[Federal Register Volume 85, Number 10 (Wednesday, January 15, 2020)]
[Proposed Rules]
[Pages 2369-2382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00394]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 200106-0004]
RIN 0648-BJ37


Take 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: Proposed rule; request for comments.

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SUMMARY: NMFS has received a request from University of California 
Santa Cruz's Partnership for Interdisciplinary Studies of Coastal 
Oceans (UCSC/PISCO) for authorization to take marine mammals incidental 
to rocky intertidal monitoring surveys along the Oregon and California 
coasts. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is 
proposing regulations to govern that take, and requests comments on the 
proposed regulations. NMFS will consider public comments prior to 
making any final decision on the issuance of the requested MMPA 
authorization and agency responses will be summarized in the final 
notice of our decision.

DATES: Comments and information must be received no later than February 
14, 2020.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2020-0002, by any of the following methods:
     Electronic submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2020-0002, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East West Highway, Silver 
Spring, MD 20910.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address), confidential business information, 
or otherwise sensitive information submitted voluntarily by the sender 
will be publicly accessible. NMFS will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous). 
Attachments to electronic comments will be accepted in Microsoft Word, 
Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Dwayne Meadows, Ph.D., Office of 
Protected Resources, NMFS, (301) 427-8401. Electronic copies of the 
application 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/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION: 

Availability

    A copy of UCSC/PISCO's application and any supporting documents, as 
well as a list of the references cited in this document, may be 
obtained online at: www.nmfs.noaa.gov/pr/permits/incidental/research.htm. In case of problems accessing these documents, please 
call the contact listed above (see FOR FURTHER INFORMATION CONTACT).

Purpose and Need for Regulatory Action

    This proposed rule would establish a framework under the authority 
of the MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of 
take of marine

[[Page 2370]]

mammals incidental to the UCSC/PISCO's rocky intertidal research 
activities in Oregon and California.
    We received an application from the UCSC/PISCO requesting five-year 
regulations and authorization to take multiple species of marine 
mammals. Take would occur by Level B harassment incidental to visual 
disturbance of pinnipeds during research activities and use of research 
equipment. Please see ``Background'' below for definitions of 
harassment.

Legal Authority for the Proposed Action

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs 
the Secretary of Commerce to allow, upon request, the incidental, but 
not intentional taking of small numbers of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region for up to five years 
if, after notice and public comment, the agency makes certain findings 
and issues regulations that set forth permissible methods of taking 
pursuant to that activity and other means of effecting the ``least 
practicable adverse impact'' on the affected species or stocks and 
their habitat (see the discussion below in the Proposed Mitigation 
section), as well as monitoring and reporting requirements. Section 
101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR 
part 216, subpart I provide the legal basis for issuing this proposed 
rule containing five-year regulations, and for any subsequent Letters 
of Authorization (LOAs). As directed by this legal authority, this 
proposed rule contains mitigation, monitoring, and reporting 
requirements.

Summary of Major Provisions Within the Proposed Rule

    Following is a summary of the major provisions of this proposed 
rule regarding UCSC/PISCO's rocky intertidal research activities. These 
measures include:
     Required implementation of mitigation to minimize impact 
to pinnipeds and avoid disruption to dependent pups including several 
measures to approach haulouts cautiously to minimize disturbance, 
especially when pups are present.
     Required monitoring of the research areas to detect the 
presence of marine mammals before initiating surveys.

Background

    The 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, regulations are 
issued, and notice is provided to the public.
    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 the species or stocks for 
taking for certain subsistence uses (referred to, in shorthand, as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of the takings are set forth.
    The definitions of all applicable MMPA statutory terms cited above 
are included in the relevant sections below.

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 a proposed 
rule (and subsequent LOAs)) 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 (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 proposed rule 
qualifies to be categorically excluded from further NEPA review. We 
will review all comments submitted in response to this proposed rule 
prior to concluding our NEPA process or making a final decision on the 
request.

Summary of Request

    On August 12, 2019, NMFS received a request from UCSC/PISCO for a 
proposed rule and LOA to take marine mammals incidental to rocky 
intertidal monitoring surveys along the Oregon and California coasts. 
After a series of revisions, the application was deemed adequate and 
complete on October 8, 2019. UCSC/PISCO's request is for take of a 
small number of California sea lion (Zalophus californianus), Harbor 
seals (Phoca vitulina richardii), Northern elephant seals (Mirounga 
angustirostris), and Steller sea lions (Eumetopias jubatus), by Level B 
harassment only. Neither UCSC/PISCO nor NMFS expects serious injury or 
mortality, or Level A harassment, to result from this activity.
    NMFS previously issued seven IHAs to UCSC/PISCO for this work (77 
FR 72327, December 5, 2012; 78 FR 79403, December 30, 2013; 79 FR 
73048, December 9, 2014; 81 FR 7319, February 11, 2016; 82 FR 12568, 
March 6, 2017; 83 FR 11696, March 16, 2018; 84 FR 17784, April 26, 
2019). UCSC/PISCO 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 Potential 
Effects of the Specified Activity on Marine Mammals and their Habitat 
and Estimated Take sections.

Description of Proposed Activity

Overview

    UCSC/PISCO proposes to continue rocky intertidal monitoring work 
that has been ongoing for over 20 years. UCSC/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 
dozens of sites with experimental work in the lab and field. Research 
is conducted throughout the year along the California and Oregon coasts 
and will continue indefinitely. Researchers accessing and conducting 
research activities on the sites may occasionally cause behavioral 
disturbance (or Level B harassment) of four pinniped species. UCSC/
PISCO expects that the disturbance to pinnipeds from the research 
activities will be minimal and will be limited to Level B harassment.

Dates and Duration

    UCSC/PISCO's research is conducted throughout the year. Most sites 
are sampled one to two times per year over a 1 to 2-day period (4-6 
hours per site) during a negative low tide series (when

[[Page 2371]]

tides are lower than the average). Due to the large number of research 
sites, scheduling constraints, the necessity for negative low tides and 
favorable weather/ocean conditions, exact survey dates are variable and 
difficult to predict. Some sampling may occur in all months of the 
calendar year. Over the course of this five-year authorization UCSC/
PISCO expects approximately 300 days of survey effort. UCSC/PISCO's 
current IHA expires April 11, 2020, so these regulations are requested 
to be effective April 12, 2020 through April 11, 2025.

Specific Geographic Region

    Sampling sites occur along the California and Oregon coasts. 
Community Structure Monitoring survey sites range from Ecola State Park 
near Cannon Beach, Oregon to Government Point located northwest of 
Santa Barbara, California. Biodiversity survey sites extend from Ecola 
State Park south to Cabrillo National Monument in San Diego County, 
California. Exact locations of sampling sites can be found in Table 1 
and the maps of UCSC/PISCO's application.

