[Federal Register Volume 88, Number 56 (Thursday, March 23, 2023)]
[Notices]
[Pages 17525-17538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05964]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC796]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Punta Gorda Lighthouse 
Stabilization Project in Humboldt County, CA

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

ACTION: Notice; proposed incidental harassment authorization; request 
for comments on proposed authorization and possible renewal.

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SUMMARY: NMFS has received a request from the Bureau of Land Management 
(BLM) for authorization to take marine mammals incidental to 
construction activities associated with Phase 2 of the Punta Gorda 
Lighthouse (PGL) Stabilization Project in Humboldt County, CA. Pursuant 
to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments 
on its proposal to issue an incidental harassment authorization (IHA) 
to incidentally take marine mammals during the specified activities. 
NMFS is also requesting comments on a possible one-time, 1 year renewal 
that could be issued under certain circumstances and if all 
requirements are met, as described in Request for Public Comments at 
the end of this notice. 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 April 
24, 2023.

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

FOR FURTHER INFORMATION CONTACT: Kate Fleming, 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/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. In case of problems 
accessing these documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION: 

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 and either regulations 
are proposed or, if the taking is limited to harassment, a notice of a 
proposed IHA is provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of 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 an IHA) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or 
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has 
preliminarily determined that the issuance of the proposed IHA 
qualifies to be categorically excluded from further NEPA review.
    We will review all comments submitted in response to this notice 
prior to concluding our NEPA process

[[Page 17526]]

or making a final decision on the IHA request.

Summary of Request

    On October 26, 2022, NMFS received a request from the BLM for an 
IHA to take marine mammals incidental to Phase 2 of the Punta Gorda 
Lighthouse Stabilization Project in Humboldt County, California. 
Following NMFS' review of the application, BLM submitted a revised 
version on January 27, 2023 and again on February 8, 2023. The 
application was deemed adequate and complete on February 9, 2023. BLM's 
request is for take of northern elephant seal (Mirounga 
angustirostris), Pacific harbor seal (Phoca vitulina richardii), 
California sea lion (Zalophus californianus), and Steller sea lion 
(Eumatopias jubata) by Level B harassment only. Neither BLM nor NMFS 
expect serious injury or mortality to result from this activity and, 
therefore, an IHA is appropriate.
    NMFS previously issued an IHA to BLM for related work (87 FR 34659, 
June 7, 2022). BLM complied with all the requirements (e.g., 
mitigation, monitoring, and reporting) of the previous IHA and 
information regarding their monitoring results may be found in the 
Effects of the Specified Activity on Marine Mammals and their Habitat 
and Estimated Take sections.
    This proposed IHA would cover the final year of work of a larger 
project for which BLM obtained a prior IHA. The larger 2-year project 
involves construction activities to restore all remaining buildings of 
the Punta Gorda Lighthouse Site.

Description of Proposed Activity

Overview

    The PGL was established as an aid to navigation in 1912 along the 
northern California coast. While in use, the lighthouse station 
included the lighthouse, oil house, three residences, and numerous 
other small buildings typical of small military outposts. The U.S. 
Coast Guard decommissioned the lighthouse in 1951. The BLM assumed 
management of the site following the PGL's decommission. The concrete 
lighthouse and oil house were all that remained when the site was 
listed in the National Registry of Historic Places in 1976.
    The BLM repaired and stabilized the lighthouse building itself 
during the summer of 2022. Construction activities are proposed to 
repair and stabilize the remaining structure at the site, which is an 
oil house. Human presence, noise from construction work, and noise from 
and/or presence of supply transport vehicles may result in behavioral 
disturbance primarily of harbor seals and northern elephant seals, and 
potentially California sea lions and Steller sea lions. The project 
will take no more than 122 construction days between June and September 
2023.

Dates and Duration

    Stabilization and repair of the PGL oil house will occur between 
June 1 and October 1, 2023. Work crews are expected to work 8 to 10 
hours per day, Monday through Friday with intermittent weekend work 
necessary to meet work schedule objectives, for a total of up to 122 
days. The proposed IHA would be valid from June 1, 2023 to October 1, 
2023.

Specific Geographic Region

    The PGL is located approximately 10 kilometers (km) southwest of 
Petrolia, California and 18 km south of Cape Mendocino, within the King 
Range National Conservation Area. The PGL is a remote site situated 
along the Lost Coast Trail, which extends 40 km (24.8 mi) from the 
mouth of the Mattole River to Shelter Cove, California and is the 
longest stretch of undeveloped coastline in California. Vehicle access 
to the PGL site will originate at the trailhead at the Mattole 
Campground, and requires traveling across sandy beach that can be 
limited by high tides. Supplies and demolition material may also be 
transported to and from the site from the air via helicopter. The oil 
house sits upon a small hill above a sandy moderately sloped fine-sand 
beach that is separated by a narrow marine terrace. Pinnipeds are most 
often found on the beach itself but elephant seals occasionally use the 
marine terrace as well. Please see the Description of Marine Mammals in 
the Area of Specified Activities section below for a detailed 
description of the marine mammals that are known to haul-out at the PGL 
and surrounding areas.
[GRAPHIC] [TIFF OMITTED] TN23MR23.001


[[Page 17527]]



Detailed Description of the Specified Activity

    Phase 2 of the PGL stabilization project is comprised of repairs to 
the oil house; the foundation and walls of the oil house are cracked 
and separated and the lead-based paint has deteriorated.
    The BLM proposed to conduct repair work in stages. As part of the 
initiation phase, the portion of the marine terrace north of the PGL 
would be designated and fenced for support of construction activities 
(e.g. parking vehicles, storing tools and materials, fuel storage and 
containment). A fence would be erected around the staging area and 
lighthouse station to prevent elephant seals from moving in to the work 
zone.
    The first stage of correcting deficiencies of the oil house would 
consist of lead paint remediation and demolition of failing concrete 
and rebar. The remaining structure will be treated to prevent further 
corrosion. The roof of the oil house will be completely demolished 
along with the northwestern corner of the oil house foundation. 
Numerous other small concrete repairs will occur simultaneously. Gas 
powered construction saws, jack hammers, heavy equipment (e.g. backhoe/
excavator) and hand tools will be used to complete the demolition. 
Following demolition, concrete forms will be erected, new concrete will 
be poured, and the new structure will be painted with a sealing 
elastomeric paint (or similar product) to prevent further corrosion.
    The site will be accessed by ground vehicles at the Mattole 
Campground trailhead to the north. The route requires traveling across 
sand and can be limited by high tides. Supplies will be transported by 
ground using all-terrain vehicles (ATVs), side-by-side terrain vehicles 
(UTVs), and heavy equipment. Helicopters may also be used to transport 
supplies faster than ground transportation would allow. Helicopters 
would not land at the work site, but would hover approximately 50-100 
feet (15-30 m) above ground for a short duration (up to five minutes) 
while the sling load is disconnected. Additionally, ground vehicles or 
helicopter lifts may be used to transport demolition debris to waste 
facilities if not buried on site.
    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. NMFS 
fully considered all of this information, and we refer the reader to 
these descriptions, incorporated here by reference, instead of 
reprinting the information. Additional information regarding population 
trends and threats may be found in NMFS' Stock Assessment Reports 
(SARs; 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' website (https://www.fisheries.noaa.gov/find-species).
    Table 1 lists all species or stocks for which take is expected and 
proposed to be authorized for this activity, 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. 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' 
SARs). While no serious injury or mortality is anticipated or proposed 
to be authorized here, PBR and annual serious injury and mortality from 
anthropogenic sources are included here as gross indicators of the 
status of the species or stocks 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' 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' U.S. Pacific and Alaska SARs. All values presented in Table 1 are 
the most recent available at the time of publication (including from 
the draft 2022 SARs) and are available online at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

