Federal Register/Vol. 86, No. 171/Wednesday, September 8, 2021/Proposed Rules

50304 Federal Register / Vol. 86, No. 171 / Wednesday, September 8, 2021 / Proposed Rules

DEPARTMENT OF COMMERCE accept anonymous comments (enter ‘‘N/ agency makes certain findings and A’’ in the required fields if you wish to issues regulations that set forth National Oceanic and Atmospheric remain anonymous). Attachments to permissible methods of taking pursuant Administration electronic comments will be accepted in to that activity and other means of Microsoft Word, Excel, or Adobe PDF effecting the ‘‘least practicable adverse 50 CFR Part 217 file formats only. impact’’ on the affected species or [Docket No. 210830–0172] FOR FURTHER INFORMATION CONTACT: stocks and their habitat (see the Dwayne Meadows, Ph.D., Office of discussion below in the Proposed RIN 0648–BJ87 Protected Resources, NMFS, (301) 427– Mitigation section), as well as 8401. Electronic copies of the monitoring and reporting requirements. Takes of Marine Mammals Incidental to application and supporting documents, Section 101(a)(5)(A) of the MMPA and Specified Activities; Taking Marine as well as a list of the references cited the implementing regulations at 50 CFR Mammals Incidental to Lighthouse in this document, may be obtained part 216, subpart I provide the legal Repair and Tour Operations at online at: https:// basis for issuing this proposed rule Northwest Seal Rock, California www.fisheries.noaa.gov/permit/ containing 5-year regulations, and for AGENCY: National Marine Fisheries incidental-take-authorizations-under- any subsequent Letters of Authorization Service (NMFS), National Oceanic and marine-mammal-protection-act. In case (LOAs). As directed by this legal Atmospheric Administration (NOAA), of problems accessing these documents, authority, this proposed rule contains Commerce. please call the contact listed above. mitigation, monitoring, and reporting ACTION: Proposed rule; request for SUPPLEMENTARY INFORMATION: requirements. comments. Availability Summary of Major Provisions Within the Proposed Rule SUMMARY: NMFS has received a request A copy of the Society’s application from the St. George Reef Lighthouse and any supporting documents, as well Following is a summary of the major Preservation Society (Society) for as a list of the references cited in this provisions of this proposed rule authorization to take marine mammals document, may be obtained online at: regarding the Society’s activities. These over the course of 5 years (2021–2026) https://www.fisheries.noaa.gov/permit/ measures include: • incidental to conducting aircraft incidental-take-authorizations-under- Required implementation of operations, lighthouse renovation, light marine-mammal-protection-act. In case mitigation to minimize impact to maintenance activities, and tour of problems accessing these documents, pinnipeds and avoid disruption to operations on the St. George Reef please call the contact listed above (see dependent pups including several Lighthouse Station (Station) on FOR FURTHER INFORMATION CONTACT). measures to approach haulouts Northwest Seal Rock (NWSR). Pursuant cautiously to minimize disturbance, Purpose and Need for Regulatory especially when pups are present. to the Marine Mammal Protection Act Action • (MMPA), NMFS is proposing Required monitoring of the project regulations to govern that take, and This proposed rule would establish a areas to detect the presence of marine requests comments on the proposed framework under the authority of the mammals before initiating work. regulations. NMFS will consider public MMPA (16 U.S.C. 1361 et seq.) to allow Background comments prior to making any final for the authorization of take of marine mammals incidental to the Society The MMPA prohibits the ‘‘take’’ of decision on the issuance of the marine mammals, with certain requested MMPA authorizations and conducting aircraft operations, lighthouse renovation, light exceptions. Sections 101(a)(5)(A) of the agency responses will be summarized in MMPA (16 U.S.C. 1361 et seq.) direct the final notification of our decision. maintenance activities, and tour operations on the Station on NWSR the Secretary of Commerce (as delegated DATES: Comments and information must approximately 8 miles (12.9 km) to NMFS) to allow, upon request, the be received no later than October 8, northwest of Crescent City, CA. incidental, but not intentional, taking of 2021. We received an application from the small numbers of marine mammals by ADDRESSES: Submit all electronic public Society requesting 5-year regulations U.S. citizens who engage in a specified comments via the Federal e-Rulemaking and authorization to take multiple activity (other than commercial fishing) Portal. Go to https:// species of marine mammals. Take within a specified geographical region if www.regulations.gov and enter NOAA– would occur by Level B harassment certain findings are made, regulations NMFS–2021–0079 in the Search box. incidental to acoustic and visual are issued, and notice is provided to the Click on the ‘‘Comment’’ icon, complete disturbance of pinnipeds during public. the required fields, and enter or attach helicopter operations, lighthouse repair, Authorization for incidental takings your comments. and tour operations. Please see shall be granted if NMFS finds that the Instructions: Comments sent by any Background section below for taking will have a negligible impact on other method, to any other address or definitions of harassment. the species or stock(s) and will not have individual, or received after the end of an unmitigable adverse impact on the the comment period, may not be Legal Authority for the Proposed Action availability of the species or stock(s) for considered by NMFS. All comments Section 101(a)(5)(A) of the MMPA (16 taking for subsistence uses (where received are a part of the public record U.S.C. 1371(a)(5)(A)) directs the relevant). Further, NMFS must prescribe and will generally be posted for public Secretary of Commerce to allow, upon the permissible methods of taking and viewing on www.regulations.gov request, the incidental, but not other ‘‘means of effecting the least without change. All personal identifying intentional taking of small numbers of practicable adverse impact’’ on the information (e.g., name, address), marine mammals by U.S. citizens who affected species or stocks and their confidential business information, or engage in a specified activity (other than habitat, paying particular attention to otherwise sensitive information commercial fishing) within a specified rookeries, mating grounds, and areas of submitted voluntarily by the sender will geographical region for up to 5 years if, similar significance, and on the be publicly accessible. NMFS will after notice and public comment, the availability of the species or stocks for

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taking for certain subsistence uses Summary of Request observation gallery platform surrounds (referred to in shorthand as On March 23, 2020, NMFS received a the lantern room and provides a 360 ‘‘mitigation’’); and requirements request from the Society for a proposed degree view to the caisson and rocks pertaining to the mitigation, monitoring rule and LOAs to take marine mammals below. and reporting of the takings are set forth. incidental to lighthouse maintenance The purpose of the project is to NMFS has defined ‘‘negligible and preservation activities at NWSR, conduct annual maintenance of the impact’’ in 50 CFR 216.103 as an impact offshore of Crescent City, CA. The Station’s optical light system, resulting from the specified activity that application was deemed adequate and emergency maintenance in the event of cannot be reasonably expected to, and is complete on April 16, 2020. The equipment failure, restoration activities, not reasonably likely to, adversely affect Society’s request is for take of a small and lighthouse tours. Because NWSR the species or stock through effects on number of California sea lions has no safe landing area for boats, the annual rates of recruitment or survival. (Zalophus californianus), harbor seals Society accesses the Station via The MMPA states that the term ‘‘take’’ (Phoca vitulina), Steller sea lions helicopter. Restoration work sessions means to harass, hunt, capture, or kill, (Eumetopias jubatus), and northern fur can occur over 3-day weekends or or attempt to harass, hunt, capture, or seals (Callorhinus ursinus) by Level B longer one to two week sessions. The kill any marine mammal. harassment only. Neither the Society following specific aspects of the Except with respect to certain nor NMFS expects serious injury or proposed activities would likely result activities not pertinent here, the MMPA mortality to result from this activity. On in the take of marine mammals: defines ‘‘harassment’’ as: Any act of June 9, 2020 (85 FR 35268), we Acoustic and visual stimuli from (1) pursuit, torment, or annoyance which (i) published a notice of receipt of the helicopter landings and takeoffs; (2) has the potential to injure a marine Coast Guard’s application in the Federal noise generated during restoration mammal or marine mammal stock in the Register, requesting comments and activities (e.g., painting, plastering, wild (Level A harassment); or (ii) has information related to the request for 30 welding, and glazing); (3) maintenance activities (e.g., bulb replacement and the potential to disturb a marine days. We received no comments. automation of the light system); and (4) mammal or marine mammal stock in the NMFS previously issued nine 1-year human presence. Thus, NMFS wild by causing disruption of behavioral Incidental Harassment Authorizations anticipates these activities may patterns, including, but not limited to, (IHAs) for similar work (75 FR 4774, occasionally cause behavioral migration, breathing, nursing, breeding, January 29, 2010; 76 FR 10564, February disturbance (i.e., Level B harassment) of feeding, or sheltering (Level B 25, 2011; 77 FR 8811, February 15, four pinniped species. It is expected harassment). 2012; 78 FR 71576, November 29, 2013; 79 FR 6179, February 3, 2014; 81 FR that the disturbance to pinnipeds from National Environmental Policy Act 9440, February 25, 2016; 82 FR 11005, the activities will be minimal and will To comply with the National February 17, 2017; 83 FR 19254, May 2, be limited to Level B harassment. The regulations proposed here (and Environmental Policy Act of 1969 2018; and 84 FR 15598, April 16, 2019). any issued LOAs) would replace annual (NEPA; 42 U.S.C. 4321 et seq.) and Generally speaking, the Society IHAs, providing a reduction in the time NOAA Administrative Order (NAO) complied with the requirements (e.g., and effort necessary to obtain individual 216–6A, NMFS must review our mitigation, monitoring, and reporting) of incidental take authorizations. proposed action (i.e., the issuance of a the previous IHAs. However, proposed rule and subsequent LOAs) misunderstandings in past Dates and Duration implementation have resulted in with respect to potential impacts on the The Society proposes to conduct the missing or incorrectly recorded human environment. activities (aircraft operations, lighthouse monitoring data, which necessitates This action is consistent with restoration and maintenance activities, more frequent reporting in the first year categories of activities identified in and public tours) with a maximum of 70 (at least) of this rule to ensure Categorical Exclusion B4 of the helicopter flight days per year. The appropriate monitoring and reporting Companion Manual for NAO 216–6A, Society’s deed restricts normal access implementation in the future. which do not individually or from June 1 through October 15 Information regarding their monitoring cumulatively have the potential for annually, so currently proposed trips results may be found in the Potential significant impacts on the quality of the under this application would occur Effects of Specified Activities on Marine human environment and for which we from October 16 through May 31. Mammals and their Habitat and have not identified any extraordinary However, the Society is attempting to Estimated Take sections. circumstances that would preclude this have the deed revised to allow visits at categorical exclusion. Accordingly, Description of Proposed Activity any time of the year. Therefore we will NMFS has preliminarily determined consider the implications of possible Overview that the issuance of the proposed rule visits during any month of the year in qualifies to be categorically excluded The St. George Reef Lighthouse our analyses below and we could issue from further NEPA review. Station was built on NWSR in 1892 and LOAs to cover this time of year should Information in the Society’s is listed in the National Register of the society be successful in revising application and this notification Historic Places. Covering much of the their deed. The proposed regulations collectively provide the environmental islet’s surface, the structure consists of would be valid for a period of 5 years information related to proposed a 14.5 meter (m) high (48 foot (ft)) oval- (January 1, 2022–December 31, 2026). issuance of these regulations and shaped concrete base (the caisson) that Over the course of this 5-year subsequent incidental take holds much of the equipment and authorization, the Society proposes a authorization for public review and infrastructure for the lighthouse tower, maximum of 350 days of activities. comment. We will review all comments which sits on the top of one end of the submitted in response to this base. The square tower consists of Specific Geographic Region notification prior to concluding our hundreds of granite blocks topped with The Station is located on NWSR NEPA process or making a final a cast iron lantern room reaching 45.7 (Figure 1), a small, rocky islet (41°50′24″ decision on the request. m (150 ft) above sea level. An N, 124°22′06″ W), approximately 9

