[Federal Register Volume 77, Number 166 (Monday, August 27, 2012)]
[Notices]
[Pages 51773-51780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-21075]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XC139


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Bird Mitigation Research in the 
Farallon National Wildlife Refuge

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 has received an application from the U.S. Fish and 
Wildlife Service (USFWS) for an Incidental Harassment Authorization 
(IHA) to take marine mammals, by harassment, incidental to a bird 
mitigation research trial in the Farallon National Wildlife Refuge. 
Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting 
comments on its proposal to issue an IHA to the USFWS to take, by Level 
B harassment only, five species of marine mammals during the specified 
activity.

DATES: Comments and information must be received no later than 
September 26, 2012.

ADDRESSES: Comments on the application should be addressed to Michael 
Payne, Chief, Permits and Conservation 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 email 
comments sent to addresses other than the one provided here. Comments 
sent via email, 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 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: Michelle Magliocca, Office of 
Protected Resources, NMFS, (301) 427-8401.

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

[[Page 51774]]

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 April 17, 2012, from the USFWS for 
the taking, by harassment, of marine mammals incidental to a bird 
mitigation research trial in the Farallon National Wildlife Refuge. 
Upon receipt of additional information and a revised application, NMFS 
determined the application adequate and complete on July 27, 2012. The 
USFWS plans to conduct a research trial to assess potential bird hazing 
methods that could be used to minimize the risk of rodent bait 
ingestion by non-target species, if such an alternative action is 
chosen, during a proposed house mouse eradication. NMFS is proposing to 
issue an IHA to the USFWS because hazing methods used during the 
research trial may result in Level B harassment of the Northern 
elephant seal (Mirounga angustirostris), harbor seal (Phoca vitulina 
richardii), Steller sea lion (Eumetopias jubatus), California sea lion 
(Zalophus californianus), and Northern fur seal (Callorhinus ursinus).

Description of the Specified Activity

    The purpose of the proposed project is to assess potential bird 
hazing methods that could be used to minimize the risk of rodent bait 
ingestion by non-target species during a house mouse eradication for 
the South Farallon Islands of the Farallon National Wildlife Refuge. 
House mice were introduced to the South Farallon Islands during the 
19th century and have resulted in considerable ecosystem degradation. 
House mice seem to be indirectly impacting the breeding success of 
burrow-nesting seabirds, such as the ashy storm-petrel, and have also 
been identified as vectors of diseases that result in mass mortalities 
of marine mammals. Removal of the invasive house mice would protect 
seabirds, assist in the recovery of native plants and endemic species, 
and prevent the spread of disease to marine mammals. Although the 
proposed project would take place when most seabirds are absent, some 
bird species may be at risk of ingesting the toxic bait. Therefore, the 
USFWS is proposing a number of mitigation efforts that include a bird 
hazing program.
    Hazing methods may incidentally result in the harassment of 
pinnipeds that haul out on the island. The following gull hazing 
techniques are likely to be used during the proposed research trial: 
Lasers, spotlights, pyrotechnics, biosonics, predator calls, air 
cannons, Mylar tape, small helicopter, human presence, kites, radio-
controlled aircraft, and trained dogs. While all of these techniques 
may not be available, funded, or used in the trial, they are all being 
considered to reduce non-target bird mortality. Up to five biologists 
would be present on the islands to implement the research trial and 
monitor any pinniped disturbance. Since the trial is intended to allow 
researchers to test an array of gull hazing techniques, the USFWS 
cannot specify the exact protocol that would be implemented. However, 
part of the USFWS' goal during this trial is to determine which hazing 
methods are most effective at (1) deterring birds from roosting on the 
island and (2) minimizing the impacts to pinnipeds. Therefore, 
researchers would carefully monitor pinnipeds haul-outs during hazing 
and adjust the research trial to reduce disturbance. The possible gull 
hazing techniques are described in detail below.

Lasers

    Two different handheld lasers could be used during the research 
trial: Red or green Avian Dissuader(R) (50mW) and handheld green laser 
pointer (5mW). These lasers would likely be used during pre-dawn hours 
to haze gulls already settled on the island. Use of the laser involves 
shining the beam briefly in a sweeping motion at the gull roost, which 
instigates a flight response in most birds. The lasers would not be 
directed at pinnipeds' eyes and pinnipeds are not known to react to 
this type of equipment. Once gulls are no longer spending the night on 
the island, the lasers would be used to haze gulls attempting to land 
on the island just prior to sunrise. Lasers would also be used in the 
evenings to enhance the use of pyrotechnics and reach areas that are 
not readily accessible or could not be hazed with pyrotechnics due to 
pinniped presence. Two short nighttime laser sweeps of 30-60 minutes 
could be attempted on each island. The lasers are expected to have a 
very low impact on pinnipeds because they would not be directed at 
haul-outs. However, researchers may need to approach a haul-out in 
order to access certain locations. The presence of researchers could 
result in temporary behavioral harassment.

