[Federal Register Volume 77, Number 203 (Friday, October 19, 2012)]
[Notices]
[Pages 64320-64326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-25732]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XC283


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

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

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

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SUMMARY: NMFS has received an application from the Partnership for 
Interdisciplinary Study of Coastal Oceans (PISCO) at the University of 
California (UC) Santa Cruz for an Incidental Harassment Authorization 
(IHA) to take marine mammals, by harassment, incidental to rocky 
intertidal monitoring surveys. Pursuant to the Marine Mammal Protection 
Act (MMPA), NMFS is requesting comments on its proposal to issue an IHA 
to PISCO to incidentally take, by Level B harassment only, marine 
mammals during the specified activity.

DATES: Comments and information must be received no later than November 
19, 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. 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 25-
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 
(e.g., name, address) voluntarily submitted by the commenter may be 
publicly accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    An electronic 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. NMFS is also preparing an 
Environmental Assessment (EA) in accordance with the National 
Environmental Policy Act (NEPA) and the regulations published by the 
Council on Environmental Quality. This notice provides relevant 
environmental issues and concerns related to the proposed IHA. NMFS 
will consider comments submitted in response to this notice as it 
prepares and finalizes the EA and decides whether or not to issue a 
Finding of No Significant Impact. The EA will be posted at the 
foregoing internet site once it is finalized. Documents cited in this 
notice may also be viewed, by appointment, during regular business 
hours, at the aforementioned address.

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

SUPPLEMENTARY INFORMATION: 

[[Page 64321]]

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, other means of 
effecting the least practicable impact on the species or stock and its 
habitat, 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 United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of 
an application followed by a 30-day public notice and comment period on 
any proposed authorizations for the incidental harassment of marine 
mammals. Within 45 days of the close of the comment period, NMFS must 
either issue or deny the authorization. Except with respect to certain 
activities not pertinent here, the MMPA defines ``harassment'' as: 
``any act of pursuit, torment, or annoyance which (i) has the potential 
to injure a marine mammal or marine mammal stock in the wild [Level A 
harassment]; or (ii) has the potential to disturb a marine mammal or 
marine mammal stock in the wild by causing disruption of behavioral 
patterns, including, but not limited to, migration, breathing, nursing, 
breeding, feeding, or sheltering [Level B harassment].''

Summary of Request

    On July 18, 2012, NMFS received an application from PISCO for the 
taking of marine mammals incidental to rocky intertidal monitoring 
surveys along the Oregon and California coasts. NMFS determined that 
the application was adequate and complete on September 11, 2012.
    The research group at UC Santa Cruz operates in collaboration with 
two large-scale marine research programs: PISCO and the Multi-agency 
Rocky Intertidal Network. The research group at UC Santa Cruz (PISCO) 
is responsible for many of the ongoing rocky intertidal monitoring 
programs along the Pacific coast. Monitoring occurs at rocky intertidal 
sites, often large bedrock benches, from the high intertidal to the 
water's edge. Long-term monitoring projects include Community Structure 
Monitoring, Intertidal Biodiversity Surveys, Marine Protected Area 
Baseline Monitoring, Intertidal Recruitment Monitoring, and Ocean 
Acidification. Research is conducted throughout the year along the 
California and Oregon coasts and will continue indefinitely. Most sites 
are sampled one to three times per year over a 4-6 hour period during a 
negative low tide series. This IHA, if issued, though, would only be 
effective for a 12-month period from the date of its issuance. The 
following specific aspects of the proposed activities are likely to 
result in the take of marine mammals: presence of survey personnel near 
pinniped haulout sites and approach of survey personnel towards hauled 
out pinnipeds. Take, by Level B harassment only, of individuals of 
three species of marine mammals is anticipated to result from the 
specified activity.

