[Federal Register Volume 75, Number 46 (Wednesday, March 10, 2010)]
[Notices]
[Pages 11121-11129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5012]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XU31


Incidental Takes of Marine Mammals During Specified Activities; 
Replacement and Repair of Fur Seal Research Observation Towers and 
Walkways on St. Paul Island, Alaska

AGENCY:  National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION:  Notice; proposed Incidental Harassment Authorization; request 
for comments.

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SUMMARY:  NMFS has received an application from the NMFS, Alaska Region 
(NMFS AKR) for an Incidental Harassment Authorization (IHA) to take 
small numbers of marine mammals, by Level B harassment, incidental to 
conducting replacement and repair of northern fur seal research 
observation towers and walkways on St. Paul Island,

[[Page 11122]]

Alaska, from April to June and December, 2010. NMFS has reviewed the 
application, including all supporting documents, and determined that it 
is adequate and complete. Pursuant to the Marine Mammal Protection Act 
(MMPA), NMFS is requesting comments on its proposal to issue an IHA to 
NMFS AKR to take, by Level B harassment only, marine mammals incidental 
to specified activities within the specified geographic region.

DATES:  Comments and information must be received no later than April 
9, 2010.

ADDRESSES: Comments on the application should be addressed to P. 
Michael Payne, Chief, Permits, Conservation and Education Division, 
Office of Protected Resources, National Marine Fisheries Service, 1315 
East-West Highway, Silver Spring, MD 20910-3225. The mailbox address 
for providing email comments is <a href="/cdn-cgi/l/email-protection#346466051a0402000c196c610705745a5b55551a535b42"><span class="__cf_email__" data-cfemail="752527445b4543414d582d204644351b1a14145b121a03">[email protected]</span></a>. NMFS is not 
responsible for e-mail comments sent to addresses other than the one 
provided here. Comments sent via e-mail, including all attachments, 
must not exceed a 10-megabyte file size.
    All comments received are a part of the public record and will 
generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm without change. All Personal Identifying Information 
(for example, name, address, etc.) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    A copy of the application containing a list of the references used 
in this document may be obtained by writing to the address specified 
above, telephoning the contact listed below (see FOR FURTHER 
INFORMATION CONTACT), or visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this 
notice may be viewed, by appointment, during regular business hours, at 
the aforementioned address.

FOR FURTHER INFORMATION CONTACT:  Howard Goldstein or Jolie Harrison, 
Office of Protected Resources, NMFS, 301-713-2289.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
directs the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region if certain findings are 
made and either regulations are issued or, if the taking is limited to 
harassment, a notice of a proposed authorization is provided to the 
public for review.
    An authorization to take small numbers of marine mammals by 
harassment shall be granted if NMFS finds that the taking will have a 
negligible impact on the species or stock(s) and will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses (where relevant), and if the permissible 
methods of taking and requirements pertaining to the mitigation, 
monitoring and reporting of such takings are set forth to achieve the 
least practicable adverse impact. NMFS has defined ``negligible 
impact'' in 50 CFR 216.103 as ''...an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
Except with respect to certain activities not pertinent here, the MMPA 
defines ``harassment'' as:
    any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the wild 
[Level A harassment]; or (ii) has the potential to disturb a marine 
mammal or marine mammal stock in the wild by causing disruption of 
behavioral patterns, including, but not limited to, migration, 
breathing, nursing, breeding, feeding, or sheltering [Level B 
harassment].
16 USC 1362(18).
    Section 101(a)(5)(D) establishes a 45-day time limit for NMFS 
review of an application followed by a 30-day public notice and comment 
period for any proposed authorizations for the incidental harassment of 
marine mammals. Within 45 days of the close of the comment period, NMFS 
must either issue or deny the authorization.

Summary of Request

    On February 2, 2010, NMFS received a letter from NMFS AKR 
requesting an IHA to authorize the take, by Level B harassment, of 
small numbers of northern fur seals (Callorhinus ursinus) incidental to 
conducting replacement and repair operations for fur seal research 
observation towers and walkways on St. Paul Island, Alaska.
    NMFS is currently contracting demolition, repair, and select 
replacement of northern fur seal observation towers and walkways. The 
original timing restrictions for this project would have allowed human 
presence and work on the rookeries only until April 20, 2010, which 
would have made the incidental take of northern fur seals unlikely. 
However, the proposed construction season has been extended to the 
first week of June in order to provide flexibility in the construction 
schedule to complete the replacement and repair of the observation 
towers and walkways during a single winter and spring season. NMFS AKR 
has identified a need to authorize the incidental taking of northern 
fur seals hauling out on St. Paul Island during their intermittent and 
early season presence through early June.
    The purpose of the replacement and repair operations is to provide 
safe access for fur seal researchers into the dense breeding 
aggregations of northern fur seals. Safe access for researchers is 
required because northern fur seals exhibit strong site fidelity, 
tenacity, and high levels of aggression within dense aggregations. In 
addition, non-territorial fur seals are sensitive to human presence 
within and near breeding areas as a result of visual, auditory, and 
olfactory stimuli. The observation towers and walkways provide elevated 
access to observe and count breeding and resting fur seals, reducing 
stimuli that influence fur seal behavior. Additional information on the 
construction project is contained below and in the IHA application, 
which is available upon request (see ADDRESSES).