Spotlight

    One or 10-million candlepower spotlights could be used during pre-
dawn hours to haze gulls already settled on the island. Once gulls no 
longer spend the night on the island and presence is restricted to 
marine ledges, the spotlight may also be tested to haze gulls 
intermittently settling on ledges. Two short nighttime sweeps by gull 
roosting areas may be attempted in order to haze any gulls that might 
have settled back on the island during the course of the night. Like 
the lasers, the spotlight is expected to have a very low impact on 
pinnipeds because it will not typically be directed at haul-outs. 
However, if birds roost near a haul-out, the spotlight may need to be 
used around the vicinity of pinnipeds and the visual stimulus could 
result in temporary behavioral harassment. The spotlight beam, while 
bright, is not so focused that it would cause retinal injury.

Biosonics

    Up to three Bird-Guard broadcasting units (bird distress calls) 
could be used to deter gulls from settling on the island, as well as 
encourage them to flee if they are already present. Speakers may be 
placed in accessible locations. Additionally, up to three Bird 
Gard[supreg] SUPER PRO systems could be used to cover problem gull 
areas on each island. A number of electronic chips with both gull 
distress and predator calls could be used. The bird calls are naturally 
occurring sounds and are not expected to cause harassment of pinnipeds. 
The placement of the speakers is also not expected to cause harassment 
of pinnipeds because haul-out sites would be avoided. Temporary 
harassment of pinnipeds would only occur if the only place to locate a 
speaker system is near a haul-out site. The sound source levels would 
depend on how many speakers are used, how loud the amplifier is set to, 
the types of calls used, etc. Sound levels may be measured on site at 
the beginning of the research trial. The presence of researchers is 
more likely to disturb pinnipeds than the sound levels being emitted 
from the speakers.

Pyrotechnics

    Pyrotechnics could be used to deter gulls during daylight hours. 
They would

[[Page 51775]]

be shot from a launch, such as a hand-held pistol, and could include 
bird bombs, CAPA charges, screamers, and screamer-bangers. Sounds are 
rated at 100-130 decibels (dB), depending on the specific product. The 
bird bombs are expected to explode with a 100-dB report down range from 
the launch location. CAPA charges would travel about 305 m before a 
150-dB report. Screamers are expected to issue a 100-dB siren-like 
sound in mid-air. Screamer-bangers are expected to explode with a 120-
dB report. Use of these products adjacent to pinniped haul-outs could 
cause behavioral harassment. Placement of these units would be so as to 
avoid exceeding the hearing threshold for pinnipeds. The USFWS would 
first use pyrotechnics as far away as possible from haul-out sites and 
gradually get closer if necessary, while monitoring behavioral 
reactions of pinnipeds. Pyrotechnics would not be used directly over a 
major haul-out site.

Zon Gun

    A zon gun air cannon may be used to deter birds that repeatedly 
attempt to settle on the island. This technique involves a propane 
canister that charges a cylinder to produce a loud sound periodically. 
If pyrotechnics prove to be effective and do not appear to affect 
marine mammals, this technique may also be used. Detonation volume is 
adjustable between 100 and 125 dB. Placement of this unit would be as 
to avoid exceeding the hearing threshold of pinnipeds. The USFWS would 
use the lowest setting if haul-outs are close, but may experiment with 
increasing the volume at farther distances. The louder the zon gun 
volume, the larger the area that the USFWS would be able to cover for 
bird hazing. Behavioral response of pinnipeds would be monitored and 
the zon gun volume would be adjusted at the first sign of large scale 
disturbance.

Helicopter

    A helicopter may be used during the research trial to haze gulls in 
remote portions of the islands and for operational purposes. More 
specifically, a helicopter may be used for the following: Monitoring 
the islands to determine the location and numbers of gulls and 
pinnipeds in remote areas that cannot be seen from Southeast Farallon 
Island observation points; moving and deploying personnel and equipment 
to and from areas inaccessible by foot; and conducting radio-telemetry 
flights to examine movement patterns of gulls and the efficacy of 
hazing. To avoid or minimize pinniped disturbance, helicopter flights 
in areas near haul-outs would use a slow sequential approach of 
decreasing altitude in order to habituate the marine mammals to the 
sound. This approach has been used successfully during rodent removal 
operations on Anacapa Island in 2001-2002 and on Rat Island in 2009.