                                              Table 1--Species Likely Impacted by the Specified Activities
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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):
Steller sea lion....................  Eumatopias jubata......  Eastern U.S............  -, -, N             43,201 (N/A, 43,201,        2,592        112
                                                                                                             2017).
California sea lion.................  Zalophus californica...  U.S....................  -, -, N             257,606 (N/A, 233,515,     14,011       >321
                                                                                                             2014).
Family Phocidae (earless seals):
Northern elephant seal..............  Mirounga angustirostris  California Breeding....  -, -, N             187,386...............      5,122       13.7
                                                                                                            (N/A, 85,369, 2013)...
Pacific Harbor seal.................  Phoca vitulina           California.............  -, -, N             30,968 (N/A 27,348,         1,641         43
                                       richardii.                                                            2012).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-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.


[[Page 17528]]

    As indicated above, all four species (with four managed stocks) in 
Table 1 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur.

California Sea Lion

    California sea lions are distributed along the west coast of North 
America from British Columbia to Baja California and throughout the 
Gulf of California. Breeding occurs on islands located in southern 
California, in western Baja California, Mexico, and the Gulf of 
California. Rookery sites in southern California are limited to the San 
Miguel Islands and the southerly Channel Islands of San Nicolas, Santa 
Barbara, and San Clemente (Carretta et al., 2017). Males establish 
breeding territories during May through July on both land and in the 
water. Females come ashore in mid-May and June where they give birth to 
a single pup approximately four to five days after arrival and will 
nurse pups for about a week before going on their first feeding trip. 
Females will alternate feeding trips with nursing bouts until the pup 
is weaned, which takes about a year.
    Adult and juvenile males will migrate as far north as British 
Columbia, Canada while females and pups remain in southern California 
waters in the non-breeding season. In warm water (El Ni[ntilde]o) 
years, some females are found as far north as Washington and Oregon, 
presumably following prey.
    California sea lions have been observed traveling in the coastal 
waters and hauled out on offshore rocks near the access route. They are 
infrequently observed in waters near the proposed project area; During 
the first year of construction, California sea lions were observed on 
the offshore rocks and on the beach near the project area on several 
occasions (BLM 2022).

Steller Sea Lion

    The project site could be visited by the eastern distinct 
population segment (DPS) of Steller sea lion; the eastern DPS includes 
animals born east of Cape Suckling, AK (144[deg] W), and includes sea 
lions living in southeast Alaska, British Columbia, Washington, Oregon, 
and California. Steller sea lion are most typically found in coastal 
waters on the continental shelf, but they also occur and sometimes 
forage in much deeper continental slope and pelagic waters. Haulout and 
rookery sites consist of beaches (gravel, rocky, or sand), ledges, and 
rocky reefs. They usually return to their natal rookery sites to breed.
    Steller sea lions have been observed in the water near PGL and 
hauled out in offshore rocks near Sea Lion Gulch, which is a haulout 
site approximately 2.5 km to the south of the project site. A single 
Steller sea lion was observed on one occasion at PGL during the first 
year of construction (BLM 2022). Though uncommon, it is reasonably 
likely that a Steller sea lion could occur at the PGL or along the 
access route.

Northern Elephant Seal

    Northern elephant seals are found in the eastern and central North 
Pacific Ocean, from as far north as Alaska to as far south as Mexico. 
Northern elephant seals spend much of the year, generally about nine 
months, in the ocean. While on land, they prefer sandy beaches.
    They typically breed and give birth in the Channel Islands off 
California or Baja California in Mexico, primarily on offshore islands 
from December to March. In mid-December, adult males begin arriving at 
rookeries, closely followed by pregnant females on the verge of giving 
birth. Females give birth to a single pup, generally in late December 
or January (Le Boeuf and Laws, 1994) and nurse their pups for 
approximately four weeks (Reiter et al., 1991). Upon pup weaning, 
females mate with an adult male and then depart the islands. The last 
adult breeders depart the islands in mid-March. The spring peak of 
elephant seals on the rookery occurs in April, when females and 
immature seals (approximately one to four years old) arrive at the 
colony to molt (a one-month process) (USFWS 2013). The year's new pups 
remain on the island throughout both of these peaks, generally leaving 
by the end of April (USFWS 2013). The lowest numbers of elephant seals 
present at rookeries occurs during June, July, and August, when sub-
adult and adult males molt. Another peak number of young seals returns 
to the rookery for a haulout period in October, and at that time some 
individuals undergo partial molt (Le Boeuf and Laws, 1994).
    Northern elephant seals colonized the beach below the PGL in 2013 
and 2014, and the colony has grown rapidly since then. They haul out on 
the beach between the intertidal zone and the narrow marine terrace, 
and occasionally make their way onto the marine terrace or even the 
Lost Coast Trail. Approximately 165 elephant seal pups were born during 
the 2020-2021 breeding season, up from 110 the previous year. The 
highest attendance counted during the 2021 spring molt totaled 
approximately 700 individuals. The lowest elephant seal attendance of 
the year occurs in July and August. Juveniles and non-breeding females 
start to appear in September before the pregnant females begin arriving 
in mid-October (Goley et al., 2021).

