[Federal Register Volume 74, Number 140 (Thursday, July 23, 2009)]
[Notices]
[Pages 36463-36469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17545]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XQ29


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Boom Exercise Drills at Point Mugu, 
California

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

ACTION:  Notice; proposed incidental harassment authorization; request 
for comments.

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SUMMARY: NMFS received an application from Naval Base Ventura County 
(NBVC) Point Mugu for an Incidental Harassment Authorization (IHA) to 
take marine mammals, by harassment, incidental to boom deployment 
exercises at Point Mugu, California. Pursuant to the Marine Mammal 
Protection Act (MMPA), NMFS is requesting comments on its proposal to 
issue an IHA to NBVC Point Mugu to take, by Level B harassment only, 
one species of marine mammal during the specified activity.

DATES:  Comments and information must be received no later than August 
24, 2009.

ADDRESSES:  Comments on the application should be addressed to 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. The mailbox address for 
providing email comments is [email protected]. NMFS is not 
responsible for e-mail comments sent to addresses other than the one 
provided here. Comments sent via e-mail, including all attachments, 
must not exceed a 10-megabyte file size.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm without change. All Personal Identifying Information 
(for

[[Page 36464]]

example, name, address, etc.) voluntarily submitted by the commenter 
may be publicly accessible. Do not submit Confidential Business 
Information or otherwise sensitive or protected information.
    A copy of the application containing a list of the references used 
in this document may be obtained by writing to the address specified 
above, telephoning the contact listed below (see FOR FURTHER 
INFORMATION CONTACT), or visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this 
notice may also be viewed, by appointment, during regular business 
hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Candace Nachman, Office of Protected 
Resources, NMFS, (301) 713-2289, ext 156, or Monica DeAngelis, 
Southwest Regional Office, (562) 980-3232.

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 U.S. 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, a 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), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ''...an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the U.S. can apply for an authorization to 
incidentally take small numbers of marine mammals by 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 marine 
mammals. Within 45 days of the close of the comment period, NMFS must 
either issue or deny the authorization.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as:

    any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild [``Level A harassment'']; or (ii) has the potential to disturb 
a marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering 
[``Level B harassment''].

Summary of Request

    NMFS received an application on May 12, 2009, from NBVC Point Mugu 
for the taking, by harassment, of marine mammals incidental to boom 
exercise drills at Point Mugu, California. As part of the NBVC Spill 
Response Program, boom deployment methods in the area contingency plan 
(US Coast Guard, 2007) need to be tested to ensure response plans for 
spills are effective and can realistically be achieved. This will also 
provide training to spill responders, giving them the required training 
to successfully deploy the booms in the event of an oil spill. The 
activity will occur within Mugu Lagoon within NBVC Point Mugu. 
Watercraft operating in the project area will likely affect seals by 
causing them to disperse from haul-out sites into the adjacent waters. 
No harassment by acoustic disturbance is anticipated from the boom 
exercise drill. NBVC Point Mugu requested an authorization to take 
harbor seals (Phoca vitulina) by Level B harassment.

