[Federal Register Volume 75, Number 78 (Friday, April 23, 2010)]
[Notices]
[Pages 21233-21241]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9513]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XU31


Incidental Takes of Marine Mammals During Specified Activities; 
Replacement and Repair of Fur Seal Research Observation Towers and 
Walkways on St. Paul Island, Alaska

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 the Marine Mammal Protection Act (MMPA) 
regulations, notification is hereby given that NMFS issued an 
Incidental Harassment Authorization (IHA) to NMFS, Alaska Region (NMFS 
AKR) for the take of small numbers of marine mammals, by Level B 
harassment, incidental to conducting replacement and repair of northern 
fur seal research observation towers and walkways on St. Paul Island, 
Alaska, from April to June and December 2010.

DATES:  Effective April 20, 2010 through June 7, 2010 and December 1 to 
31, 2010.

ADDRESSES: A copy of the IHA and 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 or by 
telephoning the contact listed here. 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 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.

FOR FURTHER INFORMATION CONTACT:  Howard Goldstein or Jolie Harrison, 
Office of Protected Resources, NMFS, 301-713-2289.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
directs the Secretary of Commerce (Secretary) to allow, upon request, 
the incidental, but not intentional, taking of marine mammals by United 
States (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.
    An authorization to take small numbers of marine mammals by 
harassment 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 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 to achieve the 
least practicable adverse impact. 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 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].
    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 for 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.

Summary of Request

    On February 2, 2010, NMFS received a letter from NMFS AKR 
requesting an IHA to authorize the take, by Level B harassment, of 
small numbers of northern fur seals (Callorhinus ursinus) incidental to 
conducting replacement and repair operations for fur seal research 
observation towers and walkways on St. Paul Island, Alaska.
    NMFS is currently contracting demolition, repair, and select 
replacement of northern fur seal

[[Page 21234]]

observation towers and walkways. The original timing restrictions for 
this project would have allowed human presence and work on the 
rookeries only until April 20, 2010, which would have made the 
incidental take of northern fur seals unlikely. However, the proposed 
construction season has been extended to the first week of June in 
order to provide flexibility in the construction schedule to complete 
the replacement and repair of the observation towers and walkways 
during a single winter and spring season. NMFS AKR has identified a 
need to authorize the incidental taking of northern fur seals hauling 
out on St. Paul Island during their intermittent and early season 
presence through early June.
    The purpose of the replacement and repair operations is to provide 
safe access for fur seal researchers into the dense breeding 
aggregations of northern fur seals. Safe access for researchers is 
required because northern fur seals exhibit strong site fidelity, 
tenacity, and high levels of aggression within dense aggregations. In 
addition, non-territorial fur seals are sensitive to human presence 
within and near breeding areas as a result of visual, auditory, and 
olfactory stimuli. The observation towers and walkways provide elevated 
access to observe and count breeding and resting fur seals, reducing 
stimuli that influence fur seal behavior. Additional information on the 
construction project is contained below and in the IHA application, 
which is available upon request (see ADDRESSES).

Description of the Specified Activities

    NMFS AKR is currently contracting demolition, repair and select 
replacement of northern fur seal research infrastructure on St. Paul 
Island, Alaska. The objective of this work is to repair 47 fur seal 
observation towers and their associated walkways within fur seal 
breeding areas around the island. Prior to the replacement phase of the 
project, old towers and walkways will need to be demolished. The 
replacement work will occur at the Reef rookery (i.e., breeding area); 
if funding is available in future years it will occur at other sites. 
Seven observation towers will be replaced at the Reef rookery, and the 
long term plan is to replace and repair the remaining 40 towers at the 
other rookeries around the island (depending on funding).
    Construction crews will be using hand carpentry techniques, 
possibly supplemented with small gasoline generators, and pneumatic 
tools. Most construction sites are inaccessible to vehicles with the 
exception of all-terrain vehicles and equipment or snow machines, if 
conditions allow. Crews will be primarily accessing the immediate 
worksites by foot. The proposed action includes summer and fall 
construction restrictions to protect northern fur seals from 
disturbances during the breeding and pup rearing period. Repair and 
replacement activities will include human presence within the fur seal 
breeding areas and use of all-terrain and four-wheel drive vehicles to 
transport personnel, equipment, and materials. Construction crews will 
use hand and power tools, gas-powered generators, and air compressors. 
Construction crews will need to demolish and remove old towers and 
walkways prior to replacement of new structures. Large boulders or 
uneven terrain will be altered to facilitate construction or access to 
areas where new foundations are to be placed.
    NMFS AKR biologists will begin daily marine mammal monitoring for 
the presence of fur seals on April 20, 2010, and record the number and 
response of northern fur seals to the proposed actions until June 7, 
2010. Construction activities will cease and demobilization will begin 
if the incidental taking of northern fur seals is predicted to exceed 
that authorized in the IHA prior to June 1, 2010; otherwise all 
activities will be completed on the rookeries by June 7, 2010.
    Additional details regarding the authorized action were included in 
the proposed IHA notice (75 FR 11121, March 10, 2010) and Environmental 
Assessment (EA).