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kilometers (km) (6.0 miles (mi)) offshore equipment to NWSR for each restoration George Reef Lighthouse as a Private Aid of Crescent City, California (41°46′48′′ work session. Traditional work sessions to Navigation, the Society needs to N; 124°14′11′′ W). NWSR is in the past have been over 3-day long conduct maintenance of the light. approximately 91.4 meters (m) (300 feet weekends. The Society now proposes to Normally this would occur in (ft)) in diameter and peaks at 5.18 m (17 add occasional longer one to two week conjunction with a longer restoration ft) above mean sea level. work sessions to address additional work session. However, if the beacon restoration needs. Detailed Description of Specific Activity light fails, the Society proposes to send Public Tours a crew of two to three people to the Lighthouse Restoration Activities Station by helicopter as soon as possible The Society began conducting public to repair the beacon light. Each repair Restoration and maintenance tours to the lighthouse by helicopter in activities would involve the removal event requires a 1-day trip to the 1998 in conjunction with restoration Station. and restoration of interior plaster and activities and proposes to conduct paint, refurbishing structural and public tours at the Station on one day The Society’s deed currently limits decorative metal, reworking original of a traditional 3-day work session and visits between June 1 and October 15 of metal support beams throughout the on one to two weekend days of the each year, but does permit limited lantern room and elsewhere, replacing longer work trips. The maximum emergency light repair trips to the glass as necessary, upgrading the number of expected tourists is 36 people station during that time. Should the present electrical system; and annual or per tour day. Society be successful in eliminating the biannual light beacon maintenance. The deed restriction on visitation dates, no Society proposes to transport no more Light Maintenance light maintenance trips would be than 12 work crew members (requiring As required by the United States considered ‘‘emergency’’. up to four round-trip flights) and Coast Guard, in order to maintain St. BILLING CODE 3510–22–P

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Figure 1. Location of the St. George Reef Lighthouse

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

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operations could last up to 3 hrs. island before 2 p.m. The total number of website (https:// Second-day operations are only helicopter flights on a tour day is thus www.fisheries.noaa.gov/find-species). conducted if needed; flights on the no more than 26 (18 for tourists, 8 for Table 1 lists all species or stocks for second day do not always occur. work crew members). which take is expected and proposed to For the final day of operations, the Light maintenance is expected to take be authorized for this action, and Society could conduct a maximum of no longer than 3 hours and one crew of summarizes information related to the eight flights (four arrivals and four two-three people. Only one-two population or stock, including departures) to transport the crew helicopter landings at the Lighthouse regulatory status under the MMPA and members and equipment/material back are anticipated to ferry the crew an the Endangered Species Act (ESA) and to the Crescent City Airport. The total equipment to service the light. Thus a potential biological removal (PBR), duration of the third day’s helicopter light maintenance trip requires a where known. For taxonomy, we follow operations could last up to 2 hrs. Thus maximum of four flights on one day. Committee on Taxonomy (2020). PBR is the total number of flights for Most if not all of the disturbance from defined by the MMPA as the maximum restoration work on a 3 day trip is 20 the Society’s activity occurs on the number of animals, not including (i.e., 8 Friday, 4 Saturday, 8 Sunday). flight days. When helicopters are not at natural mortalities, that may be removed The Society proposes no more than 14 the Station work crews remain inside or from a marine mammal stock while 3-day work sessions per year. on the platform far above the marine allowing that stock to reach or maintain The number of flights and days of mammals on the rocks below. Thus the its optimum sustainable population (as flights on a one to two week restoration number of flight days represents the described in NMFS’s SARs). While no trip would be similar to a 3 day trip. general extent of the disturbance from mortality is anticipated or authorized That is eight flights on the first and last these activities. The society proposes no here, PBR and annual serious injury and days of the trip plus four flights more than 70 days of flight operations mortality from anthropogenic sources potentially on 1 day in the middle of the per year (4 for regular or emergency are included here as gross indicators of trip as needed. The Society is proposing light maintenance trips and 66 for work the status of the species and other no more than eight long trips per year. restoration trips (with additional flights, threats. To date no more than three trips per but not days of flight activity on no year have ever been conducted. The more than 30 tour days). Marine mammal abundance estimates Society would have no more than two Proposed mitigation, monitoring, and presented in this document represent restoration work trips per month. reporting measures are described in the total number of individuals that On a 3-day restoration trip tours may detail later in this document (please see make up a given stock or the total occur on the last day. The tours would Proposed Mitigation and Proposed number estimated within a particular be scheduled on a weekend day on the Monitoring and Reporting). study or survey area. NMFS’s stock beginning and or the end of the work abundance estimates for most species party for the one to two week duration Description of Marine Mammals in the represent the total estimate of restoration trips. Additional flights Area of Specified Activities individuals within the geographic area, would be conducted solely for the Sections 3 and 4 of the application if known, that comprises that stock. For transport of tourists to and from the summarize available information some species, this geographic area may Lighthouse; those flights would be regarding status and trends, distribution extend beyond U.S. waters. All managed conducted in the later hours of the and habitat preferences, and behavior stocks in this region are assessed in morning and early afternoon. The and life history, of the potentially NMFS’s U.S. Pacific Marine Mammal maximum number of expected tourists affected species. Additional information SARs (e.g., Carretta et al. 2020). All is 36 people per tour day. Thus the regarding population trends and threats values presented in Table 1 are the most number of helicopter flights needed for may be found in NMFS’s Stock recent available at the time of tourists is 18 (9 arrivals and 9 Assessment Reports (SARs; https:// publication and are available in the departures). It is expected that each www.fisheries.noaa.gov/national/ 2019 SARs (Carretta et al. 2020) and flight would land every 15–20 minutes. marine-mammal-protection/marine- draft 2020 SARs (available online at: The scheduled duration of each visit is mammal-stock-assessments) and more https://www.fisheries.noaa.gov/ one hour per tour group (each tour general information about these species national/marine-mammal-protection/ group is one helicopter load of people). (e.g., physical and behavioral draft-marine-mammal-stock- The last tour group would leave the descriptions) may be found on NMFS’s assessment-reports). TABLE 1—SPECIES THAT SPATIALLY CO-OCCUR WITH THE ACTIVITY TO THE DEGREE THAT TAKE IS REASONABLY LIKELY TO OCCUR

ESA/ MMPA Stock abundance Common name Scientific name Stock status; (CV, N , most recent PBR Annual min M/SI 3 Strategic abundance survey) 2 I (Y/N) 1 I I I 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)

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TABLE 1—SPECIES THAT SPATIALLY CO-OCCUR WITH THE ACTIVITY TO THE DEGREE THAT TAKE IS REASONABLY LIKELY TO OCCUR—Continued

ESA/ MMPA Stock abundance Annual Common name Scientific name Stock status; (CV, N , most recent PBR min M/SI 3 Strategic abundance survey) 2 (Y/N) 1

