[Federal Register Volume 83, Number 85 (Wednesday, May 2, 2018)]
[Notices]
[Pages 19254-19260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09240]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XF831


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Lighthouse Repair and Tour 
Operations at Northwest Seal Rock, California

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
the St. George Reef Lighthouse Preservation Society (Society) to 
incidentally harass, by Level B harassment only, marine mammals during 
aircraft operations, lighthouse renovations, and tour operations 
associated with preservation of the St. George Reef Lighthouse Station 
on Northwest Seal Rock (NWSR) in the northeast Pacific Ocean.

DATES: This authorization is effective from February 19, 2018 through 
February 18, 2019.

FOR FURTHER INFORMATION CONTACT: Amy Fowler, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the IHA and 
supporting documents, as well as a list of the references cited in this 
document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-research-and-other-activities. In case of problems accessing these 
documents, please call the contact listed above.

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 (as delegated to NMFS) 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 authorization is 
provided to the public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.
    The MMPA states that the term ``take'' means to harass, hunt, 
capture, kill or attempt to harass, hunt, capture, or kill any marine 
mammal.
    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 October 18, 2017, NMFS received a request from the Society for 
an IHA to take marine mammals incidental to restoration, maintenance, 
and tour operations at St. George Reef Lighthouse (Station) located on 
Northwest Seal Rock (NWSR) offshore of Crescent City, California in the 
northeast Pacific Ocean. NMFS determined the application adequate and 
complete on January 17, 2018. The Society's request was for take of 
California sea lions (Zalophus californianus), Steller sea lions 
(Eumetopias jubatus), northern fur seals (Callorhinus ursinus) and 
Pacific harbor seals (Phoca vitulina richardii) by Level B harassment 
only. Neither the Society nor NMFS expects serious injury or mortality 
to result from this activity and, therefore, an IHA is appropriate.
    NMFS has previously issued seven IHA's to the Society for similar 
work between 2010 and 2017 (75 FR 4774, January 29, 2010; 76 FR 10564, 
February 25, 2011; 77 FR 8811, February 15, 2012; 78 FR 71576, November 
29, 2013; 79 FR 6179, February 3, 2014; 81 FR 9440, February 23, 2016; 
and 82 FR 11005, February 17, 2017). The Society complied with all the 
requirements (e.g., mitigation, monitoring, and reporting) of the 
previous IHAs and information regarding their monitoring results may be 
found in the Estimated Take section.

Description of Specified Activity

    The Station, listed in the National Park Service's National 
Register of Historic Places, is located on NWSR offshore of Crescent 
City, California in the northeast Pacific Ocean. The Station, built in 
1892, rises 45.7 meters (m) (150 feet (ft)) above sea level. The 
structure consists of hundreds of granite blocks topped with a cast 
iron lantern room and covers much of the surface of the islet. The 
purpose of the project is to restore the lighthouse, to conduct tours, 
and to conduct annual and emergency maintenance on the Station's 
optical light system.
    The Society proposes to conduct aircraft operations, lighthouse 
renovation, and periodic maintenance on the Station's optical light 
system on a monthly basis. The Society's activity will occur on a 
monthly basis over one weekend, November through April. The following 
specific aspects of the activities will likely result in the take of 
marine mammals: Acoustic and visual stimuli from (1) helicopter 
landings/takeoffs; (2) noise generated during restoration activities 
(e.g., painting, plastering, welding, and glazing); (3) maintenance 
activities (e.g., bulb replacement and automation of the light system); 
and (4) human presence.
    A detailed description of the planned activities is provided in the 
Federal Register notice (83 FR 8841, March 1, 2018). 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.

[[Page 19255]]

