[Federal Register Volume 84, Number 45 (Thursday, March 7, 2019)]
[Notices]
[Pages 8316-8319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-04077]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG817


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

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

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

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SUMMARY: NMFS received a request from the Partnership for 
Interdisciplinary Study of Coastal Oceans (PISCO) at the University of 
California Santa Cruz (UCSC) for the Renewal of their currently active 
incidental harassment authorization (IHA) to take marine mammals 
incidental to rocky intertidal monitoring surveys along the coasts of 
Oregon and California. These activities are nearly 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/node/23111 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: Rob Pauline, 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/permit/incidental-take-authorizations-under-marine-mammal-protection-act. 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, a 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.
    50 CFR 216.107(e) of NMFS' regulations implementing the MMPA 
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, 
provided all of the following conditions are met:
     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.
    (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 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.

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    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 IHA) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs 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 March 8, 2018, NMFS issued an IHA to PISCO to take marine 
mammals incidental to rocky intertidal monitoring surveys at multiple 
locations on the coasts of Oregon and California (83 FR 11696; March 
16, 2018), effective from March 12, 2018 through March 11, 2019. This 
multiyear annual survey involves surveying rocky intertidal zones in a 
number of coastal locations in Oregon and California. NMFS has 
previously issued five IHAs for this ongoing survey project (77 FR 
72327, December 5, 2012; 78 FR 79403, December 30, 2013; 79 FR 73048, 
December 9, 2014; 81 FR 7319, February 2, 2016; 82 FR 12568, March 6, 
2017). On January 8, 2019, NMFS received an application for a Renewal 
of that 2018 IHA (referred to as the initial IHA henceforth). As 
described in the application for Renewal, the activities for which 
incidental take is requested are nearly identical to those covered in 
the initial IHA. 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

    PISCO proposes to continue rocky intertidal monitoring work that 
has been ongoing for 20 years. PISCO focuses on understanding the 
nearshore ecosystems of the U.S. west coast through a number of 
interdisciplinary collaborations. The program integrates long-term 
monitoring of ecological and oceanographic processes at 154 separate 
sites with experimental work in the lab and field. Research is 
conducted throughout the year along the California and Oregon coasts 
and will continue as long as funding is available. The research being 
conducted under the Renewal would be nearly identical to that analyzed 
under the initial IHA (one new site added, but no take of marine 
mammals anticipated), and the anticipated impacts are identical. 
Researchers accessing and conducting research activities on the sites 
may occasionally cause behavioral disturbance (or Level B harassment) 
of three pinniped species at 16 of the sites (described in PISCOs 
application for the 2018 IHA). PISCO's request is for take of 
California sea lions (Zalophus californianus), harbor seals (Phoca 
vitulina richardii), and northern elephant seals (Mirounga 
angustirostris). PISCO expects that the disturbance to pinnipeds from 
the research activities will be minimal and will be limited to Level B 
harassment, as described in the documents associated with the initial 
IHA.

Detailed Description of the Activity

    A detailed description of rocky intertidal monitoring survey 
activities for which take is authorized here may be found in the 
Notices of the Proposed and Final IHA for the initial IHA. Overall, the 
specified geographic region, the amount of activity, and the nature of 
the activities are identical to those described in previous notices. 
The frequency of visits and total visits to a particular site may vary 
across years, and within an annual plan once submitted, but the 
description of the action and the marine mammal analysis included in 
the 2018 IHA were designed to capture such variations. As noted above, 
154 sites are visited and surveyed as part of the research, although 
take of marine mammals does not occur at every site. A few sites are 
visited monthly, while many sites are surveyed between 1 and 4 times 
annually. In 2018, a new site that had never been surveyed previously 
(Waddell) was added to the site inventory as part of a study examining 
ecosystem level effects of sea star wasting syndrome (SSWS). There are 
also six additional biodiversity sites (i.e., Ecola, Roads End, Otter 
Rock, Seal Rock, Graduation Point and North Head) that were not visited 
or analyzed as part of the initial IHA. 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 areas of the activity 
for which authorization of take is proposed may be found in the Notice 
of the Proposed IHA (83 FR 3308; February 23, 2018) for the initial 
authorization. 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 neither this nor any other new information affects 
which species or stocks have the potential to be affected or the 
pertinent information in the Description of the 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 may be found in the Notice of the Proposed IHA (83 FR 3308; 
February 23, 2018) for the initial authorization. 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 (83 FR 3308; February 23, 2018) and Final IHA 
(83 FR 11696; March 16, 2018) for the initial authorization. As part of 
the initial IHA, PISCO had estimated that Level B harassment of marine 
mammals was