Dates, Duration, and Location of Specified Activity

    The research walkways and towers will be repaired and replaced on 
St. Paul Island, Alaska from January 4, 2010, through June 7, 2010, and 
again in December, 2010 if necessary and authorized. The dates of the 
authorization will be from April 20 to June 7, 2010, and December 1 to 
31, 2010, which is during the presence of fur seals at the location of 
the specified activity. See below for information regarding when 
northern fur seals arrive (i.e., when incidental take starts 
occurring).

Comments and Responses

    A notice of receipt of the NMFS AKR application and proposed IHA 
was published in the Federal Register on March 10, 2010 (75 FR 11121). 
During the comment period, NMFS received comments from the Marine 
Mammal Commission (Commission). NMFS also received comments from a 
private citizen. The public comments can be found online at: 
http:www.nmfs.noaa.gov/pr/permits/incidental.htm. The following are 
their comments, and NMFS' responses.
    Comment 1: The Commission recommends that NMFS issue the requested 
IHA to NMFS AKR, provided that the monitoring and mitigation activities 
proposed in NMFS' Federal Register notice for the proposed IHA are 
included in the authorization and are carried out as described.
    Response: NMFS agrees with the Commission's recommendation and 
conditions to this effect have been included in the IHA issued to the 
NMFS AKR.
    Comment 2: The Commission recommends that NMFS issue the requested 
IHA to NMFS AKR, provided that (1) field crews clear all construction-
related debris (including debris from towers or walkways that have 
fallen down) from each site upon completion of construction activity, 
and (2) crews use bolts or other materials, rather than nails, during 
construction so that structures that become decrepit in the future do 
not become hazardous to animals (e.g., boards with nails sticking out).
    Response: During the repair and replacement operations all 
construction debris is being removed. Pressure treated wood will go to 
the dump, unless it is usable and local residents can take it for their 
use on home projects. Natural wood is used by the construction 
contractor for forms for grout pads or temporary bracing if it is good. 
If it is not good it is burned in the burn barrels for hand warming. 
All waste from burn barrels, including ash and nails, is taken to the 
dump. If good natural wood is left over, the local residents may take 
it for use in home projects or to burn in their wood stoves. At this 
time there is no demolition scheduled for the new walkways as this work 
was done back in January 2010.
    NMFS disagrees with the Commission's recommendation that crews use 
bolts or other materials, rather than nails during construction. The 
repair and replacement work was designed and engineered by a certified 
engineer that has certified the design meets code and structural load 
and stress criteria. The 47 tower structures have already been nailed, 
and are on schedule to be replaced with the new design for safety and 
long-term maintenance cost effectiveness.
    Comment 3: The private citizen questioned the number of sites, the 
use of taxpayer dollars for funding the project, and the purpose of the 
research. The private citizen also stated that no

