[Federal Register Volume 81, Number 107 (Friday, June 3, 2016)]
[Notices]
[Pages 35739-35747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13171]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XE460


Takes of Marine Mammals Incidental to Specified Activities; Sand 
Quality Study Activities at the Children's Pool Beach, La Jolla, 
California

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

ACTION: Notice; issuance of an Incidental Harassment Authorization 
(IHA).

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) as 
amended, notification is hereby given that NMFS has issued an IHA to 
the City of San Diego to take small numbers of marine mammals, by Level 
B harassment, incidental to the conduct of sand quality study 
activities at the Children's Pool Beach in La Jolla, California.

DATES: Effective June 1, 2016 through May 30, 2017.

FOR FURTHER INFORMATION CONTACT: Dale Youngkin, 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 (Secretary) to allow, upon request, 
the incidental, but not intentional, taking of small numbers of marine 
mammals, by United States citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are made and either regulations are issued or, if 
the taking is limited to harassment, a notice of a proposed 
authorization is provided to the public for review.
    Authorization for the 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 United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
Section 101(a)(5)(D) of the MMPA establishes a 45-day time limit for 
NMFS's review of an application followed by a 30-day public notice and 
comment period on any proposed authorizations for the incidental 
harassment of small numbers of marine mammals. Within 45 days of the 
close of the public 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 December 14, 2015, NMFS received an application from the City of 
San Diego, Transportation & Storm Water Department, Storm Water 
Division, requesting an IHA for the taking of marine mammals incidental 
to the conduct of sand quality study activities. NMFS determined that 
the IHA application was adequate and complete on February 25, 2016. 
NMFS published a notice making preliminary determinations and proposing 
to issue an IHA on April 4, 2016 (81 FR 19137). The notice initiated a 
30 day comment period.
    The City of San Diego will undertake the proposed sand quality 
sampling activities between June 1, 2016 and December 14, 2016 at the 
Children's Pool Beach in La Jolla, California. Visual stimuli due to 
the presence of technicians on the beach and their sand sampling 
collection activities during the study have the potential to result in 
the take of marine mammals through behavioral disturbance. The IHA 
authorizes the take, by Level B

[[Page 35740]]

(behavioral) harassment, of small numbers of Pacific harbor seals 
(Phoca vitulina richardii), California sea lions (Zalophus 
californianus), and northern elephant seals (Mirounga angustirostris) 
incidental to sand quality sampling activities of the Children's Pool 
Beach at La Jolla, CA. Additional information on the sand quality 
sampling activities at the Children's Pool Beach is contained in the 
IHA application, which is available at the NMFS Web site: http://www.nmfs.noaa.gov/pr/permits/incidental.

Description of the Specified Activity

    A detailed description of the sand sampling project is provided in 
the Federal Register notice for the proposed IHA (81 FR 19137, April 4, 
2016). Since that time, no changes have been made to the planned 
activities. Therefore, a detailed description is not provided here. 
Please refer to that Federal Register notice for the description of the 
specific activity.

Comments and Responses

    A notice of preliminary determinations and proposed IHA for the 
City of San Diego's sand quality study activities was published in the 
Federal Register on April 4, 2016 (81 FR 19137). During the 30-day 
public comment period, NMFS received comments from the Marine Mammal 
Commission (Commission). The comments are posted online at: http://www.nmfs.noaa.gov/pr/permits/incidental/construction.html. Following 
are the substantive comments and NMFS's responses:
    Comment 1: The Commission concurs with NMFS's preliminary findings 
and recommends that NMFS issue the requested IHA, subject to inclusion 
of the proposed mitigation, monitoring, and reporting measures.
    Response: NMFS concurs with the Commission's recommendation and has 
issued the IHA to the City of San Diego.

Description of Marine Mammals in the Specified Geographic Area of the 
Proposed Specified Activity

    Information on marine mammal species for which take is authorized 
is included below. Further information on the biology and local 
distribution of these marine mammal species and others in the region 
can be found in the NMFS Marine Mammal Stock Assessment Reports, which 
are available online at: http://www.nmfs.noaa.gov/pr/sars/.
    Three species of pinnipeds are known to occur in the Children's 
Pool proposed action area and off the Pacific coastline (see Table 1 
below). Pacific harbor seals are the most common species likely to be 
found within the immediate vicinity of the activity area. California 
sea lions and northern elephant seals may also be found within the 
immediate vicinity of the activity area, but are more rare occurrences 
than harbor seals. Northern fur seals and Guadalupe fur seals are even 
more rarely observed at this location (Northern and Guadalupe fur seals 
have been seen observed at nearby beaches on rare occasions, and a 
northern fur seal was observed hauled out at La Jolla Cove, which is 
less than a mile from Children's Pool, per a personal communication 
with Dr. Hanan [February 4, 2016], a scientist with extensive knowledge 
of the area and the species occurring there). Fur seals are not known 
to haul out in such urban mainland beaches, and their presence would 
likely be attributed to sickness or injury if they were observed in 
this location. Therefore, only three species are considered to be 
potentially exposed to effects of the proposed sand sampling 
activities, as sand sampling activities will not be conducted if fur 
seals were present and coordination with the stranding network would 
commence. A variety of other marine mammal species have on occasion 
been reported in the coastal waters off southern California. However, 
none of these species have been reported to occur in the immediate 
proposed action area of the Children's Pool Beach.
    Therefore, NMFS does not expect, and does not propose to authorize, 
incidental take of marine mammal species other than Pacific harbor 
seals, California sea lions, and northern elephant seals from the 
proposed specified activities. Table 1 below provides information on 
these marine mammal species, their habitat, and conservation status in 
the nearshore area of the general region of the proposed project area.