Description of the Proposed Specified Activities

    NMFS AKR is currently contracting demolition, repair and select 
replacement of northern fur seal research infrastructure on St. Paul 
Island, Alaska. The objective of this work is to repair 47 fur seal 
observation towers and their associated walkways within fur seal 
breeding areas around the island. Prior to the replacement phase of the 
project, old towers and walkways will need to be demolished. The 
replacement work will occur at the Reef rookery (i.e., breeding area), 
if funding is available in future years it will occur at other sites. 
Seven observation towers will be replaced at the Reef rookery, and the 
long term plan is to replace and repair the remaining 40 towers at the 
other rookeries around the island (depending on funding).
    Construction crews will be using hand carpentry techniques, 
possibly supplemented with small gasoline generators, and pneumatic 
tools. Most construction sites are inaccessible to

[[Page 11123]]

vehicles with the exception of all-terrain vehicles and equipment or 
snow machines, if conditions allow. Crews will be primarily accessing 
the immediate worksites by foot. The proposed action includes summer 
and fall construction restrictions to protect northern fur seals from 
disturbances during the breeding and pup rearing period. Repair and 
replacement activities will include human presence within the fur seal 
breeding areas and use of all-terrain and four-wheel drive vehicles to 
transport personnel, equipment, and materials. Construction crews will 
use hand and power tools, gas-powered generators, and air compressors. 
Construction crews will need to demolish and remove old towers and 
walkways prior to replacement of new structures. Large boulders or 
uneven terrain will be altered to facilitate construction or access to 
areas where new foundations are to be placed.
    NMFS AKR biologists will begin daily marine mammal monitoring for 
the presence of fur seals on April 20, 2010 and record the number and 
response of northern fur seals to the proposed actions until June 7, 
2010. Construction activities will cease and demobilization will begin 
if the incidental taking of northern fur seals is predicted to exceed 
that authorized in the IHA prior to June 1, 2010, otherwise all 
activities will be completed on the rookeries by June 7, 2010.
    Additional details regarding the proposed action can be found in 
the IHA application and Draft Environmental Assessment (EA).

Proposed Dates, Duration, and Location of Specified Activity

    The research walkways and towers will be repaired and replaced on 
St. Paul Island, Alaska from January 4, 2010, through June 7, 2010, and 
again in December, 2010 if necessary and authorized. The proposed dates 
of the authorization will be from April 20 to June 7, 2010, and 
December 1 to 31, 2010, which is during the presence of fur seals at 
the location of the specified activity. See below for information 
regarding when northern fur seals arrive (i.e., when incidental take 
starts occurring).

Description of Marine Mammals and Habitat Affected in the Proposed 
Activity Area

    Several marine mammal species are known to or could occur in the 
Bering Sea off the Alaska coastline (see Table 1 below). The northern 
fur seal is the only species of marine mammal managed by NMFS that may 
be present in the project area during the construction project. 
Northern fur seals are not listed as threatened or endangered under the 
Endangered Species Act (ESA), but are designated as depleted under the 
MMPA. Other marine mammal species managed by NMFS that inhabit the 
Bering Sea, but are not anticipated to occur in the Bering Sea project 
area during the replacement and repair activities, are listed in Table 
1 (below). Polar bears and Pacific walrus also occur in the Bering Sea, 
but they are not addressed further, since they are managed under the 
jurisdiction of the U.S. Fish and Wildlife Service (USFWS).
    The marine mammals that occur in the proposed action area belong to 
four taxonomic groups: mysticetes (baleen whales), odontocetes (toothed 
whales), pinnipeds (seals, sea lions, and walrus), and carnivores 
(polar bears). Table 1 below outlines the marine mammal species and 
their habitat in the region of the proposed activity area.

