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Proposed Rule2021-19124

Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Lighthouse Repair and Tour Operations at Northwest Seal Rock, California

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Published

September 8, 2021

Issuing agencies

Commerce DepartmentNational Oceanic and Atmospheric Administration

Abstract

NMFS has received a request from the St. George Reef Lighthouse Preservation Society (Society) for authorization to take marine mammals over the course of 5 years (2021-2026) incidental to conducting aircraft operations, lighthouse renovation, light maintenance activities, and tour operations on the St. George Reef Lighthouse Station (Station) on Northwest Seal Rock (NWSR). 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 authorizations and agency responses will be summarized in the final notification of our decision.

Full Text

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<title>Federal Register, Volume 86 Issue 171 (Wednesday, September 8, 2021)</title>
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[Federal Register Volume 86, Number 171 (Wednesday, September 8, 2021)]
[Proposed Rules]
[Pages 50304-50320]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-19124]

[[Page 50304]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 210830-0172]
RIN 0648-BJ87

Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Lighthouse Repair and Tour
Operations at Northwest Seal Rock, 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 the St. George Reef
Lighthouse Preservation Society (Society) for authorization to take
marine mammals over the course of 5 years (2021-2026) incidental to
conducting aircraft operations, lighthouse renovation, light
maintenance activities, and tour operations on the St. George Reef
Lighthouse Station (Station) on Northwest Seal Rock (NWSR). 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 authorizations and agency
responses will be summarized in the final notification of our decision.

DATES: Comments and information must be received no later than October
8, 2021.

ADDRESSES: Submit all electronic public comments via the Federal e-
Rulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and enter NOAA-
NMFS-2021-0079 in the Search box. 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 on
<a href="http://www.regulations.gov">www.regulations.gov</a> 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).
Attachments to electronic comments will be accepted in Microsoft Word,
Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Dwayne Meadows, Ph.D., 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: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. In case of problems accessing these
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Availability

A copy of the Society's application and any supporting documents,
as well as a list of the references cited in this document, may be
obtained online at: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. 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 the Society conducting aircraft
operations, lighthouse renovation, light maintenance activities, and
tour operations on the Station on NWSR approximately 8 miles (12.9 km)
northwest of Crescent City, CA.
We received an application from the Society requesting 5-year
regulations and authorization to take multiple species of marine
mammals. Take would occur by Level B harassment incidental to acoustic
and visual disturbance of pinnipeds during helicopter operations,
lighthouse repair, and tour operations. Please see Background section
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 5 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 5-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 the Society's activities. These measures include:
<bullet> Required implementation of mitigation to minimize impact
to pinnipeds and avoid disruption to dependent pups including several
measures to approach haulouts cautiously to minimize disturbance,
especially when pups are present.
<bullet> Required monitoring of the project areas to detect the
presence of marine mammals before initiating work.

Background

The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce (as delegated to NMFS) to allow, upon
request, the incidental, but not intentional, taking of small numbers
of marine mammals by U.S. citizens who engage in a specified activity
(other than commercial fishing) within a specified geographical region
if certain findings are made, regulations are issued, and notice is
provided to the public.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for

[[Page 50305]]

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.
NMFS has defined ``negligible impact'' in 50 CFR 216.103 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.
The MMPA states that the term ``take'' means to harass, hunt,
capture, or kill, or attempt to harass, hunt, capture, or kill any
marine mammal.
Except with respect to certain activities not pertinent here, 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).

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 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 the issuance of the proposed rule
qualifies to be categorically excluded from further NEPA review.
Information in the Society's application and this notification
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 notification prior to concluding
our NEPA process or making a final decision on the request.

Summary of Request

On March 23, 2020, NMFS received a request from the Society for a
proposed rule and LOAs to take marine mammals incidental to lighthouse
maintenance and preservation activities at NWSR, offshore of Crescent
City, CA. The application was deemed adequate and complete on April 16,
2020. The Society's request is for take of a small number of California
sea lions (Zalophus californianus), harbor seals (Phoca vitulina),
Steller sea lions (Eumetopias jubatus), and northern fur seals
(Callorhinus ursinus) by Level B harassment only. Neither the Society
nor NMFS expects serious injury or mortality to result from this
activity. On June 9, 2020 (85 FR 35268), we published a notice of
receipt of the Coast Guard's application in the Federal Register,
requesting comments and information related to the request for 30 days.
We received no comments.
NMFS previously issued nine 1-year Incidental Harassment
Authorizations (IHAs) for similar work (75 FR 4774, January 29, 2010;
76 FR 10564, February 25, 2011; 77 FR 8811, February 15, 2012; 78 FR
71576, November 29, 2013; 79 FR 6179, February 3, 2014; 81 FR 9440,
February 25, 2016; 82 FR 11005, February 17, 2017; 83 FR 19254, May 2,
2018; and 84 FR 15598, April 16, 2019). Generally speaking, the Society
complied with the requirements (e.g., mitigation, monitoring, and
reporting) of the previous IHAs. However, misunderstandings in past
implementation have resulted in missing or incorrectly recorded
monitoring data, which necessitates more frequent reporting in the
first year (at least) of this rule to ensure appropriate monitoring and
reporting implementation in the future. Information regarding their
monitoring results may be found in the Potential Effects of Specified
Activities on Marine Mammals and their Habitat and Estimated Take
sections.

Description of Proposed Activity

Overview

The St. George Reef Lighthouse Station was built on NWSR in 1892
and is listed in the National Register of Historic Places. Covering
much of the islet's surface, the structure consists of a 14.5 meter (m)
high (48 foot (ft)) oval-shaped concrete base (the caisson) that holds
much of the equipment and infrastructure for the lighthouse tower,
which sits on the top of one end of the base. The square tower consists
of hundreds of granite blocks topped with a cast iron lantern room
reaching 45.7 m (150 ft) above sea level. An observation gallery
platform surrounds the lantern room and provides a 360 degree view to
the caisson and rocks below.
The purpose of the project is to conduct annual maintenance of the
Station's optical light system, emergency maintenance in the event of
equipment failure, restoration activities, and lighthouse tours.
Because NWSR has no safe landing area for boats, the Society accesses
the Station via helicopter. Restoration work sessions can occur over 3-
day weekends or longer one to two week sessions. The following specific
aspects of the proposed activities would likely result in the take of
marine mammals: Acoustic and visual stimuli from (1) helicopter
landings and takeoffs; (2) noise generated during restoration
activities (e.g., painting, plastering, welding, and glazing); (3)
maintenance activities (e.g., bulb replacement and automation of the
light system); and (4) human presence. Thus, NMFS anticipates these
activities may occasionally cause behavioral disturbance (i.e., Level B
harassment) of four pinniped species. It is expected that the
disturbance to pinnipeds from the activities will be minimal and will
be limited to Level B harassment.
The regulations proposed here (and any issued LOAs) would replace
annual IHAs, providing a reduction in the time and effort necessary to
obtain individual incidental take authorizations.

Dates and Duration

The Society proposes to conduct the activities (aircraft
operations, lighthouse restoration and maintenance activities, and
public tours) with a maximum of 70 helicopter flight days per year. The
Society's deed restricts normal access from June 1 through October 15
annually, so currently proposed trips under this application would
occur from October 16 through May 31. However, the Society is
attempting to have the deed revised to allow visits at any time of the
year. Therefore we will consider the implications of possible visits
during any month of the year in our analyses below and we could issue
LOAs to cover this time of year should the society be successful in
revising their deed. The proposed regulations would be valid for a
period of 5 years (January 1, 2022-December 31, 2026). Over the course
of this 5-year authorization, the Society proposes a maximum of 350
days of activities.

Specific Geographic Region

The Station is located on NWSR (Figure 1), a small, rocky islet
(41[deg]50'24'' N, 124[deg]22'06'' W), approximately 9

[[Page 50306]]

kilometers (km) (6.0 miles (mi)) offshore of Crescent City, California
(41[deg]46'48'' N; 124[deg]14'11'' W). NWSR is approximately 91.4
meters (m) (300 feet (ft)) in diameter and peaks at 5.18 m (17 ft)
above mean sea level.