Harbor Seal

    Harbor seals are one of the most common marine mammals along the 
U.S. West and East Coasts. One the west, coast they are found from 
Bering Sea to Baja California. They have long been considered non-
migratory, typically staying within 15-31 miles of their natal area, 
though tracking data show they sometimes travel much further distances 
to exploit seasonally available food or give birth to pups.
    Harbor seals mate at sea, and females give birth during the spring 
and summer. Pupping season varies with latitude. Pups are nursed for 4-
6 weeks 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 (Lowry et al., 
2008).
    There are two large harbor seal haulout sites near the PGL, Sea 
Lion Gulch, and the Mattole River Spit, approximately 6 km to the 
north. A small group of harbor seals routinely haul-out on the beach 
near the intertidal zone and on the adjacent rocks below the PGL, 
approximately 120 m from the oil house. Up to 190 harbor seals have 
been observed at the PGL (Goley et al., 2021). Harbor seals have 
haulout site fidelity (Herder, 1986, Yochem et al., 1987, Dietz et al., 
2012, Waring et al., 2016) and the seals present at the PGL haulout are 
likely to be present across multiple days. Although harbor seals 
commonly use the beach near the PGL for resting throughout the year, 
only small numbers of pups have been observed in the area and the PGL 
is not considered a rookery site for harbor seals.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section provides a discussion of the ways in which 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 whether those 
impacts are reasonably expected

[[Page 17529]]

to, or reasonably likely to, adversely affect the species or stock 
through effects on annual rates of recruitment or survival.
    Acoustic and visual stimuli generated by personnel working at the 
PGL and traversing the beach to access the work site, noise from 
construction equipment operating at the PGL, and helicopters hovering 
over the site to transport equipment and supplies may have the 
potential to cause behavioral disturbance.

Human Presence

    The appearance of construction personnel may have the potential to 
cause Level B harassment of marine mammals hauled-out at the PGL and 
along the proposed access routes. Disturbance could result in a variety 
of effects, from subtle to conspicuous changes in behavior, movement, 
and displacement. Disturbance may result in reactions ranging from an 
animal simply becoming alert to the presence of the BLM's construction 
personnel (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. NMFS assumes that pinnipeds that move greater than 
two body lengths or longer, or if already moving, engage in a change of 
direction of greater than 90 degrees in response to the disturbance, or 
pinnipeds that flush into the water, are behaviorally harassed, and 
thus considered incidentally taken by Level B harassment. NMFS uses a 
3-point scale (Table 2) to determine which disturbance reactions 
constitute take under the MMPA. Levels 2 and 3 (movement and flush) are 
considered take, whereas level 1 (alert) is not. Animals that respond 
to the presence of BLM personnel 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.

            Table 2--Disturbance Scale of Pinniped Responses
------------------------------------------------------------------------
      Level         Type of response               Definition
------------------------------------------------------------------------
1................  Alert.............  Seal head orientation or brief
                                        movement in response to
                                        disturbance, which may include
                                        turning head towards the
                                        disturbance, craning head and
                                        neck while holding the body
                                        rigid in a u-shaped position,
                                        changing from a lying to a
                                        sitting position, or brief
                                        movement of less than twice the
                                        animal's body length.
2 *..............  Movement..........  Movements in response to the
                                        source of disturbance, ranging
                                        from short withdrawals at least
                                        twice the animal's body length
                                        to longer retreats over the
                                        beach, or if already moving a
                                        change of direction of greater
                                        than 90 degrees.
3 *..............  Flush.............  All retreats (flushes) to the
                                        water.
------------------------------------------------------------------------
* Only Levels 2 and 3 are considered take under the MMPA. Level 1 is not
  considered take.

    During the first year of construction, Level B harassment to 
pinnipeds was far less than authorized. Early on, vehicle approaches to 
PGL disturbed harbor seals, but they quickly appeared to become 
habituated to the presence of vehicles (BLM 2022). The loudest 
activities (e.g., driving fence posts, jack hammering, and hammering/
grinding on metal), caused the greatest level of disturbance primarily 
to harbor seals. However, disturbance events were more prevalent during 
the start of the day as seals seemingly began to habituate to the 
construction activities as the day progressed. Overall Level B 
harassment observed was a small fraction of the estimated take 
authorized (BLM 2022) and while harbor seals were observed both moving 
and flushing (Levels 2 and 3; Table 2) in response to construction 
activities, no flushing behavior was observed of elephant seals.
    Reactions to human presence, if any, depend on species, state of 
maturity, experience, current activity, reproductive state, time of 
day, and many other factors (Richardson et al., 1995; Southall et al., 
2007; Weilgart 2007). If a marine mammal does react briefly to human 
presence by changing its behavior or moving a small distance, the 
impacts of the change are unlikely to be significant to the individual, 
let alone the stock or population. However, if visual stimuli from 
human presence displace marine mammals from an important feeding or 
breeding area for a prolonged period, impacts on individuals and 
populations could be significant (e.g., Lusseau and Bejder 2007; 
Weilgart, 2007). Nevertheless, this is not likely to occur during the 
proposed activities since rapid habituation or movement to nearby 
haulouts is expected to occur after a potential pinniped flush, as was 
observed during first year construction activities (BLM 2022).
    Disturbances resulting from human activity can impact short- and 
long-term pinniped haulout behavior (Renouf et al., 1981; Schneider and 
Payne, 1983; Terhune and Almon, 1983; Allen et al., 1984; Stewart, 
1984; Suryan and Harvey, 1999; and Kucey and Trites, 2006). Numerous 
studies have shown that human activity can flush harbor seals off 
haulout sites (Allen et al., 1984; Calambokidis et al., 1991; and 
Suryan and Harvey 1999).
    In 2004, Johnson and Acevedo-Gutierrez (2007) evaluated the 
efficacy of buffer zones for watercraft around harbor seal haulout 
sites on Yellow Island, Washington. The authors estimated the minimum 
distance between the vessels and the haulout sites; categorized the 
vessel types; and evaluated seal responses to the disturbances. During 
the course of the 7-weekend study, the authors recorded 14 human-
related disturbances which were associated with stopped powerboats and 
kayaks. During these events, hauled out seals became noticeably active 
and moved into the water. The flushing occurred when stopped kayaks and 
powerboats were at distances as far as 138 and 371 m, respectively. The 
authors note that the seals were unaffected by passing powerboats, even 
those approaching as close as 39 m, possibly indicating that the 
animals had become tolerant of the brief presence of the vessels and 
ignored them. The authors reported that on average, the seals quickly 
recovered from the disturbances and returned to the haulout site in 
less than or equal to 60 minutes. Seal numbers did not return to pre-
disturbance levels within 180 minutes of the disturbance less than one 
quarter of the time observed. The study concluded that the return of 
seal numbers to pre-disturbance levels and the relatively regular 
seasonal cycle in abundance throughout the area counter the idea that 
disturbances from powerboats may result in site abandonment (Johnson 
and Acevedo-Gutierrez, 2007). Although no boats would be used in the 
PGL stabilization project, we expect that hauled-out pinnipeds exposed 
to the BLM's

[[Page 17530]]

vehicles and construction equipment would exhibit similar responses to 
those exposed to boats in the 2007 Acevedo-Gutierrez and Johnson study, 
and would quickly return to their haulout after the vehicles pass.

