[Federal Register Volume 73, Number 244 (Thursday, December 18, 2008)]
[Notices]
[Pages 77011-77013]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30108]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XM02


Small Takes of Marine Mammals Incidental to Specified Activities; 
Seabird and Pinniped Research Activities in Central California

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

ACTION:  Notice; issuance of an incidental harassment authorization.

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SUMMARY:  In accordance with provisions of the Marine Mammal Protection 
Act (MMPA) as amended, notification is hereby given that an Incidental 
Harassment Authorization (IHA) to PRBO Conservation Science (PRBO) to 
take small numbers of marine mammals, by Level B behavioral harassment 
only, incidental to conducting seabird and pinniped research in central 
California.

DATES:  This authorization is effective from December 12, 2008, through 
December 11, 2009.

ADDRESSES:  A copy of the IHA and the application are available by 
writing to P. Michael Payne, Chief, Permits, Conservation and Education 
Division, Office of Protected Resources, National Marine Fisheries 
Service, 1315 East-West Highway, Silver Spring, MD 20910-3225, or by 
contacting one of the individuals listed here (FOR FURTHER INFORMATION 
CONTACT), or online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this notice may be viewed, by 
appointment, during regular business hours, at the aforementioned 
address and at the Southwest Region, NMFS, 501 West Ocean Boulevard, 
Suite 4200, Long Beach, CA 90802.

FOR FURTHER INFORMATION CONTACT:  Jeannine Cody or Jaclyn Daly, Office 
of Protected Resources, NMFS, (301) 713-2289, or Monica DeAngelis, 
Southwest Regional Office, NMFS, (562) 980-4023.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by United States citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are made and either regulations are issued or, if 
the taking is limited to harassment, notice of a proposed authorization 
is provided to the public for review.
    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 certain subsistence uses, 
and if the permissible methods of taking and requirements pertaining to 
the mitigation, monitoring, and reporting of such taking are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as:
    ..an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
Except for certain categories of activities not pertinent here, the 
MMPA defines ``harassment'' as:
    any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild [``Level A harassment'']; or (ii) has the potential to disturb 
a marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering 
[``Level B harassment''].
    Section 101(a)(5)(D) establishes a 45-day time limit for NMFS' 
review of an application followed by a 30-day public notice and comment 
period on any proposed authorizations for the incidental harassment of 
small numbers of marine mammals. Within 45 days of the close of the 
comment period, NMFS must either issue or deny the authorization.

Summary of Request

    On July 28, 2008, NMFS received an application from PRBO requesting 
an authorization for the harassment of small numbers of California sea 
lions (Zalophus californianus), Pacific harbor seals (Phoca vitulina 
richardsi), northern elephant seals (Mirounga angustirostris), and 
Steller sea lions (Eumetopias jubatus) incidental to

[[Page 77012]]

conducting seabird and pinniped research operations on Southeast 
Farallon Island, Ano Nuevo Island, and Point Reyes National Seashore in 
central California. A detailed description of the activity is provided 
in the September 29, 2008, Federal Register notice (73 FR 56556), 
therefore, it is not repeated here.

Comments and Responses

    A notice of receipt and request for 30-day public comment on the 
application and proposed authorization was published on September 29, 
2008 (73 FR 56556). During the 30-day public comment period, NMFS 
received comments from the Marine Mammal Commission (Commission).
    Comment: The Commission recommends that any authorization issued 
specify that, if a mortality or serious injury of a marine mammal 
occurs that appears to be related to the research, PRBO must suspend 
research activities while NMFS determines whether steps can be taken to 
avoid further injuries or mortalities or until NMFS would potentially 
authorize such taking by regulations promulgated under section 
101(a)(5)(A) of the MMPA.
    Response:NMFS agrees with the Commission that research activities 
must be suspended immediately if a dead or injured marine mammal is 
found in the vicinity of the project area and the death or injury of 
the animal could be attributable to the applicant's activities. This 
requirement is a condition in the IHA.

Description of the Marine Mammals Potentially Affected by the Activity

    The marine mammals most likely to be harassed incidental to 
conducting seabird research at the proposed research areas on Southeast 
Farallon Island, Ano Nuevo Island, and Point Reyes National Seashore 
are primarily California sea lions, northern elephant seals, Pacific 
harbor seals, and to a lesser extent Steller sea lions.
    The marine mammals most likely to be harassed incidental to 
conducting pinniped research conducted under NMFS Scientific Research 
Permit (SRP) 373-1868-00 are harbor seals, northern elephant seals, 
California sea lions, Steller sea lions and northern fur seals. 
However, directed take of elephant seals, harbor seals, California sea 
lions, and northern fur seals is authorized by SRP 373-1868-00.
    General information of these species can be found in Caretta et al. 
(2008) and is available at the following URL: http://www.nmfs.noaa.gov/pr/pdfs/sars/po2007.pdf. Additional information on these species is 
provided in the September 29, 2008, Federal Register notice (73 FR 
56556). Refer to these documents for information on these species.