Detailed Description of Specific Activity

    Community Structure Monitoring surveys involve the use of permanent 
photoplot quadrats, which target specific algal and invertebrate 
assemblages (e.g. mussels, rockweeds, barnacles). Each photoplot is 
photographed and scored for percent cover. The Community Structure 
Monitoring approach is based largely on surveys that quantify the 
percent cover and distribution of algae and invertebrates that 
constitute these communities. This approach allows researchers to 
quantify both the patterns of abundance of targeted species, as well as 
characterize changes in the communities in which they reside. Such 
information provides managers with insight into the causes and 
consequences of changes in species abundance. There are a total of 48 
Community Structure Monitoring sites, each of which will be visited one 
to two times per year (see Table 1 of the application for specifics for 
each site) under the proposed regulations and LOA and surveyed over a 
1-day period during a low tide series.
    Biodiversity Surveys are part of a long-term monitoring project and 
are conducted every 3-5 years across 143 established sites. These 
Biodiversity Surveys involve point contact identification along 
permanent transects, mobile invertebrate quadrat counts, sea star band 
counts, and tidal height topographic measurements. Many of the 
Biodiversity Survey sites are also Community Structure sites. 
Biodiversity survey sites will be sampled zero to five times during the 
course of these regulations and LOA (see Tables 3-6 in the application 
for details of expected survey frequency).
    The intertidal zones where UCSC/PISCO conducts intertidal 
monitoring are also areas where pinnipeds can be found hauled out 
(temporarily leaving the water) on the shore at or adjacent to some 
research sites. Pinnipeds have been recorded at 63 of the survey sites. 
Accessing portions of the intertidal habitat at these locations may 
cause incidental Level B (behavioral) harassment of pinnipeds through 
some unavoidable approaches if pinnipeds are hauled out directly in the 
study plots or while biologists walk from one location to another or 
during occasions when they replace survey marker bolts using a hand 
drill. No motorized equipment is involved in conducting these surveys.
    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see Proposed 
Mitigation and Proposed Monitoring and Reporting).

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS's 
website (https://www.fisheries.noaa.gov/find-species).
    Table 1 lists all species with expected potential for occurrence at 
survey sites in California and Oregon and summarizes information 
related to the population or stock, including regulatory status under 
the MMPA and Endangered Species Act (ESA) and potential biological 
removal (PBR), where known. For taxonomy, we follow Committee on 
Taxonomy (2018). PBR is defined by the MMPA as the maximum number of 
animals, not including natural mortalities, that may be removed from a 
marine mammal stock while allowing that stock to reach or maintain its 
optimum sustainable population (as described in NMFS's SARs). While no 
mortality is anticipated or authorized here, PBR and annual serious 
injury and mortality from anthropogenic sources are included here as 
gross indicators of the status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's U.S. 2018 Pacific Marine Mammal SARs (Carretta et al. 2019). All 
values presented in Table 1 are the most recent available at the time 
of publication and are available in the 2018 SARs (available online at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

                                     Table 1--Marine Mammals Potentially Present in the Vicinity of the Study Areas
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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
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Family Otariidae (eared seals and sea lions):
    California sea lion.............  Zalophus californianus.  U.S....................  -; N                257,606 (n/a; 233,515;     14,011       >320
                                                                                                             2014).
    Steller sea lion................  Eumetopias jubatus.....  Eastern U.S............  -; N                41,638 (n/a; 41,638;        2,498        108
                                                                                                             2015).
Family Phocidae (earless seals):

[[Page 2372]]

 
    Harbor seal.....................  Phoca vitulina           California/Oregon/       -; N                30,968 (0.157; 27,348;      1,641         43
                                       richardii.               Washington.                                  2012 [CA])/.
                                                                                                            UNK (n/a; n/a [OR/
                                                                                                             WA]\4\.
    Northern elephant seal..........  Mirounga angustirostris  California.............  -; N                179,000 (n/a; 81,368;       4,882        8.8
                                                                                                             2010).
--------------------------------------------------------------------------------------------------------------------------------------------------------
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: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments assessments. 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 plus serious injury 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.
4--The most recent abundance estimate is >8 years old, there is no current estimate of abundance available for this stock.

    All species that could potentially occur in the proposed survey 
areas are included in Table 1. As described below, all four species 
temporally and spatially co-occur with the activity to the degree that 
take is reasonably likely to occur, and we have proposed authorizing 
it.
    In addition, the southern sea otter may be found from San Francisco 
south to the Channel Islands. However, they are managed by the U.S. 
Fish and Wildlife Service and are not considered further in this 
document.

California Sea Lions

    California sea lions (Zalophus californianus) are distributed along 
the west coast of North America from British Columbia to Baja 
California and throughout the Gulf of California. Breeding occurs on 
offshore islands along the west coast of Baja California and the Gulf 
of California as well as on the California Channel Islands. There are 
three recognized California sea lion stocks (U.S. stock, Western Baja 
stock, and the Gulf of California stock) with the U.S. stock ranging 
from the U.S./Mexico border into Canada. Although there is some 
movement between stocks, U.S. rookeries are considered to be isolated 
from rookeries off of Baja California (Barlow et al. 1995).
    California sea lions were hunted for several thousand years by 
indigenous peoples and early hunters. In the early 1900s, sea lions 
were killed in an effort to reduce competition with commercial 
fisheries. They were also hunted commercially from the 1920-1940s. 
Following the passage of the MMPA in 1972, as well as limits on killing 
and harassment in Mexico, the population has rapidly increased (Reeves 
et al. 2002). Declines in pup production did occur during the 1983-84, 
1992-93, 1997-98, and 2003 El Ni[ntilde]o events, but production 
returned to pre- El Ni[ntilde]o levels within 2-5 years (Carretta et 
al. 2016). In 2013, NOAA declared an Unusual Mortality Event (UME) due 
to the elevated number of sea lion pup strandings in southern 
California. The cause of this event is thought to be nutritional stress 
related to declines in prey availability. This UME is on-going. They 
have been observed in the project vicinity at 28 of the research sites 
(see application Table 4).

Steller Sea Lion

    Steller sea lions (Eumetopias jubatus) range along the North 
Pacific Rim from northern Japan to California, with centers of 
abundance and distribution in the Gulf of Alaska and Aleutian Islands. 
Large numbers of individuals widely disperse when not breeding (late 
May to early July) to access seasonally important prey resources (Muto 
et al. 2019). In 1997 NMFS identified two distinct population segments 
(DPSs) of Steller sea lions under the ESA: A Western DPS and an Eastern 
DPS (62 FR 24345, May 5, 1997). The Eastern DPS is not ESA listed, the 
Western DPS is. For MMPA purposes the Eastern DPS is called the Eastern 
U.S. stock and the Western DPS is called the Western U.S. stock. The 
Steller sea lions along the Oregon and California coasts are part of 
the Eastern Stock (and DPS). Steller sea lions are rare in the research 
areas. They have only been observed in the project vicinity at Cape 
Arago in 2009 and have not been observed during this research project 
since then.