Human Movement

    Up to five researchers may access areas on West End Island in order 
to investigate possible gull roosting areas, haze gulls, and monitor 
pinniped responses to hazing activities. Researchers would approach 
haul-outs slowly and cautiously in order to avoid unnecessary 
disturbance to pinnipeds.

Kites and Radio-Controlled Aircraft

    The use of 5-10 predator kites (such as Eagle or Helikites) or 
radio-controlled aircraft may be used to haze gulls. Most kites would 
be used to haze gulls at a short distance. This technique would be used 
sparingly around harbor seals, as they may be more easily spooked than 
other pinniped species. If a kite or radio-controlled aircraft falls 
into a haul-out area, then it would either be: (1) Left in place if it 
could not be retrieved safely or without causing major pinniped 
disturbance (stampede of large number of animals); or (2) retrieved 
using a slow methodical approach to avoid major disturbances to 
pinnipeds. Retrieval may also occur at a later time when pinnipeds are 
either absent or in fewer numbers.

Mylar Tape

    Bamboo poles measuring about two meters in length with one-meter 
lengths of Mylar tied to them could be placed in areas commonly used by 
gulls in order to deter them from settling. While not expected, the 
visual stimulus of the Mylar tape may result in temporary behavioral 
harassment of pinnipeds or the placement of the poles by researchers 
could cause temporary disturbance to pinnipeds in the area.

Trained Dogs

    Well-trained herding working dogs (e.g., border collies) may be 
used to haze birds in certain areas. These dogs are trained to not 
harass pinnipeds and would have the necessary immunizations and 
certificates to ensure that no diseases are transmittable. Dogs would 
be kept at least 30 meters away from pinnipeds. However, the dogs' 
presence and barking may result in temporary behavioral harassment of 
pinnipeds.

Dates and Duration of Proposed Activity

    The proposed project would take place over a 2-4 week period 
between November 1, 2012 and January 31, 2013. The exact timing would 
be dependent on seasonal variations in weather, effectiveness, gull 
abundance and distribution, access to the island, equipment funding, 
staff, and required permits. During the 2-4 week period, gull roosts 
would be visited at least twice a day by researchers for hazing or 
monitoring. Most visits would last about 15 minutes, although human 
presence may last for 2-5 hours per day if necessary. Most hazing would 
take place a few hours before and after sunrise and sunset. Sporadic 
gull hazing may also occur as needed throughout the day and night.

Region of Proposed Activity

    The proposed project would take place in the Farallon National 
Wildlife Refuge, a group of islands about 30 miles offshore of San 
Francisco, California. The refuge was established in 1909 specifically 
to protect sea birds and pinnipeds and it currently sustains the 
largest sea bird breeding colony south of Alaska, including 30 percent 
of California's nesting sea birds. Five pinniped species also breed or 
haul out on the Farallon Islands. The proposed project would be 
conducted in the South Farallon Islands, which are composed of 
Southeast Farallon Island, West End Island, Aulon Islets, and Saddle 
Rock. Most of the gull hazing is expected to occur within Southeast 
Farallon Island; however, hazing may be implemented around other areas 
of the island if gulls attempt to roost. The majority of the island's 
perimeter is considered a potential haul-out for pinnipeds. Species-
specific haul-out and pupping sites are provided in the Description of 
Marine Mammals section of this notice.

Sound Propagation

    For background, sound is a mechanical disturbance consisting of 
minute vibrations that travel through a medium, such as air or water, 
and is generally characterized by several variables. Frequency 
describes the sound's pitch and is measured in hertz (Hz) or kilohertz 
(kHz), while sound level describes the sound's loudness and is measured 
in decibels (dB). Sound level increases or decreases exponentially with 
each dB of change. For example, 10 dB yields a sound level 10 times 
more intense than 1 dB, while a 20 dB level equates to 100 times more 
intense, and a 30 dB level is 1,000 times more intense. Sound levels 
are compared to a reference sound pressure (micro-Pascal) to identify 
the medium. For air and water, these reference pressures are ``re: 20 
[micro]Pa'' and ``re: 1

[[Page 51776]]