Noise

    This section includes a brief explanation of the sound measurements 
frequently used in the discussions of acoustic effects in this proposed 
rule. Sound pressure is the sound force per unit area, and is usually 
measured in micropascals ([micro]Pa), where 1 pascal (Pa) is the 
pressure resulting from a force of one newton exerted over an area of 
one square meter. Sound pressure level (SPL) is the ratio of a measured 
sound pressure and a reference level. The commonly used reference 
pressure is 1 [micro]Pa for under water, and the units for SPLs are dB 
re: 1 [micro]Pa. The commonly used reference pressure is 20 [micro]Pa 
for in air, and the units for SPLs are dB re: 20 [micro]Pa.

SPL (in decibels (dB)) = 20 log (pressure/reference pressure).

    SPL is an instantaneous measurement expressed as the peak, the 
peak-peak, or the root mean square (rms). Root mean square is the 
square root of the arithmetic average of the squared instantaneous 
pressure values. All references to SPL in this document refer to the 
rms unless otherwise noted. SPL does not take into account the duration 
of a sound. NMFS has developed acoustic thresholds for behavioral 
disturbance from airborne noise (90 dB for harbor seals and 100 dB for 
all other pinnipeds; Southall et al., 2007, NOAA 2009).
    Demolition and construction work at the PGL would include use of 
gas powered construction saws, jack hammers, heavy equipment (likely a 
backhoe or small excavator), saws, and hand tools. Fencing would be 
erected to prevent marine mammals from entering the work area. Received 
sound levels for seals hauled out on the beaches below the PGL are not 
expected to exceed the behavioral disturbance thresholds.
    It is possible that the use of helicopters to transport materials, 
especially the helicopter hovering at the work site while the sling 
load is disconnected, would cause a subset of the marine mammals 
hauled-out at the PGL to react. There is little information available 
on the acoustic effects of helicopter overflights on pinniped hearing 
and communication (Richardson, et al., 1995) and to NMFS' knowledge, 
there has been no specific documentation of temporary threshold shift 
(TTS), let alone permanent threshold shift (PTS), in free-ranging 
pinnipeds exposed to helicopter operations during realistic field 
conditions (Baker et al., 2012; Scheidat et al., 2011). The specific 
type and model of helicopter that may be used for work at the PGL is 
not yet known, therefore the predicted source level of noise from the 
helicopter that could be used to estimate distances to the behavioral 
disturbance threshold is also unknown. However, NMFS has considered 
that while noise from the helicopter is likely to affect the degree to 
which marine mammals respond to the stimulus, the physical presence of 
aircraft could also lead to non-auditory effects on marine mammals 
involving visual or other cues. Marine mammals in the vicinity of the 
helicopter are likely to exhibit behavioral responses (e.g., hasty 
dives or turns, change in course, or flushing and stampeding from a 
haulout site, as a result of visual detection of the helicopter) 
regardless of the received SPL.
    There are few well-documented studies of the impacts of aircraft 
overflight over pinniped haulout sites or rookeries, and many of those 
that exist, are specific to military activities (Efroymson et al., 
2001). Although helicopter flights were proposed in support of year 1 
construction activities at PGL, no helicopter flights were implemented. 
In 2008, NMFS issued an IHA to the USFWS for the take of Steller sea 
lions and Pacific harbor seals, incidental to rodent eradication 
activities on an islet offshore of Rat Island, AK conducted by 
helicopter. The 15-minute aerial treatment consisted of the helicopter 
slowly approaching the islet at an elevation of over 1,000 ft (304.8 
m); gradually decreasing altitude in slow circles; and applying the 
rodenticide in a single pass and returning to Rat Island. The gradual 
and deliberate approach to the islet resulted in the sea lions present 
initially becoming aware of the helicopter and calmly moving into the 
water. Further, the USFWS reported that all responses fell well within 
the range of Level B harassment (i.e., limited, short-term displacement 
resulting from aircraft noise due to helicopter overflights).
    Several factors complicate the analysis of long- and short-term 
effects for aircraft overflights. Information on behavioral effects of 
overflights by military aircraft (or component stressors) on most 
wildlife species is sparse. Moreover, models that relate behavioral 
changes to abundance or reproduction, and those that relate behavioral 
or hearing effects thresholds from one population to another are 
generally not available. In addition, the aggregation of sound 
frequencies, durations, and the view of the aircraft into a single 
exposure metric is not always the best predictor of effects and it may 
also be difficult to calculate. Overall, there has been no indication 
that single or occasional aircraft flying above pinnipeds in water 
cause long term displacement of these animals (Richardson et al., 
1995). Bowles and Stewart (1980) observed the effects of helicopter 
flights over California sea lions and harbor seals observed on San 
Miguel Island, CA; animals responded to some degree by moving within 
the haulout and entering into the water, stampeding into the water, or 
clearing the haul out completely. Both species always responded with 
the raising of their heads. California sea lions appeared to react more 
to the visual cue of the helicopter than the noise.
    In a study of the effects of helicopter landings at the St. George 
Reef Lighthouse on Northwest Seal Rock off the coast of Crescent City, 
California, Crescent Coastal Research (CCR) found a range of from 0 to 
40 percent of all pinnipeds present on the island were temporarily 
displaced (flushed) due to initial helicopter landings in 1998. Their 
data suggested that the majority of these animals returned to the 
island once helicopter activities ceased, over a period of minutes to 2 
hours (CCR, 2001). Far fewer animals flushed into the water on 
subsequent takeoffs and landings, suggesting rapid habituation to 
helicopter landing and departure (CCR, 2001).

Stampede

    There are other ways in which disturbance, as described previously, 
could result in more than Level B harassment of marine mammals. They 
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. These situations are particularly 
injurious when: (1) Animals fall when entering the water at high-relief 
locations; (2) there is extended separation of mothers and pups; and 
(3) crushing of pups by large males occurs during a stampede. However, 
NMFS does not expect any of these scenarios to occur at the PGL as the 
proposed action would occur outside of the pupping/breeding season for 
elephant seals and late enough in the harbor seal pupping season that 
any pups present would likely be old enough to accompany their mother 
during a flushing event, there are no cliffs at the PGL, and monitoring 
from IHAs for similar activities at this site and others has not 
recorded stampeding

[[Page 17531]]

events (e.g., BLM 2022, Point Blue Conservation Science, 2020; 
University of California Santa Cruz Partnership for Interdisciplinary 
Studies of Coastal Oceans, 2021).
    The haulout sites at the PGL consist of low sloping sandy beaches 
with unimpeded and non-obstructive access to the water. If disturbed, 
the small number of hauled-out animals may move toward the water 
without risk of encountering barriers or hazards that would otherwise 
prevent them from leaving the area or increase injury potential. 
Therefore, NMFS has determined the BLM's proposed activities pose 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.