Pacific harbor seal ...... Phoca vitulina richardii ...... California ...... -, -, N 30,968 (N/A, 27,348, 1,641 43 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: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports, 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 August), and fall (September–October), species (i.e., eared seals or fur seals and (with four managed stocks) in Table 1 averaged 60, 154, and 235, respectively sea lions) (M. DeAngelis, NMFS, pers. temporally and spatially co-occur with (CCR 2001). NMFS Southwest Fisheries comm., 2007). the activity to the degree that take is Science Center (SWFSC) conducted 14 Steller Sea Lions reasonably likely to occur, and we have annual marine mammal surveys over 19 proposed authorizing it. All species that years (1998 to 2017) at St. George Reef. Steller sea lions range extends from could potentially occur in the proposed California sea lions were last the North Pacific Rim from northern survey areas are included in Table 1. documented at NWSR in July of 2003 Japan to California with areas of (11) (unpublished data, Beth Jaime, abundance in the Gulf of Alaska and California Sea Lion NMFS SWFSC, pers. comm., 2020). Aleutian Islands (Muto et al., 2019). California sea lions occur from Steller sea lions consist of two distinct Vancouver Island, British Columbia, to Northern Fur Seal stocks: The western and eastern stocks the southern tip of Baja California. Sea Northern fur seals occur from divided at 144° West longitude (Cape lions breed on the offshore islands of southern California north to the Bering Suckling, Alaska). The western stock of southern and central California from Sea and west to the Sea of Okhotsk and Steller sea lions inhabit central and May through July (Heath and Perrin, Honshu Island of Japan. NMFS western Gulf of Alaska, Aleutian 2008). During the non-breeding season, recognizes two separate stocks of Islands, as well as coastal waters and adult and subadult males and juveniles northern fur seals within U.S. waters: breed in Asia (e.g., Japan and Russia). migrate northward along the coast to An Eastern Pacific stock distributed The eastern stock includes sea lions central and northern California, Oregon, among sites in Alaska, British Columbia, living in southeast Alaska, British Washington, and Vancouver Island and islets along the west coast of U.S. Columbia, California, Oregon, and (Jefferson et al., 1993). They return waters (i.e., St. Paul, St. George, and Washington and is the only one in the south the following spring (Heath and Bogoslof); and a California stock project area. The stock was delisted Perrin 2008, Lowry and Forney 2005). (including San Miguel Island and the under the ESA in 2013. Females and some juveniles tend to Farallon Islands) (Muto et al., 2018). The species is not known to migrate, remain closer to rookeries (Antonelis et Northern fur seals breed in Alaska but individuals, especially juveniles and al., 1990; Melin et al., 2008). Adult and migrate along the west coast during adult males, disperse widely outside of females generally remain south of fall and winter. Due to their pelagic the breeding season (late May through Monterey Bay, California throughout the habitat, they are rarely seen from shore early August), thus potentially year, feeding in coastal waters in the in the continental United States, but intermixing eastern and western stocks summer and offshore waters in the individuals occasionally come ashore (Muto et al., 2018). Steller sea lions give winter, alternating between foraging and on islands well offshore (i.e., Farallon birth in May through July and breeding nursing their pups on shore until the Islands and Channel Islands in commences a couple of weeks after next pupping/breeding season (Melin California). During the breeding season, birth. Pups are weaned during the and DeLong, 2000; Melin et al., 2008). approximately 45 percent of the winter and spring of the following year. In warm water years (El Nin˜ o), some worldwide population inhabits the A northward shift in the overall females range as far north as Pribilof Islands in the Southern Bering breeding distribution has occurred, with Washington and Oregon, presumably Sea, with the remaining animals spread a contraction of the range in southern following prey. The current maximum throughout the North Pacific Ocean California and new rookeries population growth rate for California sea (Caretta et al., 2015). established in southeastern Alaska lions is 12 percent (Carretta et al., 2019). Northern fur seals have not been (Pitcher et al., 2007). Overall, counts of Crescent Coastal Research (CCR) observed during the NMFS SWFSC’s pups in California, Oregon, British conducted a 3-year survey of the marine mammal surveys of St. George Columbia, and Southeast Alaska, as well wildlife species on NWSR for the Reef from 1998 to 2017 (Beth Jaime, as counts of non-pups in the same Society. They reported that counts of NMFS, pers. comm., 2020). However, regions plus Washington has increased California sea lions on NWSR varied CCR observed one male northern fur steadily since the 1980s. Stock increase greatly (from 6 to 541) during the seal on Northwest Seal Rock in October, has been attributed to escalation of pup observation period from April 1997 1998 (CCR 2001). It is possible that a counts in all regions (NMFS 2013). through July 2000. CCR reported that few animals may use the island more Steller sea lion numbers at NWSR counts for California sea lions during often than indicated by the surveys, if ranged from 20 to 355 animals between the spring (April–May), summer (June– they were mistaken for other otariid 1997 and 2000 (CCR 2001). Counts of

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Steller sea lions during the spring from shore, relatively steep topography, does not take into account the duration (April–May), summer (June–August), and full exposure to rough and of a sound. and fall (September–October), averaged frequently turbulent sea swells. The Noise testing on the helicopter that 68, 110, and 56, respectively (CCR SWFSC surveys did not record harbor has been used by the Society, a 2001). A multi-year survey at NWSR seals at NWSR (unpublished data, Beth Robinson R66, as required for Federal between 2000 and 2004 showed Steller Jaime, NMFS/SWFSC, pers. comm., Aviation Administration (FAA) sea lion numbers ranging from 175 to 2020). approval, required an overflight at 150 354 in July (M. Lowry, NMFS/SWFSC, m (492 ft) above ground level, 109 knots unpubl. data). The SWFSC surveys Potential Effects of Specified Activities (202 km/hr) and a maximum gross document a consistent presence of on Marine Mammals and Their Habitat weight of 1,225 kg (2,700 lbs). The noise Steller sea lions at NWSR in 11 out of This section includes a summary and level measured on the ground at this 14 of yearly surveys between 1998 and discussion of the ways that components distance and speed was 84.5 dB re: 20 2017 with an average of 240 individuals of the specified activity may impact mPa (A-weighted). FAA testing also (Beth Jaime, NMFS, pers. comm., 2020). marine mammals and their habitat. The measured the sound levels on the The largest presence of Steller sea lions Estimated Take section later in this ground for a typical helicopter takeoff at St. George Reef is found on Southwest document includes a quantitative and approach as 87.8 dB re: 20 mPa (A- Seal Rock, approximately 6 km (3.7 analysis of the number of individuals weighted) (Robinson 2017). Based on miles) from NWSR, with an average of that are expected to be taken by this this information, we expect that the 915 individuals observed among the activity. The Negligible Impact Analysis received sound levels at the landing SWFSC surveys (unpublished data, Beth and Determination section considers the area on the Station’s caisson would be Jaime, NMFS/SWFSC, pers. comm., content of this section, the Estimated between 84.5 and 87.8 dB re: 20 mPa (A- 2020). Southwest Seal Rock is a rookery Take section, and the Proposed weighted). These sound levels are below that has contained up to 450 pups Mitigation section, to draw conclusions the NMFS behavioral threshold for (Wright et al. 2017). Adults with pups regarding the likely impacts of these airborne pinniped disturbance (90 dB are known to relocate from there to activities on the reproductive success or for harbor seals and 100dB for all other NWSR in the fall. (CCR 2001). Winter survivorship of individuals and how pinnipeds) (NMFS 2016). use of NWSR by Steller sea lions is those impacts on individuals are likely There is a dearth of information on thought to be minimal, due to to impact marine mammal species or acoustic effects of helicopter overflights inundation of the natural portion of the stocks. on pinniped hearing and island by large swells. Acoustic and visual stimuli generated communication (Richardson, et al., 1995) and to NMFS’ knowledge, there Pacific Harbor Seal by: (1) Helicopter landings/takeoffs; (2) restoration activities (e.g., painting, has been no specific documentation of Harbor seals are widely distributed in plastering, welding, and glazing); (3) temporary threshold shift (TTS), let the North Atlantic and North Pacific. maintenance activities (e.g., bulb alone permanent threshold shift (PTS), Phoca vitulina richardii inhabits coastal replacement and automation of the light in free-ranging pinnipeds exposed to and estuarine areas from Mexico to system); and (4) human presence may helicopter operations during realistic Alaska (Carretta et al., 2020) and is the have the potential to cause behavioral field conditions (Baker et al., 2012; only stock present in the action area. disturbance. Scheidat et al., 2011). In California, over 500 harbor seal The primary factor that may influence haulout sites are widely distributed Noise abrupt movements of animals is engine along the mainland and offshore This section includes a brief noise, specifically changes in engine islands, and include rocky shores, explanation of the sound measurements noise. The physical presence of aircraft beaches and intertidal sandbars (Lowry frequently used in the discussions of could also lead to non-auditory effects et al., 2005). Harbor seals mate at sea acoustic effects in this proposed rule. on marine mammals involving visual or and females give birth during the spring other cues. Airborne sound from a low- Sound pressure is the sound force per and summer, although, the pupping flying helicopter or airplane may be unit area, and is usually measured in season varies with latitude. Females heard by marine mammals while at the micropascals (mPa), where 1 pascal (Pa) nurse their pups for an average of 24 surface or underwater. Responses by is the pressure resulting from a force of days and pups are ready to swim mammals could include hasty dives or one newton exerted over an area of one minutes after being born. Harbor seal turns, change in course, or flushing and square meter. Sound pressure level pupping takes place at many locations stampeding from a haulout site. There (SPL) is the ratio of a measured sound and rookery size varies from a few pups are few well documented studies of the pressure and a reference level. The to many hundreds of pups. The nearest impacts of aircraft overflight over commonly used reference pressure is 1 harbor seal rookery relative to the pinniped haulout sites or rookeries, and mPa for under water, and the units for proposed project site is at Castle Rock many of those that exist, are specific to SPLs are dB re: 1 mPa. The commonly National Wildlife Refuge, located military activities (Efroymson et al., used reference pressure is 20 mPa for in approximately located 965 m (0.6 mi) 2001). In 2008, NMFS issued an IHA to air, and the units for SPLs are dB: 20 south of Point St. George, and 2.4 km the USFWS for the take of small mPa. (1.5 mi) north of the Crescent City numbers of Steller sea lions and Pacific Harbor in Del Norte County, California SPL (in decibels (dB)) = 20 log harbor seals, incidental to rodent (US Fish and Wildlife Service (USFWS) (pressure/reference pressure). eradication activities on an islet offshore 2007). SPL is an instantaneous measurement of Rat Island, AK conducted by CCR noted that harbor seal use of expressed as the peak, the peak-peak, or helicopter. The 15-minute aerial NWSR was minimal, with only one the root mean square (rms). Root mean treatment consisted of the helicopter sighting of a group of six animals, square is the square root of the slowly approaching the islet at an during 20 observation surveys from arithmetic average of the squared elevation of over 1,000 ft (304.8 m); 1997 through 2000 (CCR 2001). They instantaneous pressure values. All gradually decreasing altitude in slow hypothesized that harbor seals may references to SPL in this document refer circles; and applying the rodenticide in avoid the islet because of its distance to the rms unless otherwise noted. SPL a single pass and returning to Rat Island.