Description of the Specified Activity and Specified Geographic Region

    PISCO focuses on understanding the nearshore ecosystems of the U.S. 
west coast through a number of interdisciplinary collaborations. PISCO 
integrates long-term monitoring of ecological and oceanographic 
processes at dozens of sites with experimental work in the lab and 
field. A short description of each project is contained here. 
Additional information can be found in PISCO's application (see 
ADDRESSES).
    Community Structure Monitoring involves the use of permanent 
photoplot quadrats which target specific algal and invertebrate 
assemblages (e.g. mussels, rockweeds, barnacles). Each photoplot is 
photographed and scored for percent cover. The Community Structure 
Monitoring approach is based largely on surveys that quantify the 
percent cover and distribution of algae and invertebrates that 
constitute these communities. This approach allows researchers to 
quantify both the patterns of abundance of targeted species, as well as 
characterize changes in the communities in which they reside. Such 
information provides managers with insight into the causes and 
consequences of changes in species abundance. Each Community Structure 
site is surveyed over a 1-day period during a low tide series one to 
three times a year. Sites, location, number of times sampled per year, 
and typical sampling months for each site are presented in Table 1 in 
PISCO's application (see ADDRESSES).
    Biodiversity Surveys, which are part of a long-term monitoring 
project and are conducted every 3-5 years at established sites, involve 
point contact identification along permanent transects, mobile 
invertebrate quadrat counts, sea star band counts, and tidal height 
topographic measurements. Table 2 in PISCO's application (see 
ADDRESSES) lists established biodiversity sites in Oregon and 
California.
    In September 2007, the state of California began establishing a 
network of Marine Protected Areas along the California coast as part of 
the Marine Life Protection Act (MLPA). Under baseline monitoring 
programs funded by Sea Grant and the Ocean Protection Council, PISCO 
established additional intertidal monitoring sites in the Central Coast 
(Table 3 in PISCO's application), North Central Coast (Table 4 in 
PISCO's application), and South Coast (Table 5 in PISCO's application) 
study regions. Baseline characterization of newly established areas 
involves sampling of these new sites, as well as established sites both 
within and outside of marine protected areas. These sites were sampled 
using existing Community Structure and Biodiversity protocols for 
consistency. Resampling of newly established sites may take place every 
5 years as part of future marine protected area evaluation.
    Intertidal recruitment monitoring collects data on invertebrate 
larval recruitment. Mussel and other bivalve recruits are collected in 
mesh pot-scrubbers bolted into the substrate. Barnacle recruits and 
cyprids are collected on PVC plates covered in non-slip tape and bolted 
to the substrate. Both are collected once a month and processed in the 
lab. Intertidal recruitment monitoring is currently conducted on a 
monthly basis at two central California sites: Terrace Point and 
Hopkins.
    The Ocean Margin Ecosystems Group for Acidification Studies is a 
National Science Foundation funded project that involves research at 
eight sites along the California Current upwelling system

[[Page 64322]]

from Southern California into Oregon. PISCO is responsible for research 
at two of these sites, Hopkins and Terrace Point, located in the 
Monterey Bay region of mainland California. The intention of this 
collaboration is to monitor oceanic pH on large spatial and temporal 
scales and to determine if any relationship exists between changing 
ocean chemistry and the states of two key intertidal organisms, the 
purple urchin and the California mussel. The project involves field 
experiments involving the two focal species from each site, as well as 
lab studies. Currently both sites are visited two to three times per 
month for sampling and equipment maintenance.

Specified Geographic Location and Activity Timeframe

    PISCO's research is conducted throughout the year along the 
California and Oregon coasts. Figures 1 through 4 in PISCO's 
application depict regularly sampled sites. Red stars in the figures 
indicate sites where pinnipeds are found during monitoring survey 
activities. Most sites are sampled one to three times per year over a 
1-day period (4-6 hours per site) during a negative low tide series. 
Due to the large number of research sites, scheduling constraints, the 
necessity for negative low tides and favorable weather/ocean 
conditions, exact survey dates are variable and difficult to predict. 
Table 1 in PISCO's application (see ADDRESSES) outlines the typical 
sampling season for the various locations. Some sampling is anticipated 
to occur in all months, except for January, August, and September.
    The intertidal zones where PISCO conducts intertidal monitoring are 
also areas where pinnipeds can be found hauled out on the shore at or 
adjacent to some research sites. Accessing portions of the intertidal 
habitat may cause incidental Level B (behavioral) harassment of 
pinnipeds through some unavoidable approaches if pinnipeds are hauled 
out directly in the study plots or while biologists walk from one 
location to another. No motorized equipment is involved in conducting 
these surveys. The species for which Level B harassment is requested 
are: California sea lions (Zalophus californianus californianus); 
harbor seals (Phoca vitulina richardii); and northern elephant seals 
(Mirounga angustirostris).