Northern Elephant Seal

    Northern elephant seals (Mirounga angustirostris) range widely 
throughout the eastern Pacific for most of the year to forage. They 
return to haulout locations along the west coast of the continental 
United States including the Channel Islands, the central California 
coast, and islands off Baja California, to breed and molt. Breeding 
occurs from December through early spring, with males returning to 
haul-out locations earlier than females to establish dominance 
hierarchies. Molting occurs from late April to August, with juveniles 
and adult females returning earlier than adult males (Reeves et al. 
2002). Due to very little movement between colonies in Mexico and those 
in California, the California population is considered to be a separate 
stock (Carretta et al. 2019).
    This species was hunted by indigenous peoples for several thousand 
years and by commercial sealers in the 1800s. By the late 1800s, the 
species was thought to be extinct, although several were seen on 
Guadalupe Island in the 1880s and a few dozen to several hundred 
survived off of Mexico (Stewart et al. 1994). The population began 
increasing in the early 1900s and progressively colonized southern and 
central California through the 1980s (Reeves et al. 2002). The species 
abundance has grown at 3.8 percent annually since 1988 (Lowry et al. 
2014).
    They have been observed in the project vicinity at 13 of the 
research sites (see application Table 5).

Pacific Harbor Seal

    Pacific harbor seals (Phoca vitulina richardii) inhabit near-shore 
coastal and estuarine areas from Baja California, Mexico, to the 
Pribilof Islands in Alaska. They are divided into two subspecies: P. v. 
stejnegeri in the western North Pacific, near Japan, and P. v. 
richardii in the northeast Pacific Ocean. The latter subspecies, 
includes two MMPA stocks in the project area: The Oregon and Washington 
Coast stock in the outer coastal waters of Oregon and Washington 
states, and the California stock.
    In Oregon there are over 40 haulout sites (Brown et al. 2005) while 
in California, over 500 harbor seal haulout sites are widely 
distributed along the

[[Page 2373]]

mainland and offshore islands, and include rocky shores, beaches and 
intertidal sandbars (Lowry et al. 2005). Harbor seals mate at sea, and 
females give birth during the spring and summer, although, the pupping 
season varies with latitude. Pups are nursed for an average of 24 days 
and are ready to swim minutes after being born. Harbor seal pupping 
takes place at many locations, and rookery size varies from a few pups 
to many hundreds of pups. Pupping generally occurs between March and 
June, and molting occurs between May and July.
    A 1999 census of the Oregon/Washington harbor seal stock found 
16,165 individuals, of which 5,735 were in Oregon (Carretta et al. 
2016). The population was estimated to number 24,732 individuals in the 
Oregon/Washington stock (Carretta et al. 2016). However, the most 
recent abundance estimate for the Oregon/Washington stock is over 8 
years old, therefore the abundance estimate for this stock is 
considered unofficial. They have been observed in the project vicinity 
at 49 of the research sites (see application Table 3).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The Estimated Take section later in this document 
includes a quantitative analysis of the number of individuals that are 
expected to be taken by this activity. The Negligible Impact Analysis 
and Determination section considers the content of this section, the 
Estimated Take section, and the Proposed Mitigation section, to draw 
conclusions regarding the likely impacts of these activities on the 
reproductive success or survivorship of individuals and how those 
impacts on individuals are likely to impact marine mammal species or 
stocks.
    The appearance of researchers may have the potential to cause Level 
B behavioral harassment of any pinnipeds hauled out at sampling sites. 
Although marine mammals are never deliberately approached by survey 
personnel, approach may be unavoidable if pinnipeds are hauled out in 
the immediate vicinity of the permanent study plots. Disturbance may 
result in reactions ranging from an animal simply becoming alert to the 
presence of researchers (e.g., turning the head, assuming a more 
upright posture) to flushing from the haulout site into the water. NMFS 
does not consider the lesser reactions to constitute behavioral 
harassment, or Level B harassment takes, but rather assumes that 
pinnipeds that flee some distance or change the speed or direction of 
their movement in response to the presence of researchers are 
behaviorally harassed, and thus subject to Level B taking (see below). 
Animals that respond to the presence of researchers by becoming alert, 
but do not move or change the nature of locomotion as described, are 
not considered to have been subject to behavioral harassment.
    Numerous studies have shown that human activity can flush harbor 
seals off haulout sites (Allen et al. 1985; Suryan and Harvey 1999). 
The Hawaiian monk seal (Neomonachus schauinslandi) has been shown to 
avoid beaches that have been disturbed often by humans (Kenyon 1972). 
Moreover, in one case, human disturbance appeared to cause Steller sea 
lions to desert a breeding area at Northeast Point on St. Paul Island, 
Alaska (Kenyon 1962).
    There are three ways in which disturbance, as described previously, 
could result in more than Level B harassment of marine mammals. All 
three are most likely to be consequences of stampeding, a potentially 
dangerous occurrence in which large numbers of animals succumb to mass 
panic and rush away from a stimulus. The three situations are: (1) 
Falling when entering the water at high-relief locations; (2) extended 
separation of mothers and pups; and (3) crushing of elephant seal pups 
by large males during a stampede. UCSC/PISCO researchers have only 
recorded one instance of stampeding, which occurred in 2013.
    Because hauled out animals may move towards the water when 
disturbed, there is the risk of injury if animals stampede towards 
shorelines with precipitous relief (e.g., cliffs). Shoreline habitats 
near the survey areas tend to consist of steeply sloping rocks with 
unimpeded and non-obstructed access to the water. Disturbed, hauled out 
animals in these situations are likely to move toward the water slowly 
without risk of unexpectedly falling off cliffs or encountering 
barriers or hazards or that would otherwise prevent them from leaving 
the area. Therefore, research activity poses no risk that disturbed 
animals may fall and be injured or killed as a result of disturbance at 
high-relief locations and thus there is no risk that these disturbances 
will result in Level A harassment or mortality/serious injury.
    Few pups are anticipated to be encountered during the proposed 
monitoring surveys. A small number of harbor seal, northern elephant 
seal and California sea lion pups, however, have been observed during 
past years. Though elephant seal pups are occasionally present when 
researchers visit survey sites, risk of pup mortalities is very low 
because elephant seals are far less reactive to researcher presence 
than the other two species. Harbor seals are very precocious with only 
a short period of time in which separation of a mother from a pup could 
occur. Pups are also typically found on sand beaches, while study sites 
are located in the rocky intertidal zone, meaning that there is 
typically a buffer between researchers and pups. Finally, the caution 
used by researchers in approaching sites generally precludes the 
possibility of behaviors, such as stampeding, that could result in 
extended separation of mothers and dependent pups, or trampling of 
pups.
    The only habitat modification associated with the proposed activity 
is the placement of permanent bolts and temporary sampling equipment in 
the intertidal zone. The installation of bolts and sampling equipment 
is conducted under the appropriate permits (National Marine Sanctuary, 
California State Parks). Once a particular study has ended, the 
respective sampling equipment is removed; the bolts remain. No trash or 
field gear is left at a site. Sampling activities are also not expected 
to result in any long-term modifications of haulout use or abandonment 
of haulouts since these sites are only visited one to two times per 
year, which minimizes repeated disturbances. During periods of low tide 
(e.g., when tides are 0.6 m (2 ft) or less and low enough for pinnipeds 
to haulout), we would expect the pinnipeds to return to the haulout 
site within 60 minutes of the disturbance (Allen et al. 1985). The 
effects to pinnipeds appear at most to displace the animals temporarily 
from their haulout sites, and we do not expect, and have not observed 
during previous authorizations, that the pinnipeds would permanently 
abandon a haulout site during the conduct of rocky intertidal surveys. 
Additionally, impacts to prey species from survey activities are not 
anticipated. Thus, the proposed activity is not expected to have any 
habitat-related effects that could cause significant or long-term 
consequences for individual marine mammals or their populations.

