[Federal Register Volume 83, Number 44 (Tuesday, March 6, 2018)]
[Notices]
[Pages 9483-9497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-04440]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XF933


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Seabird and Shorebird Research and 
Monitoring in Massachusetts

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

ACTION: Notice; proposed incidental harassment authorization; request 
for comments.

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SUMMARY: NMFS has received a request from the Eastern Massachusetts 
(MA) National Wildlife Refuge (NWR) Complex, U.S. Fish and Wildlife 
Service (USFWS), for authorization to take marine mammals incidental to 
conducting seabird and shorebird monitoring and research in the Eastern 
MA NWR Complex (Complex). Pursuant to the Marine Mammal Protection Act 
(MMPA), NMFS is requesting comments on its proposal to issue an 
incidental harassment authorization (IHA) to incidentally take marine 
mammals during the specified activities. NMFS will consider public 
comments prior to making any final decision on the issuance of the 
requested MMPA authorizations and agency responses will be summarized 
in the final notice of our decision.

DATES: Comments and information must be received no later than April 5, 
2018.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Physical comments should be sent to 
1315 East-West Highway, Silver Spring, MD 20910 and electronic comments 
should be sent to [email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments received electronically, including 
all attachments, must not exceed a 25-megabyte file size. Attachments 
to electronic comments will be accepted in Microsoft Word or Excel or 
Adobe PDF file formats only. All comments received are a part of the 
public record and will generally be posted online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-research-and-other-activities without change. All 
personal identifying information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.

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/national/marine-mammal-protection/incidental-take-authorizations-research-and-other-activities. In case of problems 
accessing these documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) 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 and either regulations are issued or, if 
the taking is limited to harassment, a notice of a proposed 
authorization is provided to the public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth.
    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, kill or attempt to harass, hunt, capture, or kill any marine 
mammal.
    Except with respect to certain activities not pertinent here, the 
MMPA

[[Page 9484]]

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).

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 an 
incidental harassment authorization) with respect to potential impacts 
on the human environment.
    This action is consistent with categories of activities identified 
in CE B4 of the Companion Manual for NOAA Administrative Order 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 
preliminarily determined that the issuance of the proposed IHA 
qualifies to be categorically excluded from further NEPA review.
    We will review all comments submitted in response to this notice 
prior to concluding our NEPA process or making a final decision on the 
IHA request.

Summary of Request

    On December 5, 2017, NMFS received a request from the USFWS for an 
IHA to take marine mammals incidental to seabird and shorebird 
monitoring and research activities within the Complex. NMFS determined 
the application adequate and complete on December 18, 2017. The USFWS's 
request is for take of gray seals and harbor seals by Level B 
harassment only. Neither the USFWS nor NMFS expect mortality to result 
from this activity and, therefore, an IHA is appropriate.
    NMFS previously issued an IHA to the USFWS for similar work (82 FR 
12342, March 2, 2017). The USFWS complied with all the requirements 
(e.g., mitigation, monitoring, and reporting) of the previous IHA and 
information regarding their monitoring results may be found in the 
Estimated Take section.

Description of Proposed Activity

Overview

    The USFWS is proposing to conduct biological tasks for refuge 
purposes at Monomoy NWR, Nantucket NWR, and Nomans Land Island NWR in 
MA. These three refuges are managed through the Complex as part of the 
NWR System of the USFWS. Complex staff census and monitor the presence 
of breeding and migrating shorebirds using the beaches of Monomoy, 
Nantucket, and Nomans Land Island NWRs for nesting from April 1 to 
November 30, annually. Monitoring activities occur daily (on Monomoy 
and Nantucket) from April to August and is necessary to document the 
productivity (number of chicks fledged per pair) and population of 
protected shorebird and seabird species. Monomoy NWR also participates 
in several less frequent, but equally important, high priority 
conservation tasks to monitor for threatened and endangered species, 
including censusing northeastern beach tiger beetles (Cicindela 
dorsalis) and participating in a red knot (Calidris canutus) migration 
study during annual southward migration. Additionally, both Monomoy and 
Nantucket NWRs serve as vital staging grounds for migrating roseate 
terns (Sterna dougallii), where USFWS staff resight and stage counts.

Dates and Duration

    The USFWS proposes to conduct the research activities at various 
times for each project from April 1 through November 30, 2018. Due to 
scheduling, time, tide constraints, and favorable weather/ocean 
conditions, the exact survey dates and durations are variable. The 
proposed IHA, if issued, would be effective from April 1, 2018 through 
March 31, 2019. More information on the scope of proposed activities 
can be found in the Detailed Description of Activities section.

