Rule2022-08031
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Lighthouse Repair and Tour Operations at Northwest Seal Rock, California
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 15, 2022
Effective
May 15, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS Office of Protected Resources, upon request from the St. George Reef Lighthouse Preservation Society (Society), hereby issues regulations to govern the unintentional taking of marine mammals 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) over the course of five years (2022-2027). These regulations, which allow for the issuance of Letters of Authorization (LOA) for the incidental take of marine mammals during the described activities and specified timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking. We are also issuing a Letter of Authorization to cover the first year of these activities.
Full Text
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<title>Federal Register, Volume 87 Issue 73 (Friday, April 15, 2022)</title>
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[Federal Register Volume 87, Number 73 (Friday, April 15, 2022)]
[Rules and Regulations]
[Pages 22484-22495]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-08031]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 220407-0086]
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: Final rule; notification of issuance.
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SUMMARY: NMFS Office of Protected Resources, upon request from the St.
George Reef Lighthouse Preservation Society (Society), hereby issues
regulations to govern the unintentional taking of marine mammals
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) over
the course of five years (2022-2027). These regulations, which allow
for the issuance of Letters of Authorization (LOA) for the incidental
take of marine mammals during the described activities and specified
timeframes, prescribe the permissible methods of taking and other means
of effecting the least practicable adverse impact on marine mammal
species or stocks and their habitat, as well as requirements pertaining
to the monitoring and reporting of such taking. We are also issuing a
Letter of Authorization to cover the first year of these activities.
DATES: Effective from May 15, 2022 through May 14, 2027.
FOR FURTHER INFORMATION CONTACT: Amy Fowler, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the application
and supporting documents, as well as a list of the references cited in
this document, may be obtained online at: <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:
Purpose and Need for Regulatory Action
This final rule establishes 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.
[[Page 22485]]
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 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 rule containing 5-year
regulations, and for any subsequent Letters of Authorization (LOAs). As
directed by this legal authority, this rule contains mitigation,
monitoring, and reporting requirements.
Summary of Major Provisions Within the Regulations in This Final Rule
Following is a summary of the major provisions of the regulations
in this final 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 and
record 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
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).
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 Society's application in the Federal Register,
requesting comments and information related to the request for 30 days.
We received no comments. After publication of the notice of receipt,
the Society reevaluated their application and decided to seek changes
to their deed restriction, so requested that this action be paused.
Revised applications were submitted on September 2, 2020, December 9,
2020, and a final revised application was submitted on August 6, 2021,
which was deemed adequate and complete. On September 8, 2021 NMFS
issued a proposed rule in the Federal Register (86 FR 50304) soliciting
public comments for 30 days. All public comments were considered in
developing this final rule, and are discussed below in the Comments and
Responses section.
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 compelled NMFS to require 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.
Comments and Responses
We received comments from 5 private citizens on the proposed rule.
Comment: Three of the comments were from students who largely
summarized various aspects of the incidental take authorization process
and support issuance of the incidental take authorization. Ryan
Kowalski comments that ``the proposed rule is justified and properly
authorized.'' Chelsea Rasmussen agrees with this proposed rule and
notes the extensive citations and prior authorizations and suggests the
data shows ``a limited potential for the requested work to cause any
kind of long term disturbance of the present species of marine
mammal.'' Negative effects of not allowing the project to go forward
are also discussed. Benjamin Short believes the Society ``should be
able to carry out their maintenance tasks to the lighthouse'' since the
Society has ``done its due diligence to negate any adverse
[[Page 22486]]
impact their work will have on the pinnipeds present.'' He points to
``a clear and concise mitigation plan'' and ``very comprehensive
monitoring and reporting measures.''
Response: NMFS appreciates the commenters' thoughtful responses.
Comment: Jean Public commented that the seals were at the site
first and the authorization should not be issued.
Response: NMFS appreciates this comment. However, the MMPA does not
permit us to deny an incidental harassment authorization because a
species existed in a location before a proposed activity. As described
herein, the requirements for issuance of MMPA incidental take
regulations for this activity have been satisfied.