Potential Effects on Marine Mammals

    The only anticipated impacts would be temporary disturbances caused 
by the appearance of researchers near the pinnipeds. Incidental 
harassment may occur as researchers approach the haul-out sites with 
vessels, pedestrian approach to bird nesting sites, and during capture 
and sampling activities of harbor seals and northern elephant seals. 
The potential disturbance might alter pinniped behavior and may cause 
animals to flush from the area. Animals may return to the same site 
once researchers have left or go to an alternate haul out site, which 
usually occurs within 30 minutes (Allen et al., 1985).
    Long-term effects of this disturbance are unlikely, as the 
activities are not conducted in breeding areas for marine mammals and 
very few breeding animals will be present in the vicinity of the 
proposed seabird and pinniped research areas. No research would occur 
on pinniped rookeries; therefore, mother and pup separation or crushing 
of pups is not a concern.

Potential Impacts on Habitat

    NMFS has designated critical habitat for the Steller sea lion 
around Southeast Farallon Island and Ano Nuevo Island, extending from 
these two rookeries to 3,000 feet offshore. Neither the proposed 
seabird research, nor the proposed pinniped research would result in 
the physical altering of marine mammal habitat. The proposed action 
will not impact any habitat on the islands and is not likely to result 
in the destruction or adverse modification of Steller sea lion critical 
habitat or to the food sources that they use. This project will have 
negligible impacts to any haul-out sites, rafting sites, forage sites, 
or food resources in the action area and therefore is not likely to 
adversely affect designated critical habitat.
    Incidental marine mammal takes will not result in the physical 
altering of major breeding habitat. No survey or sampling equipment 
will be left in habitat areas; no toxic chemicals will be present; and 
all state and federal marine regulations, including those from National 
Marine Sanctuaries, will be followed in regards to boat emissions.

Potential Impacts to Subsistence Harvest of Marine Mammals

    There is no subsistence harvest of marine mammals in the proposed 
research area; therefore, there will be no impact of the activity on 
the availability of the species or stocks of marine mammals for 
subsistence uses.

Number of Marine Mammals Expected to Be Taken

    It is estimated that approximately 2,242 California sea lions, 418 
harbor seals, 253 northern elephant seals, and 20 Steller sea lions 
could be potentially affected by Level B behavioral harassment. This 
estimate is based on previous research experiences, with the same 
activities conducted in the proposed research area, and on marine 
mammal research activities in these areas. These incidental harassment 
take numbers represent approximately one percent of the U.S. stock of 
California sea lion, 1.2 percent of the California stock of Pacific 
harbor seal, less than one percent of the California breeding stock of 
northern elephant seal, and 0.04 percent of the eastern U.S. stock of 
Steller sea lion. All of the potential takes are expected to be Level B 
behavioral harassment only. No injury or mortality to pinnipeds is 
expected or requested.

Mitigation Measures

    PRBO researchers would take all possible measures to reduce marine 
mammal disturbance for the activities described in the Summary of 
Request and in the Federal Register notice of receipt (73 FR 56556, 
September 29, 2008).
    To reduce the potential for disturbance from visual and acoustic 
stimuli associated with seabird and pinniped research activities, PRBO 
proposes to undertake the following mitigation measures: (1) abide by 
the Terms and Conditions of the Biological Opinion's Incidental Take 
Statement; (2) continue to abide by the Terms and Conditions of 
Scientific Research Permit 373-1868-00; (3) plan to minimize the 
potential for disturbance (to the lowest level practicable) near known 
pinniped haul-outs by boat travel and pedestrian approach during 
pinniped and seabird research operations; (4) conduct research 
activities during the planned dates stated in the application; (5) to 
the extent possible, be careful in the route of approach during beach 
landings; (6) attempt beach landings on Ano Nuevo Island only after any 
pinnipeds that might be present on the landing beach have entered the 
water; (7) select a pathway of approach to research sites that 
minimizes the number of marine mammals harassed, with the first 
priority being avoiding the disturbance of Steller sea lions at haul 
outs; (8) monitor for offshore predators and not approach hauled out 
Stellar sea lions if

