[Federal Register Volume 84, Number 45 (Thursday, March 7, 2019)]
[Notices]
[Pages 8312-8315]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-04075]



[[Page 8312]]

-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG831


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; incidental harassment authorization; request for 
comments on proposed renewal.

-----------------------------------------------------------------------

SUMMARY: NMFS received a request from the St. George Reef Lighthouse 
Preservation Society (Society) for the renewal of their currently-
active, incidental harassment authorization (IHA) to take marine 
mammals incidental to aircraft operations, lighthouse renovations, and 
tour operations associated with preservation of the St. George Reef 
Lighthouse Station (Station) on Northwest Seal Rock (NWSR) in the 
northeast Pacific Ocean. These activities are identical to those 
covered in the current authorization. Pursuant to the Marine Mammal 
Protection Act. Prior to issuing the currently-active IHA, NMFS 
requested comments on both the proposed IHA and the potential for 
renewing the initial authorization if certain requirements were 
satisfied. The renewal requirements have been satisfied, and NMFS is 
now providing an additional 15-day comment period to allow for any 
additional comments on the proposed renewal not previously provided 
during the initial 30-day comment period. Any comments received on the 
potential renewal, along with relevant comments on the initial IHA, 
have been considered in the development of this proposed IHA renewal, 
and a summary of agency responses to applicable comments is included in 
this notice. NMFS will consider any additional public comments prior to 
making any final decision on the issuance of the requested renewal, and 
agency responses will be summarized in the final notice of our 
decision.

DATES: Comments and information must be received no later than March 
22, 2019.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Physical comments should be sent to 
1315 East-West Highway, Silver Spring, MD 20910 and electronic comments 
should be sent to [email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments received electronically, including 
all attachments, must not exceed a 25-megabyte file size. Attachments 
to electronic comments will be accepted in Microsoft Word or Excel or 
Adobe PDF file formats only. All comments received are a part of the 
public record and will generally be posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All personal identifying 
information (e.g., name, address) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.

FOR FURTHER INFORMATION CONTACT: Amy Fowler, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application, renewal request, and supporting documents (including NMFS 
Federal Register notices of the original proposed and final 
authorizations, and the previous IHA), 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

    The Marine Mammal Protection Act (MMPA) prohibits the ``take'' of 
marine mammals, with certain exceptions. 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, notice of a proposed incidental take authorization is 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other means of effecting the least practicable adverse 
impact on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e), 
indicate that IHAs may be renewed for additional periods of time, not 
to exceed one year for each reauthorization. In the notice of proposed 
IHA for the initial authorization, NMFS described the circumstances 
under which we would consider issuing a renewal for this activity, and 
requested public comment on a potential renewal under those 
circumstances. Specifically, on a case-by-case basis, NMFS may issue a 
one-year IHA renewal when (1) another year of identical or nearly 
identical activities as described in the Specified Activities section 
is planned or (2) the activities would not be completed by the time the 
IHA expires and a second IHA would allow for completion of the 
activities beyond that described in the Dates and Duration section of 
the initial IHA. All of the following conditions must be met in order 
to issue a Renewal:
     A request for renewal is received no later than 60 days 
prior to expiration of the current IHA.
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted beyond the 
initial dates either are identical to the previously analyzed 
activities or include changes so minor (e.g., reduction in pile size) 
that the changes do not affect the previous analyses, take estimates, 
or mitigation and monitoring requirements; and
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
     Upon review of the request for renewal, the status of the 
affected species or stocks, and any other

[[Page 8313]]

pertinent information, NMFS determines that there are no more than 
minor changes in the activities, the mitigation and monitoring measures 
remain the same and appropriate, and the initial findings remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed renewal. A description of the renewal process 
may be found on our website at: https://www.fisheries.noaa.gov/iha-renewals.

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 proposed 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 
preliminarily determined that the issuance of the renewal IHA qualifies 
to be categorically excluded from further NEPA review. We will review 
all comments submitted in response to this notice prior to concluding 
our NEPA process or making a final decision on the IHA request.