[[Page 21235]]

work should be done during northern fur seal breeding and use of the 
sites.
    Response: The objective of the project is to repair 47 fur seal 
observation towers and their associated walkways within fur seal 
breeding areas around the island. The purposes of the repair and 
replacement of the northern fur seal observation towers and walkways is 
to provide safe access for fur seal researchers into the dense breeding 
aggregations of northern fur seals. Safe access for researchers is 
required because northern fur seals exhibit strong site fidelity, 
tenacity, and high levels of aggression within dense aggregations. In 
addition, non-territorial fur seals are sensitive to human presence 
within and near breeding areas as a result of visual, auditory, and 
olfactory stimuli. The observation towers and walkways provide elevated 
access to observe and count breeding and resting northern fur seals 
that minimize the stimuli that influence fur seal behavior. The 
authorization dates will allow the incidental take of northern fur 
seals hauling out on St. Paul Island during their intermittent and 
early season presence through June 7, 2010 and again in December, 2010, 
if needed.

Description of Marine Mammals and Habitat Affected in the Activity Area

    Several marine mammal species are known to or could occur in the 
Bering Sea off the Alaska coastline (see Table 1 below). The northern 
fur seal is the only species of marine mammal managed by NMFS that may 
be present in the project area during the construction project. 
Northern fur seals are not listed as threatened or endangered under the 
Endangered Species Act (ESA), but are designated as depleted under the 
MMPA. Other marine mammal species managed by NMFS that inhabit the 
Bering Sea, but are not anticipated to occur in the Bering Sea project 
area during the replacement and repair activities, are listed in Table 
1 (below). Polar bears and Pacific walrus also occur in the Bering Sea, 
but they are not addressed further, since they are managed under the 
jurisdiction of the U.S. Fish and Wildlife Service (USFWS).
    The marine mammals that occur in the action area belong to four 
taxonomic groups: mysticetes (baleen whales), odontocetes (toothed 
whales), pinnipeds (seals, sea lions, and walrus), and carnivores 
(polar bears). Table 1 below outlines the marine mammal species and 
their habitat in the region of the activity area.

  Table 1. The habitat and conservation status of marine mammals inhabiting the proposed study area in the U.S.
                                             Bering Sea off Alaska.
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                         Species                                     Habitat                     ESA\1\
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Mysticetes                                                       Pack ice and coastal                        EN
Bowhead whale (Balaena mysticetus)
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\1\ U.S. Endangered Species Act: EN = Endangered, T = Threatened, NL = Not listed

    Not all of these species (listed in Table 1 above) are expected to 
be harassed from the described proposed activities. Because the 
activities are occurring on land, only northern fur seals are expected 
to be disturbed by the project.
    Northern fur seals (Callorhinus ursinus) are likely to be found 
within the activity area. Northern fur seals are seasonal residents on 
St. Paul Island, and may be found on the breeding and resting areas 
around the island from late April until early December.
    Adult males are the most likely group of northern fur seals to be 
encountered on St. Paul during the spring of 2010. By June 1, 2010, 
NMFS estimates about 50 percent of the maximum count (4,976) of adult 
males will be present on the St. Paul Island breeding areas. NMFS' 
estimate includes both territorial males and non-territorial males.
    In addition, NMFS estimates intermittent arrival and departure of 
few sub-adult males during the winter and spring. Most sub-adult male 
seals begin arriving during the last week of May resulting in a few 
tens to a hundred seals at any of the hauling grounds on St. Paul 
Island (Gentry, 1981)