Comments and Responses

    A notice of NMFS's proposal to issue an IHA was published in the 
Federal Register on March 1, 2018 (83 FR 8841). During the 30-day 
public comment period, the Marine Mammal Commission (Commission) 
submitted a letter on March 7, 2018. The Commission provided comments 
as described below and concurred with NMFS's findings that the 
recommended issuance of an IHA to the Society, subject to the inclusion 
of the mitigation, monitoring, and reporting measures.
    Comment: The Commission requested clarification of certain issues 
associated with NMFS's notice that one-year renewals could be issued in 
certain limited circumstances and expressed concern that the process 
would bypass the public notice and comment requirements. The Commission 
also suggested that NMFS should discuss the possibility of renewals 
through a more general route, such as a rulemaking, instead of notice 
in a specific authorization. The Commission further recommended that if 
NMFS did not pursue a more general route, that the agency provide the 
Commission and the public with a legal analysis supporting our 
conclusion that this process is consistent with the requirements of 
101(a)(5)(D) of the MMPA.
    Response: The process of issuing a renewal IHA does not bypass the 
public notice and comment requirements of the MMPA. The notice of the 
proposed IHA expressly notifies the public that under certain, limited 
conditions an applicant could seek a renewal of an IHA for an 
additional year. The notice describes the conditions under which such a 
renewal request could be considered and expressly seeks public comment 
in the event such a renewal is sought. Importantly, such renewals would 
be limited to where the activities are identical or nearly identical to 
those analyzed in the proposed IHA, monitoring does not indicate 
impacts that were not previously analyzed and authorized, and the 
mitigation and monitoring requirements remain the same, all of which 
allow the public to comment on the appropriateness and effects of a 
renewal at the same time the public provides comments on the initial 
IHA. NMFS has, however, modified the language for future proposed IHAs 
to clarify that all IHAs, including renewal IHAs, are valid for no more 
than one year and that the agency would consider only one renewal for a 
project at this time. In addition, notice of issuance or denial of a 
renewal IHA would be published in the Federal Register, as are all 
IHAs. Last, NMFS will publish on our website a description of the 
renewal process before any renewal is issued utilizing the new process.

Description of Marine Mammals in the Area of Specified Activities

    A detailed description of the species likely to be affected by the 
planned activities, including brief 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 (83 FR 
8841, March 1, 2018). 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 as well as to NMFS's website 
(www.nmfs.noaa.gov/pr/species/mammals/) for generalized species 
accounts.

                                             Table 1--Marine Mammals in the Vicinity of Northwest Seal Rock
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                                                                                         ESA/ MMPA status;   Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
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                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
 sea lions):
    California sea lion.............  Zalophus californianus.  U.S....................  -; N                296,750 (n/a; 153,337;      9,200        389
                                                                                                             2011).
    Steller sea lion................  Eumetopias jubatus.....  Eastern U.S............  -; N                41,638 (n/a; 41,638;        2,498        108
                                                                                                             2015).
    Northern fur seal...............  Callorhinus ursinus....  California Breeding....  -; N                14,050 (n/a; 7,524;           451        1.8
                                                                                                             2013).
Family Phocidae (earless seals):
    Pacific harbor seal.............  Phoca vitulina           California.............  -; N                30,968 (n/a; 27,348;        1,641         43
                                       richardii.                                                            2012).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of
  stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality (M) plus serious injury (SI) from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
  associated with estimated mortality due to commercial fisheries is presented in some cases.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effect of stressors associated with the specified activities 
(e.g., helicopter operations) has the potential to result in behavioral 
harassment of marine mammals in the vicinity of the action areas. The 
Federal Register notice for the proposed IHA (83 FR 8841, March 1, 
2018) included a discussion of the effects of such disturbance on 
marine mammals, therefore that information is not repeated here.
    NMFS described potential impacts to marine mammal habitat in detail 
in our Federal Register notice of proposed authorization (83 FR 8841, 
March 1, 2018). In summary, the project activities will not modify 
existing marine mammal habitat. Because of the short duration of the 
activities and the relatively small area of the habitat that may be 
affected, the impacts to marine mammal habitat are not expected to 
cause significant or long-term negative consequences for individual 
marine mammals or their populations.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform both NMFS's 
consideration of

[[Page 19256]]

``small numbers'' and the negligible impact determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of 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).
    Authorized takes will be by Level B harassment only, in the form of 
disruption of behavioral patterns for individual marine mammals 
resulting from exposure to aircraft operations and lighthouse 
maintenance activities. Based on the nature of the activity, Level A 
harassment is neither anticipated nor authorized.

  Table 2--Disturbance Scale of Pinniped Responses to In-Air Sources To
                             Determine Take
------------------------------------------------------------------------
     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.
2 *............  Movement...........  Movements in response to the
                                       source of disturbance, ranging
                                       from short withdrawals at least
                                       twice the animal's body length to
                                       longer retreats over the beach,
                                       or if already moving a change of
                                       direction of greater than 90
                                       degrees.
3 *............  Flush..............  All retreats (flushes) to the
                                       water.
------------------------------------------------------------------------
* Only Levels 2 and 3 are considered take, whereas Level 1 is not.