Detailed Description of Specific Activity

Lighthouse Restoration Activities
Restoration and maintenance activities would involve the removal
and restoration of interior plaster and paint, refurbishing structural
and decorative metal, reworking original metal support beams throughout
the lantern room and elsewhere, replacing glass as necessary, upgrading
the present electrical system; and annual or biannual light beacon
maintenance. The Society proposes to transport no more than 12 work
crew members (requiring up to four round-trip flights) and equipment to
NWSR for each restoration work session. Traditional work sessions in
the past have been over 3-day long weekends. The Society now proposes
to add occasional longer one to two week work sessions to address
additional restoration needs.
Public Tours
The Society began conducting public tours to the lighthouse by
helicopter in 1998 in conjunction with restoration activities and
proposes to conduct public tours at the Station on one day of a
traditional 3-day work session and on one to two weekend days of the
longer work trips. The maximum number of expected tourists is 36 people
per tour day.
Light Maintenance
As required by the United States Coast Guard, in order to maintain
St. George Reef Lighthouse as a Private Aid to Navigation, the Society
needs to conduct maintenance of the light. Normally this would occur in
conjunction with a longer restoration work session. However, if the
beacon light fails, the Society proposes to send a crew of two to three
people to the Station by helicopter as soon as possible to repair the
beacon light. Each repair event requires a 1-day trip to the Station.
The Society's deed currently limits visits between June 1 and
October 15 of each year, but does permit limited emergency light repair
trips to the station during that time. Should the Society be successful
in eliminating the deed restriction on visitation dates, no light
maintenance trips would be considered ``emergency''.
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TP08SE21.004

BILLING CODE 3510-22-C
Aircraft Operations
Because NWSR has no safe landing area for boats, the proposed
restoration, maintenance, and touring activities require the Society to
transport work personnel, equipment, and tourists from the California
mainland to NWSR by small helicopter. Helicopter landings take place
adjacent to the tower on top of the oval base caisson. The landing area
is small, so only small helicopters can be accommodated. The helicopter
seats four passengers and one pilot and can also carry cargo in a net
below the helicopter.
The number of flights per day varies by activity (restoration,
tours, or light maintenance). We count each arrival and departure
flight separately. For traditional 3-day restoration work sessions the
12 work crew members are transported to the Station on the morning of
the first day (typically a Friday). The first flight would depart from
Crescent City Airport no earlier than 8:30 a.m. for a 6-minute flight
to Northwest Seal Rock. The helicopter would land and take-off
immediately after offloading personnel and equipment every 20 minutes.
To transport all 12 people and gear requires 4 departures and 4
arrivals on the first day for a total of 8 flights. The total duration
of the first day's aerial operations would last for approximately 4
hours (hrs) and would end at approximately 12:30 p.m. Crew members
would remain overnight at the Station and would not return to the
mainland until the third day.
For the second day, the Society may conduct a maximum of four
flights (two arrivals and two departures) to transport additional
materials, if needed. The total duration of the second day's aerial

[[Page 50308]]

operations could last up to 3 hrs. Second-day operations are only
conducted if needed; flights on the second day do not always occur.
For the final day of operations, the Society could conduct a
maximum of eight flights (four arrivals and four departures) to
transport the crew members and equipment/material back to the Crescent
City Airport. The total duration of the third day's helicopter
operations could last up to 2 hrs. Thus the total number of flights for
restoration work on a 3 day trip is 20 (i.e., 8 Friday, 4 Saturday, 8
Sunday). The Society proposes no more than 14 3-day work sessions per
year.
The number of flights and days of flights on a one to two week
restoration trip would be similar to a 3 day trip. That is eight
flights on the first and last days of the trip plus four flights
potentially on 1 day in the middle of the trip as needed. The Society
is proposing no more than eight long trips per year. To date no more
than three trips per year have ever been conducted. The Society would
have no more than two restoration work trips per month.
On a 3-day restoration trip tours may occur on the last day. The
tours would be scheduled on a weekend day on the beginning and or the
end of the work party for the one to two week duration restoration
trips. Additional flights would be conducted solely for the transport
of tourists to and from the Lighthouse; those flights would be
conducted in the later hours of the morning and early afternoon. The
maximum number of expected tourists is 36 people per tour day. Thus the
number of helicopter flights needed for tourists is 18 (9 arrivals and
9 departures). It is expected that each flight would land every 15-20
minutes. The scheduled duration of each visit is one hour per tour
group (each tour group is one helicopter load of people). The last tour
group would leave the island before 2 p.m. The total number of
helicopter flights on a tour day is thus no more than 26 (18 for
tourists, 8 for work crew members).
Light maintenance is expected to take no longer than 3 hours and
one crew of two-three people. Only one-two helicopter landings at the
Lighthouse are anticipated to ferry the crew an equipment to service
the light. Thus a light maintenance trip requires a maximum of four
flights on one day.
Most if not all of the disturbance from the Society's activity
occurs on the flight days. When helicopters are not at the Station work
crews remain inside or on the platform far above the marine mammals on
the rocks below. Thus the number of flight days represents the general
extent of the disturbance from these activities. The society proposes
no more than 70 days of flight operations per year (4 for regular or
emergency light maintenance trips and 66 for work restoration trips
(with additional flights, but not days of flight activity on no more
than 30 tour days).
Proposed mitigation, monitoring, and reporting measures are
described in detail later in this document (please see Proposed
Mitigation and Proposed Monitoring and Reporting).

Description of Marine Mammals in the Area of Specified Activities

Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history, of the potentially affected species.
Additional information regarding population trends and threats may be
found in NMFS's Stock Assessment Reports (SARs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS's
website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 1 lists all species or stocks for which take is expected and
proposed to be authorized for this action, 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. For taxonomy, we follow Committee on
Taxonomy (2020). 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. Pacific Marine Mammal SARs (e.g., Carretta et al. 2020).
All values presented in Table 1 are the most recent available at the
time of publication and are available in the 2019 SARs (Carretta et al.
2020) and draft 2020 SARs (available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports</a>).

Table 1--Species That Spatially Co-Occur With the Activity to the Degree That Take Is Reasonably Likely To Occur
--------------------------------------------------------------------------------------------------------------------------------------------------------
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\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
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).
Northern fur seal............... Callorhinus ursinus.... California Breeding.... -, D, N 14,050 (N/A, 7,524, 451 1.8
2013).
Steller sea lion................ Eumetopias jubatus..... Eastern U.S............ -, -, N 43,201 a (see SAR, 2,592 113
43,201, 2017).
Family Phocidae (earless seals)

[[Page 50309]]

Pacific harbor seal............. Phoca vitulina California............. -, -, N 30,968 (N/A, 27,348, 1,641 43
richardii. 2012).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports</a>, CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, ship strike). Annual Mortality/Serious Injury (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.

As indicated above, all four species (with four managed stocks) in
Table 1 temporally and spatially co-occur with the activity to the
degree that take is reasonably likely to occur, and we have proposed
authorizing it. All species that could potentially occur in the
proposed survey areas are included in Table 1.

California Sea Lion

California sea lions occur from Vancouver Island, British Columbia,
to the southern tip of Baja California. Sea lions breed on the offshore
islands of southern and central California from May through July (Heath
and Perrin, 2008). During the non-breeding season, adult and subadult
males and juveniles migrate northward along the coast to central and
northern California, Oregon, Washington, and Vancouver Island
(Jefferson et al., 1993). They return south the following spring (Heath
and Perrin 2008, Lowry and Forney 2005). Females and some juveniles
tend to remain closer to rookeries (Antonelis et al., 1990; Melin et
al., 2008). Adult females generally remain south of Monterey Bay,
California throughout the year, feeding in coastal waters in the summer
and offshore waters in the winter, alternating between foraging and
nursing their pups on shore until the next pupping/breeding season
(Melin and DeLong, 2000; Melin et al., 2008). In warm water years (El
Ni[ntilde]o), some females range as far north as Washington and Oregon,
presumably following prey. The current maximum population growth rate
for California sea lions is 12 percent (Carretta et al., 2019).
Crescent Coastal Research (CCR) conducted a 3-year survey of the
wildlife species on NWSR for the Society. They reported that counts of
California sea lions on NWSR varied greatly (from 6 to 541) during the
observation period from April 1997 through July 2000. CCR reported that
counts for California sea lions during the spring (April-May), summer
(June-August), and fall (September-October), averaged 60, 154, and 235,
respectively (CCR 2001). NMFS Southwest Fisheries Science Center
(SWFSC) conducted 14 annual marine mammal surveys over 19 years (1998
to 2017) at St. George Reef. California sea lions were last documented
at NWSR in July of 2003 (11) (unpublished data, Beth Jaime, NMFS SWFSC,
pers. comm., 2020).