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization through this IHA, which will inform both 
NMFS' consideration of ``small numbers'' and the negligible impact 
determination.

[[Page 2374]]

    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 would be by Level B harassment only, in the form 
of disruption of behavioral patterns for individual marine mammals 
resulting from exposure to researchers. Based on the nature of the 
activity, Level A harassment is neither anticipated nor proposed to be 
authorized. As described previously, no mortality is anticipated or 
proposed to be authorized for this activity. 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. Take estimates are based on historical marine mammal 
observations from 2013-2018 at each site from previous UCSC/PISCO 
survey activities. Marine mammal observations are done as part of 
research site observations, which include notes on physical and 
biological conditions at the site, completed on each study day. From 
2013-2018 observations were categorized on a four point scale:

     0 = observation by researchers from a distance, no 
reaction by pinniped
     1 = pinniped reacted to presence of researchers with 
movement <1 meter
     2 = pinniped reacted to presence of researchers with short 
movement of 1-3 meters
     3 = pinniped flushed to the water or moved >3 meters in 
retreat

    A marine mammal is counted as an ``encounter'' (at least level 0 on 
the above scale) if it is seen on access ways to the site, at the site, 
or immediately up-coast or down-coast of the site, regardless of 
whether that animal was considered a ``take'' under the MMPA. Marine 
mammals in the water immediately offshore are also recorded. Under the 
above scale, ``take'' was only considered to be level 2 or 3 
observations from the above scale. The maximum number of marine 
mammals, by species, seen at any given time throughout the sampling day 
(categories 0 through 4) is recorded at the conclusion of sampling. Any 
other relevant information, including the location of a marine mammal 
relevant to the site, any unusual behavior, and the presence of pups is 
also noted.

Take Calculation and Estimation

    The observations described above formed the basis from which 
researchers with extensive knowledge and experience at each site 
estimated the actual number of marine mammals that may be subject to 
take. Take estimates for each species for which take would be 
authorized were based on the following equation:

Take estimate per survey site = number of expected animals per site * 
number of planned survey events per survey site

    For take estimates, UCSC/PISCO summed the total number of marine 
mammals, by species, ``encountered'' at each research site during the 
period from 2013 to 2018 (i.e., all observations score 0 to 4 on the 
above scale). We then summed the number of sampling events where marine 
mammals were encountered at each site and calculated the average number 
of encounters per event (see Tables 2-5). These are the ``number of 
expected animals per site'' for the equation above. Note the number of 
these historical encounters that qualified as Level B take was less 
than 40 percent of all encounters (see application Section 6), so take 
estimates are expected to be conservative and consider potential 
temporal variation. The maximum number of planned survey events per 
survey site is listed in Tables 2-5. For Steller sea lions the one 
sighting from 2009 was used in this analysis. The take estimate by 
species per survey site calculation results can also be found in Tables 
2-5.

                    Table 2--Data and Calculations To Estimate Proposed Take of Harbor Seals
----------------------------------------------------------------------------------------------------------------
                                                                             Expected maximum
                          Site                            Encounters/event     # of survey      Calculated take
                                                                             events 2020-2024      2020-2024
----------------------------------------------------------------------------------------------------------------
Andrew Molera..........................................                  1                 10                 10
Boat House.............................................                  5                 10                 50
Bob Creek..............................................                  1                  5                  5
Bodega.................................................                  9                  5                 45
Cat Rock...............................................                  2                  1                  2
Cayucos................................................                  6                 10                 60
Del Mar Landing........................................                  5                  1                  5
Eel Point..............................................                  1                  2                  2
Enderts................................................                  1                  5                  5
False Klamath Cove.....................................                  1                  5                  5
Fitzgerald Marine Reserve..............................                 46                  1                 46
Fogarty Creek..........................................                  8                  5                 40
Franklin Point.........................................                  6                  5                 30
Government Point.......................................                 38                 10                380
Hopkins................................................                 14                 10                140
Horseshoe Cove.........................................                  6                  1                  6
Kibesillah Hill........................................                  8                  5                 40
Launcher Beach.........................................                 10                  1                 10
MacKerricher...........................................                  2                  1                  2
Mal Coombs.............................................                  5                  1                  5
Mill Creek.............................................                  1                 10                 10
Occulto................................................                  3                 10                 30
Old Home Beach.........................................                 10                  1                 10
Partington Cove........................................                  2                 10                 20

[[Page 2375]]

 
Pebble Beach...........................................                 16                  5                 80
Piedras Blancas........................................                  3                 10                 30
Point Arena............................................                  2                  1                  2
Point Lobos............................................                  1                 10                 10
Point Pinos............................................                  7                  5                 35
Point Sierra Nevada....................................                  1                 10                 10
Sandhill Bluff.........................................                  1                 10                 10
Scott Creek............................................                  1                 10                 10
Sea Ranch..............................................                  2                  5                 10
Sea Ridge..............................................                 10                  1                 10
Shell Beach............................................                  1                 10                 10
Shelter Cove...........................................                  4                  5                 20
Soberanes..............................................                  2                 10                 20
Stillwater.............................................                  9                 10                 90
Stornetta..............................................                  3                  5                 15
Terrace Point..........................................                  1                 10                 10
Treasure Island........................................                  6                  1                  6
Vista del Mar..........................................                 12                 10                120
Waddell................................................                  1                 10                 10
                                                        --------------------------------------------------------
    Total..............................................                N/A                264               1466
----------------------------------------------------------------------------------------------------------------


                Table 3--Data and Calculations To Estimate Proposed Take of California Sea Lions
----------------------------------------------------------------------------------------------------------------
                                                                             Expected maximum
                          Site                            Encounters/event     # of survey      Calculated take
                                                                             events 2020-2024      2020-2024
----------------------------------------------------------------------------------------------------------------
Bodega.................................................                  3                  5                 15
Cape Arago.............................................                 21                  5                105
Crook Point............................................                  3                  1                  3
Cuyler Harbor..........................................                  1                  1                  1
Del Mar Landing........................................                  1                  1                  1
Eel Point..............................................                  2                  2                  4
Enderts................................................                  3                  5                 15
False Klamath Cove.....................................                  2                  5                 10
Franklin Point.........................................                  2                  5                 10
Government Point.......................................                 11                 10                110
Kibesillah Hill........................................                  2                  5                 10
Old Stairs.............................................                  2                  1                  2
Piedras Blancas........................................                 25                 10                250
Point Lobos............................................                  1                 10                 10
Point Pinos............................................                  1                  5                  5
Point Sierra Nevada....................................                  1                 10                 10
Purisma................................................                  1                  5                  5
Shell Beach............................................                  1                 10                 10
Soberanes..............................................                  3                 10                 30
Stairs.................................................                  1                 10                 10
Stornetta..............................................                  2                  5                 10
Terrace Point..........................................                  1                 10                 10
                                                        --------------------------------------------------------
    Total..............................................                N/A                131                636
----------------------------------------------------------------------------------------------------------------


