[Federal Register Volume 90, Number 54 (Friday, March 21, 2025)]
[Proposed Rules]
[Pages 13322-13337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-04806]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 250317-0040]
RIN 0648-BN36
Take of Marine Mammals Incidental to Specified Activities; Taking
Marine Mammals Incidental to Rocky Intertidal Monitoring Surveys Along
the Oregon and California Coasts
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS has received a request from University of California
Santa Cruz (UCSC) for Incidental Take Regulations (ITR) and an
associated Letter of Authorization (LOA) pursuant to the Marine Mammal
Protection Act (MMPA). The requested regulations would govern the
authorization of take of marine mammals over 5 years (2025-2030)
incidental to the Multi-Agency Rocky Intertidal Network (MARINe) rocky
intertidal monitoring surveys along the Oregon and California coasts.
NMFS requests public comments on this proposed rule. NMFS will consider
public comments prior to making any final decision on the promulgation
of the requested ITR and issuance of the LOA.
DATES: Comments and information must be received no later than April
21, 2025.
ADDRESSES: A plain language summary of this proposed rule is available
at: https://www.regulations.gov/docket/NOAA-NMFS-2024-0144.
Electronic submissions: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to: https://www.regulations.gov and enter NOAA-NMFS-2024-0144 in the Search box
(note: copying and pasting the FDMS Docket Number directly from this
document may not yield search results). Click on the ``Comment'' icon,
complete the required fields, and enter or attach your comments.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing at:
https://www.regulations.gov without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information submitted voluntarily by the sender
will be publicly accessible. NMFS will accept anonymous comments (enter
``N/A'' in the required fields if you wish to remain anonymous).
A copy of UCSC/MARINe's complete submitted application
(Application), any supporting documents, as well as a list of the
references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-university-california-santa-cruzs-rocky-intertidal-monitoring. In case of problems
accessing these documents, please call the contact listed below (see
FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Jennifer Gatzke, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Purpose and Need for Regulatory Action
This proposed rule, if adopted, would establish a framework under
the authority of the MMPA (16 U.S.C. 1361 et seq.) to authorize, for a
5-year period (2025-2030), take of marine mammals incidental to the
UCSC/MARINe's rocky intertidal research activities in Oregon and
California.
NMFS received an incidental take authorization (ITA) application
from the UCSC/MARINe requesting 5-year regulations and an LOA to take
four species of marine mammals by Level B harassment (Application).
Take of harbor seal (Phoca vitulina richardii), Steller sea lion
(Eumetopias jubatus), northern elephant seal (Mirounga angustirostris),
and California sea lion (Zalophus californianus) would occur by Level B
harassment only, incidental to visual and auditory disturbance of
pinnipeds occurring near research sites. No mortality or serious injury
is anticipated or proposed for authorization. Please see the Estimated
Take of Marine Mammals section below for definitions of harassment.
A previous incidental take authorization was issued in association
with this ongoing, long-term project. That authorization was issued to
the UCSC Partnership for Interdisciplinary Studies of Coastal Oceans
(referred to as UCSC/PISCO). Additional information about that action
can be found at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-university-california-santa-cruz-rocky-intertidal-monitoring-0.
Legal Authority for the Proposed Action
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made, regulations are
promulgated, and public notice and an opportunity for public comment
are provided.
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. NMFS will
pay particular attention to (1) rookeries, mating grounds, and areas of
similar significance, (2) the availability of the species or stocks for
taking for certain subsistence uses (referred to as ``mitigation''),
and (3) the requirements
[[Page 13323]]
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 below.
Section 101(a)(5)(A) of the MMPA and the implementing regulations
at 50 CFR part 216, subpart I, provide the legal basis for proposing
and, if appropriate, issuing 5-year regulations and an associated LOA.
This proposed rule, if adopted, would establish required mitigation,
monitoring, and reporting requirements for the UCSC/MARINe's
activities.
Summary of Major Provisions Within the Proposed Rule
The following is a summary of the major provisions of this proposed
rule regarding UCSC/MARINe's research activities. These provisions
include measures requiring:
Mitigation to minimize impact to pinnipeds and avoid
disruption to dependent pups including several measures to approach
haulouts cautiously to minimize disturbance, especially when pups are
present; and
Monitoring of the research areas to detect the presence of
marine mammals before initiating surveys.
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 evaluate the proposed action (i.e., promulgation of
regulations and subsequent issuance of a 5-year LOA) and alternatives
with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (incidental harassment authorizations
(IHAs) with no anticipated serious injury or mortality) of the
Companion Manual for NAO 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 issuance
of the proposed rule qualifies to be categorically excluded from
further NEPA review. Information in the Application and this document
collectively provide the environmental information related to proposed
issuance of these regulations and subsequent incidental take
authorization for public review and comment. We will review all
comments submitted in response to this notice of proposed rulemaking
prior to concluding our NEPA process and prior to making a final
decision on the request for incidental take authorization.
Summary of UCSC/MARINe Request
On September 6, 2024, NMFS received the initial Application
requesting authorization for take of four species of marine mammals
incidental to rocky intertidal monitoring surveys along the Oregon and
California coasts. After the applicant responded to our questions and
submitted a revised Application, NMFS determined the Application was
adequate and complete on November 26, 2024. On December 5, 2024, we
published a notice of receipt of the Application in the Federal
Register, requesting comments and information related to the request
for 30 days (89 FR 96645). We received no public comments.
The UCSC/MARINe requests authorization to take the following four
species of pinnipeds: harbor seal (Phoca vitulina richardii), Steller
sea lion (Eumetopias jubatus), northern elephant seal (Mirounga
angustirostris), and California sea lion (Zalophus californianus) by
Level B harassment only. The proposed regulations would be valid for 5
years (2025-2030). Neither UCSC/MARINe nor NMFS expects Level A
harassment, serious injury, or mortality to result from this activity
and no such take is authorized by this action.
NMFS previously issued seven IHAs (77 FR 72327, December 5, 2012;
78 FR 79403, December 30, 2013; 79 FR 73048, December 9, 2014; 81 FR
7319, February 11, 2016; 82 FR 12568, March 6, 2017; 83 FR 11696, March
16, 2018; 84 FR 17784, April 26, 2019) to UCSC/PISCO for this work
before issuing a final rule and associated LOA in 2020 (85 FR 18459,
April 2, 2020). UCSC/PISCO complied with all the requirements (e.g.,
mitigation, monitoring, and reporting) of the previous IHAs and LOA.
UCSC monitoring results from 2013 to 2024 may be found in the
Application, which is available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-university-california-santa-cruzs-rocky-intertidal-monitoring.
Description of Proposed Activity
Overview
UCSC/MARINe proposes to continue rocky intertidal monitoring work
that has been ongoing for over 20 years. UCSC/MARINe focuses on
understanding the nearshore ecosystems of the U.S. west coast through a
number of interdisciplinary collaborations. The program integrates
long-term monitoring of ecological and oceanographic processes at
dozens of sites with experimental work in the lab and field. Research
is conducted throughout the year along the California and Oregon coasts
and is expected to continue indefinitely. Researchers accessing and
conducting research activities on the sites may occasionally result in
the incidental take of four pinniped species by incidental, Level B
harassment. UCSC/MARINe expects, and NMFS concurs, that the disturbance
to pinnipeds from the research activities will be limited to Level B
harassment. Take by Level A harassment, serious injury, or mortality is
not authorized by this action.