Northern Fur Seal

Northern fur seals occur from southern California north to the
Bering Sea and west to the Sea of Okhotsk and Honshu Island of Japan.
NMFS recognizes two separate stocks of northern fur seals within U.S.
waters: An Eastern Pacific stock distributed among sites in Alaska,
British Columbia, and islets along the west coast of U.S. waters (i.e.,
St. Paul, St. George, and Bogoslof); and a California stock (including
San Miguel Island and the Farallon Islands) (Muto et al., 2018).
Northern fur seals breed in Alaska and migrate along the west coast
during fall and winter. Due to their pelagic habitat, they are rarely
seen from shore in the continental United States, but individuals
occasionally come ashore on islands well offshore (i.e., Farallon
Islands and Channel Islands in California). During the breeding season,
approximately 45 percent of the worldwide population inhabits the
Pribilof Islands in the Southern Bering Sea, with the remaining animals
spread throughout the North Pacific Ocean (Caretta et al., 2015).
Northern fur seals have not been observed during the NMFS SWFSC's
marine mammal surveys of St. George Reef from 1998 to 2017 (Beth Jaime,
NMFS, pers. comm., 2020). However, CCR observed one male northern fur
seal on Northwest Seal Rock in October, 1998 (CCR 2001). It is possible
that a few animals may use the island more often than indicated by the
surveys, if they were mistaken for other otariid species (i.e., eared
seals or fur seals and sea lions) (M. DeAngelis, NMFS, pers. comm.,
2007).

Steller Sea Lions

Steller sea lions range extends from the North Pacific Rim from
northern Japan to California with areas of abundance in the Gulf of
Alaska and Aleutian Islands (Muto et al., 2019). Steller sea lions
consist of two distinct stocks: The western and eastern stocks divided
at 144[deg] West longitude (Cape Suckling, Alaska). The western stock
of Steller sea lions inhabit central and western Gulf of Alaska,
Aleutian Islands, as well as coastal waters and breed in Asia (e.g.,
Japan and Russia). The eastern stock includes sea lions living in
southeast Alaska, British Columbia, California, Oregon, and Washington
and is the only one in the project area. The stock was delisted under
the ESA in 2013.
The species is not known to migrate, but individuals, especially
juveniles and adult males, disperse widely outside of the breeding
season (late May through early August), thus potentially intermixing
eastern and western stocks (Muto et al., 2018). Steller sea lions give
birth in May through July and breeding commences a couple of weeks
after birth. Pups are weaned during the winter and spring of the
following year.
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). Overall, counts of pups in California, Oregon, British Columbia,
and Southeast Alaska, as well as counts of non-pups in the same regions
plus Washington has increased steadily since the 1980s. Stock increase
has been attributed to escalation of pup counts in all regions (NMFS
2013).
Steller sea lion numbers at NWSR ranged from 20 to 355 animals
between 1997 and 2000 (CCR 2001). Counts of

[[Page 50310]]

Steller sea lions during the spring (April-May), summer (June-August),
and fall (September-October), averaged 68, 110, and 56, respectively
(CCR 2001). A multi-year survey at NWSR between 2000 and 2004 showed
Steller sea lion numbers ranging from 175 to 354 in July (M. Lowry,
NMFS/SWFSC, unpubl. data). The SWFSC surveys document a consistent
presence of Steller sea lions at NWSR in 11 out of 14 of yearly surveys
between 1998 and 2017 with an average of 240 individuals (Beth Jaime,
NMFS, pers. comm., 2020). The largest presence of Steller sea lions at
St. George Reef is found on Southwest Seal Rock, approximately 6 km
(3.7 miles) from NWSR, with an average of 915 individuals observed
among the SWFSC surveys (unpublished data, Beth Jaime, NMFS/SWFSC,
pers. comm., 2020). Southwest Seal Rock is a rookery that has contained
up to 450 pups (Wright et al. 2017). Adults with pups are known to
relocate from there to NWSR in the fall. (CCR 2001). Winter use of NWSR
by Steller sea lions is thought to be minimal, due to inundation of the
natural portion of the island by large swells.

Pacific Harbor Seal

Harbor seals are widely distributed in the North Atlantic and North
Pacific. Phoca vitulina richardii inhabits coastal and estuarine areas
from Mexico to Alaska (Carretta et al., 2020) and is the only stock
present in the action area.
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. Females nurse their
pups for an average of 24 days and pups 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. The
nearest harbor seal rookery relative to the proposed project site is at
Castle Rock National Wildlife Refuge, located approximately located 965
m (0.6 mi) south of Point St. George, and 2.4 km (1.5 mi) north of the
Crescent City Harbor in Del Norte County, California (US Fish and
Wildlife Service (USFWS) 2007).
CCR noted that harbor seal use of NWSR was minimal, with only one
sighting of a group of six animals, during 20 observation surveys from
1997 through 2000 (CCR 2001). They hypothesized that harbor seals may
avoid the islet because of its distance from shore, relatively steep
topography, and full exposure to rough and frequently turbulent sea
swells. The SWFSC surveys did not record harbor seals at NWSR
(unpublished data, Beth Jaime, NMFS/SWFSC, pers. comm., 2020).

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.
Acoustic and visual stimuli generated by: (1) Helicopter landings/
takeoffs; (2) restoration activities (e.g., painting, plastering,
welding, and glazing); (3) maintenance activities (e.g., bulb
replacement and automation of the light system); and (4) human presence
may have the potential to cause behavioral disturbance.

Noise

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

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

SPL is an instantaneous measurement expressed as the peak, the
peak-peak, or the root mean square (rms). Root mean square is the
square root of the arithmetic average of the squared instantaneous
pressure values. All references to SPL in this document refer to the
rms unless otherwise noted. SPL does not take into account the duration
of a sound.
Noise testing on the helicopter that has been used by the Society,
a Robinson R66, as required for Federal Aviation Administration (FAA)
approval, required an overflight at 150 m (492 ft) above ground level,
109 knots (202 km/hr) and a maximum gross weight of 1,225 kg (2,700
lbs). The noise level measured on the ground at this distance and speed
was 84.5 dB re: 20 [micro]Pa (A-weighted). FAA testing also measured
the sound levels on the ground for a typical helicopter takeoff and
approach as 87.8 dB re: 20 [micro]Pa (A-weighted) (Robinson 2017).
Based on this information, we expect that the received sound levels at
the landing area on the Station's caisson would be between 84.5 and
87.8 dB re: 20 [micro]Pa (A-weighted). These sound levels are below the
NMFS behavioral threshold for airborne pinniped disturbance (90 dB for
harbor seals and 100dB for all other pinnipeds) (NMFS 2016).
There is a dearth of information on acoustic effects of helicopter
overflights on pinniped hearing and communication (Richardson, et al.,
1995) and to NMFS' knowledge, there has been no specific documentation
of temporary threshold shift (TTS), let alone permanent threshold shift
(PTS), in free-ranging pinnipeds exposed to helicopter operations
during realistic field conditions (Baker et al., 2012; Scheidat et al.,
2011).
The primary factor that may influence abrupt movements of animals
is engine noise, specifically changes in engine noise. The physical
presence of aircraft could also lead to non-auditory effects on marine
mammals involving visual or other cues. Airborne sound from a low-
flying helicopter or airplane may be heard by marine mammals while at
the surface or underwater. Responses by mammals could include hasty
dives or turns, change in course, or flushing and stampeding from a
haulout site. There are few well documented studies of the impacts of
aircraft overflight over pinniped haulout sites or rookeries, and many
of those that exist, are specific to military activities (Efroymson et
al., 2001). In 2008, NMFS issued an IHA to the USFWS for the take of
small numbers of Steller sea lions and Pacific harbor seals, incidental
to rodent eradication activities on an islet offshore of Rat Island, AK
conducted by helicopter. The 15-minute aerial treatment consisted of
the helicopter slowly approaching the islet at an elevation of over
1,000 ft (304.8 m); gradually decreasing altitude in slow circles; and
applying the rodenticide in a single pass and returning to Rat Island.

