Federal Register, Volume 85 Issue 143 (Friday, July 24, 2020)

[Federal Register Volume 85, Number 143 (Friday, July 24, 2020)]
[Proposed Rules]
[Pages 44835-44847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15150]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 200706-0180]
RIN 0648-BJ47

Take of Marine Mammals Incidental to Specified Activities; Taking
Marine Mammals Incidental to Seabird Research Activities in Central
California

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 Point Blue Conservation
Science (Point Blue) for authorization to take marine mammals
incidental to seabird research activities in central California.
Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is proposing
regulations to govern that take, and requests comments on the proposed
regulations. NMFS will consider public comments prior to making any
final decision on the issuance of the requested MMPA authorization and
agency responses will be summarized in the final notice of our
decision.

DATES: Comments and information must be received no later than August
24, 2020.

ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2020-0076, by any of the following methods:
Electronic submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2020-0076, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: Submit written comments to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources,
National Marine Fisheries Service, 1315 East West Highway, Silver
Spring, MD 20910.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information submitted voluntarily by the sender
will be publicly accessible. NMFS will accept anonymous comments (enter
``N/A'' in the required fields if you wish to remain anonymous).

FOR FURTHER INFORMATION CONTACT: Amy Fowler, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the application
and supporting documents, as well as a list of the references cited in
this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Availability

A copy of Point Blue's application and 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/national/marine-mammal-protection/incidental-take-authorizations-research-and-other-activities. In case of problems accessing these documents, please call
the contact listed above (see FOR FURTHER INFORMATION CONTACT).

Purpose and Need for Regulatory Action

This proposed rule would establish a framework under the authority
of the MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of
take of marine mammals incidental to Point Blue's seabird research
activities in central California.
We received an application from Point Blue requesting five-year
regulations and authorization to take multiple species of marine
mammals. Take would occur by Level B harassment incidental to visual
disturbance of pinnipeds during research activities and use of research
equipment. Please see Background below for definitions of harassment.

Legal Authority for the Proposed Action

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

Summary of Major Provisions Within the Proposed Rule

Following is a summary of the major provisions of this proposed
rule regarding Point Blue's seabird research activities. These measures
include:
Required implementation of mitigation to minimize impact
to pinnipeds including several measures to approach haulouts cautiously
to minimize disturbance, and avoiding surveying when pups are present.
Required monitoring of the research areas to detect the
presence of marine mammals before initiating surveys.

Background

The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who

[[Page 44836]]

engage in a specified activity (other than commercial fishing) within a
specified geographical region if certain findings are made, regulations
are issued, and notice is provided to the public.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to, in shorthand, as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of the takings are set forth.
The definitions of all applicable MMPA statutory terms cited above
are included in the relevant sections below.

National Environmental Policy Act

To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action (i.e., the issuance of a proposed
rule (and subsequent LOAs)) with respect to potential impacts on the
human environment. This action is consistent with categories of
activities identified in Categorical Exclusion B4 (incidental
harassment authorizations (IHAs) with no anticipated serious injury or
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for
significant impacts on the quality of the human environment and for
which we have not identified any extraordinary circumstances that would
preclude this categorical exclusion. Accordingly, NMFS has
preliminarily determined that the issuance of the proposed rule
qualifies to be categorically excluded from further NEPA review. We
will review all comments submitted in response to this proposed rule
prior to concluding our NEPA process or making a final decision on the
request.

Summary of Request

On September 17, 2019, NMFS received a request from Point Blue for
a proposed rule and LOA to take marine mammals incidental to seabird
research activities on the central California coast. We determined the
application was adequate and complete on November 26, 2019. Point
Blue's request is for take of a small number of California sea lions
(Zalophus californianus), harbor seals (Phoca vitulina richardii),
northern elephant seals (Mirounga angustirostris), northern fur seals
(Callorhinus ursinus), Guadalupe fur seals (Arctocephalus philippii
townsendi), and Steller sea lions (Eumetopias jubatus), by Level B
harassment only. Neither Point Blue nor NMFS expects serious injury or
mortality, or Level A harassment, to result from this activity.
NMFS has previously issued ten Incidental Harassment Authorizations
(IHAs) to Point Blue for similar work from 2006 through 2020 (72 FR
71121, December 14, 2007; 73 FR 77011, December 18, 2008; 75 FR 8677,
February 19, 2010; 77 FR 73989, December 7, 2012; 78 FR 66686, November
6, 2013; 80 FR 80321, December 24, 2015; 81 FR 34978, June 1, 2016; 82
FR 31759, July 7, 2017; 83 FR 31372, July 5, 2018; 85 FR 9740, February
20, 2020). Point Blue complied with all the requirements (e.g.,
mitigation, monitoring, and reporting) of the previous IHAs and
information regarding their monitoring results may be found in the
Potential Effects of the Specified Activity on Marine Mammals and their
Habitat and Estimated Take sections.

Description of Proposed Activity

Overview

Point Blue, along with their research partners Oikonos Ecosystem
Knowledge and Point Reyes National Seashore have been conducting
seabird research in central California for over 30 years. This research
is conducted under cooperative agreements with the U.S. Fish and
Wildlife Service (USFWS) in consultation with the Gulf of the
Farallones National Marine Sanctuary. Point Blue conducts research
activities on Southeast Farallon Island (SEFI), A[ntilde]o Nuevo Island
(ANI), and Point Reyes National Seashore (PRNS). Research activities
include monitoring and censusing seabird colonies, observing seabird
nesting habitat, restoring nesting burrows, and resupplying a field
station at SEFI. Research is conducted throughout the year at each of
the research sites. Researchers accessing and conducting research
activities on the sites may occasionally cause behavioral disturbance
(or Level B harassment) of six pinniped species. Point Blue expects
that the disturbance to pinnipeds from the research activities will be
minimal and will be limited to Level B harassment.

Dates and Duration

Point Blue's research is conducted throughout the year. At SEFI,
seabird monitoring sites are visited 1-3 times per day for a maximum of
500 visits per year. Boat landings to re-supply the field station,
lasting 1-3 hours, are conducted once every two weeks. At ANI, research
is conducted approximately once a week from April-August, with
occasional intermittent visits made during the rest of the year. The
maximum number of visits per year would be 20. Research at PRNS is
conducted year round, with an emphasis during the seabird nesting
season, and with occasional intermittent visits the rest of the year.
The maximum number of visits per year is 20. A component of the seabird
research involves habitat restoration and monitoring which requires
sporadic visits from September-November, the time period between the
seabird breeding season and the elephant seal pupping season.

Specific Geographic Region

Point Blue will conduct their research activities within the
vicinity of pinniped haul-out sites in the following locations:
South Farallon Islands: The South Farallon Islands consist
of SEFI, located at 37[deg]41'54.32'' N; 123[deg]0'8.33'' W, and West
End Island. The South Farallon Islands have a land area of
approximately 120 acres (0.49 square kilometers (km\2\)) and are part
of the Farallon National Wildlife Refuge. The islands are located near
the edge of the continental shelf 28 miles (mi) (45.1 km) west of San
Francisco, California, and lie within the waters of the Gulf of the
Farallones National Marine Sanctuary;
A[ntilde]o Nuevo Island: ANI is located at
37[deg]6'29.25'' N; 122[deg]20'12.20'' W, one-quarter mile (402 meters
m) offshore of A[ntilde]o Nuevo Point in San Mateo County, California.
The island lies within the Monterey Bay National Marine Sanctuary and
the A[ntilde]o Nuevo State Marine Conservation Area; and
Point Reyes National Seashore: PRNS is approximately 40
miles (64.3 km) north of San Francisco Bay and also lies within the
Gulf of the Farallones National Marine Sanctuary.