Dates and Duration
UCSC/MARINE's research is conducted throughout the year. Most sites
are sampled one to two times per year over a 1 to 2-day period (4-6
hours per site) during a negative low tide series (when tides are lower
than the average). Due to the large number of research sites,
scheduling constraints, the necessity for negative low tides and
favorable weather/ocean conditions, exact survey dates are variable and
difficult to predict. Some sampling may occur in all months of the
calendar year. Over the course of this 5-year effective period for the
proposed rule, UCSC/MARINe expects approximately 300 days of survey
effort. The regulations would become effective as soon as possible and
would be effective for a period of five years.
Specific Geographic Region
Sampling sites occur along the California and Oregon coasts.
Community structure monitoring survey sites range from Ecola State Park
near Cannon Beach, Oregon to Government Point located northwest of
Santa Barbara, California. Biodiversity survey sites extend from Ecola
State Park south to Cabrillo National Monument in San Diego County,
California. Exact locations of sampling sites can be found in table 1
of the Application, along with maps at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-university-california-santa-cruzs-rocky-intertidal-monitoring.
Detailed Description of Specific Activity
Community structure monitoring surveys involve the use of permanent
photoplot quadrats, which target specific algal and invertebrate
assemblages (e.g., mussels, rockweeds, barnacles). Each photoplot is
photographed and scored for percent
[[Page 13324]]
cover. The community structure monitoring approach is based largely on
surveys that quantify the percent cover and distribution of algae and
invertebrates that constitute these communities. This approach allows
researchers to quantify both the patterns of abundance of targeted
species, as well as characterize changes in the communities in which
they reside. Such information provides managers with insight into the
causes and consequences of changes in species abundance. There are a
total of 49 community structure monitoring sites, each of which will be
visited one to two times per year (see table 1 of the Application for
details of each site) and surveyed over a 1-day period during a low
tide series.
Biodiversity surveys are part of a long-term monitoring project and
are conducted every 3-5 years across 150 established sites. These
biodiversity surveys involve point contact identification along
permanent transects, mobile invertebrate quadrat counts, sea star band
counts, and tidal height topographic measurements. Many of the
biodiversity survey sites are also community structure sites. During
the five-year period of effectiveness for the regulations, biodiversity
survey sites will be sampled zero to five times (see tables 3-6 in the
Application for details of expected survey frequency).
The intertidal zones where UCSC/MARINe conducts intertidal
monitoring are also areas where pinnipeds can be found hauled out
(i.e., temporarily leaving the water) on the shore at or adjacent to
some research sites. Accessing portions of the intertidal habitat at
these locations may cause incidental Level B harassment of pinnipeds
through some unavoidable approaches if pinnipeds are hauled out
directly in the study plots or while biologists walk from one location
to another. Disturbance may also occur when researchers replace survey
marker bolts using an electric rotary hammer drill.
UCSC/MARINe also plans the occasional use of unmanned aerial
vehicles (UAVs), which is a new component to this survey activity. They
operate two quadcopter UAV models: a Da-Jiang Innovations (DJI)
Miniature Autonomous Vehicle with Intelligent Controller (MAVIC) 2 Pro
and a DJI Mavic 3 Enterprise. UCSC/MARINe conducts flights from 10-30
meters altitude for mapping and photography. UAVs can cause behavioral
response in pinnipeds from both visual and acoustic stimuli. This
response can range from alertness to flushing (i.e., disturbing from
its position) depending on factors such as UAV altitude, conditions
such as ambient noise from swell and wind, and the pinniped's level of
habituation to disturbance (Christiansen et al. 2016, P[eacute]rez
Tadeo et al. 2023). UAVs trigger a stronger response when hovering
compared to when in motion (P[eacute]rez Tadeo et al. 2023). UCSC/
MARINe UAV flights typically occur at 10-30 meters altitude and are
done autonomously (while under control of a licensed UAV pilot) to map
the survey area and to achieve proper image overlap for photogrammetry
processing. Flight speed is typically 1 to 2 meters/second and hovering
only occurs during take-off and landing. If pinnipeds are present
during a UAV flight and a response is triggered by the UAV, the pilot
will take control of the UAV and increase altitude before ending the
flight to minimize effects on the animals. Please see the Proposed
Mitigation and Proposed Monitoring and Reporting sections for the
proposed mitigation, monitoring, and reporting measures.
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the Application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history, of the potentially affected species.
Additional information regarding population trends and threats may be
found in NMFS's Stock Assessment Reports (SARs) at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. More general information about these species (e.g.,
physical and behavioral descriptions) may be found on NMFS's website
at: 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 the 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 (16 U.S.C. 1362(20)).
While no serious injury or mortality is anticipated or authorized by
this action, 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's stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS' 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 Final 2023 SARs) and are available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.
Table 1--Marine Mammals Potentially Present Near the UCSC/MARINe Research Sites, According to the Most Recent NMFS SARs
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ESA/ MMPA Stock abundance (CV,
status; Nmin, most recent Annual M/
Common name Scientific name Stock strategic (Y/N) abundance survey) PBR SI \3\
\1\ \2\
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Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and
sea lions):
California sea lion.......... Zalophus U.S................. -; N 257,606 (n/a; 14,011 >321
californianus. 233,515; 2014).
Steller sea lion............. Eumetopias jubatus.. Eastern U.S......... -; N 36,308 (n/a; 36,308; 2,178 (U.S. only) 92.3
2022).
Family Phocidae (earless seals):
Harbor seal.................. Phoca vitulina...... California.......... -; N 30,968 (n/a; 27,348; 1,641 43
2012).
[[Page 13325]]
Oregon/Washington... -; N 24,732 (unknown; unknown 10.6
16,165 mean; 1999)
\4\.
Northern elephant seal....... Mirounga California.......... -; N 187,386 (n/a; 5,122 13.7
angustirostris. 85,369; 2013).
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\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR or which is determined to be declining and likely to be listed under the ESA in the near future. Any species or stock listed under the ESA
is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These Mortality/Serious Injury (M/SI) values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all
sources combined (e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a
minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ The most recent abundance estimate for this stock (24,732 animals) is from 1999 surveys (Final 2023 SAR), with a mean calculated at 16,165 animals.
We note that although the southern sea otter may be found from San
Francisco south to the Channel Islands, that species is managed by the
U.S. Fish and Wildlife Service and are not considered further in this
document.
California Sea Lions
California sea lions (Zalophus californianus) are distributed along
the west coast of North America from British Columbia to Baja
California and throughout the Gulf of California. Breeding occurs on
offshore islands along the west coast of Baja California and the Gulf
of California as well as on the California Channel Islands. There are
three recognized California sea lion stocks (U.S. stock, Western Baja
stock, and the Gulf of California stock) with the U.S. stock ranging
from the U.S./Mexico border into Canada. Although there is some
movement between stocks, U.S. rookeries are considered to be isolated
from rookeries off of Baja California (Barlow et al. 1995).
Following the passage of the MMPA in 1972, as well as limits on
killing and harassment in Mexico, the population has rapidly increased
(Reeves et al. 2002). Declines in pup production did occur during the
1983-84, 1992-93, 1997-98, and 2003 El Ni[ntilde]o events, but
production returned to pre-El Ni[ntilde]o levels within 2-5 years
(Carretta et al. 2017). In 2013, due to the elevated number of sea lion
pup strandings in southern California, NOAA declared an Unusual
Mortality Event (UME), which lasted until September 2016. The cause of
this event was thought to be nutritional stress related to declines in
prey availability. California sea lions have been observed in the
project vicinity at 41 of the research sites (see Application table 4).
Steller Sea Lion
Steller sea lions (Eumetopias jubatus) range along the North
Pacific Rim from northern Japan to California, with centers of
abundance and distribution in the Gulf of Alaska and Aleutian Islands.