[[Page 77013]]

great white sharks or killer whales are seen in the area, and if 
predators are seen, eastern Steller sea lions must not be disturbed 
until the area is free of predators; (9) keep voices hushed and bodies 
low in the visual presence of pinnipeds; (10) conduct seabird 
observations at North Landing on Southeast Farallon Island within an 
observation blind to remain shielded from the view of hauled out 
pinnipeds; (11) crawl slowly towards seabird nesting boxes on Ano Nuevo 
Island if pinnipeds are within the researchers' field of vision; (12) 
coordinate visits for seabird and pinniped research to intertidal areas 
of Southeast Farallon Island to reduce potential take; (13) coordinate 
all research goals on Ano Nuevo Island to minimize the number of trips 
to the island and coordinate monitoring schedules so that areas near 
any pinnipeds would be accessed only once per visit; and (14) the lead 
biologist will serve as an observer to evaluate incidental take and 
halt any research activities should the potential for incidental take 
become too great.

Monitoring

    PRBO researchers, and their designees would: (1) record the date, 
time, and location (or closest point of ingress) of each visit; (2) 
record marine mammal behavior patterns observed before, during, and 
after the activities; (3) record the number of Steller sea lions 
present at each location; (4) if applicable, note the presence of any 
offshore predators (date, time, number, species).

Reporting

    PRBO, and its designees, will submit a draft final report to NMFS 
within 90 days after the expiration of the IHA and will submit a final 
report to NMFS within 30 days after receiving comments from NMFS on the 
draft final report.

National Environmental Policy Act (NEPA)

    In 2007, NMFS prepared a draft Environmental Assessment (EA) on the 
issuance of an IHA to PRBO to take marine mammals by Level B behavioral 
harassment incidental to conducting seabird research in central 
California. The draft EA was released for public review and comment 
along with the application and the proposed IHA (72 FR 41294, July 27, 
2007). All comments were addressed in full in the Federal Register 
Notice of Issuance of an IHA for PRBO (72 FR 71121, December 14, 2007). 
At that time, NMFS determined that conducting the seabird research 
would not have a significant impact on the quality of the human 
environment and issued a Finding of No Significant Impact (FONSI).
    For this proposed action, PRBO has requested to incidentally harass 
20 Steller sea lions, (i.e., 4 more than what was analyzed in the 2007 
EA, which expands the scope of the previously analyzed action) during 
the conduct of pinniped and seabird research. Thus, NMFS has prepared a 
supplemental EA (SEA) to address new available information regarding 
the effects of PRBO's seabird and pinniped research activities that may 
have cumulative impacts to the physical and biological environment. 
NMFS has issued a FONSI for the SEA regarding PRBO's activities. The 
analysis in the 2007 EA and 2008 SEA concluded that issuance of an IHA 
would not significantly affect the quality of the human environment. In 
addition, all beneficial and adverse impacts of the action have been 
addressed to reach the conclusion of no significant impacts. 
Accordingly, preparation of an Environmental Impact Statement for this 
action is not necessary.

Endangered Species Act (ESA)

    NMFS Headquarters' Office of Protected Resources, Permits, 
Conservation, and Education Division conducted a section 7 consultation 
under the ESA with the NMFS Headquarters' Office of Protected 
Resources, Endangered Species Division. On November 18, 2008, NMFS 
issued a Biological Opinion and concluded that the issuance of an IHA 
is likely to affect, but not likely to jeopardize the continued 
existence of Steller sea lions. NMFS has also issued an incidental take 
statement (ITS) for Steller sea lions pursuant to section 7 of the ESA. 
The ITS contains reasonable and prudent measures for implementing terms 
and conditions to minimize the effects of this take.

Determinations

    For the reasons discussed in this document and in the identified 
supporting documents, NMFS has determined that the impact of seabird 
and pinniped research operations on Southeast Farallon Island, Ano 
Nuevo Island, and Point Reyes National Seashore in central California 
would result in Level B behavioral harassment only, of small numbers of 
California sea lions, Pacific harbor seals, northern elephant seals, 
and Steller sea lions hauled out in the vicinity of the research area; 
and would have a negligible impact on the affected species. The 
provision requiring that the activities not have an unmitigable adverse 
impact on the availability of the affected species or stock for 
subsistence uses does not apply for this proposed action.
    In addition, no take by Level A harassment (injury) or death is 
anticipated and harassment takes should be at the lowest level 
practicable due to incorporation of the mitigation measures described 
in this document.

Authorization

    NMFS has issued an IHA to PRBO, and its designees, for the 
potential harassment of small numbers of California sea lions, harbor 
seals, northern elephant seals, and Steller sea lions incidental to 
conducting of seabird and pinniped research on Southeast Farallon 
Island, Ano Nuevo Island, and Point Reyes National Seashore, provided 
the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated.

    Dated: December 15, 2008.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E8-30108 Filed 12-17-08; 8:45 am]
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