Detailed Description of Specific Activity

Southeast Farallon Islands
Point Blue has conducted year round wildlife research and
monitoring activities at SEFI, part of the Farallon National Wildlife
Refuge, since 1968. This work is conducted through a collaborative
agreement with the USFWS. Research focuses on marine

[[Page 44837]]

mammals and seabirds and includes procedures involved in maintaining
the SEFI field station. These activities may involve the incidental
take of marine mammals.
Seabird research activities involve observational and marking
(i.e., netting and banding for capture-mark-recapture) studies of
breeding seabirds. Occasionally researchers may travel to coastal areas
of the island to conduct observational seabird research, which includes
viewing breeding seabirds from an observation blind or censusing
shorebirds, and usually involves one or two observers. Access to the
refuge involves landing in small boats, 14-18 foot (ft) open
motorboats, which are hoisted onto the island using a derrick system.
Most intertidal areas of the island, where marine mammals are
present, are rarely visited in seabird research. Most potential for
incidental take will occur at the island's two landings, North Landing
and East Landing. These sites are visited by researchers 1-3 times per
day for a maximum of 500 visits per year. At both landings, research
stations are located more than 50 ft above any pinnipeds that may be
present. Most visits to these areas are brief (~15 minutes), though
seabird observers are present for 2-5 hours daily at North Landing from
early April to early August each year to conduct observational studies
on breeding common murres (Uria aalge). Boat landings to re-supply the
field station, lasting 1-3 hours, are conducted once every 2 weeks at
either North Landing or East Landing. Activities involve launching of
the boat with one operator, with 2-4 other researchers assisting with
the operations from land. At East Landing, the primary landing site,
all personnel assisting with the landing stay on the loading platform
30 ft above the water. At North Landing, loading operations occur at
the water level in the intertidal zone.
A[ntilde]o Nuevo Island
Point Blue has also conducted seabird research and monitoring
activities on ANI, part of the A[ntilde]o Nuevo State Reserve, since
1992. Collaborations with Oikonos Ecosystem Knowledge began in 2001 to
research seabird burrow nesting habitat quality and restoration. All
work is conducted through a collaborative agreement with California
State Parks. Research at ANI is conducted year-round, with up to 20
visits per year. The island is accessed by a 12 ft Zodiac boat. Non-
breeding pinnipeds may occasionally be present on the small beach in
the center of the island where the boat is landed. There are usually 2-
3 researchers involved in island visits. Most intertidal areas of the
island where marine mammals are present are not ever visited during
seabird research, except at the landing beach. Seabird nest boxes are
located just north of the landing beach, up on the island's terrace,
over 50 ft from hauled out pinnipeds. The landing beach is visited upon
arrival and departure during the weekly visit, and seabird nest boxes
are checked one time that day. Landings and visits to nest boxes are
brief (~15 minutes).
Point Reyes National Seashore
Research at PRNS is conducted year-round, with up to 20 visits per
year. The National Park Service (NPS) conducts research, resource
management and routine maintenance services at PRNS. This involves both
marine mammal research and seabird research and includes maintaining
the facilities around the seashore. Habitat restoration of the seashore
occurs and includes restoration and removal of non-native invasive
plants and coastal dune habitat. Non-native plant removal is timed to
avoid the breeding seasons of pinnipeds; however, on occasion non-
breeding animals may be present at various beaches throughout the year.
Research along the seashore includes monitoring seabird breeding
and roosting colonies. Seabird monitoring usually involves one or two
observers. Surveys are conducted using 14-22-ft open motorboats that
survey along the shoreline. Intermittent visits to areas of PRNS where
pinniped takes may occur are also conducted for research on other
species such as seabirds, sharks, and subtidal mapping, as well as
resource management activities such as non-native plant management and
intertidal monitoring.
Proposed mitigation, monitoring, and reporting measures are
described in detail later in this document (please see the Proposed
Mitigation and Proposed Monitoring and Reporting sections).

Description of Marine Mammals in the Area of Specified Activities

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

[[Page 44838]]

Table 1--Marine Mammals Potentially Present in the Vicinity of the Study Areas
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ESA/MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\1\ abundance survey) \2\ SI \3\
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Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and
sea lions):
California sea lion............. Zalophus californianus. U.S.................... -/-; N 257,606 (n/a; 233,515; 14,011 >320
2014).
Steller sea lion................ Eumetopias jubatus..... Eastern U.S............ -/-; N 43,201 (n/a; 43,201; 2,592 113
2017).
Northern fur seal............... Callorhinus ursinus.... California............. -/-; N 14,050 (n/a; 7,524; 451 >0.8
2013).
Eastern Pacific........ -/D; Y 620,660 (0.2, 525,333, 11,295 399
2016).
Guadalupe fur seal.............. Arctocephalus philippii Mexico to California... T/D; Y 34,187 (n/a; 31,019; 1,062 >1.2
townsendi. 2013).
Family Phocidae (earless seals):
Harbor seal..................... Phoca vitulina California............. -/-; N 30,968 (n/a; 27,348; 1,641 43
richardii. 2012).
Northern elephant seal.......... Mirounga angustirostris California............. -/-; N 179,000 (n/a; 81,368; 4,882 8.8
2010).
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1--Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
2--NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
3--These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
fisheries, ship strikes). 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.

All species that could potentially occur in the proposed survey
areas are included in Table 1. Below, we describe all six species that
temporally and spatially co-occur with the activity, as well as the
degree that take is reasonably likely to occur, to the extent that we
have proposed authorizing it. The southern sea otter (Enhydra lutris
nereis) may be found at SEFI and ANI. However, they are managed by the
USFWS and are not considered further in this document.