Anticipated Effects on Marine Mammal Habitat

    The primary potential impact to marine mammal habitat associated 
with the construction activity is the temporary occupation of marine 
mammal habitat by BLM personnel and equipment but no permanent impacts 
would occur. The footprint of the PGL station would not change, and 
although vagrant elephant seals occasionally enter the compound, the 
lighthouse station itself is not considered to be suitable marine 
mammal habitat. During the stabilization project, a fence would be 
erected to exclude a portion of the marine terrace from use by elephant 
seals. The area expected to be fenced is usually unoccupied during the 
proposed construction window so few animals are expected to be 
displaced. Hauled out pinnipeds may temporarily leave the area if 
disturbed by acoustic or visual stimuli from project activities, but 
would likely return to the area once activities are concluded. The 
duration of displacement could vary from minutes, which would be 
expected for animals disturbed along the access route that may return 
to the haulout once the construction personnel pass by (e.g., Allen et 
al., 1985), to hours or days, for animals that flush from the beach 
below the PGL. The Lost Coast has miles of suitable undeveloped habitat 
for displaced animals to relocate during construction activities. The 
direct 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 including first year 
construction at this site, that the pinnipeds would permanently abandon 
a haulout site as a result of the PGL stabilization project.
    Indirect effects of the activities on nearby feeding or haulout 
habitat are not expected. Increased noise levels are not likely to 
affect acoustic habitat or adversely affect marine mammal prey in the 
vicinity of the project area because source levels are low, transient, 
well away from the water, and do not readily transmit into the water. 
It may be necessary for the BLM to bring a fuel storage tank to the PGL 
site to power generators and heavy equipment. Fuel would be stored 
behind fencing upland of the beach and the fuel tank would have a 
secondary containment system in place. To prevent chemical leaks, the 
BLM would inspect all equipment prior to attempting to cross Four Mile 
Creek while accessing the worksite. Debris generated by the 
construction activities (e.g., removed concrete and metal structures) 
would either be buried onsite or removed by overland transit or 
helicopter lifts. Any materials not removed would be buried well upland 
of the beach, far away from any potential haulout areas. Buried 
material would consist of existing elements of the oil house, no new 
materials would be introduced and left behind. NMFS does not expect 
that the proposed activities would have any long- or short-term 
physical impacts to pinniped habitat at the PGL.

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 
determinations.
    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 construction personnel and equipment, 
including helicopters used to transport materials. Based on the nature 
of the activity, Level A harassment is neither anticipated nor proposed 
to be authorized. For the BLM's proposed activities, behavioral (Level 
B) harassment is limited to movement and flushing, defined by the 
disturbance scale of pinniped responses (Table 2).
    As described previously, no serious injury or mortality is 
anticipated or proposed to be authorized for this activity. Below we 
describe how the proposed take numbers are estimated.

Marine Mammal Occurrence

    In this section we provide information about the occurrence of 
marine mammals, including density or other relevant information that 
will inform the take calculations.
    Researchers from Humboldt State University (HSU) regularly conduct 
census counts of pinnipeds at the PGL and surrounding areas along the 
northern California coast (e.g., Goley et al., 2021, BLM 2022). 
Protected Species Observers (PSOs) on site during the first year of 
construction recorded daily counts as well. Counts of northern elephant 
seals, harbor seals, California sea lion, and Steller sea lion at the 
PGL during the effective dates of the proposed IHA (June 1 through 
October 1) are presented below.

                            Table 3--Pinniped Census Counts at Punta Gorda Lighthouse
----------------------------------------------------------------------------------------------------------------
                                                                                     Number of       Number of
                                                     Number of       Number of    California sea    Steller sea
                      Date                        elephant seals   harbor seals   lions observed  lions observed
                                                     observed       observed *           *               *
----------------------------------------------------------------------------------------------------------------
                                                   2019 Counts
----------------------------------------------------------------------------------------------------------------
June 8..........................................             101              51               -               -
June 15.........................................              74             107               -               -
June 23.........................................              34              81               -               -

[[Page 17532]]

 
July 7..........................................              40             116               -               -
July 14.........................................              50             180               -               -
July 21.........................................              54             123               -               -
August 3........................................              39             105               -               -
August 21.......................................              44              80               -               -
August 31.......................................              62              22               -               -
September 15....................................             162              22               -               -
September 27....................................             244              28               -               -
----------------------------------------------------------------------------------------------------------------
                                                   2020 Counts
----------------------------------------------------------------------------------------------------------------
June 4..........................................             177               -               -               -
June 11.........................................              83               -               -               -
June 14.........................................              80              55               -               -
June 24.........................................              37               -               -               -
June 27.........................................              38              77               -               -
July 4..........................................              36               -               -               -
July 12.........................................              39              90               -               -
July 16.........................................              38               -               -               -
July 24.........................................              36             123               -               -
July 30.........................................              38               -               -               -
August 6........................................              32               -               -               -
August 9........................................              28              73               -               -
August 13.......................................              28               -               -               -
August 20.......................................              27               -               -               -
August 27.......................................              33               -               -               -
August 30.......................................              48              36               -               -
September 5.....................................              60              38               -               -
September 19....................................             133              51               -               -
September 27....................................             177              53               -               -
----------------------------------------------------------------------------------------------------------------
                                                   2021 Counts
----------------------------------------------------------------------------------------------------------------
June 10.........................................             199               -               -               -
June 29.........................................              59             109               -               -
July 10.........................................              48             128               -               -
July 26.........................................              34             104               -               -
August 7........................................              30             103               -               -
August 22.......................................              42              68               -               -
September 2.....................................             106               -               -               -
September 16....................................             135               -               -               -
----------------------------------------------------------------------------------------------------------------
                                                   2022 Counts
----------------------------------------------------------------------------------------------------------------
June 22.........................................              39              42               0               0
June 23.........................................              53              50               0               0
June 24.........................................              34             117               0               0
June 25.........................................              50             110               0               0
June 27.........................................              38             150               0               0
June 28.........................................              61             126               0               0
June 29.........................................              54             132               0               0
June 30.........................................              56             169               0               0
July 1..........................................              52             137               0               0
July 5..........................................              48             156               0               0
July 6..........................................              51             142               0               0
July 7..........................................              34               -               0               0
July 8..........................................              33             121               0               0
July 9..........................................              56             141               0               0
July 11.........................................              28             106               0               0
July 12.........................................              37             139               0               1
July 13.........................................              38             156               0               0
July 14.........................................              34             190               0               0
July 15.........................................              37             134               0               0
July 16.........................................              30             136               0               0
July 18.........................................              29             114               0               0
July 19.........................................              30             108               0               0
July 20.........................................              25             122               0               0
July 21.........................................              27              99               0               0
July 22.........................................              32             109               0               0
July 23.........................................              31             109               0               0