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The gradual and deliberate approach to the islet resulted in the sea
lions present initially becoming aware of the helicopter and calmly
moving into the water. Further, the USFWS reported that all responses
fell well within the range of Level B harassment (i.e., limited, short-
term displacement resulting from aircraft noise due to helicopter
overflights).
Several factors complicate the analysis of long- and short-term
effects for aircraft overflights. Information on behavioral effects of
overflights by military aircraft (or component stressors) on most
wildlife species is sparse. Moreover, models that relate behavioral
changes to abundance or reproduction, and those that relate behavioral
or hearing effects thresholds from one population to another are
generally not available. In addition, the aggregation of sound
frequencies, durations, and the view of the aircraft into a single
exposure metric is not always the best predictor of effects and it may
also be difficult to calculate. Overall, there has been no indication
that single or occasional aircraft flying above pinnipeds in water
cause long term displacement of these animals (Richardson et al.,
1995). The Lowest Observed Adverse Effects Level (LOAEL) for aircraft
elevation disturbance are rather variable for pinnipeds on land,
ranging from just over 150 m (492 ft) to about 2,000 m (6,562 ft)
(Efroymson et al., 2001). Bowles and Stewart (1980) estimated an LOAEL
of 305 m (1,000 ft) for helicopters (low and landing) affecting
California sea lions and harbor seals observed on San Miguel Island,
CA; animals responded to some degree by moving within the haulout and
entering into the water, stampeding into the water, or clearing the
haul out completely. Both species always responded with the raising of
their heads. California sea lions appeared to react more to the visual
cue of the helicopter than the noise.
It is possible that the initial helicopter approach to NWSR would
cause a subset of the marine mammals hauled out to react. CCR found a
range of from 0 to 40 percent of all pinnipeds present on the island
were temporarily displaced (flushed) due to initial helicopter landings
in 1998. Their data suggested that the majority of these animals
returned to the island once helicopter activities ceased, over a period
of minutes to 2 hours (CCR, 2001). Far fewer animals flushed into the
water on subsequent takeoffs and landings, suggesting rapid habituation
to helicopter landing and departure (CCR, 2001; Guy Towers, Society,
pers. comm.). CCR's data also showed that the number of pinnipeds that
flush is low when takeoffs and landings occur less than 30 minutes
apart, which is the case for all of the flights by the Society.
Observations from monitoring to date for this work confirms the above
pattern of partial flushing at initial landing and increasing
habituation thereafter.
Any noise associated with restoration and maintenance activities is
likely to be from light construction (e.g., sanding, hammering, or use
of hand drills). The Society will confine all restoration activities to
inside the existing structure, which would occur mostly on the upper
levels of the Station. Pinnipeds hauled out on NWSR do not have access
to the upper levels of the Station and sound levels are not likely to
exceed the thresholds.

Human Presence

The appearance of Society personnel may have the potential to cause
Level B harassment of marine mammals hauled out on NWSR. Disturbance
includes a variety of effects, from subtle to conspicuous changes in
behavior, movement, and displacement. Disturbance may result in
reactions ranging from an animal simply becoming alert to the presence
of the Society's restoration personnel (e.g., turning the head,
assuming a more upright posture) to flushing from the haulout site into
the water. NMFS does not consider the lesser reactions to constitute
behavioral harassment, or Level B harassment takes, but rather assumes
that pinnipeds that move greater than two body lengths or longer, or if
already moving, a change of direction of greater than 90 degrees in
response to the disturbance, or pinnipeds that flush into the water,
are behaviorally harassed, and thus considered incidentally taken by
Level B harassment. NMFS uses a 3-point scale (Table 2) to determine
which disturbance reactions constitute take under the MMPA. Levels two
and three (movement and flush) are considered take, whereas level one
(alert) is not. Animals that respond to the presence of the Society's
personnel by becoming alert, but do not move or change the nature of
locomotion as described, are not considered to have been subject to
behavioral harassment.

Table 2--Disturbance Scale of Pinniped Responses to In-Air Sources To
Determine Take
------------------------------------------------------------------------
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 Levels 2 and 3 are considered take, whereas Level 1 is not.

Reactions to human presence, if any, depend on species, state of
maturity, experience, current activity, reproductive state, time of
day, and many other factors (Richardson et al., 1995; Southall et al.,
2007; Weilgart 2007). If a marine mammal does react briefly to human
presence by changing its behavior or moving a small distance, the
impacts of the change are unlikely to be significant to the individual,
let alone the stock or population. However, if visual stimuli from
human presence displace marine mammals from an important feeding or
breeding area for a prolonged period, impacts on individuals and
populations could be significant (e.g., Lusseau and Bejder 2007;
Weilgart, 2007). Nevertheless, this is not likely to occur during the
proposed activities since rapid habituation or movement to nearby
haulouts is expected to occur after a potential pinniped flush.
Disturbances resulting from human activity can impact short- and
long-term pinniped haulout behavior (Renouf et al., 1981; Schneider and
Payne, 1983; Terhune and Almon, 1983; Allen et al., 1984; Stewart,
1984; Suryan and

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Harvey, 1999; and Kucey and Trites, 2006). Numerous studies have shown
that human activity can flush harbor seals off haulout sites (Allen et
al., 1984; Calambokidis et al., 1991; and Suryan and Harvey 1999) or
lead Hawaiian monk seals (Neomonachus schauinslandi) to avoid beaches
(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 (Richter et al., 2003), disruption of normal
social behaviors (Lusseau 2003; 2006), and the shift of behavioral
activities which may increase energetic costs (Constantine et al.,
2003; 2004). 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 has only a temporary effect
on the haul out behavior of harbor seals.
In 2004, Acevedo-Gutierrez and Johnson (2007) evaluated the
efficacy of buffer zones for watercraft around harbor seal haulout
sites on Yellow Island, Washington. The authors estimated the minimum
distance between the vessels and the haulout sites; categorized the
vessel types; and evaluated seal responses to the disturbances. During
the course of the 7-weekend study, the authors recorded 14 human-
related disturbances which were associated with stopped powerboats and
kayaks. During these events, hauled out seals became noticeably active
and moved into the water. The flushing occurred when stopped kayaks and
powerboats were at distances as far as 453 and 1,217 ft (138 and 371
m), 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 haulout site in less than or equal to 60 minutes. Seal numbers
did not return to pre-disturbance levels within 180 minutes of the
disturbance less than one quarter of the time observed. The study
concluded that the return of seal numbers to pre-disturbance levels and
the relatively regular seasonal cycle in abundance throughout the area
counter the idea that disturbances from powerboats may result in site
abandonment (Johnson and Acevedo-Gutierrez, 2007).

Stampede

There are other ways in which disturbance, as described previously,
could result in more than Level B harassment of marine mammals. They
are most likely to be consequences of stampeding, a potentially
dangerous occurrence in which large numbers of animals succumb to mass
panic and rush away from a stimulus. These situations are particularly
injurious when: (1) Animals fall when entering the water at high-relief
locations; (2) there is extended separation of mothers and pups; and
(3) crushing of pups by large males occurs during a stampede. However,
NMFS does not expect any of these scenarios to occur at NWSR as the
proposed action occurs outside of the pupping/breeding season, no
mother/pup pairs are expected to be at the Station, there are no cliffs
on NWSR, and previous monitoring has not recorded stampeding events
during prior authorizations. The haulout sites at NWSR consist of
ridges with unimpeded and non-obstructive access to the water. If
disturbed, the small number of hauled out adult animals may move toward
the water without risk of encountering barriers or hazards that would
otherwise prevent them from leaving the area or increase injury
potential. Moreover, the proposed area would not be crowded with large
numbers of Steller sea lions, further eliminating the possibility of
potentially injurious mass movements of animals attempting to vacate
the haulout. Thus, in this case, NMFS considers the risk of injury,
serious injury, or death to hauled out animals as extremely low.