History of Request

    On April 13, 2018, NMFS issued an IHA to the Society to take marine 
mammals incidental to the lighthouse maintenance and preservation 
project at NWSR, Del Norte County, California (83 FR 19254, May 2, 
2018), effective from February 19, 2018 through February 18, 2019. On 
December 6, 2018, NMFS received an application for the renewal of that 
initial IHA. As described in the application for renewal, the 
activities for which incidental take is requested are identical to 
those covered in the initial authorization. As required, the applicant 
also provided a preliminary monitoring report (available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-research-and-other-activities) which confirms that 
the applicant has implemented the required mitigation and monitoring, 
and which also shows that no impacts of a scale or nature not 
previously analyzed or authorized have occurred as a result of the 
activities conducted.

Description of the Specified Activities and Anticipated Impacts

    The Station is located on NWSR offshore from Crescent City, 
California in the northeast Pacific Ocean. NWSR rises approximately 
5.18 meters (m) (17 feet (ft)) above sea level. Because NWSR has no 
safe landing for boats, the islet is accessed only by helicopter. The 
Society visits the Station to conduct lighthouse renovations and 
periodic maintenance on the Station's optical light system, as well as 
public tours of the historic lighthouse. Station visits occur one 
weekend per month (Friday, Saturday, and Sunday), from November through 
April. The following specific aspects of the proposed activities would 
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. These 
activities are identical to those analyzed in the initial IHA issued by 
NMFS, described in detail in the Federal Register notice of proposed 
IHA (83 FR 8841, March 1, 2018). As in the initial authorization, NMFS 
anticipates that take, by Level B harassment only, of California sea 
lions (Zalophus californianus), Pacific harbor seals (Phoca vitulina), 
Steller sea lions (Eumetopias jubatus) of the eastern U.S. Stock, and 
northern fur seals (Callorhinus ursinus) could result from the 
specified activity (83 FR 19254, May 2, 2018).

Detailed Description of the Activity

    A detailed description of the restoration, maintenance, and tour 
operations for which take is proposed here may be found in the Notices 
of the Proposed and Final IHAs for the initial authorization (83 FR 
8841, March 1, 2018; 83 FR 19254, May 2, 2018). The location (as 
described in the Specific Geographic Region section of the initial 
IHA), timing, amount, and nature of the specified activities, including 
the types of equipment planned for use, are identical to those 
described in the previous notices. The proposed renewal would be 
effective for a period of one year from the date of issuance.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is proposed here, including information 
on abundance, status, distribution, and hearing, may be found in the 
Federal Register Notice of the Proposed IHA for the initial 
authorization (83 FR 8841, March 1, 2018). NMFS has reviewed the 
monitoring data from the initial IHA, recent draft Stock Assessment 
Reports, information on relevant Unusual Mortality Events, and other 
scientific literature. The draft 2018 Stock Assessment Report notes 
that the estimated abundance of California sea lions has decreased 
slightly, however, neither this nor any other new information affects 
which species or stocks have the potential to be affected or the 
pertinent information in the section Description of Marine Mammals in 
the Area of Specified Activities contained in the supporting documents 
for the initial IHA.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which take is 
proposed here may be found in the Federal Register Notice of the 
Proposed IHA for the initial authorization (83 FR 8841, March 1, 2018). 
NMFS has reviewed the monitoring data from the initial IHA, recent 
draft Stock Assessment Reports, information on relevant Unusual 
Mortality Events, and other scientific literature, and determined that 
no new information affects our initial analysis of impacts on marine 
mammals and their habitat.