California Sea Lions

California sea lion breeding areas are on islands located in
southern California, in western Baja California, Mexico, and the Gulf
of California. Rookery sites in southern California are limited to the
San Miguel Islands and the southerly Channel Islands of San Nicolas,
Santa Barbara, and San Clemente (Carretta et al., 2017). Males
establish breeding territories during May through July on both land and
in the water. Females come ashore in mid-May and June where they give
birth to a single pup approximately four to five days after arrival and
will nurse pups for about a week before going on their first feeding
trip. Females will alternate feeding trips with nursing bouts until the
pup is weaned between four and 10 months of age (NMML 2010).
Adult and juvenile males will migrate as far north as British
Columbia, Canada while females and pups remain in southern California
waters in the non-breeding season. In warm water (El Ni[ntilde]o)
years, some females are found as far north as Washington and Oregon,
presumably following prey.
On the Farallon Islands, California sea lions haul out in many
intertidal areas year round, fluctuating from several hundred to
several thousand animals. California sea lions at PRNS haul out at only
a few locations, but will occur on human structures such as boat ramps.
The annual population averages around 300 to 500 during the fall
through spring months, although on occasion, several thousand sea lions
can arrive depending upon local prey resources (S. Allen, unpublished
data). On ANI, California sea lions may haul out at one of eight beach
areas on the perimeter of the island. The island's average population
ranges from 4,000 to 9,500 animals (M. Lowry, unpublished data).
Elevated numbers of strandings of California sea lion pups occurred
in Southern California beginning in January 2013, and NMFS declared an
Unusual Mortality Event (UME). The UME was confined to pup and yearling
California sea lions, many of which were emaciated, dehydrated, and
underweight for their age. A change in the availability of sea lion
prey, especially sardines, a high value food source for nursing
mothers, was a likely contributor to the large number of strandings.
Sardine spawning grounds shifted further offshore in 2012 and 2013,
and, while other prey were available (market squid and rockfish), these
may not have provided adequate nutrition in the milk of sea lion
mothers supporting pups, or for newly-weaned pups foraging on their
own. Although the pups showed signs of some viruses and infections,
findings indicated that this event was not caused by disease, but
rather by the lack of high quality, close-by food sources for nursing
mothers. Current evidence does not indicate that this UME was caused by
a single infectious agent, though a variety of disease-causing bacteria
and viruses were found in samples from sea lion pups. Investigating and
identifying the cause of this UME is a true public-private effort with
many collaborators. The investigative team examined multiple potential
explanations for the high numbers of malnourished California sea lion
pups observed on the island rookeries and stranded on the mainland in
2013. For more information, see https://www.fisheries.noaa.gov/national/marine-life-distress/2013-2017-california-sea-lion-unusual-mortality-event-california.

Steller Sea Lion

Steller sea lions consist of two distinct population segments
(DPSs): The western and eastern DPSs divided at 144[deg] W longitude
(Cape Suckling, Alaska). The western segment of Steller sea lions
inhabits central and western Gulf of Alaska, Aleutian Islands, as well
as coastal waters, and breed in Asia (e.g., Japan and Russia). The
eastern DPS includes animals born east of Cape Suckling, AK (144[deg]
W), and includes sea lions living in southeast Alaska, British
Columbia, Washington, Oregon, and California.
Despite the wide-ranging movements of juveniles and adult males in
particular, exchange between rookeries

[[Page 44839]]

by breeding adult females and males (other than between adjoining
rookeries) appears low, although males have a higher tendency to
disperse than females (NMFS, 1995; Trujillo et al., 2004; Hoffman et
al., 2006). A northward shift in the overall breeding distribution has
occurred, with a contraction of the range in southern California and
new rookeries established in southeastern Alaska (Pitcher et al.,
2007).
An estimated 50-150 Steller sea lions are located along the
Farallon Islands while 400-600 may be found on ANI (Point Blue,
unpublished data; Lowry, unpublished data). Steller sea lions are not
typically present at PRNS (NPS, unpublished data). Overall, counts of
non-pups at trend sites in California and Oregon have been relatively
stable or increasing slowly since the 1980s (Muto et al., 2017). SEFI
is one of two breeding colonies at the southern end of the Steller sea
lion's range. On the Farallon and A[ntilde]o Nuevo Islands, Steller sea
lion breeding colonies are located in closed areas where researchers
never visit, eliminating any risk of disturbing breeding animals.

Northern Fur Seal

The northern fur seal is endemic to the North Pacific Ocean and
occurs from southern California to the Bering Sea, Sea of Okhotsk, and
Sea of Japan (Jefferson et al., 2015). Two stocks are recognized in
U.S. waters: the Eastern North Pacific and the California stocks. The
Eastern Pacific stock ranges from southern California during winter to
the Pribilof Islands and Bogoslof Island in the Bering Sea during
summer (Carretta et al., 2018; Muto et al., 2018). The California stock
originated with immigrants from the Pribilof Islands and Russian
populations that recolonized San Miguel Island during the late 1950s or
early 1960s after northern fur seals were extirpated from California in
the 1700s and 1800s (DeLong 1982). Most northern fur seals at Point
Blue research sites are expected to be from the California stock,
though some may be from the Eastern North Pacific stock, as adult
females and pups from the Pribilof Islands move through the Aleutian
Islands into waters off of Oregon and California (Muto et al., 2019b).
The northern fur seal spends ~90 percent of its time at sea,
typically in areas of upwelling along the continental slopes and over
seamounts (Gentry 1981). The remainder of its life is spent on or near
rookery islands or haulouts. While at sea, northern fur seals usually
occur singly or in pairs, although larger groups can form in waters
rich with prey (Antonelis and Fiscus 1980; Gentry 1981). Northern fur
seals dive to relatively shallow depths to feed: 100-200 m for females,
and <400 m for males (Gentry 2009). Tagged adult female fur seals were
shown to remain within 200 km of the shelf break (Pelland et al. 2014).
Northern fur seals likely numbered in excess of 100,000 animals at
the Farallon Islands before being locally extirpated by sealers in the
1800's (Townsend 1931; Scheffer and Kraus 1964). After more than a 150-
year absence, northern fur seals recolonized the Farallon Islands in
the 1970's and the first confirmed pup was born in 1996 (Pyle et al.,
2001). The Farallon Islands continue to be a breeding site for northern
fur seals, with over 1,000 pups born each season (Point Blue,
unpublished data). Fur seals in the Farallon Islands typically begin
pupping in mid-July with peak population and pup production in late-
August to early-September.

Guadalupe Fur Seal

Guadalupe fur seals were once plentiful on the California coast,
ranging from the Gulf of the Farallones near San Francisco, to the
Revillagigedo Islands, Mexico (Aurioles-Gamboa et al., 1999), but they
were over-harvested in the 19th century to near extinction. After being
protected, the population grew slowly; mature individuals of the
species were observed occasionally in the Southern California Bight
starting in the 1960s (Stewart et al., 1993), and, in 1997, a female
and pup were observed on San Miguel Island (Melin & DeLong, 1999).
Since 2008, individual adult females, subadult males, and between one
and three pups have been observed annually on San Miguel Island
(Caretta et al., 2017).
During the summer breeding season, most adults occur at rookeries
in Mexico (Caretta et al., 2019; Norris 2017 in U.S. Navy 2019).
Following the breeding season, adult males tend to move northward to
forage. Females have been observed feeding south of Guadalupe Island,
making an average round trip of 2,375 km (Ronald and Gots 2003).
Several rehabilitated Guadalupe fur seals that were satellite tagged
and released in central California traveled as far north as British
Columbia (Norris et al., 2015; Norris 2017 in U.S. Navy 2019).
Guadalupe fur seals are not typically observed at Point Blue research
sites, but they have occasionally been seen at the Farallon Islands in
the last decade.
Increased strandings of Guadalupe fur seals have occurred along the
entire coast of California. Guadalupe fur seal strandings began in
January 2015 and were eight times higher than the historical average.
Strandings have continued since 2015 and have remained well above
average through 2019. Strandings are seasonal and generally peak in
April through June of each year. Strandings in Oregon and Washington
became elevated starting in 2019 and have continued to present.
Strandings in these two states in 2019 are five times higher than the
historical average. Guadalupe fur seals have stranded alive and dead.
Those stranding are mostly weaned pups and juveniles (1-2 years old).
The majority of stranded animals showed signs of malnutrition with
secondary bacterial and parasitic infections. NMFS has declared a UME
for Guadalupe fur seals along the entire U.S. West Coast; the UME is
ongoing and NMFS is continuing to investigate the cause(s). For
additional information on the UME, see https://www.fisheries.noaa.gov/national/marine-life-distress/2015-2020-guadalupe-fur-seal-unusual-mortality-event-california.