Stress Responses

An animal's perception of a threat may be sufficient to trigger
stress responses consisting of some combination of behavioral
responses, autonomic nervous system responses, neuroendocrine
responses, or immune responses (e.g., Seyle, 1950; Moberg, 2000). In
many cases, an animal's first and sometimes most economical (in terms
of energetic costs) response is behavioral avoidance of the potential
stressor. Autonomic nervous system responses to stress typically
involve changes in heart rate, blood pressure, and gastrointestinal
activity. These responses have a relatively short duration and may or
may not have a significant long-term effect on an animal's fitness.
Neuroendocrine stress responses often involve the hypothalamus-
pituitary-adrenal system. Virtually all neuroendocrine functions that
are affected by stress--including immune competence, reproduction,
metabolism, and behavior--are regulated by pituitary hormones. Stress-
induced changes in the secretion of pituitary hormones have been
implicated in failed reproduction, altered metabolism, reduced immune
competence, and behavioral disturbance (e.g., Moberg, 1987; Blecha,
2000). Increases in the circulation of glucocorticoids are also equated
with stress (Romano et al., 2004).
The primary distinction between stress (which is adaptive and does
not normally place an animal at risk) and ``distress'' is the cost of
the response. During a stress response, an animal uses glycogen stores
that can be quickly replenished once the stress is alleviated. In such
circumstances, the cost of the stress response would not pose serious
fitness consequences. However, when an animal does not have sufficient
energy reserves to satisfy the energetic costs of a stress response,
energy resources must be diverted from other functions. This state of
distress will last until the animal replenishes its energetic reserves
sufficient to restore normal function.
Relationships between these physiological mechanisms, animal
behavior, and the costs of stress responses are well-studied through
controlled experiments and for both laboratory and free-ranging animals
(e.g., Holberton et al., 1996; Hood et al., 1998; Jessop et al., 2003;
Krausman et al., 2004; Lankford et al., 2005). Stress responses due to
exposure to anthropogenic sounds or other stressors and their effects
on marine mammals have also been reviewed (Fair and Becker, 2000;
Romano et al., 2002b)

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and, more rarely, studied in wild populations (e.g., Romano et al.,
2002a). For example, Rolland et al. (2012) found that noise reduction
from reduced ship traffic in the Bay of Fundy was associated with
decreased stress in North Atlantic right whales. These and other
studies lead to a reasonable expectation that some marine mammals will
experience physiological stress responses upon exposure to acoustic
stressors and that it is possible that some of these would be
classified as ``distress.'' In addition, any animal experiencing TTS
would likely also experience stress responses (NRC, 2003), however
distress is an unlikely result of this project based on observations of
marine mammals during previous projects in the area.

Auditory Masking

Sound can disrupt behavior through masking, or interfering with, an
animal's ability to detect, recognize, or discriminate between acoustic
signals of interest (e.g., those used for intraspecific communication
and social interactions, prey detection, predator avoidance,
navigation) (Richardson et al., 1995; Erbe et al., 2016). Masking
occurs when the receipt of a sound is interfered with by another
coincident sound at similar frequencies and at similar or higher
intensity, and may occur whether the sound is natural (e.g., snapping
shrimp, wind, waves, precipitation) or anthropogenic (e.g., shipping,
aircraft, sonar) in origin. The ability of a noise source to mask
biologically important sounds depends on the characteristics of both
the noise source and the signal of interest (e.g., signal-to-noise
ratio, temporal variability, direction), in relation to each other and
to an animal's hearing abilities (e.g., sensitivity, frequency range,
critical ratios, frequency discrimination, directional discrimination,
age or TTS hearing loss), and existing ambient noise and propagation
conditions.
Under certain circumstances, marine mammals experiencing
significant masking could also be impaired from maximizing their
performance fitness in survival and reproduction. Therefore, when the
coincident (masking) sound is man-made, it may be considered harassment
when disrupting or altering critical behaviors. It is important to
distinguish TTS and PTS, which persist after the sound exposure, from
masking, which occurs during the sound exposure. Because masking
(without resulting in TS) is not associated with abnormal physiological
function, it is not considered a physiological effect, but rather a
potential behavioral effect.
The frequency range of the potentially masking sound is important
in determining any potential behavioral impacts. For example, low-
frequency signals may have less effect on high-frequency echolocation
sounds produced by odontocetes but are more likely to affect detection
of mysticete communication calls and other potentially important
natural sounds such as those produced by surf and some prey species.
The masking of communication signals by anthropogenic noise may be
considered as a reduction in the communication space of animals (e.g.,
Clark et al., 2009) and may result in energetic or other costs as
animals change their vocalization behavior (e.g., Miller et al., 2000;
Foote et al., 2004; Parks et al., 2007; Di Iorio and Clark, 2009; Holt
et al., 2009). Masking can be reduced in situations where the signal
and noise come from different directions (Richardson et al., 1995),
through amplitude modulation of the signal, or through other
compensatory behaviors (Houser and Moore, 2014). Masking can be tested
directly in captive species (e.g., Erbe, 2008), but in wild populations
it must be either modeled or inferred from evidence of masking
compensation. There are few studies addressing real-world masking
sounds likely to be experienced by marine mammals in the wild (e.g.,
Branstetter et al., 2013).
Masking affects both senders and receivers of acoustic signals and
can potentially have long-term chronic effects on marine mammals at the
population level as well as at the individual level. All anthropogenic
sound sources, but especially chronic and lower-frequency signals
(e.g., from vessel traffic), contribute to elevated ambient sound
levels, thus intensifying masking.

Anticipated Effects on Marine Mammal Habitat

The only direct habitat modification associated with the proposed
activity is the restoration of the existing light station structures.
Indirect effects of the activities on nearby feeding or haulout habitat
are not expected. Increased noise levels are not likely to affect
acoustic habitat or adversely affect marine mammal prey in the vicinity
of the project area because source levels are low, transient, well away
from the water, and do not readily transmit into the water. The Society
would remove all waste, discarded materials and equipment from the
island after each visit. 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 NWSR.

Estimated Take

This section provides an estimate of the number of incidental takes
proposed for authorization through this rulemaking, which will inform
both NMFS' consideration of ``small numbers'' and the negligible impact
determination.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as: Any act of
pursuit, torment, or annoyance which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes would be by Level B harassment only, in the form
of disruption of behavioral patterns for individual marine mammals
resulting from exposure to helicopter operations and lighthouse
maintenance activities. Based on the nature of the activity, Level A
harassment is neither anticipated nor proposed to be authorized. As
discussed earlier, behavioral (Level B) harassment is limited to
movement and flushing, defined by the disturbance scale of pinniped
responses to in-air sources to determine take (Table 2). Furthermore,
no mortality is anticipated or proposed to be authorized for this
activity. Below we describe how the take is estimated.

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.
The Society's monitoring efforts reported zero marine mammals
present on NWSR, in 2010. Furthermore, operations were not conducted in
the years 2013 through 2016; thus, monitoring was not conducted. No
visits occurred in 2020. Visits have occurred in all other years since
2010.
Steller sea lions were first reported during restoration trips
conducted in April (9) and November (350, with a maximum of 155/day) of
2011 (St. George Reef Lighthouse Preservation Society (SGRLPS) 2011).
Zero observations of Steller sea lions were reported during the one
2012 restoration trip and three 2017 trips conducted

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(SGRLPS 2012, 2018). Four trips were conducted in 2018 (February,
March, April, and November); only the November session reported any
individuals (three) on site (SGRLPS 2018). One restoration trip was
conducted in November 2019 and had 22 Steller sea lions present (SGRLPS
2020). In the event of an emergency trip to the lighthouse for repairs
in summer, or if deed restrictions are changed, more Steller sea lions
may be present in June and July (up to 350-400 animals based on CCR
(2001)).
The maximum number of California sea lions present per day (160)
was observed during the November 2011 trip. The April and November 2011
trip maximums were 2 and 430 individuals, respectively (SGRLPS 2011).
Zero California sea lions were reported during the March 2012 trip
(SGRLPS 2012). In 2017, the Society reported 16 and zero California sea
lions during March and April trips, and 16 during a November trip for a
landing zone inspection (SGRLPS 2017). Observations for the 2018 season
totaled 40 individuals among its four trips (SGRLPS 2018). Eighteen
California sea lions were reported during the November 2019 trip with a
maximum of 10 per day (SGRLPS 2020). Should deed restrictions be
altered to allow access during summer months, numbers could be somewhat
higher based on the data in CCR (2001).
Northern fur seals have not been observed during any of the
Society's work from 2010 through 2019 (SGRLPS 2010; 2011; 2012; 2017;
2018; 2020).
The Society first reported 2 Pacific harbor seals on site during
the March 2012 restoration trip (SGRLPS 2012). Zero harbor seals were
reported during the 2017, 2018, or 2019 work seasons (SGRLPS 2017;
2018; 2020).