Northern Fur Seal

    Northern fur seals occur from southern California north to the 
Bering Sea and west to the Okhotsk Sea and Honshu Island, Japan. During 
the summer breeding season, most of the worldwide population is found 
on the Pribilof Islands in the southern Bering Sea, with the remaining 
animals on rookeries in Russia, on Bogoslof Island in the southern 
Bering Sea, and on San Miguel Island off Southern California (Lander 
and Kajimura, 1982; NMFS, 1993). This species may temporarily haul-out 
onto land at other sites in Alaska, British Columbia, and on islets 
along the coast of the continental U.S., but generally do so outside of 
the breeding season (Fiscus, 1983).
    Northern fur seals are colonial breeding pinnipeds that exhibit 
strong site fidelity and currently breed on a few islands in the North 
Pacific Ocean and Bering Sea. Adult male fur seals, about three to five 
times larger than females, arrive at rookeries prior to the late June/
July breeding season and defend territories within the rookery. 
Beginning in mid-June the rookeries are occupied by breeding females, 
who within a few days give birth and begin nursing their single pup. 
Lactating females cycle between on shore attendance and at-sea foraging 
trips during the nursing period (July to November).
    NMFS designated the Pribilof Islands northern fur seal population 
depleted on June 17, 1988 (53 FR 17888) because it declined to less 
than 50 percent of levels observed in the late 1950s and no compelling 
evidence suggested that the northern fur seal carrying capacity of the 
Bering Sea had changed substantially since the late 1950s. Towell and 
Ream (2008) report that the 2008 pup production estimate for St. Paul 
Island was 6.6 percent less than the estimate in 2006. The 2008 pup 
production estimate for St. George Island was 6.4 percent greater than 
the estimate in 2006. Since the depleted designation in 1988 pup 
production on St. Paul Island has declined by 40 percent (171,610 pups 
born to 102,674) and on St. George Island by 27 percent (24,280 pups 
born to 18,160).
    Male northern fur seals arrive on all of their breeding islands in 
reverse proportion to their age. That is, the oldest seals arrive first 
followed by progressively younger seals. Thus adult males nine years 
old and older arrive as early as late April and persist intermittently 
at first and then permanently (for territorial males) for the duration 
of their tenure on the island which generally ranges for about 30 to 60 
days (Gentry, 1998). All non-territorial males (i.e., younger than 7 
years old) arrive on the island and cycle between fasting and resting 
on shore and foraging trips at sea from June through November (Sterling 
and Ream, 2004). Fur seals can be observed on and near St. Paul Island 
in nearly every month of the year, but the probability of encountering 
a hauled-out fur seal in any month from December until April is highly 
uncertain and near zero for any particular day.
    Two separate stocks of northern fur seals are recognized within 
U.S. waters, an Eastern Pacific stock and a San Miguel Island stock. 
The most recent estimate for the number of fur seals in the Eastern 
Pacific stock, based on pup counts from 2002 on Sea Lion Rock, from 
2006 on the Pribilof Islands, and from 2005 on Bogoslof Island is 
665,500 animals. The minimum population estimate is 654,437 animals; 
this estimate includes the first pup counts on Bogoslof Island in more 
than 5 years and does not indicate population increase.
    NMFS anticipates that no northern fur seals will be injured, 
seriously injured, or killed during the replacement and repair 
activities with incorporation of the described mitigation and 
monitoring measures. Because of the mitigation and monitoring 
requirements discussed in this document, NMFS and NMFS AKR believes it 
is highly unlikely that the activities would have the potential to 
injure (Level A harassment), or cause serious injury, or mortality of 
northern fur seals; however, they may temporarily leave or avoid the 
area where the proposed construction activities may occur, thus 
resulting in Level B harassment. NMFS AKR has requested the incidental 
take of 579 adult male northern fur seals (9,785 times) and 1,000 sub-
adult northern male fur seals (one time) or 1,579 total individual 
northern fur seals for the proposed action. The requested take is 
approximately 0.24 percent of the estimated minimum (654,437) Eastern 
Pacific stock. NMFS has determined that the number of requested 
incidental takes for the action is small relative to population 
estimates of northern fur seals.
    Further information on the biology and local distribution of these 
species

[[Page 21237]]

and others in the region can be found in NMFS AKR's application, which 
is available upon request (see ADDRESSES), and the NMFS Marine Mammal 
Stock Assessment Reports, which are available online at: http://www.nmfs.noaa.gov/pr/species/.

