22484 Federal Register / Vol. 87, No. 73 / Friday, April 15, 2022 / Rules and Regulations 

■ 5. Revise § 158.2070 to read as 

follows: 

§ 158.2070 Biochemical pesticides product 

performance data requirements. 

(a) General. Product performance data 

must be developed for all biochemical 

pesticides. Each applicant must ensure 

through testing that the product is 

efficacious when used in accordance 

with label directions and commonly 

accepted pest control practices. The 

Agency may require, on a case-by-case 

basis, submission of product 

performance data for any pesticide 

product registered or proposed for 

registration or amendment. 

(b) Product performance data for each 

product that bears a claim against an 

invertebrate pest that is covered by 

subpart R of this part. The product 

performance data requirements and 

performance standards of subpart R of 

this part apply to biochemical products 

covered by this subpart. Product 

performance data must be submitted 

with any application for registration or 

amended registration. However, data 

requirements and the performance 

standards that determine the 

acceptability of data may be waived or 

modified on a case-by-case basis 

pursuant to the waiver provisions in 

§ 158.45 and modification provisions in 

§ 158.1707. 

(c) Product performance data for each 

product that bears a public health pest 

claim, excluding those covered under 

paragraph (b). Product performance 

data must be submitted with any 

application for registration or amended 

registration, if the product bears a claim 

to control public health pests, such as 

pest microorganisms infectious to 

humans in any area of the inanimate 

environment, or a claim to control 

vertebrates, including but not limited to, 

rodents, birds, bats, canids, and skunks. 

■ 6. Revise § 158.2160 to read as 

follows: 

§ 158.2160 Microbial pesticides product 

performance data requirements. 

(a) General. Product performance data 

must be developed for all microbial 

pesticides. Each applicant must ensure 

through testing that the product is 

efficacious when used in accordance 

with label directions and commonly 

accepted pest control practices. The 

Agency may require, on a case-by-case 

basis, submission of product 

performance data for any pesticide 

product registered or proposed for 

registration or amendment. 

(b) Product performance data for each 

product that bears a claim against an 

invertebrate pest that is covered by 

subpart R of this part. The product 

performance data requirements and the 

performance standards of subpart R of 

this part apply to microbial products 

covered by this subpart. Product 

performance data must be submitted 

with any application for registration or 

amended registration. However, data 

requirements and the performance 

standards that determine the 

acceptability of data may be modified 

on a case-by-case basis pursuant to the 

waiver provisions in § 158.45 and the 

provisions in § 158.1707. 

(c) Product performance data for each 

product that bears a public health pest 

claim, excluding those covered under 

paragraph (b). Product performance 

data must be submitted with any 

application for registration or amended 

registration, if the product bears a claim 

to control public health pests, such as 

pest microorganisms infectious to 

humans in any area of the inanimate 

environment, or a claim to control 

vertebrates, including but not limited to, 

rodents, birds, bats, canids, and skunks. 

■ 7. In § 158.2200, revise paragraph (b) 

to read as follows: 

§ 158.2200 Applicability. 

* * * * * 

(b) A product that bears both 

antimicrobial and non-antimicrobial 

uses or claims is subject to the data 

requirements for pesticides in subparts 

C through O, R, and U or V of this part 

with respect to its non-antimicrobial 

uses and claims, and to the 

requirements of this subpart with 

respect to its antimicrobial uses and 

claims. 

* * * * * 

[FR Doc. 2022–07963 Filed 4–14–22; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 220407–0086] 

RIN 0648–BJ87 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to Lighthouse 

Repair and Tour Operations at 

Northwest Seal Rock, California 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule; notification of 

issuance. 

SUMMARY: NMFS Office of Protected 

Resources, upon request from the St. 

George Reef Lighthouse Preservation 

Society (Society), hereby issues 

regulations to govern the unintentional 

taking of marine mammals incidental to 

conducting aircraft operations, 

lighthouse renovation, light 

maintenance activities, and tour 

operations on the St. George Reef 

Lighthouse Station (Station) on 

Northwest Seal Rock (NWSR) over the 

course of five years (2022–2027). These 

regulations, which allow for the 

issuance of Letters of Authorization 

(LOA) for the incidental take of marine 

mammals during the described activities 

and specified timeframes, prescribe the 

permissible methods of taking and other 

means of effecting the least practicable 

adverse impact on marine mammal 

species or stocks and their habitat, as 

well as requirements pertaining to the 

monitoring and reporting of such taking. 

We are also issuing a Letter of 

Authorization to cover the first year of 

these activities. 

DATES: Effective from May 15, 2022 

through May 14, 2027. 

FOR FURTHER INFORMATION CONTACT: 

Amy Fowler, Office of Protected 

Resources, NMFS, (301) 427–8401. 

Electronic copies of the application and 

supporting documents, as well as a list 

of the references cited in this document, 

may be obtained online at: https://

www.fisheries.noaa.gov/permit/ 

incidental-take-authorizations-undermarine-mammal-protection-act. In case 

of problems accessing these documents, 

please call the contact listed above. 

SUPPLEMENTARY INFORMATION: 

Purpose and Need for Regulatory 

Action 

This final rule establishes a 

framework under the authority of the 

MMPA (16 U.S.C. 1361 et seq.) to allow 

for the authorization of take of marine 

mammals incidental to the Society 

conducting aircraft operations, 

lighthouse renovation, light 

maintenance activities, and tour 

operations on the Station on NWSR 

approximately 8 miles (12.9 km) 

northwest of Crescent City, CA. 

We received an application from the 

Society requesting 5-year regulations 

and authorization to take multiple 

species of marine mammals. Take 

would occur by Level B harassment 

incidental to acoustic and visual 

disturbance of pinnipeds during 

helicopter operations, lighthouse repair, 

and tour operations. Please see 

Background section below for 

definitions of harassment. 


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Legal Authority for the Proposed Action 

Section 101(a)(5)(A) of the MMPA (16 

U.S.C. 1371(a)(5)(A)) directs the 

Secretary of Commerce to allow, upon 

request, the incidental, but not 

intentional taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region for up to 5 years if, 

after notice and public comment, the 

agency makes certain findings and 

issues regulations that set forth 

permissible methods of taking pursuant 

to that activity and other means of 

effecting the ‘‘least practicable adverse 

impact’’ on the affected species or 

stocks and their habitat (see the 

discussion below in the Mitigation 

section), as well as monitoring and 

reporting requirements. Section 

101(a)(5)(A) of the MMPA and the 

implementing regulations at 50 CFR part 

216, subpart I provide the legal basis for 

issuing this rule containing 5-year 

regulations, and for any subsequent 

Letters of Authorization (LOAs). As 

directed by this legal authority, this rule 

contains mitigation, monitoring, and 

reporting requirements. 

Summary of Major Provisions Within 

the Regulations in This Final Rule 

Following is a summary of the major 

provisions of the regulations in this 

final rule regarding the Society’s 

activities. These measures include: 

• Required implementation of 

mitigation to minimize impact to 

pinnipeds and avoid disruption to 

dependent pups, including several 

measures to approach haulouts 

cautiously to minimize disturbance, 

especially when pups are present. 

• Required monitoring of the project 

areas to detect and record the presence 

of marine mammals before initiating 

work. 

Background 

The MMPA prohibits the ‘‘take’’ of 

marine mammals, with certain 

exceptions. Sections 101(a)(5)(A) of the 

MMPA (16 U.S.C. 1361 et seq.) direct 

the Secretary of Commerce (as delegated 

to NMFS) to allow, upon request, the 

incidental, but not intentional, taking of 

small numbers of marine mammals by 

U.S. citizens who engage in a specified 

activity (other than commercial fishing) 

within a specified geographical region if 

certain findings are made, regulations 

are issued, and notice is provided to the 

public. 

Authorization for incidental takings 

shall be granted if NMFS finds that the 

taking will have a negligible impact on 

the species or stock(s) and will not have 

an unmitigable adverse impact on the 

availability of the species or stock(s) for 

taking for subsistence uses (where 

relevant). Further, NMFS must prescribe 

the permissible methods of taking and 

other ‘‘means of effecting the least 

practicable adverse impact’’ on the 

affected species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of the species or stocks for 

taking for certain subsistence uses 

(referred to in shorthand as 

‘‘mitigation’’); and requirements 

pertaining to the mitigation, monitoring 

and reporting of the takings are set forth. 

NMFS has defined ‘‘negligible 

impact’’ in 50 CFR 216.103 as an impact 

resulting from the specified activity that 

cannot be reasonably expected to, and is 

not reasonably likely to, adversely affect 

the species or stock through effects on 

annual rates of recruitment or survival. 

The MMPA states that the term ‘‘take’’ 

means to harass, hunt, capture, or kill, 

or attempt to harass, hunt, capture, or 

kill any marine mammal. 