Description of Marine Mammals in the Area of the Specified Activity

    Several pinniped species can be found along the California and 
Oregon coasts. The three that are most likely to occur at some of the 
research sites are California sea lion, harbor seal, and northern 
elephant seal. On rare occasions, PISCO researchers have seen very 
small numbers (i.e., five or fewer) Steller sea lions at one of the 
sampling sites. These sightings are rare. Therefore, encounters are not 
expected. However, if Steller sea lions are sighted before approaching 
a sampling site, researchers will abandon approach and return at a 
later date. For this reason, this species is not considered further in 
this proposed IHA notice.
    We refer the public to Carretta et al. (2011) for general 
information on these species which are presented below this section. 
The publication is available on the Internet at: http://www.nmfs.noaa.gov/pr/pdfs/sars/po2011.pdf. Additional information on 
the status, distribution, seasonal distribution, and life history can 
also be found in PISCO's application.

Northern Elephant Seal

    Northern elephant seals are not listed as threatened or endangered 
under the Endangered Species Act (ESA), nor are they categorized as 
depleted under the MMPA. The estimated population of the California 
breeding stock is approximately 124,000 animals with a minimum estimate 
of 74,913 (Carretta et. al., 2011).
    Northern elephant seals range in the eastern and central North 
Pacific Ocean, from as far north as Alaska and as far south as Mexico. 
Northern elephant seals spend much of the year, generally about nine 
months, in the ocean. They are usually underwater, diving to depths of 
about 330-800 m (1,000-2,500 ft) for 20- to 30-minute intervals with 
only short breaks at the surface. They are rarely seen out at sea for 
this reason. While on land, they prefer sandy beaches.
    Northern elephant seals breed and give birth in California (U.S.) 
and Baja California (Mexico), primarily on offshore islands (Stewart et 
al., 1994), from December to March (Stewart and Huber, 1993). Males 
feed near the eastern Aleutian Islands and in the Gulf of Alaska, and 
females feed further south, south of 45[deg] N (Stewart and Huber, 
1993; Le Boeuf et al., 1993). Adults return to land between March and 
August to molt, with males returning later than females. Adults return 
to their feeding areas again between their spring/summer molting and 
their winter breeding seasons.
    During PISCO research activities, the maximum number of northern 
elephant seals observed at a single site was at least 10 adults plus an 
unknown number of pups. These were observed offshore of Piedras 
Blancas. A small group of five adult elephant seals and five pups has 
been observed in the vicinity of our site at Piedras Blancas, and one 
elephant seal has been observed at Pigeon Point.

California Sea Lion

    California sea lions are not listed as threatened or endangered 
under the ESA, nor are they categorized as depleted under the MMPA. The 
California sea lion is now a full species, separated from the Galapagos 
sea lion (Z. wollebaeki) and the extinct Japanese sea lion (Z. 
japonicus) (Brunner, 2003; Wolf et al., 2007; Schramm et al., 2009). 
The estimated population of the U.S. stock of California sea lion is 
approximately 296,750 animals, and the current maximum population 
growth rate is 12 percent (Carretta et al., 2011).
    California sea lion breeding areas are on islands located in 
southern California, in western Baja California, Mexico, and the Gulf 
of California. During the breeding season, most California sea lions 
inhabit southern California and Mexico. Rookery sites in southern 
California are limited to the San Miguel Islands and the southerly 
Channel Islands of San Nicolas, Santa Barbara, and San Clemente 
(Carretta et al., 2011). Males establish breeding territories during 
May through July on both land and in the water. Females come ashore in 
mid-May and June where they give birth to a single pup approximately 4-
5 days after arrival and will nurse pups for about a week before going 
on their first feeding trip. Females will alternate feeding trips with 
nursing bouts until the pup is weaned between 4 and 10 months of age 
(NMML, 2010). In central California, a small number of pups are born on 
Ano Nuevo Island, Southeast Farallon Island, and occasionally at a few 
other locations; otherwise, the central California population is 
composed of non-breeders.
    A 2005 haul-out count of California sea lions between the Oregon/
California border and Point Conception as well as the Channel Islands 
found 141,842 individuals (Carretta et al., 2010). The number of sea 
lions found at any one of our study sites is variable, and often no 
California sea lions are observed during sampling.