Potential Effects of Activities on Marine Mammals

    All anticipated takes likely to occur incidental to the 
construction activities would be Level B harassment (as defined in 50 
CFR 216.3), involving short-term, temporary changes in behavior. 
Incidental harassment may result if hauled-out animals move away from 
the field crew personnel. For the purpose of estimating the number of 
pinnipeds taken by these activities, NMFS assumes that pinnipeds that 
move or change the direction of their movement in response to the 
presence of field crew personnel are taken by Level B harassment. 
Animals that merely raise their head and look at the field crew 
personnel are not considered to have been taken.
    Some adult seals may depart, but NMFS AKR anticipates most will 
alter their activity budgets due to stimuli related construction. NMFS 
used the 2006 adult male counts because they were available and 
partitioned by section, and because the continued decline of northern 
fur seals provided us with a conservative (i.e., biased high) estimate. 
NMFS estimates about five percent of the adult males, less than one 
percent of sub-adult males, and no females or pups on St. Paul Island 
will be exposed to the construction activities. NMFS anticipates sub-
adult seals will be displaced from their resting areas if encountered 
during construction. The NMFS AKR anticipates there will be no 
significant impact on the species or stock of northern fur seals from 
the construction activity on the rookeries prior to and after the 
breeding season.
    Given the considerations noted above, and the small proportion of 
the total northern fur seal population potentially disturbed by the 
proposed construction activity, the effects of operations are expected 
to be limited to short-term and localized displacement (behavioral 
changes) within the work sites involving relatively small numbers of 
seals. The effects of the construction operations fall within the MMPA 
definition of Level B harassment. The impacts of the construction 
activities are expected to be negligible for the northern fur seal 
stock and populations.

Potential Effects of Activities on Marine Mammal Habitat

    The NMFS AKR does not anticipate any negative impact on northern 
fur seal habitat from the demolition, repair, and replacement of 
observation towers and walkways on St. Paul Island. These structures 
have been located in nearly the same areas for at least 50 years at 
some locations and northern fur seals continue to use the habitat 
around the structures. The demolition and removal of condemned 
structures will restore some small areas of fur seal habitat. The 
replacement and repair of observation towers and walkways will likely 
result in no net change or modification to marine mammal habitat. 
Consequently, construction activities are anticipated to have a 
negligible impact on the local northern fur seal population and their 
habitat.

Number of Marine Mammals Expected to be Incidentally Taken by the 
Proposed Activity

    The NMFS AKR is requesting take, by Level B harassment only, of 
male northern fur seals. The method of taking will be from a 
combination of human presence, scent, and airborne construction noise.

               Table 2. Summary of incidental taking by harassment of northern fur seals during construction activities on St. Paul Island
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                                    Prior to April
                                       25, 2010          Week 1           Week 2           Week 3           Week 4           Week 5           Total
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Adult Male Northern Fur Seal                    0    8 seals taken   115 seals taken  232 seals taken  463 seals taken  579 seals taken  579 seals taken
                                                          58 times        811 times      1,621 times      3,242 times      4,053 times      9,785 times
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The number of incidental takes by
 harassment was derived from 2006
 adult male counts from the
 National Marine Mammal
 Laboratory (NMML) from Reef
 rookery (Fowler et al., 2006)
 and was corrected based on the
 timing of arrival curve from
 Gentry (1998). Rookeries are
 divided into sections allowing
 easier tabulation of counts and
 the maximum counts in each
 section have been divided by the
 percentage estimated on land for
 each week in Tables 3a to 3e
 (below). NMFS summed the daily
 take estimates into weekly bins
 (Table 3a to 3e) because few
 animals were predicted on land
 in late April and early May, but
 those few animals would likely
 be taken repeatedly during the
 week and every subsequent week.
 Table 3 shows fractional daily
 taking within each section,
 summed for the week, and rounded
 up into Table 2. NMFS estimates
 an additional 1,000 sub-adult
 male seals may be encountered
 during the construction or
 repair activities at Reef or
 other rookeries (Table 2).

[[Page 21238]]

 
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[[Page 21239]]

 
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    NMFS and NMFS AKR estimate that the incidental ``take by 
harassment'' could be up to 579 adult male northern fur seals taken 
9,785 times and 1,000 sub-adult male northern fur seals taken once 
during the action.