Outside of their late May to early July breeding season, large numbers
of individuals widely disperse to access seasonally important prey
resources (Muto et al. 2019). In 1997, NMFS identified two distinct
population segments (DPSs) of Steller sea lions under the ESA: a
Western DPS and an Eastern DPS (62 FR 24345, May 5, 1997). While the
Western DPS is listed as endangered, the Eastern DPS is not. For MMPA
purposes, the Eastern DPS is called the Eastern U.S. stock and the
Western DPS is called the Western U.S. stock. The Steller sea lions
along the Oregon and California coasts are part of the Eastern Stock
(and DPS). Steller sea lions are rare in the research areas. They have
only been observed in the project vicinity at Cape Arago in 2009 and
have not been observed during this research project since then.
Northern Elephant Seal
Northern elephant seals (Mirounga angustirostris) range widely
throughout the eastern Pacific for most of the year to forage. They
return to haulout locations along the west coast of the continental
United States including the Channel Islands, the central California
coast, and islands off Baja California, to breed and molt. Breeding
occurs from mid-December through the end of March, with males returning
to haulout locations earlier than females to establish dominance
hierarchies. Molting occurs from late April to August, with juveniles
and adult females returning to haulout locations earlier than adult
males (Reeves et al. 2002). Due to very little movement between
colonies in Mexico and those in California, the California population
is considered to be a separate stock (Carretta et al. 2019).
This species was hunted for several thousand years and thought to
be extinct. (Stewart et al. 1994). The population began increasing in
the early 1900s and progressively colonized southern and central
California through the 1980s (Reeves et al. 2002). The population is
reported to have grown at 3.1 percent annually since 1988 (Lowry et al.
2020) and have been observed at 14 of the research sites (see
Application table 5).
Pacific Harbor Seal
Before federal protections, commercial hunting of harbor seals
along the west coast depleted the California stock to isolated groups
in the hundreds (Bartholomew and Boolootian 1960), but the population
increased in the late 1900s (Carretta et al. 2023). Under the MMPA,
harbor seals are not considered to be `depleted', nor are they listed
as `threatened' or `endangered' under the ESA. Based on currently
available data, minimum numbers of serious injury and mortality, due to
fishery interactions, research activities, and other human related
causes, are thought to be low when compared to population sizes of
stocks (Carretta et al. 2023). A complete count of harbor seals is not
possible because it relies upon all animals being hauled out of the
water at the same time, and pups enter the water almost immediately
following birth.
Pacific harbor seals (Phoca vitulina richardii) inhabit near-shore
coastal and estuarine areas from Baja California, Mexico, to the
Pribilof Islands in Alaska. They are divided into two subspecies: P. v.
stejnegeri in the western North Pacific, near Japan, and P. v.
richardii in the northeast Pacific Ocean. The latter subspecies
includes two stocks protected under the MMPA
[[Page 13326]]
in the project area: the Oregon and Washington Coast stock in the outer
coastal waters of Oregon and Washington States, and the California
stock (Carretta et al. 2019).
In Oregon there are over 40 haulout sites (Brown et al. 2005),
while in California, over 500 harbor seal haulout sites are widely
distributed along the mainland and offshore islands, and include rocky
shores, beaches and intertidal sandbars (Lowry et al. 2005). Harbor
seals mate at sea, and females give birth during the spring and summer,
although, the pupping season varies with latitude. Pups are nursed for
an average of 24 days and are ready to swim minutes after being born.
Harbor seal pupping takes place at many locations, and rookery size
varies from a few pups to many hundreds of pups. Pupping generally
occurs between March and June, and molting occurs between May and July.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
This section includes a discussion of the ways that components of
the specified activity may impact marine mammals and their habitat. The
Estimated Take of Marine Mammals 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 of Marine Mammals section, and the Proposed Mitigation
section, to draw conclusions regarding the likely impacts of these
activities on the reproductive success or survivorship of individuals
and how those impacts on individuals are likely to impact marine mammal
species or stocks.
The presence of researchers has the potential for the incidental
take of pinnipeds hauled out at sampling sites by Level B harassment
of. If pinnipeds are hauled out in the immediate vicinity of the
permanent study plots, approach by survey personnel may be unavoidable
in order to conduct the research. Disturbance from such approach may
result in reactions ranging from an animal simply becoming alert to the
presence of researchers (e.g., turning the head, assuming a more
upright posture) to flushing from the haulout site into the water. NMFS
does not consider these lesser reactions to constitute take by Level B
harassment, but rather assumes that more substantive responses (e.g.,
flight over greater distance or notable change in the speed or
direction of their movement in response to the presence of researchers)
constitute behavioral harassment. Animals that respond to the presence
of researchers by becoming alert, but do not move or change the nature
of locomotion as described, are not considered to have been subject to
Level B harassment.
Numerous studies have shown that human activity can flush harbor
seals off haulout sites (Allen et al. 1985, Suryan and Harvey 1999).
The Hawaiian monk seal (Neomonachus schauinslandi) has been shown to
avoid beaches that have been disturbed often by humans (Kenyon 1972).
Moreover, in one case, human disturbance appeared to cause Steller sea
lions to desert a breeding area at Northeast Point on St. Paul Island,
Alaska (Kenyon 1962).
There are several ways in which disturbance, as described
previously, could potentially result in Level A harassment, which is
defined as any act of pursuit, torment, or annoyance which has the
potential to injure a marine mammal or marine mammal stock in the wild
(16 U.S.C. 1362(18)(A)(i)). Stampeding, a potentially dangerous
occurrence in which large numbers of animals succumb to mass panic and
rush away from a stimulus, can lead to injury. The risks for injury are
(1) falling when entering the water at high-relief locations; (2)
extended separation of mothers and pups; and (3) crushing of elephant
seal pups by large males during a stampede. UCSC researchers have only
recorded one instance of stampeding, which occurred in 2013. Because
pups are typically found on sand beaches, and the study sites are
located in the rocky intertidal zone, there is typically a buffer
between researchers and pups. The caution exercised by researchers in
approaching sites generally precludes the possibility of behaviors that
could result in extended separation of mothers and dependent pups, or
trampling of pups (e.g., stampeding).
Because hauled out animals may move towards the water when
disturbed, there is the risk of injury if animals stampede towards
shorelines with precipitous relief (e.g., cliffs). Shoreline habitats
near the survey areas tend to consist of steeply sloping rocks with
unimpeded and unobstructed access to the water. If disturbed, hauled
out animals in these situations are likely to move toward the water
slowly without risk of unexpectedly falling off cliffs or encountering
barriers or hazards or that would otherwise prevent them from leaving
the area. Using a cautious approach (i.e., following mitigation
measures), research activity is not likely to risk injury or death as a
result of disturbance at these high-relief locations. Therefore, it is
unlikely that these disturbances will result in Level A harassment,
serious injury, or mortality, and NMFS is not proposing to authorize
take by Level A harassment, serious injury, or mortality resulting from
this research activity. A small number of harbor seal, northern
elephant seal, and California sea lion pups have been observed in the
research area during past years, and few pups are expected to be
present during the proposed monitoring surveys. Though elephant seal
pups are occasionally present when researchers visit survey sites, risk
of pup mortalities is low because elephant seals are far less reactive
to researcher presence than the other two species. Due to the
implementation of mitigation measures, it is unlikely that harbor seal
pups will be injured. Surveys are timed to avoid harbor seal breeding
season (March through June), and researchers shall abort the survey if
they arrive and see harbor seal pups are present.
