[Federal Register Volume 85, Number 64 (Thursday, April 2, 2020)]
[Rules and Regulations]
[Pages 18459-18470]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06358]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 200323-0085]
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: Final rule, notification of issuance.

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SUMMARY: NMFS Office of Protected Resources, upon request from the 
University of California Santa Cruz's Partnership for Interdisciplinary 
Studies of Coastal Oceans (UCSC/PISCO), hereby issues regulations and a 
Letter of Authorization to govern the unintentional taking of marine 
mammals incidental to rocky intertidal monitoring surveys along the 
Oregon and California coasts over the course of five years. These 
regulations, which allow for the issuance of Letters of Authorization 
(LOA) for the incidental take of marine mammals during the described 
activities and specified timeframes, prescribe the permissible methods 
of taking and other means of effecting the least practicable adverse 
impact on marine mammal species or stocks and their habitat, as well as 
requirements pertaining to the monitoring and reporting of such taking.

DATES: Effective from April 12, 2020 through April 11, 2021.

ADDRESSES: 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 below.

FOR FURTHER INFORMATION CONTACT: Dwayne Meadows, Ph.D., Office of 
Protected Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

Purpose and Need for Regulatory Action

    NMFS 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. 
These regulations establish a framework under the authority of the MMPA 
(16 U.S.C. 1361 et seq.) to allow for the issuance of a LOA for the 
take of marine mammals incidental to the UCSC/PISCO's rocky intertidal 
research activities in Oregon and California.

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 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 rule containing five-year 
regulations, and for any subsequent LOAs. As directed by this legal 
authority, this proposed rule contains mitigation, monitoring, and 
reporting requirements.

Summary of Major Provisions Within the Regulations

    Following is a summary of the major provisions of these regulations 
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; and
     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 ensure that the 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.

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 lions (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. On 
January 15, 2020 NMFS issued a notice of proposed rulemaking in the 
Federal Register (85 FR 2369) soliciting

[[Page 18460]]

public comments for 30 days. All public comments were considered in 
developing this final rule.
    NMFS previously issued seven incidental harassment authorizations 
(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 Activities on Marine 
Mammals and Their Habitat and Estimated Take sections of the proposed 
rule (85 FR 2369, January 15, 2020).

Comments and Responses

    We received no public comments pertaining to the proposed rule nor 
did we receive any recommendations from the Marine Mammal Commission.

Changes From Proposed to Final Rule

    There are minor changes from the proposed rule to the final rule. 
While more detail can be found later in this document, we summarize the 
changes here.
    In the ``Levels of Pinniped Behavioral Disturbance'' definition 
table (7) in the Monitoring and Reporting section and the parallel 
Table 1 within the regulations, we corrected a typographical error in 
the tables. Also in the Monitoring and Reporting section we neglected 
to include an existing requirement of UCSC/PISCO's current IHA, that 
project field biologists will function as marine mammal observers (MMO) 
which will remain as part of these regulations.

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 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.

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

    A detailed description of UCSC/PISCO's planned activities was 
provided in our notice of proposed rulemaking (85 FR 2369; January 15, 
2020) and is not repeated here. No changes have been made to the 
specified activities described therein.

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).

[[Page 18461]]



                                     Table 1--Marine Mammals Potentially Present in the Vicinity of the Study Areas
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                                                                                                             Stock abundance (CV,
             Common name                  Scientific name               Stock            ESA/MMPA status;      Nmin, most recent       PBR     Annual M/
                                                                                        strategic (Y/N)\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):
    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).
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\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. 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. 
Detailed descriptions of these species were provided in our notice of 
proposed rulemaking (85 FR 2369; January 15, 2020) and are not repeated 
here. No new information is available.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    We provided discussion of the potential effects of the specified 
activity on marine mammals and their habitat in our Federal Register 
notice of proposed rulemaking (85 FR 2369; January 15, 2020) and it is 
not repeated here. The proposed rule included 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 
final rule 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 the Negligible Impact Analysis and Determination section and 
the material it references, the Estimated Take section, and the 
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.

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.
    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 authorized. As 
described previously, no mortality or serious injury is anticipated or 
authorized for this activity. Below we describe how the potential take 
is estimated.

Marine Mammal Occurrence

    In this section we provide 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; and
     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, a ``take'' was only considered to occur during level 2 or 
3 observations under 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.

[[Page 18462]]

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


[[Page 18463]]


                Table 3--Data and Calculations To Estimate Proposed Take of California Sea Lions
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                                                                             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
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                   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
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 authorized here (Table 6).