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The gradual and deliberate approach to animals responded to some degree by Pinnipeds hauled out on NWSR do not the islet resulted in the sea lions present moving within the haulout and entering have access to the upper levels of the initially becoming aware of the into the water, stampeding into the Station and sound levels are not likely helicopter and calmly moving into the water, or clearing the haul out to exceed the thresholds. water. Further, the USFWS reported that completely. Both species always Human Presence all responses fell well within the range responded with the raising of their of Level B harassment (i.e., limited, heads. California sea lions appeared to The appearance of Society personnel short-term displacement resulting from react more to the visual cue of the may have the potential to cause Level B aircraft noise due to helicopter helicopter than the noise. harassment of marine mammals hauled overflights). It is possible that the initial helicopter out on NWSR. Disturbance includes a Several factors complicate the approach to NWSR would cause a variety of effects, from subtle to analysis of long- and short-term effects subset of the marine mammals hauled conspicuous changes in behavior, for aircraft overflights. Information on out to react. CCR found a range of from movement, and displacement. behavioral effects of overflights by 0 to 40 percent of all pinnipeds present Disturbance may result in reactions military aircraft (or component on the island were temporarily ranging from an animal simply stressors) on most wildlife species is displaced (flushed) due to initial becoming alert to the presence of the sparse. Moreover, models that relate helicopter landings in 1998. Their data Society’s restoration personnel (e.g., behavioral changes to abundance or suggested that the majority of these turning the head, assuming a more reproduction, and those that relate animals returned to the island once upright posture) to flushing from the behavioral or hearing effects thresholds helicopter activities ceased, over a haulout site into the water. NMFS does from one population to another are period of minutes to 2 hours (CCR, not consider the lesser reactions to generally not available. In addition, the 2001). Far fewer animals flushed into constitute behavioral harassment, or aggregation of sound frequencies, the water on subsequent takeoffs and Level B harassment takes, but rather durations, and the view of the aircraft landings, suggesting rapid habituation assumes that pinnipeds that move into a single exposure metric is not to helicopter landing and departure greater than two body lengths or longer, always the best predictor of effects and (CCR, 2001; Guy Towers, Society, pers. or if already moving, a change of it may also be difficult to calculate. comm.). CCR’s data also showed that the direction of greater than 90 degrees in Overall, there has been no indication number of pinnipeds that flush is low response to the disturbance, or that single or occasional aircraft flying when takeoffs and landings occur less pinnipeds that flush into the water, are above pinnipeds in water cause long than 30 minutes apart, which is the case behaviorally harassed, and thus term displacement of these animals for all of the flights by the Society. considered incidentally taken by Level (Richardson et al., 1995). The Lowest Observations from monitoring to date B harassment. NMFS uses a 3-point Observed Adverse Effects Level for this work confirms the above pattern scale (Table 2) to determine which (LOAEL) for aircraft elevation of partial flushing at initial landing and disturbance reactions constitute take disturbance are rather variable for increasing habituation thereafter. under the MMPA. Levels two and three pinnipeds on land, ranging from just Any noise associated with restoration (movement and flush) are considered over 150 m (492 ft) to about 2,000 m and maintenance activities is likely to take, whereas level one (alert) is not. (6,562 ft) (Efroymson et al., 2001). be from light construction (e.g., sanding, Animals that respond to the presence of Bowles and Stewart (1980) estimated an hammering, or use of hand drills). The the Society’s personnel by becoming LOAEL of 305 m (1,000 ft) for Society will confine all restoration alert, but do not move or change the helicopters (low and landing) affecting activities to inside the existing nature of locomotion as described, are California sea lions and harbor seals structure, which would occur mostly on not considered to have been subject to observed on San Miguel Island, CA; the upper levels of the Station. behavioral harassment.

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.

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

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Harvey, 1999; and Kucey and Trites, occurred when stopped kayaks and Stress Responses 2006). Numerous studies have shown powerboats were at distances as far as An animal’s perception of a threat that human activity can flush harbor 453 and 1,217 ft (138 and 371 m), may be sufficient to trigger stress seals off haulout sites (Allen et al., 1984; respectively. The authors note that the responses consisting of some Calambokidis et al., 1991; and Suryan seals were unaffected by passing combination of behavioral responses, and Harvey 1999) or lead Hawaiian powerboats, even those approaching as autonomic nervous system responses, monk seals (Neomonachus close as 128 ft (39 m), possibly neuroendocrine responses, or immune schauinslandi) to avoid beaches indicating that the animals had become responses (e.g., Seyle, 1950; Moberg, (Kenyon 1972). In one case, human tolerant of the brief presence of the 2000). In many cases, an animal’s first disturbance appeared to cause Steller vessels and ignored them. The authors and sometimes most economical (in sea lions to desert a breeding area at reported that on average, the seals terms of energetic costs) response is Northeast Point on St. Paul Island, quickly recovered from the disturbances behavioral avoidance of the potential Alaska (Kenyon 1962). and returned to the haulout site in less stressor. Autonomic nervous system In cases where vessels actively than or equal to 60 minutes. Seal responses to stress typically involve approached marine mammals (e.g., numbers did not return to pre- changes in heart rate, blood pressure, whale watching or dolphin watching disturbance levels within 180 minutes and gastrointestinal activity. These boats), scientists have documented that of the disturbance less than one quarter responses have a relatively short animals exhibit altered behavior such as of the time observed. The study duration and may or may not have a increased swimming speed, erratic concluded that the return of seal significant long-term effect on an movement, and active avoidance numbers to pre-disturbance levels and animal’s fitness. behavior (Acevedo, 1991; Trites and the relatively regular seasonal cycle in Neuroendocrine stress responses often Bain, 2000; Williams et al., 2002; abundance throughout the area counter involve the hypothalamus-pituitary- Constantine et al., 2003), reduced blow the idea that disturbances from adrenal system. Virtually all interval (Richter et al., 2003), disruption powerboats may result in site neuroendocrine functions that are of normal social behaviors (Lusseau abandonment (Johnson and Acevedo- affected by stress—including immune 2003; 2006), and the shift of behavioral Gutierrez, 2007). activities which may increase energetic competence, reproduction, metabolism, costs (Constantine et al., 2003; 2004). In Stampede and behavior—are regulated by pituitary 1997, Henry and Hammil (2001) There are other ways in which hormones. Stress-induced changes in conducted a study to measure the disturbance, as described previously, the secretion of pituitary hormones have impacts of small boats (i.e., kayaks, could result in more than Level B been implicated in failed reproduction, canoes, motorboats and sailboats) on harassment of marine mammals. They altered metabolism, reduced immune harbor seal haul out behavior in Metis are most likely to be consequences of competence, and behavioral disturbance Bay, Quebec, Canada. During that study, stampeding, a potentially dangerous (e.g., Moberg, 1987; Blecha, 2000). the authors noted that the most frequent occurrence in which large numbers of Increases in the circulation of disturbances (n=73) were caused by animals succumb to mass panic and glucocorticoids are also equated with lower speed, lingering kayaks, and rush away from a stimulus. These stress (Romano et al., 2004). canoes (33.3 percent) as opposed to situations are particularly injurious The primary distinction between motorboats (27.8 percent) conducting when: (1) Animals fall when entering stress (which is adaptive and does not high speed passes. The seal’s flight the water at high-relief locations; (2) normally place an animal at risk) and reactions could be linked to a surprise there is extended separation of mothers ‘‘distress’’ is the cost of the response. factor by kayaks and canoes which and pups; and (3) crushing of pups by During a stress response, an animal uses approach slowly, quietly, and low on large males occurs during a stampede. glycogen stores that can be quickly the water making them look like However, NMFS does not expect any of replenished once the stress is alleviated. predators. However, the authors note these scenarios to occur at NWSR as the In such circumstances, the cost of the that once the animals were disturbed, proposed action occurs outside of the stress response would not pose serious there did not appear to be any pupping/breeding season, no mother/ fitness consequences. However, when significant lingering effect on the pup pairs are expected to be at the an animal does not have sufficient recovery of numbers to their pre- Station, there are no cliffs on NWSR, energy reserves to satisfy the energetic disturbance levels. In conclusion, the and previous monitoring has not costs of a stress response, energy study showed that boat traffic at current recorded stampeding events during resources must be diverted from other levels has only a temporary effect on the prior authorizations. The haulout sites functions. This state of distress will last haul out behavior of harbor seals. at NWSR consist of ridges with until the animal replenishes its In 2004, Acevedo-Gutierrez and unimpeded and non-obstructive access energetic reserves sufficient to restore Johnson (2007) evaluated the efficacy of to the water. If disturbed, the small normal function. buffer zones for watercraft around number of hauled out adult animals Relationships between these harbor seal haulout sites on Yellow may move toward the water without risk physiological mechanisms, animal Island, Washington. The authors of encountering barriers or hazards that behavior, and the costs of stress estimated the minimum distance would otherwise prevent them from responses are well-studied through between the vessels and the haulout leaving the area or increase injury controlled experiments and for both sites; categorized the vessel types; and potential. Moreover, the proposed area laboratory and free-ranging animals evaluated seal responses to the would not be crowded with large (e.g., Holberton et al., 1996; Hood et al., disturbances. During the course of the 7- numbers of Steller sea lions, further 1998; Jessop et al., 2003; Krausman et weekend study, the authors recorded 14 eliminating the possibility of potentially al., 2004; Lankford et al., 2005). Stress human-related disturbances which were injurious mass movements of animals responses due to exposure to associated with stopped powerboats and attempting to vacate the haulout. Thus, anthropogenic sounds or other stressors kayaks. During these events, hauled out in this case, NMFS considers the risk of and their effects on marine mammals seals became noticeably active and injury, serious injury, or death to hauled have also been reviewed (Fair and moved into the water. The flushing out animals as extremely low. Becker, 2000; Romano et al., 2002b)