[[Page 17533]]

 
July 25.........................................              29             115               0               0
July 26.........................................              33              93               0               0
July 27.........................................              30              58               0               0
July 28.........................................              29              91               0               0
July 29.........................................              33              73               0               0
August 1........................................              31              82               0               0
August 2........................................              28              76               0               0
August 4........................................              32              77               0               0
August 5........................................              28             105               2               0
August 6........................................              29              72               0               0
August 8........................................              26              71               0               0
August 9........................................              27              55              10               0
August 10.......................................              28              48               7               0
August 11.......................................              32              41               0               0
August 12.......................................              38              56               0               0
August 15.......................................              34              46               0               0
August 16.......................................              40              56               3               0
August 17.......................................              42              61               0               0
August 18.......................................              44              50               0               0
August 19.......................................              42              64               0               0
August 20.......................................              39              56               0               0
August 22.......................................              40              57               7               0
August 23.......................................              48              58               6               0
August 24.......................................              48              60               0               0
August 25.......................................              54              59               0               0
August 26.......................................              51              48               0               0
August 27.......................................              54              38               0               0
August 29.......................................              65              37               0               0
August 30.......................................              57              51               1               0
August 31.......................................              46              49               0               0
September 1.....................................              60              41               0               0
Daily Average...................................            52.4            87.4             0.6            0.02
----------------------------------------------------------------------------------------------------------------
* Dashes (-) refer to instance where researchers did not record occurrence information.

    Between 2019 and 2022, census counts of elephant seals and harbor 
seals were collected at PGL during the effective dates of the proposed 
IHA (June 1-October 1). Across all 4 years, the average daily count was 
52.4 elephant seals (Goley et al., 2021, BLM 2022). A large proportion 
of the elephant seals present at PGL are uniquely tagged and dye 
stamped to identify individuals and the same individuals were 
identified at the PGL haulout on multiple days. Across all four years, 
the daily average of harbor seals was 87.4. The harbor seals present at 
the PGL are not tagged or otherwise clearly identifiable, but since 
harbor seals typically show hauling site fidelity (Herder 1986, Yochem 
et al., 1987, Dietz et al., 2012, Waring et al., 2016), researchers 
from HSU hypothesize that the harbor seal colony at the PGL is made up 
of the same individuals that move between Punta Gorda and other nearby 
haulouts.
    During the first year of construction (June-October 2022), PSOs 
recorded the number of California and Steller sea lions present in the 
PGL area. The daily average count of California sea lions was 0.6 and 
the daily average count of Steller sea lions was 0.02.

Take Estimation

    Here we describe how the information provided above is synthesized 
to produce a quantitative estimate of the take that is reasonably 
likely to occur and proposed for authorization.
    To estimate the total number of pinnipeds that may be present at 
the PGL and subject to behavioral disturbance from the PGL 
stabilization project, the BLM multiplied the daily count of each 
species averaged across all years of available census data (52.4 
elephant seals, 87.4 harbor seals, 0.6 California sea lions, and 0.02 
Steller sea lions) by the maximum days of work at the PGL (122 days), 
for an estimated total take events of 6,393 for northern elephant 
seals, 10,663 for harbor seals, 73 for California sea lions, and 2 for 
Steller sea lions) taken by Level B harassment. This estimation assumes 
that all animals present would exhibit behavioral responses that are 
considered take (Levels 2 and Level 3 as described in Table 2). As 
described above, many of the seals present at the PGL are suspected or 
confirmed to be present across multiple days. Therefore, the above 
estimated take numbers are considered to represent instances of take, 
not necessarily the number of individual seals that may be taken. In 
the case of Steller sea lion, 2 takes may not adequately account for 
all instances of possible take that could occur should multiple 
individuals enter the project area over the course of construction, or 
one individual enter the project area on multiple occasions. As such 
the take estimate for this species has been increased to 30 as 
requested by the applicant.

[[Page 17534]]



          Table 4--Proposed Take by Level B Harassment by Species and Percentage of Each Stock Affected
----------------------------------------------------------------------------------------------------------------
                                                                   \a\ Proposed
                Species                           Stock            take by Level       Stock        Percent of
                                                                   B harassment      abundance         stock
----------------------------------------------------------------------------------------------------------------
Northern elephant seal................  California breeding.....           6,393         187,386             3.4
Pacific harbor seal...................  California..............          10,663          30,968            34.4
California sea lion...................  U.S.....................              73         257,606            0.03
Steller sea lion......................  Eastern U.S.............              30          77,149            0.04
----------------------------------------------------------------------------------------------------------------
\a\ The proposed take represents the estimated number of instances of take, which does not equate to the number
  of individuals that may be taken.

Proposed Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to 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, NMFS 
considers 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.
    The following mitigation measures are proposed:
    The work season has been planned to reduce the level of impact on 
elephant and harbor seals. The effective dates of the proposed IHA 
(June 1, 2022 through October 1, 2022) occur when the elephant seal 
presence is at its lowest and any harbor seal pups that may be on site 
would be old enough to be self-sufficient if the colony temporarily 
flushes into the water. No elephant seal pups are expected to be 
present during the work season.
    To the extent possible, the BLM would limit the daily number of 
vehicle trips between the project area and the contractor's offshore 
camp where additional tools and supplies would be stored in trailers or 
other storage containers.
    While accessing and departing the project site, trained PSOs would 
monitor ahead of the vehicle(s) path, using binoculars if necessary, to 
detect any marine mammals prior to approach to determine if mitigation 
(e.g., change of course, slow down) is required. Vehicles would not 
approach within 20 m of marine mammals. If animals remain in the access 
path with no possible route to go around and maintain 20 m separation, 
a PSO may walk toward the animals and intentionally flush them into the 
water to allow the vehicle(s) to proceed. To the extent possible, if 
multiple vehicles are traveling to the site, they should travel in a 
convoy such that animals are not potentially harassed more than once 
while the vehicles pass.
    At least one PSO will arrive onsite 10 minutes ahead of contractors 
each day to obtain counts in two separate locations viewing both 
haulouts before work commences.
    A fence would be erected to keep elephant seals from entering the 
construction area to limit disturbance and prevent accidental injury 
from vehicles and construction debris.
    All helicopters associated with the project would slowly approach 
the work site and allow all marine mammals present to flush into the 
water before setting any hauled materials down on the ground.
    The BLM must cease or delay visits to the project site if a species 
for which the number of takes that have been authorized for a species 
are met, or if a species for which takes were not authorized, is 
observed.
    Based on our evaluation of the applicant's proposed measures, NMFS 
has preliminarily determined that the proposed mitigation measures 
provide the means of 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 an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present while 
conducting the activities. 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 activity; or (4) biological or 
behavioral

[[Page 17535]]

context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and,
     Mitigation and monitoring effectiveness.