           Table 1--The Habitat, Abundance, and Conservation Status of Pacific Harbor Seals, California Sea Lions, and Northern Elephant Seals
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                         Best population
              Species                      Habitat             Occurrence               Range          estimate (minimum)      ESA \2\        MMPA \3\
                                                                                                               \1\
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Pacific harbor seal (Phoca          Coastal.............  Common..............  Coastal temperate to  30,968 (27,348)--     NL...........  NC
 vitulina richardii).                                                            polar regions in      California stock.
                                                                                 Northern Hemisphere.
Northern elephant seal (Mirounga    Coastal, pelagic      Common..............  Eastern and Central   179,000 (81,368)--    NL...........  NC
 angustirostris).                    when not migrating.                         North Pacific--       California breeding
                                                                                 Alaska to Mexico.     stock.
California sea lion (Zalophus       Coastal, shelf......  Common..............  Eastern North         296,750 (153,337)--   NL...........  NC
 californianus).                                                                 Pacific Ocean--       U.S. stock.
                                                                                 Alaska to Mexico.
--------------------------------------------------------------------------------------------------------------------------------------------------------
NA = Not available or not assessed.
\1\ NMFS Marine Mammal Stock Assessment Reports.
\2\ U.S. Endangered Species Act: EN = Endangered, T = Threatened, DL = Delisted, and NL = Not listed.
\3\ U.S. Marine Mammal Protection Act: D = Depleted, S = Strategic, and NC = Not classified.

    A detailed description of the of the species likely to be affected 
by the sand sampling project, including introductions to the species 
and relevant stocks as well as available information regarding 
population trends and threats, and information regarding local 
occurrence, were provided in the Federal Register notice for the 
proposed IHA (81 FR 19137; April 4, 2016); since that time, we are not 
aware of any changes in the status of these species and stocks; 
therefore, detailed descriptions are not provided here. Please refer to 
that Federal Register notice for these descriptions. Please also refer 
to NMFS' Web site (www.nmfs.noaa.gov/pr/species/mammals/) for 
generalized species accounts.

[[Page 35741]]

Potential Effects of the Specified Activity on Marine Mammals

    The effects of visual stimuli from the planned project have the 
potential to result in behavioral harassment of marine mammals in the 
project area. The Federal Register notice for the proposed IHA (81 FR 
19137; April 4, 2016) included a discussion of the effects of visual 
stimuli on marine mammals, therefore that information is not repeated 
here; please refer to the Federal Register notice (81 FR 19137; April 
4, 2016) for that information. No instances of hearing injury, serious 
injury, or mortality are expected as a result of the sand sampling 
activities.

Anticipated Effects on Marine Mammal Habitat

    The primary anticipated adverse impact from the planned project 
upon habitat consists of the removal of sand from the beach. This 
change is minor, temporary, and limited in duration to the period of 
the sand sampling activities. Although sand will be collected from the 
beach, the total volume removed over the course of the study is 
estimated to be less than one cubic foot. Therefore, we do not 
anticipate impacts to marine mammal habitat. The Federal Register 
notice for the proposed IHA (81 FR 19137; April 4, 2016) included a 
discussion of the effects of the sand sampling activities on marine 
mammal habitat, therefore that information is not repeated here; please 
refer to the Federal Register notice (81 FR 19137; April 4, 2016) for 
that information.

Mitigation Measures

    In order to issue an Incidental Take Authorization (ITA) under 
section 101(a)(5)(D) of the MMPA, NMFS must prescribe, where 
applicable, the permissible methods of taking pursuant to such 
activity, and other means of effecting the least practicable impact on 
such species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stock for taking for certain 
subsistence uses (where relevant).
    The planned activities include a variety of measures to minimize 
potential impacts on marine mammals, including:

Prohibition of Sand Sampling During Pupping Season

    Sand sampling activities shall be prohibited during the Pacific 
harbor seal pupping season (December 15th to May 15th), and for an 
additional two weeks thereafter to accommodate lactation and weaning of 
late season pups. Thus, sand quality study activities shall be 
prohibited until June 1, 2016 and will be required to end before 
December 15, 2016.

Limiting Activity to Daylight Hours

    Sand sampling activities shall be conducted during daylight hours 
only. As Protected Species Observers (PSOs) will be required to monitor 
the sand sampling activities (see discussion below), conducting the 
sampling events during daylight hours with adequate visibility will 
allow observers to adequately observe and record activities.

Daily Sand Sampling Timing

    Sand sampling activities shall be scheduled, to the maximum extent 
practicable, during the daily period of lowest haul-out occurrence, 
from approximately 8:30 a.m. to 3:30 p.m., as harbor seals typically 
have the highest daily or hourly haul-out period during the afternoon 
from 3 p.m. to 6 p.m. However, sand sampling activities may be extended 
from 7 a.m. to 7 p.m. to help assure that the project can be completed 
at a time with low numbers of seals hauled out.

