[Federal Register Volume 87, Number 73 (Friday, April 15, 2022)]
[Rules and Regulations]
[Pages 22484-22495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08031]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 220407-0086]
RIN 0648-BJ87


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

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

ACTION: Final rule; notification of issuance.

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SUMMARY: NMFS Office of Protected Resources, upon request from the St. 
George Reef Lighthouse Preservation Society (Society), hereby issues 
regulations to govern the unintentional taking of marine mammals 
incidental to conducting aircraft operations, lighthouse renovation, 
light maintenance activities, and tour operations on the St. George 
Reef Lighthouse Station (Station) on Northwest Seal Rock (NWSR) over 
the course of five years (2022-2027). These regulations, which allow 
for the issuance of Letters of Authorization (LOA) for the incidental 
take of marine mammals during the described activities and specified 
timeframes, prescribe the permissible methods of taking and other means 
of effecting the least practicable adverse impact on marine mammal 
species or stocks and their habitat, as well as requirements pertaining 
to the monitoring and reporting of such taking. We are also issuing a 
Letter of Authorization to cover the first year of these activities.

DATES: Effective from May 15, 2022 through May 14, 2027.

FOR FURTHER INFORMATION CONTACT: Amy Fowler, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-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.

[[Page 22485]]

Legal Authority for the Proposed Action

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs 
the Secretary of Commerce to allow, upon request, the incidental, but 
not intentional taking of small numbers of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region for up to 5 years if, 
after notice and public comment, the agency makes certain findings and 
issues regulations that set forth permissible methods of taking 
pursuant to that activity and other means of effecting the ``least 
practicable adverse impact'' on the affected species or stocks and 
their habitat (see the discussion below in the Mitigation section), as 
well as monitoring and reporting requirements. Section 101(a)(5)(A) of 
the MMPA and the implementing regulations at 50 CFR part 216, subpart I 
provide the legal basis for issuing this rule containing 5-year 
regulations, and for any subsequent Letters of Authorization (LOAs). As 
directed by this legal authority, this rule contains mitigation, 
monitoring, and reporting requirements.

Summary of Major Provisions Within the Regulations in This Final Rule

    Following is a summary of the major provisions of the regulations 
in this final rule regarding the Society's activities. These measures 
include:
    <bullet> Required implementation of mitigation to minimize impact 
to pinnipeds and avoid disruption to dependent pups, including several 
measures to approach haulouts cautiously to minimize disturbance, 
especially when pups are present.
    <bullet> Required monitoring of the project areas to detect and 
record the presence of marine mammals before initiating work.

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (as delegated to NMFS) to allow, upon 
request, the incidental, but not intentional, taking of small numbers 
of marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are made, regulations are issued, and notice is 
provided to the public.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of the takings are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.
    The MMPA states that the term ``take'' means to harass, hunt, 
capture, or kill, or attempt to harass, hunt, capture, or kill any 
marine mammal.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: Any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).

Summary of Request

    On March 23, 2020, NMFS received a request from the Society for a 
proposed rule and LOAs to take marine mammals incidental to lighthouse 
maintenance and preservation activities at NWSR, offshore of Crescent 
City, CA. The application was deemed adequate and complete on April 16, 
2020. The Society's request is for take of a small number of California 
sea lions (Zalophus californianus), harbor seals (Phoca vitulina), 
Steller sea lions (Eumetopias jubatus), and northern fur seals 
(Callorhinus ursinus) by Level B harassment only. Neither the Society 
nor NMFS expects serious injury or mortality to result from this 
activity. On June 9, 2020 (85 FR 35268), we published a notice of 
receipt of the Society's application in the Federal Register, 
requesting comments and information related to the request for 30 days. 
We received no comments. After publication of the notice of receipt, 
the Society reevaluated their application and decided to seek changes 
to their deed restriction, so requested that this action be paused. 
Revised applications were submitted on September 2, 2020, December 9, 
2020, and a final revised application was submitted on August 6, 2021, 
which was deemed adequate and complete. On September 8, 2021 NMFS 
issued a proposed rule in the Federal Register (86 FR 50304) soliciting 
public comments for 30 days. All public comments were considered in 
developing this final rule, and are discussed below in the Comments and 
Responses section.
    NMFS previously issued nine 1-year Incidental Harassment 
Authorizations (IHAs) for similar work (75 FR 4774, January 29, 2010; 
76 FR 10564, February 25, 2011; 77 FR 8811, February 15, 2012; 78 FR 
71576, November 29, 2013; 79 FR 6179, February 3, 2014; 81 FR 9440, 
February 25, 2016; 82 FR 11005, February 17, 2017; 83 FR 19254, May 2, 
2018; and 84 FR 15598, April 16, 2019). Generally speaking, the Society 
complied with the requirements (e.g., mitigation, monitoring, and 
reporting) of the previous IHAs. However, misunderstandings in past 
implementation have resulted in missing or incorrectly recorded 
monitoring data, which compelled NMFS to require more frequent 
reporting in the first year (at least) of this rule to ensure 
appropriate monitoring and reporting implementation in the future. 
Information regarding their monitoring results may be found in the 
Potential Effects of Specified Activities on Marine Mammals and their 
Habitat and Estimated Take sections.