 Table 1. The Habitat and Conservation Status of Marine Mammals Inhabiting the Proposed Sstudy Area in the U.S.
                                            Bering Sea off of Alaska.
----------------------------------------------------------------------------------------------------------------
                         Species                                     Habitat                     ESA\1\
----------------------------------------------------------------------------------------------------------------
Mysticetes                                                       Pack ice and coastal                        EN
Bowhead whale (Balaena mysticetus)
----------------------------------------------------------------------------------------------------------------
North Pacific right whale (Eubalaena japonica)                                       Coastal and shelf       EN
----------------------------------------------------------------------------------------------------------------
Gray whale (Eschrichtius robustus)                                                   Coastal and lagoons     NL
----------------------------------------------------------------------------------------------------------------
Humpback whale (Megaptera novaeangliae)                   Mainly nearshore waters and                        EN
                                                                                banks
----------------------------------------------------------------------------------------------------------------
Minke whale (Balaenoptera acutorostrata)                            Shelf and coastal                        NL
----------------------------------------------------------------------------------------------------------------
Sei whale (Balaenoptera borealis)                              Primarily offshore and                        EN
                                                                              pelagic
----------------------------------------------------------------------------------------------------------------
Fin whale (Balaenoptera physalus)                               Slope, mostly pelagic                        EN
----------------------------------------------------------------------------------------------------------------
Blue whale (Balaenoptera musculus)                                Pelagic and coastal                        EN
----------------------------------------------------------------------------------------------------------------
Odontocetes                                                        Widely distributed                        NL
Killer whale (Orcinus orca)
----------------------------------------------------------------------------------------------------------------
Beluga whale (Delphinapterus leucas)                                                 Coastal, ice edges      NL
----------------------------------------------------------------------------------------------------------------
Baird's beaked whale (Berardius bairdii)                                      Pelagic                        NL
----------------------------------------------------------------------------------------------------------------
Stejneger's beaked whale (Mesoplodon stejnegeri)                       Likely pelagic                        NL
----------------------------------------------------------------------------------------------------------------
Harbor porpoise (Phocoena phocoena)                                                  Coastal, inland waters  NL
----------------------------------------------------------------------------------------------------------------
Dall's porpoise (Phocoenoides dalli)                           Slope, offshore waters                        NL
----------------------------------------------------------------------------------------------------------------
Pinnipeds                                                   Pelagic, breeds coastally                        NL
Northern fur seal (Callorhinus ursinus)
----------------------------------------------------------------------------------------------------------------

[[Page 11124]]

 
Steller sea lion (Eumetopias jubatus)                     Mostly pelagic, high relief                        EN
----------------------------------------------------------------------------------------------------------------
Bearded seal (Erignathus barbatus)                                                Ice                        NL
----------------------------------------------------------------------------------------------------------------
Spotted seal (Phoca largha)                                                  Pack ice      Proposed T (Southern
                                                                                                           DPS)
                                                                                         NL (Okhotsk and Bering
                                                                                                          DPSs)
----------------------------------------------------------------------------------------------------------------
Ringed seal (Phoca hispida)                                     Landfast and pack ice                        NL
----------------------------------------------------------------------------------------------------------------
Ribbon seal (Histriophoca fasciata)                             Landfast and pack ice                        NL
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal (Phoca vitulina richardsi)                                       Coastal                 NL
----------------------------------------------------------------------------------------------------------------
Pacific Walrus (Odobenus rosmarus divergens)                             Ice, coastal                        NL
----------------------------------------------------------------------------------------------------------------
Carnivores                                                               Ice, coastal                         T
Polar bear (Ursus maritimus marinus)
----------------------------------------------------------------------------------------------------------------
\1\ U.S. Endangered Species Act: EN = Endangered, T = Threatened, NL = Not listed

    Not all of these species (listed in Table 1 above) are expected to 
be harassed from the described proposed activities. Because the 
activities are occurring on land, only northern fur seals are expected 
to be disturbed by the project.
    Northern fur seals (Callorhinus ursinus) are likely to be found 
within the activity area. Northern fur seals are seasonal residents on 
St. Paul Island, and may be found on the breeding and resting areas 
around the island from late April until early December.
    Adult males are the most likely group of northern fur seals to be 
encountered on St. Paul during the spring of 2010. By June 1, 2010, 
NMFS estimates about 50 percent of the maximum count of adult males 
will be on all the St. Paul Island breeding areas of 4,976 adult male 
northern fur seals. NMFS' estimate includes territorial males, and non-
territorial males.
    In addition, NMFS estimates intermittent arrival and departure of 
few sub-adult males during the winter and spring. Most sub-adult male 
seals begin arriving during the last week of May resulting in a few 
tens to a hundred seals at any of the hauling grounds on St. Paul 
Island (Gentry, 1981)