Pacific Harbor Seal

    Pacific harbor seals are not listed as threatened or endangered 
under the ESA, nor are they categorized as depleted under the MMPA. The 
estimated population of the California stock of Pacific harbor seals is 
approximately 30,196 animals (Carretta et al., 2011). A 1999 census of 
the

[[Page 64323]]

Oregon/Washington harbor seal stock found 16,165 individuals, of which 
5,735 were in Oregon (Carretta et al., 2011).
    The animals inhabit near-shore coastal and estuarine areas from 
Baja California, Mexico, to the Pribilof Islands in Alaska. Pacific 
harbor seals are divided into two subspecies: P. v. stejnegeri in the 
western North Pacific, near Japan, and P. v. richardii in the northeast 
Pacific Ocean. The latter subspecies, recognized as three separate 
stocks, inhabits the west coast of the continental U.S., including: the 
outer coastal waters of Oregon and Washington states; Washington state 
inland waters; and Alaska coastal and inland waters.
    In California, over 500 harbor seal haulout sites are widely 
distributed along the mainland and offshore islands, and include rocky 
shores, beaches and intertidal sandbars (Lowry et al., 2005). Harbor 
seals mate at sea, and females give birth during the spring and summer, 
although the pupping season varies with latitude. Pups are nursed for 
an average of 24 days and are ready to swim minutes after being born. 
Harbor seal pupping takes place at many locations, and rookery size 
varies from a few pups to many hundreds of pups. Pupping generally 
occurs between March and June, and molting occurs between May and July 
(NCCOS, 2007).
    At several sites, harbor seals are often observed and have the 
potential to be disturbed by researchers accessing or sampling the 
site. The largest number of harbor seals occurs at Hopkins where often 
20-30 adults and 10-15 pups are hauled out on a small beach adjacent to 
the sampling site.

Other Marine Mammals in the Proposed Action Area

    California (southern) sea otters (Enhydra lutris nereis), listed as 
threatened under the ESA and categorized as depleted under the MMPA, 
usually range in coastal waters within 2 km (1.2 mi) of shore. This 
species is managed by the U.S. Fish and Wildlife Service and is not 
considered further in this notice.