Comments and Responses

    We received comments from 5 private citizens on the proposed rule.
    Comment: Three of the comments were from students who largely 
summarized various aspects of the incidental take authorization process 
and support issuance of the incidental take authorization. Ryan 
Kowalski comments that ``the proposed rule is justified and properly 
authorized.'' Chelsea Rasmussen agrees with this proposed rule and 
notes the extensive citations and prior authorizations and suggests the 
data shows ``a limited potential for the requested work to cause any 
kind of long term disturbance of the present species of marine 
mammal.'' Negative effects of not allowing the project to go forward 
are also discussed. Benjamin Short believes the Society ``should be 
able to carry out their maintenance tasks to the lighthouse'' since the 
Society has ``done its due diligence to negate any adverse

[[Page 22486]]

impact their work will have on the pinnipeds present.'' He points to 
``a clear and concise mitigation plan'' and ``very comprehensive 
monitoring and reporting measures.''
    Response: NMFS appreciates the commenters' thoughtful responses.
    Comment: Jean Public commented that the seals were at the site 
first and the authorization should not be issued.
    Response: NMFS appreciates this comment. However, the MMPA does not 
permit us to deny an incidental harassment authorization because a 
species existed in a location before a proposed activity. As described 
herein, the requirements for issuance of MMPA incidental take 
regulations for this activity have been satisfied.
    Comment: Tarin Schalow also disagrees ``with the decision to grant 
a 5-year authorization to the Society.'' The commenter is concerned the 
potential shift to year-round activity ``on a more consistent basis may 
have more than a negligible impact on the pinnipeds.'' The adaptive 
management provisions are acknowledged, but the commenter argues for 
unspecified additional protections ``in case the pinniped stock of the 
area does become impacted more than a negligibly.'' The commenter is 
also concerned about the ``misunderstandings in past implementation'' 
of the Society's prior IHAs and argues we should not grant a five-year 
authorization until the Society is able to demonstrate proper 
implementation and adherence to requirements.
    Response: We appreciate this comment but disagree that year-round 
activity may have more than a negligible impact on the marine mammals. 
We analyzed the effects of allowing year-round activity in the proposed 
rule, and the commenter provides no new information to revise that 
analysis. As the commenter notes, the proposed authorization includes 
an adaptive management provision that would allow us to modify the 
terms and conditions of the authorization should new information come 
to light on the effect of the activity on marine mammals. In addition, 
we note we regularly authorize year-round construction and other 
activities in the region that also do not cause more than negligible 
impacts on pinnipeds. We also note that, at this time, the Society has 
been unable to modify the terms of their deed, so the current work 
window restrictions of the deed will remain in place for the time 
being.
    We share the commenter's concerns about the ``misunderstandings in 
past implementation'' of the Society prior IHAs. This is why we have 
initially increased the frequency of reporting for the Society to 
quarterly instead of our more typical yearly reporting requirement. 
This is also why the initial LOA we are issuing is only valid for 1-
year, rather than for the entirety of the possible 5 years. We have 
also been engaged in more extensive than normal planning with the 
Society with regards to their monitoring and reporting plans and 
preparations before issuing this final rule and initial LOA to ensure 
that implementation and compliance will be successful. We will 
reevaluate the Society's implementation and compliance in accordance 
with the terms of this final rule and the one-year LOA before issuing 
additional LOAs.

Changes From Proposed to Final Rule

    The duration of effectiveness for the regulations in this final 
rule is five years, as envisioned in the proposed rule, although this 
final rule is effective from May 15, 2022, through May 14, 2027, rather 
than from 2021-2026, as generally envisioned in the proposed rule. 
Additionally, NMFS has removed a mitigation requirement from the 
proposed rule that required the door to the lower platform of the 
lighthouse station to remain closed at all times. This requirement was 
not practicable for the Society, as the open door is the only source of 
light in the lower room of the station, and the daylight is necessary 
for work crews to conduct their restoration activities. NMFS has also 
specified the amount of time that the Society must monitor for marine 
mammals, and the location from which the Society must monitor, before 
and after each helicopter takeoff and landing. Finally, NMFS has 
clarified the required assessment of behavioral responses that the 
Society must include in their monitoring report(s) to eliminate 
irrelevant behaviors.

Description of Specified Activity

Overview

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

Dates and Duration

    The Society proposes to conduct the activities (aircraft 
operations, lighthouse restoration and maintenance activities, and 
public tours) with a maximum of 70 helicopter flight days per year. The 
Society's deed restricts normal access from June 1 through October 15 
annually, so currently proposed trips under this application would 
occur from October 16 through May 31. However, the Society is 
attempting to have the deed revised to allow visits at any time of the 
year. Therefore we have considered the implications of possible visits 
during any month of the year in our analyses below and we could issue 
LOAs to cover this time of year should the society be successful in 
revising their deed. The regulations in this final rule are valid for a 
period of 5 years (May 15, 2022 through May 14, 2027). Over the course 
of this 5-year authorization, the Society proposes a maximum of 350 
days of activities.

Specific Geographic Region

    The Station is located on NWSR, a small, rocky islet 
(41[deg]50'24'' N, 124[deg]22'06'' W), approximately 9 kilometers (km) 
(6.0 miles (mi)) offshore of Crescent City, California (41[deg]46'48''

[[Page 22487]]

N; 124[deg]14'11'' W). NWSR is approximately 91.4 meters (m) (300 feet 
(ft)) in diameter and peaks at 5.18 m (17 ft) above mean sea level.