[micro]Pa,'' respectively. Root mean square (rms) is the quadratic mean 
sound pressure over the duration of an impulse. Rms is calculated by 
squaring all of the sound amplitudes, averaging the squares, and then 
taking the square root of the average (Urick, 1975). Rms accounts for 
both positive and negative values; squaring the pressures makes all 
values positive so that they may be accounted for in the summation of 
pressure levels (Hastings and Popper, 2005). This measurement is often 
used in the context of discussing behavioral effects, in part because 
behavioral effects, which often result from auditory cues, may be 
better expressed through averaged units rather than by peak pressures.
    The use of biosonics, pyrotechnics, and zon guns may result in 
elevated sound levels that exceed NMFS' threshold for in-air 
harassment. Current NMFS practice regarding in-air exposure of 
pinnipeds to sound generated from human activity is that the onset of 
Level B harassment for harbor seals and all other pinnipeds is 90 dB 
and 100 dB re: 20[micro]Pa, respectively. The USFWS intends to use bird 
hazing methods that cause the least amount of marine mammal harassment, 
while still preventing birds from settling on the island. Biosonics, 
pyrotechnics, and zon guns would be initially used at distances to 
avoid the onset of Level B harassment. Only if bird hazing methods are 
still unsuccessful from distant locations would these techniques be 
used closer to pinniped haul-outs.

Description of Marine Mammals in the Area of the Specified Activity

    The following marine mammal species may be present in the proposed 
project area during the research trial: Northern elephant seals, harbor 
seals, Steller sea lions, California sea lions, and Northern fur seals. 
Below is a summary of the status, distribution, and seasonality of each 
species that may be affected by the research trial.

Northern Elephant Seal

    Northern elephant seals are the largest ``true'' seal in the 
Northern Hemisphere, reaching lengths of over 4 meters. They are found 
in the eastern and central North Pacific Ocean, ranging from Alaska to 
Mexico. They spend most of their time in the ocean, diving to depths of 
330-800 meters and prefer sandy beaches when they come ashore for 
breeding and pupping. The Northern elephant seal breeding population is 
distributed from central Baja California, Mexico to the Point Reyes 
Peninsula in northern California. Along this coastline there are 13 
major breeding colonies. Elephant seals congregate in central 
California to breed from late December to March. Females typically give 
birth to a single pup and attend the pup for up to 6 weeks. Once the 
pups are weaned, mating occurs by attending males. After breeding, 
seals migrate to the Gulf of Alaska or deeper waters in the eastern 
Pacific. Adult females and juveniles return to terrestrial colonies to 
molt in April and May, and males return in June and July to molt, 
remaining onshore for around 3 weeks. On South Farallon Island, 
northern elephant seal haul outs are located in areas known as Sea Lion 
Cove, North Landing, and Garbage Gulch--all within or adjacent to 
southeast Farallon area. Pupping takes place in areas known as Shell 
Beach, Indian Head, and Mirounga Beach, on the western and southern 
parts of the island.
    The Northern elephant seal was exploited for its oil during the 
18th and 19th centuries and by 1900 the population was reduced to 20-30 
individuals on Guadalupe Island (Hoelzel et al., 1993; Hoelzel, 1999). 
As a result of this bottleneck, the genetic diversity found in this 
species is extremely low (Hoelzel, 1999). The recent formation of most 
rookeries indicates that there is no genetic differentiation among 
populations. Although movement and genetic exchange occurs among 
colonies, most seals return to their natal site to breed (Huber et al., 
1991).
    A complete population count of elephant seals is not possible 
because all age classes are not ashore at the same time. The most 
recent estimate of the California breeding stock was about 124,000 
individuals. Based on trends in pup counts, northern elephant seal 
colonies were continuing to grow in California through 2005, but appear 
to be stable or slowly decreasing in Mexico. Northern elephant seals 
are not listed under the Endangered Species Act (ESA) nor depleted 
under the MMPA.

Pacific Harbor Seal

    Harbor seals are one of the most widely distributed northern 
hemisphere pinnipeds and are found in coastal, estuarine, and sometimes 
fresh water of both the Atlantic and Pacific Oceans. On the west coast, 
harbor seals range from Baja California to the Bering Sea. They haul 
out on rocks, reefs, beaches, and drifting glacial ice for rest, 
thermal regulation, pupping, and social interaction. NMFS recognizes 
seven U.S. stocks for management purposes: Bering Sea, California, Gulf 
of Alaska, Oregon-Washington Coastal, southeast Alaska, Washington 
Inland, and Western North Atlantic. Any harbor seals in around the 
Farallon Islands would be part of the California stock. In California, 
approximately 400-600 harbor seal haul-out sites are widely distributed 
along the mainland and on offshore islands, including intertidal 
sandbars, rocky shores, and beaches (Hanan 1996; Lowry et al., 2005). 
On South Farallon Island, harbor seal haul-outs and sites of limited 
pupping are found near the center and southeast portions.
    A complete count of all harbor seals in California is impossible 
because some are always away from the haul-out sites. The most recent 
counts estimate the California population to number 30,196 individuals. 
Counts of harbor seals in California increased from 1981 to 2004 with 
the highest statewide count occurring in 2004. In central California, 
harbor seals breed annually from March through May and molt in June and 
July. Females give birth to a single pup and attend the pup for around 
30 days, at which time they wean pups. Mating occurs in the water 
around the time of weaning. Harbor seals are not listed under the ESA 
nor depleted under the MMPA.