The only habitat modification associated with the proposed activity
is the placement of permanent bolts and temporary sampling equipment in
the intertidal zone. The installation of bolts and sampling equipment
is conducted under the appropriate permits (National Marine Sanctuary,
California State Parks). Once a particular study has ended, the
respective sampling equipment is removed, while the bolts remain. No
trash or field gear is left at a site. Since these sites are only
visited one to two times per year, minimizing repeated disturbances,
sampling activities are not expected to result in long-term
modifications of haulout use, nor haulout abandonment. During periods
of low tide (e.g., when tides are 0.6 m (2 ft) or less and low enough
for pinnipeds to haul out), we would expect the pinnipeds to return to
the haulout site within 60 minutes of the disturbance (Allen et al.
1985).
During prior authorizations, only temporary displacement from
haulouts has been observed, so we do not expect that pinnipeds will
permanently abandon a haulout site during the conduct of rocky
intertidal surveys. Additionally, impacts to prey species from survey
activities are not anticipated. Thus, the proposed activity is not
expected to have any habitat-related effects that could cause
significant or long-term consequences for individual marine mammals or
their populations.
Estimated Take of Marine Mammals
This section provides an estimate of the number of incidental takes
of the four species of pinnipeds by Level B harassment proposed for
authorization through this proposed rule, which will
[[Page 13327]]
inform both NMFS' consideration of ``small numbers'' and the negligible
impact determination.
Harassment, defined previously in the Purpose and Need for
Regulatory Action section, is the only type of take expected to result
from these activities.
Authorized takes would be by Level B harassment only, in the form
of potential disruption of behavioral patterns for individual marine
mammals resulting from exposure to researchers and the operation of
their equipment. Based on the nature of the activity, Level A
harassment is neither anticipated nor proposed to be authorized. As
described previously, no mortality is anticipated or proposed to be
authorized for this activity. We describe how the proposed take numbers
are estimated below. Monitoring reports from the previously issued LOA
(2020-2025), including Level B harassment take numbers, are available
on our website at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-university-california-santa-cruz-rocky-intertidal-monitoring-0.
Marine Mammal Occurrence
In this section, we provide the information about the presence,
density, or group dynamics of marine mammals that will inform the take
calculations. Take estimates are based on historical marine mammal
observations from 2013-2024 at each site from previous UCSC/PISCO
(MARINe) survey activities. Marine mammal observations are recorded as
part of research site observations, including notes on physical and
biological conditions at the site, completed on each study day. From
2013-2024 observations were categorized on a four point scale:
0 = observation by researchers from a distance, no reaction by
pinniped
1 = pinniped reacted to presence of researchers with movement
<1 meter
2 = pinniped reacted to presence of researchers with short
movement of 1-3 meters
3 = pinniped flushed (i.e., disturbed from its position) to
the water or moved >3 meters in retreat
A marine mammal is recorded as an ``encounter'' (i.e., at least
level 0 on the above scale) if it is seen on access ways to the site,
at the site, or immediately up-coast or down-coast of the site,
regardless of whether that animal was considered a take under the MMPA.
Also recorded are marine mammals in the water immediately offshore.
Using the above scale, level 2 and level 3 observations constitute a
take under the MMPA.
Once sampling is concluded, researchers record the maximum number
of marine mammals (by species) sighted at any given time throughout the
sampling day (categories 0 through 3). Other relevant information is
also noted, including the location of a marine mammal relevant to the
site, unusual behavior, and the presence of pups.
Take Calculation and Estimation
Researchers with extensive knowledge and experience at each site
estimated the actual number of marine mammal takes likely to occur,
using the observations described above. Take estimates for each species
were based on the following equation:
Take estimate/survey site = # of expected animals/site * # of planned
survey events/survey site.
UCSC/MARINe summed the total number of each species of marine
mammal ``encountered'' at each research site during the period from
2013 to 2024 (observations score between 0 to 3 on the above scale). To
calculate the number of expected animals per site, they summed the
number of sampling events where marine mammals were encountered at each
site and calculated the average number of encounters per event (see
tables 2-5). Less than 40 percent of all encounters qualified as
incidental take by Level B harassment (see Application Section 6);
therefore, calculated take estimates are expected to be conservative.
The maximum number of planned survey events per survey site is listed
in tables 2-5. For Steller sea lions, the single sighting from 2009 was
used in this analysis. Calculation results for the take estimate by
species per survey site can also be found in tables 2-5.
In coming years, UCSC plans to re-establish monitoring plots for
historic black abalone (an endangered marine gastropod) on Ano Nuevo
Island, CA. Since they did not have monitoring data to inform their
take estimates, these estimates were calculated based on prior
experience on the island, as well as discussions with Ano Nuevo Reserve
personnel and other UCSC researchers who conduct studies on the island.
Site visits are planned for the fall during non-breeding season for
marine mammals. Locations of fall sea lion and elephant seal haulouts
were compared to the research plots to establish the best estimates for
species occurrence per site.
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Table 3--Data and Calculations To Estimate Proposed Take of California Sea Lions
----------------------------------------------------------------------------------------------------------------
Expected maximum
Site Encounters/ number of survey Calculated take
event events 2025-2030 2025-2030
----------------------------------------------------------------------------------------------------------------
Alder Creek............................................. 1 0 0
Andrew Molera........................................... 1 10 10
Bird Rock............................................... 30.5 1 31
Bodega.................................................. 2.75 5 14
Cape Arago.............................................. 15.5 5 78
Cayucos................................................. 1 5 5
Crook Point............................................. 3 0 0
Cuyler Harbor........................................... 1 1 1
Del Mar Landing......................................... 6.5 1 7
[[Page 13330]]
Eel Point............................................... 1.5 2 3
Enderts................................................. 2 5 10
False Klamath Cove...................................... 2.3 5 12
Franklin Point.......................................... 2 5 10
Fraser Cove............................................. 1 1 1
Gerstle Cove............................................ 1 5 5
Government Point........................................ 3.5 25 88
Kibesillah Hill......................................... 1.5 5 8
Marker poles............................................ 200 0 0
Middle West............................................. 1 1 1
Old Stairs.............................................. 1.5 1 2
Otter Harbor............................................ 13 0 0
Partington Cove......................................... 1 5 5
Piedras Blancas......................................... 27.5 5 138
Point Conception........................................ 1 1 1
Point Dume.............................................. 4 0 0
Point Lobos............................................. 1 10 10
Point Pinos............................................. 1 5 5
Point Sierra Nevada..................................... 1 5 5
Punta Arena............................................. 1 0 0
Purisma................................................. 1 5 5
Sandhill Bluff.......................................... 6 10 60
Scott Creek............................................. 1 10 10
Sea Lion Rookery........................................ 40 1 40
Sea Ranch............................................... 3 5 15
Shell Beach............................................. 1 5 5
Shelter Cove............................................ 1.5 5 8
Soberanes............................................... 2.5 5 13
Stairs.................................................. 1 5 5
Stillwater.............................................. 1.5 10 15
Stornetta............................................... 1.3 5 7
Terrace Point........................................... 1.6 10 17
Ano Nuevo Island........................................ .............. 5 2,500
-------------------------------------------------------
Total............................................... .............. .................. 3,150
----------------------------------------------------------------------------------------------------------------
Table 4--Data and Calculations To Estimate Proposed Take of Elephant Seals
----------------------------------------------------------------------------------------------------------------
Expected maximum
Site Encounters/ number of survey Calculated take
event events 2025-2030 2025-2030
----------------------------------------------------------------------------------------------------------------
Ano Nuevo............................................... 5 1 5
Boat House.............................................. 5.5 10 55
Chimney Rock............................................ 12.8 5 64
Coches Prietos.......................................... 1 0 0
Crook Point............................................. 1.5 0 0
Cuyler Harbor........................................... 1.5 1 2
Government Point........................................ 3 25 75
Harmony Headlands....................................... 1 5 5
Marker Poles............................................ 200 0 0
Mill Creek.............................................. 1 10 10
Otter Harbor............................................ 4.5 0 0
Piedras Blancas......................................... 7.8 5 39
Point Sierra Nevada..................................... 1 5 5
Tranquility Beach....................................... 50 0 0
Ano Nuevo Island........................................ .............. 5 500
-------------------------------------------------------
Total............................................... .............. .................. 760
----------------------------------------------------------------------------------------------------------------
Table 5--Data and Calculations To Estimate Proposed Take of Steller Sea Lions
----------------------------------------------------------------------------------------------------------------
Expected maximum
Site Encounters/ number of survey Calculated take
event events 2025-2030 2025-2030
----------------------------------------------------------------------------------------------------------------
Cape Arago.............................................. 5 5 50
[[Page 13331]]
Ano Nuevo Island........................................ .............. 5 25
-------------------------------------------------------
Total............................................... .............. .................. 75
----------------------------------------------------------------------------------------------------------------
The species' totals for each survey site were summed to arrive at a
total estimated take for the entire duration of the proposed rule
across all four impacted species of pinnipeds. This is listed as the
total take (table 6).