Detailed Description of Specific Activity

    A detailed description of the Society's planned activities was 
provided in our proposed rule (86 FR 50304; September 8, 2021) and is 
not repeated here. No changes have been made to the specified 
activities described therein.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-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/draft-marine-mammal-stock-assessment-reports).

                    Table 1--Species That Spatially Co-Occur With the Activity to the Degree That Take Is Reasonably Likely To Occur
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                                                                                         ESA/ MMPA status;   Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
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                                                         Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and
 sea lions):
    California sea lion.............  Zalophus californianus.  U.S....................  -, -, N             257,606 (N/A, 233,515,     14,011       >320
                                                                                                             2014).
    Northern fur seal...............  Callorhinus ursinus....  California Breeding....  -, D, N             14,050 (N/A, 7,524,           451        1.8
                                                                                                             2013).
    Steller sea lion................  Eumetopias jubatus.....  Eastern U.S............  -, -, N             43,201 a (see SAR,          2,592        113
                                                                                                             43,201, 2017).
Family Phocidae (earless seals):
    Pacific harbor seal.............  Phoca vitulina           California.............  -, -, N             30,968 (N/A, 27,348,        1,641         43
                                       richardii.                                                            2012).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports, CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual Mortality/Serious Injury (M/SI) often cannot be determined precisely and is in some cases presented as a
  minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.

    As indicated above, all four species (with four managed stocks) in 
Table 1 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur, and we have authorized 
it. All species that could potentially occur in the proposed survey 
areas are included in Table 1. Detailed descriptions of these species 
were provided in our notice of proposed rulemaking (86 FR 50304; 
September 8, 2021) and are not repeated here. No new information is 
available.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    We provided discussion of the potential effects of the specified 
activity on marine mammals and their habitat in our Federal Register 
notice of proposed rulemaking (86 FR 50304; September 8, 2021) and it 
is not repeated here. The proposed rule included a summary and 
discussion of the ways that components of the specified activity may 
impact marine mammals and their habitat. The Estimated Take section 
later in this final rule includes a quantitative analysis of the number 
of individuals that are expected to be taken by this activity. The 
Negligible Impact Analysis and Determination section considers the 
content of the Negligible Impact Analysis and Determination section and 
the material it references, the Estimated Take section, and the 
Mitigation section to draw conclusions regarding the likely impacts of 
these activities on the reproductive success or survivorship of 
individuals and how those impacts on individuals are likely to impact 
marine mammal species or stocks.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this rulemaking, which informs both NMFS' 
consideration of ``small numbers'' and the negligible impact 
determinations.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the

[[Page 22488]]

MMPA defines ``harassment'' as: Any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).
    Authorized takes would be by Level B harassment only, in the form 
of disruption of behavioral patterns for individual marine mammals 
resulting from exposure to helicopter operations and lighthouse 
maintenance activities. Based on the nature of the activity, Level A 
harassment is neither anticipated nor authorized.
    As discussed earlier, behavioral (Level B) harassment is limited to 
movement and flushing, defined by the disturbance scale of pinniped 
responses to in-air sources to determine take (Table 2). Furthermore, 
no mortality is anticipated or authorized for this activity. Below we 
describe how the take is estimated.

Marine Mammal Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that inform the take 
calculations.

  Table 2--Disturbance Scale of Pinniped Responses to In-Air Sources To
                             Determine Take
------------------------------------------------------------------------
        Level          Type of response             Definition
------------------------------------------------------------------------
1...................  Alert............  Seal head orientation or brief
                                          movement in response to
                                          disturbance, which may include
                                          turning head towards the
                                          disturbance, craning head and
                                          neck while holding the body
                                          rigid in a u-shaped position,
                                          changing from a lying to a
                                          sitting position, or brief
                                          movement of less than twice
                                          the animal's body length.
2 *.................  Movement.........  Movements in response to the
                                          source of disturbance, ranging
                                          from short withdrawals at
                                          least twice the animal's body
                                          length to longer retreats over
                                          the beach, or if already
                                          moving a change of direction
                                          of greater than 90 degrees.
3 *.................  Flush............  All retreats (flushes) to the
                                          water.
------------------------------------------------------------------------
* Only Levels 2 and 3 are considered take, whereas Level 1 is not.

    The Society's monitoring efforts reported zero marine mammals 
present on NWSR, in 2010. Furthermore, operations were not conducted in 
the years 2013 through 2016; thus, monitoring was not conducted. No 
visits occurred in 2020. Visits have occurred in all other years since 
2010.
    Steller sea lions were first reported during restoration trips 
conducted in April (9) and November (350, with a maximum of 155/day) of 
2011 (St. George Reef Lighthouse Preservation Society (SGRLPS) 2011). 
Zero observations of Steller sea lions were reported during the one 
2012 restoration trip and three 2017 trips conducted (SGRLPS 2012, 
2018). Four trips were conducted in 2018 (February, March, April, and 
November); only the November session reported any individuals (three) 
on site (SGRLPS 2018). One restoration trip was conducted in November 
2019 and had 22 Steller sea lions present (SGRLPS 2020). In the event 
of an emergency trip to the lighthouse for repairs in summer, or if 
deed restrictions are changed, more Steller sea lions may be present in 
June and July (up to 350-400 animals based on CCR (2001)).
    The maximum number of California sea lions present per day (160) 
was observed during the November 2011 trip. The April and November 2011 
trip maximums were 2 and 430 individuals, respectively (SGRLPS 2011). 
Zero California sea lions were reported during the March 2012 trip 
(SGRLPS 2012). In 2017, the Society reported 16 and zero California sea 
lions during March and April trips, and 16 during a November trip for a 
landing zone inspection (SGRLPS 2017). Observations for the 2018 season 
totaled 40 individuals among its four trips (SGRLPS 2018). Eighteen 
California sea lions were reported during the November 2019 trip with a 
maximum of 10 per day (SGRLPS 2020). Should deed restrictions be 
altered to allow access during summer months, numbers could be somewhat 
higher based on the data in CCR (2001).
    Northern fur seals have not been observed during any of the 
Society's work from 2010 through 2019 (SGRLPS 2010; 2011; 2012; 2017; 
2018; 2020).
    The Society first reported 2 Pacific harbor seals on site during 
the March 2012 restoration trip (SGRLPS 2012). Zero harbor seals were 
reported during the 2017, 2018, or 2019 work seasons (SGRLPS 2017; 
2018; 2020).