California Sea Lion

    California sea lions range from southern Mexico up to British 
Columbia, residing in shallow coastal and estuarine waters. They prefer 
sandy beaches for hauling out, but are often seen on marina docks, 
jetties, and buoys in California. California sea lions breed almost 
entirely on islands in southern California, Western Baja California, 
and the Gulf of California. In recent years, they have begun to breed 
annually in small numbers at A[ntilde]o Nuevo Island and South Farallon 
Islands, California. The breeding season lasts from May to August and 
mating takes place shortly after birth. On the Farallon Islands, 
California sea lions haul out in many intertidal areas year round, 
fluctuating from several hundred to several thousand animals. The small 
number of breeding animals is concentrated in areas where researchers 
do not visit. The entire population of California sea lions cannot be 
counted because all age and sex classes are not ashore at the same 
time. However, based on pup counts, the current population estimate is 
296,750. After removing data from El Nino years (when pup production is 
decreased), pup counts between 1975 and 2008 suggest an annual increase 
of 5.4 percent. California sea lions are not listed under the ESA nor 
depleted under the MMPA.

[[Page 51777]]

Steller Sea Lion

    Steller sea lions reside along the North Pacific Rim from northern 
Japan through the Aleutian Islands to California. They prefer the 
colder temperate to sub-arctic waters of the North Pacific Ocean. 
Steller sea lions haul out on beaches, ledges, and rocky reefs to rest 
and breed. The U.S. population is divided into the western and eastern 
distinct population segment, with the eastern distinct population 
segment including any individuals in California. The eastern stock of 
Steller sea lions breeds on rookeries located in southeast Alaska, 
British Columbia, Oregon, and California.
    Combining the pup count data from 2005-2009 (11,120) and non-pup 
count data from 2008 (31,246) results in a minimum abundance estimate 
of 42,366 Steller sea lions in the western U.S. stock in 2005-2009 (M. 
DeAngelis, NMFS, pers. comm.). Using the most recent 2006-2009 pup 
counts available by region from aerial surveys across the range of the 
eastern stock (total N=13,889), the total population of the eastern 
stock of Steller sea lions is estimated to be within the range of 
58,334 to 72,223 (Carretta et al. 2011).
    Steller sea lion numbers in California, especially in southern and 
central California, have declined from historic numbers. Counts in 
California between 1927 and 1947 ranged between 4,000 and 6,000 non-
pups with no apparent trend, but have subsequently declined by over 50 
percent, and were between 1,500 and 2,000 non-pups during the period 
1980 to 2004. At A[ntilde]o Nuevo Island, a steady decline in ground 
counts started around 1970, and there was an 85 percent reduction in 
the breeding population by 1987 (LeBoeuf et al., 1991). Overall, counts 
of non-pups at trend sites in California and Oregon have been 
relatively stable or increasing slowly since the 1980s.
    On Southeast Farallon Island, California, the abundance of females 
declined an average of 3.6 percent per year from 1974 to 1997 (Sydeman 
and Allen, 1999). Steller sea lions give birth from May through July 
and mating occurs a couple of weeks after birth. Non-reproductive 
animals congregate at a few haul-out sites. Pups are weaned during the 
winter and spring of the following year. On the Farallon Islands, 
Steller sea lion breeding colonies are strictly protected to reduce or 
eliminate risk of human disturbance; access to these areas is rarely 
permitted.
    In 1990, the Steller sea lion was listed as a threatened species 
under the ESA. On April 18, 2012 (77 FR 23209), NMFS published a 
proposed rule to delist the eastern distinct population segment. A 
public comment period was open through June 18, 2012. No final 
determination has been made. Under the MMPA, the Steller sea lion is 
depleted throughout its range.