Northern Fur Seal

    Northern fur seals occur from southern California north to the 
Bering Sea and west to the Okhotsk Sea and Honshu Island, Japan. During 
the summer breeding season, most of the worldwide population is found 
on the Pribilof Islands in the southern Bering Sea, with the remaining 
animals on rookeries in Russia, on Bogoslof Island in the southern 
Bering Sea, and on San Miguel Island off Southern California (Lander 
and Kajimura, 1982; NMFS, 1993). This species may temporarily haul-out 
onto land at other sites in Alaska, British Columbia, and on islets 
along the coast of the continental U.S., but generally do so outside of 
the breeding season (Fiscus, 1983).
    Northern fur seals are colonial breeding pinnipeds that exhibit 
strong site fidelity and currently breed on a few islands in the North 
Pacific Ocean and Bering Sea. Adult male fur seals, about three to five 
times larger than females, arrive at rookeries prior to the late June/
July breeding season and defend territories within the rookery. 
Beginning in mid-June the rookeries are occupied by breeding females, 
who within a few days give birth and begin nursing their single pup. 
Lactating females cycle between on shore attendance and at-sea foraging 
trips during the nursing period (July to November).
    NMFS designated the Pribilof Islands northern fur seal population 
depleted on June 17, 1988 (53 FR 17888) because it declined to less 
than 50 percent of levels observed in the late 1950s and no compelling 
evidence suggested that the northern fur seal carrying capacity of the 
Bering Sea had changed substantially since the late 1950s. Towell and 
Ream (2008) report that the 2008 pup production estimate for St. Paul 
Island was 6.6 percent less than the estimate in 2006. The 2008 pup 
production estimate for St. George Island was 6.4 percent greater than 
the estimate in 2006. Since the depleted designation in 1988 pup 
production on St. Paul Island has declined by 40 percent (171,610 pups 
born to 102,674) and on St. George Island by 27 percent (24,280 pups 
born to 18,160).
    Male northern fur seals arrive on all of their breeding islands in 
reverse proportion to their age. That is, the oldest seals arrive first 
followed by progressively younger seals. Thus adult males nine years 
old and older arrive as early as late April and persist intermittently 
at first and then permanently (for territorial males) for the duration 
of their tenure on the island which generally ranges for about 30 to 60 
days (Gentry, 1998). All non-territorial males (i.e., younger than 7 
years old) arrive on the island and cycle between fasting and resting 
on shore and foraging trips at sea from June through November (Sterling 
and Ream, 2004). Fur seals can be observed on and near St. Paul Island 
in nearly every month of the year, but the probability of encountering 
a hauled-out fur seal in any month from December until April is highly 
uncertain and near zero for any particular day.
    Two separate stocks of northern fur seals are recognized within 
U.S. waters, an Eastern Pacific stock and a San Miguel Island stock. 
The most recent estimate for the number of fur seals in the Eastern 
Pacific stock, based on pup counts from 2002 on Sea Lion Rock, from 
2006 on the Pribilof Islands, and from 2005 on Bogoslof Island is 
665,500 animals. The minimum population estimate is 654,437 animals; 
this estimate includes the first pup counts on Bogoslof Island in more 
than 5 years and does not indicate population increase.
    NMFS anticipates that no northern fur seals will be injured, 
seriously injured,

[[Page 11125]]

or killed during the replacement and repair activities with 
incorporation of the described proposed mitigation and monitoring 
measures. Because of the proposed mitigation and monitoring 
requirements discussed in this document, NMFS and NMFS AKR believes it 
is highly unlikely that the proposed activities would have the 
potential to injure (Level A harassment), or cause serious injury, or 
mortality of northern fur seals; however, they may temporarily leave or 
avoid the area where the proposed construction activities may occur, 
thus resulting in Level B harassment. NMFS AKR has requested the 
incidental take of 579 adult male northern fur seals (9,785 times) and 
1,000 sub-adult northern male fur seals (one time) or 1,579 total 
individual northern fur seals for the proposed action. The requested 
take is approximately 0.24 percent of the estimated minimum (654,437) 
Eastern Pacific stock. NMFS has determined that the number of requested 
incidental takes for the proposed action is small relative to 
population estimates of northern fur seals.
    Further information on the biology and local distribution of these 
species and others in the region can be found in NMFS AKR's 
application, which is available upon request (see ADDRESSES), and the 
NMFS Marine Mammal Stock Assessment Reports, which are available online 
at: http://www.nmfs.noaa.gov/pr/species/.

Potential Effects of Activities on Marine Mammals

    All anticipated takes likely to occur incidental to the proposed 
construction activities would be Level B harassment (as defined in 50 
CFR 216.3), involving short-term, temporary changes in behavior. 
Incidental harassment may result if hauled-out animals move away from 
the field crew personnel. For the purpose of estimating the number of 
pinnipeds taken by these activities, NMFS assumes that pinnipeds that 
move or change the direction of their movement in response to the 
presence of field crew personnel are taken by Level B harassment. 
Animals that merely raise their head and look at the field crew 
personnel are not considered to have been taken.
    Some adult seals may depart, but NMFS AKR anticipates most will 
alter their activity budgets due to stimuli related construction. NMFS 
used the 2006 adult male counts because they were available and 
partitioned by section, and because the continued decline of northern 
fur seals provided us with a conservative (i.e., biased high) estimate. 
NMFS estimates about five percent of the adult males, less than one 
percent of sub-adult males, and no females or pups on St. Paul Island 
will be exposed to the proposed construction activities. NMFS 
anticipates sub-adult seals will be displaced from their resting areas 
if encountered during construction. The NMFS AKR anticipates there will 
be no significant impact on the species or stock of northern fur seals 
from the proposed construction activity on the rookeries prior to and 
after the breeding season.
    Given the considerations noted above, and the small proportion of 
the total northern fur seal population potentially disturbed by the 
proposed construction activity, the effects of operations are expected 
to be limited to short-term and localized displacement (behavioral 
changes) within the work sites involving relatively small numbers of 
seals. The effects of the proposed construction operations fall within 
the MMPA definition of Level B harassment. The impacts of the proposed 
construction activities are expected to be negligible for the northern 
fur seal stock and populations.

Potential Effects of Activities on Marine Mammal Habitat

    The NMFS AKR does not anticipate any negative impact on northern 
fur seal habitat from the demolition, repair, and replacement of 
observation towers and walkways on St. Paul Island. These structures 
have been located in nearly the same areas for at least 50 years at 
some locations and northern fur seals continue to use the habitat 
around the structures. The demolition and removal of condemned 
structures will restore some small areas of fur seal habitat. The 
replacement and repair of observation towers and walkways will likely 
result in no net change or modification to marine mammal habitat. 
Consequently, construction activities are anticipated to have a 
negligible impact on the local northern fur seal population and their 
habitat.