Avoidance/Minimization of Interaction With Pinnipeds

    As stated in the FR notice for the proposed IHA (81 FR 19137; April 
4, 2016), per Dr. Doyle Hanan, ongoing observations of harbor seals at 
Children's Pool have indicated a habituation to the presence of people 
to some degree and therefore, generally show signs of disturbance when 
people are very close to them on the beach (generally less than two to 
three meters). Sand sampling activities will be conducted such that 
humans remain at least three meters from hauled out pinnipeds at all 
times. While the study calls for taking samples along transects, there 
is enough flexibility to allow for variation from the transect line to 
collect samples and still allow for minimizing approach to pinnipeds on 
the beach. Therefore, hauled out pinnipeds will be minimized or 
avoided, and efforts will be made to avoid disturbing/alerting/flushing 
them.

Protected Species Observers

    Trained PSOs will be used to detect, document, and minimize impacts 
to marine mammals. More information about this measure is contained in 
the ``Proposed Monitoring'' section (below).

Mitigation Conclusions

    NMFS has carefully evaluated the applicant's 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. NMFS's 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, 
practicality of implementation, and impact on the effectiveness of the 
activity.
    Any mitigation measure(s) prescribed by NMFS should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    (1) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    (2) A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to visual or 
auditory stimuli associated with the proposed sand quality study, or 
other activities expected to result in the take of marine mammals (this 
goal may contribute to 1, above, or to reducing harassment takes only).
    (3) A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to visual or auditory stimuli associated with the proposed sand quality 
study, or other activities expected to result in the take of marine 
mammals (this goal may contribute to 1, above, or to reducing 
harassment takes only).
    (4) A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to visual or 
auditory stimuli associated with the proposed sand quality study, or 
other activities expected to result in the take of marine mammals (this 
goal may contribute to a, above, or to reducing the severity of 
harassment takes only).
    (5) Avoidance of minimization of adverse effects to marine mammal 
habitat, paying special attention to the food base, activities that 
block or limit passage to or from biologically

[[Page 35742]]

important areas, permanent destruction of habitat, or temporary 
destruction/disturbance of habitat during a biologically important 
time.
    (6) For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on NMFS's evaluation of the applicant's planned measures, as 
well as other measures considered by NMFS, NMFS has determined that the 
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.

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) 
require that requests for ITAs 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 action area.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    (1) An increase in the probability of detecting marine mammals, 
both within the mitigation zone (thus allowing for more effective 
implementation of the mitigation) and in general to generate more data 
to contribute to the analyses mentioned below;
    (2) An increase in our understanding of how many marine mammals are 
likely to be exposed to visual or auditory stimuli associated with the 
proposed sand quality study that we associate with specific adverse 
effects, such as behavioral harassment;
    (3) An increase in our understanding of how marine mammals respond 
to stimuli expected to result in take and how anticipated adverse 
effects on individuals (in different ways and to varying degrees) may 
impact the population, species, or stock (specifically through effects 
on annual rates of recruitment or survival) through any of the 
following methods:
     Behavioral observations in the presence of stimuli 
compared to observations in the absence of stimuli (need to be able to 
accurately predict distance from source, and other pertinent 
information);
     Physiological measurements in the presence of stimuli 
compared to observations in the absence of stimuli (need to be able to 
accurately predict distance from the source, and other pertinent 
information);
     Distribution and/or abundance comparisons in times or 
areas with concentrated stimuli versus times or areas without stimuli;
    (4) An increased knowledge of the affected species;
    (5) An increase in our understanding of the effectiveness of 
certain mitigation and monitoring measures; and
    (6) An increase in our level of knowledge regarding the overall 
health of the monitored species, particularly in light of recent local 
UMEs and observations of malnutrition increases in the area.

Monitoring

    The City of San Diego has developed a monitoring plan based on 
discussions between the City of San Diego and NMFS, as well as review 
of past IHAs granted to the City of San Diego. The plan was included as 
an Appendix to our Environmental Assessment (EA) for issuance of the 
IHA for the sand quality study activities (see National Environmental 
Policy Act section below). No changes to the monitoring plan were made 
based on comments received during the public review period. The 
monitoring plan has also been included as an attachment to the IHA 
issued to the City of San Diego. The City of San Diego will ensure that 
the requirements of the IHA and monitoring plan are explained to all 
workers associated with sand quality study activities at Children's 
Pool Beach, and a copy of the IHA will be posted at a prominent 
location at the site of the activities.
    The monitoring plan involves PSOs surveying and conducting hourly 
visual counts beginning prior to sand sampling activities (beginning at 
least 30 minutes prior to sampling activities), monitoring during 
sampling activities, and post-sand sampling monitoring (continuing for 
at least 30 minutes after sand sampling activities have ended). During 
each sample collection event, the PSO will conduct continuous 
monitoring from a vantage point along the seawall (weather permitting) 
or along the bluff above the beach, such that the full study area is in 
view. During the planned sand sampling activities, monitoring shall 
assess behavior and potential behavioral responses to noise and visual 
stimuli due to the proposed activities. As noted above, if northern fur 
seals or Guadalupe fur seals are observed prior to commencement of 
activities, the activities will not occur and coordination with the 
stranding network will be initiated.
    Counts will be performed by species for three zones: pinnipeds 
hauled out on the sandy beach area, pinnipeds observed in the water 
within approximately 30 meters of the beach, and pinnipeds hauled out 
on the reef/rocks just off the beach (including Seal Rock). Total 
counts, counts of juveniles (yearlings and pups), and counts of males/
females (when possible) will be recorded. In addition to counts, 
continuous behavioral monitoring will be conducted for the duration of 
the sampling event to document any behavioral responses to visual (or 
other) stimuli, as noted in Table 2 below. When responses are observed, 
the type of take (i.e., alert and flush, movement of more than one 
meter, or change in direction of movement) and the assumed cause 
(whether related to sample collection activities or not) will be noted 
by species. Photographs and/or video will be taken to document these 
responses.

