MRP1.SGM 5 21MRP1 Calculated take 2025–2030 50 13331 Federal Register / Vol. 90, No. 54 / Friday, March 21, 2025 / Proposed Rules TABLE 5—DATA AND CALCULATIONS TO ESTIMATE PROPOSED TAKE OF STELLER SEA LIONS—Continued Expected maximum number of survey events 2025–2030 Site Encounters/ event Ano Nuevo Island ........................................................................................................ ........................ 5 25 Total ...................................................................................................................... ........................ ................................ 75 The species’ totals for each survey site were summed to arrive at a total estimated take for the entire duration of the proposed rule across all four Calculated take 2025–2030 impacted species of pinnipeds. This is listed as the total take (table 6). TABLE 6—PROPOSED AUTHORIZED INCIDENTAL TAKE BY LEVEL B HARASSMENT (IN TOTAL AND PER YEAR) AND PERCENTAGE OF POPULATIONS AFFECTED Abundance (Caretta et al. 2023, Young et al. 2023) Species Harbor seal—CA stock (Phoca vitulina) .......................................................... Harbor seal—WA/OR stock (Phoca vitulina) ................................................... California sea lion (Zalophus californianus) .................................................... Northern elephant seal (Mirounga angustirostris) ........................................... Steller sea lion ((Eumetopias jubatus) ............................................................ khammond on DSK9W7S144PROD with PROPOSALS Proposed Mitigation Under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses (the latter is not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, and their habitat (50 CFR 216.104(a)(11)). In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, NMFS considers 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 (e.g., likelihood, scope, range). It further considers the VerDate Sep<11>2014 16:10 Mar 20, 2025 Jkt 265001 30,968 24,732 257,606 187,386 36,308 likelihood that the measure will be effective if implemented (i.e., probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (probability of accomplishing the mitigating result if implemented as planned); and (2) The practicability of the measures for applicant implementation, which may consider cost and impact on operations. UCSC/MARINe will implement several mitigation measures to reduce potential take by Level B harassment. Measures are listed below. • Researchers will observe a site from a distance for at least 5 minutes, using binoculars, if necessary, to detect any marine mammals prior to approach to determine if mitigation is required (i.e., site surveys will not be conducted if other pinnipeds are present, researchers will approach with caution, walking slowly, quietly, and close to the ground to avoid surprising any hauled out individuals and to reduce flushing/ stampeding of individuals). • Researchers will avoid pinnipeds along access ways to sites by locating and taking a different access route. Researchers will keep a safe distance from, and not approach, any marine mammal while conducting research unless it is absolutely necessary to flush (i.e., disturb from its position) a marine mammal in order to continue conducting research (i.e. if a site cannot be accessed or sampled due to the presence of pinnipeds). PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 Proposed authorized incidental take (Level B harassment only) Take over 5 years 1462 150 3150 760 75 Take per year 292 30 630 152 15 % of population 0.94 0.12 0.24 0.08 0.04 • Researchers will avoid making loud noises (e.g., using hushed voices) and keep bodies low to the ground (i.e., crouched) in the visual presence of pinnipeds. • Researchers will monitor the offshore area for predators (e.g., killer whales and great white sharks) and avoid flushing of pinnipeds when predators are observed in nearshore waters. Note that UCSC/MARINe has never observed an offshore predator while researchers were present at any of the survey sites. • Intentional approach will not occur if dependent pups are present to avoid mother/pup separation and trampling of pups. Staff shall reschedule work at sites where pups are present unless other means of accomplishing the work can be done without causing disturbance to mothers and dependent pups. • When operating UAVs around pinnipeds, altitude will not drop below 10 meters. • Researchers will promptly vacate sites at the conclusion of sampling. The primary methods of mitigating the risk of disturbance to pinnipeds is the selection of judicious routes of approach to study sites, avoiding close contact with pinnipeds hauled out on shore, and the use of extreme caution upon approach. Each visit to a given study site will last for approximately 4– 6 hours, after which the site is vacated and can be re-occupied by any marine mammals that may have been disturbed by the presence of researchers. Also, E:\FR\FM\21MRP1.SGM 21MRP1 13332 Federal Register / Vol. 90, No. 54 / Friday, March 21, 2025 / Proposed Rules workers will be arriving before low tide, worker presence will tend to encourage pinnipeds to move to other areas for the day before they haul out and settle onto rocks at low tide. Based on our evaluation of the applicant’s proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Proposed Monitoring and Reporting In order to issue regulations and an LOA for an activity, Section 101(a)(5)(A) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA’s 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); and • Mitigation and monitoring effectiveness. UCSC/MARINe will contribute to the knowledge of pinnipeds in California and Oregon by noting observations of: (1) unusual behaviors, numbers, or distributions of pinnipeds, such that any potential follow-up research can be conducted by the appropriate personnel; (2) tag-bearing carcasses of pinnipeds, allowing transmittal of the information to appropriate agencies and personnel; and (3) rare or unusual species of marine mammals for agency follow-up. Proposed monitoring requirements in relation to UCSC/MARINe’s rocky intertidal monitoring will include observations made by the applicant. Information recorded will include species counts (with numbers of pups/ juveniles) of animals present before approaching, numbers of observed disturbances (based on the scale below), and descriptions of the disturbance behaviors during the monitoring surveys, including location, date, and time of the event. For consistency, any reactions by pinnipeds to researchers will be recorded according to a threepoint scale shown in table 7. Note that only observations of disturbance levels 2 and 3 should be recorded as takings. khammond on DSK9W7S144PROD with PROPOSALS TABLE 7—LEVELS OF PINNIPED BEHAVIORAL DISTURBANCE Level Type of response Definition 0 ....................... 1 ....................... Observation ............................. Alert ......................................... 2 ....................... Movement ................................ 3 ....................... Flush ........................................ Observation by researchers from a distance; no disturbance to pinniped. Seal head orientation or brief movement in response to disturbance, which may include turning head towards the disturbance, craning head and neck while holding the body rigid in a u-shaped position, changing from a lying to a sitting position, or brief movement of less than twice the animal’s body length. Movements away from the source of disturbance, ranging from short withdrawals at least twice the animal’s body length to longer retreats over the beach, or if already moving a change of direction of greater than 90 degrees. All retreats (flushes) to the water. In addition, observations regarding the number and species of any marine mammals observed (either in the water or hauled out at, or adjacent to, a research site) are recorded as part of field observations during research activities. Information regarding physical and biological conditions pertaining to a site, as well as the date and time that research was conducted, will also be recorded. This information will be incorporated into a monitoring report for NMFS and raw data will be provided. If at any time the specified activity clearly causes the take of a marine mammal in a prohibited manner such as an injury (Level A harassment), serious VerDate Sep<11>2014 16:10 Mar 20, 2025 Jkt 265001 injury, or mortality, UCSC/MARINe shall immediately cease the specified activities and report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator, NMFS. The report must include the following information: (1) Time and date of the incident; (2) Description of the incident; (3) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility); (4) Description of all marine mammal observations in the 24 hours preceding the incident; (5) Species identification or description of the animal(s) involved; (6) Fate of the animal(s); and PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 (7) Photographs or video footage of the animal(s) (if equipment is available). Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with UCSC/MARINe to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. UCSC/MARINe may not resume the activities until notified by NMFS. In the event that UCSC/MARINe discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of E:\FR\FM\21MRP1.SGM 21MRP1 Federal Register / Vol. 90, No. 54 / Friday, March 21, 2025 / Proposed Rules khammond on DSK9W7S144PROD with PROPOSALS decomposition), UCSC/MARINe shall immediately report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator, NMFS. The report must include the same information identified in the paragraph above. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with UCSC/MARINe to determine whether additional mitigation measures or modifications to the activities are appropriate. In the event that an injured or dead marine mammal is discovered and it is determined that the injury or death is not associated with or related to the activities authorized in the regulations and LOA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), UCSC/MARINe shall report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator, NMFS, within 24 hours of the discovery. UCSC/ MARINe shall provide photographs, video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. Activities may continue while NMFS reviews the circumstances of the incident. A draft annual report shall be submitted to NMFS Office of Protected Resources within 90 days after the conclusion of each annual field season (50 CFR 217.105(d)(1)). The report will include a summary of the information gathered pursuant to the monitoring requirements set forth above and in the LOA. A final annual report shall be submitted to the Director of the NMFS Office of Protected Resources within 30 days after receiving comments from NMFS on the draft annual report (50 CFR 217.105(d)(2)). If no comments are received from NMFS, the draft annual report will be considered the final report. Monitoring Results From Previously Authorized Activities UCSC/MARINe complied with the mitigation and monitoring that were required under the prior IHAs issued from 2013 to 2019, and the LOA issued in 2020. In compliance with those IHAs, they submitted reports detailing the activities and marine mammal monitoring they conducted, the most recent report submitted in 2024 and accessible at: https://www.fisheries. noaa.gov/action/incidental-takeauthorization-university-californiasanta-cruz-rocky-intertidal-monitoring0. The IHAs required UCSC/MARINe to conduct counts of pinnipeds present at study sites prior to approaching the sites VerDate Sep<11>2014 16:10 Mar 20, 2025 Jkt 265001 and to record species counts and any observed reactions to the presence of the researchers. These monitoring results were discussed above in the Estimated Take of Marine Mammals section. Based on the results from the monitoring reports, we conclude that the mitigation measures set forth in the previous authorizations effected the least practicable impact on the species or stocks. There were no stampede events during these years and most disturbances were level 1 and 2 on the disturbance scale (see table 3), meaning the animal did not fully flush but observed or moved slightly in response to researchers. Those that did fully flush to the water did so slowly. Most of these animals tended to observe researchers from the water and then re-haul out farther up-coast or down-coast of the site within approximately 30 minutes of the disturbance. Negligible Impact Analysis and Determination NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., populationlevel effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be ‘‘taken’’ through harassment, NMFS considers other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS’s implementing regulations (54 FR 40338, September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels). To avoid repetition, the discussion of our analyses applies to all the species listed in table 6, given that the PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 13333 anticipated effects of this activity on these different marine mammal stocks are expected to be similar. There is little information about the nature or severity of the impacts, or the size, status, or structure of any of these species or stocks that would lead to a different analysis for this activity. Research activities have the potential to disturb or displace marine mammals. Specifically, the project activities may result in take, in the form of Level B harassment from researcher’s movements and equipment handling. Potential takes could occur if individuals of these species are present nearby when these activities are underway. No injuries or mortalities are anticipated to occur as a result of UCSC/ MARINe’s rocky intertidal monitoring surveys and none are proposed to be authorized. Typically, even those reactions constituting Level B harassment would result, at most, in a temporary, shortterm behavioral disturbance. In any given study season, researchers will visit select sites one to two times per year for 4–6 hours per visit. Therefore, disturbance of pinnipeds resulting from the presence of researchers lasts only for short periods. These short periods of disturbance lasting less than a day are separated by months or years. Community structure sites are visited at most twice per year and the visits occur in different seasons. Biodiversity surveys take place at a given location once every 3–5 years. Of the marine mammal species anticipated to occur in the proposed activity areas, none are listed under the ESA. Taking into account the planned mitigation measures, effects to marine mammals are generally expected to be restricted to short-term changes in behavior or temporary abandonment of haulout sites, pinnipeds are not expected to permanently abandon any area that is surveyed by researchers, as is evidenced by continued presence of pinnipeds at the sites during annual monitoring counts. No adverse effects to prey species are anticipated and habitat impacts are limited and highly localized, consisting of the placement of permanent bolts and temporary research equipment in the intertidal zone. Based on this analysis of the likely effects of the specified activity on marine mammals and their habitat, and considering the implementation of the proposed mitigation and monitoring measures, NMFS finds that the total marine mammal incidental take from UCSC/MARINe’s rocky intertidal monitoring program will not adversely affect annual rates of recruitment or survival. Therefore, such incidental take E:\FR\FM\21MRP1.SGM 21MRP1 13334 Federal Register / Vol. 90, No. 54 / Friday, March 21, 2025 / Proposed Rules khammond on DSK9W7S144PROD with PROPOSALS will have a negligible impact on the affected species or stocks. In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival: • No Level A harassment, serious injury or mortality is anticipated or authorized; • Only a small number of pups are expected to be disturbed; • Effects of the survey activities would be limited to short-term, localized behavioral changes; • Nominal impacts to pinniped habitat are anticipated; and • Mitigation measures are anticipated to be effective in minimizing the number and severity of takes by Level B harassment, which are expected to be of short duration. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks. Small Numbers As noted above, only small numbers of incidental take may be authorized under sections 101(a)(5)(A) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis (e.g., the temporal or spatial scale of the activities). The amount of take NMFS proposes to authorize is 0.04 to 0.94 percent of any stock’s best population estimate (see table 6). These are likely conservative estimates because they assume all encounters result in take, which has not historically been the case. 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 VerDate Sep<11>2014 16:10 Mar 20, 2025 Jkt 265001 taken relative to the population size of the affected species or stocks. Unmitigable Adverse Impact Analysis and Determination There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has preliminarily determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes. Adaptive Management The regulations governing the take of marine mammals incidental to the UCSC/MARINe’s research activities would contain an adaptive management component. The reporting requirements associated with this proposed rule are designed to provide NMFS with annual monitoring data 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 on an annual basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to marine mammals and if the measures are practicable. The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) results from 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 LOAs issues pursuant to these regulations. 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 ensures that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of proposed rules, NMFS consults internally with scientific and regulatory subject matter experts whenever we propose to authorize take for endangered or threatened species. PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 No incidental take of any 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 Additional Information and Public Comment NMFS requests that interested persons submit comments, information, and suggestions concerning the UCSC/ MARINe request and the proposed regulations to NMFS for consideration (see ADDRESSES). All comments will be reviewed and evaluated as we prepare a final rule and make final determinations on whether to issue the requested authorization. This notice of proposed rulemaking and the referenced documents provide all environmental information relating to our proposed action for public review. Classification The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866. Pursuant to Executive Order 14192, this proposed rule is considered a deregulatory action. Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. UCSC/MARINe is the sole entity that would be subject to the requirements in these proposed regulations, and UCSC/ MARINe is not a small governmental jurisdiction, organization, or business as defined by the RFA. Because of this certification, an initial regulatory flexibility analysis is not required and none has been prepared. This proposed rule does contain collection-of-information requirements subject to the provisions of the Paperwork Reduction Act (PRA) (44 U.S.C. 3501–3521). Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to, a penalty for failure to comply with a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid Office of Management and Budget (OMB) control number. These requirements have been approved by OMB under control number 0648–0151 and include the applications for regulations, subsequent LOA, and reports. Submit comments regarding any aspect of this data collection, including E:\FR\FM\21MRP1.SGM 21MRP1 Federal Register / Vol. 90, No. 54 / Friday, March 21, 2025 / Proposed Rules suggestions for reducing the burden, to NMFS (see ADDRESSES section) and through the Regulatory Dashboard at: https://www.reginfo.gov. § 217.101 Dated: March 17, 2025. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. § 217.102 List of Subjects in 50 CFR Part 217 Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation. For reasons set forth in the preamble, National Oceanic and Atmospheric Administration proposes to amend 50 CFR part 217 as follows: PART 217—REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS INCIDENTAL TO SPECIFIED ACTIVITES 1. The authority citation for part 217 continues to read as follows: ■ Authority: 16 U.S.C. 1361 et seq., unless otherwise noted. 2. Revise and republish subpart K to part 217 to read as follows: ■ Subpart K—Taking Marine Mammals Incidental to Rocky Intertidal Monitoring Surveys Along the Oregon and California Coasts Sec. 217.100 Specified activity and specified geographical region. 217.101 Effective dates. 217.102 Permissible methods of taking. 217.103 Prohibitions. 217.104 Mitigation requirements. 217.105 Requirements for monitoring and reporting. 217.106 Letters of Authorization. 217.107 Renewals and modifications of Letters of Authorization. § 217.108–217.109 [Reserved] khammond on DSK9W7S144PROD with PROPOSALS § 217.100 Specified activity and specified geographical region. (a) Regulations in this subpart apply only to the University of California Santa Cruz’s Multi-Agency Rocky Intertidal Network (UCSC/MARINe) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occur in the areas outlined in paragraph (b) of this section and that occur incidental to rocky intertidal monitoring research surveys. (b) The taking of marine mammals by UCSC/MARINe may be authorized in a Letter of Authorization (LOA) only if it occurs on the coasts of Oregon or California. VerDate Sep<11>2014 16:10 Mar 20, 2025 Jkt 265001 Effective dates. Regulations in this subpart are effective for a period of 5 years from the date of effectiveness. Permissible methods of taking. Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.106, the Holder of the LOA (hereinafter ‘‘UCSC/MARINe’’) may incidentally, but not intentionally, take marine mammals within the area described in § 217.100(b) by Level B harassment associated with rocky intertidal monitoring activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA. § 217.103 Prohibitions. Notwithstanding takings contemplated in § 217.100 and authorized by an LOA issued under §§ 216.106 of this chapter and 217.106, no person in connection with the activities described in § 217.100 may: (a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 of this chapter and 217.106; (b) Take any marine mammal not specified in such LOA; (c) Take any marine mammal specified in such LOA in any manner other than as specified in § 217.102; (d) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or (e) Take a marine mammal specified in such LOA if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses. § 217.104 Mitigation requirements. When conducting the activities identified in § 217.100(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 217.106 must be implemented. These mitigation measures shall include but are not limited to: (1)(a) General conditions. (1) Researchers must observe a site from a distance for at least five minutes, using binoculars if necessary, to detect any marine mammals prior to approach to determine if mitigation is required. Site surveys will not be conducted if other species of pinnipeds are present. Researchers will approach with caution, walking slowly, quietly, and close to the ground to avoid surprising any hauled out individuals and to reduce flushing (i.e., disturbing from its position). PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 13335 (2) Researchers shall avoid pinnipeds along access ways to sites by locating and taking a different access way. Researchers shall keep a safe distance from and not approach any marine mammal while conducting research, unless it is absolutely necessary to approach a marine mammal in order to continue conducting research (i.e., if a site cannot be accessed or sampled due to the presence of pinnipeds). (3) Researchers shall avoid making loud noises (e.g., using hushed voices) and keep bodies low to the ground in the visual presence of pinnipeds. (4) Researchers shall monitor the offshore area for predators (e.g., killer whales and great white sharks) and avoid flushing of pinnipeds when predators are observed in nearshore waters. (5) Researchers shall promptly vacate sites at the conclusion of sampling. (6) Researchers shall not operate unmanned aerial vehicles (UAVs) at an altitude below 10 meters while in the presence of pinnipeds. (b) Pup protection measures. (1) Intentional approach will not occur if dependent pups are present to avoid mother/pup separation and trampling of pups. Staff shall reschedule work at sites where pups are present, unless other means of accomplishing the work can be done without causing disturbance to mothers and dependent pups. (2) [Reserved] § 217.105 Requirements for monitoring and reporting. (a) Visual monitoring program. (1) Standard information recorded will include species counts (with numbers of pups/juveniles when possible) of animals present before approaching, numbers of observed disturbances, and descriptions of the disturbance behaviors during the monitoring surveys, including location, date, and time of the event. (2) UCSC/MARINe must note observations of: (i) Unusual behaviors, numbers, or distributions of pinnipeds, such that any potential follow-up research can be conducted by the appropriate personnel; (ii) Tag-bearing carcasses of pinnipeds, allowing transmittal of the information to appropriate agencies and personnel; and (iii) Rare or unusual species of marine mammals for agency follow-up. (3) For consistency, any reactions by pinnipeds to researchers must be recorded according to a three-point pinniped disturbance scale included in any LOA issued under § 216.106 of this chapter and § 217.106. E:\FR\FM\21MRP1.SGM 21MRP1 khammond on DSK9W7S144PROD with PROPOSALS 13336 Federal Register / Vol. 90, No. 54 / Friday, March 21, 2025 / Proposed Rules (4) UCSC/MARINE must note information regarding the date and time that research is conducted, as well as the physical and biological conditions pertaining to a site. (b) Prohibited take. (1) If at any time the specified activity clearly causes the take of a marine mammal in a manner prohibited by these regulations or LOA, such as an injury (Level A harassment), serious injury, or mortality, UCSC/ MARINe shall immediately cease the specified activities and report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator, NMFS. The report must include the following information: (i) Time and date of the incident; (ii) Description of the incident; (iii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility); (iv) Description of all marine mammal observations in the 24 hours preceding the incident; (v) Species identification or description of the animal(s) involved; (vi) Fate of the animal(s); and (vii) Photographs or video footage of the animal(s) (if equipment is available). (2) Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with UCSC/MARINe to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure Marine Mammal Protection Act (MMPA) compliance. UCSC/MARINe must not resume the activities until notified by NMFS via letter, email, or telephone. (c) Notification of dead or injured marine mammals. (1) In the event that UCSC/MARINe discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition), UCSC/MARINe shall immediately report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator, NMFS. The report must include the information identified in paragraph (b)(1) of this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with UCSC/ MARINe to determine whether additional mitigation measures or modifications to the activities are appropriate. (2) In the event that an injured or dead marine mammal is discovered and it is determined that the injury or death is not associated with or related to the activities authorized in the regulations and LOA (e.g., previously wounded VerDate Sep<11>2014 16:10 Mar 20, 2025 Jkt 265001 animal, carcass with moderate to advanced decomposition, or scavenger damage), UCSC/MARINe shall report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator, NMFS, within 24 hours of the discovery. UCSC/ MARINe shall provide photographs, video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. Activities may continue while NMFS reviews the circumstances of the incident. (d) Annual report. (1) A draft annual report shall be submitted to NMFS Office of Protected Resources within 90 days after the conclusion of each annual field season. The final annual report after year five may be included as part of the final report (see paragraph (e) of this section). The report will include a summary of the information gathered pursuant to the monitoring requirements set forth above and in the LOA. (2) A final annual report shall be submitted to the Director of the NMFS Office of Protected Resources within 30 days after receiving comments from NMFS on the draft annual report. If no comments are received from NMFS, the draft annual report will be considered the final report. § 217.106 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regulations, UCSC/MARINe must apply for and obtain an LOA. (b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the expiration date of these regulations, UCSC/MARINe may apply for and obtain a renewal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, UCSC/MARINe must apply for and obtain a modification of the LOA as described in § 217.107. (e) The LOA shall set forth: (1) Permissible methods and numbers of incidental taking; (2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations. PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 (g) Notice of issuance or denial of an LOA shall be published in the Federal Register within 30 days of a determination. § 217.107 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 217.106 for the activity identified in § 217.100(a) shall be renewed or modified upon request by the applicant, provided that: (1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), and (2) NMFS’ Office of Protected Resources determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented. (b) For an LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS’ Office of Protected Resources may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and 217.106 for the activity identified in § 217.100(a) may be modified by NMFS’ Office of Protected Resources under the following circumstances: (1) Adaptive Management—NMFS’ Office of Protected Resources may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with UCSC/ MARINe regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA: (A) Results from UCSC/MARINe’s monitoring from the previous year(s). E:\FR\FM\21MRP1.SGM 21MRP1 Federal Register / Vol. 90, No. 54 / Friday, March 21, 2025 / Proposed Rules khammond on DSK9W7S144PROD with PROPOSALS (B) Results from other marine mammal and/or sound research or studies. (C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by this subpart or subsequent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, VerDate Sep<11>2014 16:10 Mar 20, 2025 Jkt 265001 monitoring, or reporting measures are substantial, NMFS’ Office of Protected Resources will publish a notice of proposed LOA in the Federal Register and solicit public comment. (2) Emergencies—If NMFS’ Office of Protected Resources determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in PO 00000 Frm 00027 Fmt 4702 Sfmt 9990 13337 LOAs issued pursuant to §§ 216.106 of this chapter and 217.106, an LOA may be modified without prior notice or opportunity for public comment. Notice will publish in the Federal Register within 30 days of the action. §§ 217.108–217.109 [Reserved] [FR Doc. 2025–04806 Filed 3–20–25; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\21MRP1.SGM 21MRP1