Description of the Specified Activity

    As part of the NBVC Spill Response Program, boom deployment methods 
in the area contingency plan (US Coast Guard, 2008) need to be tested 
to ensure response plans for spills can realistically be achieved. This 
will also provide training to spill responders, giving them the 
required training to successfully deploy the booms in the event of an 
oil spill. To protect Mugu Lagoon from offshore oil-spills, the boom 
needs to be deployed near the mouth of the estuary to keep offshore oil 
from entering sensitive estuarine habitat. The booms will be attached 
to zodiac watercraft, and the vessels will cross the estuary and anchor 
the boom on the north and south side of the estuary. Booming strategies 
were tested in September 2008, where it became evident that the 
strategy proposed in 2008 could not be accomplished due to strong 
currents and the fact that the boom was not placed at a wide enough 
angle. A new boom deployment strategy will now be tested (which 
includes increasing the angle at which the boom is placed in relation 
to the current); however, this changes the location of the activity and 
requires the boom to be situated within a regular harbor seal haul-out.
    The following task descriptions provide an overview of the 
activities associated with the program. The purpose of this exercise is 
to develop response strategies that will provide the best possible 
protection for the lagoon in the event of an oil spill. SUPSALV will 
deploy the Salvage Skimmer Systems in Mugu Lagoon at the request of 
NBVC in order to attempt to validate booming strategies for sensitive 
site protection at Mugu Lagoon. Strategies are listed in the Area 
Contingency Plan and NBVC Oil and Hazardous Substance Integrated 
Contingency Plan. The exercise will be conducted by SUPSALV personnel 
on an annual basis. Once booming strategies prove effective, it is 
likely training will then occur on a biennial basis.
    Specific training and exercise goals include: (1) safety; (2) 
equipment mission and inventory overview; (3) equipment mobilization, 
operation, and demobilization; (4) command, control, and communications 
in coordinating a response in the waters of Mugu Lagoon; (5) boat 
handling training in shallow water with currents; and (6) site support 
equipment training. The overall objective of the exercise is for all 
participants to increase the proficiency of personnel involved in 
providing oil spill response through the application of hands-on 
equipment mobilization, deployment, and demobilization. The major 
objective is to demonstrate that their equipment is adequately 
maintained for emergency deployments and that the personnel receive 
training in how to operate the equipment under emergency oil spill 
response conditions.
    The boom exercise drill will occur annually during the month of 
September; however, training may need to be rescheduled for October or 
November (or possibly even later), depending on availability of SUPSALV 
staff. Therefore, NMFS is proposing to make the IHA (if issued) 
effective from September through January (before the start of pupping 
season). The exercise will last 5 days. Only days 2 through 4 have the 
potential to disturb harbor seals. Provided next is a description of 
what activities will occur on each day of the exercise.

[[Page 36465]]

    Day 1- Equipment Staging: Equipment such as the boom and boats 
staged in area. There is no anticipated disturbance to marine mammals 
associated with this portion of the activity. Equipment includes two 
zodiac boats, concrete anchors, and approximately 1000 ft (328 m) of 
boom.
    Days 2-4--Perform Exercise: The boats are launched into the water. 
The tide will likely be high, as it is difficult to navigate boats in 
the estuary during low or mid-level tides. If harbor seals are hauled 
out in the area close enough to the boom location that seals would 