                   Table 4--Data and Calculations To Estimate Proposed Take of Elephant Seals
----------------------------------------------------------------------------------------------------------------
                                                                             Expected maximum
                          Site                            Encounters/event     # of survey      Calculated take
                                                                             events 2020-2024      2020-2024
----------------------------------------------------------------------------------------------------------------
Ano Nuevo..............................................                  5                  1                  5
Chimney Rock...........................................                  3                  4                 12
Crook Point............................................                  2                  1                  2
Cuyler Harbor..........................................                  2                  1                  2
Government Point.......................................                  3                 10                 30
Harmony Headlands......................................                  1                  5                  5
Mill Creek.............................................                  1                 10                 10

[[Page 2376]]

 
Piedras Blancas........................................                  8                 10                 80
Point Sierra Nevada....................................                  1                 10                 10
                                                        --------------------------------------------------------
    Total..............................................                N/A                 50                156
----------------------------------------------------------------------------------------------------------------


                  Table 5--Data and Calculations To Estimate Proposed Take of Steller Sea Lions
----------------------------------------------------------------------------------------------------------------
                                                                             Expected maximum
                          Site                            Encounters/event     # of survey      Calculated take
                                                                             events 2020-2024      2020-2024
----------------------------------------------------------------------------------------------------------------
Cape Arago.............................................                  5                  5                 25
                                                        --------------------------------------------------------
    Total..............................................                N/A                  5                 25
----------------------------------------------------------------------------------------------------------------

    Individual species' totals for each survey site were summed to 
arrive at a total estimated take number for the entire project. This is 
the take that is proposed to be authorized here (Table 6).

   Table 6--Proposed Authorized Level B Take and Percent of MMPA Stock
                          Proposed To Be Taken
------------------------------------------------------------------------
                                          Proposed authorized take
                                   -------------------------------------
              Species                                      Percent of
                                         Level B           population
------------------------------------------------------------------------
Harbor Seal.......................               1466                2.6
California sea lion...............                636               0.25
Northern elephant seal............                156               0.09
Steller Sea Lion..................                 25               0.06
------------------------------------------------------------------------

Proposed Mitigation

    In order to issue regulations and an LOA under Section 101(a)(5)(A) 
of the MMPA, NMFS must set forth the permissible methods of taking 
pursuant to the activity, and other means of effecting the least 
practicable impact on the species or stock and its habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the 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 the 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 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 and impact on 
operations.
    UCSC/PISCO will implement several mitigation measures to reduce 
potential take by Level B (behavioral disturbance) harassment. Measures 
are listed below.
     Researchers will observe a site from a distance for at 
least five minutes, using binoculars if necessary, to detect any marine 
mammals prior to approach to determine if mitigation is required (i.e., 
site surveys will not be conducted if other pinnipeds are present, 
researchers will approach with caution, walking slowly, quietly, and 
close to the ground to avoid surprising any hauled out individuals and 
to reduce flushing/stampeding of individuals).
     Researchers will avoid pinnipeds along access ways to 
sites by locating and taking a different access way. Researchers will 
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 will avoid making loud noises (i.e., using 
hushed voices) and keep bodies low to the ground (crouched) in the 
visual presence of pinnipeds.
     Researchers will 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. Note that 
UCSC/PISCO has never observed an offshore predator while researchers 
were present at any of the survey sites.

[[Page 2377]]

     Intentional approach will not occur if dependent pups are 
present to avoid mother/pup separation and trampling of pups. 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.
     Researchers will promptly vacate sites at the conclusion 
of sampling.
    The primary method of mitigating the risk of disturbance to 
pinnipeds, which will be in use at all times, is the selection of 
judicious routes of approach to study sites, avoiding close contact 
with pinnipeds hauled out on shore, and the use of extreme caution upon 
approach. Each visit to a given study site will last for approximately 
4-6 hours, after which the site is vacated and can be re-occupied by 
any marine mammals that may have been disturbed by the presence of 
researchers. Also, by arriving before low tide, worker presence will 
tend to encourage pinnipeds to move to other areas for the day before 
they haul out and settle onto rocks at low tide.
    Based on our evaluation of the applicant's proposed measures, NMFS 
has preliminarily determined that the proposed 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.

Proposed Monitoring and Reporting

    In order to issue regulations and an LOA for an activity, Section 
101(a)(5)(A) 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 proposed action area. Effective reporting is critical 
both to compliance as well as ensuring that the most value is obtained 
from the required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
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).
     Mitigation and monitoring effectiveness.
    UCSC/PISCO will contribute to the knowledge of pinnipeds in 
California and Oregon by noting observations of: (1) Unusual behaviors, 
numbers, or distributions of pinnipeds, such that any potential follow-
up research can be conducted by the appropriate personnel; (2) tag-
bearing carcasses of pinnipeds, allowing transmittal of the information 
to appropriate agencies and personnel; and (3) rare or unusual species 
of marine mammals for agency follow-up.
    Proposed monitoring requirements in relation to UCSC/PISCO's rocky 
intertidal monitoring will include observations made by the applicant. 
Information recorded will include species counts (with numbers of pups/
juveniles) of animals present before approaching, numbers of observed 
disturbances (based on the scale below), and descriptions of the 
disturbance behaviors during the monitoring surveys, including 
location, date, and time of the event. For consistency, any reactions 
by pinnipeds to researchers will be recorded according to a three-point 
scale shown in Table 7. Note that only observations of disturbance 
Levels 2 and 3 should be recorded as takes.

           Table 7--Levels of Pinniped Behavioral Disturbance
------------------------------------------------------------------------
         Level            Type of response            Definition
------------------------------------------------------------------------
1......................  Alert.............  Seal head orientation or
                                              brief movement in response
                                              to disturbance, which may
                                              include turning head
                                              towards the disturbance,
                                              craning head and neck
                                              while holding the body
                                              rigid in a u-shaped
                                              position, changing from a
                                              lying to a sitting
                                              position, or brief
                                              movement of less than
                                              twice the animal's body
                                              length.
2......................  Movement..........  Movements away from the
                                              source of disturbance,
                                              ranging from short
                                              withdrawals at least twice
                                              the animal's body length
                                              to longer retreats over
                                              the beach, or if already
                                              moving a change of
                                              direction of greater than
                                              90 degrees.
3......................  Flush.............  All retreats (flushes) to
                                              the water.
------------------------------------------------------------------------

    In addition, observations regarding the number and species of any 
marine mammals observed, either in the water or hauled out, at or 
adjacent to a site, are recorded as part of field observations during 
research activities. Information regarding physical and biological 
conditions pertaining to a site, as well as the date and time that 
research was conducted are also noted. This information will be 
incorporated into a monitoring report for NMFS and raw data will be 
provided.
    If at any time the specified activity clearly causes the take of a 
marine mammal in a manner prohibited by these regulations or LOA, such 
as an injury (Level A harassment), serious injury, or mortality, UCSC/
PISCO shall immediately cease the specified activities and report the 
incident to the Office of Protected Resources, NMFS, and the West Coast 
Regional Stranding Coordinator, NMFS. The report must include the 
following information:
    (1) Time and date of the incident;
    (2) Description of the incident;
    (3) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    (4) Description of all marine mammal observations in the 24 hours 
preceding the incident;