Comment: Tarin Schalow also disagrees ``with the decision to grant
a 5-year authorization to the Society.'' The commenter is concerned the
potential shift to year-round activity ``on a more consistent basis may
have more than a negligible impact on the pinnipeds.'' The adaptive
management provisions are acknowledged, but the commenter argues for
unspecified additional protections ``in case the pinniped stock of the
area does become impacted more than a negligibly.'' The commenter is
also concerned about the ``misunderstandings in past implementation''
of the Society's prior IHAs and argues we should not grant a five-year
authorization until the Society is able to demonstrate proper
implementation and adherence to requirements.
Response: We appreciate this comment but disagree that year-round
activity may have more than a negligible impact on the marine mammals.
We analyzed the effects of allowing year-round activity in the proposed
rule, and the commenter provides no new information to revise that
analysis. As the commenter notes, the proposed authorization includes
an adaptive management provision that would allow us to modify the
terms and conditions of the authorization should new information come
to light on the effect of the activity on marine mammals. In addition,
we note we regularly authorize year-round construction and other
activities in the region that also do not cause more than negligible
impacts on pinnipeds. We also note that, at this time, the Society has
been unable to modify the terms of their deed, so the current work
window restrictions of the deed will remain in place for the time
being.
We share the commenter's concerns about the ``misunderstandings in
past implementation'' of the Society prior IHAs. This is why we have
initially increased the frequency of reporting for the Society to
quarterly instead of our more typical yearly reporting requirement.
This is also why the initial LOA we are issuing is only valid for 1-
year, rather than for the entirety of the possible 5 years. We have
also been engaged in more extensive than normal planning with the
Society with regards to their monitoring and reporting plans and
preparations before issuing this final rule and initial LOA to ensure
that implementation and compliance will be successful. We will
reevaluate the Society's implementation and compliance in accordance
with the terms of this final rule and the one-year LOA before issuing
additional LOAs.
Changes From Proposed to Final Rule
The duration of effectiveness for the regulations in this final
rule is five years, as envisioned in the proposed rule, although this
final rule is effective from May 15, 2022, through May 14, 2027, rather
than from 2021-2026, as generally envisioned in the proposed rule.
Additionally, NMFS has removed a mitigation requirement from the
proposed rule that required the door to the lower platform of the
lighthouse station to remain closed at all times. This requirement was
not practicable for the Society, as the open door is the only source of
light in the lower room of the station, and the daylight is necessary
for work crews to conduct their restoration activities. NMFS has also
specified the amount of time that the Society must monitor for marine
mammals, and the location from which the Society must monitor, before
and after each helicopter takeoff and landing. Finally, NMFS has
clarified the required assessment of behavioral responses that the
Society must include in their monitoring report(s) to eliminate
irrelevant behaviors.
Description of Specified 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 issued here (and any issued LOAs) 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 have considered 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 regulations in this final rule are valid for a
period of 5 years (May 15, 2022 through May 14, 2027). 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, a small, rocky islet
(41[deg]50'24'' N, 124[deg]22'06'' W), approximately 9 kilometers (km)
(6.0 miles (mi)) offshore of Crescent City, California (41[deg]46'48''
[[Page 22487]]
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
A detailed description of the Society's planned activities was
provided in our proposed rule (86 FR 50304; September 8, 2021) and is
not repeated here. No changes have been made to the specified
activities described therein.
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
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 2020 SARs (Carretta et al.
2020) (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
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ESA/ MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\1\ abundance survey) \2\ SI \3\
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Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and
sea lions):
California sea lion............. Zalophus californianus. U.S.................... -, -, N 257,606 (N/A, 233,515, 14,011 >320
2014).
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):
Pacific harbor seal............. Phoca vitulina California............. -, -, N 30,968 (N/A, 27,348, 1,641 43
richardii. 2012).