Estimated Take

    Detailed descriptions of the methods and inputs used to estimate 
take for the specified activity are found in the Federal Register 
Notices of the Proposed and Final IHAs for the initial authorization 
(83 FR 8841, March 1, 2018; 83 FR 19254, May 2, 2018). Specifically, 
the number of days of operation and marine mammal occurrence data 
applicable to this authorization remain unchanged from the previously 
issued IHA. Similarly, the stocks taken, methods of take, and types of 
take remain unchanged from the initial IHA, as do the number of takes, 
which are indicated below in Table 1.
    In their 2018 monitoring report, the Society reported a total of 40 
takes of California sea lions, three takes of Steller sea lions, and 
zero takes of

[[Page 8314]]

northern fur seals and harbor seals from four visits to NWSR. All takes 
qualified as Level B harassment in the form of behavioral disturbance. 
These take numbers fall far below the take authorized in the initial 
IHA (83 FR 19254, May 2, 2018) and the identical numbers proposed to be 
authorized in this IHA, which are indicated below.

                                    Table 1--Estimated Take of Marine Mammals
----------------------------------------------------------------------------------------------------------------
                                      Maximum         Days of
             Species               observed  per     proposed        Estimated         Stock        Percent  of
                                        day          activity          take          abundance         stock
----------------------------------------------------------------------------------------------------------------
California sea lion.............             160              18           2,880         257,606             1.1
(Zalophus californianus)........
Steller sea lion................             155              18           2,790          41,638             6.7
(Eumetopias jubatus)............
Pacific harbor seal.............               2              18              36          30,968            0.35
(Phoca vitulina)................
Northern fur seal...............               1              18              18          14,050            0.12
(Callorhinus ursinus)...........
----------------------------------------------------------------------------------------------------------------

Description of Required Mitigation, Monitoring, and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in this authorization are identical to those 
included in the Federal Register Notice announcing the issuance of the 
initial 2018 IHA, and the discussion of the least practicable adverse 
impact included in that document (83 FR 19254, May 2, 2018) and the 
Notice of the proposed IHA (83 FR 19254, May 2, 2018) remains accurate. 
The same following measures are proposed for inclusion in this IHA:
    The Society would 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, 2019 through October 31, 2019 when no 
restoration or touring activities would occur (barring potential 
emergency light repairs during this time). Each restoration session 
would last no more than three days. Maintenance of the light beacon 
would occur only in conjunction with restoration activities (except if 
an emergency light repair is needed from May 1, 2019 through October 
31, 2019).
    The Society would ensure that its helicopter approach patterns to 
the Station and timing techniques would be conducted at times when 
marine mammals are less likely to be disturbed. To the extent possible, 
the helicopter should 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 must circle lower and 
approach from the 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.
    The Society would instruct its members and restoration crews to 
avoid making unnecessary noise and avoid visual detection by pinnipeds 
around the base of the station. Although Crescent Coastal Research 
reported no impacts from these activities in a 2001 study (CCR 2001), 
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.
    A NMFS approved, experienced biologist will be present on the first 
flight of each day of the activity. This observer will 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 would 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 would record observations regarding the number 
and species of any marine mammals either observed in the water or 
hauled out.
    Aerial photographic surveys provide an accurate means of 
documenting species composition, age, and sex class of pinnipeds using 
the project site during human activity periods. The Society should 
complete aerial photo coverage from the same helicopter used to 
transport the Society's personnel to the island during restoration 
trips. The Society would 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 NMFS 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 
below). The original photographs would be made available to NMFS or 
other marine mammal experts for inspection and further analysis, if 
requested.
    The Society would submit a draft report to NMFS' Office of 
Protected Resources no later than 90 days after the conclusion of 
restoration activities in April. The report will include a summary of 
the information gathered pursuant to the monitoring requirements 
described here and set forth in the final IHA. The Society will 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 draft report, NMFS will consider the draft report to be the 
final report.
    The report will describe the operations conducted and sightings of 
marine mammals near the project. The report will 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; and
    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.