Visual Monitoring

    At least one NMFS-approved PSO would travel to and from the 
construction site ahead of the work crew each day and serve as a lead 
monitor to record incidental take. PSOs would consist of BLM wildlife 
biologists, biological technicians, and interns, as well as King Range 
National Conservation Area staff. At least one PSO would monitor the 
beach surrounding the PGL during all construction activities.
    PSOs should have the following qualifications:
     Ability to conduct field observations and collect data 
according to assigned protocols;
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number of species of 
marine mammals observed; dates and times when construction activities 
were conducted; dates, times, and reason for implementation of 
mitigation (or why mitigation was not implemented when required); and 
marine mammal behavior; and
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammal 
observed in the area when necessary.
    PSOs must record the following information for each day of work:
     Date, time, and access route of each visit to the work 
site;
     Information on the weather, including tidal state and 
estimated horizontal visibility;
     Composition of marine mammals observed, such as species, 
sex, and life history stage (e.g., adult, sub-adult, pup);
     Estimated numbers (by species) of marine mammals observed 
during the activities;
     Location of marine mammals observed during construction 
activities.
     Marine mammal disturbances according to a three-point 
scale of intensity (see Table 2)
     Behavioral responses or modifications of behaviors that 
may be attributed to the specific activities, a description of the 
specific activities occurring during that time (e.g., pedestrian, 
vehicle, or helicopter approach), and any mitigation action taken; and
     Note the presence of any offshore predators (date, time, 
number, and species).

Reporting

    The BLM would report all observations of marked or tag-bearing 
pinnipeds or carcasses and unusual behaviors, distributions, or numbers 
of pinnipeds to the NMFS West Coast Regional Office.
    A draft marine mammal monitoring report would be submitted to NMFS 
within 90 days after the completion of each work season, or 60 days 
prior to the requested issuance date of any future IHAs for projects at 
the same location, whichever comes first. A final report must be 
prepared and submitted within 30 days following resolution of any 
comments on the draft report from NMFS. If no comments are received 
from NMFS on the draft report, the draft report will be considered the 
final report. The marine mammal report would include an overall 
description of work completed, a narrative regarding marine mammal 
sightings and behavioral response to construction activities, and 
associated PSO data sheets.
    In addition to submitting raw sightings data, the report must 
include:
     Dates, and times (begin and end) of all marine mammal 
monitoring;
     Construction activities occurring during each daily 
observation period such as supply transport via ground and/or 
helicopter, fence installation, trail maintenance, and demolition etc.;
     PSO locations during marine mammal monitoring; and
     Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), and any relevant weather conditions including fog, sun 
glare, and estimated observable distance.
    Prior to the commencement of activities, on each subsequent hour 
during construction, and before finishing construction each day, PSOs 
would record and report the following marine mammal observations:
     Name of the PSO who completed the observations and PSO 
location and activity at the time of recording;
     Time of observation;
     The number (by species) of marine mammals observed during 
the activities, by age and sex, if possible, and distances to 
construction activities. Data may be reported according to groups in 
cases where animals are concentrated together;
     The behavioral response of marine mammals (by species, 
age, and sex as possible) to construction activities based on the 3 
point scale (Table 2), including distances to construction activities 
and descriptions of construction activities occurring at the time of 
observance. When pinnipeds are concentrated in groups, closest distance 
of the group to construction activities may be reported;
     A description of the implementation and effectiveness of 
the monitoring and mitigation measures of the IHA and full 
documentation of methods, results, and interpretation pertaining to all 
monitoring.
    Separately, the same information should be recorded and reported 
each time Level 2 or Level 3 harassment of marine mammals is observed.

Reporting Injured or Dead Marine Mammals

    In the event that the BLM or any other personnel involved in the 
activities discover an injured or dead marine mammal, the BLM would 
report the incident to the NMFS Office of Protected Resources (OPR) 
([email protected]) and to the West Coast Regional 
Stranding Coordinator as soon as feasible. If the death or injury were 
clearly caused by a specific activity, the BLM would immediately cease 
the specified activities until NMFS is able to review the circumstances 
of the incident and determine what, if any, additional measures are 
appropriate to ensure compliance with the terms of the IHA. The BLM 
would not resume their activities until notified by NMFS. The report 
must include the following information:
     Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
     Species identification (if known) or description of the 
animal(s) involved;

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     Condition of the animal(s) (including carcass condition of 
the animal is dead);
     Observed behaviors of the animal(s), if alive;
     If available, photographs or video footage of the 
animal(s); and
     General circumstances under which the animal was 
discovered.