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\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: <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 authorized
it. All species that could potentially occur in the proposed survey
areas are included in Table 1. Detailed descriptions of these species
were provided in our notice of proposed rulemaking (86 FR 50304;
September 8, 2021) and are not repeated here. No new information is
available.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
We provided discussion of the potential effects of the specified
activity on marine mammals and their habitat in our Federal Register
notice of proposed rulemaking (86 FR 50304; September 8, 2021) and it
is not repeated here. The proposed rule included 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 final rule 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 the Negligible Impact Analysis and Determination section and
the material it references, the Estimated Take section, and the
Mitigation section to draw conclusions regarding the likely impacts of
these activities on the reproductive success or survivorship of
individuals and how those impacts on individuals are likely to impact
marine mammal species or stocks.
Estimated Take
This section provides an estimate of the number of incidental takes
authorized through this rulemaking, which informs both NMFS'
consideration of ``small numbers'' and the negligible impact
determinations.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the
[[Page 22488]]
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 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 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 inform the take
calculations.
Table 2--Disturbance Scale of Pinniped Responses to In-Air Sources To
Determine Take
------------------------------------------------------------------------
Level Type of response Definition
------------------------------------------------------------------------
1................... Alert............ Seal head orientation or brief
movement in response to
disturbance, which may include
turning head towards the
disturbance, craning head and
neck while holding the body
rigid in a u-shaped position,
changing from a lying to a
sitting position, or brief
movement of less than twice
the animal's body length.
2 *................. Movement......... Movements in response to the
source of disturbance, ranging
from short withdrawals at
least twice the animal's body
length to longer retreats over
the beach, or if already
moving a change of direction
of greater than 90 degrees.
3 *................. Flush............ All retreats (flushes) to the
water.
------------------------------------------------------------------------
* Only Levels 2 and 3 are considered take, whereas Level 1 is not.
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 (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, and the assumption that all animals
present may exhibit behavioral responses that are considered take
(Levels 2 and 3 as described in Table 2). Should deed restrictions be
altered to allow access
[[Page 22489]]
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 take estimates are adequately precautionary.
Table 3--Annual Level B Harassment Take Calculations and Percentage of Each Stock Affected
----------------------------------------------------------------------------------------------------------------
Days of
Species Maximum number 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
----------------------------------------------------------------------------------------------------------------
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;
(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.
Following are the mitigation measures:
<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 must 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> Ensure that helicopter approach patterns to the NWSR are
such that the timing and techniques are least disturbing to marine
mammals. To the extent possible, the helicopter must 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 must 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 measures, as well as
other measures considered by NMFS, NMFS has determined that the
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.
Monitoring and Reporting
In order to issue an LOA for an activity, Section 101(a)(5)(A) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present in the
action area. Effective reporting is critical both to compliance as well
as ensuring that the most value
[[Page 22490]]
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 during each helicopter takeoff and landing 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 must document any behavioral reactions in concert with
distance from the activity, according to the levels of response
described in Table 2.
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 must be on the first flight to the station. For 15 minutes
before and after all other takeoffs and landings a PSO must be
stationed on the platform of the lantern room gallery, and a PSO must
be on the last departing helicopter of the day;
<bullet> Aerial photo coverage of the island must be completed by
an observer using a high definition camera. Photographs of all marine
mammals hauled out on the island must be taken at an altitude greater
than 300 meters. Photographs of marine mammals present at the last
flight of the day must 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 must 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 must be submitted quarterly;
following submission of the first three quarterly reports, NMFS will
evaluate whether it is appropriate to modify subsequent annual LOAs to
require annual reports, based on whether the information provided in
the first three quarterly reports adequately complies with the
requirement. The report must 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 must 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
[[Page 22491]]
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 report the incident
to the Office of Protected Resources (OPR)
(<a href="/cdn-cgi/l/email-protection#58080a76110c0876153736312c372a31363f0a3d28372a2c2b1836373939763f372e"><span class="__cf_email__" data-cfemail="3363611d7a67631d7e5c5d5a475c415a5d546156435c414740735d5c52521d545c45">[email 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.
No serious injury or mortality would be expected even in the
absence of the 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 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 Level A harassment is anticipated or authorized.
<bullet> No important biologically important 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 monitoring and mitigation
measures, NMFS finds that the total marine mammal take from the
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
[[Page 22492]]
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 authorizes 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 activity (including
the mitigation and monitoring measures) and the anticipated take of
marine mammals, NMFS finds that small numbers of marine mammals will be
taken relative to the population size of the affected species or
stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.