 Table 6--Authorized Level B Take and Percent of MMPA Stock To Be Taken
------------------------------------------------------------------------
                                          Proposed authorized take
              Species              -------------------------------------
                                         Level B        % of population
------------------------------------------------------------------------
Harbor Seal.......................               1466                2.6

[[Page 18464]]

 
California sea lion...............                636               0.25
Northern elephant seal............                156               0.09
Steller Sea Lion..................                 25               0.06
------------------------------------------------------------------------

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), and 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.
     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 determined that these mitigation measures provide the means 
effecting the least practicable impact on the affected species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue 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 to ensure 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);

[[Page 18465]]

     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.
    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. Project field biologists will 
function as marine mammal observers (MMO). Minimum qualifications for 
MMOs include an undergraduate degree in biology.
    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 in response to
                                              the source of disturbance,
                                              ranging from short
                                              withdrawals at least twice
                                              the animal's body length
                                              to longer retreats over
                                              the beach, or if already
                                              moving a change of
                                              direction of greater than
                                              90 degrees.
3......................  Flush.............  All retreats (flushes) to
                                              the water.
------------------------------------------------------------------------

    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;
    (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

[[Page 18466]]

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-haul out 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), the 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 6, 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 
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 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 
Mitigation section).
    Typically, even those reactions constituting Level B harassment 
would result in at most, 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 the 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

[[Page 18467]]

implementation of the 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 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 monitoring and mitigation 
measures, NMFS 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 section 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 authorizes is 0.06 to 2.6 percent of any 
stock's best population estimate (Table 6). 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 mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS finds that small numbers of marine mammals 
will be taken relative to the population size of the affected species 
or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

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 promulgation of 
regulations and subsequent issuance of LOAs) with respect to potential 
impacts on the human environment. This action is consistent with 
categories of activities identified in Categorical Exclusion B4 (IHAs 
with no anticipated serious injury or mortality) of the Companion 
Manual for NOAA Administrative Order 216-6A, which do not individually 
or cumulatively have the potential for significant impacts on the 
quality of the human environment and for which we have not identified 
any extraordinary circumstances that would preclude this categorical 
exclusion. Accordingly, NMFS has determined that the issuance of the 
final rule qualifies to be categorically excluded from further NEPA 
review.

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 authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal consultation under section 7 of the ESA is not required for this 
action.

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
final 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 final rule 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 
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 final 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 217

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

    Dated: March 23, 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 amended 
as follows:

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

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

    Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.


0
2. Add subpart K to read as follows:

[[Page 18468]]

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]

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.

    (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. Sec.  216.106 of this chapter 
and 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. Sec.  216.106 of this chapter and 
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. Sec.  216.106 
of this chapter and 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. Sec.  
216.106 of this chapter and 217.106 must be implemented. These 
mitigation measures shall include but are not limited to:
    (a) General conditions. (1) Researchers must 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 must avoid pinnipeds along access ways to sites by 
locating and taking a different access way. Researchers must 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 must avoid making loud noises (i.e., using hushed 
voices) and keep bodies low to the ground in the visual presence of 
pinnipeds.
    (4) Researchers must 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 must promptly vacate sites at the conclusion of 
sampling.
    (b) Pup protection measure. Intentional approach must 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.


Sec.  217.105  Requirements for monitoring and reporting.

    (a) Visual monitoring program. (1) Standard information recorded 
must 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 must 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 to this 
paragraph (a)(3). 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.

[[Page 18469]]

 
2......................  Movement..........  Movements in response to
                                              the source of disturbance,
                                              ranging from short
                                              withdrawals at least twice
                                              the animal's body length
                                              to longer retreats over
                                              the beach, or if already
                                              moving a change of
                                              direction of greater than
                                              90 degrees.
3......................  Flush.............  All retreats (flushes) to
                                              the water.
------------------------------------------------------------------------

    (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 
this subpart 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 this subpart 
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 paragraph (e) of this 
section). The report must include a summary of the information gathered 
pursuant to the monitoring requirements set forth in paragraph (a) of 
this section 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. 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 this subpart, 
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 this subpart.
    (c) If an LOA expires prior to the expiration date of this subpart, 
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 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 this subpart.
    (g) Notice of issuance or denial of an LOA shall be published in 
the Federal Register within 30 days of a determination.


Sec.  217.107  Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec. Sec.  216.106 of this chapter and 
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 this subpart (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 this subpart were implemented.
    (b) For an LOA modification or renewal requests by the applicant 
that

[[Page 18470]]

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 this subpart 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. Sec.  216.106 of this chapter and 
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 this subpart.
    (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 this subpart 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. Sec.  216.106 of this chapter and 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. 2020-06358 Filed 4-1-20; 8:45 am]
 BILLING CODE 3510-22-P