Northern Elephant Seal

Northern elephant seals range in the eastern and central North
Pacific Ocean, from as far north as Alaska to as far south as Mexico.
Northern elephant seals spend much of the year, generally about nine
months, in the ocean. They are usually underwater, diving to depths of
about 1,000 to 2,500 ft (330-800 m) for 20- to 30-minute intervals with
only short breaks at the surface. They are rarely seen out at sea for
this reason. While on land, they prefer sandy beaches.
The northern elephant seal breeding population is distributed from
central Baja California, Mexico to the Point Reyes Peninsula in
northern California. Along this coastline, there are 13 major breeding
colonies. Northern elephant seals breed and give birth primarily on
offshore islands (Stewart et al., 1994), from December to March
(Stewart and Huber, 1993). Males feed near the eastern Aleutian Islands
and in the Gulf of Alaska, and females feed farther south, south of
45[deg] N (Stewart and Huber, 1993; Le Boeuf et al., 1993).
In mid-December, adult males begin arriving at rookeries, closely
followed by pregnant females on the verge of giving birth. Females give
birth to a single pup, generally in late December or January (Le Boeuf
and Laws, 1994) and nurse their pups for approximately four weeks
(Reiter et al., 1991). Upon pup weaning, females mate with an adult
male and then depart the islands. The last adult breeders depart the
islands in mid-March. The spring peak of elephant seals on the rookery
occurs

[[Page 44840]]

in April, when females and immature seals (approximately one to four
years old) arrive at the colony to molt (a one-month process) (USFWS
2013). The year's new pups remain on the island throughout both of
these peaks, generally leaving by the end of April (USFWS 2013). The
lowest numbers of elephant seals present at rookeries occurs during
June, July, and August, when sub-adult and adult males molt. Another
peak number of young seals returns to the rookery for a haul-out period
in October, and at that time some individuals undergo partial molt (Le
Boeuf and Laws, 1994).
Northern elephant seals are present on the islands and in the
waters surrounding the South Farallones year-round for either breeding
or molting; however, they are more abundant during breeding and peak
molting seasons (Le Boeuf and Laws, 1994; Sydeman and Allen, 1999).
Northern elephant seals began recolonizing the South Farallon Islands
in the early 1970s (Stewart et al., 1994) at which time the colony grew
rapidly. Point Blue's average monthly counts of elephant seals at SEFI
from 2000 to 2009 ranged from 20 individuals in July to nearly 500
individuals in November (USFWS 2013). During breeding season, the
population at ANI ranges from 900 to 1,000 adults, while another ~2,000
adults are found at PRNS (Mark Lowry, unpublished data; NPS,
unpublished data).

Pacific Harbor Seal

Pacific harbor seals 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 occurs along the California coast. The
California stock of harbor seals ranges from Mexico to the Oregon-
California border. In California, 400-600 harbor seal haul-out sites
are widely distributed along the mainland and offshore islands, and
include rocky shores, beaches and intertidal sandbars (Lowry et al.,
2008).
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.
On the Farallon Islands, approximately 40 to 120 Pacific harbor
seals haul out in the intertidal areas (Point Blue, unpublished data).
Harbor seals at PRNS haul out at nine locations with an annual
population of up to 4,000 animals (M. Lowry, unpublished data). On ANI,
harbor seals may haul out at one of eight beach areas on the perimeter
of the island, and the island's average population ranges from 100 to
150 animals (M. Lowry, unpublished data).

Potential Effects of Specified Activities on Marine Mammals and Their
Habitat

This section includes a summary and discussion of the ways that
components of the specified activity may impact marine mammals and
their habitat. The Estimated Take section later in this document
includes a quantitative analysis of the number of individuals that are
expected to be taken by this activity. The Negligible Impact Analysis
and Determination section considers the content of this section, the
Estimated Take section, and the Proposed Mitigation section to draw
conclusions regarding the likely impacts of these activities on the
reproductive success or survivorship of individuals and how those
impacts on individuals are likely to impact marine mammal species or
stocks.
Visual and acoustic stimuli generated by the appearance of
researchers and motorboat operations may have the potential to cause
Level B harassment of pinnipeds hauled out on SEFI, ANI, or PRNS. This
section includes a summary and discussion of the ways that the types of
stressors associated with the specified activity (e.g., personnel
presence and motorboats) have been observed to impact marine mammals.
This discussion may also include reactions that we consider to rise to
the level of a take and those that we do not consider to rise to the
level of a take. This section provides background information on
potential effects of these activities. For a discussion of the manner
in which the mitigation measures will be implemented, and how the
mitigation measures will shape the anticipated impacts from this
specific activity, see the Proposed Mitigation section below.
The appearance of researchers may have the potential to cause Level
B behavioral harassment of any pinnipeds hauled out at research sites.
Disturbance may result in reactions ranging from an animal simply
becoming alert to the presence of researchers (e.g., turning the head,
assuming a more upright posture) to flushing from the haulout site into
the water. NMFS does not consider the lesser reactions to constitute
behavioral harassment, or Level B harassment takes, but rather assumes
that pinnipeds that flee some distance or change the speed or direction
of their movement in response to the presence of researchers are
behaviorally harassed, and thus subject to Level B taking (see below).
Animals that respond to the presence of researchers by becoming alert,
but do not move or change the nature of locomotion as described, are
not considered to have been subject to behavioral harassment.
Reactions to human presence, if any, depend on species, state of
maturity, experience, current activity, reproductive state, time of
day, and many other factors (Richardson et al., 1995; Southall et al.,
2007; Weilgart 2007). These behavioral reactions from marine mammals
are often shown as: Changing durations of surfacing and dives, number
of blows per surfacing, or moving direction and/or speed; reduced/
increased vocal activities; changing/cessation of certain behavioral
activities (such as socializing or feeding); visible startle responses
or aggressive behavior; avoidance of areas; and/or flight responses
(e.g., pinnipeds flushing into the water from haulouts or rookeries).
If a marine mammal does react briefly to human presence by changing its
behavior or moving a small distance, the impacts of the change are
unlikely to be significant to the individual, let alone the stock or
population. However, if visual stimuli from human presence displaces
marine mammals from an important feeding or breeding area for a
prolonged period, impacts on individuals and populations could be
significant (e.g., Lusseau and Bejder 2007; Weilgart, 2007). Numerous
studies have shown that human activity can flush harbor seals off haul-
out sites (Allen et al., 1985; Calambokidis et al., 1991; 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). 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).
In cases where vessels actively approached marine mammals (e.g.,
whale watching or dolphin watching boats), scientists have documented
that animals exhibit altered behavior such as increased swimming speed,
erratic movement, and active avoidance behavior (Acevedo, 1991; Trites
and Bain, 2000; Williams et al., 2002; Constantine et al., 2003),
reduced blow interval, disruption of normal social behaviors (Lusseau
2003; 2006), and the