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and, more rarely, studied in wild The frequency range of the potentially NMFS expects that there will be no populations (e.g., Romano et al., 2002a). masking sound is important in long- or short-term physical impacts to For example, Rolland et al. (2012) found determining any potential behavioral pinniped habitat on NWSR. that noise reduction from reduced ship impacts. For example, low-frequency Estimated Take traffic in the Bay of Fundy was signals may have less effect on high- associated with decreased stress in frequency echolocation sounds This section provides an estimate of North Atlantic right whales. These and produced by odontocetes but are more the number of incidental takes proposed other studies lead to a reasonable likely to affect detection of mysticete for authorization through this expectation that some marine mammals communication calls and other rulemaking, which will inform both will experience physiological stress potentially important natural sounds NMFS’ consideration of ‘‘small responses upon exposure to acoustic such as those produced by surf and numbers’’ and the negligible impact stressors and that it is possible that some prey species. The masking of determination. some of these would be classified as communication signals by Harassment is the only type of take ‘‘distress.’’ In addition, any animal anthropogenic noise may be considered expected to result from these activities. experiencing TTS would likely also as a reduction in the communication Except with respect to certain activities experience stress responses (NRC, space of animals (e.g., Clark et al., 2009) not pertinent here, section 3(18) of the 2003), however distress is an unlikely and may result in energetic or other MMPA defines ‘‘harassment’’ as: Any result of this project based on costs as animals change their act of pursuit, torment, or annoyance observations of marine mammals during vocalization behavior (e.g., Miller et al., which (i) has the potential to injure a previous projects in the area. 2000; Foote et al., 2004; Parks et al., marine mammal or marine mammal 2007; Di Iorio and Clark, 2009; Holt et stock in the wild (Level A harassment); Auditory Masking al., 2009). Masking can be reduced in or (ii) has the potential to disturb a Sound can disrupt behavior through situations where the signal and noise marine mammal or marine mammal masking, or interfering with, an animal’s come from different directions stock in the wild by causing disruption ability to detect, recognize, or (Richardson et al., 1995), through of behavioral patterns, including, but discriminate between acoustic signals of amplitude modulation of the signal, or not limited to, migration, breathing, interest (e.g., those used for intraspecific through other compensatory behaviors nursing, breeding, feeding, or sheltering communication and social interactions, (Houser and Moore, 2014). Masking can (Level B harassment). Authorized takes would be by Level B prey detection, predator avoidance, be tested directly in captive species harassment only, in the form of navigation) (Richardson et al., 1995; (e.g., Erbe, 2008), but in wild disruption of behavioral patterns for Erbe et al., 2016). Masking occurs when populations it must be either modeled individual marine mammals resulting the receipt of a sound is interfered with or inferred from evidence of masking from exposure to helicopter operations by another coincident sound at similar compensation. There are few studies and lighthouse maintenance activities. frequencies and at similar or higher addressing real-world masking sounds Based on the nature of the activity, intensity, and may occur whether the likely to be experienced by marine Level A harassment is neither sound is natural (e.g., snapping shrimp, mammals in the wild (e.g., Branstetter et anticipated nor proposed to be wind, waves, precipitation) or al., 2013). Masking affects both senders and authorized. As discussed earlier, anthropogenic (e.g., shipping, aircraft, receivers of acoustic signals and can behavioral (Level B) harassment is sonar) in origin. The ability of a noise potentially have long-term chronic limited to movement and flushing, source to mask biologically important effects on marine mammals at the defined by the disturbance scale of sounds depends on the characteristics of population level as well as at the pinniped responses to in-air sources to both the noise source and the signal of individual level. All anthropogenic determine take (Table 2). Furthermore, interest (e.g., signal-to-noise ratio, sound sources, but especially chronic no mortality is anticipated or proposed temporal variability, direction), in and lower-frequency signals (e.g., from to be authorized for this activity. Below relation to each other and to an animal’s vessel traffic), contribute to elevated we describe how the take is estimated. hearing abilities (e.g., sensitivity, ambient sound levels, thus intensifying frequency range, critical ratios, masking. Marine Mammal Occurrence frequency discrimination, directional In this section we provide the discrimination, age or TTS hearing loss), Anticipated Effects on Marine Mammal information about the presence, density, and existing ambient noise and Habitat or group dynamics of marine mammals propagation conditions. The only direct habitat modification that will inform the take calculations. Under certain circumstances, marine associated with the proposed activity is The Society’s monitoring efforts mammals experiencing significant the restoration of the existing light reported zero marine mammals present masking could also be impaired from station structures. Indirect effects of the on NWSR, in 2010. Furthermore, maximizing their performance fitness in activities on nearby feeding or haulout operations were not conducted in the survival and reproduction. Therefore, habitat are not expected. Increased noise years 2013 through 2016; thus, when the coincident (masking) sound is levels are not likely to affect acoustic monitoring was not conducted. No visits man-made, it may be considered habitat or adversely affect marine occurred in 2020. Visits have occurred harassment when disrupting or altering mammal prey in the vicinity of the in all other years since 2010. critical behaviors. It is important to project area because source levels are Steller sea lions were first reported distinguish TTS and PTS, which persist low, transient, well away from the during restoration trips conducted in after the sound exposure, from masking, water, and do not readily transmit into April (9) and November (350, with a which occurs during the sound the water. The Society would remove all maximum of 155/day) of 2011 (St. exposure. Because masking (without waste, discarded materials and George Reef Lighthouse Preservation resulting in TS) is not associated with equipment from the island after each Society (SGRLPS) 2011). Zero abnormal physiological function, it is visit. Thus, NMFS does not expect that observations of Steller sea lions were not considered a physiological effect, the proposed activity would have any reported during the one 2012 restoration but rather a potential behavioral effect. effects on marine mammal habitat and trip and three 2017 trips conducted

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(SGRLPS 2012, 2018). Four trips were work from 2010 through 2019 (SGRLPS per year. This is an optimistic estimate conducted in 2018 (February, March, 2010; 2011; 2012; 2017; 2018; 2020). that far exceeds prior efforts, but given April, and November); only the The Society first reported 2 Pacific adequate funding there is the need for November session reported any harbor seals on site during the March extensive restoration work to the Station individuals (three) on site (SGRLPS 2012 restoration trip (SGRLPS 2012). so the Society requested consideration 2018). One restoration trip was Zero harbor seals were reported during of the additional days of work in the conducted in November 2019 and had the 2017, 2018, or 2019 work seasons take estimate. Therefore NMFS 22 Steller sea lions present (SGRLPS (SGRLPS 2017; 2018; 2020). estimates that approximately 10,850 2020). In the event of an emergency trip Take Calculation and Estimation Steller sea lions (calculated by to the lighthouse for repairs in summer, multiplying the maximum single-day or if deed restrictions are changed, more Here we describe how the information count of Steller sea lions that could be Steller sea lions may be present in June provided above is brought together to present (155) by 70 days of activities), and July (up to 350–400 animals based produce a quantitative take estimate. 11,200 California sea lions, 140 Pacific on CCR (2001)). The monitoring observations described harbor seals, and 70 Northern fur seals The maximum number of California above serve as the underpinnings of the could be potentially taken by Level B sea lions present per day (160) was take estimate calculation used to behavioral harassment annually over the observed during the November 2011 determine the actual number of marine trip. The April and November 2011 trip course of this rulemaking (Table 3). mammals that may be subject to take. NMFS bases these estimates of the maximums were 2 and 430 individuals, Take estimates for each species for respectively (SGRLPS 2011). Zero numbers of marine mammals that might which take would be authorized were be affected on consideration of the California sea lions were reported based on the following equation: during the March 2012 trip (SGRLPS number of marine mammals that could Take estimate per species = maximum 2012). In 2017, the Society reported 16 be on NWSR in a worst case scenario and zero California sea lions during number of observations/day during based on prior monitoring. Should deed March and April trips, and 16 during a prior monitoring * number of restrictions be altered to allow access November trip for a landing zone proposed operations days during summer months, numbers of inspection (SGRLPS 2017). Observations Based on the Society’s previous California sea lions and Steller’s sea for the 2018 season totaled 40 monitoring reports, the maximum lions could be somewhat higher during individuals among its four trips number of observations per day for each a couple of those months based on the (SGRLPS 2018). Eighteen California sea species is: Steller sea lions 155, data in CCR (2001). Given these lions were reported during the California sea lions 160, and Pacific increases are limited in duration, only a November 2019 trip with a maximum of harbor seals 2. No Northern fur seals fraction of the potential flight days 10 per day (SGRLPS 2020). Should deed have been seen in prior project could occur in summer, and the restrictions be altered to allow access monitoring but one was observed during conservative nature of the maximum during summer months, numbers could the survey work for this project by CCR daily counts relative to the average be somewhat higher based on the data (2001), so we use one for these observed animal counts from prior in CCR (2001). calculations. monitoring discussed above, we believe Northern fur seals have not been As discussed above, The Society is the proposed take estimates are observed during any of the Society’s proposing no more than 70 flight days adequately precautionary.

TABLE 3—PROPOSED ANNUAL LEVEL B HARASSMENT TAKE CALCULATIONS AND PERCENTAGE OF EACH STOCK AFFECTED

Maximum Days of Species number per proposed Proposed take Percent of 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 applicants for incidental take (1) The manner in which, and the authorizations to include information degree to which, the successful In order to promulgate regulations about the availability and feasibility implementation of the measure(s) is and issue LOAs under Section (economic and technological) of expected to reduce impacts to marine 101(a)(5)(A) of the MMPA, NMFS must equipment, methods, and manner of mammals, marine mammal species or set forth the permissible methods of conducting the activity or other means taking pursuant to such activity, and stocks, and their habitat. This considers of effecting the least practicable adverse other means of effecting the least the nature of the potential adverse impact upon the affected species or practicable impact on such species or impact being mitigated (likelihood, stocks and their habitat (50 CFR stock and its habitat, paying particular scope, range). It further considers the attention to rookeries, mating grounds, 216.104(a)(11)). likelihood that the measure will be and areas of similar significance, and on In evaluating how mitigation may or effective if implemented (probability of the availability of the species or stock may not be appropriate to ensure the accomplishing the mitigating result if for taking for certain subsistence uses least practicable adverse impact on implemented as planned), the (latter not applicable for this action). species or stocks and their habitat, as likelihood of effective implementation NMFS does not have a regulatory well as subsistence uses where (probability implemented as planned), definition for ‘‘least practicable adverse applicable, we carefully consider two and; impact.’’ NMFS regulations require primary factors:

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(2) The practicability of the measures locations as described in the application cumulative impacts from multiple for applicant implementation, which and Section 5 of any LOA. The Holder stressors. may consider such things as cost and must monitor the project area to the • How anticipated responses to impact on operations. maximum extent possible based on the stressors impact either: (1) Long-term The mitigation strategies described required number of PSOs, required fitness and survival of individual below largely follow those required and monitoring locations, and marine mammals; or (2) populations, successfully implemented under environmental conditions. For all species, or stocks. previous incidental take authorizations helicopter flights at least one PSO must • Effects on marine mammal habitat issued in association with this project. be used; and (e.g., marine mammal prey species, The following mitigation measures are • Monitoring must take place for all acoustic habitat, or other important proposed: take-offs and landings. physical components of marine • No more than six flight days (up to Based on our evaluation of the mammal habitat). two work trips) per month; applicant’s proposed measures, as well • Mitigation and monitoring • Avoid direct physical interaction as other measures considered by NMFS, effectiveness. with marine mammals during activity. If NMFS has preliminarily determined a marine mammal comes within 10 m of that the proposed mitigation measures Visual Monitoring such activity, operations must cease provide the means effecting the least • Monitoring must be conducted by until the animal leaves of its own practicable impact on the affected qualified, NMFS-approved PSOs, in accord; species or stocks and their habitat, accordance with the following: PSOs • Conduct training between paying particular attention to rookeries, must be independent and have no other construction supervisors and crews and mating grounds, and areas of similar assigned tasks during monitoring tourists and the marine mammal significance. periods. At least one PSO must have monitoring team and relevant Society prior experience performing the duties Proposed Monitoring and Reporting staff prior to the start of all visits and of a PSO. Other PSOs may substitute when new personnel join the work, so In order to issue an IHA for an other relevant experience, education that responsibilities, communication activity, Section 101(a)(5)(A) of the (degree in biological science or related procedures, monitoring protocols, and MMPA states that NMFS must set forth field), or training. PSOs resumes must operational procedures are clearly requirements pertaining to the be approved by NMFS prior to understood. Visitors to the Station will monitoring and reporting of such taking. beginning any activity subject to these be instructed to avoid unnecessary noise The MMPA implementing regulations at regulations. and not expose themselves visually to 50 CFR 216.104(a)(13) indicate that • PSOs must record all observations pinnipeds around the base of the requests for authorizations must include of marine mammals as described in lighthouse; the suggested means of accomplishing Section 5 of any LOA, regardless of • Halt loud outside activity upon the necessary monitoring and reporting distance from the activity. PSOs shall observation on NWSR of either a species that will result in increased knowledge document any behavioral reactions in for which incidental take is not of the species and of the level of taking concert with distance from the activity. authorized or a species for which or impacts on populations of marine PSOs must have the following incidental take has been authorized but mammals that are expected to be additional qualifications: the authorized number of takes has been present in the proposed action area. • Ability to conduct field met; Effective reporting is critical both to observations and collect data according • Keep the door to the lower platform compliance as well as ensuring that the to assigned protocols; closed and barricaded to all tourists and most value is obtained from the required • Experience or training in the field other personnel. The door will only be monitoring. identification of marine mammals, opened when necessary and at a time Monitoring and reporting including the identification of when no animals are present on the requirements prescribed by NMFS behaviors; lower platform; should contribute to improved • Sufficient training, orientation, or • Ensure that helicopter approach understanding of one or more of the experience with the construction patterns to the NWSR shall be such that following: operation to provide for personal safety the timing and techniques are least • Occurrence of marine mammal during observations; disturbing to marine mammals. To the species or stocks in the area in which • Writing skills sufficient to prepare a extent possible, the helicopter should take is anticipated (e.g., presence, report of observations including but not approach NWSR when the tide is too abundance, distribution, density). limited to the number and species of high for marine mammals to haul out on • Nature, scope, or context of likely marine mammals observed; dates and NWSR. Avoid rapid and direct marine mammal exposure to potential times when in-water construction approaches by the helicopter to the stressors/impacts (individual or activities were conducted; dates, times, station by approaching NWSR at a cumulative, acute or chronic), through and reason for implementation of relatively high altitude (e.g., 800–1,000 better understanding of: (1) Action or mitigation (or why mitigation was not ft; 244–305 m). Before the final environment (e.g., source implemented when required); and approach, the helicopter shall circle characterization, propagation, ambient marine mammal behavior; lower, and approach from an area where noise); (2) affected species (e.g., life • Ability to communicate orally, by the density of pinnipeds is the lowest. history, dive patterns); (3) co-occurrence radio or in person, with project If for any safety reasons (e.g., wind of marine mammal species with the personnel to provide real-time conditions or visibility) such helicopter action; or (4) biological or behavioral information on marine mammals approach and timing techniques cannot context of exposure (e.g., age, calving or observed in the area as necessary; be achieved, the Society must abort the feeding areas). • The Society must establish the restoration and maintenance session for • Individual marine mammal following monitoring locations. For the the day; responses (behavioral or physiological) first flight of the day a PSO with high • Employ a protected species to acoustic stressors (acute, chronic, or definition camera will be on the first observer (PSO) and establish monitoring cumulative), other stressors, or flight to the station. During all other

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takeoffs and landings a PSO will be • Upon each flight, the following updated location information if known stationed on the platform of the lantern information will be reported: Name of and applicable); room gallery or on the last departing PSO who sighted the animal(s) and PSO • Species identification (if known) or helicopter; location and activity at time of sighting; description of the animal(s) involved; • Aerial photo coverage of the island time of sighting; identification of the • Condition of the animal(s) will be completed by an observer using animal(s) (e.g., genus/species, lowest (including carcass condition if the a high definition camera. Photographs of possible taxonomic level, or animal is dead); all marine mammals hauled out on the unidentified), PSO confidence in • Observed behaviors of the island will be taken at an altitude identification, and the composition of animal(s), if alive; greater than 300 meters. Photographs of the group if there is a mix of species; • If available, photographs or video marine mammals present at the last distance and bearing of the nearest footage of the animal(s); and flight of the day will be taken from the marine mammal observed relative to the • General circumstances under which helicopter or from the lantern room activity for each flight; estimated the animal was discovered. gallery platform just before the last number of animals (min/max/best flight; and estimate); estimated number of animals Negligible Impact Analysis and • The Society and/or its designees by cohort (adults, juveniles, neonates, Determination must forward the photographs to a group composition, etc.); animal’s NMFS has defined negligible impact biologist capable of discerning marine closest point of approach to activity; as an impact resulting from the mammal species if one is not present on and description of any marine mammal specified activity that cannot be the trip. The Society must provide the behavioral observations (e.g., observed reasonably expected to, and is not data to NMFS in the form of a report behaviors such as feeding or traveling), reasonably likely to, adversely affect the with a data table, any other significant including an assessment of behavioral species or stock through effects on observations related to marine responses thought to have resulted from annual rates of recruitment or survival mammals, and a report of restoration the activity (e.g., no response or changes (50 CFR 216.103). A negligible impact activities. The Society must make in behavioral state such as ceasing finding is based on the lack of likely available the original photographs to feeding, changing direction, flushing) adverse effects on annual rates of NMFS or to other marine mammal using pinniped disturbance scale (Table recruitment or survival (i.e., population- experts for inspection and further 2). level effects). An estimate of the number • Number of marine mammals analysis. of takes alone is not enough information detected, by species. Reporting • Detailed information about any on which to base an impact implementation of any mitigation determination. In addition to A draft marine mammal monitoring triggered, a description of specific considering estimates of the number of report will be submitted to NMFS actions that ensued, and resulting marine mammals that might be ‘‘taken’’ within 90 days after the completion of changes in behavior of the animal(s), if through harassment, NMFS considers each activity period, or 60 days prior to any. other factors, such as the likely nature a requested date of issuance of any If no comments are received from of any responses (e.g., intensity, future LOAs for projects at the same NMFS within 30 days, the draft final duration), the context of any responses location, whichever comes first. For the report will constitute the final report. If (e.g., critical reproductive time or first year of the activities, at least, the comments are received, a final report location, migration), as well as effects reports will be submitted quarterly; addressing NMFS comments must be on habitat, and the likely effectiveness following submission of the first three submitted within 30 days after receipt of of the mitigation. We also assess the quarterly reports, NMFS will evaluate comments. number, intensity, and context of whether it is appropriate to modify estimated takes by evaluating this subsequent annual LOAs require annual Reporting Injured or Dead Marine information relative to population reports, based on whether the Mammals status. Consistent with the 1989 information provided in the first three In the event that personnel involved preamble for NMFS’s implementing quarterly reports adequately complies in the activities discover an injured or regulations (54 FR 40338; September 29, with the requirement. The report will dead marine mammal, the LOA-holder 1989), the impacts from other past and include an overall description of work must immediately cease the specified ongoing anthropogenic activities are completed, a narrative regarding marine activities and report the incident to the incorporated into this analysis via their mammal sightings, and associated PSO Office of Protected Resources (OPR) impacts on the environmental baseline data sheets. Specifically, the report must ([email protected]), (e.g., as reflected in the regulatory status include: NMFS and to West Coast Regional of the species, population size and • Dates and times (begin and end) of Stranding Coordinator as soon as growth rate where known, ongoing all marine mammal monitoring. feasible. If the death or injury was sources of human-caused mortality, or • Activities occurring during each clearly caused by the specified activity, ambient noise levels). daily observation period. the Society must immediately cease the Activities associated with the • PSO locations during marine specified activities until NMFS is able restoration, light maintenance and tour mammal monitoring. to review the circumstances of the projects, as described previously, have • Environmental conditions during incident and determine what, if any, the potential to disturb or displace monitoring periods (at beginning and additional measures are appropriate to marine mammals. Specifically, the end of PSO shift and whenever ensure compliance with the terms of the specified activities may result in take, in conditions change significantly), LOA and regulations. The LOA-holder the form of Level B harassment including Beaufort sea state and any must not resume their activities until (behavioral disturbance) from in-air other relevant weather conditions notified by NMFS. The report must sounds and visual disturbance. Potential including cloud cover, fog, sun glare, include the following information: takes could occur if individual marine and overall visibility to the horizon, and • Time, date, and location (latitude/ mammals are present nearby when estimated observable distance. longitude) of the first discovery (and activity is happening.