Except with respect to certain 

activities not pertinent here, the MMPA 

defines ‘‘harassment’’ as: Any act of 

pursuit, torment, or annoyance which (i) 

has the potential to injure a marine 

mammal or marine mammal stock in the 

wild (Level A harassment); or (ii) has 

the potential to disturb a marine 

mammal or marine mammal stock in the 

wild by causing disruption of behavioral 

patterns, including, but not limited to, 

migration, breathing, nursing, breeding, 

feeding, or sheltering (Level B 

harassment). 

Summary of Request 

On March 23, 2020, NMFS received a 

request from the Society for a proposed 

rule and LOAs to take marine mammals 

incidental to lighthouse maintenance 

and preservation activities at NWSR, 

offshore of Crescent City, CA. The 

application was deemed adequate and 

complete on April 16, 2020. The 

Society’s request is for take of a small 

number of California sea lions 

(Zalophus californianus), harbor seals 

(Phoca vitulina), Steller sea lions 

(Eumetopias jubatus), and northern fur 

seals (Callorhinus ursinus) by Level B 

harassment only. Neither the Society 

nor NMFS expects serious injury or 

mortality to result from this activity. On 

June 9, 2020 (85 FR 35268), we 

published a notice of receipt of the 

Society’s application in the Federal 

Register, requesting comments and 

information related to the request for 30 

days. We received no comments. After 

publication of the notice of receipt, the 

Society reevaluated their application 

and decided to seek changes to their 

deed restriction, so requested that this 

action be paused. Revised applications 

were submitted on September 2, 2020, 

December 9, 2020, and a final revised 

application was submitted on August 6, 

2021, which was deemed adequate and 

complete. On September 8, 2021 NMFS 

issued a proposed rule in the Federal 

Register (86 FR 50304) soliciting public 

comments for 30 days. All public 

comments were considered in 

developing this final rule, and are 

discussed below in the Comments and 

Responses section. 

NMFS previously issued nine 1-year 

Incidental Harassment Authorizations 

(IHAs) for similar work (75 FR 4774, 

January 29, 2010; 76 FR 10564, February 

25, 2011; 77 FR 8811, February 15, 

2012; 78 FR 71576, November 29, 2013; 

79 FR 6179, February 3, 2014; 81 FR 

9440, February 25, 2016; 82 FR 11005, 

February 17, 2017; 83 FR 19254, May 2, 

2018; and 84 FR 15598, April 16, 2019). 

Generally speaking, the Society 

complied with the requirements (e.g., 

mitigation, monitoring, and reporting) of 

the previous IHAs. However, 

misunderstandings in past 

implementation have resulted in 

missing or incorrectly recorded 

monitoring data, which compelled 

NMFS to require more frequent 

reporting in the first year (at least) of 

this rule to ensure appropriate 

monitoring and reporting 

implementation in the future. 

Information regarding their monitoring 

results may be found in the Potential 

Effects of Specified Activities on Marine 

Mammals and their Habitat and 

Estimated Take sections. 

Comments and Responses 

We received comments from 5 private 

citizens on the proposed rule. 

Comment: Three of the comments 

were from students who largely 

summarized various aspects of the 

incidental take authorization process 

and support issuance of the incidental 

take authorization. Ryan Kowalski 

comments that ‘‘the proposed rule is 

justified and properly authorized.’’ 

Chelsea Rasmussen agrees with this 

proposed rule and notes the extensive 

citations and prior authorizations and 

suggests the data shows ‘‘a limited 

potential for the requested work to 

cause any kind of long term disturbance 

of the present species of marine 

mammal.’’ Negative effects of not 

allowing the project to go forward are 

also discussed. Benjamin Short believes 

the Society ‘‘should be able to carry out 

their maintenance tasks to the 

lighthouse’’ since the Society has ‘‘done 

its due diligence to negate any adverse 


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22486 Federal Register / Vol. 87, No. 73 / Friday, April 15, 2022 / Rules and Regulations 

impact their work will have on the 

pinnipeds present.’’ He points to ‘‘a 

clear and concise mitigation plan’’ and 

‘‘very comprehensive monitoring and 

reporting measures.’’ 

Response: NMFS appreciates the 

commenters’ thoughtful responses. 

Comment: Jean Public commented 

that the seals were at the site first and 

the authorization should not be issued. 

Response: NMFS appreciates this 

comment. However, the MMPA does not 

permit us to deny an incidental 

harassment authorization because a 

species existed in a location before a 

proposed activity. As described herein, 

the requirements for issuance of MMPA 

incidental take regulations for this 

activity have been satisfied. 

Comment: Tarin Schalow also 

disagrees ‘‘with the decision to grant a 

5-year authorization to the Society.’’ 

The commenter is concerned the 

potential shift to year-round activity ‘‘on 

a more consistent basis may have more 

than a negligible impact on the 

pinnipeds.’’ The adaptive management 

provisions are acknowledged, but the 

commenter argues for unspecified 

additional protections ‘‘in case the 

pinniped stock of the area does become 

impacted more than a negligibly.’’ The 

commenter is also concerned about the 

‘‘misunderstandings in past 

implementation’’ of the Society’s prior 

IHAs and argues we should not grant a 

five-year authorization until the Society 

is able to demonstrate proper 

implementation and adherence to 

requirements. 

Response: We appreciate this 

comment but disagree that year-round 

activity may have more than a negligible 

impact on the marine mammals. We 

analyzed the effects of allowing yearround activity in the proposed rule, and 

the commenter provides no new 

information to revise that analysis. As 

the commenter notes, the proposed 

authorization includes an adaptive 

management provision that would allow 

us to modify the terms and conditions 

of the authorization should new 

information come to light on the effect 

of the activity on marine mammals. In 

addition, we note we regularly authorize 

year-round construction and other 

activities in the region that also do not 

cause more than negligible impacts on 

pinnipeds. We also note that, at this 

time, the Society has been unable to 

modify the terms of their deed, so the 

current work window restrictions of the 

deed will remain in place for the time 

being. 

We share the commenter’s concerns 

about the ‘‘misunderstandings in past 

implementation’’ of the Society prior 

IHAs. This is why we have initially 

increased the frequency of reporting for 

the Society to quarterly instead of our 

more typical yearly reporting 

requirement. This is also why the initial 

LOA we are issuing is only valid for 

1-year, rather than for the entirety of the 

possible 5 years. We have also been 

engaged in more extensive than normal 

planning with the Society with regards 

to their monitoring and reporting plans 

and preparations before issuing this 

final rule and initial LOA to ensure that 

implementation and compliance will be 

successful. We will reevaluate the 

Society’s implementation and 

compliance in accordance with the 

terms of this final rule and the one-year 

LOA before issuing additional LOAs. 

Changes From Proposed to Final Rule 

The duration of effectiveness for the 

regulations in this final rule is five 

years, as envisioned in the proposed 

rule, although this final rule is effective 

from May 15, 2022, through May 14, 

2027, rather than from 2021–2026, as 

generally envisioned in the proposed 

rule. Additionally, NMFS has removed 

a mitigation requirement from the 

proposed rule that required the door to 

the lower platform of the lighthouse 

station to remain closed at all times. 

This requirement was not practicable for 

the Society, as the open door is the only 

source of light in the lower room of the 

station, and the daylight is necessary for 

work crews to conduct their restoration 

activities. NMFS has also specified the 

amount of time that the Society must 

monitor for marine mammals, and the 

location from which the Society must 

monitor, before and after each 

helicopter takeoff and landing. Finally, 

NMFS has clarified the required 

assessment of behavioral responses that 

the Society must include in their 

monitoring report(s) to eliminate 

irrelevant behaviors. 

Description of Specified Activity 

Overview 

The St. George Reef Lighthouse 

Station was built on NWSR in 1892 and 

is listed in the National Register of 

Historic Places. Covering much of the 

islet’s surface, the structure consists of 

a 14.5 meter (m) high (48 foot (ft)) ovalshaped concrete base (the caisson) that 

holds much of the equipment and 

infrastructure for the lighthouse tower, 

which sits on the top of one end of the 

base. The square tower consists of 

hundreds of granite blocks topped with 

a cast iron lantern room reaching 45.7 

m (150 ft) above sea level. An 

observation gallery platform surrounds 

the lantern room and provides a 360- 

degree view to the caisson and rocks 

below. 

The purpose of the project is to 

conduct annual maintenance of the 

Station’s optical light system, 

emergency maintenance in the event of 

equipment failure, restoration activities, 

and lighthouse tours. Because NWSR 

has no safe landing area for boats, the 

Society accesses the Station via 

helicopter. Restoration work sessions 

can occur over 3-day weekends or 

longer one to two week sessions. The 

following specific aspects of the 

proposed activities would likely result 

in the take of marine mammals: 

Acoustic and visual stimuli from (1) 

helicopter landings and takeoffs; (2) 

noise generated during restoration 

activities (e.g., painting, plastering, 

welding, and glazing); (3) maintenance 

activities (e.g., bulb replacement and 

automation of the light system); and (4) 

human presence. Thus, NMFS 

anticipates these activities may 

occasionally cause behavioral 

disturbance (i.e., Level B harassment) of 

four pinniped species. It is expected 

that the disturbance to pinnipeds from 

the activities will be minimal and will 

be limited to Level B harassment. 

