[Federal Register Volume 88, Number 96 (Thursday, May 18, 2023)]
[Notices]
[Pages 31693-31701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10640]



[[Page 31693]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC890]


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

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
the Bureau of Land Management (BLM) for authorization to incidentally 
harass marine mammals during construction activities associated with 
Phase 2 of the Punta Gorda Lighthouse (PGL) Stabilization Project in 
Humboldt County, California.

DATES: This authorization is effective from June 1, 2023, through 
October 1, 2023.

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. Section 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et 
seq.) directs 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.

Summary of Request

    On October 26, 2022, NMFS received a request from BLM for an IHA to 
take marine mammals incidental to Phase 2 of the PGL 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 (Eumetopias jubatus) by Level B harassment only. 
Neither BLM nor NMFS expect serious injury or mortality to these marine 
mammals 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 
section in the Federal Register notice for the proposed IHA (88 FR 
17525, March 23, 2023) and Estimated Take sections.
    This IHA covers 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 PGL 
Site. There are no changes from the proposed IHA to the final IHA.

Description of the Planned 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. 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.
    BLM repaired and stabilized the lighthouse building itself during 
the summer of 2022. Construction activities are planned 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.
    A detailed description of the planned lighthouse stabilization 
project is provided in the Federal Register notice for the proposed IHA 
(88 FR 17525, March 23, 2023). Since that time, no changes have been 
made to the planned construction activities. Therefore, a detailed 
description is not provided here. Please refer to that Federal Register 
notice for the description of the specific activity.
    Mitigation, monitoring, and reporting measures are described in 
detail later in this document (please see Mitigation and Monitoring and 
Reporting sections).

Comments and Responses

    A notice of NMFS's proposal to issue an IHA to BLM was published in 
the Federal Register on March 23, 2023 (88 FR 17525). That notice 
described, in detail, BLM's activity, the marine mammal species that 
may be affected by the activity, and the anticipated effects on marine 
mammals. During the 30-day public comment period, the United States 
Geological Survey noted that they have ``no comment at this time''. 
NMFS received no other public comments.

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

[[Page 31694]]

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 
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 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 (N/A, 85,369,       5,122       13.7
                                                                                                             2013).
    Pacific Harbor seal.............  Phoca vitulina           California.............  -, -, N             30,968 (N/A 27,348,         1,641         43
                                       richardii.                                                            2012).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ 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.

    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.
    A detailed description of the of the species likely to be affected 
by the lighthouse stabilization project, including brief introductions 
to the species and relevant stocks as well as available information 
regarding population trends and threats, and information regarding 
local occurrence, were provided in the Federal Register notice for the 
proposed IHA (88 FR 17525, March 23, 2023); since that time, we are not 
aware of any changes in the status of these species and stocks; 
therefore, detailed descriptions are not provided here. Please refer to 
that Federal Register notice for these descriptions. Please also refer 
to NMFS' website (https://www.fisheries.noaa.gov/find-species) for 
generalized species accounts.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    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 PGL, and helicopters hovering over 
the site to transport equipment and supplies may have the potential to 
cause behavioral disturbance (Level B harassment) of marine mammals in 
the vicinity of the project area. The Federal Register notice of the 
proposed IHA (88 FR 17525, March 23, 2023) included a discussion of the 
effects of anthropogenic activity on marine mammals and their habitat. 
That information and analysis is incorporated by reference into the 
final determination for the IHA and is not repeated here; please refer 
to the notice of proposed IHA (88 FR 17525, March 23, 2023).
    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 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 to, or reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through the 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

[[Page 31695]]

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 will 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 
authorized. For BLM's activities, behavioral (Level B) harassment is 
limited to movement and flushing, defined by the disturbance scale of 
pinniped responses (Table 2).
    The presence of construction personnel may have the potential to 
cause Level B harassment of marine mammals hauled-out at the PGL and 
along the planned access route. Disturbance includes 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 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, but rather assumes that pinnipeds that move greater 
than two body lengths or longer, or if already moving, 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.

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

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 issued IHA (June 1 until 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               -               -
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               -               -
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                                                   2020 Counts
----------------------------------------------------------------------------------------------------------------
June 4..........................................             177               -               -               -
June 11.........................................              83               -               -               -

[[Page 31696]]

 
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               -               -               -
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                                                   2022 Counts
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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
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

[[Page 31697]]

 
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 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 4 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 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, 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 will 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, two 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.

         Table 4--Authorized Take by Level B Harassment by Species and Percentage of Each Stock Affected
----------------------------------------------------------------------------------------------------------------
                                                                  \a\ Authorized
                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 authorized take represents the estimated number of instances of take, which does not equate to the
  number of individuals that may be taken.


[[Page 31698]]

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 required:
    The work season has been planned to reduce the level of impact on 
elephant and harbor seals. The effective dates of the 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 will 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, BLM will limit the daily number of vehicle 
trips between the project area and the contractor's offshore camp where 
additional tools and supplies will be stored in trailers or other 
storage containers.
    While accessing and departing the project site, trained PSOs will 
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 will 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 will 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 will 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.
    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 planned measures, NMFS 
has determined that the 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.

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 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 will 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 will consist of BLM wildlife 
biologists, biological technicians, and interns, as well as King Range 
National Conservation Area staff. At least one PSO will 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

[[Page 31699]]

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 will 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 will 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 will 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 
will 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; and
     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 BLM or any other personnel involved in the 
activities discover an injured or dead marine mammal, BLM will report 
the incident to the NMFS Office of Protected Resources 
([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, BLM will 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. BLM will 
not resume their activities until notified by NMFS. The report must 
include the following information:
     Time, date, and location (latitude and longitude) of the 
first discovery (and updated location information if known and 
applicable);
     Species identification (if known) or description of the 
animal(s) involved;
     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

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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 will 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 authorized. The risk of 
marine mammal injury, serious injury, or mortality associated with the 
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 
planned activities will occur outside of the elephant seal pupping 
season, therefore no elephant seal pups are expected to be present. 
Although the timing of the activities will 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 planned 
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 planned activities 
will occur late enough in the pupping season that any harbor seal pups 
present will likely be old enough to keep up with their mother in 
unlikely event of a stampede or other flushing event. The 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 percent) 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 
will 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 planned 
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 will 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 planned mitigation and 
monitoring measures, NMFS finds that the total marine mammal take from 
BLM's 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 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 authorized;
     Few pups are expected to be disturbed, and will not be 
abandoned or otherwise harmed by other seals flushing from the area;
     Effects of the activities will be limited to short-term, 
localized behavioral changes;
     Nominal impacts to pinniped habitat are anticipated
     No biologically important areas have bene 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 planned monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
the planned 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

[[Page 31701]]

be authorized under section 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 percent 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 percent 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 authorized activity 
(including mitigation and monitoring measures) and the anticipated take 
of marine mammals, NMFS finds that small numbers of marine mammals will 
be taken relative to the population size of the affected species or 
stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or stocks will 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 (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 authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal consultation under section 7 of the ESA is not required for this 
action.

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 will 
preclude this categorical exclusion. Accordingly, NMFS has determined 
that the issuance of the IHA qualifies to be categorically excluded 
from further NEPA review.

Authorization

    NMFS has issued an IHA to BLM for the potential harassment of small 
numbers of four marine mammal species incidental to the Phase 2 of the 
PGL Stabilization Project repair in Humboldt County, California from 
June 1 through September 30, 2023, that includes the previously 
explained mitigation, monitoring, and reporting requirements.

    Dated: May 10, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-10640 Filed 5-17-23; 8:45 am]
BILLING CODE 3510-22-P