                  Table 2--Seal Response to Disturbance
------------------------------------------------------------------------
  Level     Type of response                  Definition
------------------------------------------------------------------------
1          Alert............  Seal head orientation or brief movement in
                               response to disturbance, which may
                               include turning head towards the
                               disturbance, craning head and neck while
                               holding the body rigid in a u-shaped
                               position, changing from a lying to a
                               sitting position, or brief movement of
                               less than twice the animal's body length.
                               Alerts will be recorded, but not counted
                               as a `take'.
2          Movement.........  Movements away from the source of
                               disturbance, ranging from short
                               withdrawals at least twice the animal's
                               body length to longer retreats over the
                               beach including changing direction of
                               travel, or movement along the beach from
                               a resting position. These movements will
                               be recorded and counted as a `take'.

[[Page 35743]]

 
3          Flush............  All retreats (flushes) to the water.
                               Flushing into the water will be recorded
                               and counted as a `take'.
------------------------------------------------------------------------

    Additional parameters will be recorded during the first and last 
count of each sampling event including Beaufort sea state; atmospheric 
conditions; cloud cover; visibility conditions; air and water 
temperature; tide height; and number of public visitors present by 
location at Children's Pool.
    Field observations will be documented on Field Monitoring Forms, 
and all observations and associated data, including daily monitoring 
reports, will be maintained on City of San Diego computers. A report 
summarizing mitigation and monitoring for the duration of the 
Children's Pool Beach sand quality study will be prepared and submitted 
by the City of San Diego to NMFS following completion of sand sampling 
activities for the 2016 sampling season.
    The following marine mammal monitoring and reporting shall be 
performed for the proposed action:
    (1) The PSO shall be selected prior to sand sampling activities.
    (2) The NMFS-approved PSO shall attend the project site prior to, 
during, and after sand sampling activities cease each day that the sand 
sampling activities occur.
    (3) The PSO shall search for marine mammals within the Children's 
Pool area.
    (4) The PSO shall be present during sand sampling activities to 
observe for the presence of marine mammals in the vicinity of the 
specified activity. All such activity will occur during daylight hours 
(i.e., 30 minutes after sunrise and 30 minutes before sunset). If 
inclement weather limits visibility within the area of effect, the PSO 
will perform visual scans to the extent conditions allow.
    (5) If marine mammals are sighted by the PSO, the PSO shall record 
the number of marine mammals and the duration of their presence while 
the sand sampling activity is occurring. The PSO will also note whether 
the marine mammals appeared to respond to the noise/visual stimuli and, 
if so, the nature of that response. The PSO shall record the following 
information: date and time of initial sighting, tidal stage, weather 
conditions, Beaufort sea state, species, behavior (activity, group 
cohesiveness, direction and speed of travel, etc.), number, group 
composition, distance between sampling personnel and pinniped(s), 
number of animals impacted, sampling activities occurring at time of 
sighting (walking, taking surface sample, or pounding core sampler), 
and monitoring and mitigation measures implemented (or not 
implemented). The observations will be reported to NMFS.
    (6) To avoid takes of northern fur seals and Guadalupe fur seals, 
if fur seals are observed to be hauled out on the beach, or in the 
water/rocks at the Children's Pool Beach prior to the initiation of 
sand collection activities, sand sampling activities will not commence. 
PSOs will alert the stranding network, as the occurrence of these 
species would typically indicate a sick/injured animal. Recommendations 
of the stranding coordinator will be followed, which may include a 24-
hour or 48-hour waiting and observation period, and sand sampling will 
not commence until the animal(s) either vacate the area on its own, or 
is collected by the stranding network
    (7) A final report will be submitted summarizing all effects from 
sand sampling activities and marine mammal monitoring during the time 
of the authorization.
    A written log of dates and times of monitoring activity will be 
kept. The log shall report the following information:
     Time of observer arrival on site;
     Time of the commencement of sand sampling activities;
     Distances to all marine mammals relative to the stimuli;
     For harbor seal, northern elephant seal, and California 
sea lion observations, notes on behavior during sand sampling activity, 
as described above, and on the number and distribution observed in the 
project vicinity;
     For observations of all marine mammals other than harbor 
seals, northern elephant seals, and California sea lions, the time and 
duration of each animal's presence in the project vicinity; the number 
of animals observed; the behavior of each animal, including any 
response to sand sampling activities;
     Time of the cessation of sand sampling activities; and
     Time of observer departure from site.
    All monitoring data collected during sand sampling events will be 
included in the biological monitoring notes to be submitted. A final 
report summarizing the sand sampling monitoring and any general trends 
observed will also be submitted to NMFS within 90 days after monitoring 
has ended during the period of the sand quality study or 45 days prior 
to the date by which any subsequent IHA is requested by the City of San 
Diego, whichever comes first.