Potential Effects of the Specified Activity on Marine Mammals

    The appearance of researchers may have the potential to cause Level 
B harassment of any pinnipeds hauled out at sampling sites. Although 
marine mammals are never deliberately approached by abalone survey 
personnel, approach may be unavoidable if pinnipeds are hauled out in 
the immediate vicinity of the permanent study plots. Disturbance may 
result in reactions ranging from an animal simply becoming alert to the 
presence of researchers (e.g., turning the head, assuming a more 
upright posture) to flushing from the haul-out site into the water. 
NMFS does not consider the lesser reactions to constitute behavioral 
harassment, or Level B harassment takes, but rather assumes that 
pinnipeds that move greater than 1 m (3.3 ft) or change the speed or 
direction of their movement in response to the presence of researchers 
are behaviorally harassed, and thus subject to Level B taking. Animals 
that respond to the presence of researchers by becoming alert, but do 
not move or change the nature of locomotion as described, are not 
considered to have been subject to behavioral harassment.
    Numerous studies have shown that human activity can flush harbor 
seals off haulout sites (Allen et al., 1984; Calambokidis et al., 1991; 
Suryan and Harvey, 1999; Mortenson et al., 2000). The Hawaiian monk 
seal (Monachus schauinslandi) has been shown to avoid beaches that have 
been disturbed often by humans (Kenyon, 1972). And in one case, human 
disturbance appeared to cause Steller sea lions to desert a breeding 
area at Northeast Point on St. Paul Island, Alaska (Kenyon, 1962).
    Typically, even those reactions constituting Level B harassment 
would result at most in temporary, short-term disturbance. In any given 
study season, researchers will visit sites one to three times per year 
for a total of 4-6 hours per visit. Therefore, disturbance of pinnipeds 
resulting from the presence of researchers lasts only for short periods 
of time and is separated by significant amounts of time in which no 
disturbance occurs. Because such disturbance is sporadic, rather than 
chronic, and of low intensity, individual marine mammals are unlikely 
to incur any detrimental impacts to vital rates or ability to forage 
and, thus, loss of fitness. Correspondingly, even local populations, 
much less the overall stocks of animals, are extremely unlikely to 
accrue any significantly detrimental impacts.
    There are three ways in which disturbance, as described previously, 
could result in more than Level B harassment of marine mammals. All 
three are most likely to be consequences of stampeding, a potentially 
dangerous occurrence in which large numbers of animals succumb to mass 
panic and rush away from a stimulus, an occurrence that is not expected 
at the proposed sampling sites. The three situations are (1) Falling 
when entering the water at high-relief locations; (2) extended 
separation of mothers and pups; and (3) crushing of elephant seal pups 
by large males during a stampede.
    Because hauled-out animals may move towards the water when 
disturbed, there is the risk of injury if animals stampede towards 
shorelines with precipitous relief (e.g., cliffs). However, while 
cliffs do exist along the coast, shoreline habitats near the abalone 
study sites are of steeply sloping rocks with unimpeded and non-
obstructive access to the water. If disturbed, hauled-out animals in 
these situations may move toward the water without risk of encountering 
barriers or hazards that would otherwise prevent them from leaving the 
area. In these circumstances, the risk of injury, serious injury, or 
death to hauled-out animals is very low. Thus, abalone research 
activity poses no risk that disturbed animals may fall and be injured 
or killed as a result of disturbance at high-relief locations.
    The risk of marine mammal injury, serious injury, or mortality 
associated with rocky intertidal monitoring increases somewhat if 
disturbances occur during breeding season. These situations present 
increased potential for mothers and dependent pups to become separated 
and, if separated pairs do not quickly reunite, the risk of mortality 
to pups (through starvation) may increase. Separately, adult male 
elephant seals may trample elephant seal pups if disturbed, which could 
potentially result in the injury, serious injury, or mortality of the 
pups. The risk of either of these situations is greater in the event of 
a stampede.
    Very few pups are anticipated to be encountered during the proposed 
monitoring surveys. No California sea lion pups are anticipated to be 
encountered, as rookery sites are typically limited to the islands. A 
very small number of harbor seal and northern elephant seal pups have 
been observed at a couple of the proposed monitoring sites over the 
past years. Though elephant seal pups are occasionally present when 
researchers visit survey sites, risk of pup mortalities is very low 
because elephant seals are far less reactive to researcher presence 
than the other two species. Further, pups are typically found on sand 
beaches, while study sites are located in the rocky intertidal zone, 
meaning that there is typically a buffer between researchers and pups. 
Finally, the caution used by researchers in approaching sites generally 
precludes the possibility of behavior, such as stampeding, that could 
result in extended separation of mothers and dependent pups or 
trampling of pups. No research would occur where

[[Page 64324]]

separation of mother and her nursing pup or crushing of pups can become 
a concern.
    In summary, NMFS does not anticipate that the proposed activities 
would result in the injury, serious injury, or mortality of pinnipeds 
because pups are only found at a couple of the proposed sampling 
locations during certain times of the year and that many rookeries 
occur on the offshore islands and not the mainland areas where the 
proposed activities would occur. In addition, researchers will exercise 
appropriate caution approaching sites, especially when pups are present 
and will redirect activities when pups are present.