Number of Marine Mammals Expected to be Incidentally Taken by the 
Proposed Activity

    The NMFS AKR is requesting take, by Level B harassment only, of 
male northern fur seals. The method of taking will be from a 
combination of human presence, scent, and airborne construction noise.

               Table 2. Summary of incidental taking by harassment of northern fur seals during construction activities on St. Paul Island
                                   Prior to April           Week 1           Week 2           Week 3           Week 4           week 5            Total
                                         25, 2010
--------------------------------------------------------------------------------------------------------------------------------------------------------
Adult Male Northern Fur Seal                    0    8 seals taken   115 seals taken  232 seals taken  463 seals taken  579 seals taken  579 seals taken
                                                          58 times        811 times      1,621 times      3,242 times      4,053 times      9,785 times
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sub-adult Male Fur Seal            50 seals taken   50 seals taken   150 seals taken  200 seals taken  250 seals taken  300 seals taken     1,000 seals
                                             once             once             once             once             once             once       taken once
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Most adult male northern fur seals will be incidentally taken by 
harassment multiple times. NMFS AKR anticipates approximately 230 of 
the 579 adult males will be taken once. These single takes by 
harassment are of the estimated non-territorial adult males predicted 
to be present and will likely depart due to the noise, presence or 
scent of the construction activities on the rookery. NMFS estimates the 
remaining 349 adult male northern fur seals are territorial at Reef 
rookery on St. Paul Island during the five week period beginning late 
April, 2010 and will not depart. NMFS predicts these territorial males 
may change the time spent in certain behaviors due to the presence, 
noise, or scent due to construction activities on the rookery.
    The number of incidental takes by harassment was derived from 2006 
adult male counts from the National Marine Mammal Laboratory (NMML) 
from Reef rookery (Fowler et al., 2006) and was

[[Page 11126]]

corrected based on the timing of arrival curve from Gentry (1998). 
Rookeries are divided into sections allowing easier tabulation of 
counts and the maximum counts in each section have been divided by the 
percentage estimated on land for each week in Tables 3a to 3e (below). 
NMFS summed the daily take estimates into weekly bins (Table 3a to 3e) 
because few animals were predicted on land in late April and early May, 
but those few animals would likely to be taken repeatedly during the 
week and every subsequent week. Table 3 shows fractional daily taking 
within each section, summed for the week, and rounded up into Table 2. 
NMFS estimates an additional 1,000 sub-adult male seals may be 
encountered during the construction or repair activities at Reef or 
other rookeries (Table 2).

Table 3a. Estimated daily take of adult male northern fur seals on Reef rookery for the last week of April. Estimate based on one percent of the maximum
                                                                    2006 bull counts.
--------------------------------------------------------------------------------------------------------------------------------------------------------
               Class Bull                                                                      Section
-----------------------------------------------------------------------------------------------------------------------------------------------------------
                                              1         2         3         4         5         6         7         8         9        10        11
------------------------------------------------------------------------------------------------------------------------------------------------------ ----
2                                            0.13      0.26      0.27       0.1      0.22      0.21      0.05      0.27      0.22      0.11      0.03
--------------------------------------------------------------------------------------------------------------------------------------------------------
3                                            0.48      0.81      0.63      0.46      0.67       0.7      0.01      0.66      0.37      0.28      0.04
--------------------------------------------------------------------------------------------------------------------------------------------------------
5                                            0.08      0.27       0.4      0.47      0.31      0.13      0.15      0.31      0.34      0.72      1.42
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Taking by Harassment Week 1: 57.9
--------------------------------------------------------------------------------------------------------------------------------------------------------


 Table 3b. Estimated daily take of adult male northern fur seals on Reef rookery for the first week of May. Estimate based on 10 percent of the maximum
                                                                    2006 bull counts.
--------------------------------------------------------------------------------------------------------------------------------------------------------
               Class Bull                                                                      Section
-----------------------------------------------------------------------------------------------------------------------------------------------------------
                                              1         2         3         4         5         6         7         8         9        10        11
------------------------------------------------------------------------------------------------------------------------------------------------------ ----
2                                             1.3       2.6       2.7         1       2.2       2.1       0.5       2.7       2.2       1.1       0.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
3                                             4.8       8.1       6.3       4.6       6.7         7       0.1       6.6       3.7       2.8       0.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
5                                             0.8       2.7         4       4.7       3.1       1.3       1.5       3.1       3.4       7.2      14.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Taking by Harassment Week 2: 810.6
--------------------------------------------------------------------------------------------------------------------------------------------------------