Reporting

    A draft final report must be submitted to NMFS within 90 days after 
the conclusion of the final sand sampling activities of the Children's 
Pool Beach. The report will include a summary of the information 
gathered pursuant to the monitoring requirements set forth in the IHA, 
including dates and times of operations and all marine mammal sightings 
(dates, times, locations, species, behavioral observations [activity, 
group cohesiveness, direction and speed of travel, etc.], tidal stage, 
weather conditions, Beaufort sea state and wind force, associated sand 
sampling activities). A final report must be submitted within 30 days 
after receiving comments from NMFS on the draft final report. If no 
comments are received from NMFS, the draft final report would be 
considered to be the final report.
    While the IHA does not authorize injury (i.e., Level A harassment), 
serious injury, or mortality, should the applicant, contractor, monitor 
or any other individual associated with the sand quality study observe 
an injured or dead marine mammal, the incident (regardless of cause) 
will immediately be reported to NMFS stranding coordinator. The report 
should include species or description of animal, condition of animal, 
location, time first found, observed behaviors (if alive) and photo or 
video, if available.
    In the unanticipated event that the City of San Diego discovers a 
live stranded marine mammal (sick and/or injured, or if any fur seals 
are observed) at Children's Pool, they shall immediately contact Sea 
World's stranded animal hotline at 1-800-541-7235. Sea World shall also 
be notified if a dead stranded pinniped is found so that a necropsy can 
be performed. In all cases, NMFS stranding coordinator shall be 
notified as well, but for immediate

[[Page 35744]]

response purposes, Sea World shall be contacted first.
    Reporting Prohibited Take--In the unanticipated event that the 
specified activity clearly causes the take of a marine mammal in a 
manner prohibited by this IHA, such as an injury (Level A harassment), 
serious injury, or mortality, the City of San Diego shall immediately 
cease the specified activities and immediately report the incident to 
the Chief of the Permits and Conservation Division, Office of Protected 
Resources, NMFS, and the West Coast Regional Stranding Coordinator. The 
report must include the following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     The type of activity involved;
     Description of the circumstances during and leading up to 
the incident;
     Water depth; environmental conditions (e.g., wind speed 
and direction, Beaufort sea state, cloud cover, and visibility);
     Description of marine mammal observations in the 24 hours 
preceding the incident; species identification or description of the 
animal(s) involved;
     The fate of the animal(s); and photographs or video 
footage of the animal (if equipment is available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS shall work with the City of 
San Diego to determine the action necessary to minimize the likelihood 
of further prohibited take and ensure MMPA compliance. The City of San 
Diego may not resume its activities until notified by NMFS via letter, 
email, or telephone.
    Reporting an Injured or Dead Marine Mammal with an Unknown Cause of 
Death--In the event that the City of San Diego discovers an injured or 
dead marine mammal, and the lead PSO 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 City of San Diego will immediately report the incident 
to the Chief of the Permits and Conservation Division, Office of 
Protected Resources, NMFS, and the West Coast Regional Stranding 
Coordinator. The report must include the same information identified 
above. Activities may continue while NMFS reviews the circumstances of 
the incident. NMFS will work with the City of San Diego to determine 
whether modification of the activities is appropriate.
    Reporting an Injured or Dead Marine Mammal Not Related to the 
Activities--In the event that the City of San Diego discovers an 
injured or dead marine mammal, and the lead PSO determines that the 
injury or death is not associated with or related to the activities 
authorized (e.g., previously wounded animal, carcass with moderate to 
advanced decomposition, or scavenger damage), the City of San Diego 
shall report the incident to the Chief of the Permits and Conservation 
Division, Office of Protected Resources, NMFS, and the West Coast 
Regional Stranding Coordinator within 24 hours of the discovery. The 
City of San Diego shall provide photographs or video footage (if 
available) or other documentation of the stranded animal sighting to 
NMFS and the Marine Mammal Stranding Network. Activities may continue 
while NMFS reviews the circumstances of the incident.