Northern Fur Seal

    Northern fur seals range across the North Pacific Ocean and the 
Bering Sea, as far south as the Channel Islands in California. They 
spend most of their time in the open ocean, but rely on rock beaches 
for reproduction. Concentrations of fur seals may in the open ocean 
near major oceanographic features, such as seamounts, canyons, or along 
the continental shelf break, due to prey availability. Three breeding 
locations are found in the U.S. and three in Russia. The peak pupping 
season is usually in early July and pups are weaned by October or 
November. At the end of the breeding season, northern fur seals travel 
south and remain pelagic for the winter migration period.
    The majority of individuals breed on the Pribilof Islands off the 
coast of mainland Alaska (Testa, 2007); however, there have been 
declines in the number of pups produced each year by as much as 50 
percent from previous seasons (Towell et al. 2006). After extensive 
hunting in the late 1800s on the Farallon Islands (Starks, 1922; 
Townsend, 1931; Scheffer and Kraus, 1964), the first pup in over 100 
years was born there in 1996. By 2006, 80 pups were born and the 
Farallon Islands are again an established rookery (Pyle et al., 2001). 
Rookeries have also been reestablished at Bogoslof Island in the 
eastern Aleutians, Alaska and at San Miguel Island, California (York et 
al., 2005).
    There are two stocks of northern fur seals recognized in U.S. 
waters: the eastern Pacific stock and the San Miguel Island stock. Any 
animals found on the Farallon Islands would be part of the San Miguel 
Island stock. The most recent population estimate for this stock is 
9,968 animals. The population of northern fur seals on San Miguel 
Island has increased steadily since its discovery in 1968, except for 
severe declines in 1983 and 1998 associated with El Ni[ntilde]o events. 
Recovery from the 1998 decline has been slow. Although the Farallones 
were a major northern fur seal breeding area before the arrival of 
hunters in the early 19th century, the species was essentially 
extirpated from the region by the second half of that century (Wilson 
and Ruff, 1999). Not until 1996 did northern fur seals begin breeding 
again on the Farallones (Pyle et al., 2001), and each year since then 
they have bred in generally small numbers on West End Island during the 
summer. These numbers have increased substantially in recent years. The 
San Miguel Island stock of northern fur seals is not listed under the 
ESA nor depleted under the MMPA.
    Further information on the biology and local distribution of these 
species and others in the region can be found in the USFWS application, 
which is available online (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 the Specified Activity on Marine Mammals

    Variable numbers of northern elephant seals, harbor seals, Steller 
sea lions, California sea lions, and northern fur seals typically haul 
out around the perimeter of South Farallon Island. Pinnipeds likely to 
be affected by the bird mitigation trial are those that are hauled out 
on land at or near the location of gull hazing. Incidental harassment 
may result if hauled out animals are disturbed by elevated sound levels 
or the presence of lasers, spotlights, humans, helicopters, or dogs. 
Although pinnipeds would not be deliberately approached by researchers, 
approach may be unavoidable if pinnipeds are hauled out in the 
immediate vicinity of roosting birds. Disturbance may result in 
behavioral reactions ranging from an animal simply becoming alert 
(e.g., turning the head, assuming a more upright posture) to flushing 
from the haul-out site into the water. NMFS does not necessarily 
consider the lesser reactions to constitute Level B behavioral 
harassment, but does assume that pinnipeds that move greater than one 
meter or change the speed or direction of their movement in response to 
the gull hazing methods are behaviorally harassed.
    Typically, even those reactions constituting Level B harassment 
would result at most in temporary, short-term disturbance. Due to the 
limited duration of the research trial (maximum 4 weeks of periodic 
daily hazing methods), disturbance of pinnipeds would only last for 
short periods of time and would not occur continuously over the 4-week 
period. Pinnipeds are unlikely to incur significant impacts to their 
survival because potential harassment would be sporadic and of low 
intensity. Although there is a risk of injury or mortality if pinniped 
pups are crushed during a stampede, the USFWS is not proposing to 
implement hazing methods during the pupping season. The USFWS

[[Page 51778]]

expects most pups to have left the island before November.
    In summary, NMFS believes it highly unlikely that the proposed 
activities would result in the injury, serious injury, or mortality of 
pinnipeds. Any harassment resulting from the bird mitigation research 
trial is expected to be in the form of Level B behavioral harassment.

Anticipated Effects on Habitat

    The USFWS' proposed activity is not expected to result in the 
physical alteration of marine mammal habitat. Any impacts resulting 
from the proposed activity (e.g., short periods of ensonification) 
would be temporary and no major breeding habitat would be affected. 
There are no expected impacts to pinniped prey species. Critical 
habitat has been defined for Steller sea lions as a 20 nautical mile 
buffer around all major haul-outs and rookeries, as well as associated 
terrestrial, air, and aquatic zones, which includes Southeast Farallon 
Island. Overall, the proposed activity is not expected to cause 
significant impacts on habitats used by the marine mammal species in 
the proposed project area or on the food sources that they utilize.