The regulations issued here (and any 

issued LOAs) replace annual IHAs, 

providing a reduction in the time and 

effort necessary to obtain individual 

incidental take authorizations. 

Dates and Duration 

The Society proposes to conduct the 

activities (aircraft operations, lighthouse 

restoration and maintenance activities, 

and public tours) with a maximum of 70 

helicopter flight days per year. The 

Society’s deed restricts normal access 

from June 1 through October 15 

annually, so currently proposed trips 

under this application would occur 

from October 16 through May 31. 

However, the Society is attempting to 

have the deed revised to allow visits at 

any time of the year. Therefore we have 

considered the implications of possible 

visits during any month of the year in 

our analyses below and we could issue 

LOAs to cover this time of year should 

the society be successful in revising 

their deed. The regulations in this final 

rule are valid for a period of 5 years 

(May 15, 2022 through May 14, 2027). 

Over the course of this 5-year 

authorization, the Society proposes a 

maximum of 350 days of activities. 

Specific Geographic Region 

The Station is located on NWSR, a 

small, rocky islet (41°50′24′′ N, 

124°22′06′′ W), approximately 9 

kilometers (km) (6.0 miles (mi)) offshore 

of Crescent City, California (41°46′48′′ 


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N; 124°14′11′′ W). NWSR is 

approximately 91.4 meters (m) (300 feet 

(ft)) in diameter and peaks at 5.18 m (17 

ft) above mean sea level. 

Detailed Description of Specific Activity 

A detailed description of the Society’s 

planned activities was provided in our 

proposed rule (86 FR 50304; September 

8, 2021) and is not repeated here. No 

changes have been made to the specified 

activities described therein. 

Description of Marine Mammals in the 

Area of Specified Activities 

Sections 3 and 4 of the application 

summarize available information 

regarding status and trends, distribution 

and habitat preferences, and behavior 

and life history, of the potentially 

affected species. Additional information 

regarding population trends and threats 

may be found in NMFS’s Stock 

Assessment Reports (SARs; https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-stock-assessments) and more 

general information about these species 

(e.g., physical and behavioral 

descriptions) may be found on NMFS’s 

website (https://

www.fisheries.noaa.gov/find-species). 

Table 1 lists all species or stocks for 

which take is expected and authorized 

for this action, and summarizes 

information related to the population or 

stock, including regulatory status under 

the MMPA and the Endangered Species 

Act (ESA) and potential biological 

removal (PBR), where known. For 

taxonomy, we follow Committee on 

Taxonomy (2020). PBR is defined by the 

MMPA as the maximum number of 

animals, not including natural 

mortalities, that may be removed from a 

marine mammal stock while allowing 

that stock to reach or maintain its 

optimum sustainable population (as 

described in NMFS’s SARs). While no 

mortality is anticipated or authorized 

here, PBR and annual serious injury and 

mortality from anthropogenic sources 

are included here as gross indicators of 

the status of the species and other 

threats. 

Marine mammal abundance estimates 

presented in this document represent 

the total number of individuals that 

make up a given stock or the total 

number estimated within a particular 

study or survey area. NMFS’s stock 

abundance estimates for most species 

represent the total estimate of 

individuals within the geographic area, 

if known, that comprises that stock. For 

some species, this geographic area may 

extend beyond U.S. waters. All managed 

stocks in this region are assessed in 

NMFS’s U.S. Pacific Marine Mammal 

SARs (e.g., Carretta et al. 2020). All 

values presented in Table 1 are the most 

recent available at the time of 

publication and are available in the 

2020 SARs (Carretta et al. 2020) 

(available online at: https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/draftmarine-mammal-stock-assessmentreports). 

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

TO OCCUR

Common name Scientific name Stock 

ESA/ 

MMPA 

status; 

strategic 

(Y/N) 1

Stock abundance 

(CV, Nmin, most recent 

abundance 

survey) 2

PBR Annual 

M/SI 3

Order Carnivora—Superfamily Pinnipedia 

Family Otariidae (eared seals and sea 

lions): 

California sea lion ........................ Zalophus californianus U.S ............................. -, -, N 257,606 (N/A, 233,515, 2014) ............ 14,011 >320 

Northern fur seal .......................... Callorhinus ursinus .... California Breeding .... -, D, N 14,050 (N/A, 7,524, 2013) .................. 451 1.8 

Steller sea lion ............................. Eumetopias jubatus ... Eastern U.S ................ -, -, N 43,201 a (see SAR, 43,201, 2017) .... 2,592 113 

Family Phocidae (earless seals): 

Pacific harbor seal ....................... Phoca vitulina richardii California .................... -, -, N 30,968 (N/A, 27,348, 2012) ................ 1,641 43 

1Endangered 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. 3These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual Mortality/Serious Injury (M/SI) often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV 

associated with estimated mortality due to commercial fisheries is presented in some cases. 

As indicated above, all four species 

(with four managed stocks) in Table 1 

temporally and spatially co-occur with 

the activity to the degree that take is 

reasonably likely to occur, and we have 

authorized it. All species that could 

potentially occur in the proposed survey 

areas are included in Table 1. Detailed 

descriptions of these species were 

provided in our notice of proposed 

rulemaking (86 FR 50304; September 8, 

2021) and are not repeated here. No new 

information is available. 

Potential Effects of Specified Activities 

on Marine Mammals and Their Habitat 

We provided discussion of the 

potential effects of the specified activity 

on marine mammals and their habitat in 

our Federal Register notice of proposed 

rulemaking (86 FR 50304; September 8, 

2021) and it is not repeated here. The 

proposed rule included a summary and 

discussion of the ways that components 

of the specified activity may impact 

marine mammals and their habitat. The 

Estimated Take section later in this final 

rule includes a quantitative analysis of 

the number of individuals that are 

expected to be taken by this activity. 

The Negligible Impact Analysis and 

Determination section considers the 

content of the Negligible Impact 

Analysis and Determination section and 

the material it references, the Estimated 

Take section, and the Mitigation section 

to draw conclusions regarding the likely 

impacts of these activities on the 

reproductive success or survivorship of 

individuals and how those impacts on 

individuals are likely to impact marine 

mammal species or stocks. 

Estimated Take 

This section provides an estimate of 

the number of incidental takes 

authorized through this rulemaking, 

which informs both NMFS’ 

consideration of ‘‘small numbers’’ and 

the negligible impact determinations. 

Harassment is the only type of take 

expected to result from these activities. 

Except with respect to certain activities 

not pertinent here, section 3(18) of the 


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MMPA defines ‘‘harassment’’ as: Any 

act of pursuit, torment, or annoyance 

which (i) has the potential to injure a 

marine mammal or marine mammal 

stock in the wild (Level A harassment); 

or (ii) has the potential to disturb a 

marine mammal or marine mammal 

stock in the wild by causing disruption 

of behavioral patterns, including, but 

not limited to, migration, breathing, 

nursing, breeding, feeding, or sheltering 

(Level B harassment). 

Authorized takes would be by Level B 

harassment only, in the form of 

disruption of behavioral patterns for 

individual marine mammals resulting 

from exposure to helicopter operations 

and lighthouse maintenance activities. 

Based on the nature of the activity, 

Level A harassment is neither 

anticipated nor authorized. 

As discussed earlier, behavioral 

(Level B) harassment is limited to 

movement and flushing, defined by the 

disturbance scale of pinniped responses 

to in-air sources to determine take 

(Table 2). Furthermore, no mortality is 

anticipated or authorized for this 

activity. Below we describe how the 

take is estimated. 

Marine Mammal Occurrence 

In this section we provide the 

information about the presence, density, 

or group dynamics of marine mammals 

that inform the take calculations. 

TABLE 2—DISTURBANCE SCALE OF PINNIPED RESPONSES TO IN-AIR SOURCES TO DETERMINE TAKE

Level Type of response Definition 

1 ...................... Alert ......................................... Seal head orientation or brief movement in response to disturbance, which may include turning head towards the disturbance, craning head and neck while holding the body rigid in a 

u-shaped position, changing from a lying to a sitting position, or brief movement of less 

than twice the animal’s body length. 

2 * .................... Movement ................................ Movements in response to the source of disturbance, ranging from short withdrawals at least 

twice the animal’s body length to longer retreats over the beach, or if already moving a 

change of direction of greater than 90 degrees. 

3 * .................... Flush ........................................ All retreats (flushes) to the water. 

* Only Levels 2 and 3 are considered take, whereas Level 1 is not. 

The Society’s monitoring efforts 

reported zero marine mammals present 

on NWSR, in 2010. Furthermore, 

operations were not conducted in the 

years 2013 through 2016; thus, 

monitoring was not conducted. No visits 

occurred in 2020. Visits have occurred 

in all other years since 2010. 