Monitoring Results From Previously Authorized Activities

2013 to 2014
    Hanan & Associates, Inc., on behalf of the City of San Diego, 
conducted marine mammal and in-air sound monitoring at six locations 
during demolition and construction activities at the Children's Pool 
Lifeguard Station in La Jolla, California from June 3, 2013 to February 
12, 2014. Demolition and construction activities began on July 10, 2013 
and were halted for the Pacific harbor seal pupping season (December 
15, 2013 to May 30, 2014). During 115 days of visual and acoustic 
observations, Hanan & Associates counted a total of 61,631 Pacific 
harbor seals and 26,037 people. During the 2013 demolition and 
construction activities, Hanan & Associates observed a total of 5,793 
takes by Level B harassment (i.e., movements, and flushes) that could 
be attributed to demolition and construction activities (1,371 takes), 
the general public (3,536 takes), and other sources (886 takes). As of 
April 15, 2014, at least 60 harbor seal pups (including 2 still births) 
have been born at the Children's Pool and there has been no indication 
of abandonment. In addition to the Pacific harbor seal sightings, PSOs 
recorded three sightings of California sea lions (1 juvenile, 3 adult), 
and 2 northern elephant seals (both juveniles) at the Children's Pool.
2014 to 2015
    Hanan & Associates, Inc., on behalf of the City of San Diego, 
conducted marine mammal monitoring at seven locations during demolition 
and construction activities at the Children's Pool Lifeguard Station in 
La Jolla, California from August 6, 2014 to March 15, 2015. 
Construction activities began on August 6, 2014 and were halted for the 
Pacific harbor seal pupping season (December 15, 2014 to May 30, 2015). 
During 127 days of visual and acoustic observations, Hanan & Associates 
counted a total of 63,598 Pacific harbor seals and 27,844 people. 
During the 2014 demolition and construction activities, Hanan & 
Associates observed a total of 6,787 takes by Level B harassment (i.e., 
movements, and flushes) that could be attributed to demolition and 
construction activities (1,790 takes), the general public (3,914 
takes), and other sources (1,083 takes). As of March 13, 2015, at least 
60 harbor seal pups (including 6 still or premature births) have been 
born at the Children's Pool and there has been no indication of 
abandonment. In addition to the Pacific harbor seal sightings, 366 
sightings of California sea lions (93 at Children's Pool beach; others 
were at Seal Rock, South Casa Beach, and on the reef), and 1 northern 
elephant seal (juvenile). One dead adult and one dead juvenile 
California sea lion were sighted on the Children's Pool beach after the 
start of the beach closure and after the construction activities 
stopped for the pupping season. These strandings were reported to NMFS.
    More information on the monitoring results from the City of San 
Diego's previous demolition and construction activities at the La Jolla 
Children's Pool Lifeguard Station can be found in the final monitoring 
reports. The 2013 to 2014 and 2014 to 2015 monitoring reports can be 
found online at: http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm#childrenspool.

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].
    The City of San Diego and NMFS anticipate takes of Pacific harbor 
seals, California sea lions, and northern elephant seals by Level B 
(behavioral) harassment only incidental to visual disturbance 
associated with the sand quality study sand sampling activities at the 
Children's Pool Beach. No takes by injury (Level A harassment), serious

[[Page 35745]]

injury, or mortality are expected. NMFS will consider pinnipeds 
behaviorally reacting to the sand sampling activities by flushing into 
the water, moving more than twice the animal's body length but not into 
the water; becoming alert and moving more than twice its body length; 
and changing direction of current movements by individuals as 
behavioral criteria for take by Level B harassment.
    With planned sand sampling activities scheduled to begin in June 
2016, the City of San Diego expects a range of harbor seals to be 
present daily during June with a maximum of up to 190 individuals and a 
seasonal decline through November to about 0 to 50 harbor seals present 
daily. As not all of the sampling activities have been planned, and 
there is uncertainty regarding the timing and number of all activities, 
we have assumed the maximum number of authorized sampling activities 
(16) occurring during the maximum haul out month (June) in order to 
estimate take numbers. If all of the estimated harbor seals present are 
taken by incidental harassment each day, there could be a maximum of 
3,040 incidences of take over the entire duration of the activities. An 
unknown portion of the incidental takes will be from repeated exposures 
as harbor seals leave and return to the Children's Pool area.
    Very few California sea lions or northern elephant seals are ever 
observed at the Children's Pool Beach. As noted above, Children's Pool 
is almost exclusively a harbor seal haul-out site and on rare 
occasions, one or two California sea lions or a single juvenile 
elephant seal have been observed on the sand or rocks at, or near, 
Children's Pool. However, as noted above, an UME has been in place 
since 2013 for California sea lions. According to the NMFS West Coast 
Region, California sea lion strandings in January-May of 2015 were over 
10 times the average stranding level for the same five-month period 
during 2004-2012. The City of San Diego has requested take for these 
species due to their potential occurrence at this location and past 
monitoring experience at this location. As the previous IHA authorized 
take of two individual sea lions incidental to construction activities 
at Children's Pool, and numbers of sea lion sightings have been over 10 
times the average, we estimate that up to 20 individuals may be 
incidentally taken by Level B harassment equating to 320 exposures 
(conservatively assuming 20 x 16 sampling events). As only one or two 
northern elephant seals are known to occur rarely at Children's Pool 
Beach, it was conservatively estimated that 16 individuals would be 
exposed to Level B harassment for a total of 16 takes (assuming one 
present for each of the 16 sampling events). Therefore, NMFS authorizes 
the following numbers of incidental takes (i.e., Level B harassment): 
3,040 Pacific harbor seals (600 individuals), 320 California sea lions 
(20 individuals), and 16 northern elephant seals (16 individuals). More 
information on the number of takes authorized, and the approximate 
percentage of the stock for the three species in the proposed action 
area can be found in Table 3 (below).

    Table 3--Summary of the Authorized Incidental Take by Level B Harassment of Pinnipeds for the City of San
  Diego's Proposed Sand Quality Study Activities Generating Visual and Auditory Stimuli at the Children's Pool
                                              Beach in La Jolla, CA
----------------------------------------------------------------------------------------------------------------
                                                                                 Approximate
                                    Take        Estimated                       percentage of
                                authorization   number of                      estimated stock
           Species               (Number of    individuals      Abundance          (Takes       Population trend
                                 exposures)       taken                          authorized/
                                                                                 population)
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal..........           3,040          600  30,968--Californ                10  Increased in
                                                             ia stock.                           California 1981
                                                                                                 to 2004.
California sea lion..........             320           20  296,750--U.S.                  0.1  Increasing.
                                                             stock.
Northern elephant seal.......              16           16  179,000--Califor             <0.01  Increasing 3.8%
                                                             nia breeding                        annually since
                                                             stock.                              1988.
----------------------------------------------------------------------------------------------------------------