Table 6--Proposed Authorized Incidental Take by Level B Harassment (in Total and per Year) and Percentage of
Populations Affected
----------------------------------------------------------------------------------------------------------------
Proposed authorized incidental take
Abundance (Caretta (Level B harassment only)
Species et al. 2023, Young --------------------------------------
et al. 2023) Take over 5 Take per % of
years year population
----------------------------------------------------------------------------------------------------------------
Harbor seal--CA stock (Phoca vitulina)............. 30,968 1462 292 0.94
Harbor seal--WA/OR stock (Phoca vitulina).......... 24,732 150 30 0.12
California sea lion (Zalophus californianus)....... 257,606 3150 630 0.24
Northern elephant seal (Mirounga angustirostris)... 187,386 760 152 0.08
Steller sea lion ((Eumetopias jubatus)............. 36,308 75 15 0.04
----------------------------------------------------------------------------------------------------------------
Proposed Mitigation
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 (the latter is
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 (e.g., likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented (i.e.,
probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability of
accomplishing the mitigating result if implemented as planned); and
(2) The practicability of the measures for applicant
implementation, which may consider cost and impact on operations.
UCSC/MARINe will implement several mitigation measures to reduce
potential take by Level B harassment. Measures are listed below.
Researchers will observe a site from a distance for at
least 5 minutes, using binoculars, if necessary, to detect any marine
mammals prior to approach to determine if mitigation is required (i.e.,
site surveys will not be conducted if other pinnipeds are present,
researchers will approach with caution, walking slowly, quietly, and
close to the ground to avoid surprising any hauled out individuals and
to reduce flushing/stampeding of individuals).
Researchers will avoid pinnipeds along access ways to
sites by locating and taking a different access route. Researchers will
keep a safe distance from, and not approach, any marine mammal while
conducting research unless it is absolutely necessary to flush (i.e.,
disturb from its position) a marine mammal in order to continue
conducting research (i.e. if a site cannot be accessed or sampled due
to the presence of pinnipeds).
Researchers will avoid making loud noises (e.g., using
hushed voices) and keep bodies low to the ground (i.e., crouched) in
the visual presence of pinnipeds.
Researchers will monitor the offshore area for predators
(e.g., killer whales and great white sharks) and avoid flushing of
pinnipeds when predators are observed in nearshore waters. Note that
UCSC/MARINe has never observed an offshore predator while researchers
were present at any of the survey sites.
Intentional approach will not occur if dependent pups are
present to avoid mother/pup separation and trampling of pups. Staff
shall reschedule work at sites where pups are present unless other
means of accomplishing the work can be done without causing disturbance
to mothers and dependent pups.
When operating UAVs around pinnipeds, altitude will not
drop below 10 meters.
Researchers will promptly vacate sites at the conclusion
of sampling.
The primary methods of mitigating the risk of disturbance to
pinnipeds is the selection of judicious routes of approach to study
sites, avoiding close contact with pinnipeds hauled out on shore, and
the use of extreme caution upon approach. Each visit to a given study
site will last for approximately 4-6 hours, after which the site is
vacated and can be re-occupied by any marine mammals that may have been
disturbed by the presence of researchers. Also,
[[Page 13332]]
workers will be arriving before low tide, worker presence will tend to
encourage pinnipeds to move to other areas for the day before they haul
out and settle onto rocks at low tide.
Based on our evaluation of the applicant's proposed measures, NMFS
has preliminarily determined that the proposed mitigation measures
provide the means effecting the least practicable impact on the
affected species or stocks and their habitat, paying particular
attention to rookeries, mating grounds, and areas of similar
significance.
Proposed Monitoring and Reporting
In order to issue regulations and an LOA for an activity, Section
101(a)(5)(A) of the MMPA states that NMFS must set forth requirements
pertaining to the monitoring and reporting of such taking. The MMPA's
implementing regulations at 50 CFR 216.104 (a)(13) indicate that
requests for authorizations must include the suggested means of
accomplishing the necessary monitoring and reporting that will result
in increased knowledge of the species and of the level of taking or
impacts on populations of marine mammals that are expected to be
present in the proposed action area. Effective reporting is critical
both to compliance as well as ensuring that the most value is obtained
from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
How anticipated responses to stressors impact either (1)
long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and
Mitigation and monitoring effectiveness.
UCSC/MARINe will contribute to the knowledge of pinnipeds in
California and Oregon by noting observations of: (1) unusual behaviors,
numbers, or distributions of pinnipeds, such that any potential follow-
up research can be conducted by the appropriate personnel; (2) tag-
bearing carcasses of pinnipeds, allowing transmittal of the information
to appropriate agencies and personnel; and (3) rare or unusual species
of marine mammals for agency follow-up.
Proposed monitoring requirements in relation to UCSC/MARINe's rocky
intertidal monitoring will include observations made by the applicant.
Information recorded will include species counts (with numbers of pups/
juveniles) of animals present before approaching, numbers of observed
disturbances (based on the scale below), and descriptions of the
disturbance behaviors during the monitoring surveys, including
location, date, and time of the event. For consistency, any reactions
by pinnipeds to researchers will be recorded according to a three-point
scale shown in table 7. Note that only observations of disturbance
levels 2 and 3 should be recorded as takings.
Table 7--Levels of Pinniped Behavioral Disturbance
----------------------------------------------------------------------------------------------------------------
Level Type of response Definition
----------------------------------------------------------------------------------------------------------------
0....................................... Observation................ Observation by researchers from a
distance; no disturbance to pinniped.
1....................................... Alert...................... Seal head orientation or brief movement
in response to disturbance, which may
include turning head towards the
disturbance, craning head and neck while
holding the body rigid in a u-shaped
position, changing from a lying to a
sitting position, or brief movement of
less than twice the animal's body
length.
2....................................... Movement................... Movements away from the source of
disturbance, ranging from short
withdrawals at least twice the animal's
body length to longer retreats over the
beach, or if already moving a change of
direction of greater than 90 degrees.
3....................................... Flush...................... All retreats (flushes) to the water.
----------------------------------------------------------------------------------------------------------------
In addition, observations regarding the number and species of any
marine mammals observed (either in the water or hauled out at, or
adjacent to, a research site) are recorded as part of field
observations during research activities. Information regarding physical
and biological conditions pertaining to a site, as well as the date and
time that research was conducted, will also be recorded. This
information will be incorporated into a monitoring report for NMFS and
raw data will be provided.