[[Page 8315]]

Public Comments

    As noted previously, NMFS published a notice of a proposed IHA (83 
FR 8841, March 1, 2018) and solicited public comments on both our 
proposal to issue the initial IHA for lighthouse restoration, 
maintenance, and tour operations, and on the potential for a renewal, 
should certain requirements be met.
    All public comments were addressed in the notice announcing the 
issuance of the initial IHA (83 FR 19254, May 2, 2018). Below, we 
describe how we have addressed, with updated information where 
appropriate, any comments received that specifically pertain to the 
renewal of the 2018 IHA.
    Comment: The Marine Mammal Commission (Commission) requested 
clarification of certain issues associated with NMFS's notice that one-
year renewals can 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 section 101(a)(5)(D) of the MMPA.
    Response: The notice of the proposed IHA expressly notified and 
invited comment from the public on the possibility that under certain, 
limited conditions the applicant could seek a renewal IHA for an 
additional year. The notice described the conditions under which such a 
renewal request could be considered and expressly sought public comment 
in the event such a renewal were sought. Further, since issuance of the 
initial IHA NMFS has modified the renewal process to provide notice 
through the Federal Register and an additional 15-day public comment 
period at the time the renewal IHA is requested. NMFS also will provide 
direct notice of the proposed renewal to those who commented on the 
initial IHA, to provide an opportunity to submit any additional 
comments.
    We appreciate the Commission's suggestion that NMFS discuss the 
potential for IHA renewals through a more general route, such as a 
rulemaking. However, utilizing the public comment process associated 
with IHAs is more efficient for the agency, while still providing for 
appropriate public input into NMFS' decision-making. Further, NMFS' 
recent modification to the renewal process (i.e., soliciting additional 
public comment at the time of a renewal request) should alleviate the 
Commission's concern about the lack of additional public comment and 
need for a more general rulemaking.
    For more information, NMFS has published a description of the 
renewal process on our website (available at https://www.fisheries.noaa.gov/iha-renewals).

Preliminary Determinations

    The lighthouse restoration, maintenance, and public tour activities 
proposed by the Society are identical to those analyzed in the initial 
IHA, as are the number of days of activity, the method of taking, and 
the effects of the action. The potential effects of the Society's 
activities are limited to Level B harassment in the form of behavioral 
disturbance. In analyzing the effects of the activities in the initial 
IHA, NMFS determined that the Society's activities would have a 
negligible impact on the affected species or stocks and that the 
authorized take numbers of each species or stock were small relative to 
the relevant stocks (e.g., less than 7 percent of all stocks). The 
numbers of marine mammals proposed to be taken in this authorization 
are identical to those authorized in the initial IHA. The mitigation 
measures and monitoring and reporting requirements as described above 
also are identical to the initial IHA.
    NMFS has preliminarily concluded that there is no new information 
suggesting that our analysis or findings should change from those 
reached for the initial IHA. This includes consideration of the 
estimated abundance of California sea lions decreasing slightly. Based 
on the information and analysis contained here and in the referenced 
documents, NMFS has determined the following: (1) The required 
mitigation measures will effect the least practicable impact on marine 
mammal species or stocks and their habitat; (2) the authorized takes 
will have a negligible impact on the affected marine mammal species or 
stocks; (3) the authorized takes represent small numbers of marine 
mammals relative to the affected stock abundances; (4) the Society's 
activities will not have an unmitigable adverse impact on taking for 
subsistence purposes as no relevant subsistence uses of marine mammals 
are implicated by this action; and (5) appropriate monitoring and 
reporting requirements are included.

Endangered Species Act

    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 proposed 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.

Proposed Renewal and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue a renewal IHA to the Society for conducting lighthouse 
restoration, maintenance, and public tour operations at NWSR once per 
month, from November through April, provided the previously described 
mitigation, monitoring, and reporting requirements are incorporated. A 
draft of the proposed renewal can be found at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-research-and-other-activities. We request comment 
on our analyses, the proposed renewal, and any other aspect of this 
Notice for the proposed lighthouse restoration, maintenance, and public 
tours. Please include with your comments any supporting data or 
literature citations to help inform our final decision on the request 
for MMPA authorization.

    Dated: March 1, 2019.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2019-04075 Filed 3-6-19; 8:45 am]
 BILLING CODE 3510-22-P