Analysis and Determinations

Negligible Impact

    Negligible impact is ``an impact resulting from the specified 
activity that cannot be reasonably expected to, and is not reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival'' (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of Level B harassment takes, 
alone, is not enough information on which to base an impact 
determination. In addition to considering estimates of the number of 
marine mammals that might be ``taken'' through behavioral harassment, 
NMFS must consider other factors, such as the likely nature of any 
responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, migration, etc.), as 
well as the number and nature of estimated Level A harassment takes, 
the number of estimated mortalities, and effects on habitat.
    In making a negligible impact determination, NMFS evaluated factors 
such as:
    (1) The number of anticipated injuries, serious injuries, or 
mortalities;
    (2) The number, nature, and intensity, and duration of Level B 
harassment; and
    (3) The context in which the takes occur (i.e., impacts to areas of 
significance, impacts to local populations, and cumulative impacts when 
taking into account successive/contemporaneous actions when added to 
baseline data);
    (4) The status of the stock or species of marine mammals (i.e., 
depleted, not depleted, decreasing, increasing, stable, impact relative 
to the size of the population);
    (5) Impacts on habitat affecting rates of recruitment/survival; and
    (6) The effectiveness of monitoring and mitigation measures.
    Behavioral disturbance may potentially occur incidental to the 
visual presence of humans and sand sampling activities; however, 
pinnipeds at this site have likely adapted or become acclimated to 
human presence to some degree at this site. The City of San Diego has 
designated Children's Pool Beach as a shared use beach. Many activities 
currently take place at Children's Pool Beach and the surrounding 
shoreline areas including swimming, SCUBA diving, surfing,

[[Page 35746]]

kayaking, tide pooling, and nature watching. These ``urbanized'' harbor 
seals do not exhibit sensitivity at a level similar to that noted in 
harbor seals in some other regions affected by human disturbance (Allen 
et al., 1984; Suryan and Harvey, 1999; Henry and Hammil, 2001; Johnson 
and Acevedo-Gutierrez, 2007; Jansen et al., 2006; Hanan & Associates, 
2011). For example, during monitoring for construction for the 
Children's Pool Lifeguard Station, equipment noise and visual cues at 
times have caused seals to alert/flush, while at other times the same 
stimuli have produced no reaction (City of San Diego, 2015). Per the 
City of San Diego (2015), ``[a]t the individual level, a newly arrived 
seal (which swam in from another area) may not have habituated to 
humans and noise as have seals that have been onsite for a while. These 
recent arrivals may alert to visual stimuli, perhaps flushing to the 
water. But after a few days using this beach during the non-pupping 
season (when humans are also present on the beach), we would expect 
them to habituate and generally not react to humans unless very close 
to them (Hanan 2004, Hanan & Associates 2011, Hanan and Hanan 2014).'' 
Therefore, there is a high likelihood that many of the harbor seals 
present during the planned sand sampling activities would not be 
flushed off of the beach or rocks, as pinnipeds at this site are 
conditioned to human presence to some degree (Hanan, 2004; Hanan & 
Associates, 2011) (see http://www.youtube.com/watch?v=4IRUYVTULsg), and 
it is anticipated that takes would likely be of lesser intensity than 
would be expected at other locations.
    No injuries (Level A harassment), serious injuries, or mortalities 
are anticipated to occur as a result of the City of San Diego's sand 
sampling activities, and none are proposed for authorization by NMFS. 
The planned activities are not expected to result in the alteration of 
reproductive behaviors or parenting because of the moratorium on access 
to the beach during the pupping season, and the potentially affected 
species would be subjected to only temporary and minor behavioral 
impacts.
    As discussed in detail above, the project scheduling avoids 
sensitive life stages for Pacific harbor seals. Project activities will 
commence June 1 and end by December 15. The commencement date occurs 
after the end of the pupping season, affords additional time to 
accommodate lactation and weaning of late-season pups, and takes into 
account periods of lowest haul-out occurrence. The end date falls 
approximately two weeks prior to January 1, the time after which most 
births occur, providing protection for pregnant and nursing harbor 
seals that may give birth before January 1.
    Table 3 of this document outlines the number of Level B harassment 
takes that are anticipated as a result of these proposed activities. 
Due to the nature, degree, and context of Level B (behavioral) 
harassment anticipated and described (see ``Potential Effects on Marine 
Mammals'' section above) in this notice, this activity is not expected 
to impact rates of annual recruitment or survival for the affected 
species or stock (i.e., California stock of Pacific harbor seals, U.S. 
stock of California sea lions, and California breeding stock of 
northern elephant seals), particularly given the mitigation, 
monitoring, and reporting measures that will be implemented to minimize 
impacts to marine mammals.
    The Children's Pool is one of the three known haul-out sites for 
Pacific harbor seal in San Diego County and the only rookery in San 
Diego County and the only mainland rookery on the U.S. west coast for 
this species between the border of Mexico and Point Mugu in Ventura 
County, CA. For the other marine mammal species that may occur within 
the action area (i.e., California sea lions and northern elephant 
seals), there are no known designated or important feeding and/or 
reproductive areas at the project site. Many animals perform vital 
functions, such as feeding, resting, traveling, and socializing, on a 
diel cycle (i.e., 24 hour cycle). Behavioral reactions (such as 
disruption of critical life functions, displacement, or avoidance of 
important habitat) are more likely to be significant if they last more 
than one diel cycle or recur on subsequent days (Southall et al., 
2007). However, Pacific harbor seals have been hauling-out at 
Children's Pool during the year for many years (including during 
pupping season and while females are pregnant) while being exposed to 
anthropogenic sound sources such as vehicle traffic, human voices, etc. 
and other stimuli from human presence. The Pacific harbor seals have 
repeatedly hauled-out to pup over many years and the NMFS Stock 
Assessment Reports for this stock have shown that the population is 
increasing and is considered stable (NMFS, 2014). Additionally, the 
proposed sand sampling activities would generally not take place on 
subsequent days for long durations, as a maximum of up to 16 sampling 
events (lasting approximately 4 hours each) are planned for the sand 
quality study, which would take place over the six-months of the study.
    None of the potentially affected marine mammal species under NMFS 
jurisdiction in the action area (Pacific harbor seals, California sea 
lions, and northern elephant seals) are listed as threatened or 
endangered under the ESA. To protect these animals (and other marine 
mammals in the action area), the City of San Diego shall schedule sand 
sampling activities during the daily period of lowest haul-out 
occurrence; limit activities to the hours of daylight; ensuring that 
technicians performing sand sampling remain at least three meters from 
any hauled out pinnipeds; use PSOs, prohibit sand sampling activities 
in the unlikely event that fur seals are present, and prohibit sand 
sampling activities during harbor seal pupping season.
    Although behavioral modifications, including temporarily vacating 
the area during the proposed sand sampling activities, may be made by 
these species, the sand quality sampling activities will be fairly 
sporadic and will be of relatively short duration. NMFS believes that 
the time period of the sand sampling activities, the requirement to 
implement mitigation measures (e.g., prohibiting sand sampling 
activities during pupping season, scheduling operations to periods of 
the lowest haul-out occurrence, and ensuring a buffer of at least three 
meters between sampling technicians and hauled out pinnipeds), and the 
inclusion of the monitoring and reporting measures, will reduce the 
amount and severity of the potential impacts from the activity.
    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 monitoring and mitigation measures, 
NMFS finds that the total marine mammal take from the City of San 
Diego's activities would have a negligible impact on the affected 
marine mammal species or stocks.