[[Page 2378]]

    (5) Species identification or description of the animal(s) 
involved;
    (6) Fate of the animal(s); and
    (7) Photographs or video footage of the animal(s) (if equipment is 
available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with UCSC/PISCO to 
determine what measures are necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. UCSC/PISCO may not 
resume the activities until notified by NMFS via letter, email, or 
telephone.
    In the event that UCSC/PISCO discovers an injured or dead marine 
mammal and determines that the cause of the injury or death is unknown 
and the death is relatively recent (e.g., in less than a moderate state 
of decomposition), UCSC/PISCO shall immediately report the incident to 
the Office of Protected Resources, NMFS, and the West Coast Regional 
Stranding Coordinator, NMFS. The report must include the same 
information identified in the paragraph above. Activities may continue 
while NMFS reviews the circumstances of the incident. NMFS will work 
with UCSC/PISCO to determine whether additional mitigation measures or 
modifications to the activities are appropriate.
    In the event that an injured or dead marine mammal is discovered 
and it is determined that the injury or death is not associated with or 
related to the activities authorized in the regulations and LOA (e.g., 
previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), UCSC/PISCO shall report the 
incident to the Office of Protected Resources, NMFS, and the West Coast 
Regional Stranding Coordinator, NMFS, within 24 hours of the discovery. 
UCSC/PISCO shall provide photographs, video footage (if available) or 
other documentation of the stranded animal sighting to NMFS and the 
Marine Mammal Stranding Network. Activities may continue while NMFS 
reviews the circumstances of the incident.
    A draft annual report shall be submitted to NMFS Office of 
Protected Resources within 90 days after the conclusion of each annual 
field season. The final annual report after year five may be included 
as part of the final report (see below). The report will include a 
summary of the information gathered pursuant to the monitoring 
requirements set forth above and in the LOA. A final annual report 
shall be submitted to the Director of the NMFS Office of Protected 
Resources within 30 days after receiving comments from NMFS on the 
draft annual report. If no comments are received from NMFS, the draft 
annual report will be considered the final report.
    A draft final report shall be submitted to NMFS Office of Protected 
Resources within 60 days after the conclusion of the fifth year. A 
final report shall be submitted to the Director of the NMFS Office of 
Protected Resources and to the NMFS West Coast Regional Administrator 
within 30 days after receiving comments from NMFS on the draft final 
report. If no comments are received from NMFS, the draft final report 
will be considered the final report.

Monitoring Results From Previously Authorized Activities

    UCSC/PISCO complied with the mitigation and monitoring that were 
required under the prior IHAs issued from 2013 to 2019. In compliance 
with those IHAs, they submitted reports detailing the activities and 
marine mammal monitoring they conducted. The IHAs required UCSC/PISCO 
to conduct counts of pinnipeds present at study sites prior to 
approaching the sites and to record species counts and any observed 
reactions to the presence of the researchers. These monitoring results 
were discussed above in the Estimated Take section.
    Based on the results from the monitoring reports, we conclude that 
these results support our original findings that the mitigation 
measures set forth in the recent IHAs effected the least practicable 
impact on the species or stocks. There were no stampede events during 
these years and most disturbances were Level 1 and 2 from the 
disturbance scale (Table 3) meaning the animal did not fully flush but 
observed or moved slightly in response to researchers. Those that did 
fully flush to the water did so slowly. Most of these animals tended to 
observe researchers from the water and then re-haulout farther up-coast 
or down-coast of the site within approximately 30 minutes of the 
disturbance.

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 
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).
    To avoid repetition, the discussion of our analyses applies to all 
the species listed in Table 7, given that the anticipated effects of 
this activity on these different marine mammal stocks are expected to 
be similar. There is little information about the nature or severity of 
the impacts, or the size, status, or structure of any of these species 
or stocks that would lead to a different analysis for this activity. 
Research activities have the potential to disturb or displace marine 
mammals. Specifically, the project activities may result in take, in 
the form of Level B harassment from researchers movements and equipment 
handling. Potential takes could occur if individuals of these species 
are present nearby when these activities are underway.
    No injuries or mortalities are anticipated to occur as a result of 
UCSC/PISCO's rocky intertidal monitoring surveys and none are proposed 
to be authorized. The risk of marine mammal injury, serious injury, or 
mortality associated with rocky intertidal monitoring increases 
somewhat if disturbances occur during breeding season. These situations 
present increased potential for mothers and dependent pups to become 
separated and, if separated pairs do not quickly reunite, the risk of 
mortality to pups (e.g., through starvation) may increase. Separately, 
adult male elephant seals may trample elephant seal pups if disturbed, 
which could potentially result in the injury, serious injury, or 
mortality of the pups. Few pups are anticipated to be encountered 
during the proposed surveys. As shown in

[[Page 2379]]

previous monitoring reports, however, limited numbers of harbor seal, 
northern elephant seal, and California sea lion pups have been observed 
at several sites during past years. Harbor seals are very precocious 
with only a short period of time in which separation of a mother from a 
pup could occur. Although elephant seal pups are occasionally present 
when researchers visit survey sites, risk of pup mortalities is very 
low because elephant seals are far less reactive to researcher presence 
compared to the other two species. Further, elephant seal pups are 
typically found on sand beaches, while study sites are located in the 
rocky intertidal zone, meaning that there is typically a buffer between 
researchers and pups. The caution used by researchers in approaching 
sites generally precludes the possibility of behavior, such as 
stampeding, that could result in extended separation of mothers and 
dependent pups or trampling of pups. Finally, UCSC/PISCO 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. The potential for harassment is further 
minimized through the approach method and the implementation of the 
planned mitigation measures (see Proposed Mitigation section).
    Typically, even those reactions constituting Level B harassment 
would result at most in temporary, short-term behavioral disturbance. 
In any given study season, researchers will visit select sites one to 
two times per year for 4-6 hours per visit. Therefore, disturbance of 
pinnipeds resulting from the presence of researchers lasts only for 
short periods. These short periods of disturbance lasting less than a 
day are separated by months or years. Community Structure sites are 
visited at most twice per year and the visits occur in different 
seasons. Biodiversity surveys take place at a given location once every 
3-5 years.
    Of the marine mammal species anticipated to occur in the proposed 
activity areas, none are listed under the ESA. Taking into account the 
planned mitigation measures, effects to marine mammals are generally 
expected to be restricted to short-term changes in behavior or 
temporary abandonment of haulout sites, pinnipeds are not expected to 
permanently abandon any area that is surveyed by researchers, as is 
evidenced by continued presence of pinnipeds at the sites during annual 
monitoring counts. No adverse effects to prey species are anticipated 
and habitat impacts are limited and highly localized, consisting of the 
placement of permanent bolts and temporary research equipment in the 
intertidal zone. Based on the analysis contained herein of the likely 
effects of the specified activity on marine mammals and their habitat, 
and taking into consideration the implementation of the proposed 
mitigation and monitoring measures, NMFS finds that the total marine 
mammal take from UCSC/PISCO's rocky intertidal monitoring program will 
not adversely affect annual rates of recruitment or survival and, 
therefore, will have a negligible impact on the affected species or 
stocks.
    In summary and as described above, the following factors primarily 
support our preliminary 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:
     No serious injury or mortality, or Level A harassment, is 
anticipated or authorized.
     Only a small number of pups are expected to be disturbed;
     Effects of the survey activities would be limited to 
short-term, localized behavioral changes;
     Nominal impacts to pinniped habitat are anticipated; and
     Mitigation measures are anticipated to be effective in 
minimizing the number and severity of takes by Level B harassment, 
which are expected to be of short duration.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed 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 Sections 101(a)(5)(A) 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.
    The amount of take NMFS proposes to authorize is 0.06 to 2.6 
percent of any stock's best population estimate (Table 7). These are 
all likely conservative estimates because they assume all encounters 
result in take, which has not historically been the case. The Oregon/
Washington stock of harbor seals has no official NMFS abundance 
estimate as the most recent estimate is greater than eight years old. 
Nevertheless, the most recent estimate was 27,348 animals and it is 
highly unlikely this number has drastically declined.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily 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 relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
preliminarily determined that the total taking of affected species or 
stocks would not have an unmitigable adverse impact on the availability 
of such species or stocks for taking for subsistence purposes.