[[Page 44841]]

shift of behavioral activities that may increase energetic costs
(Constantine et al., 2003).
In 1997, Henry and Hammil (2001) conducted a study to measure the
impacts of small boats (i.e., kayaks, canoes, motorboats and sailboats)
on harbor seal haul-out behavior in Metis Bay, Quebec, Canada. During
that study, the authors noted that the most frequent disturbances
(n=73) were caused by lower speed, lingering kayaks, and canoes (33.3
percent) as opposed to motorboats (27.8 percent) conducting high-speed
passes. The seal's flight reactions could be linked to a surprise
factor by kayaks and canoes, which approach slowly, quietly, and low on
the water making them look like predators. However, the authors note
that, once the animals were disturbed, there did not appear to be any
significant lingering effect on the recovery of numbers to their pre-
disturbance levels. In conclusion, the study showed that boat traffic
at current levels had only a temporary effect on the haul-out behavior
of harbor seals in the Metis Bay area.
In 2004, Acevedo-Gutierrez and Johnson (2007) evaluated the
efficacy of buffer zones for watercraft around harbor seal haul-out
sites on Yellow Island, Washington. The authors estimated the minimum
distance between the vessels and the haul-out sites; categorized the
vessel types; and evaluated seal responses to the disturbances. During
the course of the seven-weekend study, the authors recorded 14 human-
related disturbances that were associated with stopped powerboats and
kayaks. During these events, hauled out seals became noticeably active
and moved into the water. The flushing occurred when stopped kayaks and
powerboats were at distances as far as 453 and 1,217 ft (138 and 371 m)
away, respectively. The authors note that the seals were unaffected by
passing powerboats, even those approaching as close as 128 ft (39 m),
possibly indicating that the animals had become tolerant of the brief
presence of the vessels and ignored them. The authors reported that, on
average, the seals quickly recovered from the disturbances and returned
to the haul-out site in less than or equal to 60 minutes. Seal numbers
did not return to pre-disturbance levels within 180 minutes of the
disturbance less than one quarter of the time observed. The study
concluded that the return of seal numbers to pre-disturbance levels and
the relatively regular seasonal cycle in abundance throughout the area
counter the idea that disturbances from powerboats may result in site
abandonment (Johnson and Acevedo-Gutierrez, 2007). As a general
statement from the available information, pinnipeds exposed to intense
(approximately 110 to 120 decibels referenced to 20 microPascals
([mu]Pa)) airborne non-pulsed sounds often leave haul-out areas and
seek refuge temporarily (minutes to a few hours) in the water (Southall
et al., 2007).
The potential for striking marine mammals is a concern with vessel
traffic. Typically, the reasons for vessel strikes are fast transit
speeds, lack of maneuverability, or not seeing the animal because the
boat is so large. Point Blue's researchers will access areas at slow
transit speeds in small boats that are easily maneuverable, minimizing
any chance of an accidental strike.
There are other ways in which disturbance, as described previously,
could result in more than Level B harassment of marine mammals. They
are most likely to be consequences of stampeding, a potentially
dangerous occurrence in which large numbers of animals succumb to mass
panic and rush away from a stimulus. These situations are: (1) Falling
when entering the water at high-relief locations; (2) extended
separation of mothers and pups; and (3) crushing of pups by larger
animals during a stampede. However, NMFS does not expect any of these
scenarios to occur at SEFI, ANI, or PRNS. There is the risk of injury
if animals stampede towards shorelines with precipitous relief (e.g.,
cliffs). Researchers will take precautions, such as moving slowly and
staying close to the ground, to ensure that flushes do not result in a
stampede of pinnipeds heading to the sea. Point Blue reports that
stampedes are extremely rare at their survey locations. Furthermore, no
research activities would occur at or near pinniped rookeries. Breeding
animals are concentrated in areas where researchers would not visit, so
NMFS does not expect mother and pup separation or crushing of pups
during flushing. Furthermore, if pups should be present at any Point
Blue research sites, researchers will avoid visiting that particular
site.
Given the nature of the proposed activities (i.e. animal
observations from a distance and limited motorboat operations) in
conjunction with proposed mitigation measures, NMFS is confident that
any anticipated effects would be in the form of behavioral disturbance
only. NMFS considers the risk of injury, serious injury, or mortality
to marine mammals to be very low.
There are no habitat modifications associated with the proposed
activity other than the presence of existing observation blinds by
researchers to monitor animals. These blinds disturb only a few square
feet of habitat. The presence of the blinds will likely result in a net
decrease in disturbance since the researchers will only be visible
briefly as they enter and exit the blind. Thus, NMFS does not expect
that the proposed activity would have any effects on marine mammal
habitat and NMFS expects that there will be no long- or short-term
physical impacts to pinniped habitat on SEFI, ANI, or PRNS.

Estimated Take

This section provides an estimate of the number of incidental takes
proposed for authorization through this LOA, and this estimate will
inform both NMFS' consideration of ``small numbers'' and the negligible
impact determination.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes would be by Level B harassment only, in the form
of disruption of behavioral patterns for individual marine mammals
resulting from exposure to researchers. Based on the nature of the
activity and required mitigation, no Level A harassment, serious
injury, or mortality is anticipated or proposed to be authorized. As
described previously, no mortality is anticipated or proposed to be
authorized for this activity. Below we describe how the take is
estimated.

Marine Mammal Occurrence and Take Calculation and Estimation

Take estimates are based on take reported by Point Blue in the last
five years (Table 2). Point Blue's requested annual take was calculated
as the maximum annual recorded take for each species over the last five
years with a 10 percent increase (to account for potential population
growth over the course of the five-year authorization), or the
authorized take from the most recent IHA, whichever was greater.

[[Page 44842]]

Take of northern fur seals and Guadalupe fur seals has not been
authorized in Point Blue's past IHAs. However, the northern fur seal
colony in the Farallon Islands is expanding, and northern fur seals are
beginning to haul out in areas that are regularly visited by
researchers and in areas that are critical for access to the island.
There is also some potential for Guadalupe fur seals to be present at
the Farallon Islands, though they are not expected to occur as
frequently as northern fur seals. Therefore, Point Blue has requested
20 annual takes by Level B harassment of northern fur seals and 5
annual takes by Level B harassment of Guadalupe fur seals, and NMFS
proposes to authorize this amount.