Steller sea lions were first reported 

during restoration trips conducted in 

April (9) and November (350, with a 

maximum of 155/day) of 2011 (St. 

George Reef Lighthouse Preservation 

Society (SGRLPS) 2011). Zero 

observations of Steller sea lions were 

reported during the one 2012 restoration 

trip and three 2017 trips conducted 

(SGRLPS 2012, 2018). Four trips were 

conducted in 2018 (February, March, 

April, and November); only the 

November session reported any 

individuals (three) on site (SGRLPS 

2018). One restoration trip was 

conducted in November 2019 and had 

22 Steller sea lions present (SGRLPS 

2020). In the event of an emergency trip 

to the lighthouse for repairs in summer, 

or if deed restrictions are changed, more 

Steller sea lions may be present in June 

and July (up to 350–400 animals based 

on CCR (2001)). 

The maximum number of California 

sea lions present per day (160) was 

observed during the November 2011 

trip. The April and November 2011 trip 

maximums were 2 and 430 individuals, 

respectively (SGRLPS 2011). Zero 

California sea lions were reported 

during the March 2012 trip (SGRLPS 

2012). In 2017, the Society reported 16 

and zero California sea lions during 

March and April trips, and 16 during a 

November trip for a landing zone 

inspection (SGRLPS 2017). Observations 

for the 2018 season totaled 40 

individuals among its four trips 

(SGRLPS 2018). Eighteen California sea 

lions were reported during the 

November 2019 trip with a maximum of 

10 per day (SGRLPS 2020). Should deed 

restrictions be altered to allow access 

during summer months, numbers could 

be somewhat higher based on the data 

in CCR (2001). 

Northern fur seals have not been 

observed during any of the Society’s 

work from 2010 through 2019 (SGRLPS 

2010; 2011; 2012; 2017; 2018; 2020). 

The Society first reported 2 Pacific 

harbor seals on site during the March 

2012 restoration trip (SGRLPS 2012). 

Zero harbor seals were reported during 

the 2017, 2018, or 2019 work seasons 

(SGRLPS 2017; 2018; 2020). 

Take Calculation and Estimation 

Here we describe how the information 

provided above is brought together to 

produce a quantitative take estimate. 

The monitoring observations described 

above serve as the underpinnings of the 

take estimate calculation used to 

determine the actual number of marine 

mammals that may be subject to take. 

Take estimates for each species for 

which take would be authorized were 

based on the following equation: 

Take estimate per species = maximum 

number of observations/day during 

prior monitoring * number of 

proposed operations days 

Based on the Society’s previous 

monitoring reports, the maximum 

number of observations per day for each 

species is: Steller sea lions 155, 

California sea lions 160, and Pacific 

harbor seals 2. No Northern fur seals 

have been seen in prior project 

monitoring but one was observed during 

the survey work for this project by CCR 

(2001), so we use one for these 

calculations. 

As discussed above, The Society is 

proposing no more than 70 flight days 

per year. This is an optimistic estimate 

that far exceeds prior efforts, but given 

adequate funding there is the need for 

extensive restoration work to the Station 

so the Society requested consideration 

of the additional days of work in the 

take estimate. Therefore NMFS 

estimates that approximately 10,850 

Steller sea lions (calculated by 

multiplying the maximum single-day 

count of Steller sea lions that could be 

present (155) by 70 days of activities), 

11,200 California sea lions, 140 Pacific 

harbor seals, and 70 Northern fur seals 

could be potentially taken by Level B 

behavioral harassment annually over the 

course of this rulemaking (Table 3). 

NMFS bases these estimates of the 

numbers of marine mammals that might 

be affected on consideration of the 

number of marine mammals that could 

be on NWSR in a worst case scenario 

based on prior monitoring, and the 

assumption that all animals present may 

exhibit behavioral responses that are 

considered take (Levels 2 and 3 as 

described in Table 2). Should deed 

restrictions be altered to allow access 


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during summer months, numbers of 

California sea lions and Steller’s sea 

lions could be somewhat higher during 

a couple of those months based on the 

data in CCR (2001). Given these 

increases are limited in duration, only a 

fraction of the potential flight days 

could occur in summer, and the 

conservative nature of the maximum 

daily counts relative to the average 

observed animal counts from prior 

monitoring discussed above, we believe 

the take estimates are adequately 

precautionary. 

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

Species 

Maximum 

number per 

day 

Days of 

proposed 

activity 

Take Percent of 

stock 

California sea lion ............................................................................................ 160 70 11,200 4.3 

Steller sea lion ................................................................................................. 155 70 10,580 25.1 

Pacific harbor seal ........................................................................................... 2 70 140 0.5 

Northern fur seal .............................................................................................. 1 70 70 0.5 

Mitigation 

In order to promulgate regulations 

and issue LOAs under Section 

101(a)(5)(A) of the MMPA, NMFS must 

set forth the permissible methods of 

taking pursuant to such activity, and 

other means of effecting the least 

practicable impact on such species or 

stock and its habitat, paying particular 

attention to rookeries, mating grounds, 

and areas of similar significance, and on 

the availability of the species or stock 

for taking for certain subsistence uses 

(latter not applicable for this action). 

NMFS does not have a regulatory 

definition for ‘‘least practicable adverse 

impact.’’ NMFS regulations require 

applicants for incidental take 

authorizations to include information 

about the availability and feasibility 

(economic and technological) of 

equipment, methods, and manner of 

conducting the activity or other means 

of effecting the least practicable adverse 

impact upon the affected species or 

stocks and their habitat (50 CFR 

216.104(a)(11)). 

In evaluating how mitigation may or 

may not be appropriate to ensure the 

least practicable adverse impact on 

species or stocks and their habitat, as 

well as subsistence uses where 

applicable, we carefully consider two 

primary factors: 

(1) The manner in which, and the 

degree to which, the successful 

implementation of the measure(s) is 

expected to reduce impacts to marine 

mammals, marine mammal species or 

stocks, and their habitat. This considers 

the nature of the potential adverse 

impact being mitigated (likelihood, 

scope, range). It further considers the 

likelihood that the measure will be 

effective if implemented (probability of 

accomplishing the mitigating result if 

implemented as planned), the 

likelihood of effective implementation 

(probability implemented as planned), 

and; 

(2) The practicability of the measures 

for applicant implementation, which 

may consider such things as cost and 

impact on operations. 

The mitigation strategies described 

below largely follow those required and 

successfully implemented under 

previous incidental take authorizations 

issued in association with this project. 

Following are the mitigation 

measures: 

• No more than six flight days (up to 

two work trips) per month; 

• Avoid direct physical interaction 

with marine mammals during activity. If 

a marine mammal comes within 10 m of 

such activity, operations must cease 

until the animal leaves of its own 

accord; 

• Conduct training between 

construction supervisors and crews and 

tourists and the marine mammal 

monitoring team and relevant Society 

staff prior to the start of all visits and 

when new personnel join the work, so 

that responsibilities, communication 

procedures, monitoring protocols, and 

operational procedures are clearly 

understood. Visitors to the Station must 

be instructed to avoid unnecessary noise 

and not expose themselves visually to 

pinnipeds around the base of the 

lighthouse; 

• Halt loud outside activity upon 

observation on NWSR of either a species 

for which incidental take is not 

authorized or a species for which 

incidental take has been authorized but 

the authorized number of takes has been 

met; 

• Ensure that helicopter approach 

patterns to the NWSR are such that the 

timing and techniques are least 

disturbing to marine mammals. To the 

extent possible, the helicopter must 

approach NWSR when the tide is too 

high for marine mammals to haul out on 

NWSR. Avoid rapid and direct 

approaches by the helicopter to the 

station by approaching NWSR at a 

relatively high altitude (e.g., 800–1,000 

ft; 244–305 m). Before the final 

approach, the helicopter must circle 

lower, and approach from an area where 

the density of pinnipeds is the lowest. 

If for any safety reasons (e.g., wind 

conditions or visibility) such helicopter 

approach and timing techniques cannot 

be achieved, the Society must abort the 

restoration and maintenance session for 

the day; 

• Employ a protected species 

observer (PSO) and establish monitoring 

locations as described in the application 

and Section 5 of any LOA. The Holder 

must monitor the project area to the 

maximum extent possible based on the 

required number of PSOs, required 

monitoring locations, and 

environmental conditions. For all 

helicopter flights at least one PSO must 

be used; and 

• Monitoring must take place for all 

take-offs and landings. 

Based on our evaluation of the 

applicant’s measures, as well as other 

measures considered by NMFS, NMFS 

has determined that the mitigation 

measures provide the means effecting 

the least practicable impact on the 

affected species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance. 

Monitoring and Reporting 

In order to issue an LOA for an 

activity, Section 101(a)(5)(A) of the 

MMPA states that NMFS must set forth 

requirements pertaining to the 

monitoring and reporting of such taking. 