Take Calculation and Estimation

Here we describe how the information provided above is brought
together to produce a quantitative take estimate. The monitoring
observations described above serve as the underpinnings of the take
estimate calculation used to determine the actual number of marine
mammals that may be subject to take. Take estimates for each species
for which take would be authorized were based on the following
equation:

Take estimate per species = maximum number of observations/day during
prior monitoring * number of proposed operations days

Based on the Society's previous monitoring reports, the maximum
number of observations per day for each species is: Steller sea lions
155, California sea lions 160, and Pacific harbor seals 2. No Northern
fur seals have been seen in prior project monitoring but one was
observed during the survey work for this project by CCR (2001), so we
use one for these calculations.
As discussed above, The Society is proposing no more than 70 flight
days per year. This is an optimistic estimate that far exceeds prior
efforts, but given adequate funding there is the need for extensive
restoration work to the Station so the Society requested consideration
of the additional days of work in the take estimate. Therefore NMFS
estimates that approximately 10,850 Steller sea lions (calculated by
multiplying the maximum single-day count of Steller sea lions that
could be present (155) by 70 days of activities), 11,200 California sea
lions, 140 Pacific harbor seals, and 70 Northern fur seals could be
potentially taken by Level B behavioral harassment annually over the
course of this rulemaking (Table 3). NMFS bases these estimates of the
numbers of marine mammals that might be affected on consideration of
the number of marine mammals that could be on NWSR in a worst case
scenario based on prior monitoring. Should deed restrictions be altered
to allow access during summer months, numbers of California sea lions
and Steller's sea lions could be somewhat higher during a couple of
those months based on the data in CCR (2001). Given these increases are
limited in duration, only a fraction of the potential flight days could
occur in summer, and the conservative nature of the maximum daily
counts relative to the average observed animal counts from prior
monitoring discussed above, we believe the proposed take estimates are
adequately precautionary.

Table 3--Proposed Annual Level B Harassment Take Calculations and Percentage of Each Stock Affected
----------------------------------------------------------------------------------------------------------------
Days of
Species Maximum number proposed Proposed take Percent of
per day activity stock
----------------------------------------------------------------------------------------------------------------
California sea lion............................. 160 70 11,200 4.3
Steller sea lion................................ 155 70 10,580 25.1
Pacific harbor seal............................. 2 70 140 0.5
Northern fur seal............................... 1 70 70 0.5
----------------------------------------------------------------------------------------------------------------

Proposed Mitigation

In order to promulgate regulations and issue LOAs under Section
101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods
of taking pursuant to such activity, and other means of effecting the
least practicable impact on such 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 does not have a regulatory definition for ``least
practicable adverse impact.'' 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;

[[Page 50315]]

(2) The practicability of the measures for applicant
implementation, which may consider such things as cost and impact on
operations.
The mitigation strategies described below largely follow those
required and successfully implemented under previous incidental take
authorizations issued in association with this project.
The following mitigation measures are proposed:
<bullet> No more than six flight days (up to two work trips) per
month;
<bullet> Avoid direct physical interaction with marine mammals
during activity. If a marine mammal comes within 10 m of such activity,
operations must cease until the animal leaves of its own accord;
<bullet> Conduct training between construction supervisors and
crews and tourists and the marine mammal monitoring team and relevant
Society staff prior to the start of all visits and when new personnel
join the work, so that responsibilities, communication procedures,
monitoring protocols, and operational procedures are clearly
understood. Visitors to the Station will be instructed to avoid
unnecessary noise and not expose themselves visually to pinnipeds
around the base of the lighthouse;
<bullet> Halt loud outside activity upon observation on NWSR of
either a species for which incidental take is not authorized or a
species for which incidental take has been authorized but the
authorized number of takes has been met;
<bullet> Keep the door to the lower platform closed and barricaded
to all tourists and other personnel. The door will only be opened when
necessary and at a time when no animals are present on the lower
platform;
<bullet> Ensure that helicopter approach patterns to the NWSR shall
be such that the timing and techniques are least disturbing to marine
mammals. To the extent possible, the helicopter should approach NWSR
when the tide is too high for marine mammals to haul out on NWSR. Avoid
rapid and direct approaches by the helicopter to the station by
approaching NWSR at a relatively high altitude (e.g., 800-1,000 ft;
244-305 m). Before the final approach, the helicopter shall circle
lower, and approach from an area where the density of pinnipeds is the
lowest. If for any safety reasons (e.g., wind conditions or visibility)
such helicopter approach and timing techniques cannot be achieved, the
Society must abort the restoration and maintenance session for the day;
<bullet> Employ a protected species observer (PSO) and establish
monitoring locations as described in the application and Section 5 of
any LOA. The Holder must monitor the project area to the maximum extent
possible based on the required number of PSOs, required monitoring
locations, and environmental conditions. For all helicopter flights at
least one PSO must be used; and
<bullet> Monitoring must take place for all take-offs and landings.
Based on our evaluation of the applicant's proposed measures, as
well as other measures considered by NMFS, 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 an IHA 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:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density).
<bullet> 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).
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors.
<bullet> How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks.
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat).
<bullet> Mitigation and monitoring effectiveness.

Visual Monitoring

<bullet> Monitoring must be conducted by qualified, NMFS-approved
PSOs, in accordance with the following: PSOs must be independent and
have no other assigned tasks during monitoring periods. At least one
PSO must have prior experience performing the duties of a PSO. Other
PSOs may substitute other relevant experience, education (degree in
biological science or related field), or training. PSOs resumes must be
approved by NMFS prior to beginning any activity subject to these
regulations.
<bullet> PSOs must record all observations of marine mammals as
described in Section 5 of any LOA, regardless of distance from the
activity. PSOs shall document any behavioral reactions in concert with
distance from the activity.
PSOs must have the following additional qualifications:
<bullet> Ability to conduct field observations and collect data
according to assigned protocols;
<bullet> Experience or training in the field identification of
marine mammals, including the identification of behaviors;
<bullet> Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
<bullet> Writing skills sufficient to prepare a report of
observations including but not limited to the number and species of
marine mammals observed; dates and times when in-water construction
activities were conducted; dates, times, and reason for implementation
of mitigation (or why mitigation was not implemented when required);
and marine mammal behavior;
<bullet> Ability to communicate orally, by radio or in person, with
project personnel to provide real-time information on marine mammals
observed in the area as necessary;
<bullet> The Society must establish the following monitoring
locations. For the first flight of the day a PSO with high definition
camera will be on the first flight to the station. During all other

[[Page 50316]]

takeoffs and landings a PSO will be stationed on the platform of the
lantern room gallery or on the last departing helicopter;
<bullet> Aerial photo coverage of the island will be completed by
an observer using a high definition camera. Photographs of all marine
mammals hauled out on the island will be taken at an altitude greater
than 300 meters. Photographs of marine mammals present at the last
flight of the day will be taken from the helicopter or from the lantern
room gallery platform just before the last flight; and
<bullet> The Society and/or its designees must forward the
photographs to a biologist capable of discerning marine mammal species
if one is not present on the trip. The Society must provide the data to
NMFS in the form of a report with a data table, any other significant
observations related to marine mammals, and a report of restoration
activities. The Society must make available the original photographs to
NMFS or to other marine mammal experts for inspection and further
analysis.