Table 2--Reported Take Observations From Previous IHAs, and Requested Annual Takes by Level B Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reported take observations for all activities Total
-------------------------------------------------------------------------------- Authorized requested
Species takes from annual takes
2014 2015 2016 2017 2018 most recent by Level B
IHA harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
California sea lion..................... 10,048 36,417 23,173 22,752 17,487 32,623 40,059
Northern elephant seal.................. 145 175 119 202 85 239 239
Pacific harbor seal..................... 284 292 175 234 229 304 321
Steller sea lion........................ 59 31 32 35 5 43 65
Northern fur seal....................... 0 0 0 0 0 0 20
Guadalupe fur seal...................... 0 0 0 0 0 0 5
--------------------------------------------------------------------------------------------------------------------------------------------------------

Table 3--Proposed Take by Level B Harassment and Percent of MMPA Stock Proposed To Be Taken
----------------------------------------------------------------------------------------------------------------
Proposed Proposed
annual take total take by Percent of
Species Stock by Level B Level B Stock \1\
harassment harassment
----------------------------------------------------------------------------------------------------------------
California sea lion................... U.S..................... 40,059 200,295 15.55
Northern elephant seal................ California breeding..... 239 1,195 0.13
Pacific harbor seal................... California.............. 321 1,605 1.04
Steller sea lion...................... Eastern U.S............. 65 325 0.15
Northern fur seal \2\................. California.............. 20 100 0.14
Eastern Pacific......... <0.01
Guadalupe fur seal.................... Mexico to California.... 5 25 0.01
----------------------------------------------------------------------------------------------------------------
\1\ Reflects annual take number.
\2\ As either stock may occur in the project area, for the purposes of calculating the percentage of the stock
impacted, the take is being analyzed as if all proposed takes occurred within each stock.

Proposed Mitigation

In order to issue regulations and an LOA under Section 101(a)(5)(A)
of the MMPA, NMFS must set forth the permissible methods of taking
pursuant to the activity, and other means of effecting the least
practicable impact on the species or stock and its habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stock for
taking for certain subsistence uses (latter not applicable for this
action). NMFS regulations require applicants for incidental take
authorizations to include information about the availability and
feasibility (economic and technological) of equipment, methods, and
manner of conducting the activity or other means of effecting the least
practicable adverse impact upon the affected species or stocks and
their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, we
carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost and impact on
operations.
To reduce the potential for disturbance from acoustic and visual
stimuli associated with survey activities, Point Blue will implement
the following mitigation measures:
Slow approach to beaches for boat landings to avoid
stampede, provide animals opportunity to enter water, and avoid vessel
strikes;
Observe a site from a distance, using binoculars if
necessary, to detect any marine mammals prior to approach to determine
if mitigation is required (i.e., if 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);
Avoid pinnipeds along access ways to sites by locating and
taking a different access way. Researchers will keep a safe distance
from and not approach any marine mammal while conducting research,
unless it is absolutely necessary to flush a marine mammal in order to
continue conducting research (i.e., if a site cannot be accessed or
sampled due to the presence of pinnipeds);
Avoid visits to sites when pups are present or when
species for which

[[Page 44843]]

authorization has not been granted are present;
Monitor for offshore predators and do not approach hauled
out pinnipeds if great white sharks (Carcharodon carcharias) or killer
whales (Orcinus orca) are present. If Point Blue and/or its designees
see pinniped predators in the area, they must not disturb the pinnipeds
until the area is free of predators;
Keep voices hushed and bodies low to the ground in the
visual presence of pinnipeds;
Conduct seabird observations at North Landing on SEFI in
an observation blind, shielded from the view of hauled out pinnipeds;
Crawl slowly to access seabird nest boxes on ANI if
pinnipeds are within view; and
Coordinate research visits to intertidal areas of SEFI (to
reduce potential take) and coordinate research activities for ANI to
minimize the number of trips to the island.
Based on our evaluation of the applicant's proposed measures, and
the proven efficacy and practicability of these mitigation measures in
previous Point Blue incidental take authorizations, NMFS has
preliminarily determined that the proposed mitigation measures provide
the means effecting the least practicable impact on the affected
species or stocks and their habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance.

Proposed Monitoring and Reporting

In order to issue regulations and an LOA for an activity, Section
101(a)(5)(A) of the MMPA states that NMFS must set forth requirements
pertaining to the monitoring and reporting of such taking. The MMPA
implementing regulations at 50 CFR 216.104 (a)(13) indicate that
requests for authorizations must include the suggested means of
accomplishing the necessary monitoring and reporting that will result
in increased knowledge of the species and of the level of taking or
impacts on populations of marine mammals that are expected to be
present in the proposed action area. Effective reporting is critical
both to compliance as well as ensuring that the most value is obtained
from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) Action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and
Mitigation and monitoring effectiveness.
Point Blue will contribute to the knowledge of pinnipeds in
California 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
pinnipeds or carcasses, allowing transmittal of the information to
appropriate agencies and personnel; and (3) rare or unusual species of
marine mammals for agency follow-up.
Required monitoring protocols for Point Blue will include the
following:
(1) Record of date, time, and location (or closest point of
ingress) of each visit to the research site;
(2) Composition of the marine mammals sighted, such as species,
gender, and life history stage (e.g., adult, sub-adult, pup);
(3) Information on the numbers (by species) of marine mammals
observed during the activities;
(4) Estimated number of marine mammals (by species) that may have
been harassed during the activities;
(5) Behavioral responses or modifications of behaviors that may be
attributed to the specific activities and a description of the specific
activities occurring during that time (e.g., pedestrian approach,
vessel approach); and
(6) Information on the weather, including the tidal state and
horizontal visibility.
The lead biologist will serve as an observer to record incidental
take. For consistency, any reactions by pinnipeds to researchers will
be recorded according to a three-point scale shown in Table 4. Note
that only observations of disturbance noted in Levels 2 and 3 should be
recorded as takes.

Table 4--Levels of Pinniped Behavioral Disturbance
------------------------------------------------------------------------
Type of
Level 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 observations of disturbance Levels 2 and 3 are recorded as takes.

This information will be incorporated into a monitoring report for
NMFS. The monitoring report will cover the period from January 1
through December 31 of each year of the authorization. Point Blue will
submit annual report data on a calendar year schedule, regardless of
the LOA's initiation or expiration dates. This ensures that data from
all consecutive months will be collected and, therefore, can be
analyzed to estimate authorized take for future incidental take
authorizations regardless of the existing authorization's issuance
date. Point Blue will submit a draft

[[Page 44844]]

monitoring report for the activities to NMFS Office of Protected
Resources by April 1 of each year. A final report will 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, the
draft monitoring report will be considered to be the final report. The
final annual report after year five may be included as part of the
final report (see below).
Point Blue must also report observations of unusual pinniped
behaviors, numbers, or distributions and tag-bearing carcasses to the
NMFS West Coast Regional Office. In the event that personnel discovers
an injured or dead marine mammal, Point Blue shall report the incident
to the NMFS Office of Protected Resources, and the NMFS West Coast
Regional Stranding Coordinator as soon as feasible. If the death or
injury was clearly caused by Point Blue's activities, Point Blue must
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 LOA. Point Blue must not resume their activities until notified
by NMFS. The report must include the following information:
(1) Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
(2) Species identification (if known) or description of the
animal(s) involved;
(3) Condition of the animal(s) (including carcass condition if the
animal is dead);
(4) Observed behaviors of the animal(s), if alive;
(5) If available, photographs or video footage of the animal(s);
and
(6) General circumstances under which the animal was discovered.
A draft final report shall be submitted to the NMFS Office of
Protected Resources within 60 days after the conclusion of the fifth
year. A final report shall be submitted to the Director of the NMFS
Office of Protected Resources within 30 days after receiving comments
from NMFS on the draft final report. If no comments are received from
NMFS, the draft final report will be considered the final report.