 Table 3c. Estimated daily take of adult male northern fur seals on Reef rookery for the second week of May. Estimate based on 20 percent of the maximum
                                                                    2006 bull counts.
--------------------------------------------------------------------------------------------------------------------------------------------------------
               Class Bull                                                                      Section
-----------------------------------------------------------------------------------------------------------------------------------------------------------
                                              1         2         3         4         5         6         7         8         9        10        11
------------------------------------------------------------------------------------------------------------------------------------------------------ ----
2                                             2.6       5.2       5.4         2       4.4       4.2         1       5.4       4.4       2.2       0.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
3                                             9.6      16.2      12.6       9.2      13.4        14       0.2      13.2       7.4       5.6       0.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
5                                             1.6       5.4         8       9.4       6.2       2.6         3       6.2       6.8      14.4     28.42
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Taking by Harassment Week 3: 1621.2
--------------------------------------------------------------------------------------------------------------------------------------------------------


 Table 3d. Estimated daily take of adult male northern fur seals on Reef rookery for the third week of May. Estimate based on 40 percent of the maximum
                                                                    2006 bull counts.
--------------------------------------------------------------------------------------------------------------------------------------------------------
               Class Bull                                                                      Section
-----------------------------------------------------------------------------------------------------------------------------------------------------------
                                              1         2         3         4         5         6         7         8         9        10        11
------------------------------------------------------------------------------------------------------------------------------------------------------ ----
2                                             5.2      10.4      10.8         4       8.8       8.4         2      10.8       8.8       4.4       1.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
3                                            19.2      32.4      25.2      18.4      26.8        28       0.4      26.4      14.8      11.2       1.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
5                                             3.2      10.8        16      18.8      12.4       5.2         6      12.4      13.6      28.8      56.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Taking by Harassment Week 4:
 3242.4
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 11127]]


  Table 3e. Estimated daily take of adult male northern fur seals on Reef rookery for the last week of May. Estimate based on 50 percent of the maximum
                                                                    2006 bull counts.
--------------------------------------------------------------------------------------------------------------------------------------------------------
               Class Bull                                                                      Section
-----------------------------------------------------------------------------------------------------------------------------------------------------------
                                              1         2         3         4         5         6         7         8         9        10        11
------------------------------------------------------------------------------------------------------------------------------------------------------ ----
2                                             6.5        13      13.5         5        11      10.5       2.5      13.5        11       5.5       1.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
3                                              24      40.5      31.5        23      33.5        35       0.5        33      18.5        14         2
--------------------------------------------------------------------------------------------------------------------------------------------------------
5                                               4      13.5        20      23.5      15.5       6.5       7.5      15.5        17        36        71
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Taking by Harassment Week 5: 4053
--------------------------------------------------------------------------------------------------------------------------------------------------------

    NMFS and NMFS AKR estimate that the incidental ``take by 
harassment'' could be up to 579 adult male northern fur seals taken 
9,785 times and 1,000 sub-adult male northern fur seals taken once 
during the proposed action.

Proposed Mitigation

    In order to issue an Incidental Take Authorization under Section 
101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods 
of taking pursuant to such activity, and other means of effecting the 
least practicable adverse impact on such species or stock and its 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance, and on the availability of such species 
or stock for taking for certain subsistence uses.
    Northern fur seals are the only marine mammal species managed by 
NMFS expected to be present in the project area during the planned 
construction activities. The construction season has been chosen based 
on the minimum likelihood of encountering breeding and nursing northern 
fur seals. The amount of work and weather conditions during the winter 
season necessitates providing some contingency arrangements for work to 
be completed when few if any fur seals are found on land. In addition, 
the outlying periods requested are prior to the arrival and after the 
departure of the most sensitive fur seals (i.e., adult females and 
unweaned pups). Gentry (1998) experimented with complete displacement 
in early June of territorial males from their terrestrial sites. He 
found that over 80 percent of adult males returned with in seven hours 
to their original territory site with less aggression than required to 
originally secure the site. Thus territorial adult males are highly 
resistant to disturbance at the time of year NMFS AKR is requesting 
authorization for incidental harassment. Some individual territorial 
males were so resistant to harassment that it required four to six 
people with poles and noisemakers to move them from their sites.
    Thus, the combination of a winter and spring construction season 
along with incidental harassment of small numbers of adult and sub-
adult male northern fur seals will minimize the potential for adverse 
impacts to the population and habitat. The habitat is further protected 
because the ground is frozen and resistant to erosion and degradation 
due to vehicle traffic. In addition to the mitigation described above, 
NMFS AKR will also limit field personnel to approaching sites 
cautiously, choosing a route that minimizes the potential for 
disturbance of pinnipeds; and after each site visit, the site will be 
vacated as soon as possible so that it can be re-occupied by pinnipeds 
that may have been disturbed. The implementation of a monitoring and 
mitigation program is expected by NMFS to achieve the least practicable 
adverse impact upon the affected species or stock.