Agencies

[Federal Register Volume 90, Number 54 (Friday, March 21, 2025)]
[Proposed Rules]
[Pages 13322-13337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-04806]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 250317-0040]
RIN 0648-BN36


Take of Marine Mammals Incidental to Specified Activities; Taking 
Marine Mammals Incidental to Rocky Intertidal Monitoring Surveys Along 
the Oregon and California Coasts

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS has received a request from University of California 
Santa Cruz (UCSC) for Incidental Take Regulations (ITR) and an 
associated Letter of Authorization (LOA) pursuant to the Marine Mammal 
Protection Act (MMPA). The requested regulations would govern the 
authorization of take of marine mammals over 5 years (2025-2030) 
incidental to the Multi-Agency Rocky Intertidal Network (MARINe) rocky 
intertidal monitoring surveys along the Oregon and California coasts. 
NMFS requests public comments on this proposed rule. NMFS will consider 
public comments prior to making any final decision on the promulgation 
of the requested ITR and issuance of the LOA.

DATES: Comments and information must be received no later than April 
21, 2025.

ADDRESSES: A plain language summary of this proposed rule is available 
at: https://www.regulations.gov/docket/NOAA-NMFS-2024-0144.
     Electronic submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to: https://www.regulations.gov and enter NOAA-NMFS-2024-0144 in the Search box 
(note: copying and pasting the FDMS Docket Number directly from this 
document may not yield search results). 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 at: 
https://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).
    A copy of UCSC/MARINe's complete submitted application 
(Application), 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/action/incidental-take-authorization-university-california-santa-cruzs-rocky-intertidal-monitoring. In case of problems 
accessing these documents, please call the contact listed below (see 
FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Jennifer Gatzke, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Purpose and Need for Regulatory Action

    This proposed rule, if adopted, would establish a framework under 
the authority of the MMPA (16 U.S.C. 1361 et seq.) to authorize, for a 
5-year period (2025-2030), take of marine mammals incidental to the 
UCSC/MARINe's rocky intertidal research activities in Oregon and 
California.
    NMFS received an incidental take authorization (ITA) application 
from the UCSC/MARINe requesting 5-year regulations and an LOA to take 
four species of marine mammals by Level B harassment (Application). 
Take of harbor seal (Phoca vitulina richardii), Steller sea lion 
(Eumetopias jubatus), northern elephant seal (Mirounga angustirostris), 
and California sea lion (Zalophus californianus) would occur by Level B 
harassment only, incidental to visual and auditory disturbance of 
pinnipeds occurring near research sites. No mortality or serious injury 
is anticipated or proposed for authorization. Please see the Estimated 
Take of Marine Mammals section below for definitions of harassment.
    A previous incidental take authorization was issued in association 
with this ongoing, long-term project. That authorization was issued to 
the UCSC Partnership for Interdisciplinary Studies of Coastal Oceans 
(referred to as UCSC/PISCO). Additional information about that action 
can be found at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-university-california-santa-cruz-rocky-intertidal-monitoring-0.

Legal Authority for the Proposed Action

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made, regulations are 
promulgated, and public notice and an opportunity for public comment 
are provided.
    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. NMFS will 
pay particular attention to (1) rookeries, mating grounds, and areas of 
similar significance, (2) the availability of the species or stocks for 
taking for certain subsistence uses (referred to as ``mitigation''), 
and (3) the requirements

[[Page 13323]]

pertaining to the mitigation, monitoring and reporting of the takings 
are set forth. The definitions of all applicable MMPA statutory terms 
cited above are included below.
    Section 101(a)(5)(A) of the MMPA and the implementing regulations 
at 50 CFR part 216, subpart I, provide the legal basis for proposing 
and, if appropriate, issuing 5-year regulations and an associated LOA. 
This proposed rule, if adopted, would establish required mitigation, 
monitoring, and reporting requirements for the UCSC/MARINe's 
activities.

Summary of Major Provisions Within the Proposed Rule

    The following is a summary of the major provisions of this proposed 
rule regarding UCSC/MARINe's research activities. These provisions 
include measures requiring:
     Mitigation to minimize impact to pinnipeds and avoid 
disruption to dependent pups including several measures to approach 
haulouts cautiously to minimize disturbance, especially when pups are 
present; and
     Monitoring of the research areas to detect the presence of 
marine mammals before initiating surveys.

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 evaluate the proposed action (i.e., promulgation of 
regulations and subsequent issuance of a 5-year LOA) and alternatives 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental harassment authorizations 
(IHAs) with no anticipated serious injury or mortality) of the 
Companion Manual for 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 issuance 
of the proposed rule qualifies to be categorically excluded from 
further NEPA review. Information in the Application and this document 
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 notice of proposed rulemaking 
prior to concluding our NEPA process and prior to making a final 
decision on the request for incidental take authorization.

Summary of UCSC/MARINe Request

    On September 6, 2024, NMFS received the initial Application 
requesting authorization for take of four species of marine mammals 
incidental to rocky intertidal monitoring surveys along the Oregon and 
California coasts. After the applicant responded to our questions and 
submitted a revised Application, NMFS determined the Application was 
adequate and complete on November 26, 2024. On December 5, 2024, we 
published a notice of receipt of the Application in the Federal 
Register, requesting comments and information related to the request 
for 30 days (89 FR 96645). We received no public comments.
    The UCSC/MARINe requests authorization to take the following four 
species of pinnipeds: harbor seal (Phoca vitulina richardii), Steller 
sea lion (Eumetopias jubatus), northern elephant seal (Mirounga 
angustirostris), and California sea lion (Zalophus californianus) by 
Level B harassment only. The proposed regulations would be valid for 5 
years (2025-2030). Neither UCSC/MARINe nor NMFS expects Level A 
harassment, serious injury, or mortality to result from this activity 
and no such take is authorized by this action.
    NMFS previously issued seven IHAs (77 FR 72327, December 5, 2012; 
78 FR 79403, December 30, 2013; 79 FR 73048, December 9, 2014; 81 FR 
7319, February 11, 2016; 82 FR 12568, March 6, 2017; 83 FR 11696, March 
16, 2018; 84 FR 17784, April 26, 2019) to UCSC/PISCO for this work 
before issuing a final rule and associated LOA in 2020 (85 FR 18459, 
April 2, 2020). UCSC/PISCO complied with all the requirements (e.g., 
mitigation, monitoring, and reporting) of the previous IHAs and LOA. 
UCSC monitoring results from 2013 to 2024 may be found in the 
Application, which is available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-university-california-santa-cruzs-rocky-intertidal-monitoring.

Description of Proposed Activity

Overview

    UCSC/MARINe proposes to continue rocky intertidal monitoring work 
that has been ongoing for over 20 years. UCSC/MARINe focuses on 
understanding the nearshore ecosystems of the U.S. west coast through a 
number of interdisciplinary collaborations. The program integrates 
long-term monitoring of ecological and oceanographic processes at 
dozens of sites with experimental work in the lab and field. Research 
is conducted throughout the year along the California and Oregon coasts 
and is expected to continue indefinitely. Researchers accessing and 
conducting research activities on the sites may occasionally result in 
the incidental take of four pinniped species by incidental, Level B 
harassment. UCSC/MARINe expects, and NMFS concurs, that the disturbance 
to pinnipeds from the research activities will be limited to Level B 
harassment. Take by Level A harassment, serious injury, or mortality is 
not authorized by this action.