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 impacts or responses (e.g., intensity, duration), 
the context of any impacts or responses (e.g., critical reproductive 
time or location, foraging impacts affecting energetics), 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' 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 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 analysis applies to all 
the species listed in Table 4, 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. 
Activities associated with Phase 2 of the PGL stabilization project, as 
described previously, have the potential to disturb or displace marine 
mammals. Specifically, the specified activities may result in take, in 
the form of Level B harassment (behavioral disturbance) from in-air 
sounds and visual disturbance. Potential takes could occur if 
individual marine mammals are present nearby when activity is 
happening.
    No injuries or mortalities are anticipated to occur as a result of 
the PGL stabilization project and none are proposed to be authorized. 
The risk of marine mammal injury, serious injury, or mortality 
associated with the proposed construction project increases somewhat if 
disturbances occur during pupping 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. However, the proposed activities would occur outside of the 
elephant seal pupping season, therefore no elephant seal pups are 
expected to be present. Although the timing of the proposed activities 
would partially overlap with harbor seal pupping season, the PGL is not 
a harbor seal rookery and few pups are anticipated to be encountered 
during the proposed construction. In fact, the daily average of harbor 
seal pups present at PGL during 2022 construction (June 22-September 1) 
was just 1.7. Harbor seals are very precocious with only a short period 
of time in which separation of a mother from a pup could occur. The 
proposed activities would occur late enough in the pupping season that 
any harbor seal pups present would likely be old enough to keep up with 
their mother in unlikely event of a stampede or other flushing event. 
The proposed mitigation measures (i.e., minimum separation distance, 
slow approaches, and minimizing vehicle trips to the PGL) generally 
preclude the possibility of behaviors, such as stampeding, that could 
result in extended separation of mothers and dependent pups or 
trampling of pups.
    Effects on individuals that are taken by Level B harassment, on the 
basis of reports in the literature as well as monitoring from other 
similar activities including phase 1 construction at this site, will 
likely be limited to reactions such as alerts or movements away from 
the lighthouse structure, including flushing into the water. Most 
likely, individuals will simply move away from the acoustic or visual 
stimulus and be temporarily displaced from the areas. In fact, during 
the first year of construction at PGL elephant seals were not observed 
flushing at any point during construction and were only observed moving 
on 11 occasions. Harbor seals were observed flushing 255 times and 
moving 322 times, which represents a small fraction (6%) of the Level B 
harassment authorized for the project (BLM 2022).
    Monitoring reports from similar activities (e.g., Point Blue 
Conservation Science, 2020; University of California Santa Cruz 
Partnership for Interdisciplinary Studies of Coastal Oceans, 2021) have 
reported no apparently consequential behavioral reactions or long-term 
effects on marine mammal populations as noted above. Repeated exposures 
of individuals to relatively low levels of sound and visual disturbance 
outside of preferred habitat areas are unlikely to significantly 
disrupt critical behaviors or result in permanent abandonment of the 
haulout site. Thus, even repeated Level B harassment of some small 
subset of the overall stock is unlikely to result in any significant 
realized decrease in viability for the affected individuals, and thus 
would not result in any adverse impact to the stock as a whole. Level B 
harassment will be reduced to the level of least practicable adverse 
impact through use of mitigation measures described herein and, if 
sound and visual disturbance produced by project activities is 
sufficiently disturbing, animals are likely to simply avoid the area 
while the activity is occurring.
    Of the marine mammal species anticipated to occur in the proposed 
activity areas, none are listed under the ESA and there are no known 
areas of biological importance in the project area. 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 displacement from haulout sites. The Lost Coast area has 
abundant haulout areas for pinnipeds to temporarily relocate, and 
marine mammals are expected to return to the area shortly after 
activities cease. No adverse effects to prey species are anticipated as 
no work would occur in-water, and habitat impacts are limited and 
highly localized, consisting of construction work at the existing 
lighthouse station and the transit of vehicles and equipment along the 
access route. 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 the BLM's

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PGL stabilization project 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 any of the species 
or stocks through effects on annual rates of recruitment or survival:
     No serious injury or mortality, or Level A harassment is 
anticipated or proposed to be authorized;
     Few pups are expected to be disturbed, and would not be 
abandoned or otherwise harmed by other seals flushing from the area;
     Effects of the activities would be limited to short-term, 
localized behavioral changes;
     Nominal impacts to pinniped habitat are anticipated
     No biologically important areas have been identified in 
the project area;
     There is abundant suitable habitat nearby for marine 
mammals to temporarily relocate; 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 previously, only take of small numbers of marine mammals 
may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one-third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    With the exception of Pacific harbor seals, the amount of take NMFS 
proposes to authorize is well below one-third of any stock's best 
population estimate (see Table 4), which NMFS considers to be small 
relative to stock abundance. In fact, the annual take by Level B 
harassment is less than 1% of stock abundance for both otariid species 
that may be encountered in the project area (i.e., California sea lion 
and Steller sea lion), and less than 4 percent of the northern elephant 
seal stock's best population estimate. While the estimated take of 
Pacific harbor seal equates to over 33% of the Pacific harbor seal 
stock, these takes represent instances of take, not necessarily the 
number of individual seals that may be taken. As such, in all cases, 
including Pacific harbor seal, these take estimates are considered 
conservative because NMFS assumes all takes are of different individual 
animals which is likely not the case. Researchers from HSU have used 
tags and dye stamps to identify individual elephant seals and have 
verified the same individuals are hauling out at PGL. While harbor 
seals are not marked or otherwise clearly identifiable, HSU researchers 
hypothesize that the harbor seal colony at PGL is made up of the same 
individuals that move between Punta Gorda and other nearby haulouts. 
This is based on the fact that this species typically shows hauling 
site fidelity (Herder 1986, Yochem et al., 1987, Dietz et al., 2012, 
Waring et al., 2016). Therefore, many individuals that may be taken by 
Level B harassment are likely to be the same across consecutive days, 
despite PSOs counting them as separate takes throughout the duration of 
the project.
    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 would 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.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species, in this case with the West Coast 
Regional Office.
    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.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to the BLM for conducting Phase 2 of the PGL Stabilization 
Project repair in Humboldt County, California between June 1 and 
October 1, 2023, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated. A draft of the 
proposed IHA can be found at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.

Request for Public Comments

    We request comment on our analyses, the proposed authorization, and 
any other aspect of this notice of proposed IHA. We also request 
comment on the potential renewal of this proposed IHA as described in 
the paragraph below. Please include with your comments any supporting 
data or literature citations to help inform decisions on the request 
for this IHA or a subsequent renewal IHA.
    On a case-by-case basis, NMFS may issue a one-time, 1 year renewal 
IHA following notice to the public providing an additional 15 days for 
public comments when (1) up to another year of identical or nearly 
identical activities as described in the Description of Proposed 
Activities section of this notice is planned or (2) the activities as 
described in the Description of Proposed Activities section of this 
notice would not be completed by the time the IHA expires and a renewal 
would allow for completion of the activities beyond that described in 
the Dates and Duration section of this notice, provided all of the 
following conditions are met:

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     A request for renewal is received no later than 60 days 
prior to the needed renewal IHA effective date (recognizing that the 
renewal IHA expiration date cannot extend beyond one year from 
expiration of the initial IHA).
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted under the 
requested renewal IHA are identical to the activities analyzed under 
the initial IHA, are a subset of the activities, or include changes so 
minor (e.g., reduction in pile size) that the changes do not affect the 
previous analyses, mitigation and monitoring requirements, or take 
estimates (with the exception of reducing the type or amount of take).
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    Upon review of the request for renewal, the status of the affected 
species or stocks, and any other pertinent information, NMFS determines 
that there are no more than minor changes in the activities, the 
mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.

    Dated: March 16, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-05964 Filed 3-22-23; 8:45 am]
BILLING CODE 3510-22-P