    NMFS assumes that pinnipeds that move greater than two body lengths 
to longer retreats over the beach, or if already moving, a change of 
direction of greater than 90 degrees in response to the presence of 
surveyors, or pinnipeds that flush into the water, are behaviorally 
harassed, and thus subject to Level B taking (Table 2).
    Below we describe how the take is estimated.

Marine Mammal Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.
    For the 2010 season, the Society reported that no Steller sea lions 
were present in the vicinity of NWSR during restoration activities 
(SGRLPS 2010). Based on the monitoring report for the 2011 season, the 
maximum numbers of Steller sea lions present during the April and 
November 2011, work sessions were 2 and 155 animals, respectively 
(SGRLPS 2012). During the 2012 season, the Society did not observe any 
Steller sea lions present on NWSR during restoration activities. The 
Society did not conduct any operations for the 2013-2014, 2014-2015, 
and 2015-2016 seasons. The Society reported no Steller sea lions 
observed in the 2016-2017 and 2017-2018 work seasons (T. McNamara, 
pers. comm., 2018).
    Based on the monitoring report for the 2011 season, the maximum 
numbers of California sea lions present during the April and November, 
2011 work sessions were 2 and 160 animals, respectively (SGRLPS 2012). 
There were no California sea lions present during the March, 2012 work 
session (SGRLPS 2012). The Society reported 16 California sea lions 
observed in March 2017 and no California sea lions present in April 
2017. The Society also reported that 16 California sea lions were 
observed in November 2017 (Terry McNamara, pers. comm., 2018).
    For the 2010, 2011, and 2012 work seasons, the Society did not 
observe any northern fur seals present on NWSR during restoration 
activities (SGRLPS 2010; 2011; 2012). No northern fur seals were 
observed during the 2016-2017 and 2017-2018 work seasons (Terry 
McNamara, pers. comm., 2018).
    For the 2010 and 2011 seasons, the Society did not observe any 
Pacific harbor seals present on NWSR during restoration activities 
(SGRLPS 2010; 2011). During the 2012 season, the Society reported 
sighting a total of two harbor seals present on NWSR (SGRLPS 2012). No 
harbor seals were observed during the 2016-2017 and 2017-2018 work 
seasons (Terry McNamara, pers. comm., 2018).

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate.
    Based on the Society's previous monitoring reports, NMFS estimates 
that approximately 2,880 California sea lions (calculated by 
multiplying the maximum single-day count of California sea lions 
present on NWSR (160) by 18 days of the restoration, maintenance, and 
touring activities), 2,790 Steller sea lions (calculated by multiplying 
the maximum single-day count of Steller sea lions that could be present 
(155) by 18 days of the restoration, maintenance, and touring 
activities), 36 Pacific harbor seals (calculated by multiplying the 
maximum single-day count of harbor seals present on NWSR (2) by 18 
days), and 18 Northern fur seals (calculated by multiplying the maximum 
number of northern fur seals present on NWSR (1) by 18 days) could be 
potentially affected by Level B behavioral harassment over the course 
of the IHA (Table 3). NMFS bases these estimates of the numbers of 
marine mammals that might be affected on consideration of the number of 
marine mammals that could be disturbed appreciably by approximately 75 
hours of aircraft operations over the course of the 18 days of 
activity.

Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to such 
activity, and other means of effecting the least practicable 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 (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting such 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where

[[Page 19257]]

applicable, we carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned) the likelihood of effective implementation (probability 
implemented as planned); and
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.

Mitigation for Marine Mammals and Their Habitat

    Time and Frequency--The Society shall conduct restoration and 
touring activities at a maximum of once per month over the course of 
the year, with the exception of between May 1, 2018 through October 31, 
2018 (barring potential emergency light repairs during this time). Each 
restoration session shall last no more than three days. Maintenance of 
the light beacon shall occur only in conjunction with restoration 
activities (except if an emergency light repair is needed from May 1, 
2018 through October 31, 2018).
    Helicopter Approach and Timing Techniques--The Society shall ensure 
that its helicopter approach patterns to the Station and timing 
techniques shall be conducted at times when marine mammals are less 
likely to be disturbed. To the extent possible, the helicopter will 
approach NWSR when the tide is too high for the marine mammals to haul 
out on NWSR. Additionally, since the most severe impacts (stampede) 
precede rapid and direct helicopter approaches, the Society's initial 
approach to the station must be offshore from the island at a 
relatively high altitude (e.g., 800-1,000 ft, or 244-305 m). Before the 
final approach, the helicopter shall circle lower and approach from 
area with the lowest pinniped density. If for any safety reasons (e.g., 
wind condition) the Society cannot conduct these types of helicopter 
approach and timing techniques, they must postpone the restoration and 
maintenance activities for that day.
    Avoidance of Visual and Acoustic Contact with People on Island--The 
Society shall instruct its members and restoration crews to avoid 
making unnecessary noise and not expose themselves visually to 
pinnipeds around the base of the station. Although CCR reported no 
impacts from these activities in the 2001 study, it is relatively 
simple for the Society to avoid this potential impact. The door to the 
lower platform shall remain closed and barricaded to all tourists and 
other personnel since the lower platform is used at times by pinnipeds.
    NMFS has determined that the above mentioned mitigation measures 
provide the means effecting the least practicable impact on the 
affected 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 IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth, requirements pertaining to 
the monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
authorizations 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 
action area. Effective reporting is critical both to compliance and to 
ensuring that the most value is obtained from the required monitoring.
    Monitoring and reporting requirements prescribed by NMFS will 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.