The MMPA implementing regulations at 

50 CFR 216.104(a)(13) indicate that 

requests for authorizations must include 

the suggested means of accomplishing 

the necessary monitoring and reporting 

that will result in increased knowledge 

of the species and of the level of taking 

or impacts on populations of marine 

mammals that are expected to be 

present in the action area. Effective 

reporting is critical both to compliance 

as well as ensuring that the most value 


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is obtained from the required 

monitoring. 

Monitoring and reporting 

requirements prescribed by NMFS 

should contribute to improved 

understanding of one or more of the 

following: 

• Occurrence of marine mammal 

species or stocks in the area in which 

take is anticipated (e.g., presence, 

abundance, distribution, density). 

• Nature, scope, or context of likely 

marine mammal exposure to potential 

stressors/impacts (individual or 

cumulative, acute or chronic), through 

better understanding of: (1) Action or 

environment (e.g., source 

characterization, propagation, ambient 

noise); (2) affected species (e.g., life 

history, dive patterns); (3) co-occurrence 

of marine mammal species with the 

action; or (4) biological or behavioral 

context of exposure (e.g., age, calving or 

feeding areas). 

• Individual marine mammal 

responses (behavioral or physiological) 

to acoustic stressors (acute, chronic, or 

cumulative), other stressors, or 

cumulative impacts from multiple 

stressors. 

• How anticipated responses to 

stressors impact either: (1) Long-term 

fitness and survival of individual 

marine mammals; or (2) populations, 

species, or stocks. 

• Effects on marine mammal habitat 

(e.g., marine mammal prey species, 

acoustic habitat, or other important 

physical components of marine 

mammal habitat). 

• Mitigation and monitoring 

effectiveness. 

Visual Monitoring 

• Monitoring during each helicopter 

takeoff and landing must be conducted 

by qualified, NMFS-approved PSOs, in 

accordance with the following: PSOs 

must be independent and have no other 

assigned tasks during monitoring 

periods. At least one PSO must have 

prior experience performing the duties 

of a PSO. Other PSOs may substitute 

other relevant experience, education 

(degree in biological science or related 

field), or training. PSOs resumes must 

be approved by NMFS prior to 

beginning any activity subject to these 

regulations. 

• PSOs must record all observations 

of marine mammals as described in 

Section 5 of any LOA, regardless of 

distance from the activity. PSOs must 

document any behavioral reactions in 

concert with distance from the activity, 

according to the levels of response 

described in Table 2. 

PSOs must have the following 

additional qualifications: 

• Ability to conduct field 

observations and collect data according 

to assigned protocols; 

• Experience or training in the field 

identification of marine mammals, 

including the identification of 

behaviors; 

• Sufficient training, orientation, or 

experience with the construction 

operation to provide for personal safety 

during observations; 

• Writing skills sufficient to prepare a 

report of observations including but not 

limited to the number and species of 

marine mammals observed; dates and 

times when in-water construction 

activities were conducted; dates, times, 

and reason for implementation of 

mitigation (or why mitigation was not 

implemented when required); and 

marine mammal behavior; 

• Ability to communicate orally, by 

radio or in person, with project 

personnel to provide real-time 

information on marine mammals 

observed in the area as necessary; 

• The Society must establish the 

following monitoring locations. For the 

first flight of the day a PSO with high 

definition camera must be on the first 

flight to the station. For 15 minutes 

before and after all other takeoffs and 

landings a PSO must be stationed on the 

platform of the lantern room gallery, 

and a PSO must be on the last departing 

helicopter of the day; 

• Aerial photo coverage of the island 

must be completed by an observer using 

a high definition camera. Photographs of 

all marine mammals hauled out on the 

island must be taken at an altitude 

greater than 300 meters. Photographs of 

marine mammals present at the last 

flight of the day must be taken from the 

helicopter or from the lantern room 

gallery platform just before the last 

flight; and 

• The Society and/or its designees 

must forward the photographs to a 

biologist capable of discerning marine 

mammal species if one is not present on 

the trip. The Society must provide the 

data to NMFS in the form of a report 

with a data table, any other significant 

observations related to marine 

mammals, and a report of restoration 

activities. The Society must make 

available the original photographs to 

NMFS or to other marine mammal 

experts for inspection and further 

analysis. 

Reporting 

A draft marine mammal monitoring 

report must be submitted to NMFS 

within 90 days after the completion of 

each activity period, or 60 days prior to 

a requested date of issuance of any 

future LOAs for projects at the same 

location, whichever comes first. For the 

first year of the activities, at least, the 

reports must be submitted quarterly; 

following submission of the first three 

quarterly reports, NMFS will evaluate 

whether it is appropriate to modify 

subsequent annual LOAs to require 

annual reports, based on whether the 

information provided in the first three 

quarterly reports adequately complies 

with the requirement. The report must 

include an overall description of work 

completed, a narrative regarding marine 

mammal sightings, and associated PSO 

data sheets. Specifically, the report must 

include: 

• Dates and times (begin and end) of 

all marine mammal monitoring. 

• Activities occurring during each 

daily observation period. 

• PSO locations during marine 

mammal monitoring. 

• Environmental conditions during 

monitoring periods (at beginning and 

end of PSO shift and whenever 

conditions change significantly), 

including Beaufort sea state and any 

other relevant weather conditions 

including cloud cover, fog, sun glare, 

and overall visibility to the horizon, and 

estimated observable distance. 

• Upon each flight, the following 

information must be reported: Name of 

PSO who sighted the animal(s) and PSO 

location and activity at time of sighting; 

time of sighting; identification of the 

animal(s) (e.g., genus/species, lowest 

possible taxonomic level, or 

unidentified), PSO confidence in 

identification, and the composition of 

the group if there is a mix of species; 

distance and bearing of the nearest 

marine mammal observed relative to the 

activity for each flight; estimated 

number of animals (min/max/best 

estimate); estimated number of animals 

by cohort (adults, juveniles, neonates, 

group composition, etc.); animal’s 

closest point of approach to activity; 

and description of any marine mammal 

behavioral observations (e.g., observed 

behaviors such as feeding or traveling), 

including an assessment of behavioral 

responses thought to have resulted from 

the activity (e.g., no response or changes 

in behavioral state such as ceasing 

feeding, changing direction, flushing) 

using pinniped disturbance scale (Table 

2). 

• Number of marine mammals 

detected, by species. 

• Detailed information about any 

implementation of any mitigation 

triggered, a description of specific 

actions that ensued, and resulting 

changes in behavior of the animal(s), if 

any. 

If no comments are received from 

NMFS within 30 days, the draft final 


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report will constitute the final report. If 

comments are received, a final report 

addressing NMFS comments must be 

submitted within 30 days after receipt of 

comments. 

Reporting Injured or Dead Marine 

Mammals 

In the event that personnel involved 

in the activities discover an injured or 

dead marine mammal, the LOA-holder 

must report the incident to the Office of 

Protected Resources (OPR) 

(PR.ITP.MonitoringReports@noaa.gov), 

NMFS and to West Coast Regional 

Stranding Coordinator as soon as 

feasible. If the death or injury was 

clearly caused by the specified activity, 

the Society must immediately cease the 

specified activities until NMFS is able 

to review the circumstances of the 

incident and determine what, if any, 

additional measures are appropriate to 

ensure compliance with the terms of the 

LOA and regulations. The LOA-holder 

must not resume their activities until 

notified by NMFS. The report must 

include the following information: 

• Time, date, and location (latitude/ 

longitude) of the first discovery (and 

updated location information if known 

and applicable); 

• Species identification (if known) or 

description of the animal(s) involved; 

• Condition of the animal(s) 

(including carcass condition if the 

animal is dead); 

• Observed behaviors of the 

animal(s), if alive; 

• If available, photographs or video 

footage of the animal(s); and 

• General circumstances under which 

the animal was discovered. 

Negligible Impact Analysis and 

Determination 

NMFS has defined negligible impact 

as an impact resulting from the 

specified activity that cannot be 

reasonably expected to, and is not 

reasonably likely to, adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival 

(50 CFR 216.103). A negligible impact 

finding is based on the lack of likely 

adverse effects on annual rates of 

recruitment or survival (i.e., populationlevel effects). An estimate of the number 

of takes alone is not enough information 

on which to base an impact 

determination. In addition to 

considering estimates of the number of 

marine mammals that might be ‘‘taken’’ 

through harassment, NMFS considers 

other factors, such as the likely nature 

of any responses (e.g., intensity, 

duration), the context of any responses 

(e.g., critical reproductive time or 

location, migration), as well as effects 

on habitat, and the likely effectiveness 

of the mitigation. We also assess the 

number, intensity, and context of 

estimated takes by evaluating this 

information relative to population 

status. Consistent with the 1989 

preamble for NMFS’s implementing 

regulations (54 FR 40338; September 29, 

1989), the impacts from other past and 

ongoing anthropogenic activities are 

incorporated into this analysis via their 

impacts on the environmental baseline 

(e.g., as reflected in the regulatory status 

of the species, population size and 

growth rate where known, ongoing 

sources of human-caused mortality, or 

ambient noise levels). 