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No serious injury or mortality would • No important habitat areas have Unmitigable Adverse Impact Analysis be expected even in the absence of the been identified within the project area. and Determination • For all species, NWSR is a very proposed mitigation measures. For all There are no relevant subsistence uses small and peripheral part of their range. species, no Level A harassment is of the affected marine mammal stocks or anticipated given the nature of the • Monitoring reports from prior activities at the site have documented species implicated by this action. activities, i.e., much of the anticipated Therefore, NMFS has determined that activity would involve noises below little to no effect on individuals of the the total taking of affected species or thresholds and visual disturbance from same species impacted by the specified stocks would not have an unmitigable tens of meters away, and measures activities. adverse impact on the availability of designed to minimize the possibility of Based on the analysis contained such species or stocks for taking for injury. The potential for injury is small herein of the likely effects of the subsistence purposes. for pinnipeds, and is expected to be specified activity on marine mammals essentially eliminated through and their habitat, and taking into Adaptive Management implementation of the planned consideration the implementation of the proposed monitoring and mitigation The regulations governing the take of mitigation measures. marine mammals incidental to Society Effects on individuals that are taken measures, NMFS preliminarily finds lighthouse repair and tour operation by Level B harassment, on the basis of that the total marine mammal take from activities would contain an adaptive reports in the literature as well as the proposed activity will have a management component. monitoring from other similar activities, negligible impact on all affected marine will likely be limited to reactions such mammal species or stocks. The reporting requirements associated with this proposed rule are designed to as alerts or movements away from the Small Numbers lighthouse structure. Most likely, provide NMFS with monitoring data individuals will simply move away As noted above, only small numbers from the prior year(s) to allow from the sound source and be of incidental take may be authorized consideration of whether any changes temporarily displaced from the areas. under Sections 101(a)(5)(A) of the are appropriate. The use of adaptive Reporting from prior years of these MMPA for specified activities other management allows NMFS to consider activities has similarly reported no than military readiness activities. The new information from different sources apparently consequential behavioral MMPA does not define small numbers to determine (with input from the reactions or long-term effects on marine and so, in practice, where estimated Society regarding practicability) on an mammal populations as noted above. numbers are available, NMFS compares annual basis if mitigation or monitoring Repeated exposures of individuals to the number of individuals taken to the measures should be modified (including relatively low levels of sound and visual most appropriate estimation of additions or deletions). Mitigation disturbance outside of preferred habitat abundance of the relevant species or measures could be modified if new data areas are unlikely to significantly stock in our determination of whether suggests that such modifications would disrupt critical behaviors. Thus, even an authorization is limited to small have a reasonable likelihood of reducing repeated Level B harassment of some numbers of marine mammals. When the adverse effects to marine mammals and small subset of the overall stock is predicted number of individuals to be if the measures are practicable. unlikely to result in any significant taken is fewer than one third of the Additionally, monitoring or reporting realized decrease in viability for the species or stock abundance, the take is measures may be modified if affected individuals, and thus would considered to be of small numbers. appropriate and, in this case, the rule not result in any adverse impact to the Additionally, other qualitative factors specifies quarterly monitoring and stock as a whole. Level B harassment may be considered in the analysis, such reporting requirements for the first year, will be reduced to the level of least as the temporal or spatial scale of the which may subsequently be modified to practicable adverse impact through use activities. annual requirements, based on NMFS of mitigation measures described herein The amount of take NMFS proposes to evaluation of the first three reports. and, if sound and visual disturbance authorize is below one third of the The following are some of the produced by project activities is estimated stock abundance of all species possible sources of applicable data to be sufficiently disturbing, animals are (in fact, take of individuals is less than considered through the adaptive likely to simply avoid the area while the 10 percent of the abundance of all of the management process: (1) Results from activity is occurring. affected stocks except Steller sea lions, monitoring reports, as required by In combination, we believe that these see Table 3). This is likely a MMPA authorizations; (2) results from factors, as well as the available body of conservative estimate because they general marine mammal and sound evidence from other similar activities, assume all takes are of different research; and (3) any information which demonstrate that the potential effects of individual animals which is likely not reveals that marine mammals may have the specified activities will have only the case, especially within individual been taken in a manner, extent, or minor, short-term effects on individuals. trips. Many individuals seen within a number not authorized by these The specified activities are not expected single multi-day trip are likely to be the regulations or subsequent LOAs. same across consecutive days, but PSOs to impact rates of recruitment or Endangered Species Act (ESA) survival and will therefore not result in would count them as separate takes population-level impacts. across days. Section 7(a)(2) of the Endangered In summary and as described above, Based on the analysis contained Species Act of 1973 (ESA: 16 U.S.C. the following factors primarily support herein of the proposed activity 1531 et seq.) requires that each Federal our preliminary determination that the (including the proposed mitigation and agency insure that any action it impacts resulting from this activity are monitoring measures) and the authorizes, funds, or carries out is not not expected to adversely affect the anticipated take of marine mammals, likely to jeopardize the continued species or stock through effects on NMFS preliminarily finds that small existence of any endangered or annual rates of recruitment or survival: numbers of marine mammals will be threatened species or result in the • No mortality is anticipated or taken relative to the population size of destruction or adverse modification of authorized. the affected species or stocks. designated critical habitat. To ensure

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ESA compliance for the issuance of Dated: August 31, 2021. § 217.52 Permissible methods of taking. IHAs, NMFS consults internally Samuel D. Rauch III, Under LOAs issued pursuant to whenever we propose to authorize take Deputy Assistant Administrator for §§ 216.106 of this chapter and 217.56, for endangered or threatened species, in Regulatory Programs, National Marine the Holder of the LOA (hereinafter this case with the West Coast Regional Fisheries Service. ‘‘Society’’) may incidentally, but not Protected Resources Division Office. intentionally, take marine mammals For reasons set forth in the preamble, No incidental take of ESA-listed within the area described in § 217.50(b) 50 CFR part 217 is proposed to be species is proposed for authorization or by Level B harassment associated with amended as follows: expected to result from this activity. lighthouse repair and tour operation Therefore, NMFS has determined that PART 217—REGULATIONS activities, provided the activity is in formal consultation under section 7 of GOVERNING THE TAKE OF MARINE compliance with all terms, conditions, the ESA is not required for this action. MAMMALS INCIDENTAL TO and requirements of the regulations in this subpart and the appropriate LOA. Request for Information SPECIFIED ACTIVITES § 217.53 Prohibitions. NMFS requests interested persons to ■ 1. The authority citation for part 217 Except for taking authorized by a LOA submit comments, information, and continues to read as follows: suggestions concerning the Society’s issued under §§ 216.106 of this chapter request and the proposed regulations Authority: 16 U.S.C. 1361 et seq. and 217.56, it shall be unlawful for any (see ADDRESSES). All comments will be ■ 2. Add subpart F to part 217 to read person to do any of the following in reviewed and evaluated as we prepare a as follows: connection with the activities described final rule and make final determinations in § 217.50 may: Subpart F—Taking Marine Mammals (a) Violate, or fail to comply with, the on whether to issue the requested Incidental to Lighthouse Repair and Tour authorization. This notification and terms, conditions, and requirements of Operations at Northwest Seal Rock, this subpart or a LOA issued under referenced documents provide all California §§ 216.106 of this chapter and 217.56; environmental information relating to Sec. our proposed action for public review. (b) Take any marine mammal not 217.50 Specified activity and specified specified in such LOAs; Classification geographical region. (c) Take any marine mammal 217.51 Effective dates. Pursuant to the procedures 217.52 Permissible methods of taking. specified in such LOAs in any manner established to implement Executive 217.53 Prohibitions. other than as specified; (d) Take a marine mammal specified Order 12866, the Office of Management 217.54 Mitigation requirements. in such LOAs if NMFS determines such and Budget has determined that this 217.55 Requirements for monitoring and taking results in more than a negligible proposed rule is not significant. reporting. 217.56 Letters of Authorization. impact on the species or stocks of such Pursuant to section 605(b) of the 217.57 Renewals and modifications of marine mammal; or Regulatory Flexibility Act (RFA), the Letters of Authorization. (e) Take a marine mammal specified Chief Counsel for Regulation of the 217.58 [Reserved] in such LOAs if NMFS determines such Department of Commerce has certified 217.59 [Reserved] taking results in an unmitigable adverse to the Chief Counsel for Advocacy of the impact on the species or stock of such Small Business Administration that this Subpart F—Taking Marine Mammals Incidental to Lighthouse Repair and marine mammal for taking for proposed rule, if adopted, would not subsistence uses. have a significant economic impact on Tour Operations at Northwest Seal a substantial number of small entities. Rock, California § 217.54 Mitigation requirements. The Society, a 501(c)(3) non-profit § 217.50 Specified activity and specified When conducting the activities whose mission is to preserve the St. geographical region. identified in § 217.50(a), the mitigation George Reef lighthouse, is the sole entity measures contained in any LOA issued that would be subject to the (a) Regulations in this subpart apply under §§ 216.106 of this chapter and requirements in these proposed only to the St. George Reef Lighthouse 217.56 must be implemented. These regulations, and the Society is not a Preservation Society (Society) and those mitigation measures shall include but small governmental jurisdiction, small persons it authorizes or funds to are not limited to: organization, or small business, as conduct activities on its behalf for the (a) General conditions. (1) A copy of defined by the RFA. Because of this taking of marine mammals that occurs any issued LOA must be in the certification, a regulatory flexibility in the areas outlined in paragraph (b) of possession of the Society, supervisory analysis is not required and none has this section and that occurs incidental personnel, pilot, protected species been prepared. to lighthouse repair and tour operation observers (PSOs), and any other relevant This proposed rule contains a activities. designees of the Holder operating under collection-of-information requirement (b) The taking of marine mammals by the authority of this LOA at all times subject to the provisions of the the Society may be authorized in a that activities subject to this LOA are Paperwork Reduction Act. These Letter of Authorization (LOA) only if it being conducted. requirements have been approved by occurs within Pacific Ocean waters in (2) The Society shall conduct training OMB under control number 0648–0151 the vicinity of Northwest Seal Rock near between supervisors and crews and the and include applications for regulations, Crescent City, California. marine mammal monitoring team and subsequent LOAs, and reports. relevant Society staff prior to the start of § 217.51 Effective dates. all trips and when new personnel join List of Subjects in 50 CFR Part 217 Regulations in this subpart are the work, so that responsibilities, Exports, Fish, Imports, Indians, effective from [EFFECTIVE DATE OF communication procedures, monitoring Labeling, Marine mammals, Penalties, FINAL RULE] through [DATE 5 YEARS protocols, and operational procedures Reporting and recordkeeping AFTER EFFECTIVE DATE OF FINAL are clearly understood. Visitors to the requirements, Seafood, Transportation. RULE]. Station will be instructed to avoid