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 3, given that the anticipated effects of
this activity on these different marine mammal stocks are expected to
be similar. For reasons stated previously in this document and based on
the following factors, NMFS does not expect Point Blue's specified
activities to cause long-term behavioral disturbance that would
negatively impact an individual animal's fitness, or result in injury,
serious injury, or mortality. Although Point Blue's survey activities
may disturb marine mammals, NMFS expects those impacts to occur to
localized groups of animals at or near survey sites. Behavioral
disturbance would be limited to short-term startle responses and
localized behavioral changes due to the short duration (ranging from
<15 minutes for visits at most locations up to 2-5 hours from April-
August at SEFI) of the research activities. At some locations, where
resupply activities occur, visits will occur once every two weeks.
Minor and brief responses including short-duration startle reactions,
are not likely to constitute disruption of behavioral patterns, such as
migration, nursing, breeding, feeding, or sheltering. These short
duration disturbances (in many cases animals will return in 30 minutes
or less) will generally allow marine mammals to reoccupy haulouts
relatively quickly; therefore, these disturbances would not be
anticipated to result in long-term disruption of important behaviors.
No surveys will occur at or near rookeries as researchers will have
limited access to SEFI, ANI, and PRNS during the pupping season and
will not approach sites should pups be observed. Furthermore, breeding
animals tend to be concentrated in areas that researchers are not
scheduled to visit. Therefore, NMFS does not expect mother and pup
separation or crushing of pups during stampedes.
Level B behavioral harassment of pinnipeds may occur during the
operation of small motorboats. However, exposure to boats and
associated engine noise would be brief and would not occur on a
frequent basis. Results from studies demonstrate that pinnipeds
generally return to their sites and do not permanently abandon haul-out
sites after exposure to motorboats (Henry and Hammil 2001; Johnson and
Acevedo-Gutierrez 2007). The chance of a vessel strike is very low due
to small boat size and slow transit speeds. Researchers will delay
ingress into the landing areas until after the pinnipeds enter the
water and will cautiously operate vessels at slow speeds.
In summary and as described above, the following factors primarily
support our preliminary determination that the impacts resulting from
this activity are not expected to adversely affect the species or stock
through effects on annual rates of recruitment or survival:
No serious injury or mortality, or Level A harassment, is
anticipated or authorized;
There is no activity near rookeries and researchers will
avoid areas where pups are present;
There is likely to be limited impact from boats due to
their small size, maneuverability and the requirement to delay ingress
until after hauled out pinnipeds have entered the water;
No impacts to pinniped habitat are anticipated; and
Only limited behavioral disturbance in the form of short-
duration startle reactions is expected, and mitigation requirements
employed by researchers (e.g. move slowly, use hushed voices) should
further decrease disturbance levels.
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

[[Page 44845]]

that the total marine mammal take from the proposed activity will have
a negligible impact on all affected marine mammal species or stocks.

Small Numbers

As noted above, only small numbers of incidental take may be
authorized under Sections 101(a)(5)(A) of the MMPA for specified
activities other than military readiness activities. The MMPA does not
define small numbers and so, in practice, where estimated numbers are
available, NMFS compares the number of individuals taken to the most
appropriate estimation of abundance of the relevant species or stock in
our determination of whether an authorization is limited to small
numbers of marine mammals. Additionally, other qualitative factors may
be considered in the analysis, such as the temporal or spatial scale of
the activities.
The annual amount of take NMFS proposes to authorize is less than
one-third of any stock's best population estimate (Table 3), which NMFS
considers to be small relative to stock abundance. In fact, for all
species but California sea lions, the annual take by Level B harassment
is less than 2 percent of stock abundance. Additionally, these are all
likely conservative estimates because we assume all takes are of
different individual animals which is likely not the case considering
haulout site fidelity in pinnipeds.
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
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
Point Blue's seabird research activities would contain an adaptive
management component.
The reporting requirements associated with this proposed rule are
designed to provide NMFS with monitoring data from the previous year 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 (with input from Point Blue regarding
practicability) 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 Point Blue's monitoring from the previous year(s); (2) results
from other marine mammal research or studies; and (3) any information
that reveals marine mammals may have been taken in a manner, extent or
number not authorized by these regulations or subsequent LOAs.

Endangered Species Act (ESA)

Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16
U.S.C. 1531 et seq.) requires that each Federal agency insure that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat.
There is one marine mammal species (Guadalupe fur seal) listed
under the ESA that is expected to be impacted by the proposed
activities. The Permits and Conservation Division has requested
initiation of section 7 consultation with the West Coast Region
Protected Resources Division Office for the issuance of this LOA. NMFS
will conclude the ESA consultation prior to reaching a determination
regarding the proposed issuance of the authorization.

Request for Information

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

Classification

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

List of Subjects in 50 CFR Part 219

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

Dated: July 8, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.

For reasons set forth in the preamble, 50 CFR part 217 is proposed
to be amended as follows:

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

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

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

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

[[Page 44846]]

Subpart M--Taking Marine Mammals Incidental to Seabird Research
Activities in Central California
Sec.
217.120 Specified activity and specified geographical region.
217.121 Effective dates.
217.122 Permissible methods of taking.
217.123 Prohibitions.
217.124 Mitigation requirements.
217.125 Requirements for monitoring and reporting.
217.126 Letters of Authorization.
217.127 Renewals and modifications of Letters of Authorization.
217.128--217.129 [Reserved]

Sec. 217.120 Specified activity and specified geographical region.

(a) Regulations in this subpart apply only to Point Blue
Conservation Science (Point Blue) and those persons it authorizes or
funds to conduct activities on its behalf for the taking of marine
mammals that occurs in the areas outlined in paragraph (b) of this
section and that occur incidental to seabird research activities.
(b) The taking of marine mammals by Point Blue may be authorized in
a Letter of Authorization (LOA) only if it occurs in California on
Southeast Farallon Island, A[ntilde]o Nuevo Island, and Point Reyes
National Seashore.

Sec. 217.121 Effective dates.

Regulations in this subpart are effective from January 1, 2021
through December 31, 2025.

Sec. 217.122 Permissible methods of taking.

Under LOAs issued pursuant to Sec. 216.106 of this chapter and
Sec. 217.126, the Holder of the LOA (hereinafter ``Point Blue'') may
incidentally, but not intentionally, take marine mammals within the
area described in Sec. 217.120(b) by Level B harassment associated
with seabird research activities, provided the activity is in
compliance with all terms, conditions, and requirements of the
regulations in this subpart and the appropriate LOA.

Sec. 217.123 Prohibitions.

Notwithstanding takings contemplated in Sec. 217.120 and
authorized by a LOA issued under Sec. 216.106 of this chapter and
Sec. 217.126, no person in connection with the activities described in
Sec. 217.120 may:
(a) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a LOA issued under Sec. 216.106 of
this chapter and Sec. 217.126;
(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. 217.122;
(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. 217.124 Mitigation requirements.