Activities associated with the 

restoration, light maintenance and tour 

projects, as described previously, have 

the potential to disturb or displace 

marine mammals. Specifically, the 

specified activities may result in take, in 

the form of Level B harassment 

(behavioral disturbance) from in-air 

sounds and visual disturbance. Potential 

takes could occur if individual marine 

mammals are present nearby when 

activity is happening. 

No serious injury or mortality would 

be expected even in the absence of the 

mitigation measures. For all species, no 

Level A harassment is anticipated given 

the nature of the activities, i.e., much of 

the anticipated activity would involve 

noises below thresholds and visual 

disturbance from tens of meters away, 

and measures designed to minimize the 

possibility of injury. The potential for 

injury is small for pinnipeds, and is 

expected to be essentially eliminated 

through implementation of the planned 

mitigation measures. 

Effects on individuals that are taken 

by Level B harassment, on the basis of 

reports in the literature as well as 

monitoring from other similar activities, 

will likely be limited to reactions such 

as alerts or movements away from the 

lighthouse structure. Most likely, 

individuals will simply move away 

from the sound source and be 

temporarily displaced from the areas. 

Reporting from prior years of these 

activities has similarly reported no 

apparently consequential behavioral 

reactions or long-term effects on marine 

mammal populations as noted above. 

Repeated exposures of individuals to 

relatively low levels of sound and visual 

disturbance outside of preferred habitat 

areas are unlikely to significantly 

disrupt critical behaviors. Thus, even 

repeated Level B harassment of some 

small subset of the overall stock is 

unlikely to result in any significant 

realized decrease in viability for the 

affected individuals, and thus would 

not result in any adverse impact to the 

stock as a whole. Level B harassment 

will be reduced to the level of least 

practicable adverse impact through use 

of mitigation measures described herein 

and, if sound and visual disturbance 

produced by project activities is 

sufficiently disturbing, animals are 

likely to simply avoid the area while the 

activity is occurring. 

In combination, we believe that these 

factors, as well as the available body of 

evidence from other similar activities, 

demonstrate that the potential effects of 

the specified activities will have only 

minor, short-term effects on individuals. 

The specified activities are not expected 

to impact rates of recruitment or 

survival and will therefore not result in 

population-level impacts. 

In summary and as described above, 

the following factors primarily support 

our determination that the impacts 

resulting from this activity are not 

expected to adversely affect the species 

or stock through effects on annual rates 

of recruitment or survival: 

• No mortality is anticipated or 

authorized. 

• No Level A harassment is 

anticipated or authorized. 

• No important biologically important 

areas have been identified within the 

project area. 

• For all species, NWSR is a very 

small and peripheral part of their range. 

• Monitoring reports from prior 

activities at the site have documented 

little to no effect on individuals of the 

same species impacted by the specified 

activities. 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat, and taking into 

consideration the implementation of the 

monitoring and mitigation measures, 

NMFS finds that the total marine 

mammal take from the activity will have 

a negligible impact on all affected 

marine mammal species or stocks. 

Small Numbers 

As noted above, only small numbers 

of incidental take may be authorized 

under Sections 101(a)(5)(A) of the 

MMPA for specified activities other 

than military readiness activities. The 

MMPA does not define small numbers 

and so, in practice, where estimated 

numbers are available, NMFS compares 

the number of individuals taken to the 

most appropriate estimation of 

abundance of the relevant species or 

stock in our determination of whether 

an authorization is limited to small 

numbers of marine mammals. When the 

predicted number of individuals to be 

taken is fewer than one third of the 

species or stock abundance, the take is 


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considered to be of small numbers. 

Additionally, other qualitative factors 

may be considered in the analysis, such 

as the temporal or spatial scale of the 

activities. 

The amount of take NMFS authorizes 

is below one third of the estimated stock 

abundance of all species (in fact, take of 

individuals is less than 10 percent of the 

abundance of all of the affected stocks 

except Steller sea lions, see Table 3). 

This is likely a conservative estimate 

because they assume all takes are of 

different individual animals which is 

likely not the case, especially within 

individual trips. Many individuals seen 

within a single multi-day trip are likely 

to be the same across consecutive days, 

but PSOs would count them as separate 

takes across days. 

Based on the analysis contained 

herein of the activity (including the 

mitigation and monitoring measures) 

and the anticipated take of marine 

mammals, NMFS finds that small 

numbers of marine mammals will be 

taken relative to the population size of 

the affected species or stocks. 

Unmitigable Adverse Impact Analysis 

and Determination 

There are no relevant subsistence uses 

of the affected marine mammal stocks or 

species implicated by this action. 

Therefore, NMFS has determined that 

the total taking of affected species or 

stocks would not have an unmitigable 

adverse impact on the availability of 

such species or stocks for taking for 

subsistence purposes. 

Adaptive Management 

The regulations in this final rule 

governing the take of marine mammals 

incidental to Society lighthouse repair 

and tour operation activities contain an 

adaptive management component. 

The reporting requirements associated 

with this final rule are designed to 

provide NMFS with monitoring data 

from the prior year(s) to allow 

consideration of whether any changes 

are appropriate. The use of adaptive 

management allows NMFS to consider 

new information from different sources 

to determine (with input from the 

Society regarding practicability) on an 

annual basis if mitigation or monitoring 

measures should be modified (including 

additions or deletions). Mitigation 

measures could be modified if new data 

suggests that such modifications would 

have a reasonable likelihood of reducing 

adverse effects to marine mammals and 

if the measures are practicable. 

Additionally, monitoring or reporting 

measures may be modified if 

appropriate and, in this case, the rule 

specifies quarterly monitoring and 

reporting requirements for the first year, 

which may subsequently be modified to 

annual requirements, based on NMFS 

evaluation of the first three reports. 

The following are some of the 

possible sources of applicable data to be 

considered through the adaptive 

management process: (1) Results from 

monitoring reports, as required by 

MMPA authorizations; (2) results from 

general marine mammal and sound 

research; and (3) any information which 

reveals that marine mammals may have 

been taken in a manner, extent, or 

number not authorized by these 

regulations or subsequent LOAs. 

National Environmental Policy Act 

To comply with the National 

Environmental Policy Act of 1969 

(NEPA; 42 U.S.C. 4321 et seq.) and 

NOAA Administrative Order (NAO) 

216–6A, NMFS must review our 

proposed action (i.e., the issuance of a 

rule and subsequent LOAs) with respect 

to potential impacts on the human 

environment. 

This action is consistent with 

categories of activities identified in 

Categorical Exclusion B4 of the 

Companion Manual for NAO 216–6A, 

which do not individually or 

cumulatively have the potential for 

significant impacts on the quality of the 

human environment and for which we 

have not identified any extraordinary 

circumstances that would preclude this 

categorical exclusion. Accordingly, 

NMFS has determined that the issuance 

of the rule qualifies to be categorically 

excluded from further NEPA review. 

Endangered Species Act (ESA) 

Section 7(a)(2) of the Endangered 

Species Act of 1973 (ESA: 16 U.S.C. 

1531 et seq.) requires that each Federal 

agency insure that any action it 

authorizes, funds, or carries out is not 

likely to jeopardize the continued 

existence of any endangered or 

threatened species or result in the 

destruction or adverse modification of 

designated critical habitat. To ensure 

ESA compliance for the issuance of 

incidental take authorizations, NMFS 

consults internally whenever we 

propose to authorize take for 

endangered or threatened species, in 

this case with the West Coast Regional 

Protected Resources Division Office. 

No incidental take of ESA-listed 

species is authorized or expected to 

result from this activity. Therefore, 

NMFS has determined that formal 

consultation under section 7 of the ESA 

is not required for this action. 

Classification 

Pursuant to the procedures 

established to implement Executive 

Order 12866, the Office of Management 

and Budget has determined that this 

final rule is not significant. Pursuant to 

section 605(b) of the Regulatory 

Flexibility Act (RFA), the Chief Counsel 

for Regulation of the Department of 

Commerce has certified to the Chief 

Counsel for Advocacy of the Small 

Business Administration that this final 

rule would not have a significant 

economic impact on a substantial 

number of small entities. The Society, a 

501(c)(3) non-profit whose mission is to 

preserve the St. George Reef lighthouse, 

is the sole entity that would be subject 

to the requirements in these regulations, 

and the Society is not a small 

governmental jurisdiction, small 

organization, or small business, as 

defined by the RFA. Because of this 

certification, a regulatory flexibility 

analysis is not required and none has 

been prepared. 