likely be disturbed by placement of the boom, the boat will slowly move 
toward the seals to have them slowly move into water, rather than 
spooking seals if boats move quickly towards seals to deploy the boom. 
The determination whether seals need to be moved before beginning the 
exercise will be determined by base biologists who will be monitoring 
the exercise. Once seals move into the water, boats will return to 
shore to attach the boom. One side of the boom will be anchored on 
shore. Boats will then pull the boom out into the water pulling the 
boom across the estuary (see Figure 2 in NBVC Point Mugu's 
application). The boom will then be anchored on the other side of the 
estuary. Boats will be used to hold the boom against the current until 
successfully in place and holding with anchors. If the boom placement 
is successful, boats would likely return to shore and monitor the boom 
to ensure it is stable. The boom will be left in place during the 
change in the tides to ensure its ability to withstand current and tide 
changes. If the boom anchors break free, boats would have to re-enter 
the water, secure the boom, and re-anchor in the same location or an 
alternate location if the previous booming location proved 
unattainable.
    Day 5 - Remove Equipment: Equipment such as the boom and boats will 
be removed from the proposed action area. There is no anticipated 
disturbance to marine mammals from this portion of the activity.
    The activity will occur in Mugu Lagoon, within NBVC Point Mugu. The 
base consists of 4,490 acres (1,817 hectares [ha]) along the Pacific 
coast, located approximately 50 mi (80 km) northwest of Los Angeles 
(see Figure 1 in NBVC Point Mugu's application). Mugu Lagoon is the 
largest coastal wetland in southern California, with approximately 
2,200 acres (890 ha) of jurisdictional wetlands. The lagoon is composed 
of two long arms projecting out from a broader central basin, running 
parallel to the coast. The proposed action site is bounded by the Santa 
Monica Mountains to the east, the Oxnard Plains to the north, two duck-
hunting clubs to the northwest, and Ormond Beach wetlands to the west. 
The opening to the lagoon migrates and is delineated by a large boulder 
rip-rap seawall to the west and a highly dynamic sand spit to the east. 
Large surf conditions are common, and 2 to 4 knot (3.7 to 7.4 km/hr) 
currents should be expected during flood and ebb tides. Mugu Lagoon has 
been designated as an area of special significance as the estuary is 
home to many sensitive species. Federally listed species found in the 
estuary include the light-footed clapper rail, the western snowy 
plover, the California least tern, the California brown pelican, and 
the endangered plant, salt marsh bird's beak. State listed species also 
include the Belding's savannah sparrow and the peregrine falcon. Mugu 
Lagoon is also used by thousands of migrating and wintering shorebirds 
and waterfowl. However, there are no threatened or endangered species 
listed under the Endangered Species Act (ESA) in the proposed boom 
exercise drill area.
    Mugu Lagoon was classified as an Environmentally Sensitive Site by 
the Local Area Committee, which is comprised of the US Coast Guard and 
the Office of Spill Prevention and Response. These provisions are 
stated in the Area Contingency Plan (4-790-A). Also listed are 
recommended site strategies to protect resources from oil spills, 
although recommended and approved, they have not been validated, 
accomplishable and tested. NBVC is responsible for implementing these 
strategies as described in the plan when a threat of an offshore spill 
is present. This exercise will attempt to prove the efficacy of the 
Area Contingency Plan strategies, as well as recommend more realistic 
strategies that will provide protection to the wetland and the wildlife 
that live in it.