Reporting

A draft marine mammal monitoring report will be submitted to NMFS
within 90 days after the completion of each activity period, or 60 days
prior to a requested date of issuance of any future LOAs for projects
at the same location, whichever comes first. For the first year of the
activities, at least, the reports will be submitted quarterly;
following submission of the first three quarterly reports, NMFS will
evaluate whether it is appropriate to modify subsequent annual LOAs
require annual reports, based on whether the information provided in
the first three quarterly reports adequately complies with the
requirement. The report will include an overall description of work
completed, a narrative regarding marine mammal sightings, and
associated PSO data sheets. Specifically, the report must include:
<bullet> Dates and times (begin and end) of all marine mammal
monitoring.
<bullet> Activities occurring during each daily observation period.
<bullet> PSO locations during marine mammal monitoring.
<bullet> Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), including Beaufort sea state and any other relevant
weather conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance.
<bullet> Upon each flight, the following information will be
reported: Name of PSO who sighted the animal(s) and PSO location and
activity at time of sighting; time of sighting; identification of the
animal(s) (e.g., genus/species, lowest possible taxonomic level, or
unidentified), PSO confidence in identification, and the composition of
the group if there is a mix of species; distance and bearing of the
nearest marine mammal observed relative to the activity for each
flight; estimated number of animals (min/max/best estimate); estimated
number of animals by cohort (adults, juveniles, neonates, group
composition, etc.); animal's closest point of approach to activity; and
description of any marine mammal behavioral observations (e.g.,
observed behaviors such as feeding or traveling), including an
assessment of behavioral responses thought to have resulted from the
activity (e.g., no response or changes in behavioral state such as
ceasing feeding, changing direction, flushing) using pinniped
disturbance scale (Table 2).
<bullet> Number of marine mammals detected, by species.
<bullet> Detailed information about any implementation of any
mitigation triggered, a description of specific actions that ensued,
and resulting changes in behavior of the animal(s), if any.
If no comments are received from NMFS within 30 days, the draft
final report will constitute the final report. If comments are
received, a final report addressing NMFS comments must be submitted
within 30 days after receipt of comments.

Reporting Injured or Dead Marine Mammals

In the event that personnel involved in the activities discover an
injured or dead marine mammal, the LOA-holder must immediately cease
the specified activities and report the incident to the Office of
Protected Resources (OPR) (<a href="/cdn-cgi/l/email-protection#7c2c2e5235282c523113121508130e15121b2e190c130e080f3c12131d1d521b130a"><span class="__cf_email__" data-cfemail="b9e9eb97f0ede997f4d6d7d0cdd6cbd0d7deebdcc9d6cbcdcaf9d7d6d8d897ded6cf">[email&#160;protected]</span></a>), NMFS and
to West Coast Regional Stranding Coordinator as soon as feasible. If
the death or injury was clearly caused by the specified activity, the
Society 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 and regulations. The LOA-holder must not resume their
activities until notified by NMFS. The report must include the
following information:
<bullet> Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Condition of the animal(s) (including carcass condition if
the animal is dead);
<bullet> Observed behaviors of the animal(s), if alive;
<bullet> If available, photographs or video footage of the
animal(s); and
<bullet> General circumstances under which the animal was
discovered.

Negligible Impact Analysis and Determination

NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any 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).
Activities associated with the restoration, light maintenance and
tour projects, as described previously, have the potential to disturb
or displace marine mammals. Specifically, the specified activities may
result in take, in the form of Level B harassment (behavioral
disturbance) from in-air sounds and visual disturbance. Potential takes
could occur if individual marine mammals are present nearby when
activity is happening.

[[Page 50317]]

No serious injury or mortality would be expected even in the
absence of the proposed mitigation measures. For all species, no Level
A harassment is anticipated given the nature of the activities, i.e.,
much of the anticipated activity would involve noises below thresholds
and visual disturbance from tens of meters away, and measures designed
to minimize the possibility of injury. The potential for injury is
small for pinnipeds, and is expected to be essentially eliminated
through implementation of the planned mitigation measures.
Effects on individuals that are taken by Level B harassment, on the
basis of reports in the literature as well as monitoring from other
similar activities, will likely be limited to reactions such as alerts
or movements away from the lighthouse structure. Most likely,
individuals will simply move away from the sound source and be
temporarily displaced from the areas.
Reporting from prior years of these activities has similarly
reported no apparently consequential behavioral reactions or long-term
effects on marine mammal populations as noted above. Repeated exposures
of individuals to relatively low levels of sound and visual disturbance
outside of preferred habitat areas are unlikely to significantly
disrupt critical behaviors. Thus, even repeated Level B harassment of
some small subset of the overall stock is unlikely to result in any
significant realized decrease in viability for the affected
individuals, and thus would not result in any adverse impact to the
stock as a whole. Level B harassment will be reduced to the level of
least practicable adverse impact through use of mitigation measures
described herein and, if sound and visual disturbance produced by
project activities is sufficiently disturbing, animals are likely to
simply avoid the area while the activity is occurring.
In combination, we believe that these factors, as well as the
available body of evidence from other similar activities, demonstrate
that the potential effects of the specified activities will have only
minor, short-term effects on individuals. The specified activities are
not expected to impact rates of recruitment or survival and will
therefore not result in population-level impacts.
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:
<bullet> No mortality is anticipated or authorized.
<bullet> No important habitat areas have been identified within the
project area.
<bullet> For all species, NWSR is a very small and peripheral part
of their range.
<bullet> Monitoring reports from prior activities at the site have
documented little to no effect on individuals of the same species
impacted by the specified activities.
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. When the predicted number of individuals to
be taken is fewer than one third of the species or stock abundance, the
take is considered to be of small numbers. Additionally, other
qualitative factors may be considered in the analysis, such as the
temporal or spatial scale of the activities.
The amount of take NMFS proposes to authorize is below one third of
the estimated stock abundance of all species (in fact, take of
individuals is less than 10 percent of the abundance of all of the
affected stocks except Steller sea lions, see Table 3). This is likely
a conservative estimate because they assume all takes are of different
individual animals which is likely not the case, especially within
individual trips. Many individuals seen within a single multi-day trip
are likely to be the same across consecutive days, but PSOs would count
them as separate takes across days.
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
Society lighthouse repair and tour operation 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 prior year(s) 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 the Society 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. Additionally,
monitoring or reporting measures may be modified if appropriate and, in
this case, the rule specifies quarterly monitoring and reporting
requirements for the first year, which may subsequently be modified to
annual requirements, based on NMFS evaluation of the first three
reports.
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
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. To ensure

[[Page 50318]]

ESA compliance for the issuance of IHAs, NMFS consults internally
whenever we propose to authorize take for endangered or threatened
species, in this case with the West Coast Regional Protected Resources
Division Office.
No incidental take of ESA-listed species is proposed for
authorization or expected to result from this activity. Therefore, NMFS
has determined that formal consultation under section 7 of the ESA is
not required for this action.

Request for Information

NMFS requests interested persons to submit comments, information,
and suggestions concerning the Society's 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 notification 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.
The Society, a 501(c)(3) non-profit whose mission is to preserve the
St. George Reef lighthouse, is the sole entity that would be subject to
the requirements in these proposed regulations, and the Society 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. These
requirements have been approved by OMB under control number 0648-0151
and include applications for regulations, subsequent LOAs, and reports.

List of Subjects in 50 CFR Part 217

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

Dated: August 31, 2021.
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 F to part 217 to read as follows:
Subpart F--Taking Marine Mammals Incidental to Lighthouse Repair and
Tour Operations at Northwest Seal Rock, California
Sec.
217.50 Specified activity and specified geographical region.
217.51 Effective dates.
217.52 Permissible methods of taking.
217.53 Prohibitions.
217.54 Mitigation requirements.
217.55 Requirements for monitoring and reporting.
217.56 Letters of Authorization.
217.57 Renewals and modifications of Letters of Authorization.
217.58 [Reserved]
217.59 [Reserved]

Subpart F--Taking Marine Mammals Incidental to Lighthouse Repair
and Tour Operations at Northwest Seal Rock, California

Sec. 217.50 Specified activity and specified geographical region.

(a) Regulations in this subpart apply only to the St. George Reef
Lighthouse Preservation Society (Society) 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 occurs incidental to lighthouse repair and tour
operation activities.
(b) The taking of marine mammals by the Society may be authorized
in a Letter of Authorization (LOA) only if it occurs within Pacific
Ocean waters in the vicinity of Northwest Seal Rock near Crescent City,
California.

Sec. 217.51 Effective dates.