Endangered Species Act (ESA)

    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.
    No incidental take of ESA-listed species is proposed for 
authorization 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.

Request for Information

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning the UCSC/PISCO request and the proposed 
regulations (see ADDRESSES). All comments will be reviewed and 
evaluated as we prepare a final rule and make final determinations on 
whether to issue the requested authorization. This notice and 
referenced documents provide all environmental information relating to 
our proposed action for public review.

[[Page 2380]]

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
proposed rule is not significant.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
UCSC/PISCO is the sole entity that would be subject to the requirements 
in these proposed regulations, and UCSC/PISCO is not a small 
governmental jurisdiction, small organization, or small business, as 
defined by the RFA. Because of this certification, a regulatory 
flexibility analysis is not required and none has been prepared.
    This proposed rule contains a collection-of-information requirement 
subject to the provisions of the Paperwork Reduction Act (PRA). 
Notwithstanding any other provision of law, no person is required to 
respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the PRA unless that collection of information displays a currently 
valid OMB control number. These requirements have been approved by OMB 
under control number 0648-0151 and include applications for 
regulations, subsequent LOAs, and reports.

List of Subjects in 50 CFR Part 219

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties, Reporting and recordkeeping requirements, Seafood, 
Transportation.

    Dated: January 7, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For reasons set forth in the preamble, 50 CFR part 217 is proposed 
to be amended as follows:

PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS 
INCIDENTAL TO SPECIFIED ACTIVITES

0
1. The authority citation for part 217 continues to read as follows:

    Authority: 16 U.S.C. 1361 et seq.

0
2. Add subpart K to part 217 to read as follows:

Subpart K--Taking Marine Mammals Incidental to Rocky Intertidal 
Monitoring Surveys Along the Oregon and California Coasts

Sec.
217.100 Specified activity and specified geographical region.
217.101 Effective dates.
217.102 Permissible methods of taking.
217.103 Prohibitions.
217.104 Mitigation requirements.
217.105 Requirements for monitoring and reporting.
217.106 Letters of Authorization.
217.107 Renewals and modifications of Letters of Authorization.
217.108--217.109 [Reserved]


Sec.  217.100  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the University of 
California Santa Cruz's Partnership for Interdisciplinary Studies of 
Coastal Oceans (UCSC/PISCO) and those persons it authorizes or funds to 
conduct activities on its behalf for the taking of marine mammals that 
occurs in the areas outlined in paragraph (b) of this section and that 
occur incidental to rocky intertidal monitoring research surveys.
    (b) The taking of marine mammals by UCSC/PISCO may be authorized in 
a Letter of Authorization (LOA) only if it occurs on the coasts of 
Oregon or California.


Sec.  217.101  Effective dates.

    Regulations in this subpart are effective from April 12, 2020 
through April 11, 2025.


Sec.  217.102  Permissible methods of taking.

    Under LOAs issued pursuant to Sec.  216.106 of this chapter and 
Sec.  217.106, the Holder of the LOA (hereinafter ``UCSC/PISCO'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  217.100(b) by Level B harassment associated 
with rocky intertidal monitoring activities, provided the activity is 
in compliance with all terms, conditions, and requirements of the 
regulations in this subpart and the appropriate LOA.


Sec.  217.103  Prohibitions.

    Notwithstanding takings contemplated in Sec.  217.100 and 
authorized by a LOA issued under Sec.  216.106 of this chapter and 
Sec.  217.106, no person in connection with the activities described in 
Sec.  217.100 may:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Sec.  216.106 of 
this chapter and Sec.  217.106;
    (b) Take any marine mammal not specified in such LOA;
    (c) Take any marine mammal specified in such LOA in any manner 
other than as specified in Sec.  217.102;
    (d) Take a marine mammal specified in such LOA if NMFS determines 
such taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (e) Take a marine mammal specified in such LOA if NMFS determines 
such taking results in an unmitigable adverse impact on the species or 
stock of such marine mammal for taking for subsistence uses.


Sec.  217.104  Mitigation requirements.

    When conducting the activities identified in Sec.  217.100(a), the 
mitigation measures contained in any LOA issued under Sec.  216.106 of 
this chapter and Sec.  217.106 must be implemented. These mitigation 
measures shall include but are not limited to:
    (a) General conditions:
    (1) Researchers will observe a site from a distance for at least 
five minutes, using binoculars if necessary, to detect any marine 
mammals prior to approach to determine if mitigation is required (i.e., 
site surveys will not be conducted if other species of pinnipeds are 
present, researchers will approach with caution, walking slowly, 
quietly, and close to the ground to avoid surprising any hauled-out 
individuals and to reduce flushing/stampeding of individuals).
    (2) Researchers will avoid pinnipeds along access ways to sites by 
locating and taking a different access way. Researchers will keep a 
safe distance from and not approach any marine mammal while conducting 
research, unless it is absolutely necessary to approach 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).
    (3) Researchers will avoid making loud noises (i.e., using hushed 
voices) and keep bodies low to the ground in the visual presence of 
pinnipeds.
    (4) Researchers will 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.
    (5) Researchers will promptly vacate sites at the conclusion of 
sampling.
    (b) Pup protection measure:
    (1) Intentional approach will not occur if dependent pups are 
present to avoid mother/pup separation and trampling of pups. Staff 
shall reschedule work at sites where pups are present, unless other 
means of accomplishing the work can be done without causing

[[Page 2381]]

disturbance to mothers and dependent pups.
    (2) [Reserved]


Sec.  217.105  Requirements for monitoring and reporting.

    (a) Visual monitoring program. (1) Standard information recorded 
will include species counts (with numbers of pups/juveniles when 
possible) of animals present before approaching, numbers of observed 
disturbances, and descriptions of the disturbance behaviors during the 
monitoring surveys, including location, date, and time of the event.
    (2) UCSC/PISCO will note observations of:
    (i) Unusual behaviors, numbers, or distributions of pinnipeds, such 
that any potential follow-up research can be conducted by the 
appropriate personnel;
    (ii) Tag-bearing carcasses of pinnipeds, allowing transmittal of 
the information to appropriate agencies and personnel; and
    (iii) Rare or unusual species of marine mammals for agency follow-
up.
    (3) For consistency, any reactions by pinnipeds to researchers will 
be recorded according to a three-point scale shown in Table 1. Only 
observations of disturbance Levels 2 and 3 should be recorded as takes.