When conducting the activities identified in Sec. 217.120(a), the
mitigation measures contained in any LOA issued under Sec. 216.106 of
this chapter and Sec. 217.126 must be implemented. These mitigation
measures shall include but are not limited to:
(a) General conditions:
(1) All persons must slowly approach beaches for boat landings to
avoid stampede, provide animals opportunity to enter the water, and
avoid vessel strikes.
(2) All persons must observe a site from a distance, using
binoculars if necessary, to detect any marine mammals prior to approach
to determine if mitigation is required (i.e., if pinnipeds are present,
researchers must 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).
(3) All persons must avoid pinnipeds along access ways to sites by
locating and taking a different access way. Researchers must keep a
safe distance from and not approach any marine mammal while conducting
research, unless it is absolutely necessary to flush a marine mammal in
order to continue conducting research (i.e., if a site cannot be
accessed or sampled due to the presence of pinnipeds).
(4) All persons must avoid visits to sites when pups are present or
when species for which authorization has not been granted are present.
(5) All persons must monitor for offshore predators and must not
approach hauled out pinnipeds if great white sharks (Carcharodon
carcharias) or killer whales (Orcinus orca) are observed to be present.
If Point Blue and/or its designees see pinniped predators in the area,
they must not disturb the pinnipeds until the lead biologist determines
the area is free of predators based on best professional judgment.
(6) All persons must keep voices hushed and bodies low to the
ground in the visual presence of pinnipeds.
(7) All persons must conduct seabird observations at North Landing
on Southeast Farallon Island in an observation blind, shielded from the
view of hauled out pinnipeds.
(8) All persons must crawl slowly to access seabird next boxes on
A[ntilde]o Nuevo Island if pinnipeds are within view.
(9) Researchers must coordinate research visits to intertidal areas
of Southeast Farallon Island and coordinate research activities for
A[ntilde]o Nuevo Island to minimize the number of trips to these areas.
(b) [Reserved]

Sec. 217.125 Requirements for monitoring and reporting.

(a) Visual monitoring program. (1) Standard information recorded
must include species counts (with age/sex classes noted 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) The lead biologist must serve as an observer to record
incidental take.
(3) Information to be recorded must include the following:
(i) The date, time, and location (or closest point of ingress) of
each visit to the research site;
(ii) Composition of the marine mammals sighted, such as species,
sex, and life history stage (e.g., adult, sub-adult, pup);
(iii) The number (by species) of marine mammals observed during the
activities;
(iv) Estimated number of marine mammals (by species) that may have
been harassed during the activities, according to a three-point scale
of disturbance contained in any LOA issued under Sec. 216.106 of this
chapter and Sec. 217.126. Only observations of disturbance Levels 2
and 3 should be recorded as takes;
(v) Behavioral responses or modifications in behaviors that may be
attributed to the specific activities and a description of the specific
activities occurring during that time (e.g., pedestrian approach,
vessel approach);
(vi) Information on the weather, including the tidal state and
horizontal visibility; and
(vii) If applicable, note the presence of any offshore predators
(date, time, number, and species).
(b) Prohibited Take. (1) In the event that personnel discovers an
injured or dead marine mammal, Point Blue shall report the incident to
the Office of Protected Resources, NMFS, and the West Coast Regional
Stranding Coordinator, NMFS as soon as feasible. If the death or injury
was clearly caused by Point Blue's activities, Point Blue

[[Page 44847]]

must 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 LOA. Point Blue must not resume their activities until notified
by NMFS. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
(ii) Species identification (if known) or description of the
animal(s) involved;
(iii) Condition of the animal(s) (including carcass condition if
the animal is dead);
(iv) Observed behaviors of the animal(s), if alive;
(v) If available, photographs or video footage of the animal(s);
and
(vi) General circumstances under which the animal was discovered.
(c) Initial report. Point Blue must report observations of unusual
behaviors, numbers, or distributions of pinnipeds, or of tag-bearing
carcasses, to the NMFS West Coast Regional Office.
(d) Annual report. (1) A draft annual report covering the period of
January 1 through December 31 of each year must be submitted to NMFS
Office of Protected Resources by April 1 of each year. The final annual
report after year five may be included as part of the final report (see
below). The report must include a summary of the information gathered
pursuant to the monitoring requirements set forth above and in the LOA.
(2) A final annual report must be submitted to the Director of the
NMFS Office of Protected Resources within 30 days after receiving
comments from NMFS on the draft annual report. If no comments are
received from NMFS, the draft annual report will be considered the
final report.
(e) Final report. (1) A draft final report must be submitted to
NMFS Office of Protected Resources within 60 days after the conclusion
of the fifth year. A final report must be submitted to the Director of
the NMFS Office of Protected Resources within 30 days after receiving
comments from NMFS on the draft final report. If no comments are
received from NMFS, the draft final report will be considered the final
report.

Sec. 217.126 Letters of Authorization.

(a) To incidentally take marine mammals pursuant to these
regulations, Point Blue 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, Point Blue 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, Point Blue must
apply for and obtain a modification of the LOA as described in Sec.
217.127.
(e) The LOA shall set forth:
(1) Permissible methods and numbers of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the
level of taking will be consistent with the findings made for the total
taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA shall be published in
the Federal Register within thirty days of a determination.

Sec. 217.127 Renewals and modifications of Letters of Authorization.

(a) An LOA issued under Sec. 216.106 of this chapter and Sec.
217.126 for the activity identified in Sec. 217.120(a) shall be
renewed or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations (excluding changes
made pursuant to the adaptive management provision in paragraph (c)(1)
of this section), and
(2) NMFS' Office of Protected Resources determines that the
mitigation, monitoring, and reporting measures required by the previous
LOA under these regulations were implemented.
(b) For an LOA modification or renewal requests by the applicant
that include changes to the activity or the mitigation, monitoring, or
reporting (excluding changes made pursuant to the adaptive management
provision in paragraph (c)(1) of this section) that do not change the
findings made for the regulations or result in no more than a minor
change in the total estimated number of takes (or distribution by
species or years), NMFS' Office of Protected Resources may publish a
notice of proposed LOA in the Federal Register, including the
associated analysis of the change, and solicit public comment before
issuing the LOA.
(c) An LOA issued under Sec. 216.106 of this chapter and Sec.
217.126 for the activity identified in Sec. 217.120(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 Point Blue 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 Point Blue's monitoring from the previous year(s).
(B) Results from other marine mammal and/or sound research or
studies.
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by these regulations or
subsequent LOAs.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS'
Office of Protected Resources will publish a notice of proposed LOA in
the Federal Register and solicit public comment.
(2) Emergencies. If NMFS' Office of Protected Resources determines
that an emergency exists that poses a significant risk to the well-
being of the species or stocks of marine mammals specified in LOAs
issued pursuant to Sec. 216.106 of this chapter and Sec. 217.126, an
LOA may be modified without prior notice or opportunity for public
comment. Notice would be published in the Federal Register within
thirty days of the action.

Sec. Sec. 217.128--217.129 [Reserved]

[FR Doc. 2020-15150 Filed 7-23-20; 8:45 am]
BILLING CODE 3510-22-P