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).

Temporal Restriction

    The USFWS is proposing to conduct the bird mitigation research 
trial at a time when there are fewer birds on the island and outside of 
pinniped pupping season. The proposed schedule for this research would 
greatly reduce the possibility of injury, serious injury, or mortality 
to pinnipeds resulting from pups being crushed during a stampede. 
Pregnant northern elephant seals begin to arrive on the island in late 
December and early January. Remaining pups from the previous breeding 
season typically leave the island by November. While hazing operations 
are not expected to overlap with the presence of northern elephant seal 
pups, the USFWS will actively avoid pregnant females and pups during 
the research trial by having a biologist identify and map where these 
individuals are located.
    NMFS has carefully evaluated the applicant's proposed mitigation 
measure 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, including consideration of personnel safety and 
practicality of 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.
    The USFWS would designate at least one NMFS' approved protected 
species observer to monitor pinnipeds and collect information before, 
during, and after hazing operations. This observer would be located at 
the peak of the island's center, which provides visibility of about 70 
percent of the island. If hazing operations take place in areas not 
visible from the island's peak, additional observers would be used to 
monitor and record information from other locations. Before hazing 
operations begin, observers would record the number and species of 
animals in the area. During hazing operations, observers would record 
the species that react to hazing operations, any change in behavior 
that occurs, the number of animals that flush (or leave their haul-
out), and the number of flushing events. After the hazing operations, 
observers would record the number and species of animals remaining in 
the area. Observers would be in communication with the hazing trial 
implementation staff in order to relay information on pinniped 
behavioral responses. Observers would be able to halt hazing activities 
if they result in unexpected pinniped reactions (e.g., stampeding).
    If funding and personnel are available, and based on NMFS 
recommendation, the USFWS would monitor sound levels of biosonics, 
pyrotechnics, and zon guns to evaluate the potential exposure levels of 
pinnipeds to these techniques. If practicable, the USFWS would measure 
received sound levels at varying distances from the source to determine 
the distance at which NMFS' in-air thresholds are reached. Results from 
these measurements would potentially allow the USFWS to determine how 
far away they need to conduct certain hazing methods.
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHA, 
such as an injury (Level A harassment), serious injury, or mortality, 
the USFWS would immediately cease the specified activities and report 
the incident to the Chief of the Permits and Conservation Division, 
Office of Protected Resources, NMFS, at 301-427-8401 and/or by email to 
[email protected] and [email protected] and the 
Southwest Regional Stranding Coordinator at 562-980-3230 
([email protected]). The report must include the following 
information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Description of the incident;
     Status of all sound source use in the 24 hours preceding 
the incident;
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities would not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS would work with the USFWS to 
determine what is necessary to minimize the likelihood of further

[[Page 51779]]

prohibited take and ensure MMPA compliance. The USFWS would not resume 
their activities until notified by NMFS via letter, email, or 
telephone.
    In the event that the USFWS discovers an injured or dead marine 
mammal, and the lead observer determines that the cause of the injury 
or death is unknown and the death is relatively recent (i.e., in less 
than a moderate state of decomposition as described in the next 
paragraph), the USFWS would immediately report the incident to the 
Chief of the Permits and Conservation Division, Office of Protected 
Resources, NMFS, at 301-427-8401 and/or by email to 
[email protected] and [email protected] and the 
Southwest Regional Stranding Coordinator at 562-980-3230 
([email protected]). The report would include the same information 
identified in the paragraph above. Activities could continue while NMFS 
reviews the circumstances of the incident. NMFS would work with the 
USFWS to determine whether modifications in the activities are 
appropriate.
    In the event that the USFWS discovers an injured or dead marine 
mammal, and the lead observer determines that the injury or death is 
not associated with or related to the activities authorized in the IHA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), the USFWS would report the 
incident to the Chief of the Permits and Conservation Division, Office 
of Protected Resources, NMFS, at 301-427-8401 and/or by email to 
[email protected] and [email protected] and the 
Southwest Regional Stranding Coordinator at 562-980-3230 
([email protected]), within 24 hours of the discovery. The USFWS 
would provide photographs or video footage (if available) or other 
documentation of the stranded animal sighting to NMFS.