Dates and Duration

    UCSC/MARINE's research is conducted throughout the year. Most sites 
are sampled one to two times per year over a 1 to 2-day period (4-6 
hours per site) during a negative low tide series (when tides are lower 
than the average). Due to the large number of research sites, 
scheduling constraints, the necessity for negative low tides and 
favorable weather/ocean conditions, exact survey dates are variable and 
difficult to predict. Some sampling may occur in all months of the 
calendar year. Over the course of this 5-year effective period for the 
proposed rule, UCSC/MARINe expects approximately 300 days of survey 
effort. The regulations would become effective as soon as possible and 
would be effective for a period of five years.

Specific Geographic Region

    Sampling sites occur along the California and Oregon coasts. 
Community structure monitoring survey sites range from Ecola State Park 
near Cannon Beach, Oregon to Government Point located northwest of 
Santa Barbara, California. Biodiversity survey sites extend from Ecola 
State Park south to Cabrillo National Monument in San Diego County, 
California. Exact locations of sampling sites can be found in table 1 
of the Application, along with maps at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-university-california-santa-cruzs-rocky-intertidal-monitoring.

Detailed Description of Specific Activity

    Community structure monitoring surveys involve the use of permanent 
photoplot quadrats, which target specific algal and invertebrate 
assemblages (e.g., mussels, rockweeds, barnacles). Each photoplot is 
photographed and scored for percent

[[Page 13324]]

cover. The community structure monitoring approach is based largely on 
surveys that quantify the percent cover and distribution of algae and 
invertebrates that constitute these communities. This approach allows 
researchers to quantify both the patterns of abundance of targeted 
species, as well as characterize changes in the communities in which 
they reside. Such information provides managers with insight into the 
causes and consequences of changes in species abundance. There are a 
total of 49 community structure monitoring sites, each of which will be 
visited one to two times per year (see table 1 of the Application for 
details of each site) and surveyed over a 1-day period during a low 
tide series.
    Biodiversity surveys are part of a long-term monitoring project and 
are conducted every 3-5 years across 150 established sites. These 
biodiversity surveys involve point contact identification along 
permanent transects, mobile invertebrate quadrat counts, sea star band 
counts, and tidal height topographic measurements. Many of the 
biodiversity survey sites are also community structure sites. During 
the five-year period of effectiveness for the regulations, biodiversity 
survey sites will be sampled zero to five times (see tables 3-6 in the 
Application for details of expected survey frequency).
    The intertidal zones where UCSC/MARINe conducts intertidal 
monitoring are also areas where pinnipeds can be found hauled out 
(i.e., temporarily leaving the water) on the shore at or adjacent to 
some research sites. Accessing portions of the intertidal habitat at 
these locations may cause incidental Level B harassment of pinnipeds 
through some unavoidable approaches if pinnipeds are hauled out 
directly in the study plots or while biologists walk from one location 
to another. Disturbance may also occur when researchers replace survey 
marker bolts using an electric rotary hammer drill.
    UCSC/MARINe also plans the occasional use of unmanned aerial 
vehicles (UAVs), which is a new component to this survey activity. They 
operate two quadcopter UAV models: a Da-Jiang Innovations (DJI) 
Miniature Autonomous Vehicle with Intelligent Controller (MAVIC) 2 Pro 
and a DJI Mavic 3 Enterprise. UCSC/MARINe conducts flights from 10-30 
meters altitude for mapping and photography. UAVs can cause behavioral 
response in pinnipeds from both visual and acoustic stimuli. This 
response can range from alertness to flushing (i.e., disturbing from 
its position) depending on factors such as UAV altitude, conditions 
such as ambient noise from swell and wind, and the pinniped's level of 
habituation to disturbance (Christiansen et al. 2016, P[eacute]rez 
Tadeo et al. 2023). UAVs trigger a stronger response when hovering 
compared to when in motion (P[eacute]rez Tadeo et al. 2023). UCSC/
MARINe UAV flights typically occur at 10-30 meters altitude and are 
done autonomously (while under control of a licensed UAV pilot) to map 
the survey area and to achieve proper image overlap for photogrammetry 
processing. Flight speed is typically 1 to 2 meters/second and hovering 
only occurs during take-off and landing. If pinnipeds are present 
during a UAV flight and a response is triggered by the UAV, the pilot 
will take control of the UAV and increase altitude before ending the 
flight to minimize effects on the animals. Please see the Proposed 
Mitigation and Proposed Monitoring and Reporting sections for the 
proposed mitigation, monitoring, and reporting measures.

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) at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. More general information about these species (e.g., 
physical and behavioral descriptions) may be found on NMFS's website 
at: 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 activity 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. 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 (16 U.S.C. 1362(20)). 
While no serious injury or mortality is anticipated or authorized by 
this action, PBR and annual serious injury and mortality from 
anthropogenic sources are included here as gross indicators of the 
status of the species or stocks 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' U.S. Pacific and Alaska SARs. All values presented in table 1 are 
the most recent available at the time of publication (including from 
the Final 2023 SARs) and are available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

                 Table 1--Marine Mammals Potentially Present Near the UCSC/MARINe Research Sites, According to the Most Recent NMFS SARs
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  ESA/ MMPA     Stock abundance (CV,
                                                                                   status;        Nmin, most recent                            Annual M/
           Common name                Scientific name            Stock         strategic (Y/N)    abundance survey)             PBR              SI \3\
                                                                                     \1\                 \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
 sea lions):
    California sea lion..........  Zalophus              U.S.................  -; N             257,606 (n/a;         14,011                        >321
                                    californianus.                                               233,515; 2014).
    Steller sea lion.............  Eumetopias jubatus..  Eastern U.S.........  -; N             36,308 (n/a; 36,308;  2,178 (U.S. only)             92.3
                                                                                                 2022).
Family Phocidae (earless seals):
    Harbor seal..................  Phoca vitulina......  California..........  -; N             30,968 (n/a; 27,348;  1,641                           43
                                                                                                 2012).

[[Page 13325]]

 
                                                         Oregon/Washington...  -; N             24,732 (unknown;      unknown                       10.6
                                                                                                 16,165 mean; 1999)
                                                                                                 \4\.
    Northern elephant seal.......  Mirounga              California..........  -; N             187,386 (n/a;         5,122                         13.7
                                    angustirostris.                                              85,369; 2013).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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 in the near future. Any species or stock listed under the ESA
  is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These Mortality/Serious Injury (M/SI) values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all
  sources combined (e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a
  minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ The most recent abundance estimate for this stock (24,732 animals) is from 1999 surveys (Final 2023 SAR), with a mean calculated at 16,165 animals.

    We note that although the southern sea otter may be found from San 
Francisco south to the Channel Islands, that species is managed by the 
U.S. Fish and Wildlife Service and are not considered further in this 
document.

California Sea Lions

    California sea lions (Zalophus californianus) are distributed along 
the west coast of North America from British Columbia to Baja 
California and throughout the Gulf of California. Breeding occurs on 
offshore islands along the west coast of Baja California and the Gulf 
of California as well as on the California Channel Islands. There are 
three recognized California sea lion stocks (U.S. stock, Western Baja 
stock, and the Gulf of California stock) with the U.S. stock ranging 
from the U.S./Mexico border into Canada. Although there is some 
movement between stocks, U.S. rookeries are considered to be isolated 
from rookeries off of Baja California (Barlow et al. 1995).
    Following the passage of the MMPA in 1972, as well as limits on 
killing and harassment in Mexico, the population has rapidly increased 
(Reeves et al. 2002). Declines in pup production did occur during the 
1983-84, 1992-93, 1997-98, and 2003 El Ni[ntilde]o events, but 
production returned to pre-El Ni[ntilde]o levels within 2-5 years 
(Carretta et al. 2017). In 2013, due to the elevated number of sea lion 
pup strandings in southern California, NOAA declared an Unusual 
Mortality Event (UME), which lasted until September 2016. The cause of 
this event was thought to be nutritional stress related to declines in 
prey availability. California sea lions have been observed in the 
project vicinity at 41 of the research sites (see Application table 4).

Steller Sea Lion

    Steller sea lions (Eumetopias jubatus) range along the North 
Pacific Rim from northern Japan to California, with centers of 
abundance and distribution in the Gulf of Alaska and Aleutian Islands. 
Outside of their late May to early July breeding season, large numbers 
of individuals widely disperse to access seasonally important prey 
resources (Muto et al. 2019). In 1997, NMFS identified two distinct 
population segments (DPSs) of Steller sea lions under the ESA: a 
Western DPS and an Eastern DPS (62 FR 24345, May 5, 1997). While the 
Western DPS is listed as endangered, the Eastern DPS is not. For MMPA 
purposes, the Eastern DPS is called the Eastern U.S. stock and the 
Western DPS is called the Western U.S. stock. The Steller sea lions 
along the Oregon and California coasts are part of the Eastern Stock 
(and DPS). Steller sea lions are rare in the research areas. They have 
only been observed in the project vicinity at Cape Arago in 2009 and 
have not been observed during this research project since then.

Northern Elephant Seal

    Northern elephant seals (Mirounga angustirostris) range widely 
throughout the eastern Pacific for most of the year to forage. They 
return to haulout locations along the west coast of the continental 
United States including the Channel Islands, the central California 
coast, and islands off Baja California, to breed and molt. Breeding 
occurs from mid-December through the end of March, with males returning 
to haulout locations earlier than females to establish dominance 
hierarchies. Molting occurs from late April to August, with juveniles 
and adult females returning to haulout locations earlier than adult 
males (Reeves et al. 2002). Due to very little movement between 
colonies in Mexico and those in California, the California population 
is considered to be a separate stock (Carretta et al. 2019).
    This species was hunted for several thousand years and thought to 
be extinct. (Stewart et al. 1994). The population began increasing in 
the early 1900s and progressively colonized southern and central 
California through the 1980s (Reeves et al. 2002). The population is 
reported to have grown at 3.1 percent annually since 1988 (Lowry et al. 
2020) and have been observed at 14 of the research sites (see 
Application table 5).