Adaptive Management
The regulations in this final rule governing the take of marine
mammals incidental to Society lighthouse repair and tour operation
activities contain an adaptive management component.
The reporting requirements associated with this final 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.
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 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 determined
that the issuance of the rule qualifies to be categorically excluded
from further NEPA review.
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 ESA compliance for the issuance of
incidental take authorizations, 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 authorized or expected
to result from this activity. Therefore, NMFS has determined that
formal consultation under section 7 of the ESA is not required for this
action.
Classification
Pursuant to the procedures established to implement Executive Order
12866, the Office of Management and Budget has determined that this
final 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 final rule
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 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 final 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: April 11, 2022.
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 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.
[[Page 22493]]
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 May 15, 2022 through
May 14, 2027.
Sec. 217.52 Permissible methods of taking.
Under LOAs issued pursuant to Sec. 216.106 of this chapter and
Sec. 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 and 217.56 of this chapter, it shall be unlawful for any person
to do any of the following in connection with the activities described
in Sec. 217.50:
(a) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a LOA issued under Sec. 216.106 of
this chapter and Sec. 217.56;
(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; or
(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.
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. 216.106 of
this chapter and Sec. 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 must 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
must be instructed to avoid unnecessary noise and not expose themselves
visually to pinnipeds around the base of the lighthouse.
(3) All personnel must 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 pilot must ensure that helicopter approach
patterns to the NWSR are such that the timing and techniques are least
disturbing to marine mammals. To the extent possible, the helicopter
must approach NWSR when the tide is too high for marine mammals to haul
out on NWSR. The helicopter must avoid rapid and direct approaches 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
must 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.
(2) Monitoring must be conducted by a trained PSO, who must have no
other assigned tasks during monitoring periods. Trained PSOs must be
placed at the best vantage point(s) practicable to monitor for marine
mammals and implement mitigation procedures when applicable. The
Society must 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 must submit PSO resumes for approval by NMFS prior
to beginning any activity subject to these regulations.
(3) 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. A PSO with a high definition camera must be on the first
flight to the station each day. For 15 minutes before and after all
other takeoffs and landings a PSO must be stationed on the platform of
the lantern room gallery, and a PSO must be on the last departing
helicopter of the day.
Sec. 217.55 Requirements for monitoring and reporting.
(a) PSOs must document any behavioral reactions in concert with
distance from any project activity.
(b) Reporting--(1) Reporting frequency. (i) The Society must 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 must provide a final report
within 30 days following resolution of comments on each draft report.
(ii) These reports must contain, at minimum, the following:
(A) Dates and times (begin and end) of all marine mammal
monitoring;
(B) Activities occurring during all marine mammal monitoring (e.g.,
helicopter takeoffs and landings, construction activities);
(C) PSO locations during marine mammal monitoring;
(D) Environmental conditions during monitoring periods (at
beginning and
[[Page 22494]]
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.); 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 according to the
3-point scale as defined in the LOA (e.g., no response or changes in
behavioral state such as changing direction or flushing);
(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 must 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 report
the incident to the Office of Protected Resources (OPR)
(<a href="/cdn-cgi/l/email-protection#0c5c5e2245585c224163626578637e65626b5e697c637e787f4c62636d6d226b637a"><span class="__cf_email__" data-cfemail="d28280fc9b8682fc9fbdbcbba6bda0bbbcb580b7a2bda0a6a192bcbdb3b3fcb5bda4">[email 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 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.
217.57.
(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. 216.106 of this chapter and Sec.
217.56 for the activity identified in Sec. 217.50(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 and 217.56 of this
chapter for the activity identified in Sec. 217.50(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. 216.106 of
this chapter and Sec. 217.56, an LOA may be modified without prior
notice or opportunity for public comment. Notice would be published in
[[Page 22495]]
the Federal Register within 30 days of the action.
Sec. Sec. 217.58-217.59 [Reserved]
[FR Doc. 2022-08031 Filed 4-14-22; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on April 15, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.