Anticipated Effects on Marine Mammal Habitat

    The only habitat modification associated with the proposed activity 
is the placement of permanent bolts and other sampling equipment in the 
intertidal. Bolts are installed during the set-up of a site and, at 
existing sites, this has already occurred. In some instances, bolts 
will need to be replaced or installed for new plots. Bolts are 7.6 to 
12.7 cm (2 to 5 in) long, stainless steel 1 cm (\3/8\ in) Hex or 
Carriage bolts. They are installed by drilling a hole with a battery 
powered DeWalt 24 volt rotary hammer drill with a 1 cm (\3/8\ in) bit. 
The bolts protrude 1.3-7.6 cm (0.5-3 in) above the rock surface and are 
held in place with marine epoxy. Although the drill does produce 
noticeable noise, researchers have never observed an instance where 
near-by or offshore marine mammals were disturbed by it. Any marine 
mammal at the site would likely be disturbed by the presence of 
researchers and retreat to a distance where the noise of the drill 
would not increase the disturbance. In most instances, wind and wave 
noise also drown out the noise of the drill. The installation of bolts 
and other sampling equipment is conducted under the appropriate permits 
(Monterey Bay National Marine Sanctuary, California State Parks). Once 
a particular study has ended, the respective sampling equipment is 
removed. No trash or field gear is left at a site. Thus, the proposed 
activity is not expected to have any habitat-related effects, including 
to marine mammal prey species, that could cause significant or long-
term consequences for individual marine mammals or their populations.

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).
    PISCO proposes to implement several mitigation measures to reduce 
potential take by Level B (behavioral disturbance) harassment. Measures 
include: (1) Conducting slow movements and staying close to the ground 
to prevent or minimize stampeding; (2) avoiding loud noises (i.e., 
using hushed voices); (3) avoiding pinnipeds along access ways to sites 
by locating and taking a different access way and vacating the area as 
soon as sampling of the site is completed; (4) monitoring the offshore 
area for predators (such as killer whales and white sharks) and avoid 
flushing of pinnipeds when predators are observed in nearshore waters; 
(5) using binoculars to detect pinnipeds before close approach to avoid 
being seen by animals; (6) only flushing pinnipeds if they are located 
in the sampling plots and there are no other means to accomplish the 
survey (however, flushing must be done slowly and quietly so as not to 
cause a stampede); (7) no intentional flushing if pups are present at 
the sampling site; and (8) rescheduling sampling if Steller sea lions 
are present at the site.
    The methodologies and actions noted in this section will be 
utilized and included as mitigation measures in any issued IHA to 
ensure that impacts to marine mammals are mitigated to the lowest level 
practicable. The primary method of mitigating the risk of disturbance 
to pinnipeds, which will be in use at all times, is the selection of 
judicious routes of approach to study sites, avoiding close contact 
with pinnipeds hauled out on shore, and the use of extreme caution upon 
approach. In no case will marine mammals be deliberately approached by 
survey personnel, and in all cases every possible measure will be taken 
to select a pathway of approach to study sites that minimizes the 
number of marine mammals potentially harassed. In general, researchers 
will stay inshore of pinnipeds whenever possible to allow maximum 
escape to the ocean. Each visit to a given study site will last for 
approximately 4-6 hours, after which the site is vacated and can be re-
occupied by any marine mammals that may have been disturbed by the 
presence of researchers. By arriving before low tide, worker presence 
will tend to encourage pinnipeds to move to other areas for the day 
before they haul out and settle onto rocks at low tide.
    PISCO will suspend sampling and monitoring operations immediately 
if an injured marine mammal is found in the vicinity of the project 
area and the monitoring activities could aggravate its condition.
    NMFS has carefully evaluated PISCO's proposed mitigation measures 
and considered a range of other measures in the context of ensuring 
that NMFS prescribes the means of effecting the least practicable 
impact on the affected marine mammal species and stocks and their 
habitat. Our evaluation of potential measures included consideration of 
the following factors in relation to one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     The practicability of the measure for applicant 
implementation.
    Based on our evaluation of the applicant's proposed measures, 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.
    PISCO can add to the knowledge of pinnipeds in California and 
Oregon by noting observations of: (1) Unusual behaviors, numbers, or 
distributions of pinnipeds, such that any potential follow-up research 
can be conducted by the appropriate personnel; (2) tag-bearing 
carcasses of pinnipeds, allowing transmittal of the information to 
appropriate agencies and personnel; and

[[Page 64325]]