Description of Marine Mammals in the Area of the Specified Activity

    Harbor seals are the only marine mammal species that will likely be 
affected by the activity and that are found in the immediate area of 
the proposed boom drill exercise. The mudflats within Mugu Lagoon are 
used for resting, molting, and breeding of harbor seals. Mugu Lagoon is 
one of the few mainland pupping sites, with 60 pups born in 2008. The 
harbor seal is not listed as threatened or endangered under the ESA, 
and the California stock, members of which occur in the Mugu Lagoon, is 
not considered a strategic stock under the MMPA.
    Two other pinniped species are known to occur very infrequently in 
the general area of the proposed activity: northern elephant seals 
(Mirounga angustirostris) and California sea lions (Zalophus 
californianus). When present, these latter species haul out usually on 
the coastal beaches, located south of the project area on the ocean 
side of the barrier beach (see Figure 2 in the NBVC Point Mugu's 
application) and not within the estuary. Occasionally, sea lions may 
enter the estuary; however most sightings have been of suspected 
injured or sick sea lions. Due to the rarity of these two pinniped 
species within the project area, these species are not discussed 
further in this proposed IHA Federal Register notice.
    Isolated incidents of cetacean observations have occurred in the 
Mugu Lagoon area outside of the area affected by the proposed activity. 
In March 2008, a Risso's dolphin (Grampus griseus) stranded on Family 
Beach (see Figure 3 in NBVC Point Mugu's application). In January 2007, 
a young gray whale (Eschrichtius robustus) stranded temporarily at the 
mouth of the lagoon. Records include an additional gray whale that 
beached itself on Family Beach approximately 28 years ago. Around 1995, 
a gray whale was observed moving in and out of the lagoon mouth 
entrance (T. Keeney, NBVC Point Mugu Environmental Division, pers. 
comm., 2001). Sightings of Dall's porpoise (Phocoenoides dalli), 
bottlenose dolphin (Tursiops truncatus), and common dolphin (Delphinus 
spp.) could occur in nearby coastal waters, and pilot whales 
(Globicephala macrorhynchus) have been sighted within 3 nm (5.6 km) of 
shore in the vicinity of Point Mugu (Koski et al., 1998). However, no 
cetacean species are expected to occur within the estuary and, 
therefore, are not expected to be disturbed by this proposed activity. 
Consequently, these species are not discussed further in this proposed 
IHA Federal Register notice.
    NBVC Point Mugu has compiled information on the abundance, status, 
and distribution of harbor seals in Mugu Lagoon from surveys that they 
have conducted every month from April 1992 through February 2009, with 
the exception of 1998, when counts were made only during the period 
from June through August and from NMFS Stock Assessment Reports (SARs). 
This information may be viewed in NBVC Point Mugu's application (see 
ADDRESSES). Additional information is available in the NMFS SARs, which 
are available on the internet at: http://www.nmfs.noaa.gov/pr/pdfs/sars/po2008.pdf.