Monitoring

    As part of its IHA application, the Society shall sponsor marine 
mammal monitoring, in order to implement the mitigation measures that 
require real-time monitoring, and to satisfy the monitoring 
requirements of the IHA. These requirements include:
     A NMFS approved, experienced biologist will be present on 
the first flight of each day of the activity. This observer must be 
able to identify all species of pinnipeds expected to use the island, 
and qualified to determine age and sex classes when viewing conditions 
allow. The observer shall record data including species counts, numbers 
of observed disturbances, and descriptions of the disturbance behaviors 
during the activities, including location, date, and time of the event. 
In addition, the Society shall record observations regarding the number 
and species of any marine mammals either observed in the water or 
hauled out; and
     Aerial photographic surveys to provide an accurate means 
of documenting species composition, age and sex class of pinnipeds 
using the project site during human activity periods. The Society shall 
complete aerial photo coverage from the same helicopter used to 
transport the Society's personnel to the island during restoration 
trips. The Society shall take photographs of all marine mammals hauled 
out on the island from an altitude greater than 300 m (984 ft) by a 
skilled photographer, on the first flight of each day of activities. 
These photographs will be forwarded to a biologist capable of 
discerning marine mammal species. Data shall be provided to us in the 
form of a report with a data table, any other significant observations 
related to marine mammals, and a report of restoration activities (see 
Reporting). The original photographs will be made available to us or 
other marine mammal experts for inspection and further analysis.
    As detailed above, the monitoring requirements in relation to the 
Society's activities include species counts, numbers of observed 
disturbances, and

[[Page 19258]]

descriptions of the disturbance behaviors during the restoration 
activities, including location, date, and time of the event. In 
addition, the Society shall record observations regarding the number 
and species of any marine mammals either observed in the water or 
hauled out.
    By completing the requirements mentioned above, the Society will 
add to the knowledge of pinnipeds in the action area by noting 
observations of: (1) Unusual behaviors, numbers, or distributions of 
pinnipeds, enabling appropriate personnel to conduct future follow-up 
research; (2) tag-bearing carcasses of pinnipeds, allowing transmittal 
of the information to appropriate agencies and personnel; and (3) rare 
or unusual species of marine mammals for agency follow-up.
    If at any time injury, serious injury, or mortality of the species 
for which take is authorized occurs, or if take of any other kind of 
marine mammal occurs, and such action is believed to be a result of the 
Society's activities, the Society shall suspend restoration and tour 
activities and contact NMFS immediately. NMFS will then determine how 
best to proceed to ensure another injury or death does not occur and to 
guarantee the applicant remains in compliance with the MMPA.
    Monitoring requirements in relation to the Society's restoration 
activities shall include observations made by the Society. Information 
recorded shall include species counts (with age/sex classes when 
possible) of animals present before approaching, numbers of observed 
disturbances, and descriptions of the disturbance behaviors during the 
helicopter operations, including relative location, date, and time of 
the event. For consistency, any reactions by pinnipeds to researchers 
shall be recorded according to the three-point scale shown in Table 2. 
Note that only observations of disturbance Levels 2 and 3 should be 
recorded as takes.