If at any time the specified activity clearly causes the take of a
marine mammal in a prohibited manner such as an injury (Level A
harassment), serious injury, or mortality, UCSC/MARINe shall
immediately cease the specified activities and report the incident to
the Office of Protected Resources, NMFS, and the West Coast Regional
Stranding Coordinator, NMFS. The report must include the following
information:
(1) Time and date of the incident;
(2) Description of the incident;
(3) Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, and visibility);
(4) Description of all marine mammal observations in the 24 hours
preceding the incident;
(5) Species identification or description of the animal(s)
involved;
(6) Fate of the animal(s); and
(7) Photographs or video footage of the animal(s) (if equipment is
available).
Activities shall not resume until NMFS is able to review the
circumstances of the prohibited take. NMFS will work with UCSC/MARINe
to determine what measures are necessary to minimize the likelihood of
further prohibited take and ensure MMPA compliance. UCSC/MARINe may not
resume the activities until notified by NMFS.
In the event that UCSC/MARINe discovers an injured or dead marine
mammal and determines that the cause of the injury or death is unknown
and the death is relatively recent (e.g., in less than a moderate state
of
[[Page 13333]]
decomposition), UCSC/MARINe shall immediately report the incident to
the Office of Protected Resources, NMFS, and the West Coast Regional
Stranding Coordinator, NMFS. The report must include the same
information identified in the paragraph above. Activities may continue
while NMFS reviews the circumstances of the incident. NMFS will work
with UCSC/MARINe to determine whether additional mitigation measures or
modifications to the activities are appropriate.
In the event that an injured or dead marine mammal is discovered
and it is determined that the injury or death is not associated with or
related to the activities authorized in the regulations and LOA (e.g.,
previously wounded animal, carcass with moderate to advanced
decomposition, or scavenger damage), UCSC/MARINe shall report the
incident to the Office of Protected Resources, NMFS, and the West Coast
Regional Stranding Coordinator, NMFS, within 24 hours of the discovery.
UCSC/MARINe shall provide photographs, video footage (if available) or
other documentation of the stranded animal sighting to NMFS and the
Marine Mammal Stranding Network. Activities may continue while NMFS
reviews the circumstances of the incident.
A draft annual report shall be submitted to NMFS Office of
Protected Resources within 90 days after the conclusion of each annual
field season (50 CFR 217.105(d)(1)). The report will include a summary
of the information gathered pursuant to the monitoring requirements set
forth above and in the LOA. A final annual report shall be submitted to
the Director of the NMFS Office of Protected Resources within 30 days
after receiving comments from NMFS on the draft annual report (50 CFR
217.105(d)(2)). If no comments are received from NMFS, the draft annual
report will be considered the final report.
Monitoring Results From Previously Authorized Activities
UCSC/MARINe complied with the mitigation and monitoring that were
required under the prior IHAs issued from 2013 to 2019, and the LOA
issued in 2020. In compliance with those IHAs, they submitted reports
detailing the activities and marine mammal monitoring they conducted,
the most recent report submitted in 2024 and accessible at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-university-california-santa-cruz-rocky-intertidal-monitoring-0. The IHAs required
UCSC/MARINe to conduct counts of pinnipeds present at study sites prior
to approaching the sites and to record species counts and any observed
reactions to the presence of the researchers. These monitoring results
were discussed above in the Estimated Take of Marine Mammals section.
Based on the results from the monitoring reports, we conclude that
the mitigation measures set forth in the previous authorizations
effected the least practicable impact on the species or stocks. There
were no stampede events during these years and most disturbances were
level 1 and 2 on the disturbance scale (see table 3), meaning the
animal did not fully flush but observed or moved slightly in response
to researchers. Those that did fully flush to the water did so slowly.
Most of these animals tended to observe researchers from the water and
then re-haul out farther up-coast or down-coast of the site within
approximately 30 minutes of the disturbance.
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any responses (e.g., intensity, duration), the context
of any responses (e.g., critical reproductive time or location,
migration), as well as effects on habitat, and the likely effectiveness
of the mitigation. We also assess the number, intensity, and context of
estimated takes by evaluating this information relative to population
status. Consistent with the 1989 preamble for NMFS's implementing
regulations (54 FR 40338, September 29, 1989), the impacts from other
past and ongoing anthropogenic activities are incorporated into this
analysis via their impacts on the environmental baseline (e.g., as
reflected in the regulatory status of the species, population size and
growth rate where known, ongoing sources of human-caused mortality, or
ambient noise levels).
To avoid repetition, the discussion of our analyses applies to all
the species listed in table 6, given that the anticipated effects of
this activity on these different marine mammal stocks are expected to
be similar. There is little information about the nature or severity of
the impacts, or the size, status, or structure of any of these species
or stocks that would lead to a different analysis for this activity.
Research activities have the potential to disturb or displace marine
mammals. Specifically, the project activities may result in take, in
the form of Level B harassment from researcher's movements and
equipment handling. Potential takes could occur if individuals of these
species are present nearby when these activities are underway. No
injuries or mortalities are anticipated to occur as a result of UCSC/
MARINe's rocky intertidal monitoring surveys and none are proposed to
be authorized.
Typically, even those reactions constituting Level B harassment
would result, at most, in a temporary, short-term behavioral
disturbance. In any given study season, researchers will visit select
sites one to two times per year for 4-6 hours per visit. Therefore,
disturbance of pinnipeds resulting from the presence of researchers
lasts only for short periods. These short periods of disturbance
lasting less than a day are separated by months or years. Community
structure sites are visited at most twice per year and the visits occur
in different seasons. Biodiversity surveys take place at a given
location once every 3-5 years.
Of the marine mammal species anticipated to occur in the proposed
activity areas, none are listed under the ESA. Taking into account the
planned mitigation measures, effects to marine mammals are generally
expected to be restricted to short-term changes in behavior or
temporary abandonment of haulout sites, pinnipeds are not expected to
permanently abandon any area that is surveyed by researchers, as is
evidenced by continued presence of pinnipeds at the sites during annual
monitoring counts. No adverse effects to prey species are anticipated
and habitat impacts are limited and highly localized, consisting of the
placement of permanent bolts and temporary research equipment in the
intertidal zone. Based on this analysis of the likely effects of the
specified activity on marine mammals and their habitat, and considering
the implementation of the proposed mitigation and monitoring measures,
NMFS finds that the total marine mammal incidental take from UCSC/
MARINe's rocky intertidal monitoring program will not adversely affect
annual rates of recruitment or survival. Therefore, such incidental
take
[[Page 13334]]
will have a negligible impact on the affected species or stocks.
In summary and as described above, the following factors primarily
support our preliminary determination that the impacts resulting from
this activity are not expected to adversely affect the species or stock
through effects on annual rates of recruitment or survival:
No Level A harassment, serious injury or mortality is
anticipated or authorized;
Only a small number of pups are expected to be disturbed;
Effects of the survey activities would be limited to
short-term, localized behavioral changes;
Nominal impacts to pinniped habitat are anticipated; and
Mitigation measures are anticipated to be effective in
minimizing the number and severity of takes by Level B harassment,
which are expected to be of short duration.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the proposed monitoring and
mitigation measures, NMFS preliminarily finds that the total marine
mammal take from the proposed activity will have a negligible impact on
all affected marine mammal species or stocks.