Small Numbers

    As mentioned previously, NMFS estimates that three species of 
marine mammals under its jurisdiction could be potentially affected by 
Level B harassment over the course of the IHA. It is conservatively 
estimated that the instances of take by Level B harassment (amounting 
to 3,040 for Pacific harbor seals, 320 for California sea lions, and 16 
for northern elephant seals) would be approximately 10%, 0.1%, and less 
than 0.01% of the respective California, U.S., and California breeding 
stocks. The population estimates for the marine mammal species that may 
be taken by

[[Page 35747]]

Level B harassment were provided in Table 3 of this document.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, NMFS determined that small numbers of marine mammals will be 
taken relative to the populations of the affected species or stocks. 
See Table 3 for the authorized take numbers of marine mammals.

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

    Section 101(a)(5)(D) of the MMPA requires NMFS to determine that 
the authorization will not have an unmitigable adverse effect on the 
availability of marine mammal species or stocks for subsistence use. 
There are not 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 subsistence purposes.

Endangered Species Act

    NMFS (Permits and Conservation Division) has determined that an ESA 
section 7 consultation for the issuance of an IHA under section 
101(a)(5)(D) of the MMPA for this activity is not necessary for the 
Guadalupe fur seal. This species is rare at Children's Pool Beach. Due 
to the fact that sightings have occurred in the area, and due to the 
declaration of a UME for this species in the area, ESA consultation was 
considered. However, it was determined that the sand sampling 
activities would have no potential to affect the Guadalupe fur seal 
because these activities would not occur if this species were present 
at Children's Pool Beach. No other ESA-listed species are expected to 
occur in the proposed project area.

National Environmental Policy Act

    To meet NMFS's National Environmental Policy Act (NEPA; 42 U.S.C. 
4321 et seq.) requirements for the issuance of an IHA to the City of 
San Diego, NMFS prepared an Environmental Assessment (EA) titled Draft 
Environmental Assessment of the Issuance of an Incidental Harassment 
Authorization to the City of San Diego to Take Marine Mammals by 
Harassment Incidental to Sand Quality Study Activities at the 
Children's Pool Beach in La Jolla, California to comply with the 
Council of Environmental Quality (CEQ) regulations and NOAA 
Administrative Order (NAO) 216-6. NMFS prepared and signed a Finding of 
No Significant Impact (FONSI) determining that preparation of an 
Environmental Impact Statement (EIS) was not required. The FONSI was 
signed on May 26, 2016 prior to the issuance of the IHA for the City of 
San Diego's sand quality study activities from June 2016 to June 2017. 
A copy of the EA and FONSI is available upon request (see ADDRESSES).

Authorization

    NMFS has issued an IHA to the City of San Diego for conducting sand 
quality study activities at the Children's Pool Beach in La Jolla, CA, 
provided the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated.

    Dated: May 27, 2016.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2016-13171 Filed 6-2-16; 8:45 am]
 BILLING CODE 3510-22-P