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].
    Current NMFS practice regarding in-air exposure of pinnipeds to 
sound generated from human activity is that the onset of Level B 
harassment for harbor seals and all other pinnipeds is 90 dB and 100 dB 
re: 20[micro]Pa, respectively. These threshold levels are based on 
monitoring of marine mammal reactions to rocket launches at Vandenberg 
Air Force Base. In those studies, not all harbor seals left a haul-out 
during a launch unless the sound exposure level was 100 dB or above and 
only short-term effects were detected.
    The USFWS estimated take by using the maximum pinniped counts from 
weekly censuses in November 2006-2011. These numbers represent the 
highest count ever recorded for each species during the month of 
November since 2006. November typically has the highest pinniped counts 
compared to December and January (the period when the proposed activity 
would take place). These numbers provide the best available information 
on haul-outs in the proposed action area. The USFWS' take estimates for 
the length of the trial are shown in Table 1.

      Table 1--Proposed Take of Pinnipeds for the Proposed Activity
------------------------------------------------------------------------
                            Species                               Total
------------------------------------------------------------------------
Northern elephant seal.........................................      328
Harbor seal....................................................       81
Steller sea lion...............................................       56
California sea lion............................................    3,538
Northern fur seal..............................................      109
------------------------------------------------------------------------

    NMFS believes these take estimates are conservative because the 
USFWS used maximum counts of hauled out pinnipeds during the months of 
the proposed activity and these numbers do not take mitigation measures 
into consideration. Researchers would make every effort to minimize the 
take of pinnipeds (e.g., by using hazing methods at the farthest 
possible distance from haul-outs); moreover, many pinnipeds do not haul 
out near typical gull roosts. Frequency of harassment would depend upon 
the location of gulls and the success of hazing operations. Pinnipeds 
may be disturbed as much as twice per day for the duration of the 2-4 
week trial. Table 1 shows the maximum number of animals that may be 
harassed during the proposed activity; however, each individual may be 
exposed to activities that result in harassment as much as twice per 
day for 2-4 weeks. The USFWS' proposed mitigation measures would likely 
result in fewer takes.

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 a number of factors which include, but are not limited 
to, number of anticipated injuries or mortalities (none of which would 
be authorized here), number, nature, intensity, and duration of Level B 
harassment, and the context in which takes occur.
    As described above, marine mammals would not be exposed to 
activities or sound levels which would result in injury (PTS), serious 
injury, or mortality. Rather, NMFS expects that some marine mammals may 
be exposed to elevated sound levels or visual stimuli that would result 
in Level B behavioral harassment. Marine mammals may avoid the area or 
temporarily change their behavior (e.g., move towards the water) in 
response to research presence or elevated sound levels. No impacts to 
marine mammal reproduction are expected because the proposed activity 
would not take place during pinniped pupping season.
    Proposed mitigation and monitoring measures are expected to lessen 
the potential impacts to marine mammals (e.g., avoiding pinniped haul-
outs). NMFS expects any impacts to pinnipeds to be temporary, Level B 
behavioral harassment. Marine mammal injury or mortality is unlikely 
because of the expected sound levels, avoidance of pinniped haul outs, 
and avoidance of pupping season. The amount of take NMFS proposes to 
authorize is considered small relative to the estimated stock sizes. 
Less than one percent of the stock would be harassed for Northern 
elephant seals, harbor seals, and Steller sea lions; and less than two 
percent of the stock would be harassed for California sea lions and 
Northern fur seals. There is no anticipated effect on annual rates of 
recruitment or survival of affected marine mammals.
    Based on the analysis of the likely effects of the proposed 
activity on marine mammals and their habitat, and considering the 
proposed mitigation and monitoring measures, NMFS preliminarily 
determines that the USFWS' proposed research mitigation

[[Page 51780]]

trial would result in the incidental take of small numbers of marine 
mammals, by Level B harassment only, and that the total taking would 
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)

    The only marine mammal species listed as endangered under the ESA 
with confirmed or possible occurrence in the study area is the eastern 
DPS of Steller sea lion. On April 18, 2012 (77 FR 23209), NMFS 
published a proposed rule to delist the eastern DPS. A public comment 
period was open through June 18, 2012. No final determination has been 
made. Under section 7 of the ESA, the USFWS has begun consultation with 
NMFS on the proposed bird mitigation research trial. NMFS also 
initiated consultation internally on the issuance of an IHA under 
section 101(a)(5)(D) of the MMPA for this activity. Consultation will 
be concluded prior to a determination on the issuance of an IHA.

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 
authorize the take of marine mammals incidental to the bird mitigation 
research trial, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated.

    Dated: August 21, 2012.
Frederick C. Sutter, III,
Acting Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2012-21075 Filed 8-24-12; 8:45 am]
BILLING CODE 3510-22-P