Reporting

    A draft final report must be submitted to NMFS Office of Protected 
Resources within 90 days of conclusion of restoration activities in 
April. The report must include a summary of the information gathered 
pursuant to the monitoring requirements set forth in the IHA. The 
Society must submit a final report to NMFS within 30 days after 
receiving comments from NMFS on the draft report. If the Society 
receives no comments from NMFS on the report, NMFS will consider the 
draft report to be the final report.
    The report must describe the operations conducted and sightings of 
marine mammals near the project. The report must provide full 
documentation of methods, results, and interpretation pertaining to all 
monitoring. The report must provide:
    1. A summary and table of the dates, times, and weather during all 
activities.
    2. Species, number, location, and behavior of any marine mammals 
observed throughout all monitoring activities.
    3. An estimate of the number (by species) of marine mammals exposed 
to human presence associated with the Society's activities.
    4. A description of the implementation and effectiveness of the 
monitoring and mitigation measures of the IHA and full documentation of 
methods, results, and interpretation pertaining to all monitoring.
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the 
authorization, such as an injury (Level A harassment), serious injury, 
or mortality (e.g., stampede), society personnel shall immediately 
cease the specified activities and immediately report the incident to 
the Chief, Permits and Conservation Division, Office of Protected 
Resources, NMFS, and the Assistant West Coast Regional Stranding 
Coordinator. The report must include the following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Description and location of the incident (including water 
depth, if applicable);
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available)
    The Society shall not resume its activities until NMFS is able to 
review the circumstances of the prohibited take. We will work with the 
Society to determine what is necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. The Society shall 
not resume their activities until notified by us via letter, email, or 
telephone.
    In the event that the Society discovers an injured or dead marine 
mammal, and the marine mammal observer determines that the cause of the 
injury or death is unknown and the death is relatively recent (i.e., in 
less than a moderate state of decomposition as we describe in the next 
paragraph), the Society shall immediately report the incident to the 
Chief, Permits and Conservation Division, Office of Protected 
Resources, NMFS, and the West Coast Regional Stranding Coordinator, 
(562) 980-3230. The report must include the same information identified 
in the paragraph above this section. Activities may continue while NMFS 
reviews the circumstances of the incident. NMFS will work with the 
Society to determine whether modifications in the activities are 
appropriate.
    In the event that the Society discovers an injured or dead marine 
mammal, and the lead visual observer determines that the injury or 
death is not associated with or related to the authorized activities 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), the Society shall report the 
incident to the Chief, Permits and Conservation Division, Office of 
Protected Resources, NMFS, and the Assistant West Coast Regional 
Stranding Coordinator within 24 hours of the discovery. Society 
personnel shall provide photographs or video footage (if available) or 
other documentation of the stranded animal sighting to us. The Society 
shall continue their survey activities while NMFS reviews the 
circumstances of the incident.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact 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 (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 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 harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing

[[Page 19259]]

regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    Although the Society's survey activities may disturb a small number 
of marine mammals hauled out on NWSR, NMFS expects those impacts to 
occur to a small, localized group of animals for a limited duration 
(e.g., six hours in one day). Marine mammals will likely become alert 
or, at most, flush into the water in reaction to the presence of the 
Society's personnel during the activities. Disturbance will be limited 
to a short duration, allowing marine mammals to reoccupy NWSR within a 
short amount of time. Thus, the authorized action is unlikely to result 
in long-term impacts such as permanent abandonment of the area because 
of the availability of alternate areas for pinnipeds to avoid the 
resultant acoustic and visual disturbances from the restoration 
activities and helicopter operations. Results from previous monitoring 
reports also show that the pinnipeds returned to NWSR and did not 
permanently abandon haulout sites after the Society conducted their 
activities.
    With the exception of emergency repairs, which are unlikely to 
occur, the Society's activities occur during the least sensitive time 
(e.g., November through April, outside of the pupping season) for 
hauled out pinnipeds on NWSR. Thus, pups or breeding adults will likely 
not be present during the activity days.
    Moreover, the Society's mitigation measures regarding helicopter 
approaches and restoration site ingress and egress minimize the 
potential for stampedes and large-scale movements. Thus, the potential 
for large-scale movements and stampede leading to injury, serious, 
injury, or mortality is low.
    Any noise attributed to the Society's helicopter operations on NWSR 
will be short-term (approximately six minutes per trip). We expect the 
ambient noise levels to return to a baseline state when helicopter 
operations have ceased for the day. As the helicopter lands and takes 
off from the station, sound levels are below the thresholds for 
airborne pinniped disturbance at the landing pad which is 15 m (48 ft) 
above the rocks. Additionally, the pinnipeds will likely flush before 
the helicopter approached NWSR, further increasing the distance between 
the pinnipeds and the received sound levels on NWSR.
    If pinnipeds are present on NWSR, Level B behavioral harassment of 
pinnipeds may occur during helicopter landing and takeoff from NWSR due 
to the pinnipeds temporarily moving from the rocks and lower structure 
of the Station into the sea due to the noise and appearance of a 
helicopter during approaches and departures. It is expected that all or 
a portion of the marine mammals hauled out on NWSR will depart the rock 
and slowly move into the water upon initial helicopter approaches. The 
movement to the water will likely be gradual due to the required 
controlled helicopter approaches (see Mitigation for more details), the 
small size of the aircraft, the use of noise-attenuating blade tip caps 
on the rotors, and behavioral habituation on the part of animals as 
helicopter trips continue throughout the day. During the sessions of 
helicopter activity, if present on NWSR, some animals may be 
temporarily displaced from the island and either raft in the water or 
relocate to other haulouts.
    Sea lions have shown habituation to helicopter flights within a day 
at the project site and most animals are expected to return soon after 
helicopter activities cease for that day. By clustering helicopter 
arrivals/departures within a short time period, we expect animals 
present to show less response to subsequent landings. NMFS anticipates 
no impact on the population size or breeding stock of Steller sea 
lions, California sea lions, Pacific harbor seals, or Northern fur 
seals.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
     The impacts to animals present will be of limited duration 
(i.e., at maximum three days a month);
     The impacts will be of limited intensity (i.e., temporary 
flushing at most); and
     No injury or mortality is anticipated or authorized.
    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 monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the 
activity will have a negligible impact on all affected marine mammal 
species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under section 101(a)(5)(D) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, where estimated numbers are 
available, NMFS compares the number of individuals taken to the most 
appropriate estimation of abundance of the relevant species or stock in 
our determination of whether an authorization is limited to small 
numbers of marine mammals. Additionally, other qualitative factors may 
be considered in the analysis, such as the temporal or spatial scale of 
the activities.
    As mentioned previously, NMFS estimates that the Society's 
activities could potentially affect, by Level B harassment only, four 
species of marine mammals under our jurisdiction. For each species, 
these estimates are small numbers (less than one percent of the 
affected stocks of California sea lions, Pacific harbor seals, and 
Northern fur seals, and less than seven percent of the stock of Steller 
sea lions) relative to the population size (Table 3). However, actual 
take may be slightly less if animals decide to haul out at a different 
location for the day or if animals are foraging at the time of the 
survey activities.

                  Table 3--The Percentage of Stock Affected by the Number of Takes per Species
----------------------------------------------------------------------------------------------------------------
                                  Maximum number      Days of                          Stock        Percent of
             Species                  per day        activity       Take number      abundance         stock
----------------------------------------------------------------------------------------------------------------
California sea lion Zalophus                 160              18           2,880         296,750            0.97
 californianus..................
Steller sea lion Eumetopias                  155              18           2,790          41,638             6.7
 jubatus........................
Pacific harbor seal Phoca                      2              18              36          30,968            0.35
 vitulina.......................
Northern fur seal Callorhinus                  1              18              18          14,050            0.12
 ursinus........................
----------------------------------------------------------------------------------------------------------------


[[Page 19260]]

    Based on the analysis contained herein of the activity (including 
the mitigation and monitoring measures) and the anticipated take of 
marine mammals, NMFS finds that small numbers of marine mammals will be 
taken relative to the population size of the affected species or 
stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no subsistence uses of the affected marine mammal stocks 
or species implicated by this action. Therefore, NMFS has determined 
that the total taking of affected species or stocks will not have an 
unmitigable adverse impact on the availability of such species or 
stocks for taking for subsistence purposes.

Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally, in this case with the West Coast Region 
Protected Resources Division Office, whenever we propose to authorize 
take for endangered or threatened species.
    No incidental take of ESA-listed species is authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal consultation under section 7 of the ESA is not required for this 
action.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our action (i.e., the issuance of an incidental 
harassment authorization) with respect to potential impacts on the 
human environment. This action is consistent with categories of 
activities identified in Categorical Exclusion B4 (incidental 
harassment authorizations with no anticipated serious injury or 
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has determined 
that the issuance of the IHA qualifies to be categorically excluded 
from further NEPA review.

Authorization

    As a result of these determinations, we have issued an IHA to the 
Society for conducting the described activities related to lighthouse 
station restoration, maintenance, and tours from February 19, 2018 
through February 18, 2019 provided the previously described mitigation, 
monitoring, and reporting requirements are incorporated.

    Dated: April 26, 2018.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2018-09240 Filed 5-1-18; 8:45 am]
 BILLING CODE 3510-22-P