Small Numbers
As noted above, only small numbers of incidental take may be
authorized under sections 101(a)(5)(A) of the MMPA for specified
activities other than military readiness activities. The MMPA does not
define small numbers and so, in practice, where estimated numbers are
available, NMFS compares the number of individuals taken to the most
appropriate estimation of abundance of the relevant species or stock in
our determination of whether an authorization is limited to small
numbers of marine mammals. Additionally, other qualitative factors may
be considered in the analysis (e.g., the temporal or spatial scale of
the activities).
The amount of take NMFS proposes to authorize is 0.04 to 0.94
percent of any stock's best population estimate (see table 6). These
are likely conservative estimates because they assume all encounters
result in take, which has not historically been the case.
Based on the analysis contained herein of the proposed activity,
including the proposed mitigation and monitoring measures, and the
anticipated take of marine mammals, NMFS preliminarily finds that small
numbers of marine mammals will be taken relative to the population size
of the affected species or stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
preliminarily determined that the total taking of affected species or
stocks would not have an unmitigable adverse impact on the availability
of such species or stocks for taking for subsistence purposes.
Adaptive Management
The regulations governing the take of marine mammals incidental to
the UCSC/MARINe's research activities would contain an adaptive
management component. The reporting requirements associated with this
proposed rule are designed to provide NMFS with annual monitoring data
to allow consideration of whether any changes are appropriate. The use
of adaptive management allows NMFS to consider new information from
different sources to determine on an annual basis if mitigation or
monitoring measures should be modified (including additions or
deletions). Mitigation measures could be modified if new data suggests
that such modifications would have a reasonable likelihood of reducing
adverse effects to marine mammals and if the measures are practicable.
The following are some of the possible sources of applicable data
to be considered through the adaptive management process: (1) results
from monitoring reports, as required by MMPA authorizations; (2)
results from general marine mammal and sound research; and (3) any
information which reveals that marine mammals may have been taken in a
manner, extent, or number not authorized by these regulations or LOAs
issues pursuant to these regulations.
Endangered Species Act (ESA)
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA) (16
U.S.C. 1531 et seq.) requires that each Federal agency ensures 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 proposed
rules, NMFS consults internally with scientific and regulatory subject
matter experts whenever we propose to authorize take for endangered or
threatened species.
No incidental take of any ESA-listed species is proposed for
authorization or expected to result from this activity. Therefore, NMFS
has determined that formal consultation under section 7 of the ESA is
not required for this action.
Request for Additional Information and Public Comment
NMFS requests that interested persons submit comments, information,
and suggestions concerning the UCSC/MARINe request and the proposed
regulations to NMFS for consideration (see ADDRESSES). All comments
will be reviewed and evaluated as we prepare a final rule and make
final determinations on whether to issue the requested authorization.
This notice of proposed rulemaking and the referenced documents provide
all environmental information relating to our proposed action for
public review.
Classification
The Office of Management and Budget has determined that this
proposed rule is not significant for purposes of Executive Order 12866.
Pursuant to Executive Order 14192, this proposed rule is considered a
deregulatory action.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA),
the Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
UCSC/MARINe is the sole entity that would be subject to the
requirements in these proposed regulations, and UCSC/MARINe is not a
small governmental jurisdiction, organization, or business as defined
by the RFA. Because of this certification, an initial regulatory
flexibility analysis is not required and none has been prepared.
This proposed rule does contain collection-of-information
requirements subject to the provisions of the Paperwork Reduction Act
(PRA) (44 U.S.C. 3501-3521). Notwithstanding any other provision of
law, no person is required to respond to, nor shall a person be subject
to, a penalty for failure to comply with a collection of information
subject to the requirements of the PRA unless that collection of
information displays a currently valid Office of Management and Budget
(OMB) control number. These requirements have been approved by OMB
under control number 0648-0151 and include the applications for
regulations, subsequent LOA, and reports. Submit comments regarding any
aspect of this data collection, including
[[Page 13335]]
suggestions for reducing the burden, to NMFS (see ADDRESSES section)
and through the Regulatory Dashboard at: https://www.reginfo.gov.
Dated: March 17, 2025.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
List of Subjects in 50 CFR Part 217
Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and recordkeeping requirements, Seafood,
Transportation.
For reasons set forth in the preamble, National Oceanic and
Atmospheric Administration proposes to amend 50 CFR part 217 as
follows:
PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS
INCIDENTAL TO SPECIFIED ACTIVITES
0
1. The authority citation for part 217 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
0
2. Revise and republish subpart K to part 217 to read as follows:
Subpart K--Taking Marine Mammals Incidental to Rocky Intertidal
Monitoring Surveys Along the Oregon and California Coasts
Sec.
217.100 Specified activity and specified geographical region.
217.101 Effective dates.
217.102 Permissible methods of taking.
217.103 Prohibitions.
217.104 Mitigation requirements.
217.105 Requirements for monitoring and reporting.
217.106 Letters of Authorization.
217.107 Renewals and modifications of Letters of Authorization.
Sec. 217.108-217.109 [Reserved]
Sec. 217.100 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the University of
California Santa Cruz's Multi-Agency Rocky Intertidal Network (UCSC/
MARINe) and those persons it authorizes or funds to conduct activities
on its behalf for the taking of marine mammals that occur in the areas
outlined in paragraph (b) of this section and that occur incidental to
rocky intertidal monitoring research surveys.
(b) The taking of marine mammals by UCSC/MARINe may be authorized
in a Letter of Authorization (LOA) only if it occurs on the coasts of
Oregon or California.
Sec. 217.101 Effective dates.
Regulations in this subpart are effective for a period of 5 years
from the date of effectiveness.
Sec. 217.102 Permissible methods of taking.
Under LOAs issued pursuant to Sec. Sec. 216.106 of this chapter
and 217.106, the Holder of the LOA (hereinafter ``UCSC/MARINe'') may
incidentally, but not intentionally, take marine mammals within the
area described in Sec. 217.100(b) by Level B harassment associated
with rocky intertidal monitoring activities, provided the activity is
in compliance with all terms, conditions, and requirements of the
regulations in this subpart and the appropriate LOA.
Sec. 217.103 Prohibitions.
Notwithstanding takings contemplated in Sec. 217.100 and
authorized by an LOA issued under Sec. Sec. 216.106 of this chapter
and 217.106, no person in connection with the activities described in
Sec. 217.100 may:
(a) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a LOA issued under Sec. Sec. 216.106
of this chapter and 217.106;
(b) Take any marine mammal not specified in such LOA;
(c) Take any marine mammal specified in such LOA in any manner
other than as specified in Sec. 217.102;
(d) Take a marine mammal specified in such LOA if NMFS determines
such taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
(e) Take a marine mammal specified in such LOA if NMFS determines
such taking results in an unmitigable adverse impact on the species or
stock of such marine mammal for taking for subsistence uses.
Sec. 217.104 Mitigation requirements.
When conducting the activities identified in Sec. 217.100(a), the
mitigation measures contained in any LOA issued under Sec. Sec.
216.106 of this chapter and 217.106 must be implemented. These
mitigation measures shall include but are not limited to:
(1)(a) General conditions. (1) Researchers must observe a site from
a distance for at least five minutes, using binoculars if necessary, to
detect any marine mammals prior to approach to determine if mitigation
is required. Site surveys will not be conducted if other species of
pinnipeds are present. Researchers will approach with caution, walking
slowly, quietly, and close to the ground to avoid surprising any hauled
out individuals and to reduce flushing (i.e., disturbing from its
position).
(2) Researchers shall avoid pinnipeds along access ways to sites by
locating and taking a different access way. Researchers shall keep a
safe distance from and not approach any marine mammal while conducting
research, unless it is absolutely necessary to approach a marine mammal
in order to continue conducting research (i.e., if a site cannot be
accessed or sampled due to the presence of pinnipeds).