Proposed Monitoring and Reporting

    In order to issue an ITA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for IHAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present.
    NMFS AKR will begin marine mammal monitoring at Reef, Gorbatch, and 
Ardiguen breeding areas to identify and count northern fur seals on 
land, their response to the presence and absence of construction 
activities and the timing of arrival beginning the last week of April. 
In addition to counts of northern fur seals monitoring will also record 
the type and duration of construction activities at each site where 
northern fur seals are identified to evaluate the construction actions 
potential contribution to the responses observed. Gorbatch and Ardiguen 
breeding areas will provide control areas with no construction 
activities to compare the timing of arrival and response of male 
northern fur seals at Reef. NMFS AKR will consider before-after/
control-impact (see Underwood, 1994) study design in the final 
monitoring plan, method and analysis. NMFS AKR will have monitors check 
the site every morning before the arrival of field crew personnel for 
seal presence and provide the best route. In addition, they would be 
able to complete a ``before'' count that could provide a baseline for 
estimating incidental take.
    Information recorded by observers will include: species counts, 
life history stage (e.g., adult, sub-adult, pup, etc.) numbers of 
observed disturbances (e.g., flushed into the water; moving more than 1 
m [3.3 ft], but not into the water; becoming alert and moving, but do 
not move more than 1 m; and changing the direction of current 
movement), descriptions of the disturbance behaviors and responses 
during construction activities, closest point of approach to field crew 
personnel, as well as the date, time, and weather conditions. 
Observations of stampeding, other unusual behaviors, numbers, or 
distributions of pinnipeds at St. Paul Island will be reported to NMFS' 
NMML so that any potential follow-up observations can be conducted by 
the appropriate personnel. Weather observations should be recorded 
during activities and observations as they have strong influence on the 
presence/absence and behavior of pinnipeds and propagation of human 
scent. In addition, any chance observations of tag-bearing pinnipeds 
(including carcasses) as well as any rare or unusual species of marine 
mammals will be reported to NMFS.
    If at any time injury, serious injury, or death of any marine 
mammal occurs that may be a result of the proposed

[[Page 11128]]

construction activities, NMFS AKR will suspend construction activities 
and contact NMFS immediately to determine how best to proceed to ensure 
that another injury or death does not occur and to ensure that the 
applicant remains in compliance with the MMPA.
    Any takes of marine mammals other than those authorized by the IHA, 
as well as any injuries or deaths of marine mammals, will be reported 
to the Alaska Regional Administrator and NMFS Office of Protected 
Resources, within 24 hours. NMFS AKR will submit a draft report to NMFS 
within 90 days of completing the replacement and repair activities. The 
monitoring report would contain a summary of information gathered 
pursuant to the monitoring and mitigation requirements set forth in the 
IHA, including detailed descriptions of observations of any marine 
mammal, by species, number, age class, and sex, whenever possible, that 
is sighted in the vicinity of the proposed project area; description of 
the animal's observed behaviors, and the activities occurring at the 
time. The location and time of each animal sighting will also be 
included. A final report must be submitted to the Regional 
Administrator and Chief of the Permits, Conservation, and Education 
Division within 30 days after receiving comments from NMFS on the draft 
final report. If no comments are received from NMFS, the draft final 
report will be considered to be the final report.

Encouraging and Coordinating Research

    Coordination and collaboration with Tribal ECO will be accomplished 
to partner with and potentially utilize local sentinels currently 
implementing a long-term monitoring program on St. Paul Island. Dr. 
Paul Wade at the NMML has conducted work at this site related to 
offshore observations of killer whales, and NMFS AKR will coordinate 
with Dr. Wade if necessary. Northern fur seal researchers at the NMML 
and North Pacific Universities Marine Mammal Consortium do not begin 
their work until the arrival of adult females in late June, but NMFS 
AKR will contact the Principal Investigators to ensure their plans have 
not changed and whether their research may overlap with this project.