Take Calculation and Estimation

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

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

    Based on the Society's previous monitoring reports, the maximum 
number of observations per day for each species is: Steller sea lions 
155, California sea lions 160, and Pacific harbor seals 2. No Northern 
fur seals have been seen in prior project monitoring but one was 
observed during the survey work for this project by CCR (2001), so we 
use one for these calculations.
    As discussed above, The Society is proposing no more than 70 flight 
days per year. This is an optimistic estimate that far exceeds prior 
efforts, but given adequate funding there is the need for extensive 
restoration work to the Station so the Society requested consideration 
of the additional days of work in the take estimate. Therefore NMFS 
estimates that approximately 10,850 Steller sea lions (calculated by 
multiplying the maximum single-day count of Steller sea lions that 
could be present (155) by 70 days of activities), 11,200 California sea 
lions, 140 Pacific harbor seals, and 70 Northern fur seals could be 
potentially taken by Level B behavioral harassment annually over the 
course of this rulemaking (Table 3). NMFS bases these estimates of the 
numbers of marine mammals that might be affected on consideration of 
the number of marine mammals that could be on NWSR in a worst case 
scenario based on prior monitoring, and the assumption that all animals 
present may exhibit behavioral responses that are considered take 
(Levels 2 and 3 as described in Table 2). Should deed restrictions be 
altered to allow access

[[Page 22489]]

during summer months, numbers of California sea lions and Steller's sea 
lions could be somewhat higher during a couple of those months based on 
the data in CCR (2001). Given these increases are limited in duration, 
only a fraction of the potential flight days could occur in summer, and 
the conservative nature of the maximum daily counts relative to the 
average observed animal counts from prior monitoring discussed above, 
we believe the take estimates are adequately precautionary.

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

Mitigation

    In order to promulgate regulations and issue LOAs under Section 
101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods 
of taking pursuant to such activity, and other means of effecting the 
least practicable impact on such species or stock and its habitat, 
paying particular attention to rookeries, mating grounds, and areas of 
similar significance, and on the availability of the species or stock 
for taking for certain subsistence uses (latter not applicable for this 
action). NMFS does not have a regulatory definition for ``least 
practicable adverse impact.'' NMFS regulations require applicants for 
incidental take authorizations to include information about the 
availability and feasibility (economic and technological) of equipment, 
methods, and manner of conducting the activity or other means of 
effecting the least practicable adverse impact upon the affected 
species or stocks and their habitat (50 CFR 216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned), and;
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost and impact on 
operations.
    The mitigation strategies described below largely follow those 
required and successfully implemented under previous incidental take 
authorizations issued in association with this project.
    Following are the mitigation measures:
    <bullet> No more than six flight days (up to two work trips) per 
month;
    <bullet> Avoid direct physical interaction with marine mammals 
during activity. If a marine mammal comes within 10 m of such activity, 
operations must cease until the animal leaves of its own accord;
    <bullet> Conduct training between construction supervisors and 
crews and tourists and the marine mammal monitoring team and relevant 
Society staff prior to the start of all visits and when new personnel 
join the work, so that responsibilities, communication procedures, 
monitoring protocols, and operational procedures are clearly 
understood. Visitors to the Station must be instructed to avoid 
unnecessary noise and not expose themselves visually to pinnipeds 
around the base of the lighthouse;
    <bullet> Halt loud outside activity upon observation on NWSR of 
either a species for which incidental take is not authorized or a 
species for which incidental take has been authorized but the 
authorized number of takes has been met;
    <bullet> Ensure that helicopter approach patterns to the NWSR are 
such that the timing and techniques are least disturbing to marine 
mammals. To the extent possible, the helicopter must approach NWSR when 
the tide is too high for marine mammals to haul out on NWSR. Avoid 
rapid and direct approaches by the helicopter to the station by 
approaching NWSR at a relatively high altitude (e.g., 800-1,000 ft; 
244-305 m). Before the final approach, the helicopter must circle 
lower, and approach from an area where the density of pinnipeds is the 
lowest. If for any safety reasons (e.g., wind conditions or visibility) 
such helicopter approach and timing techniques cannot be achieved, the 
Society must abort the restoration and maintenance session for the day;
    <bullet> Employ a protected species observer (PSO) and establish 
monitoring locations as described in the application and Section 5 of 
any LOA. The Holder must monitor the project area to the maximum extent 
possible based on the required number of PSOs, required monitoring 
locations, and environmental conditions. For all helicopter flights at 
least one PSO must be used; and
    <bullet> Monitoring must take place for all take-offs and landings.
    Based on our evaluation of the applicant's measures, as well as 
other measures considered by NMFS, NMFS has determined that the 
mitigation measures provide the means effecting the least practicable 
impact on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance.