(3) rare or unusual species of marine mammals for agency follow-up.
    Proposed monitoring requirements in relation to PISCO's rocky 
intertidal monitoring will include observations made by the applicant. 
Information recorded will include species counts (with numbers of pups/
juveniles when possible), numbers of observed disturbances, and 
descriptions of the disturbance behaviors during the monitoring 
surveys, including location, date, and time of the event. In addition, 
observations regarding the number and species of any marine mammals 
observed, either in the water or hauled out, at or adjacent to the 
site, will be recorded as part of field observations during research 
activities. Observations of unusual behaviors, numbers, or 
distributions of pinnipeds will be reported to NMFS so that any 
potential follow-up observations can be conducted by the appropriate 
personnel. In addition, observations of tag-bearing pinniped carcasses 
as well as any rare or unusual species of marine mammals will be 
reported to NMFS. Information regarding physical and biological 
conditions pertaining to a site, as well as the date and time that 
research was conducted will also be noted.
    If at any time injury, serious injury, or mortality of the species 
for which take is authorized should occur, or if take of any kind of 
any other marine mammal occurs, and such action may be a result of the 
proposed research, PISCO will suspend research activities and contact 
NMFS immediately to determine how 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.
    A draft final report must be submitted to NMFS Office of Protected 
Resources within 60 days after the conclusion of the 2012-2013 field 
season or 60 days prior to the start of the next field season if a new 
IHA will be requested. The report will include a summary of the 
information gathered pursuant to the monitoring requirements set forth 
in the IHA. A final report must be submitted to the Director of the 
NMFS Office of Protected Resources and to the NMFS Southwest Office 
Regional Administrator 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.

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].
    All anticipated takes would be by Level B harassment, involving 
temporary changes in behavior. The proposed mitigation and monitoring 
measures are expected to minimize the possibility of injurious or 
lethal takes such that take by injury, serious injury, or mortality is 
considered remote. Animals hauled out close to the actual survey sites 
may be disturbed by the presence of biologists and may alter their 
behavior or attempt to move away from the researchers.
    As discussed earlier, NMFS considers an animal to have been 
harassed if it moved greater than 1 m (3.3 ft) in response to the 
researcher's presence or if the animal was already moving and changed 
direction and/or speed, or if the animal flushed into the water. 
Animals that became alert without such movements were not considered 
harassed.
    For the purpose of this proposed IHA, only Oregon and California 
sites that are frequently sampled and have a marine mammal presence 
during sampling were included in take estimates. Sites where only 
Biodiversity Surveys are conducted were not included due to the 
infrequency of sampling and rarity of occurrences of pinnipeds during 
sampling. In addition, Steller sea lions are not included in take 
estimates as they will not be disturbed by researchers or research 
activities since activities will not occur or be suspended if Steller 
sea lions are present. A small number of harbor seal and northern 
elephant seal pup takes are anticipated as pups may be present at 
several sites during spring and summer sampling.
    Takes estimates are based on marine mammal observations from each 
site. Marine mammal observations are done as part of PISCO site 
observations, which include notes on physical and biological conditions 
at the site. The maximum number of marine mammals, by species, seen at 
any given time throughout the sampling day is recorded at the 
conclusion of sampling. A marine mammal is counted if it is seen on 
access ways to the site, at the site, or immediately up-coast or down-
coast of the site. Marine mammals in the water immediately offshore are 
also recorded. Any other relevant information, including the location 
of a marine mammal relevant to the site, any unusual behavior, and the 
presence of pups is also noted.
    These observations formed the basis from which researchers with 
extensive knowledge and experience at each site estimated the actual 
number of marine mammals that may be subject to take. In most cases the 
number of takes is based on the maximum number of marine mammals that 
have been observed at a site throughout the history of the site (2-3 
observation per year for 5-10 years or more). Section 6 in PISCO's 
application outlines the number of visits per year for each sampling 
site and the potential number of pinnipeds anticipated to be 
encountered at each site. Table 7 in PISCO's application outlines the 
number of potential takes per site (see ADDRESSES).
    Based on this information, NMFS proposes to authorize the take, by 
Level B harassment only, of 52 California sea lions, 440 harbor seals, 
and 30 northern elephant seals. These numbers are considered to be 
maximum take estimates; therefore, actual take may be slightly less if 
animals decide to haul out at a different location for the day or 
animals are out foraging at the time of the survey activities.