Negligible Impact and Small Numbers Analysis and Determination

    The regulations at CFR 216.103 states that ``negligible impact is 
an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    Impacts from the proposed activities on northern fur seals and 
their habitat are expected to be temporary and occur to a small, 
localized population of marine mammals. The effects on the habitat from 
the proposed construction activities are not expected to have an effect 
on recruitment or survival rates. Due to the limited duration, and 
monitoring and mitigation measures described above, which include 
seasonal restrictions, takes will not occur during times of 
significance for marine mammals. The estimated incidental ``take by 
harassment'' of 579 adult male and 1,000 sub-adult male (1,579 total 
individuals) northern fur seals during the proposed action is 
approximately 0.24 percent of the estimated minimum (654,437 
individuals) population of the Eastern Pacific stock.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, NMFS preliminarily finds that NMFS AKR's proposed activities 
would result in the incidental take of small numbers of marine mammals, 
by Level B harassment only, and that the total taking from the 
construction activities would have a negligible impact on the affected 
species or stocks of marine mammals.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    Under the MMPA, NMFS must determine that an activity would not have 
an unmitigable adverse impact on the subsistence needs for marine 
mammals. While this includes usage of both cetaceans and pinnipeds, the 
primary impact by construction activities is expected to be impacts 
from replacement and repair of fur seal research observation towers and 
walkways on northern fur seals. In 50 CFR 216.103, NMFS has defined 
unmitigable adverse impact as:
    An impact resulting from the specified activity: (1) that is likely 
to reduce the availability of the species to a level insufficient for a 
harvest to meet subsistence needs by: (i) causing the marine mammals to 
abandon or avoid hunting areas, (ii) directly displacing subsistence 
users, or (iii) placing physical barriers between the marine mammals 
and the subsistence hunters; and (2) that cannot be sufficiently 
mitigated by other measures to increase the availability of marine 
mammals to allow subsistence needs to be met.
    Northern fur seals are not allowed to be harvested on land by 
Alaska Natives outside the harvest season described at 50 CFR 216.72. 
And 50 CFR 216.72(c)(1) states that ``no fur seal may be taken on the 
Pribilof Islands before June 23 of each year.'' Therefore there will be 
no impact on subsistence use of northern fur seals. Steller sea lion 
subsistence hunting occurs during the winter and spring on the Reef 
Peninsula. Steller sea lion subsistence hunting does not occur at the 
tower and walkway sites on Reef Rookery. Hunting effort is primarily 
located at Gorbatch and Ardiguen Rookeries as well as the bluffs along 
the east shore to the north of Reef Rookery. Other sea lion hunting 
areas are not typically associated with fur seal towers and walkways 
and therefore would not be affected.
    NMFS AKR has discussed the potential overlap between the 
construction season and location with subsistence hunting with the 
Tribal Government of St. Paul Island's Ecosystem Conservation Office 
(Tribal ECO) staff. The NMFS AKR has ongoing communication with Steller 
sea lion hunters through the Tribal Government of St. Paul Island. As 
part of the cooperative management agreement between NMFS and the 
Tribal Government of St. Paul under section 119 of the MMPA, NMFS 
regularly communicates agency project plans and subsistence needs and 
activities. Most subsistence activities occur during the summer per the 
subsistence harvest regulations at 50 CFR 216 subpart F. Annual reports 
submitted to NMFS of subsistence marine mammal harvests indicate most 
hunting occurs at Northeast Point. Winter subsistence harvests occur at 
many locations surrounding St. Paul Island and are not concentrated at 
any locations where tower or walkway work would be conducted.
    The number of individual northern fur seals likely to be impacted 
by construction operations is expected to be relatively low. With the 
proposed monitoring and mitigation measures described above, which 
include seasonal restrictions, the construction operations are not 
expected to cause seals to abandon/avoid subsistence hunting areas, 
directly displace subsistence users, or place physical barriers between 
the marine mammals and the subsistence hunters. Effects on most 
individual seals are expected to be limited to localized and temporary 
displacement (Level B harassment). The taking by harassment is not 
expected to result in an unmitigable adverse impact on the availability 
of such species for taking for subsistence uses.

[[Page 11129]]

Endangered Species Act (ESA)

    For the reasons already described in this Federal Register Notice, 
NMFS has determined that the described proposed construction activities 
and the accompanying IHA are not anticipated to have the potential to 
adversely affect species under NMFS jurisdiction and protected by the 
ESA. Consequently, NMFS has determined that a Section 7 consultation is 
not required. The northern fur seal, which is the only species of 
marine mammal under NMFS jurisdiction likely to occur in the proposed 
action area, is not listed under the ESA.

National Environmental Policy Act (NEPA)

    With its complete application, NMFS AKR prepared a draft final 
Environmental Assessment for Issuance of an Incidental Harassment 
Authorization for Replacement and Repair of Northern Fur Seal 
Observation Towers and Walkways on St. Paul Island, Alaska, which 
analyzed the direct, indirect and cumulative environmental impacts of 
the proposed specified activities on marine mammals including those 
listed as threatened or endangered under the ESA. Prior to making a 
final decision on the IHA application, NMFS will either prepare an 
independent EA, or after review and evaluation of NMFS AKR EA for 
consistency with regulations published by the Council on Environmental 
Quality (CEQ) and NOAA Administrative Order 216-6, Environmental Review 
Procedures for Implementing NEPA, adopt the NMFS AKR EA and make a 
decision of whether or not to issue a Finding of No Significant Impact 
(FONSI). A copy of the draft final EA will be available upon request 
(see ADDRESSES).

Preliminary Determinations

    Based on NMFS AKR's application, as well as the analysis contained 
herein, NMFS has preliminarily determined that the impact of the 
described replacement and repair operations will result, at most, in a 
temporary modification in behavior by small numbers of northern fur 
seals. The effect of the proposed construction activities is expected 
to be limited to short-term and localized behavioral changes.
    Due to the infrequency, short time-frame, and localized nature of 
these activities, the number of marine mammals, relative to the 
population size, potentially taken by harassment is expected to be 
small. In addition, no take by injury (Level A harassment), serious 
injury, and/or death is anticipated or authorized, and take by Level B 
harassment will be at the lowest level practicable due to incorporation 
of the proposed monitoring and mitigation measures mentioned previously 
in this document. NMFS has further preliminarily determined that the 
anticipated takes will have a negligible impact on the affected species 
or stock of marine mammals. Also, the proposed construction project is 
not expected to result in an unmitigable adverse impact on subsistence 
uses of this species.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to NMFS AKR for the harassment of small numbers (based on 
populations of the species and stock) of northern fur seals incidental 
to construction operations on St. Paul Island, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: March 2, 2010.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2010-5012 Filed 3-9-10; 8:45 am]
BILLING CODE 3510-22-S


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