Monitoring and Reporting

    In order to issue an LOA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
action area. Effective reporting is critical both to compliance as well 
as ensuring that the most value

[[Page 22490]]

is obtained from the required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
    <bullet> Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density).
    <bullet> Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas).
    <bullet> Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors.
    <bullet> How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks.
    <bullet> Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat).
    <bullet> Mitigation and monitoring effectiveness.

Visual Monitoring

    <bullet> Monitoring during each helicopter takeoff and landing must 
be conducted by qualified, NMFS-approved PSOs, in accordance with the 
following: PSOs must be independent and have no other assigned tasks 
during monitoring periods. At least one PSO must have prior experience 
performing the duties of a PSO. Other PSOs may substitute other 
relevant experience, education (degree in biological science or related 
field), or training. PSOs resumes must be approved by NMFS prior to 
beginning any activity subject to these regulations.
    <bullet> PSOs must record all observations of marine mammals as 
described in Section 5 of any LOA, regardless of distance from the 
activity. PSOs must document any behavioral reactions in concert with 
distance from the activity, according to the levels of response 
described in Table 2.
    PSOs must have the following additional qualifications:
    <bullet> Ability to conduct field observations and collect data 
according to assigned protocols;
    <bullet> Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
    <bullet> Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
    <bullet> Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates, times, and reason for implementation 
of mitigation (or why mitigation was not implemented when required); 
and marine mammal behavior;
    <bullet> Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary;
    <bullet> The Society must establish the following monitoring 
locations. For the first flight of the day a PSO with high definition 
camera must be on the first flight to the station. For 15 minutes 
before and after all other takeoffs and landings a PSO must be 
stationed on the platform of the lantern room gallery, and a PSO must 
be on the last departing helicopter of the day;
    <bullet> Aerial photo coverage of the island must be completed by 
an observer using a high definition camera. Photographs of all marine 
mammals hauled out on the island must be taken at an altitude greater 
than 300 meters. Photographs of marine mammals present at the last 
flight of the day must be taken from the helicopter or from the lantern 
room gallery platform just before the last flight; and
    <bullet> The Society and/or its designees must forward the 
photographs to a biologist capable of discerning marine mammal species 
if one is not present on the trip. The Society must provide the data to 
NMFS in the form of a report with a data table, any other significant 
observations related to marine mammals, and a report of restoration 
activities. The Society must make available the original photographs to 
NMFS or to other marine mammal experts for inspection and further 
analysis.

Reporting

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

[[Page 22491]]

report will constitute the final report. If comments are received, a 
final report addressing NMFS comments must be submitted within 30 days 
after receipt of comments.

Reporting Injured or Dead Marine Mammals

    In the event that personnel involved in the activities discover an 
injured or dead marine mammal, the LOA-holder must report the incident 
to the Office of Protected Resources (OPR) 
(<a href="/cdn-cgi/l/email-protection#d9898bf7908d89f794b6b7b0adb6abb0b7be8bbca9b6abadaa99b7b6b8b8f7beb6af"><span class="__cf_email__" data-cfemail="18484a36514c4836557776716c776a71767f4a7d68776a6c6b5876777979367f776e">[email protected]</span></a>), NMFS and to West Coast Regional 
Stranding Coordinator as soon as feasible. If the death or injury was 
clearly caused by the specified activity, the Society must immediately 
cease the specified activities until NMFS is able to review the 
circumstances of the incident and determine what, if any, additional 
measures are appropriate to ensure compliance with the terms of the LOA 
and regulations. The LOA-holder must not resume their activities until 
notified by NMFS. The report must include the following information:
    <bullet> Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    <bullet> Species identification (if known) or description of the 
animal(s) involved;
    <bullet> Condition of the animal(s) (including carcass condition if 
the animal is dead);
    <bullet> Observed behaviors of the animal(s), if alive;
    <bullet> If available, photographs or video footage of the 
animal(s); and
    <bullet> General circumstances under which the animal was 
discovered.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    Activities associated with the restoration, light maintenance and 
tour projects, as described previously, have the potential to disturb 
or displace marine mammals. Specifically, the specified activities may 
result in take, in the form of Level B harassment (behavioral 
disturbance) from in-air sounds and visual disturbance. Potential takes 
could occur if individual marine mammals are present nearby when 
activity is happening.
    No serious injury or mortality would be expected even in the 
absence of the mitigation measures. For all species, no Level A 
harassment is anticipated given the nature of the activities, i.e., 
much of the anticipated activity would involve noises below thresholds 
and visual disturbance from tens of meters away, and measures designed 
to minimize the possibility of injury. The potential for injury is 
small for pinnipeds, and is expected to be essentially eliminated 
through implementation of the planned mitigation measures.
    Effects on individuals that are taken by Level B harassment, on the 
basis of reports in the literature as well as monitoring from other 
similar activities, will likely be limited to reactions such as alerts 
or movements away from the lighthouse structure. Most likely, 
individuals will simply move away from the sound source and be 
temporarily displaced from the areas.
    Reporting from prior years of these activities has similarly 
reported no apparently consequential behavioral reactions or long-term 
effects on marine mammal populations as noted above. Repeated exposures 
of individuals to relatively low levels of sound and visual disturbance 
outside of preferred habitat areas are unlikely to significantly 
disrupt critical behaviors. Thus, even repeated Level B harassment of 
some small subset of the overall stock is unlikely to result in any 
significant realized decrease in viability for the affected 
individuals, and thus would not result in any adverse impact to the 
stock as a whole. Level B harassment will be reduced to the level of 
least practicable adverse impact through use of mitigation measures 
described herein and, if sound and visual disturbance produced by 
project activities is sufficiently disturbing, animals are likely to 
simply avoid the area while the activity is occurring.
    In combination, we believe that these factors, as well as the 
available body of evidence from other similar activities, demonstrate 
that the potential effects of the specified activities will have only 
minor, short-term effects on individuals. The specified activities are 
not expected to impact rates of recruitment or survival and will 
therefore not result in population-level impacts.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
    <bullet> No mortality is anticipated or authorized.
    <bullet> No Level A harassment is anticipated or authorized.
    <bullet> No important biologically important areas have been 
identified within the project area.
    <bullet> For all species, NWSR is a very small and peripheral part 
of their range.
    <bullet> Monitoring reports from prior activities at the site have 
documented little to no effect on individuals of the same species 
impacted by the specified activities.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the 
activity will have a negligible impact on all affected marine mammal 
species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Sections 101(a)(5)(A) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, where estimated numbers are 
available, NMFS compares the number of individuals taken to the most 
appropriate estimation of abundance of the relevant species or stock in 
our determination of whether an authorization is limited to small 
numbers of marine mammals. When the predicted number of individuals to 
be taken is fewer than one third of the species or stock abundance, the 
take is