This final rule contains a collectionof-information requirement subject to 

the provisions of the Paperwork 

Reduction Act. These requirements have 

been approved by OMB under control 

number 0648–0151 and include 

applications for regulations, subsequent 

LOAs, and reports. 

List of Subjects in 50 CFR Part 217 

Exports, Fish, Imports, Indians, 

Labeling, Marine mammals, Penalties, 

Reporting and recordkeeping 

requirements, Seafood, Transportation. 

Dated: April 11, 2022. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For reasons set forth in the preamble, 

50 CFR part 217 is amended as follows: 

PART 217—REGULATIONS 

GOVERNING THE TAKE OF MARINE 

MAMMALS INCIDENTAL TO 

SPECIFIED ACTIVITES 

■ 1. The authority citation for part 217 

continues to read as follows: 

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

■ 2. Add subpart F to part 217 to read 

as follows: 

Subpart F—Taking Marine Mammals 

Incidental to Lighthouse Repair and Tour 

Operations at Northwest Seal Rock, 

California 

Sec. 

217.50 Specified activity and specified 

geographical region. 

217.51 Effective dates. 

217.52 Permissible methods of taking. 


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217.53 Prohibitions. 

217.54 Mitigation requirements. 

217.55 Requirements for monitoring and 

reporting. 

217.56 Letters of Authorization. 

217.57 Renewals and modifications of 

Letters of Authorization. 

217.58 [Reserved] 

217.59 [Reserved] 

Subpart F—Taking Marine Mammals 

Incidental to Lighthouse Repair and 

Tour Operations at Northwest Seal 

Rock, California 

§ 217.50 Specified activity and specified 

geographical region. 

(a) Regulations in this subpart apply 

only to the St. George Reef Lighthouse 

Preservation Society (Society) and those 

persons it authorizes or funds to 

conduct activities on its behalf for the 

taking of marine mammals that occurs 

in the areas outlined in paragraph (b) of 

this section and that occurs incidental 

to lighthouse repair and tour operation 

activities. 

(b) The taking of marine mammals by 

the Society may be authorized in a 

Letter of Authorization (LOA) only if it 

occurs within Pacific Ocean waters in 

the vicinity of Northwest Seal Rock near 

Crescent City, California. 

§ 217.51 Effective dates. 

Regulations in this subpart are 

effective from May 15, 2022 through 

May 14, 2027. 

§ 217.52 Permissible methods of taking. 

Under LOAs issued pursuant to 

§ 216.106 of this chapter and § 217.56, 

the Holder of the LOA (hereinafter 

‘‘Society’’) may incidentally, but not 

intentionally, take marine mammals 

within the area described in § 217.50(b) 

by Level B harassment associated with 

lighthouse repair and tour operation 

activities, provided the activity is in 

compliance with all terms, conditions, 

and requirements of the regulations in 

this subpart and the appropriate LOA. 

§ 217.53 Prohibitions. 

Except for taking authorized by a LOA 

issued under §§ 216.106 and 217.56 of 

this chapter, it shall be unlawful for any 

person to do any of the following in 

connection with the activities described 

in § 217.50: 

(a) Violate, or fail to comply with, the 

terms, conditions, and requirements of 

this subpart or a LOA issued under 

§ 216.106 of this chapter and § 217.56; 

(b) Take any marine mammal not 

specified in such LOAs; 

(c) Take any marine mammal 

specified in such LOAs in any manner 

other than as specified; or 

(d) Take a marine mammal specified 

in such LOAs if NMFS determines such 

taking results in more than a negligible 

impact on the species or stocks of such 

marine mammal. 

§ 217.54 Mitigation requirements. 

When conducting the activities 

identified in § 217.50(a), the mitigation 

measures contained in any LOA issued 

under § 216.106 of this chapter and 

§ 217.56 must be implemented. These 

mitigation measures shall include but 

are not limited to: 

(a) General conditions. (1) A copy of 

any issued LOA must be in the 

possession of the Society, supervisory 

personnel, pilot, protected species 

observers (PSOs), and any other relevant 

designees of the Holder operating under 

the authority of this LOA at all times 

that activities subject to this LOA are 

being conducted. 

(2) The Society must conduct training 

between supervisors and crews and the 

marine mammal monitoring team and 

relevant Society staff prior to the start of 

all trips and when new personnel join 

the work, so that responsibilities, 

communication procedures, monitoring 

protocols, and operational procedures 

are clearly understood. Visitors to the 

Station must be instructed to avoid 

unnecessary noise and not expose 

themselves visually to pinnipeds 

around the base of the lighthouse. 

(3) All personnel must avoid direct 

physical interaction with marine 

mammals during activity. If a marine 

mammal comes within 10 m of such 

activity, operations must cease until the 

animal leaves of its own accord. 

(4) Loud outside activity must be 

halted upon observation on Northwest 

Seal Rock (NWSR) of either a species for 

which incidental take is not authorized 

or a species for which incidental take 

has been authorized but the authorized 

number of takes has been met. 

(5) No more than two restoration trips, 

or 6 days of flight operations, are 

permitted per month. 

(b) Protocols. (1) The pilot must 

ensure that helicopter approach patterns 

to the NWSR are such that the timing 

and techniques are least disturbing to 

marine mammals. To the extent 

possible, the helicopter must approach 

NWSR when the tide is too high for 

marine mammals to haul out on NWSR. 

The helicopter must avoid rapid and 

direct approaches to the station by 

approaching NWSR at a relatively high 

altitude (e.g., 800–1,000 ft; 244–305 m). 

Before the final approach, the helicopter 

must circle lower, and approach from an 

area where the density of pinnipeds is 

the lowest. If for any safety reasons (e.g., 

wind conditions or visibility) such 

helicopter approach and timing 

techniques cannot be achieved, the 

Society must abort the restoration and 

maintenance session for the day. 

(2) Monitoring must be conducted by 

a trained PSO, who must have no other 

assigned tasks during monitoring 

periods. Trained PSOs must be placed at 

the best vantage point(s) practicable to 

monitor for marine mammals and 

implement mitigation procedures when 

applicable. The Society must adhere to 

the following additional PSO 

qualifications: 

(i) Independent PSOs are required; 

(ii) At least one PSO must have prior 

experience working as an observer; 

(iii) Other observers may substitute 

education (degree in biological science 

or related field) or training for 

experience; and 

(iv) The Society must submit PSO 

resumes for approval by NMFS prior to 

beginning any activity subject to these 

regulations. 

(3) The PSO must monitor the project 

area to the maximum extent possible 

based on the required monitoring 

locations and environmental conditions. 

They must record all observations of 

marine mammals as described in 

Section 5 of any LOA, regardless of 

distance from the activity. A PSO with 

a high definition camera must be on the 

first flight to the station each day. For 

15 minutes before and after all other 

takeoffs and landings a PSO must be 

stationed on the platform of the lantern 

room gallery, and a PSO must be on the 

last departing helicopter of the day. 

§ 217.55 Requirements for monitoring and 

reporting. 

(a) PSOs must document any 

behavioral reactions in concert with 

distance from any project activity. 

(b) Reporting—(1) Reporting 

frequency. (i) The Society must submit 

a quarterly summary report to NMFS 

not later than 90 days following the end 

of each work quarter; after the first three 

quarterly submissions, NMFS will 

evaluate whether it is appropriate to 

modify to annual reports, and modify 

future LOAs as appropriate to indicate 

annual reporting requirements if so. The 

Society must provide a final report 

within 30 days following resolution of 

comments on each draft report. 

(ii) These reports must contain, at 

minimum, the following: 

(A) Dates and times (begin and end) 

of all marine mammal monitoring; 

(B) Activities occurring during all 

marine mammal monitoring (e.g., 

helicopter takeoffs and landings, 

construction activities); 

(C) PSO locations during marine 

mammal monitoring; 

(D) Environmental conditions during 

monitoring periods (at beginning and 


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22494 Federal Register / Vol. 87, No. 73 / Friday, April 15, 2022 / Rules and Regulations 

end of PSO shift and whenever 

conditions change significantly), 

including Beaufort sea state and any 

other relevant weather conditions 

including cloud cover, fog, sun glare, 

and overall visibility to the horizon, and 

estimated observable distance; 

(E) Upon each flight, the following 

information: Name of PSO who sighted 

the animal(s) and PSO location and 

activity at time of sighting; time of 

sighting; identification of the animal(s) 

(e.g., genus/species, lowest possible 

taxonomic level, or unidentified), PSO 

confidence in identification, and the 

composition of the group if there is a 

mix of species; distance and bearing of 

each marine mammal observed relative 

to the activity for each flight; estimated 

number of animals (min/max/best 

estimate); estimated number of animals 

by cohort (adults, juveniles, neonates, 

group composition, etc.); and 

description of any marine mammal 

behavioral observations (e.g., observed 

behaviors such as feeding or traveling), 

including an assessment of behavioral 

responses thought to have resulted from 

the activity according to the 3-point 

scale as defined in the LOA (e.g., no 

response or changes in behavioral state 

such as changing direction or flushing); 

(F) Number of marine mammals 

detected, by species; and 

(G) Detailed information about any 

implementation of any mitigation 

triggered, a description of specific 

actions that ensued, and resulting 

changes in behavior of the animal(s), if 

any. 