Mitigation

    In order to issue an Incidental Take Authorization (ITA) for small 
numbers of marine mammals under Section 101(a)(5)(D) of the MMPA, NMFS 
must set forth the permissible methods of taking pursuant to such 
activity, and other means of effecting the least practicable adverse 
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.
    Northern fur seals are the only marine mammal species managed by 
NMFS expected to be present in the project area during the planned 
construction activities. The construction season has been chosen based 
on the minimum likelihood of encountering breeding and nursing northern 
fur seals. The amount of work and weather conditions during the winter 
season necessitates providing some contingency arrangements for work to 
be completed when few if any fur seals are found on land. In addition, 
the outlying periods requested are prior to the arrival and after the 
departure of the most sensitive fur seals (i.e., adult females and 
unweaned pups). Gentry (1998) experimented with complete displacement 
in early June of territorial males from their terrestrial sites. He 
found that over 80 percent of adult males returned within seven hours 
to their original territory site with less aggression than required to 
originally secure the site. Thus territorial adult males are highly 
resistant to disturbance at the time of year NMFS AKR is requesting 
authorization for incidental harassment. Some individual territorial 
males were so resistant to harassment that it required four to six 
people with poles and noisemakers to move them from their sites.
    Thus, the combination of a winter and spring construction season 
along with incidental harassment of small numbers of adult and sub-
adult male northern fur seals will minimize the potential for adverse 
impacts to the population and habitat. The habitat is further protected 
because the ground is frozen and resistant to erosion and degradation 
due to vehicle traffic. In addition to the mitigation described above, 
NMFS AKR will also limit field personnel to approaching sites 
cautiously, choosing a route that minimizes the potential for 
disturbance of pinnipeds; and after each site visit, the site will be 
vacated as soon as possible so that it can be re-occupied by pinnipeds 
that may have been disturbed. The implementation of a monitoring and 
mitigation program is expected by NMFS to achieve the least practicable 
adverse impact upon the affected species or stock.

Monitoring and Reporting

    In order to issue an ITA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for IHAs 
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.
    NMFS AKR will begin marine mammal monitoring at Reef, Gorbatch, and 
Ardiguen breeding areas to identify and count northern fur seals on 
land, their response to the presence and absence of construction 
activities and the timing of arrival beginning the last week of April. 
In addition to counts of northern fur seals monitoring will also record 
the type and duration of construction activities at each site where 
northern fur seals are identified to evaluate the construction actions 
potential contribution to the responses observed. Gorbatch and Ardiguen 
breeding areas will provide control areas with no construction 
activities to compare the timing of arrival and response of male 
northern fur seals at Reef. NMFS AKR will consider before-after/
control-impact (see Underwood, 1994) study design in the final 
monitoring plan, method and analysis. NMFS AKR will have monitors check 
the site every morning before the arrival of field crew personnel for 
seal presence and provide the best route. In addition, they would be 
able to complete a ``before'' count that could provide a baseline for 
estimating incidental take.
    Information recorded by observers will include: species counts, 
life history stage (e.g., adult, sub-adult, pup, etc.) numbers of 
observed disturbances (e.g., flushed into the water; moving more than 1 
m [3.3 ft], but not into the water; becoming alert and moving, but do 
not move more than 1 m; and changing the direction of current 
movement), descriptions of the disturbance behaviors and responses 
during construction activities, closest point of approach to field crew 
personnel, as well as the date, time, and weather conditions. 
Observations of stampeding, other unusual behaviors, numbers, or 
distributions of pinnipeds at St. Paul Island will be reported to NMFS' 
NMML so that any potential follow-up observations can be conducted by 
the appropriate personnel. Weather observations should be recorded 
during activities and observations as they have strong influence on the 
presence/absence and behavior of pinnipeds and propagation of human 
scent. In addition, any chance observations of tag-bearing pinnipeds 
(including carcasses) as well as any rare or unusual species of marine 
mammals will be reported to NMFS.
    If at any time injury, serious injury, or death of any marine 
mammal occurs that may be a result of the construction activities, NMFS 
AKR will suspend construction activities and contact NMFS immediately 
to determine how