Pacific Harbor Seal

    Before federal protections, commercial hunting of harbor seals 
along the west coast depleted the California stock to isolated groups 
in the hundreds (Bartholomew and Boolootian 1960), but the population 
increased in the late 1900s (Carretta et al. 2023). Under the MMPA, 
harbor seals are not considered to be `depleted', nor are they listed 
as `threatened' or `endangered' under the ESA. Based on currently 
available data, minimum numbers of serious injury and mortality, due to 
fishery interactions, research activities, and other human related 
causes, are thought to be low when compared to population sizes of 
stocks (Carretta et al. 2023). A complete count of harbor seals is not 
possible because it relies upon all animals being hauled out of the 
water at the same time, and pups enter the water almost immediately 
following birth.
    Pacific harbor seals (Phoca vitulina richardii) inhabit near-shore 
coastal and estuarine areas from Baja California, Mexico, to the 
Pribilof Islands in Alaska. They are divided into two subspecies: P. v. 
stejnegeri in the western North Pacific, near Japan, and P. v. 
richardii in the northeast Pacific Ocean. The latter subspecies 
includes two stocks protected under the MMPA

[[Page 13326]]

in the project area: the Oregon and Washington Coast stock in the outer 
coastal waters of Oregon and Washington States, and the California 
stock (Carretta et al. 2019).
    In Oregon there are over 40 haulout sites (Brown et al. 2005), 
while in California, over 500 harbor seal haulout sites are widely 
distributed along the mainland and offshore islands, and include rocky 
shores, beaches and intertidal sandbars (Lowry et al. 2005). Harbor 
seals mate at sea, and females give birth during the spring and summer, 
although, the pupping season varies with latitude. Pups are nursed for 
an average of 24 days and are ready to swim minutes after being born. 
Harbor seal pupping takes place at many locations, and rookery size 
varies from a few pups to many hundreds of pups. Pupping generally 
occurs between March and June, and molting occurs between May and July.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a discussion of the ways that components of 
the specified activity may impact marine mammals and their habitat. The 
Estimated Take of Marine Mammals 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 of Marine Mammals section, and the Proposed Mitigation 
section, to draw conclusions regarding the likely impacts of these 
activities on the reproductive success or survivorship of individuals 
and how those impacts on individuals are likely to impact marine mammal 
species or stocks.
    The presence of researchers has the potential for the incidental 
take of pinnipeds hauled out at sampling sites by Level B harassment 
of. If pinnipeds are hauled out in the immediate vicinity of the 
permanent study plots, approach by survey personnel may be unavoidable 
in order to conduct the research. Disturbance from such approach may 
result in reactions ranging from an animal simply becoming alert to the 
presence of researchers (e.g., turning the head, assuming a more 
upright posture) to flushing from the haulout site into the water. NMFS 
does not consider these lesser reactions to constitute take by Level B 
harassment, but rather assumes that more substantive responses (e.g., 
flight over greater distance or notable change in the speed or 
direction of their movement in response to the presence of researchers) 
constitute behavioral harassment. Animals that respond to the presence 
of researchers by becoming alert, but do not move or change the nature 
of locomotion as described, are not considered to have been subject to 
Level B harassment.
    Numerous studies have shown that human activity can flush harbor 
seals off haulout sites (Allen et al. 1985, Suryan and Harvey 1999). 
The Hawaiian monk seal (Neomonachus schauinslandi) has been shown to 
avoid beaches that have been disturbed often by humans (Kenyon 1972). 
Moreover, in one case, human disturbance appeared to cause Steller sea 
lions to desert a breeding area at Northeast Point on St. Paul Island, 
Alaska (Kenyon 1962).
    There are several ways in which disturbance, as described 
previously, could potentially result in Level A harassment, which is 
defined as any act of pursuit, torment, or annoyance which has the 
potential to injure a marine mammal or marine mammal stock in the wild 
(16 U.S.C. 1362(18)(A)(i)). Stampeding, a potentially dangerous 
occurrence in which large numbers of animals succumb to mass panic and 
rush away from a stimulus, can lead to injury. The risks for injury are 
(1) falling when entering the water at high-relief locations; (2) 
extended separation of mothers and pups; and (3) crushing of elephant 
seal pups by large males during a stampede. UCSC researchers have only 
recorded one instance of stampeding, which occurred in 2013. Because 
pups are typically found on sand beaches, and the study sites are 
located in the rocky intertidal zone, there is typically a buffer 
between researchers and pups. The caution exercised by researchers in 
approaching sites generally precludes the possibility of behaviors that 
could result in extended separation of mothers and dependent pups, or 
trampling of pups (e.g., stampeding).
    Because hauled out animals may move towards the water when 
disturbed, there is the risk of injury if animals stampede towards 
shorelines with precipitous relief (e.g., cliffs). Shoreline habitats 
near the survey areas tend to consist of steeply sloping rocks with 
unimpeded and unobstructed access to the water. If disturbed, hauled 
out animals in these situations are likely to move toward the water 
slowly without risk of unexpectedly falling off cliffs or encountering 
barriers or hazards or that would otherwise prevent them from leaving 
the area. Using a cautious approach (i.e., following mitigation 
measures), research activity is not likely to risk injury or death as a 
result of disturbance at these high-relief locations. Therefore, it is 
unlikely that these disturbances will result in Level A harassment, 
serious injury, or mortality, and NMFS is not proposing to authorize 
take by Level A harassment, serious injury, or mortality resulting from 
this research activity. A small number of harbor seal, northern 
elephant seal, and California sea lion pups have been observed in the 
research area during past years, and few pups are expected to be 
present during the proposed monitoring surveys. Though elephant seal 
pups are occasionally present when researchers visit survey sites, risk 
of pup mortalities is low because elephant seals are far less reactive 
to researcher presence than the other two species. Due to the 
implementation of mitigation measures, it is unlikely that harbor seal 
pups will be injured. Surveys are timed to avoid harbor seal breeding 
season (March through June), and researchers shall abort the survey if 
they arrive and see harbor seal pups are present.
    The only habitat modification associated with the proposed activity 
is the placement of permanent bolts and temporary sampling equipment in 
the intertidal zone. The installation of bolts and sampling equipment 
is conducted under the appropriate permits (National Marine Sanctuary, 
California State Parks). Once a particular study has ended, the 
respective sampling equipment is removed, while the bolts remain. No 
trash or field gear is left at a site. Since these sites are only 
visited one to two times per year, minimizing repeated disturbances, 
sampling activities are not expected to result in long-term 
modifications of haulout use, nor haulout abandonment. During periods 
of low tide (e.g., when tides are 0.6 m (2 ft) or less and low enough 
for pinnipeds to haul out), we would expect the pinnipeds to return to 
the haulout site within 60 minutes of the disturbance (Allen et al. 
1985).
    During prior authorizations, only temporary displacement from 
haulouts has been observed, so we do not expect that pinnipeds will 
permanently abandon a haulout site during the conduct of rocky 
intertidal surveys. Additionally, impacts to prey species from survey 
activities are not anticipated. Thus, the proposed activity is not 
expected to have any habitat-related effects that could cause 
significant or long-term consequences for individual marine mammals or 
their populations.

Estimated Take of Marine Mammals

    This section provides an estimate of the number of incidental takes 
of the four species of pinnipeds by Level B harassment proposed for 
authorization through this proposed rule, which will

[[Page 13327]]

inform both NMFS' consideration of ``small numbers'' and the negligible 
impact determination.
    Harassment, defined previously in the Purpose and Need for 
Regulatory Action section, is the only type of take expected to result 
from these activities.
    Authorized takes would be by Level B harassment only, in the form 
of potential disruption of behavioral patterns for individual marine 
mammals resulting from exposure to researchers and the operation of 
their equipment. Based on the nature of the activity, Level A 
harassment is neither anticipated nor proposed to be authorized. As 
described previously, no mortality is anticipated or proposed to be 
authorized for this activity. We describe how the proposed take numbers 
are estimated below. Monitoring reports from the previously issued LOA 
(2020-2025), including Level B harassment take numbers, are available 
on our website at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-university-california-santa-cruz-rocky-intertidal-monitoring-0.

Marine Mammal Occurrence

    In this section, we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations. Take estimates are based on historical marine mammal 
observations from 2013-2024 at each site from previous UCSC/PISCO 
(MARINe) survey activities. Marine mammal observations are recorded as 
part of research site observations, including notes on physical and 
biological conditions at the site, completed on each study day. From 
2013-2024 observations were categorized on a four point scale:

 0 = observation by researchers from a distance, no reaction by 
pinniped
 1 = pinniped reacted to presence of researchers with movement 
<1 meter
 2 = pinniped reacted to presence of researchers with short 
movement of 1-3 meters
 3 = pinniped flushed (i.e., disturbed from its position) to 
the water or moved >3 meters in retreat

    A marine mammal is recorded as an ``encounter'' (i.e., at least 
level 0 on the above scale) if it is seen on access ways to the site, 
at the site, or immediately up-coast or down-coast of the site, 
regardless of whether that animal was considered a take under the MMPA. 
Also recorded are marine mammals in the water immediately offshore. 
Using the above scale, level 2 and level 3 observations constitute a 
take under the MMPA.
    Once sampling is concluded, researchers record the maximum number 
of marine mammals (by species) sighted at any given time throughout the 
sampling day (categories 0 through 3). Other relevant information is 
also noted, including the location of a marine mammal relevant to the 
site, unusual behavior, and the presence of pups.

Take Calculation and Estimation

    Researchers with extensive knowledge and experience at each site 
estimated the actual number of marine mammal takes likely to occur, 
using the observations described above. Take estimates for each species 
were based on the following equation:

Take estimate/survey site = # of expected animals/site * # of planned 
survey events/survey site.