(2) The Society must submit a 

comprehensive summary report to 

NMFS not later than 90 days following 

the conclusion of marine mammal 

monitoring efforts described in this 

subpart. 

(c) Reporting of injured or dead 

marine mammals. (1) In the event that 

personnel involved in the construction 

activities discover an injured or dead 

marine mammal, the LOA-holder must 

immediately report the incident to the 

Office of Protected Resources (OPR) 

(PR.ITP.MonitoringReports@noaa.gov), 

NMFS and to West Coast Regional 

Stranding Coordinator as soon as 

feasible. If the death or injury was 

clearly caused by activities specified at 

§ 217.50, the Society must immediately 

cease the specified activities until 

NMFS is able to review the 

circumstances of the incident and 

determine what, if any, additional 

measures are appropriate to ensure 

compliance with the terms of these 

regulations and LOAs. The LOA-holder 

must not resume their activities until 

notified by NMFS. The report must 

include the following information: 

(i) Time, date, and location (latitude/ 

longitude) of the first discovery (and 

updated location information if known 

and applicable); 

(ii) Species identification (if known) 

or description of the animal(s) involved; 

(iii) Condition of the animal(s) 

(including carcass condition if the 

animal is dead); 

(iv) Observed behaviors of the 

animal(s), if alive; 

(v) If available, photographs or video 

footage of the animal(s); and 

(vi) General circumstances under 

which the animal was discovered. 

(2) [Reserved] 

§ 217.56 Letters of Authorization. 

(a) To incidentally take marine 

mammals pursuant to these regulations, 

the Society must apply for and obtain an 

LOA. 

(b) An LOA, unless suspended or 

revoked, may be effective for a period of 

time not to exceed the expiration date 

of these regulations. 

(c) If an LOA expires prior to the 

expiration date of these regulations, the 

Society may apply for and obtain a 

renewal of the LOA. 

(d) In the event of projected changes 

to the activity or to mitigation and 

monitoring measures required by an 

LOA, the Society must apply for and 

obtain a modification of the LOA as 

described in § 217.57. 

(e) The LOA shall set forth: 

(1) Permissible methods of incidental 

taking; 

(2) Means of effecting the least 

practicable adverse impact (i.e., 

mitigation) on the species, its habitat, 

and on the availability of the species for 

subsistence uses; and 

(3) Requirements for monitoring and 

reporting. 

(f) Issuance of the LOA shall be based 

on a determination that the level of 

taking will be consistent with the 

findings made for the total taking 

allowable under these regulations. 

(g) Notice of issuance or denial of an 

LOA shall be published in the Federal 

Register within 30 days of a 

determination. 

§ 217.57 Renewals and modifications of 

Letters of Authorization. 

(a) An LOA issued under § 216.106 of 

this chapter and § 217.56 for the activity 

identified in § 217.50(a) shall be 

renewed or modified upon request by 

the applicant, provided that: 

(1) The proposed specified activity 

and mitigation, monitoring, and 

reporting measures, as well as the 

anticipated impacts, are the same as 

those described and analyzed for these 

regulations (excluding changes made 

pursuant to the adaptive management 

provision in paragraph (c)(1) of this 

section); and 

(2) NMFS determines that the 

mitigation, monitoring, and reporting 

measures required by the previous LOA 

under these regulations were 

implemented. 

(b) For LOA modification or renewal 

requests by the applicant that include 

changes to the activity or the mitigation, 

monitoring, or reporting (excluding 

changes made pursuant to the adaptive 

management provision in paragraph 

(c)(1) of this section) that do not change 

the findings made for the regulations or 

result in no more than a minor change 

in the total estimated number of takes 

(or distribution by species or years), 

NMFS may publish a notice of proposed 

LOA in the Federal Register, including 

the associated analysis of the change, 

and solicit public comment before 

issuing the LOA. 

(c) An LOA issued under §§ 216.106 

and 217.56 of this chapter for the 

activity identified in § 217.50(a) may be 

modified by NMFS under the following 

circumstances: 

(1) Adaptive management. NMFS may 

modify (including augment) the existing 

mitigation, monitoring, or reporting 

measures (after consulting with the 

Society regarding the practicability of 

the modifications) if doing so creates a 

reasonable likelihood of more 

effectively accomplishing the goals of 

the mitigation and monitoring set forth 

in the preamble for these regulations. 

(i) Possible sources of data that could 

contribute to the decision to modify the 

mitigation, monitoring, or reporting 

measures in an LOA: 

(A) Results from the Society’s 

monitoring from the previous year(s). 

(B) Results from other marine 

mammal and/or sound or disturbance 

research or studies. 

(C) Any information that reveals 

marine mammals may have been taken 

in a manner, extent or number not 

authorized by these regulations or 

subsequent LOAs. 

(ii) If, through adaptive management, 

the modifications to the mitigation, 

monitoring, or reporting measures are 

substantial, NMFS will publish a notice 

of proposed LOA in the Federal 

Register and solicit public comment. 

(2) Emergencies. If NMFS determines 

that an emergency exists that poses a 

significant risk to the well-being of the 

species or stocks of marine mammals 

specified in LOAs issued pursuant to 

§ 216.106 of this chapter and § 217.56, 

an LOA may be modified without prior 

notice or opportunity for public 

comment. Notice would be published in 


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the Federal Register within 30 days of 

the action. 

§§ 217.58–217.59 [Reserved] 

[FR Doc. 2022–08031 Filed 4–14–22; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 220216–0049; RTID 0648– 

XB770] 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pollock in the West 

Yakutat District of the Gulf of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for pollock in the West Yakutat 

District of the Gulf of Alaska (GOA). 

This action is necessary to prevent 

exceeding the 2022 total allowable catch 

of pollock in the West Yakutat District 

of the GOA. 

DATES: Effective 1200 hours, Alaska 

local time (A.l.t.), April 13, 2022, 

through 2400 hours, A.l.t., December 31, 

2022. 

FOR FURTHER INFORMATION CONTACT: 

Obren Davis, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

GOA exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Gulf of 

Alaska (FMP) prepared by the North 

Pacific Fishery Management Council 

under authority of the MagnusonStevens Fishery Conservation and 

Management Act. Regulations governing 

fishing by U.S. vessels in accordance 

with the FMP appear at subpart H of 50 

CFR part 600 and 50 CFR part 679. 

The 2022 total allowable catch (TAC) 

of pollock in the West Yakutat District 

of the GOA is 6,722 metric tons (mt) as 

established by the final 2022 and 2023 

harvest specifications for groundfish in 

the GOA (87 FR 11599, March 2, 2022). 

In accordance with § 679.20(d)(1)(i), 

the Administrator, Alaska Region, 

NMFS (Regional Administrator), has 

determined that the 2022 TAC of 

pollock in the West Yakutat District of 

the GOA will soon be reached. 

Therefore, the Regional Administrator is 

establishing a directed fishing 

allowance of 6,522 mt, and is setting 

aside the remaining 200 mt as bycatch 

to support other anticipated groundfish 

fisheries. In accordance with 

§ 679.20(d)(1)(iii), the Regional 

Administrator finds that this directed 

fishing allowance has been reached. 

Consequently, NMFS is prohibiting 

directed fishing for pollock in the West 

Yakutat District of the GOA. 

While this closure is effective the 

maximum retainable amounts at 

§ 679.20(e) and (f) apply at any time 

during a trip. 

Classification 

NMFS issues this action pursuant to 

section 305(d) of the Magnuson-Stevens 

Act. This action is required by 50 CFR 

part 679, which was issued pursuant to 

section 304(b), and is exempt from 

review under Executive Order 12866. 

Pursuant to 5 U.S.C. 553(b)(B), there 

is good cause to waive prior notice and 

an opportunity for public comment on 

this action, as notice and comment 

would be impracticable and contrary to 

the public interest, as it would prevent 

NMFS from responding to the most 

recent fisheries data in a timely fashion 

and would delay the closure of pollock 

in the West Yakutat District of the GOA. 

NMFS was unable to publish a notice 

providing time for public comment 

because the most recent, relevant data 

only became available as of April 12, 

2022. 

The Assistant Administrator for 

Fisheries, NOAA also finds good cause 

to waive the 30-day delay in the 

effective date of this action under 5 

U.S.C. 553(d)(3). This finding is based 

upon the reasons provided above for 

waiver of prior notice and opportunity 

for public comment. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: April 13, 2022. 

Kelly Denit, 

Director, Office of Sustainable Fisheries, 

National Marine Fisheries Service. 

[FR Doc. 2022–08269 Filed 4–13–22; 4:15 pm] 

BILLING CODE 3510–22–P 


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