(3) Researchers shall avoid making loud noises (e.g., using hushed
voices) and keep bodies low to the ground in the visual presence of
pinnipeds.
(4) Researchers shall monitor the offshore area for predators
(e.g., killer whales and great white sharks) and avoid flushing of
pinnipeds when predators are observed in nearshore waters.
(5) Researchers shall promptly vacate sites at the conclusion of
sampling.
(6) Researchers shall not operate unmanned aerial vehicles (UAVs)
at an altitude below 10 meters while in the presence of pinnipeds.
(b) Pup protection measures. (1) Intentional approach will not
occur if dependent pups are present to avoid mother/pup separation and
trampling of pups. Staff shall reschedule work at sites where pups are
present, unless other means of accomplishing the work can be done
without causing disturbance to mothers and dependent pups.
(2) [Reserved]
Sec. 217.105 Requirements for monitoring and reporting.
(a) Visual monitoring program. (1) Standard information recorded
will include species counts (with numbers of pups/juveniles when
possible) of animals present before approaching, numbers of observed
disturbances, and descriptions of the disturbance behaviors during the
monitoring surveys, including location, date, and time of the event.
(2) UCSC/MARINe must note observations of:
(i) Unusual behaviors, numbers, or distributions of pinnipeds, such
that any potential follow-up research can be conducted by the
appropriate personnel;
(ii) Tag-bearing carcasses of pinnipeds, allowing transmittal of
the information to appropriate agencies and personnel; and
(iii) Rare or unusual species of marine mammals for agency follow-
up.
(3) For consistency, any reactions by pinnipeds to researchers must
be recorded according to a three-point pinniped disturbance scale
included in any LOA issued under Sec. 216.106 of this chapter and
Sec. 217.106.
[[Page 13336]]
(4) UCSC/MARINE must note information regarding the date and time
that research is conducted, as well as the physical and biological
conditions pertaining to a site.
(b) Prohibited take. (1) If at any time the specified activity
clearly causes the take of a marine mammal in a manner prohibited by
these regulations or LOA, such as an injury (Level A harassment),
serious injury, or mortality, UCSC/MARINe shall immediately cease the
specified activities and report the incident to the Office of Protected
Resources, NMFS, and the West Coast Regional Stranding Coordinator,
NMFS. The report must include the following information:
(i) Time and date of the incident;
(ii) Description of the incident;
(iii) Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, and visibility);
(iv) Description of all marine mammal observations in the 24 hours
preceding the incident;
(v) Species identification or description of the animal(s)
involved;
(vi) Fate of the animal(s); and
(vii) Photographs or video footage of the animal(s) (if equipment
is available).
(2) Activities shall not resume until NMFS is able to review the
circumstances of the prohibited take. NMFS will work with UCSC/MARINe
to determine what measures are necessary to minimize the likelihood of
further prohibited take and ensure Marine Mammal Protection Act (MMPA)
compliance. UCSC/MARINe must not resume the activities until notified
by NMFS via letter, email, or telephone.
(c) Notification of dead or injured marine mammals. (1) In the
event that UCSC/MARINe discovers an injured or dead marine mammal and
determines that the cause of the injury or death is unknown and the
death is relatively recent (e.g., in less than a moderate state of
decomposition), UCSC/MARINe shall immediately report the incident to
the Office of Protected Resources, NMFS, and the West Coast Regional
Stranding Coordinator, NMFS. The report must include the information
identified in paragraph (b)(1) of this section. Activities may continue
while NMFS reviews the circumstances of the incident. NMFS will work
with UCSC/MARINe to determine whether additional mitigation measures or
modifications to the activities are appropriate.
(2) In the event that an injured or dead marine mammal is
discovered and it is determined that the injury or death is not
associated with or related to the activities authorized in the
regulations and LOA (e.g., previously wounded animal, carcass with
moderate to advanced decomposition, or scavenger damage), UCSC/MARINe
shall report the incident to the Office of Protected Resources, NMFS,
and the West Coast Regional Stranding Coordinator, NMFS, within 24
hours of the discovery. UCSC/MARINe shall provide photographs, video
footage (if available) or other documentation of the stranded animal
sighting to NMFS and the Marine Mammal Stranding Network. Activities
may continue while NMFS reviews the circumstances of the incident.
(d) Annual report. (1) A draft annual report shall be submitted to
NMFS Office of Protected Resources within 90 days after the conclusion
of each annual field season. The final annual report after year five
may be included as part of the final report (see paragraph (e) of this
section). The report will include a summary of the information gathered
pursuant to the monitoring requirements set forth above and in the LOA.
(2) A final annual report shall be submitted to the Director of the
NMFS Office of Protected Resources within 30 days after receiving
comments from NMFS on the draft annual report. If no comments are
received from NMFS, the draft annual report will be considered the
final report.
Sec. 217.106 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, UCSC/MARINe must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these
regulations, UCSC/MARINe may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, UCSC/MARINe must
apply for and obtain a modification of the LOA as described in Sec.
217.107.
(e) The LOA shall set forth:
(1) Permissible methods and numbers of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the
level of taking will be consistent with the findings made for the total
taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA shall be published in
the Federal Register within 30 days of a determination.
Sec. 217.107 Renewals and modifications of Letters of Authorization.
(a) An LOA issued under Sec. Sec. 216.106 of this chapter and
217.106 for the activity identified in Sec. 217.100(a) shall be
renewed or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations (excluding changes
made pursuant to the adaptive management provision in paragraph (c)(1)
of this section), and
(2) NMFS' Office of Protected Resources determines that the
mitigation, monitoring, and reporting measures required by the previous
LOA under these regulations were implemented.
(b) For an LOA modification or renewal requests by the applicant
that include changes to the activity or the mitigation, monitoring, or
reporting (excluding changes made pursuant to the adaptive management
provision in paragraph (c)(1) of this section) that do not change the
findings made for the regulations or result in no more than a minor
change in the total estimated number of takes (or distribution by
species or years), NMFS' Office of Protected Resources may publish a
notice of proposed LOA in the Federal Register, including the
associated analysis of the change, and solicit public comment before
issuing the LOA.
(c) An LOA issued under Sec. Sec. 216.106 of this chapter and
217.106 for the activity identified in Sec. 217.100(a) may be modified
by NMFS' Office of Protected Resources under the following
circumstances:
(1) Adaptive Management--NMFS' Office of Protected Resources may
modify (including augment) the existing mitigation, monitoring, or
reporting measures (after consulting with UCSC/MARINe regarding the
practicability of the modifications) if doing so creates a reasonable
likelihood of more effectively accomplishing the goals of the
mitigation and monitoring set forth in the preamble for these
regulations.
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from UCSC/MARINe's monitoring from the previous
year(s).
[[Page 13337]]
(B) Results from other marine mammal and/or sound research or
studies.
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by this subpart or
subsequent LOAs.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS'
Office of Protected Resources will publish a notice of proposed LOA in
the Federal Register and solicit public comment.
(2) Emergencies--If NMFS' Office of Protected Resources determines
that an emergency exists that poses a significant risk to the well-
being of the species or stocks of marine mammals specified in LOAs
issued pursuant to Sec. Sec. 216.106 of this chapter and 217.106, an
LOA may be modified without prior notice or opportunity for public
comment. Notice will publish in the Federal Register within 30 days of
the action.
Sec. Sec. 217.108-217.109 [Reserved]
[FR Doc. 2025-04806 Filed 3-20-25; 8:45 am]
BILLING CODE 3510-22-P