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unnecessary noise and not expose (4) The PSO must monitor the project the activity (e.g., no response or changes themselves visually to pinnipeds area to the maximum extent possible in behavioral state such as ceasing around the base of the lighthouse. based on the required monitoring feeding, changing direction, flushing, or (3) Avoid direct physical interaction locations and environmental conditions. breaching); with marine mammals during activity. If They must record all observations of (F) Number of marine mammals a marine mammal comes within 10 m of marine mammals as described in detected, by species; and such activity, operations must cease Section 5 of any LOA, regardless of (G) Detailed information about any until the animal leaves of its own distance from the activity. Monitoring implementation of any mitigation accord. must take place for all take-offs and triggered, a description of specific (4) Loud outside activity must be landings. actions that ensued, and resulting halted upon observation on Northwest changes in behavior of the animal(s), if Seal Rock (NWSR) of either a species for § 217.55 Requirements for monitoring and any. which incidental take is not authorized reporting. (2) The Society shall submit a or a species for which incidental take (a) PSOs shall document any comprehensive summary report to has been authorized but the authorized behavioral reactions in concert with NMFS not later than 90 days following number of takes has been met. distance from any project activity. the conclusion of marine mammal (5) No more than two restoration trips, (b) Reporting—(1) Reporting monitoring efforts described in this or 6 days of flight operations, are frequency. (i) The Society shall submit subpart. permitted per month. a quarterly summary report to NMFS (c) Reporting of injured or dead (b) Protocols. (1) The door to the not later than 90 days following the end marine mammals. (1) In the event that lower platform will remain closed and of each work quarter; after the first three personnel involved in the construction barricaded to all tourists and other quarterly submissions, NMFS will activities discover an injured or dead personnel. The door will only be evaluate whether it is appropriate to marine mammal, the LOA-holder must opened when necessary and at a time modify to annual reports, and modify immediately cease the specified when no animals are present on the future LOAs as appropriate to indicate activities and report the incident to the lower platform. annual reporting requirements if so. The Office of Protected Resources (OPR) (2) The pilot will ensure that Society shall provide a final report ([email protected]), helicopter approach patterns to the within 30 days following resolution of NMFS and to West Coast Regional NWSR shall be such that the timing and comments on each draft report. Stranding Coordinator as soon as techniques are least disturbing to (ii) These reports shall contain, at feasible. If the death or injury was marine mammals. To the extent minimum, the following: clearly caused by activities specified at possible, the helicopter should (A) Dates and times (begin and end) § 217.50, the Society must immediately approach NWSR when the tide is too of all marine mammal monitoring; cease the specified activities until high for marine mammals to haul out on (B) Activities occurring during each NMFS is able to review the NWSR. Avoid rapid and direct daily observation period; circumstances of the incident and approaches by the helicopter to the (C) PSO locations during marine determine what, if any, additional station by approaching NWSR at a mammal monitoring; measures are appropriate to ensure relatively high altitude (e.g., 800–1,000 (D) Environmental conditions during compliance with the terms of these ft; 244–305 m). Before the final monitoring periods (at beginning and regulations and LOAs. The LOA-holder approach, the helicopter shall circle end of PSO shift and whenever must not resume their activities until lower, and approach from an area where conditions change significantly), notified by NMFS. The report must the density of pinnipeds is the lowest. including Beaufort sea state and any include the following information: If for any safety reasons (e.g., wind other relevant weather conditions (i) Time, date, and location (latitude/ conditions or visibility) such helicopter including cloud cover, fog, sun glare, longitude) of the first discovery (and approach and timing techniques cannot and overall visibility to the horizon, and updated location information if known be achieved, the Society must abort the estimated observable distance; and applicable); (ii) Species identification (if known) restoration and maintenance session for (E) Upon each flight, the following information: Name of PSO who sighted or description of the animal(s) involved; the day. (iii) Condition of the animal(s) (3) Monitoring shall be conducted by the animal(s) and PSO location and (including carcass condition if the a trained PSO, who shall have no other activity at time of sighting; time of sighting; identification of the animal(s) animal is dead); assigned tasks during monitoring (iv) Observed behaviors of the periods. Trained PSOs shall be placed at (e.g., genus/species, lowest possible taxonomic level, or unidentified), PSO animal(s), if alive; the best vantage point(s) practicable to (v) If available, photographs or video monitor for marine mammals and confidence in identification, and the composition of the group if there is a footage of the animal(s); and implement mitigation procedures when (vi) General circumstances under mix of species; distance and bearing of applicable. The Society shall adhere to which the animal was discovered. each marine mammal observed relative the following additional PSO (2) [Reserved] qualifications: to the activity for each flight; estimated (i) Independent PSOs are required; number of animals (min/max/best § 217.56 Letters of Authorization. (ii) At least one PSO must have prior estimate); estimated number of animals (a) To incidentally take marine experience working as an observer; by cohort (adults, juveniles, neonates, mammals pursuant to these regulations, (iii) Other observers may substitute group composition, etc.); animal’s the Society must apply for and obtain an education (degree in biological science closest point of approach and estimated LOA. or related field) or training for time spent within the harassment zone; (b) An LOA, unless suspended or experience; and and description of any marine mammal revoked, may be effective for a period of (iv) The Society shall submit PSO behavioral observations (e.g., observed time not to exceed the expiration date resumes for approval by NMFS prior to behaviors such as feeding or traveling), of these regulations. beginning any activity subject to these including an assessment of behavioral (c) If an LOA expires prior to the regulations. responses thought to have resulted from expiration date of these regulations, the

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Society may apply for and obtain a (1) Adaptive management. NMFS may to the Atlantic Sea Scallop Fishery renewal of the LOA. modify (including augment) the existing Management Plan, incorporating the (d) In the event of projected changes mitigation, monitoring, or reporting Environmental Assessment and the to the activity or to mitigation and measures (after consulting with the Regulatory Flexibility Analysis, for monitoring measures required by an Society regarding the practicability of review by the Secretary of Commerce, LOA, the Society must apply for and the modifications) if doing so creates a and is requesting comments from the obtain a modification of the LOA as reasonable likelihood of more public. This action would allow for described in § 217.207. effectively accomplishing the goals of more controlled access to the scallop (e) The LOA shall set forth: the mitigation and monitoring set forth resource by the limited access and (1) Permissible methods of incidental in the preamble for these regulations. limited access general category fleets taking; (i) Possible sources of data that could and increase monitoring to support a (2) Means of effecting the least contribute to the decision to modify the growing directed scallop fishery in practicable adverse impact (i.e., mitigation, monitoring, or reporting Federal waters, including the Northern mitigation) on the species, its habitat, measures in an LOA: Gulf of Maine Management Area. These and on the availability of the species for (A) Results from the Society’s proposed management measures are subsistence uses; and monitoring from the previous year(s). intended to promote conservation of the (3) Requirements for monitoring and (B) Results from other marine scallop resource in the Northern Gulf of reporting. mammal and/or sound or disturbance Maine Management Area and to manage (f) Issuance of the LOA shall be based research or studies. on a determination that the level of total removals from the area by all (C) Any information that reveals fishery components. Amendment 21 taking will be consistent with the marine mammals may have been taken findings made for the total taking would also expand flexibility in the in a manner, extent or number not limited access general category allowable under these regulations. authorized by these regulations or (g) Notice of issuance or denial of an individual fishing quota fishery to subsequent LOAs. LOA shall be published in the Federal reduce impacts of potential decreases in (ii) If, through adaptive management, Register within 30 days of a ex-vessel price and increases in the modifications to the mitigation, determination. operating costs. monitoring, or reporting measures are DATES: Comments must be received on § 217.57 Renewals and modifications of substantial, NMFS will publish a notice or before November 8, 2021. Letters of Authorization. of proposed LOA in the Federal ADDRESSES: The Council has prepared a (a) An LOA issued under §§ 216.106 Register and solicit public comment. draft Environmental Assessment (EA) of this chapter and 217.206 for the (2) Emergencies. If NMFS determines for this action that describes the activity identified in § 217.200(a) shall that an emergency exists that poses a proposed measures in Amendment 21 to be renewed or modified upon request by significant risk to the well-being of the the Atlantic Sea Scallop Fishery the applicant, provided that: species or stocks of marine mammals (1) The proposed specified activity specified in LOAs issued pursuant to Management Plan (FMP) and other and mitigation, monitoring, and §§ 216.106 of this chapter and 217.206, considered alternatives and analyzes the reporting measures, as well as the an LOA may be modified without prior impacts of the proposed measures and anticipated impacts, are the same as notice or opportunity for public alternatives. The Council submitted a those described and analyzed for these comment. Notice would be published in draft of the amendment to NMFS that regulations (excluding changes made the Federal Register within 30 days of includes the draft EA, a description of pursuant to the adaptive management the action. the Council’s preferred alternatives, the provision in paragraph (c)(1) of this Council’s rationale for selecting each section); and §§ 217.58–217.59 [Reserved] alternative, and a Regulatory Impact (2) NMFS determines that the Review (RIR). Copies of supporting [FR Doc. 2021–19124 Filed 9–7–21; 8:45 am] documents used by the Council, mitigation, monitoring, and reporting BILLING CODE 3510–22–P measures required by the previous LOA including the EA and RIR, are available under these regulations were from: Thomas A. Nies, Executive implemented. DEPARTMENT OF COMMERCE Director, New England Fishery (b) For LOA modification or renewal Management Council, 50 Water Street, requests by the applicant that include National Oceanic and Atmospheric Newburyport, MA 01950 and accessible changes to the activity or the mitigation, Administration via the internet in documents available monitoring, or reporting (excluding at: https://www.nefmc.org/library/ changes made pursuant to the adaptive 50 CFR Part 648 amendment-21. management provision in paragraph You may submit comments, identified (c)(1) of this section) that do not change RIN 0648–BK68 by NOAA–NMFS–2021–0065, by: • Electronic Submission: Submit all the findings made for the regulations or Fisheries of the Northeastern United electronic public comments via the result in no more than a minor change States; Amendment 21 to the Atlantic Federal e-Rulemaking Portal. Go to in the total estimated number of takes Sea Scallop Fishery Management Plan (or distribution by species or years), www.regulations.gov and enter NOAA– NMFS may publish a notice of proposed AGENCY: National Marine Fisheries NMFS–2021–0065 in the Search box. LOA in the Federal Register, including Service (NMFS), National Oceanic and Click the ‘‘Comment’’ icon, complete the associated analysis of the change, Atmospheric Administration (NOAA), the required fields, and enter or attach and solicit public comment before Commerce. your comments. issuing the LOA. ACTION: Announcement of availability of Instructions: Comments sent by any (c) An LOA issued under §§ 216.106 amendment; request for comments. other method or received after the end of this chapter and 217.206 for the of the comment period, may not be activity identified in § 217.200(a) may SUMMARY: NMFS announces that the considered by NMFS. All comments be modified by NMFS under the New England Fishery Management received are a part of the public record following circumstances: Council has submitted Amendment 21 and will generally be posted for public

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