[[Page 22492]]

considered to be of small numbers. Additionally, other qualitative 
factors may be considered in the analysis, such as the temporal or 
spatial scale of the activities.
    The amount of take NMFS authorizes is below one third of the 
estimated stock abundance of all species (in fact, take of individuals 
is less than 10 percent of the abundance of all of the affected stocks 
except Steller sea lions, see Table 3). This is likely a conservative 
estimate because they assume all takes are of different individual 
animals which is likely not the case, especially within individual 
trips. Many individuals seen within a single multi-day trip are likely 
to be the same across consecutive days, but PSOs would count them as 
separate takes across days.
    Based on the analysis contained herein of the activity (including 
the mitigation and monitoring measures) and the anticipated take of 
marine mammals, NMFS finds that small numbers of marine mammals will be 
taken relative to the population size of the affected species or 
stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or stocks would 
not have an unmitigable adverse impact on the availability of such 
species or stocks for taking for subsistence purposes.

Adaptive Management

    The regulations in this final rule governing the take of marine 
mammals incidental to Society lighthouse repair and tour operation 
activities contain an adaptive management component.
    The reporting requirements associated with this final rule are 
designed to provide NMFS with monitoring data from the prior year(s) to 
allow consideration of whether any changes are appropriate. The use of 
adaptive management allows NMFS to consider new information from 
different sources to determine (with input from the Society regarding 
practicability) on an annual basis if mitigation or monitoring measures 
should be modified (including additions or deletions). Mitigation 
measures could be modified if new data suggests that such modifications 
would have a reasonable likelihood of reducing adverse effects to 
marine mammals and if the measures are practicable. Additionally, 
monitoring or reporting measures may be modified if appropriate and, in 
this case, the rule specifies quarterly monitoring and reporting 
requirements for the first year, which may subsequently be modified to 
annual requirements, based on NMFS evaluation of the first three 
reports.
    The following are some of the possible sources of applicable data 
to be considered through the adaptive management process: (1) Results 
from monitoring reports, as required by MMPA authorizations; (2) 
results from general marine mammal and sound research; and (3) any 
information which reveals that marine mammals may have been taken in a 
manner, extent, or number not authorized by these regulations or 
subsequent LOAs.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of a rule and 
subsequent LOAs) with respect to potential impacts on the human 
environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 of the Companion Manual for NAO 216-6A, 
which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has determined 
that the issuance of the rule qualifies to be categorically excluded 
from further NEPA review.

Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of 
incidental take authorizations, NMFS consults internally whenever we 
propose to authorize take for endangered or threatened species, in this 
case with the West Coast Regional Protected Resources Division Office.
    No incidental take of ESA-listed species is authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal consultation under section 7 of the ESA is not required for this 
action.

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
final rule is not significant. Pursuant to section 605(b) of the 
Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of 
the Department of Commerce has certified to the Chief Counsel for 
Advocacy of the Small Business Administration that this final rule 
would not have a significant economic impact on a substantial number of 
small entities. The Society, a 501(c)(3) non-profit whose mission is to 
preserve the St. George Reef lighthouse, is the sole entity that would 
be subject to the requirements in these regulations, and the Society is 
not a small governmental jurisdiction, small organization, or small 
business, as defined by the RFA. Because of this certification, a 
regulatory flexibility analysis is not required and none has been 
prepared.
    This final rule contains a collection-of-information requirement 
subject to the provisions of the Paperwork Reduction Act. These 
requirements have been approved by OMB under control number 0648-0151 
and include applications for regulations, subsequent LOAs, and reports.