[[Page 36466]]

Potential Effects on Marine Mammals

    The boom exercise activities within Mugu Lagoon will introduce 
boats into the estuary, which are not allowed under normal conditions. 
It is anticipated that as the boats approach the seals (within 
approximately 200 ft [61 m]), seals will likely enter the water for 
safety. It is anticipated that seals located further away from the 
water (i.e., further up on the haul-out site) will move closer to the 
water in order to be able to move quickly into the water if needed.
    Harbor seals hauled out on shore can be disturbed by passing 
hikers, recreational vehicles, and small boats. This has been noted in 
many areas, including the western U.S. and Alaska, eastern Canada, and 
western Europe (e.g., Bowles and Stewart, 1980; Reijnders, 1981; Renouf 
et al., 1981; Allen et al., 1984; Osborn, 1985; Brasseur, 1993; Suryan, 
1993; Swift and Morgan, 1993). Harbor seals spent more time scanning 
and less time sleeping in areas with human disturbance and occasional 
hunting (Terhune, 1985). In the absence of hunting or active 
harassment, habituation likely occurs (Awbrey, 1980; Bonner, 1982; 
Thompson, 1992; Brasseur, 1993).
    Startle responses or stampedes are not expected to occur, as boats 
will be visible and will slowly approach the haul-out sites, allowing 
the seals to see the approaching vessels in advance of their arrival at 
the haul-out site. This will provide time for individual seals to 
either move towards or enter the water for safety if necessary. It is 
anticipated that the seals will move further east down the mudflats or 
closer towards the mouth of the estuary to avoid the disturbance 
associated with the presence of the boats and the boom.
    Although this booming location is used year-round as a haul-out 
site for harbor seals, impacts to seals as a result of the activity are 
expected to be minimal and short-term in nature. Impacts are expected 
to be limited to Level B behavioral harassment. The training exercise 
will likely displace harbor seals from the immediate proposed activity 
area, resulting in hauled out seals moving into the water when 
watercraft (zodiacs) are placing or maintaining the boom in close 
proximity to hauled out seals. As there are additional mudflats to 
haul-out on away from the exercise area, seals will likely move to 
those sites and use as a haul-out during the boom exercise. 
Additionally, since a majority of the booming activity will occur 
during high-tides when zodiacs area able to navigate in the estuary, 
very few seals should be displaced, as mudflats would be inundated and 
most seals would be in the estuarine waters or out foraging. No injury 
or mortality of harbor seals is anticipated as a result of this 
activity.

Anticipated Effects on Habitat

    During the period of the proposed activity, harbor seals may use 
various haul-outs around the margin of the Mugu Lagoon as places to 
rest and molt. Any young-of-the-year that are present will be weaned 
and independent individuals. The seals do not feed when hauled out in 
the lagoon. The seals leave Mugu Lagoon to feed in the open sea (T. 
Keeney, NBVC Point Mugu Environmental Division, pers. comm., 1998), 
therefore it is not expected that the boom exercise activities will 
have any impact on the food or feeding success of these seals. Thus, 
the proposed boom exercise is not expected to cause significant impacts 
on habitats used by seals in Mugu Lagoon or on the food sources that 
these seals utilize.
    Additionally, no loss or modification of the habitat used by harbor 
seal populations that haul out within Mugu Lagoon is expected. Boom 
placement would not result in any permanent modifications to the 
habitat utilized by the seals. The tidal patterns in the lagoon and 
structure of the nearby sandy haul-out areas will not be altered by 
these proposed boom exercise activities.

Proposed Mitigation

    In order to issue an incidental take authorization (ITA) under 
Section 101(a)(5)(D) of the MMPA, NMFS must, where applicable, set 
forth the permissible methods of taking pursuant to such activity, and 
other means of effecting the least practicable impact on such species 
or stock and its habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance, and on the 
availability of such species or stock for taking for certain 
subsistence uses (where relevant).
    The following mitigation measures are proposed to be include in the 
IHA: (1) The exercise will occur outside of the harbor seal pupping 
season of February through April; (2) If seals are hauled out within 
the exercise area before commencement of the exercise, a boat will move 
slowly towards the animals in order to have them move slowly into the 
water in order to avoid stampedes into the water; (3) A boat will 
remain active in the immediate area during most of the day to reduce 
the chances of seals hauling out in the exercise area during low 
activity periods. This would minimize the number of seals likely 
disturbed should activity levels need to be increased; (4) If the boom 
placement appears to be holding successfully, then boats will refrain 
from movement to reduce any additional disturbance events; and (5) The 
majority of the boom deployment exercise activities will occur at high 
tide when fewer harbor seals are expected to be on the haul-outs.
    NMFS has carefully evaluated the applicant's proposed mitigation 
measures and considered a range of other measures in the context of 
ensuring that NMFS prescribes the means of effecting the least 
practicable impact on the affected marine mammal species and stocks and 
their habitat. Our evaluation of potential measures included 
consideration of the following factors in relation to one another:
     the manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
     the proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     the practicability of the measure for applicant 
implementation.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures provide the means of 
effecting the least practicable impact on marine mammal species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Proposed Monitoring and Reporting