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 variety of factors, including but not limited to: (1) 
The number of anticipated mortalities; (2) the number and nature of 
anticipated injuries; (3) the number, nature, intensity, and duration 
of Level B harassment; and (4) the context in which the take occurs.
    No injuries or mortalities are anticipated to occur as a result of 
PISCO's rocky intertidal monitoring, and none are proposed to be 
authorized. The behavioral harassments that could occur would be of 
limited duration, as researchers only conduct sampling one to three 
times per year at each site for a total of 4-6 hours per sampling 
event. Therefore, disturbance will be limited to a short duration, 
allowing pinnipeds to reoccupy the sites within a short amount of time.
    Some of the pinniped species may use some of the sites during 
certain times of year to conduct pupping and/or

[[Page 64326]]

breeding. However, some of these species prefer to use the offshore 
islands for these activities. At the sites where pups may be present, 
PISCO has proposed to implement certain mitigation measures, such as no 
intentional flushing if dependent pups are present, which will avoid 
mother/pup separation and trampling of pups.
    Of the three marine mammal species anticipated to occur in the 
proposed activity areas, none are listed under the ESA. Table 1 in this 
document presents the abundance of each species or stock, the proposed 
take estimates, and the percentage of the affected populations or 
stocks that may be taken by harassment. Based on these estimates, PISCO 
would take less than 1.5% of each species or stock. Because these are 
maximum estimates, actual take numbers are likely to be lower, as some 
animals may select other haulout sites the day the researchers are 
present.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed mitigation and 
monitoring measures, NMFS preliminarily finds that the rocky intertidal 
monitoring program will result in the incidental take of small numbers 
of marine mammals, by Level B harassment only, and that the total 
taking from the rocky intertidal monitoring program will have a 
negligible impact on the affected species or stocks.

 Table 1--Population Abundance Estimates, Total Proposed Level B Take, and Percentage of Population That May Be
       Taken for the Potentially Affected Species During the Proposed Rocky Intertidal Monitoring Program
----------------------------------------------------------------------------------------------------------------
                                                                                                   Percentage of
                             Species                                Abundance*    Total proposed     stock or
                                                                                   Level B take     population
----------------------------------------------------------------------------------------------------------------
Harbor Seal.....................................................          30,196             440            1.5
California Sea Lion.............................................         296,750              52            0.02
Northern Elephant Seal..........................................         124,000              30            0.02
----------------------------------------------------------------------------------------------------------------
* Abundance estimates are taken from the 2011 U.S. Pacific Marine Mammal Stock Assessments (Carretta et al.,
  2012).

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. Therefore, NMFS has determined that the total taking of 
affected species or stocks would not have an unmitigable adverse impact 
on the availability of such species or stocks for taking for 
subsistence purposes.

Endangered Species Act (ESA)

    None of the marine mammals for which incidental take is proposed 
are listed as threatened or endangered under the ESA. NMFS' Permits and 
Conservation Division worked with the NMFS Southwest Regional Office to 
ensure that Steller sea lions would be avoided and incidental take 
would not occur. Therefore, NMFS has determined that issuance of the 
proposed IHA to PISCO under section 101(a)(5)(D) of the MMPA will have 
no effect on species listed as threatened or endangered under the ESA.

National Environmental Policy Act (NEPA)

    NMFS is currently preparing an Environmental Assessment (EA), 
pursuant to NEPA, to determine whether the issuance of an IHA to PISCO 
for its 2012-2013 rocky intertidal monitoring activities may have a 
significant impact on the human environment. This analysis and a 
determination on whether to issue a Finding of No Significant Impact 
(FONSI) will be completed prior to the issuance or denial of this 
proposed IHA. This notice identifies the environmental issues and 
provides environmental information relevant to the proposed action, 
NMFS' issuance of the IHA. Members of the public are invited to provide 
comments, and NMFS will consider and evaluate responsive comments as it 
prepares the EA and decides whether to issue a FONSI.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
authorize the take of marine mammals incidental to PISCO's rocky 
intertidal monitoring research activities, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: October 11, 2012.
Helen M. Golde,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2012-25732 Filed 10-18-12; 8:45 am]
BILLING CODE 3510-22-P