List of Subjects in 50 CFR Part 217

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

    Dated: April 11, 2022.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set forth in the preamble, 50 CFR part 217 is amended 
as follows:

PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS 
INCIDENTAL TO SPECIFIED ACTIVITES

0
1. The authority citation for part 217 continues to read as follows:

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


0
2. Add subpart F to part 217 to read as follows:
Subpart F--Taking Marine Mammals Incidental to Lighthouse Repair and 
Tour Operations at Northwest Seal Rock, California
Sec.
217.50 Specified activity and specified geographical region.
217.51 Effective dates.
217.52 Permissible methods of taking.

[[Page 22493]]

217.53 Prohibitions.
217.54 Mitigation requirements.
217.55 Requirements for monitoring and reporting.
217.56 Letters of Authorization.
217.57 Renewals and modifications of Letters of Authorization.
217.58 [Reserved]
217.59 [Reserved]

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


Sec.  217.50  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the St. George Reef 
Lighthouse Preservation Society (Society) and those persons it 
authorizes or funds to conduct activities on its behalf for the taking 
of marine mammals that occurs in the areas outlined in paragraph (b) of 
this section and that occurs incidental to lighthouse repair and tour 
operation activities.
    (b) The taking of marine mammals by the Society may be authorized 
in a Letter of Authorization (LOA) only if it occurs within Pacific 
Ocean waters in the vicinity of Northwest Seal Rock near Crescent City, 
California.


Sec.  217.51  Effective dates.

    Regulations in this subpart are effective from May 15, 2022 through 
May 14, 2027.


Sec.  217.52  Permissible methods of taking.

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


Sec.  217.53  Prohibitions.

    Except for taking authorized by a LOA issued under Sec. Sec.  
216.106 and 217.56 of this chapter, it shall be unlawful for any person 
to do any of the following in connection with the activities described 
in Sec.  217.50:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Sec.  216.106 of 
this chapter and Sec.  217.56;
    (b) Take any marine mammal not specified in such LOAs;
    (c) Take any marine mammal specified in such LOAs in any manner 
other than as specified; or
    (d) Take a marine mammal specified in such LOAs if NMFS determines 
such taking results in more than a negligible impact on the species or 
stocks of such marine mammal.


Sec.  217.54  Mitigation requirements.

    When conducting the activities identified in Sec.  217.50(a), the 
mitigation measures contained in any LOA issued under Sec.  216.106 of 
this chapter and Sec.  217.56 must be implemented. These mitigation 
measures shall include but are not limited to:
    (a) General conditions. (1) A copy of any issued LOA must be in the 
possession of the Society, supervisory personnel, pilot, protected 
species observers (PSOs), and any other relevant designees of the 
Holder operating under the authority of this LOA at all times that 
activities subject to this LOA are being conducted.
    (2) The Society must conduct training between supervisors and crews 
and the marine mammal monitoring team and relevant Society staff prior 
to the start of all trips and when new personnel join the work, so that 
responsibilities, communication procedures, monitoring protocols, and 
operational procedures are clearly understood. Visitors to the Station 
must be instructed to avoid unnecessary noise and not expose themselves 
visually to pinnipeds around the base of the lighthouse.
    (3) All personnel must avoid direct physical interaction with 
marine mammals during activity. If a marine mammal comes within 10 m of 
such activity, operations must cease until the animal leaves of its own 
accord.
    (4) Loud outside activity must be halted upon observation on 
Northwest Seal Rock (NWSR) of either a species for which incidental 
take is not authorized or a species for which incidental take has been 
authorized but the authorized number of takes has been met.
    (5) No more than two restoration trips, or 6 days of flight 
operations, are permitted per month.
    (b) Protocols. (1) The pilot must ensure that helicopter approach 
patterns to the NWSR are such that the timing and techniques are least 
disturbing to marine mammals. To the extent possible, the helicopter 
must approach NWSR when the tide is too high for marine mammals to haul 
out on NWSR. The helicopter must avoid rapid and direct approaches to 
the station by approaching NWSR at a relatively high altitude (e.g., 
800-1,000 ft; 244-305 m). Before the final approach, the helicopter 
must circle lower, and approach from an area where the density of 
pinnipeds is the lowest. If for any safety reasons (e.g., wind 
conditions or visibility) such helicopter approach and timing 
techniques cannot be achieved, the Society must abort the restoration 
and maintenance session for the day.
    (2) Monitoring must be conducted by a trained PSO, who must have no 
other assigned tasks during monitoring periods. Trained PSOs must be 
placed at the best vantage point(s) practicable to monitor for marine 
mammals and implement mitigation procedures when applicable. The 
Society must adhere to the following additional PSO qualifications:
    (i) Independent PSOs are required;
    (ii) At least one PSO must have prior experience working as an 
observer;
    (iii) Other observers may substitute education (degree in 
biological science or related field) or training for experience; and
    (iv) The Society must submit PSO resumes for approval by NMFS prior 
to beginning any activity subject to these regulations.
    (3) The PSO must monitor the project area to the maximum extent 
possible based on the required monitoring locations and environmental 
conditions. They must record all observations of marine mammals as 
described in Section 5 of any LOA, regardless of distance from the 
activity. A PSO with a high definition camera must be on the first 
flight to the station each day. For 15 minutes before and after all 
other takeoffs and landings a PSO must be stationed on the platform of 
the lantern room gallery, and a PSO must be on the last departing 
helicopter of the day.


Sec.  217.55  Requirements for monitoring and reporting.