    UCSC/MARINe summed the total number of each species of marine 
mammal ``encountered'' at each research site during the period from 
2013 to 2024 (observations score between 0 to 3 on the above scale). To 
calculate the number of expected animals per site, they summed the 
number of sampling events where marine mammals were encountered at each 
site and calculated the average number of encounters per event (see 
tables 2-5). Less than 40 percent of all encounters qualified as 
incidental take by Level B harassment (see Application Section 6); 
therefore, calculated take estimates are expected to be conservative. 
The maximum number of planned survey events per survey site is listed 
in tables 2-5. For Steller sea lions, the single sighting from 2009 was 
used in this analysis. Calculation results for the take estimate by 
species per survey site can also be found in tables 2-5.
    In coming years, UCSC plans to re-establish monitoring plots for 
historic black abalone (an endangered marine gastropod) on Ano Nuevo 
Island, CA. Since they did not have monitoring data to inform their 
take estimates, these estimates were calculated based on prior 
experience on the island, as well as discussions with Ano Nuevo Reserve 
personnel and other UCSC researchers who conduct studies on the island. 
Site visits are planned for the fall during non-breeding season for 
marine mammals. Locations of fall sea lion and elephant seal haulouts 
were compared to the research plots to establish the best estimates for 
species occurrence per site.
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                Table 3--Data and Calculations To Estimate Proposed Take of California Sea Lions
----------------------------------------------------------------------------------------------------------------
                                                                           Expected maximum
                          Site                              Encounters/    number of  survey    Calculated take
                                                               event       events 2025-2030        2025-2030
----------------------------------------------------------------------------------------------------------------
Alder Creek.............................................               1                   0                   0
Andrew Molera...........................................               1                  10                  10
Bird Rock...............................................            30.5                   1                  31
Bodega..................................................            2.75                   5                  14
Cape Arago..............................................            15.5                   5                  78
Cayucos.................................................               1                   5                   5
Crook Point.............................................               3                   0                   0
Cuyler Harbor...........................................               1                   1                   1
Del Mar Landing.........................................             6.5                   1                   7

[[Page 13330]]

 
Eel Point...............................................             1.5                   2                   3
Enderts.................................................               2                   5                  10
False Klamath Cove......................................             2.3                   5                  12
Franklin Point..........................................               2                   5                  10
Fraser Cove.............................................               1                   1                   1
Gerstle Cove............................................               1                   5                   5
Government Point........................................             3.5                  25                  88
Kibesillah Hill.........................................             1.5                   5                   8
Marker poles............................................             200                   0                   0
Middle West.............................................               1                   1                   1
Old Stairs..............................................             1.5                   1                   2
Otter Harbor............................................              13                   0                   0
Partington Cove.........................................               1                   5                   5
Piedras Blancas.........................................            27.5                   5                 138
Point Conception........................................               1                   1                   1
Point Dume..............................................               4                   0                   0
Point Lobos.............................................               1                  10                  10
Point Pinos.............................................               1                   5                   5
Point Sierra Nevada.....................................               1                   5                   5
Punta Arena.............................................               1                   0                   0
Purisma.................................................               1                   5                   5
Sandhill Bluff..........................................               6                  10                  60
Scott Creek.............................................               1                  10                  10
Sea Lion Rookery........................................              40                   1                  40
Sea Ranch...............................................               3                   5                  15
Shell Beach.............................................               1                   5                   5
Shelter Cove............................................             1.5                   5                   8
Soberanes...............................................             2.5                   5                  13
Stairs..................................................               1                   5                   5
Stillwater..............................................             1.5                  10                  15
Stornetta...............................................             1.3                   5                   7
Terrace Point...........................................             1.6                  10                  17
Ano Nuevo Island........................................  ..............                   5               2,500
                                                         -------------------------------------------------------
    Total...............................................  ..............  ..................               3,150
----------------------------------------------------------------------------------------------------------------


                   Table 4--Data and Calculations To Estimate Proposed Take of Elephant Seals
----------------------------------------------------------------------------------------------------------------
                                                                           Expected maximum
                          Site                              Encounters/    number of  survey    Calculated take
                                                               event       events 2025-2030        2025-2030
----------------------------------------------------------------------------------------------------------------
Ano Nuevo...............................................               5                   1                   5
Boat House..............................................             5.5                  10                  55
Chimney Rock............................................            12.8                   5                  64
Coches Prietos..........................................               1                   0                   0
Crook Point.............................................             1.5                   0                   0
Cuyler Harbor...........................................             1.5                   1                   2
Government Point........................................               3                  25                  75
Harmony Headlands.......................................               1                   5                   5
Marker Poles............................................             200                   0                   0
Mill Creek..............................................               1                  10                  10
Otter Harbor............................................             4.5                   0                   0
Piedras Blancas.........................................             7.8                   5                  39
Point Sierra Nevada.....................................               1                   5                   5
Tranquility Beach.......................................              50                   0                   0
Ano Nuevo Island........................................  ..............                   5                 500
                                                         -------------------------------------------------------
    Total...............................................  ..............  ..................                 760
----------------------------------------------------------------------------------------------------------------


                  Table 5--Data and Calculations To Estimate Proposed Take of Steller Sea Lions
----------------------------------------------------------------------------------------------------------------
                                                                           Expected maximum
                          Site                              Encounters/    number of survey     Calculated take
                                                               event       events 2025-2030        2025-2030
----------------------------------------------------------------------------------------------------------------
Cape Arago..............................................               5                   5                  50

[[Page 13331]]

 
Ano Nuevo Island........................................  ..............                   5                  25
                                                         -------------------------------------------------------
    Total...............................................  ..............  ..................                  75
----------------------------------------------------------------------------------------------------------------

    The species' totals for each survey site were summed to arrive at a 
total estimated take for the entire duration of the proposed rule 
across all four impacted species of pinnipeds. This is listed as the 
total take (table 6).

  Table 6--Proposed Authorized Incidental Take by Level B Harassment (in Total and per Year) and Percentage of
                                              Populations Affected
----------------------------------------------------------------------------------------------------------------
                                                                            Proposed authorized incidental take
                                                      Abundance (Caretta         (Level B harassment only)
                      Species                         et al. 2023, Young  --------------------------------------
                                                         et al. 2023)      Take over 5    Take per       % of
                                                                              years         year      population
----------------------------------------------------------------------------------------------------------------
Harbor seal--CA stock (Phoca vitulina).............                30,968         1462          292         0.94
Harbor seal--WA/OR stock (Phoca vitulina)..........                24,732          150           30         0.12
California sea lion (Zalophus californianus).......               257,606         3150          630         0.24
Northern elephant seal (Mirounga angustirostris)...               187,386          760          152         0.08
Steller sea lion ((Eumetopias jubatus).............                36,308           75           15         0.04
----------------------------------------------------------------------------------------------------------------

Proposed Mitigation

    Under section 101(a)(5)(D) of the MMPA, NMFS must set forth the 
permissible methods of taking pursuant to the activity, and other means 
of effecting the least practicable impact on the species or stock and 
its habitat, paying particular attention to rookeries, mating grounds, 
and areas of similar significance, and on the availability of the 
species or stock for taking for certain subsistence uses (the latter is 
not applicable for this action). NMFS regulations require applicants 
for incidental take authorizations to include information about the 
availability and feasibility (economic and technological) of equipment, 
methods, and manner of conducting the activity or other means of 
effecting the least practicable adverse impact upon the affected 
species or stocks, and their habitat (50 CFR 216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, NMFS 
considers 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 (e.g., likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented (i.e., 
probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability of 
accomplishing the mitigating result if implemented as planned); and
    (2) The practicability of the measures for applicant 
implementation, which may consider cost and impact on operations.
    UCSC/MARINe will implement several mitigation measures to reduce 
potential take by Level B harassment. Measures are listed below.
     Researchers will observe a site from a distance for at 
least 5 minutes, using binoculars, if necessary, to detect any marine 
mammals prior to approach to determine if mitigation is required (i.e., 
site surveys will not be conducted if other pinnipeds are present, 
researchers will approach with caution, walking slowly, quietly, and 
close to the ground to avoid surprising any hauled out individuals and 
to reduce flushing/stampeding of individuals).
     Researchers will avoid pinnipeds along access ways to 
sites by locating and taking a different access route. Researchers will 
keep a safe distance from, and not approach, any marine mammal while 
conducting research unless it is absolutely necessary to flush (i.e., 
disturb from its position) a marine mammal in order to continue 
conducting research (i.e. if a site cannot be accessed or sampled due 
to the presence of pinnipeds).
     Researchers will avoid making loud noises (e.g., using 
hushed voices) and keep bodies low to the ground (i.e., crouched) in 
the visual presence of pinnipeds.
     Researchers will monitor the offshore area for predators 
(e.g., killer whales and great white sharks) and avoid flushing of 
pinnipeds when predators are observed in nearshore waters. Note that 
UCSC/MARINe has never observed an offshore predator while researchers 
were present at any of the survey sites.
     Intentional approach will not occur if dependent pups are 
present to avoid mother/pup separation and trampling of pups. Staff 
shall reschedule work at sites where pups are present unless other 
means of accomplishing the work can be done without causing disturbance 
to mothers and dependent pups.
     When operating UAVs around pinnipeds, altitude will not 
drop below 10 meters.
     Researchers will promptly vacate sites at the conclusion 
of sampling.
    The primary methods of mitigating the risk of disturbance to 
pinnipeds is the selection of judicious routes of approach to study 
sites, avoiding close contact with pinnipeds hauled out on shore, and 
the use of extreme caution upon approach. Each visit to a given study 
site will last for approximately 4-6 hours, after which the site is 
vacated and can be re-occupied by any marine mammals that may have been 
disturbed by the presence of researchers. Also,

[[Page 13332]]

workers will be arriving before low tide, worker presence will tend to 
encourage pinnipeds to move to other areas for the day before they haul 
out and settle onto rocks at low tide.
    Based on our evaluation of the applicant's proposed measures, NMFS 
has preliminarily determined that the proposed mitigation measures 
provide the means effecting the least practicable impact on the 
affected species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.

Proposed Monitoring and Reporting

    In order to issue regulations and an LOA for an activity, Section 
101(a)(5)(A) of the MMPA states that NMFS must set forth requirements 
pertaining to the monitoring and reporting of such taking. The MMPA's 
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); and
     Mitigation and monitoring effectiveness.
    UCSC/MARINe will contribute to the knowledge of pinnipeds in 
California and Oregon by noting observations of: (1) unusual behaviors, 
numbers, or distributions of pinnipeds, such that any potential follow-
up research can be conducted by the appropriate personnel; (2) tag-
bearing carcasses of pinnipeds, allowing transmittal of the information 
to appropriate agencies and personnel; and (3) rare or unusual species 
of marine mammals for agency follow-up.
    Proposed monitoring requirements in relation to UCSC/MARINe's rocky 
intertidal monitoring will include observations made by the applicant. 
Information recorded will include species counts (with numbers of pups/
juveniles) of animals present before approaching, numbers of observed 
disturbances (based on the scale below), and descriptions of the 
disturbance behaviors during the monitoring surveys, including 
location, date, and time of the event. For consistency, any reactions 
by pinnipeds to researchers will be recorded according to a three-point 
scale shown in table 7. Note that only observations of disturbance 
levels 2 and 3 should be recorded as takings.