[[Page 21240]]

best to proceed to ensure that another injury or death does not occur 
and to ensure that the applicant remains in compliance with the MMPA.
    Any takes of marine mammals other than those authorized by the IHA, 
as well as any injuries or deaths of marine mammals, will be reported 
to the Alaska Regional Administrator and NMFS Office of Protected 
Resources, within 24 hours. NMFS AKR will submit a draft report to NMFS 
within 90 days of completing the replacement and repair activities. The 
monitoring report would contain a summary of information gathered 
pursuant to the monitoring and mitigation requirements set forth in the 
IHA, including detailed descriptions of observations of any marine 
mammal, by species, number, age class, and sex, whenever possible, that 
is sighted in the vicinity of the proposed project area; description of 
the animal's observed behaviors, and the activities occurring at the 
time. The location and time of each animal sighting will also be 
included. A final report must be submitted to the Regional 
Administrator and Chief of the Permits, Conservation, and Education 
Division within 30 days after receiving comments from NMFS on the draft 
final report. If no comments are received from NMFS, the draft final 
report will be considered to be the final report.

Encouraging and Coordinating Research

    Coordination and collaboration with Tribal Government of St. Paul 
Island's Ecosystem Conservation Office (Tribal ECO) will be 
accomplished to partner with and potentially utilize local sentinels 
currently implementing a long-term monitoring program on St. Paul 
Island. Dr. Paul Wade at the NMML has conducted work at this site 
related to offshore observations of killer whales, and NMFS AKR will 
coordinate with Dr. Wade if necessary. Northern fur seal researchers at 
the NMML and North Pacific Universities Marine Mammal Consortium do not 
begin their work until the arrival of adult females in late June, but 
NMFS AKR will contact the Principal Investigators to ensure their plans 
have not changed and whether their research may overlap with this 
project.

Negligible Impact and Small Numbers Analysis and Determination

    The Secretary, in accordance with paragraph 101(a)(5)(D) of the 
MMPA, shall authorize the take of small numbers of marine mammals 
incidental to specified activities (other than commercial fishing) 
within a specified geographic region, if among other things, the 
Secretary determines that the authorized incidental take will have a 
``negligible impact'' on species or stocks affected by the 
authorization. NMFS implementing regulations codified at 50 CFR 216.103 
states that ``negligible impact is 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.''
    Impacts from the activities on northern fur seals and their habitat 
are expected to be temporary and occur to a small, localized population 
of marine mammals. The effects on the habitat from the proposed 
construction activities are not expected to have an effect on 
recruitment or survival rates. Due to the limited duration, and 
monitoring and mitigation measures described above, which include 
seasonal restrictions, takes will not occur during times of 
significance for marine mammals. The estimated incidental ``take by 
harassment'' of 579 adult male and 1,000 sub-adult male (1,579 total 
individuals) northern fur seals during the proposed action is 
approximately 0.24 percent of the estimated minimum (654,437 
individuals) population of the Eastern Pacific stock.
    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 finds that NMFS AKR's proposed activities would result 
in the incidental take of small numbers of marine mammals, by Level B 
harassment only, and that the total taking from the construction 
activities would have a negligible impact on the affected species or 
stocks of marine mammals.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    Under the MMPA, NMFS must determine that an activity would not have 
an unmitigable adverse impact on the subsistence needs for marine 
mammals. While this includes usage of both cetaceans and pinnipeds, the 
primary impact by construction activities is expected to be impacts 
from replacement and repair of fur seal research observation towers and 
walkways on northern fur seals. In 50 CFR 216.103, NMFS has defined 
unmitigable adverse impact as:
    An impact resulting from the specified activity: (1) that is likely 
to reduce the availability of the species to a level insufficient for a 
harvest to meet subsistence needs by: (i) causing the marine mammals to 
abandon or avoid hunting areas, (ii) directly displacing subsistence 
users, or (iii) placing physical barriers between the marine mammals 
and the subsistence hunters; and (2) that cannot be sufficiently 
mitigated by other measures to increase the availability of marine 
mammals to allow subsistence needs to be met.
    Northern fur seals are not allowed to be harvested on land by 
Alaska Natives outside the harvest season described at 50 CFR 216.72, 
and 50 CFR 216.72(c)(1) states that ``no fur seal may be taken on the 
Pribilof Islands before June 23 of each year.'' Therefore there will be 
no impact on subsistence use of northern fur seals. Steller sea lion 
subsistence hunting occurs during the winter and spring on the Reef 
Peninsula. Steller sea lion subsistence hunting does not occur at the 
tower and walkway sites on Reef Rookery. Hunting effort is primarily 
located at Gorbatch and Ardiguen Rookeries as well as the bluffs along 
the east shore to the north of Reef Rookery. Other sea lion hunting 
areas are not typically associated with fur seal towers and walkways 
and therefore would not be affected.
    NMFS AKR has discussed the potential overlap between the 
construction season and location with subsistence hunting with the 
Tribal ECO staff. The NMFS AKR has ongoing communication with Steller 
sea lion hunters through the Tribal Government of St. Paul Island. As 
part of the cooperative management agreement between NMFS and the 
Tribal Government of St. Paul under section 119 of the MMPA, NMFS 
regularly communicates agency project plans and subsistence needs and 
activities. Most subsistence activities occur during the summer per the 
subsistence harvest regulations at 50 CFR 216 subpart F. Annual reports 
submitted to NMFS of subsistence marine mammal harvests indicate most 
hunting occurs at Northeast Point. Winter subsistence harvests occur at 
many locations surrounding St. Paul Island and are not concentrated at 
any locations where tower or walkway work would be conducted.
    The number of individual northern fur seals likely to be impacted 
by construction operations is expected to be relatively low. With the 
proposed monitoring and mitigation measures described above, which 
include seasonal restrictions, the construction operations are not 
expected to cause seals to abandon/avoid subsistence hunting areas, 
directly displace subsistence users, or place physical barriers between 
the marine mammals and the subsistence hunters. Effects on most 
individual seals are expected to be