    In order to issue an ITA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must, where applicable, set forth 
``requirements pertaining to the monitoring and reporting of such 
taking''. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) 
indicate that requests for ITAs 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.
    NBVC biologists will monitor the haul-out areas during the exercise 
to document and characterize any observed responses by harbor seals to 
the boom exercise drill. The monitoring will be designed to determine 
if there are disturbance reactions and to determine how many seals are 
disturbed by boat activity. Every 2 hours (0700-

[[Page 36467]]

1600), biologists will count seals hauled out using a spotting scope 
and identify haul-out locations. Regarding data to be recorded about 
the seals present, at a minimum, biologists must record numbers and sex 
of each age class (if determinable), movements of pinnipeds, including 
number and proportion moving, direction and distance moved, and pace of 
movement, and description of reactions. NMFS will review the 
qualifications of each biologist and approve their selection in advance 
of the proposed activities.
    NBVC will establish a land-based monitoring program to assess 
effects on the harbor seals hauled out in the estuary. This monitoring 
will occur at the area during the entire period when boats are in the 
water. The monitoring will be conducted via direct observation. Through 
this method, seal reactions, as indicated by numbers of seals hauled 
out and haul-out locations, will be documented during the planned 
exercise. This monitoring will also provide data required to 
characterize the extent and nature of ``taking''. The monitoring work 
described here has been planned as a self-contained project independent 
of any other related monitoring projects that may be occurring in the 
same region. NBVC Point Mugu is prepared to discuss coordination of its 
monitoring program with other entities that may be conducting related 
work insofar as this is practical and desirable. As standard procedure, 
shore count data will be made available to NMFS staff.
    NBVC Point Mugu Environmental Division personnel will survey the 
exercise area prior to activities to count the number of seals and to 
identify locations before the exercise begins. These marine mammal 
monitors will also ensure that the proposed mitigation measures 
(described in the previous section of this document) are being 
implemented. The biological monitor will make observations as the 
exercise activities commence and continue to make observations while 
activities are underway. Depending on results of these initial 
observations and subsequent planned activities, NBVC's monitors will 
decide each day whether monitoring for the entire day is needed. If the 
boom is in place and holding, and there is no need for boats to re-
enter the water, then no monitoring will be conducted, other than 
surveys every 2 hours. If boats again are required to enter the 
proposed exercise area, biologists will be called and return 
immediately to the drill site. NBVC anticipates that monitoring will 
occur throughout the first morning, and if the boom is placed 
successfully, the site will be visited once every 2 hours to conduct a 
survey, until it is decided to pull the boom.
    In addition to recording specific biological information described 
earlier in this section, the marine mammal monitors will record a 
variety of other information which will include: (1) Date and time of 
the activity; (2) tidal state (the number of hours before or after peak 
flood tide; exact times for local high tides will be determined by 
consulting relevant tide tables); (3) weather condition; (4) horizontal 
visibility; (5) occurrence, or planned occurrence of any other event 
that might result in behavioral reactions by seals within the lagoon 
and therefore affect numbers hauled out (such as unusual military 
aircraft activity or other anthropogenic activities in or around the 
lagoon); (6) current state of the exercise (i.e., boom being placed, 
remains in place); and (7) approximate distance of boat from seals when 
seals react and enter the water.
    NBVC will prepare and submit to the NMFS Office of Protected 
Resources and NMFS Southwest Regional Office a draft report describing 
the activities that were conducted, marine mammal monitoring work and 
results, and other information as described in the preceding paragraphs 
90 days after the activities cease or after expiration of the IHA, 
whichever occurs first. This report would include all monitoring 
results from each annual exercise event. This report will summarize the 
results of the activities, summarize seal behavioral observations, and 
estimate the amount and nature of ``take'' of seals by harassment or in 
other ways. It will also provide locations and numbers of seals hauled 
out away from the exercise area. The 90-day report will be subject to 
review and comment by NMFS. Any recommendations made by NMFS must be 
addressed in the final report prior to acceptance by NMFS. If a freshly 
dead or seriously injured pinniped is found during activity monitoring 
surveys, the incident must be reported within 48 hours to the NMFS 
Office of Protected Resources and the NMFS Southwest Regional Office.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment]. Only take by Level B behavioral 
harassment is anticipated as a result of the boom exercise drills. The 
presence of the boats in the water approaching the haul-out sites have 
the potential to startle hauled out harbor seals and cause them to 
enter the water and relocate to other haul-outs closer to the mouth of 
the lagoon or outside of the lagoon. Although there will be increased 
boat activity in the area of these haul-out sites, vessel strikes of 
pinnipeds are not expected to occur, as boats will be approaching at 
very slow speeds in order to reduce startle reactions by the animals. 
There is no evidence that the planned activities could result in 
serious injury or mortality. The mitigation and monitoring measures 
proposed to be implemented (mentioned earlier in this document) during 
the exercise will minimize any potential risk to injury or mortality.
    The Navy estimates the number of hauled out seals within the lagoon 
using census data obtained during ground-based surveys of the lagoon by 
staff of the Point Mugu Environmental Division. These data are 
described in Section III of NBVC Point Mugu's application and provide 
the most detailed and recent counts of harbor seals (and other marine 
mammal species) in the proposed activity area.
    Most sex and age classes of harbor seals can be found on the 
mudflats within the lagoon during the booming exercise, although in 
reduced numbers at certain times due to foraging patterns, tidal state, 
and adverse weather. Sex and age will not be able to determined, with 
exception of possible young of the year still identifiable by their 
smaller size. Females will not be in reproductive condition due to the 
timing of the exercise (i.e., September). The peak number of harbor 
seals hauled out at NBVC Point Mugu during 2008 was 446 adults in mid-
June, although there is large day-to-day variation in these counts.
    To estimate the likely potential numbers of harbor seals that might 
be hauled out within the lagoon during the September period of the 
proposed activity, the Navy calculated using the low counts in 
September from 2003-2008, as low counts are usually associated with 
higher tides when the activity is planned to occur. The mean number of 
low counts is 57 seals (see Table 1 in this document). Take would be 
expected at the beginning of the exercise as boats are put into the 
water and seals would be slowly moved off