    (a) PSOs must document any behavioral reactions in concert with 
distance from any project activity.
    (b) Reporting--(1) Reporting frequency. (i) The Society must submit 
a quarterly summary report to NMFS not later than 90 days following the 
end of each work quarter; after the first three quarterly submissions, 
NMFS will evaluate whether it is appropriate to modify to annual 
reports, and modify future LOAs as appropriate to indicate annual 
reporting requirements if so. The Society must provide a final report 
within 30 days following resolution of comments on each draft report.
    (ii) These reports must contain, at minimum, the following:
    (A) Dates and times (begin and end) of all marine mammal 
monitoring;
    (B) Activities occurring during all marine mammal monitoring (e.g., 
helicopter takeoffs and landings, construction activities);
    (C) PSO locations during marine mammal monitoring;
    (D) Environmental conditions during monitoring periods (at 
beginning and

[[Page 22494]]

end of PSO shift and whenever conditions change significantly), 
including Beaufort sea state and any other relevant weather conditions 
including cloud cover, fog, sun glare, and overall visibility to the 
horizon, and estimated observable distance;
    (E) Upon each flight, the following information: Name of PSO who 
sighted the animal(s) and PSO location and activity at time of 
sighting; time of sighting; identification of the animal(s) (e.g., 
genus/species, lowest possible taxonomic level, or unidentified), PSO 
confidence in identification, and the composition of the group if there 
is a mix of species; distance and bearing of each marine mammal 
observed relative to the activity for each flight; estimated number of 
animals (min/max/best estimate); estimated number of animals by cohort 
(adults, juveniles, neonates, group composition, etc.); and description 
of any marine mammal behavioral observations (e.g., observed behaviors 
such as feeding or traveling), including an assessment of behavioral 
responses thought to have resulted from the activity according to the 
3-point scale as defined in the LOA (e.g., no response or changes in 
behavioral state such as changing direction or flushing);
    (F) Number of marine mammals detected, by species; and
    (G) Detailed information about any implementation of any mitigation 
triggered, a description of specific actions that ensued, and resulting 
changes in behavior of the animal(s), if any.
    (2) The Society must submit a comprehensive summary report to NMFS 
not later than 90 days following the conclusion of marine mammal 
monitoring efforts described in this subpart.
    (c) Reporting of injured or dead marine mammals. (1) In the event 
that personnel involved in the construction activities discover an 
injured or dead marine mammal, the LOA-holder must immediately report 
the incident to the Office of Protected Resources (OPR) 
(<a href="/cdn-cgi/l/email-protection#7c2c2e5235282c523113121508130e15121b2e190c130e080f3c12131d1d521b130a"><span class="__cf_email__" data-cfemail="aefefc80e7fafe80e3c1c0c7dac1dcc7c0c9fccbdec1dcdaddeec0c1cfcf80c9c1d8">[email protected]</span></a>), NMFS and to West Coast Regional 
Stranding Coordinator as soon as feasible. If the death or injury was 
clearly caused by activities specified at Sec.  217.50, the Society 
must immediately cease the specified activities until NMFS is able to 
review the circumstances of the incident and determine what, if any, 
additional measures are appropriate to ensure compliance with the terms 
of these regulations and LOAs. The LOA-holder must not resume their 
activities until notified by NMFS. The report must include the 
following information:
    (i) Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    (ii) Species identification (if known) or description of the 
animal(s) involved;
    (iii) Condition of the animal(s) (including carcass condition if 
the animal is dead);
    (iv) Observed behaviors of the animal(s), if alive;
    (v) If available, photographs or video footage of the animal(s); 
and
    (vi) General circumstances under which the animal was discovered.
    (2) [Reserved]


Sec.  217.56  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the Society must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) If an LOA expires prior to the expiration date of these 
regulations, the Society may apply for and obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, the Society must 
apply for and obtain a modification of the LOA as described in Sec.  
217.57.
    (e) The LOA shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA shall be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of an LOA shall be published in 
the Federal Register within 30 days of a determination.


Sec.  217.57  Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec.  216.106 of this chapter and Sec.  
217.56 for the activity identified in Sec.  217.50(a) shall be renewed 
or modified upon request by the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision in paragraph (c)(1) 
of this section); and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For LOA modification or renewal requests by the applicant that 
include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in paragraph (c)(1) of this section) that do not change the 
findings made for the regulations or result in no more than a minor 
change in the total estimated number of takes (or distribution by 
species or years), NMFS may publish a notice of proposed LOA in the 
Federal Register, including the associated analysis of the change, and 
solicit public comment before issuing the LOA.
    (c) An LOA issued under Sec. Sec.  216.106 and 217.56 of this 
chapter for the activity identified in Sec.  217.50(a) may be modified 
by NMFS under the following circumstances:
    (1) Adaptive management. NMFS may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting with the Society regarding the practicability of the 
modifications) if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of the mitigation and monitoring 
set forth in the preamble for these regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from the Society's monitoring from the previous 
year(s).
    (B) Results from other marine mammal and/or sound or disturbance 
research or studies.
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
will publish a notice of proposed LOA in the Federal Register and 
solicit public comment.
    (2) Emergencies. If NMFS determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in LOAs issued pursuant to Sec.  216.106 of 
this chapter and Sec.  217.56, an LOA may be modified without prior 
notice or opportunity for public comment. Notice would be published in

[[Page 22495]]

the Federal Register within 30 days of the action.


Sec. Sec.  217.58-217.59   [Reserved]

[FR Doc. 2022-08031 Filed 4-14-22; 8:45 am]
BILLING CODE 3510-22-P


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