Regulations in this subpart are effective from [EFFECTIVE DATE OF
FINAL RULE] through [DATE 5 YEARS AFTER EFFECTIVE DATE OF FINAL RULE].

Sec. 217.52 Permissible methods of taking.

Under LOAs issued pursuant to Sec. Sec. 216.106 of this chapter
and 217.56, the Holder of the LOA (hereinafter ``Society'') may
incidentally, but not intentionally, take marine mammals within the
area described in Sec. 217.50(b) by Level B harassment associated with
lighthouse repair and tour operation activities, provided the activity
is in compliance with all terms, conditions, and requirements of the
regulations in this subpart and the appropriate LOA.

Sec. 217.53 Prohibitions.

Except for taking authorized by a LOA issued under Sec. Sec.
216.106 of this chapter and 217.56, it shall be unlawful for any person
to do any of the following in connection with the activities described
in Sec. 217.50 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 217.56;
(b) Take any marine mammal not specified in such LOAs;
(c) Take any marine mammal specified in such LOAs in any manner
other than as specified;
(d) Take a marine mammal specified in such LOAs 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 LOAs 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. 217.54 Mitigation requirements.

When conducting the activities identified in Sec. 217.50(a), the
mitigation measures contained in any LOA issued under Sec. Sec.
216.106 of this chapter and 217.56 must be implemented. These
mitigation measures shall include but are not limited to:
(a) General conditions. (1) A copy of any issued LOA must be in the
possession of the Society, supervisory personnel, pilot, protected
species observers (PSOs), and any other relevant designees of the
Holder operating under the authority of this LOA at all times that
activities subject to this LOA are being conducted.
(2) The Society shall conduct training between supervisors and
crews and the marine mammal monitoring team and relevant Society staff
prior to the start of all trips and when new personnel join the work,
so that responsibilities, communication procedures, monitoring
protocols, and operational procedures are clearly understood. Visitors
to the Station will be instructed to avoid

[[Page 50319]]

unnecessary noise and not expose themselves visually to pinnipeds
around the base of the lighthouse.
(3) Avoid direct physical interaction with marine mammals during
activity. If a marine mammal comes within 10 m of such activity,
operations must cease until the animal leaves of its own accord.
(4) Loud outside activity must be halted upon observation on
Northwest Seal Rock (NWSR) of either a species for which incidental
take is not authorized or a species for which incidental take has been
authorized but the authorized number of takes has been met.
(5) No more than two restoration trips, or 6 days of flight
operations, are permitted per month.
(b) Protocols. (1) The door to the lower platform will remain
closed and barricaded to all tourists and other personnel. The door
will only be opened when necessary and at a time when no animals are
present on the lower platform.
(2) The pilot will ensure that helicopter approach patterns to the
NWSR shall be such that the timing and techniques are least disturbing
to marine mammals. To the extent possible, the helicopter should
approach NWSR when the tide is too high for marine mammals to haul out
on NWSR. Avoid rapid and direct approaches by the helicopter to the
station by approaching NWSR at a relatively high altitude (e.g., 800-
1,000 ft; 244-305 m). Before the final approach, the helicopter shall
circle lower, and approach from an area where the density of pinnipeds
is the lowest. If for any safety reasons (e.g., wind conditions or
visibility) such helicopter approach and timing techniques cannot be
achieved, the Society must abort the restoration and maintenance
session for the day.
(3) Monitoring shall be conducted by a trained PSO, who shall have
no other assigned tasks during monitoring periods. Trained PSOs shall
be placed at the best vantage point(s) practicable to monitor for
marine mammals and implement mitigation procedures when applicable. The
Society shall adhere to the following additional PSO qualifications:
(i) Independent PSOs are required;
(ii) At least one PSO must have prior experience working as an
observer;
(iii) Other observers may substitute education (degree in
biological science or related field) or training for experience; and
(iv) The Society shall submit PSO resumes for approval by NMFS
prior to beginning any activity subject to these regulations.
(4) The PSO must monitor the project area to the maximum extent
possible based on the required monitoring locations and environmental
conditions. They must record all observations of marine mammals as
described in Section 5 of any LOA, regardless of distance from the
activity. Monitoring must take place for all take-offs and landings.

Sec. 217.55 Requirements for monitoring and reporting.

(a) PSOs shall document any behavioral reactions in concert with
distance from any project activity.
(b) Reporting--(1) Reporting frequency. (i) The Society shall
submit a quarterly summary report to NMFS not later than 90 days
following the end of each work quarter; after the first three quarterly
submissions, NMFS will evaluate whether it is appropriate to modify to
annual reports, and modify future LOAs as appropriate to indicate
annual reporting requirements if so. The Society shall provide a final
report within 30 days following resolution of comments on each draft
report.
(ii) These reports shall contain, at minimum, the following:
(A) Dates and times (begin and end) of all marine mammal
monitoring;
(B) Activities occurring during each daily observation period;
(C) PSO locations during marine mammal monitoring;
(D) Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), including Beaufort sea state and any other relevant
weather conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance;
(E) Upon each flight, the following information: Name of PSO who
sighted the animal(s) and PSO location and activity at time of
sighting; time of sighting; identification of the animal(s) (e.g.,
genus/species, lowest possible taxonomic level, or unidentified), PSO
confidence in identification, and the composition of the group if there
is a mix of species; distance and bearing of each marine mammal
observed relative to the activity for each flight; estimated number of
animals (min/max/best estimate); estimated number of animals by cohort
(adults, juveniles, neonates, group composition, etc.); animal's
closest point of approach and estimated time spent within the
harassment zone; and description of any marine mammal behavioral
observations (e.g., observed behaviors such as feeding or traveling),
including an assessment of behavioral responses thought to have
resulted from the activity (e.g., no response or changes in behavioral
state such as ceasing feeding, changing direction, flushing, or
breaching);
(F) Number of marine mammals detected, by species; and
(G) Detailed information about any implementation of any mitigation
triggered, a description of specific actions that ensued, and resulting
changes in behavior of the animal(s), if any.
(2) The Society shall submit a comprehensive summary report to NMFS
not later than 90 days following the conclusion of marine mammal
monitoring efforts described in this subpart.
(c) Reporting of injured or dead marine mammals. (1) In the event
that personnel involved in the construction activities discover an
injured or dead marine mammal, the LOA-holder must immediately cease
the specified activities and report the incident to the Office of
Protected Resources (OPR) (<a href="/cdn-cgi/l/email-protection#5000027e1904007e1d3f3e39243f22393e370235203f222423103e3f31317e373f26"><span class="__cf_email__" data-cfemail="7d2d2f5334292d533012131409120f14131a2f180d120f090e3d13121c1c531a120b">[email&#160;protected]</span></a>), NMFS and
to West Coast Regional Stranding Coordinator as soon as feasible. If
the death or injury was clearly caused by activities specified at Sec.
217.50, the Society 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 these regulations and LOAs. The LOA-holder
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.
(2) [Reserved]

Sec. 217.56 Letters of Authorization.

(a) To incidentally take marine mammals pursuant to these
regulations, the Society 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, the

[[Page 50320]]

Society 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, the Society must
apply for and obtain a modification of the LOA as described in Sec.
217.207.
(e) The LOA shall set forth:
(1) Permissible methods 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. 217.57 Renewals and modifications of Letters of Authorization.

(a) An LOA issued under Sec. Sec. 216.106 of this chapter and
217.206 for the activity identified in Sec. 217.200(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 determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under these regulations were
implemented.
(b) For 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 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
217.206 for the activity identified in Sec. 217.200(a) may be modified
by NMFS under the following circumstances:
(1) Adaptive management. NMFS may modify (including augment) the
existing mitigation, monitoring, or reporting measures (after
consulting with the Society 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 the Society's monitoring from the previous
year(s).
(B) Results from other marine mammal and/or sound or disturbance
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
will publish a notice of proposed LOA in the Federal Register and
solicit public comment.
(2) Emergencies. If NMFS 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 217.206, an LOA may be modified without prior
notice or opportunity for public comment. Notice would be published in
the Federal Register within 30 days of the action.

Sec. Sec. 217.58-217.59 [Reserved]

[FR Doc. 2021-19124 Filed 9-7-21; 8:45 am]
BILLING CODE 3510-22-P

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