 Table 1 to Paragraph (a)(3)--Levels of Pinniped Behavioral Disturbance
------------------------------------------------------------------------
         Level            Type of response            Definition
------------------------------------------------------------------------
1......................  Alert.............  Seal head orientation or
                                              brief movement in response
                                              to disturbance, which may
                                              include turning head
                                              towards the disturbance,
                                              craning head and neck
                                              while holding the body
                                              rigid in a u-shaped
                                              position, changing from a
                                              lying to a sitting
                                              position, or brief
                                              movement of less than
                                              twice the animal's body
                                              length.
2......................  Movement..........  Movements away from the
                                              source of disturbance,
                                              ranging from short
                                              withdrawals at least twice
                                              the animal's body length
                                              to longer retreats over
                                              the beach, or if already
                                              moving a change of
                                              direction of greater than
                                              90 degrees.
3......................  Flush.............  All retreats (flushes) to
                                              the water.
------------------------------------------------------------------------

    (4) Information regarding physical and biological conditions 
pertaining to a site, as well as the date and time that research was 
conducted are also noted.
    (b) Prohibited Take. (1) If at any time the specified activity 
clearly causes the take of a marine mammal in a manner prohibited by 
these regulations or LOA, such as an injury (Level A harassment), 
serious injury, or mortality, UCSC/PISCO shall immediately cease the 
specified activities and report the incident to the Office of Protected 
Resources, NMFS, and the West Coast Regional Stranding Coordinator, 
NMFS. The report must include the following information:
    (i) Time and date of the incident;
    (ii) Description of the incident;
    (iii) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    (iv) Description of all marine mammal observations in the 24 hours 
preceding the incident;
    (v) Species identification or description of the animal(s) 
involved;
    (vi) Fate of the animal(s); and
    (vii) Photographs or video footage of the animal(s) (if equipment 
is available).
    (2) Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with UCSC/PISCO to 
determine what measures are necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. UCSC/PISCO may not 
resume the activities until notified by NMFS via letter, email, or 
telephone.
    (c) Notification of dead or injured marine mammals. (1) In the 
event that UCSC/PISCO discovers an injured or dead marine mammal and 
determines that the cause of the injury or death is unknown and the 
death is relatively recent (e.g., in less than a moderate state of 
decomposition), UCSC/PISCO shall immediately report the incident to the 
Office of Protected Resources, NMFS, and the West Coast Regional 
Stranding Coordinator, NMFS. The report must include the information 
identified in paragraph (b)(1) of this section. Activities may continue 
while NMFS reviews the circumstances of the incident. NMFS will work 
with UCSC/PISCO to determine whether additional mitigation measures or 
modifications to the activities are appropriate.
    (2) In the event that an injured or dead marine mammal is 
discovered and it is determined that the injury or death is not 
associated with or related to the activities authorized in the 
regulations and LOA (e.g., previously wounded animal, carcass with 
moderate to advanced decomposition, or scavenger damage), UCSC/PISCO 
shall report the incident to the Office of Protected Resources, NMFS, 
and the West Coast Regional Stranding Coordinator, NMFS, within 24 
hours of the discovery. UCSC/PISCO shall provide photographs, video 
footage (if available) or other documentation of the stranded animal 
sighting to NMFS and the Marine Mammal Stranding Network. Activities 
may continue while NMFS reviews the circumstances of the incident.
    (d) Annual report. (1) A draft annual report shall be submitted to 
NMFS Office of Protected Resources within 90 days after the conclusion 
of each annual field season. The final annual report after year five 
may be included as part of the final report (see below). The report 
will include a summary of the information gathered pursuant to the 
monitoring requirements set forth above and in the LOA.
    (2) A final annual report shall be submitted to the Director of the 
NMFS Office of Protected Resources within 30 days after receiving 
comments from NMFS on the draft annual report. If no comments are 
received from NMFS, the draft annual report will be considered the 
final report.
    (e) Final report. (1) A draft final report shall be submitted to 
NMFS Office of Protected Resources within 60 days after the conclusion 
of the fifth year. A final report shall be submitted to the Director of 
the NMFS Office of Protected Resources and to the NMFS West Coast 
Regional Administrator within 30 days after receiving comments from 
NMFS on the draft final report. If no comments are received from NMFS, 
the draft final report will be considered the final report.


Sec.  217.106  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, UCSC/PISCO must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) If an LOA expires prior to the expiration date of these 
regulations, UCSC/PISCO may apply for and obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an

[[Page 2382]]

LOA, UCSC/PISCO must apply for and obtain a modification of the LOA as 
described in Sec.  217.107.
    (e) The LOA shall set forth:
    (1) Permissible methods and numbers of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA shall be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of an LOA shall be published in 
the Federal Register within thirty days of a determination.


Sec.  217.107   Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec.  216.106 of this chapter and Sec.  
217.106 for the activity identified in Sec.  217.100(a) shall be 
renewed or modified upon request by the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision in paragraph (c)(1) 
of this section), and
    (2) NMFS' Office of Protected Resources determines that the 
mitigation, monitoring, and reporting measures required by the previous 
LOA under these regulations were implemented.
    (b) For an LOA modification or renewal requests by the applicant 
that include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in paragraph (c)(1) of this section) that do not change the 
findings made for the regulations or result in no more than a minor 
change in the total estimated number of takes (or distribution by 
species or years), NMFS' Office of Protected Resources may publish a 
notice of proposed LOA in the Federal Register, including the 
associated analysis of the change, and solicit public comment before 
issuing the LOA.
    (c) An LOA issued under Sec.  216.106 of this chapter and Sec.  
217.106 for the activity identified in Sec.  217.100(a) may be modified 
by NMFS' Office of Protected Resources under the following 
circumstances:
    (1) Adaptive Management--NMFS' Office of Protected Resources may 
modify (including augment) the existing mitigation, monitoring, or 
reporting measures (after consulting with UCSC/PISCO regarding the 
practicability of the modifications) if doing so creates a reasonable 
likelihood of more effectively accomplishing the goals of the 
mitigation and monitoring set forth in the preamble for these 
regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from UCSC/PISCO's monitoring from the previous year(s).
    (B) Results from other marine mammal and/or sound research or 
studies.
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS' 
Office of Protected Resources will publish a notice of proposed LOA in 
the Federal Register and solicit public comment.
    (2) Emergencies--If NMFS' Office of Protected Resources determines 
that an emergency exists that poses a significant risk to the well-
being of the species or stocks of marine mammals specified in LOAs 
issued pursuant to Sec.  216.106 of this chapter and Sec.  217.106, an 
LOA may be modified without prior notice or opportunity for public 
comment. Notice would be published in the Federal Register within 
thirty days of the action.


Sec. Sec.  217.108-217.109   [Reserved]

[FR Doc. 2020-00394 Filed 1-14-20; 8:45 am]
 BILLING CODE 3510-22-P