                               Table 7--Levels of Pinniped Behavioral Disturbance
----------------------------------------------------------------------------------------------------------------
                  Level                         Type of response                       Definition
----------------------------------------------------------------------------------------------------------------
0.......................................  Observation................  Observation by researchers from a
                                                                        distance; no disturbance to pinniped.
1.......................................  Alert......................  Seal head orientation or brief movement
                                                                        in response to disturbance, which may
                                                                        include turning head towards the
                                                                        disturbance, craning head and neck while
                                                                        holding the body rigid in a u-shaped
                                                                        position, changing from a lying to a
                                                                        sitting position, or brief movement of
                                                                        less than twice the animal's body
                                                                        length.
2.......................................  Movement...................  Movements away from the source of
                                                                        disturbance, ranging from short
                                                                        withdrawals at least twice the animal's
                                                                        body length to longer retreats over the
                                                                        beach, or if already moving a change of
                                                                        direction of greater than 90 degrees.
3.......................................  Flush......................  All retreats (flushes) to the water.
----------------------------------------------------------------------------------------------------------------

    In addition, observations regarding the number and species of any 
marine mammals observed (either in the water or hauled out at, or 
adjacent to, a research site) are recorded as part of field 
observations during research activities. Information regarding physical 
and biological conditions pertaining to a site, as well as the date and 
time that research was conducted, will also be recorded. This 
information will be incorporated into a monitoring report for NMFS and 
raw data will be provided.
    If at any time the specified activity clearly causes the take of a 
marine mammal in a prohibited manner such as an injury (Level A 
harassment), serious injury, or mortality, UCSC/MARINe shall 
immediately cease the specified activities and report the incident to 
the Office of Protected Resources, NMFS, and the West Coast Regional 
Stranding Coordinator, NMFS. The report must include the following 
information:
    (1) Time and date of the incident;
    (2) Description of the incident;
    (3) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    (4) Description of all marine mammal observations in the 24 hours 
preceding the incident;
    (5) Species identification or description of the animal(s) 
involved;
    (6) Fate of the animal(s); and
    (7) Photographs or video footage of the animal(s) (if equipment is 
available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with UCSC/MARINe 
to determine what measures are necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. UCSC/MARINe may not 
resume the activities until notified by NMFS.
    In the event that UCSC/MARINe discovers an injured or dead marine 
mammal and determines that the cause of the injury or death is unknown 
and the death is relatively recent (e.g., in less than a moderate state 
of

[[Page 13333]]

decomposition), UCSC/MARINe shall immediately report the incident to 
the Office of Protected Resources, NMFS, and the West Coast Regional 
Stranding Coordinator, NMFS. The report must include the same 
information identified in the paragraph above. Activities may continue 
while NMFS reviews the circumstances of the incident. NMFS will work 
with UCSC/MARINe to determine whether additional mitigation measures or 
modifications to the activities are appropriate.
    In the event that an injured or dead marine mammal is discovered 
and it is determined that the injury or death is not associated with or 
related to the activities authorized in the regulations and LOA (e.g., 
previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), UCSC/MARINe shall report the 
incident to the Office of Protected Resources, NMFS, and the West Coast 
Regional Stranding Coordinator, NMFS, within 24 hours of the discovery. 
UCSC/MARINe shall provide photographs, video footage (if available) or 
other documentation of the stranded animal sighting to NMFS and the 
Marine Mammal Stranding Network. Activities may continue while NMFS 
reviews the circumstances of the incident.
    A draft annual report shall be submitted to NMFS Office of 
Protected Resources within 90 days after the conclusion of each annual 
field season (50 CFR 217.105(d)(1)). The report will include a summary 
of the information gathered pursuant to the monitoring requirements set 
forth above and in the LOA. A final annual report shall be submitted to 
the Director of the NMFS Office of Protected Resources within 30 days 
after receiving comments from NMFS on the draft annual report (50 CFR 
217.105(d)(2)). If no comments are received from NMFS, the draft annual 
report will be considered the final report.

Monitoring Results From Previously Authorized Activities

    UCSC/MARINe complied with the mitigation and monitoring that were 
required under the prior IHAs issued from 2013 to 2019, and the LOA 
issued in 2020. In compliance with those IHAs, they submitted reports 
detailing the activities and marine mammal monitoring they conducted, 
the most recent report submitted in 2024 and accessible at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-university-california-santa-cruz-rocky-intertidal-monitoring-0. The IHAs required 
UCSC/MARINe to conduct counts of pinnipeds present at study sites prior 
to approaching the sites and to record species counts and any observed 
reactions to the presence of the researchers. These monitoring results 
were discussed above in the Estimated Take of Marine Mammals section.
    Based on the results from the monitoring reports, we conclude that 
the mitigation measures set forth in the previous authorizations 
effected the least practicable impact on the species or stocks. There 
were no stampede events during these years and most disturbances were 
level 1 and 2 on the disturbance scale (see table 3), meaning the 
animal did not fully flush but observed or moved slightly in response 
to researchers. Those that did fully flush to the water did so slowly. 
Most of these animals tended to observe researchers from the water and 
then re-haul out farther up-coast or down-coast of the site within 
approximately 30 minutes of the disturbance.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338, September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    To avoid repetition, the discussion of our analyses applies to all 
the species listed in table 6, given that the anticipated effects of 
this activity on these different marine mammal stocks are expected to 
be similar. There is little information about the nature or severity of 
the impacts, or the size, status, or structure of any of these species 
or stocks that would lead to a different analysis for this activity. 
Research activities have the potential to disturb or displace marine 
mammals. Specifically, the project activities may result in take, in 
the form of Level B harassment from researcher's movements and 
equipment handling. Potential takes could occur if individuals of these 
species are present nearby when these activities are underway. No 
injuries or mortalities are anticipated to occur as a result of UCSC/
MARINe's rocky intertidal monitoring surveys and none are proposed to 
be authorized.
    Typically, even those reactions constituting Level B harassment 
would result, at most, in a temporary, short-term behavioral 
disturbance. In any given study season, researchers will visit select 
sites one to two times per year for 4-6 hours per visit. Therefore, 
disturbance of pinnipeds resulting from the presence of researchers 
lasts only for short periods. These short periods of disturbance 
lasting less than a day are separated by months or years. Community 
structure sites are visited at most twice per year and the visits occur 
in different seasons. Biodiversity surveys take place at a given 
location once every 3-5 years.
    Of the marine mammal species anticipated to occur in the proposed 
activity areas, none are listed under the ESA. Taking into account the 
planned mitigation measures, effects to marine mammals are generally 
expected to be restricted to short-term changes in behavior or 
temporary abandonment of haulout sites, pinnipeds are not expected to 
permanently abandon any area that is surveyed by researchers, as is 
evidenced by continued presence of pinnipeds at the sites during annual 
monitoring counts. No adverse effects to prey species are anticipated 
and habitat impacts are limited and highly localized, consisting of the 
placement of permanent bolts and temporary research equipment in the 
intertidal zone. Based on this analysis of the likely effects of the 
specified activity on marine mammals and their habitat, and considering 
the implementation of the proposed mitigation and monitoring measures, 
NMFS finds that the total marine mammal incidental take from UCSC/
MARINe's rocky intertidal monitoring program will not adversely affect 
annual rates of recruitment or survival. Therefore, such incidental 
take

[[Page 13334]]

will have a negligible impact on the affected species or stocks.
    In summary and as described above, the following factors primarily 
support our preliminary determination that the impacts resulting from 
this activity are not expected to adversely affect the species or stock 
through effects on annual rates of recruitment or survival:
     No Level A harassment, serious injury or mortality is 
anticipated or authorized;
     Only a small number of pups are expected to be disturbed;
     Effects of the survey activities would be limited to 
short-term, localized behavioral changes;
     Nominal impacts to pinniped habitat are anticipated; and
     Mitigation measures are anticipated to be effective in 
minimizing the number and severity of takes by Level B harassment, 
which are expected to be of short duration.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed activity will have a negligible impact on 
all affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, where estimated numbers are 
available, NMFS compares the number of individuals taken to the most 
appropriate estimation of abundance of the relevant species or stock in 
our determination of whether an authorization is limited to small 
numbers of marine mammals. Additionally, other qualitative factors may 
be considered in the analysis (e.g., the temporal or spatial scale of 
the activities).
    The amount of take NMFS proposes to authorize is 0.04 to 0.94 
percent of any stock's best population estimate (see table 6). These 
are likely conservative estimates because they assume all encounters 
result in take, which has not historically been the case.
    Based on the analysis contained herein of the proposed activity, 
including the proposed mitigation and monitoring measures, and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals will be taken relative to the population size 
of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
the UCSC/MARINe's research activities would contain an adaptive 
management component. The reporting requirements associated with this 
proposed rule are designed to provide NMFS with annual monitoring data 
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 on an annual basis if mitigation or 
monitoring measures should be modified (including additions or 
deletions). Mitigation measures could be modified if new data suggests 
that such modifications would have a reasonable likelihood of reducing 
adverse effects to marine mammals and if the measures are practicable.
    The following are some of the possible sources of applicable data 
to be considered through the adaptive management process: (1) results 
from 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 LOAs 
issues pursuant to these regulations.

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 ensures that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of proposed 
rules, NMFS consults internally with scientific and regulatory subject 
matter experts whenever we propose to authorize take for endangered or 
threatened species.
    No incidental take of any 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 Additional Information and Public Comment

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

Classification

    The Office of Management and Budget has determined that this 
proposed rule is not significant for purposes of Executive Order 12866. 
Pursuant to Executive Order 14192, this proposed rule is considered a 
deregulatory action.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
UCSC/MARINe is the sole entity that would be subject to the 
requirements in these proposed regulations, and UCSC/MARINe is not a 
small governmental jurisdiction, organization, or business as defined 
by the RFA. Because of this certification, an initial regulatory 
flexibility analysis is not required and none has been prepared.
    This proposed rule does contain collection-of-information 
requirements subject to the provisions of the Paperwork Reduction Act 
(PRA) (44 U.S.C. 3501-3521). Notwithstanding any other provision of 
law, no person is required to respond to, nor shall a person be subject 
to, a penalty for failure to comply with a collection of information 
subject to the requirements of the PRA unless that collection of 
information displays a currently valid Office of Management and Budget 
(OMB) control number. These requirements have been approved by OMB 
under control number 0648-0151 and include the applications for 
regulations, subsequent LOA, and reports. Submit comments regarding any 
aspect of this data collection, including

[[Page 13335]]

suggestions for reducing the burden, to NMFS (see ADDRESSES section) 
and through the Regulatory Dashboard at: https://www.reginfo.gov.

    Dated: March 17, 2025.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

List of Subjects in 50 CFR Part 217

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties, Reporting and recordkeeping requirements, Seafood, 
Transportation.