[[Page 21241]]

limited to localized and temporary displacement (Level B harassment). 
The taking by harassment is not expected to result in an unmitigable 
adverse impact on the availability of such species for taking for 
subsistence uses.

Endangered Species Act (ESA)

    For the reasons already described in this Federal Register notice, 
NMFS has determined that the described proposed construction activities 
and the accompanying IHA are not anticipated to have the potential to 
adversely affect species under NMFS jurisdiction and protected by the 
ESA. Consequently, NMFS has determined that a Section 7 consultation is 
not required. The northern fur seal, which is the only species of 
marine mammal under NMFS jurisdiction likely to occur in the action 
area, is not listed under the ESA.

National Environmental Policy Act (NEPA)

    NMFS has prepared an Environmental Assessment for Issuance of an 
Incidental Harassment Authorization for Replacement and Repair of 
Northern Fur Seal Observation Towers and Walkways on St. Paul Island, 
Alaska (EA), which analyzes the direct, indirect and cumulative 
environmental impacts of the proposed specified activities on marine 
mammals including those listed as threatened or endangered under the 
ESA. Based on the analysis contained in the EA, NMFS has issued a 
Finding of No Significant Impact (FONSI) for the issuance of the IHA.

Determinations

    Based on NMFS AKR's application, as well as the analysis contained 
herein, NMFS has determined that the impact of the described 
replacement and repair operations will result, at most, in a temporary 
modification in behavior by small numbers of northern fur seals. The 
effect of the construction activities is expected to be limited to 
short-term and localized behavioral changes.
    Due to the infrequency, short time-frame, and localized nature of 
these activities, the number of marine mammals, relative to the 
population size, potentially taken by harassment is expected to be 
small. In addition, no take by injury (Level A harassment), serious 
injury, and/or death is anticipated or authorized, and take by Level B 
harassment will be at the lowest level practicable due to incorporation 
of the monitoring and mitigation measures mentioned previously in this 
document. NMFS has further determined that the anticipated takes will 
have a negligible impact on the affected species or stock of marine 
mammals. Also, the construction project is not expected to result in an 
unmitigable adverse impact on subsistence uses of this species.

Authorization

    As a result of these determinations, NMFS issued an IHA to NMFS AKR 
for the harassment of small numbers (based on populations of the 
species and stock) of northern fur seals incidental to construction 
operations on St. Paul Island, including the previously mentioned 
mitigation, monitoring, and reporting requirements.

    Dated: April 16, 2010.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2010-9513 Filed 4-22-10; 8:45 am]
BILLING CODE 3510-22-S