[[Page 36468]]

the haul-out. Using mean low numbers for the month of September since 
2003, 57 seals could be disturbed and move into the water each time the 
boats are launched (days 2-4). Seals would likely move to a mudflat 
away from the boom exercise activity. However once boats are finished 
deploying the boom and boats return to shore, seals may return to 
mudflats in the immediate area. In the event the applicant needs to 
return to the water to check or adjust the boom, there is a possibility 
there could be another displacement of seals from the mudflats in the 
project area. The applicant has projected that it may be necessary to 
return to the site three times during the day, meaning that there would 
be three opportunities for seals to return to the exercise area each 
day (57 seals x 3 movements x 3 days), which would equal 513 individual 
displacement events (i.e., takes). If the boom placement is successful, 
it would likely lead to fewer disturbance events. However, if the boom 
placement is problematic, this could result in additional disturbance 
events. Moreover, these numbers are likely overestimations of actual 
take estimates, as harbor seal counts are not conducted during high 
tide events due to low numbers of seals.

      Table 1. September harbor seal survey results from 2003-2008
------------------------------------------------------------------------
                                              Mean
                                                Low      High
                   Year                      Hauled     Count     Count
                                              Out
------------------------------------------------------------------------
2003                                            124        36       217
2004                                            153        11       266
2005                                            197        88       369
2007                                            162       107       200
2008                                            174        42       284
Average                                         162        57       267
------------------------------------------------------------------------
* no survey data available for September 2006

    The maximum number of displacements are based on the high counts of 
seals recorded within the estuary during the last five years (2003 to 
2008) for the month of September. The mean high count over those years 
is 267 seals (see Table 1 in this document). Therefore, with three 
potential disturbance events, the number of takes could equal as many 
as 2,403 (267 x 3 x 3). The Navy believes that far less than that might 
actually be taken by harassment during each training exercise, since it 
is unlikely that these higher counts would be recorded at high tide 
when the activity is planned to occur. Therefore, based on these 
considerations, NMFS is proposing to authorize 513 takes of harbor 
seals by Level B behavioral harassment incidental to NBVC Point Mugu's 
proposed boom exercise drill.

Negligible Impact and Small Numbers Analysis and Preliminary 
Determination

    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.'' In making a negligible impact determination, NMFS 
considers: (1) The number of anticipated mortalities; (2) the number 
and nature of anticipated injuries; (3) the number, nature, and 
intensity, and duration of Level B harassment; and (4) the context in 
which the takes occur.
    No injuries or mortalities are anticipated to occur as a result of 
NBVC Point Mugu's proposed boom exercise drills, and none are proposed 
to be authorized by NMFS. Takes will be limited to Level B behavioral 
harassment over a 3 day period in the month of September (which may 
possibly slip to October or November, depending on contractor 
availability). As mentioned previously, NMFS estimates that 513 harbor 
seal takes may occur as a result of the proposed activity. It is 
possible that some individual animals may be taken more than once if 
the animal returns to the site on one of the later days of the 
exercise.
    There is no habitat of significance for this species. While Mugu 
Lagoon is one of the few mainland pupping sites for harbor seals, the 
activity will occur outside of the harbor seal pupping season of 
February through April. While these haul-out sites are used for resting 
throughout the year, few (if any) seals are expected to be found on the 
haul-outs during the drill because the activity will occur at high tide 
when most animals are in the water. Additionally, there are other haul-
out sites in other parts of the lagoon that seals can use during the 
exercise. The proposed activity is not expected to impact rates of 
recruitment or survival of harbor seals since no mortality (which would 
remove individuals from the population) or injury are anticipated to 
occur. Only short-term Level B behavioral harassment is anticipated to 
occur over a very short period of time (maximum of 3 days), occurring 
at very limited times of the day. Additionally, the proposed activity 
would occur at a time of year when breeding does not occur.
    Harbor seals are not listed as threatened or endangered under the 
ESA. Additionally, the California stock of harbor seals is not listed 
as depleted under the MMPA. Survey counts conducted by NBVC Point Mugu 
Environmental Division staff indicate that numbers of harbor seals have 
increased with an average of 83 seals in 1992 to an average of 231 
seals in 2006.
    The most recent SAR for the California stock of harbor seals 
provides a population estimate of 34,233 individuals (Carretta et al., 
2009). The take estimate of 513 individuals represents 1.5 percent of 
the stock size. This estimate does not take into account that survey 
data is collected during lower tides when more animals are likely to be 
present on the haul-out sites and the fact that three events may not 
need to occur per day on each of the three days. Therefore, it is 
estimated that 1.5 percent of the California stock of harbor seals will 
be taken by Level B behavioral harassment during the planned exercise 
if no animals are taken more than once.
    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 mitigation and monitoring 
measures, NMFS preliminarily finds that NBVC Point Mugu's boom 
deployment exercise will result in the incidental take of small numbers 
of marine mammals, by Level B harassment only, and that the total 
taking from the boom deployment exercise will have a negligible impact 
on the affected species or stocks.

Impact on Availability of Affected Species or Stock for Taking for 
Subsistence Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action.

Endangered Species Act (ESA)

    No species listed under the ESA are expected to be affected by 
these activities. Therefore, NMFS has determined that a section 7 
consultation under the ESA is not required.

National Environmental Policy Act (NEPA)

    NMFS is currently conducting an analysis, pursuant to NEPA, to 
determine whether or not this proposed activity may have a significant 
effect on the human environment. This analysis will be completed prior 
to the issuance or denial of this proposed IHA.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to

[[Page 36469]]

authorize the take of harbor seals incidental to NBVC Point Mugu's boom 
deployment exercises at Point Mugu, California, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: July 17, 2009.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E9-17545 Filed 7-22-09; 8:45 am]
BILLING CODE 3510-22-S