    For reasons set forth in the preamble, National Oceanic and 
Atmospheric Administration proposes to amend 50 CFR part 217 as 
follows:

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

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

    Authority:  16 U.S.C. 1361 et seq., unless otherwise noted.
0
2. Revise and republish subpart K to part 217 to read as follows:

Subpart K--Taking Marine Mammals Incidental to Rocky Intertidal 
Monitoring Surveys Along the Oregon and California Coasts

Sec.
217.100 Specified activity and specified geographical region.
217.101 Effective dates.
217.102 Permissible methods of taking.
217.103 Prohibitions.
217.104 Mitigation requirements.
217.105 Requirements for monitoring and reporting.
217.106 Letters of Authorization.
217.107 Renewals and modifications of Letters of Authorization.
Sec.  217.108-217.109 [Reserved]


Sec.  217.100  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the University of 
California Santa Cruz's Multi-Agency Rocky Intertidal Network (UCSC/
MARINe) and those persons it authorizes or funds to conduct activities 
on its behalf for the taking of marine mammals that occur in the areas 
outlined in paragraph (b) of this section and that occur incidental to 
rocky intertidal monitoring research surveys.
    (b) The taking of marine mammals by UCSC/MARINe may be authorized 
in a Letter of Authorization (LOA) only if it occurs on the coasts of 
Oregon or California.


Sec.  217.101  Effective dates.

    Regulations in this subpart are effective for a period of 5 years 
from the date of effectiveness.


Sec.  217.102  Permissible methods of taking.

    Under LOAs issued pursuant to Sec. Sec.  216.106 of this chapter 
and 217.106, the Holder of the LOA (hereinafter ``UCSC/MARINe'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  217.100(b) by Level B harassment associated 
with rocky intertidal monitoring activities, provided the activity is 
in compliance with all terms, conditions, and requirements of the 
regulations in this subpart and the appropriate LOA.


Sec.  217.103  Prohibitions.

    Notwithstanding takings contemplated in Sec.  217.100 and 
authorized by an LOA issued under Sec. Sec.  216.106 of this chapter 
and 217.106, no person in connection with the activities described in 
Sec.  217.100 may:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Sec. Sec.  216.106 
of this chapter and 217.106;
    (b) Take any marine mammal not specified in such LOA;
    (c) Take any marine mammal specified in such LOA in any manner 
other than as specified in Sec.  217.102;
    (d) Take a marine mammal specified in such LOA if NMFS determines 
such taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (e) Take a marine mammal specified in such LOA if NMFS determines 
such taking results in an unmitigable adverse impact on the species or 
stock of such marine mammal for taking for subsistence uses.


Sec.  217.104  Mitigation requirements.

    When conducting the activities identified in Sec.  217.100(a), the 
mitigation measures contained in any LOA issued under Sec. Sec.  
216.106 of this chapter and 217.106 must be implemented. These 
mitigation measures shall include but are not limited to:
    (1)(a) General conditions. (1) Researchers must observe a site from 
a distance for at least five minutes, using binoculars if necessary, to 
detect any marine mammals prior to approach to determine if mitigation 
is required. Site surveys will not be conducted if other species of 
pinnipeds are present. Researchers will approach with caution, walking 
slowly, quietly, and close to the ground to avoid surprising any hauled 
out individuals and to reduce flushing (i.e., disturbing from its 
position).
    (2) Researchers shall avoid pinnipeds along access ways to sites by 
locating and taking a different access way. Researchers shall keep a 
safe distance from and not approach any marine mammal while conducting 
research, unless it is absolutely necessary to approach a marine mammal 
in order to continue conducting research (i.e., if a site cannot be 
accessed or sampled due to the presence of pinnipeds).
    (3) Researchers shall avoid making loud noises (e.g., using hushed 
voices) and keep bodies low to the ground in the visual presence of 
pinnipeds.
    (4) Researchers shall monitor the offshore area for predators 
(e.g., killer whales and great white sharks) and avoid flushing of 
pinnipeds when predators are observed in nearshore waters.
    (5) Researchers shall promptly vacate sites at the conclusion of 
sampling.
    (6) Researchers shall not operate unmanned aerial vehicles (UAVs) 
at an altitude below 10 meters while in the presence of pinnipeds.
    (b) Pup protection measures. (1) Intentional approach will not 
occur if dependent pups are present to avoid mother/pup separation and 
trampling of pups. Staff shall reschedule work at sites where pups are 
present, unless other means of accomplishing the work can be done 
without causing disturbance to mothers and dependent pups.
    (2) [Reserved]


Sec.  217.105  Requirements for monitoring and reporting.

    (a) Visual monitoring program. (1) Standard information recorded 
will include species counts (with numbers of pups/juveniles when 
possible) of animals present before approaching, numbers of observed 
disturbances, and descriptions of the disturbance behaviors during the 
monitoring surveys, including location, date, and time of the event.
    (2) UCSC/MARINe must note observations of:
    (i) Unusual behaviors, numbers, or distributions of pinnipeds, such 
that any potential follow-up research can be conducted by the 
appropriate personnel;
    (ii) Tag-bearing carcasses of pinnipeds, allowing transmittal of 
the information to appropriate agencies and personnel; and
    (iii) Rare or unusual species of marine mammals for agency follow-
up.
    (3) For consistency, any reactions by pinnipeds to researchers must 
be recorded according to a three-point pinniped disturbance scale 
included in any LOA issued under Sec.  216.106 of this chapter and 
Sec.  217.106.

[[Page 13336]]

    (4) UCSC/MARINE must note information regarding the date and time 
that research is conducted, as well as the physical and biological 
conditions pertaining to a site.
    (b) Prohibited take. (1) If at any time the specified activity 
clearly causes the take of a marine mammal in a manner prohibited by 
these regulations or LOA, such as an injury (Level A harassment), 
serious injury, or mortality, UCSC/MARINe shall immediately cease the 
specified activities and report the incident to the Office of Protected 
Resources, NMFS, and the West Coast Regional Stranding Coordinator, 
NMFS. The report must include the following information:
    (i) Time and date of the incident;
    (ii) Description of the incident;
    (iii) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    (iv) Description of all marine mammal observations in the 24 hours 
preceding the incident;
    (v) Species identification or description of the animal(s) 
involved;
    (vi) Fate of the animal(s); and
    (vii) Photographs or video footage of the animal(s) (if equipment 
is available).
    (2) Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with UCSC/MARINe 
to determine what measures are necessary to minimize the likelihood of 
further prohibited take and ensure Marine Mammal Protection Act (MMPA) 
compliance. UCSC/MARINe must not resume the activities until notified 
by NMFS via letter, email, or telephone.
    (c) Notification of dead or injured marine mammals. (1) In the 
event that UCSC/MARINe discovers an injured or dead marine mammal and 
determines that the cause of the injury or death is unknown and the 
death is relatively recent (e.g., in less than a moderate state of 
decomposition), UCSC/MARINe shall immediately report the incident to 
the Office of Protected Resources, NMFS, and the West Coast Regional 
Stranding Coordinator, NMFS. The report must include the information 
identified in paragraph (b)(1) of this section. Activities may continue 
while NMFS reviews the circumstances of the incident. NMFS will work 
with UCSC/MARINe to determine whether additional mitigation measures or 
modifications to the activities are appropriate.
    (2) In the event that an injured or dead marine mammal is 
discovered and it is determined that the injury or death is not 
associated with or related to the activities authorized in the 
regulations and LOA (e.g., previously wounded animal, carcass with 
moderate to advanced decomposition, or scavenger damage), UCSC/MARINe 
shall report the incident to the Office of Protected Resources, NMFS, 
and the West Coast Regional Stranding Coordinator, NMFS, within 24 
hours of the discovery. UCSC/MARINe shall provide photographs, video 
footage (if available) or other documentation of the stranded animal 
sighting to NMFS and the Marine Mammal Stranding Network. Activities 
may continue while NMFS reviews the circumstances of the incident.
    (d) Annual report. (1) A draft annual report shall be submitted to 
NMFS Office of Protected Resources within 90 days after the conclusion 
of each annual field season. The final annual report after year five 
may be included as part of the final report (see paragraph (e) of this 
section). The report will include a summary of the information gathered 
pursuant to the monitoring requirements set forth above and in the LOA.
    (2) A final annual report shall be submitted to the Director of the 
NMFS Office of Protected Resources within 30 days after receiving 
comments from NMFS on the draft annual report. If no comments are 
received from NMFS, the draft annual report will be considered the 
final report.


Sec.  217.106  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, UCSC/MARINe must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) If an LOA expires prior to the expiration date of these 
regulations, UCSC/MARINe may apply for and obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, UCSC/MARINe must 
apply for and obtain a modification of the LOA as described in Sec.  
217.107.
    (e) The LOA shall set forth:
    (1) Permissible methods and numbers of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA shall be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of an LOA shall be published in 
the Federal Register within 30 days of a determination.


Sec.  217.107  Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec. Sec.  216.106 of this chapter and 
217.106 for the activity identified in Sec.  217.100(a) shall be 
renewed or modified upon request by the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision in paragraph (c)(1) 
of this section), and
    (2) NMFS' Office of Protected Resources determines that the 
mitigation, monitoring, and reporting measures required by the previous 
LOA under these regulations were implemented.
    (b) For an LOA modification or renewal requests by the applicant 
that include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in paragraph (c)(1) of this section) that do not change the 
findings made for the regulations or result in no more than a minor 
change in the total estimated number of takes (or distribution by 
species or years), NMFS' Office of Protected Resources may publish a 
notice of proposed LOA in the Federal Register, including the 
associated analysis of the change, and solicit public comment before 
issuing the LOA.
    (c) An LOA issued under Sec. Sec.  216.106 of this chapter and 
217.106 for the activity identified in Sec.  217.100(a) may be modified 
by NMFS' Office of Protected Resources under the following 
circumstances:
    (1) Adaptive Management--NMFS' Office of Protected Resources may 
modify (including augment) the existing mitigation, monitoring, or 
reporting measures (after consulting with UCSC/MARINe regarding the 
practicability of the modifications) if doing so creates a reasonable 
likelihood of more effectively accomplishing the goals of the 
mitigation and monitoring set forth in the preamble for these 
regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from UCSC/MARINe's monitoring from the previous 
year(s).

[[Page 13337]]

    (B) Results from other marine mammal and/or sound research or 
studies.
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by this subpart or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS' 
Office of Protected Resources will publish a notice of proposed LOA in 
the Federal Register and solicit public comment.
    (2) Emergencies--If NMFS' Office of Protected Resources determines 
that an emergency exists that poses a significant risk to the well-
being of the species or stocks of marine mammals specified in LOAs 
issued pursuant to Sec. Sec.  216.106 of this chapter and 217.106, an 
LOA may be modified without prior notice or opportunity for public 
comment. Notice will publish in the Federal Register within 30 days of 
the action.


Sec. Sec.  217.108-217.109  [Reserved]

[FR Doc. 2025-04806 Filed 3-20-25; 8:45 am]
BILLING CODE 3510-22-P
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