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likely to occur at 16 sites (see 2018 application), conservatively 
based on the predicted number of visits to the sites and historical 
observational data (using maximum observations). These same 16 sites 
would be surveyed under the proposed Renewal. PISCO is requesting and 
NMFS is proposing to authorize the same level of take for the 16 sites 
as was authorized under the initial IHA.
    PISCO provided a preliminary draft marine mammal monitoring report 
covering March 12, 2018 through December 31, 2018 and recorded take by 
Level B harassment of 87 harbor seals and 1 California sea lion. No 
northern elephant seal takes were reported. This is well below the 
total take numbers authorized by NMFS in 2018 (255 harbor seal, 90 
California sea lion, and 50 northern elephant seal). The draft 
monitoring report indicated that take by Level B harassment was 
recorded at eight sites in 2018 (of 64 sites visited and 5 of the 16 
sites at which take was expected). At one site (Government Point), 20 
more harbor seals were taken than were predicted at that site, however, 
at other sites fewer marine mammals were taken than predicted. 
Variation in predicted marine mammal presence is expected across sites, 
and, further, as described in the 2018 application and IHA notices, the 
number of predicted visits to a particular site may also vary. However, 
the conservative take estimate methodology is expected to continue to 
ensure that the total authorized take and effect analysis remains 
appropriate.
    There is one new site, Waddell, which was not addressed in the 
initial IHA, since PISCO had not secured funding for the SSWS study 
when the initial authorization was issued. PISCO did, however, monitor 
and record observations during 10 visits to Waddell between March and 
December 2018 after funding had been secured and recorded one harbor 
seal. Seals are known to be rare at the Waddell site, and with only a 
single observation over a ten month period at this location, PISCO and 
NMFS do not believe that take is likely. Therefore, we are not 
proposing to increase the total numbers of authorized take for harbor 
seals. There are also six biodiversity sites which would be visited in 
2019 that were not visited or analyzed as part of the initial IHA. 
However, based on historical monitoring records the presence of marine 
mammals is unlikely and take is not proposed at any of these sites.
    Accordingly, NMFS proposes to authorize take by Level B harassment 
at the same levels that were authorized under the initial IHA as shown 
in Table 1 below.

         Table 1--Authorized Take Numbers by Level B Harassment
 
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                                                            Authorized
                         Species                               take
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Harbor seal.............................................             255
California sea lion.....................................              90
Northern elephant seal..................................              50
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Description of Proposed 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 proposed 
issuance of the initial IHA. Additionally, the discussion of the least 
practicable adverse impact included in that document and the Notice of 
issuance of the IHA remains accurate. The following measures, which are 
identical to those in the initial IHA, are proposed here for the 
Renewal:
     Researchers shall observe a site from a distance, using 
binoculars if necessary, to detect any marine mammals prior to approach 
to determine if mitigation is required;
     Researchers shall approach a site with caution (slowly and 
quietly), keep bodies low to the ground and avoid pinnipeds along 
access ways to sites, by locating and taking a different access way if 
possible;
     Researchers shall keep a safe distance from and not 
approach any marine mammal while conducting research, unless it is 
absolutely necessary to flush a marine mammal in order to continue 
conducting research (i.e., if a site cannot be accessed or sampled due 
to the presence of pinnipeds);
     Researchers shall monitor the offshore area for predators 
(such as killer whales and white sharks) and avoid flushing of 
pinnipeds when predators are observed in nearshore waters;
     Intentional flushing shall be avoided if pups are present. 
Staff shall reschedule work at sites where pups are present, unless 
other means of accomplishing the work can be done without causing 
disturbance to mothers and dependent pups;
     Any site where Steller sea lions, northern fur seals, or 
Guadalupe fur seals are present shall not be approached and shall be 
sampled at a later date;
     Personnel shall vacate the study area as soon as sampling 
of the site is completed;
     Detailed monitoring information will include species 
counts, number of disturbances, description of disturbance behaviors, 
and information regarding physical and biological conditions at a given 
site;
     Submit a draft monitoring report to NMFS Office of 
Protected Resources within 60 days after the conclusion of the 2018-
2019 field season or 60 days prior to the start of the next field 
season if a new IHA will be requested; and
     Reporting injured or dead marine mammals to appropriate 
authorities.

Public Comments

    As noted previously, NMFS published a notice of a proposed IHA (83 
FR 3308; February 23, 2018) and solicited public comments on both our 
proposal to issue the initial IHA for rocky intertidal monitoring 
surveys 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 2018 IHA (83 FR 11696; March 16, 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 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 
section 101(a)(5)(D) of the MMPA.
    Response: The notice of the proposed initial 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

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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

    In the context of the activities that will result in take of marine 
mammals, the rocky intertidal monitoring surveys planned by PISCO for 
2019 are nearly identical to those conducted under the initial IHA in 
2018. A new SSWS and six biodiversity sites would be visited under the 
proposed Renewal that were not analyzed for the initial IHA, but no 
takes are anticipated or requested for these locations. These 
activities could result in Level B harassment consisting of temporary, 
short-term behavioral disturbance. In analyzing the effects of the 
activities in the initial IHA, and in consideration of the 
implementation of the required mitigation, NMFS determined that the 
total marine mammal take from PISCO's rocky intertidal monitoring 
program would not adversely affect annual rates of recruitment or 
survival and, therefore, would have a negligible impact on the affected 
species or stocks. NMFS also concluded that the numbers of animals 
authorized for take could be considered small relative to the relevant 
species or stocks (0.65-0.82 percent for harbor seals, and <0.01 
percent for California sea lions and northern elephant seals). As 
discussed above, the same amount of take is proposed for authorization 
under this Renewal.
    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) PISCO'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 ESA Interagency 
Cooperation Division whenever we 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.

Proposed Renewal and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to PISCO for conducting rocky intertidal monitoring 
surveys off the coasts of Oregon and California for a period of one 
year, provided the previously described mitigation, monitoring, and 
reporting requirements are incorporated. A draft of the proposed IHA 
can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. We request comment 
on our analyses, the proposed Renewal, and any other aspect of this 
Notice. 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. 2019-04077 Filed 3-6-19; 8:45 am]
 BILLING CODE 3510-22-P