Specific Geographic Region

    The Complex is made up of eight refuges, including its three 
coastal refuges: Monomoy NWR, Nantucket NWR, and Nomans NWR. The three 
main activity sites are NWRs managed by the USFWS and are islands 
located off the coast of Cape Cod, MA. Although Monomoy NWR consists of 
three managed barrier islands, pinnipeds are only disturbed while 
carrying out biological activities on the Atlantic side of South 
Monomoy Island where gray seals primarily haul out. Therefore, 
activities mentioned at Monomoy NWR will only refer to South Monomoy 
Island. While biological tasks performed at these three refuges differ 
in some regard, all activities are necessary to carry out high priority 
conservation work for threatened and endangered species. Each activity 
location is described below.
    1. Monomoy NWR (N 41.590348, W -69.987432): This site refers to the 
Atlantic side of South Monomoy Island at Monomoy NWR. Seals use most of 
the ocean-facing beach of this island as a haulout site. See Figure 1 
of the USFWS's application.
    2. Nantucket NWR (N 41.391754, W -70.050568): This site refers to 
Nantucket NWR located on the northeast tip of Nantucket Island. The 
point itself is the primary haulout site for this location. See Figure 
2 of the USFWS's application.
    3. Nomans NWR (N 41.264267, W -70.812228): This site refers to 
Nomans Land Island located off the coast of Martha's Vineyard. Seals 
here haul out on the northeast peninsula, and sporadically along the 
northern shoreline. The rocks around the island are sometimes utilized 
as well. See Figure 3 of the USFWS's application.
    4. Cape Cod National Seashore nearby beaches (see Figure 4 of the 
USFWS's application):
    A. Coast Guard Beach (N 41.842333, W -69.943834): This site refers 
to one of the beaches located at the Cape Cod National Seashore in 
Eastham, MA. The seals here haul out on the J-bars that form on the 
beach.
    B. North Beach Island (N 41.669441, W -69.942765): This site refers 
to an island located at the Cape Cod National Seashore in Chatham, MA. 
The seals here haul out on the southwest end of the island.
    C. High Head (N 42.066108, W -70.111318): This site refers to a 
beach located at the Cape Cod National Seashore in Truro, MA.
    D. Jeremy Point (N 41.884300, W -70.069532): This site refers to 
Jeremy Point located on the Cape Cod bayside at the Cape Cod National 
Seashore in Wellfleet, MA. The seals here haul out on the sand flats in 
the waters around the point.
    E. Provincetown Harbor (N 42.022342, W -70.178662): This site 
refers to the west end of the harbor in Provincetown. This is a new 
haulout as of fall 2015 and has only been observed a few times by the 
Provincetown Center for Coastal Studies (CCS) (L.Sette, CCS, personal 
communication 2016).

Detailed Description of Specific Activity

    A description of each activity, based on location, is presented 
below. A summary of this information can also be found in Table 1.

[[Page 9485]]

1. Shorebird and Seabird Nest Monitoring and Research
Monomoy NWR
    On January 10, 1986, the USFWS listed the Atlantic Coast population 
of piping plovers (Charadrius melodus) as threatened under the 
provisions of the U.S. Endangered Species Act (ESA) of 1973. Currently, 
Monomoy NWR serves as a nesting site for six percent of the breeding 
piping plover pairs in MA. Therefore, management and protection of the 
piping plover is one of the priority programs for the refuge. Many 
other avian species benefit from piping plover management, including 
the state listed species of concern least tern (Sternula antillarum) 
and American oystercatcher (Haematopus palliates). Monomoy NWR has a 
responsibility to follow the guidelines provided for management in the 
revised 1996 recovery plan for the species (USFWS 1996). The primary 
objective of the recovery program is to remove the Atlantic Coast 
piping plover population from the List of Endangered and Threatened 
Wildlife and Plants by: (1) Achieving well-disturbed increases in 
numbers and productivity of breeding pairs, and (2) providing for long-
term protection of breeding and wintering plovers and their habitat. 
Actions needed to achieve these objectives include: (1) Manage breeding 
piping plovers and habitat to maximize survival and productivity, (2) 
monitor and manage wintering and migration areas to maximize survival 
and recruitment into the breeding population, (3) undertake scientific 
investigations that will facilitate recovery efforts, (4) develop and 
implement public information and education programs, and (5) review 
progress towards recovery annually and revise recovery efforts as 
appropriate (USFWS 1996).
    The piping plover recovery efforts at the Complex correspond 
closely to management recommendations in the Piping Plover Recovery 
Plan. In order to monitor the productivity (number of chicks fledged 
per pair) of piping plovers at Monomoy NWR, it is necessary to identify 
suitable nesting habitat for the species. At Monomoy, piping plovers 
generally select areas that are sandy with some cobble on the beach 
face and occasionally nest in dense vegetation or behind primary dunes. 
The same can be said for least terns and American oystercatcher pairs 
which also nest on South Monomoy Island. These nesting areas are 
adjacent to known gray seal haulout sites.
    Piping plovers begin returning to their Atlantic Coast nesting 
beaches in mid-March. The first nest is generally laid in mid-April and 
eggs will continue to be present on the beach until late July. During 
this time, nests are located by USFWS staff by looking for a number of 
signs: Continuous presence of adult birds, courtship and territorial 
behavior in a certain area, large concentrations of tracks, and scrapes 
(nests or nest attempts). Methods for finding nests include waiting for 
a disturbed bird to return to its nest or covering probable nesting 
areas by searching the ground for signs of scraps and zig-zagging the 
whole area to make sure the entire habitat is covered. Methods for 
finding nests can sometimes lead to seal disturbance. Nests are visited 
4-5 times a week and confirmation of adult presence and incubation is 
confirmed at a distance when possible to prevent disturbance. Nests 
hatch after 28 days of incubation and chicks will remain with one or 
both parents until they fledge at 25-35 days of age. Depending on the 
date of hatching, flightless chicks may be present on refuge beaches 
from mid-May until late August. Chicks are monitored until they fledge 
and may move hundreds of yards from the nest site to feed. Feeding 
areas include intertidal areas along the ocean and sound sides of South 
Monomoy Island as well as washover areas.
    Similar activities are performed when searching and monitoring 
American oystercatcher nests and broods. No American oystercatcher 
pairs nested near seal haulout sites in 2015, but have nested on the 
ocean side of South Monomoy Island in previous years. In 2001, the 
American oystercatcher warranted special attention from the U.S. 
Shorebird Conservation Plan after the population severely declined to 
under 11,000 individuals. Monomoy NWR has the largest concentration of 
nesting American oystercatchers on Cape Cod and nesting success at this 
site is important to the survival of the species. The nesting season 
occurs from the end of April until mid-August. Monomoy NWR also serves 
as an important staging site for resting migrants, and bands are often 
read and reported to the American Oystercatcher Working Group. Staging 
American oystercatcher will sometimes roost near seal haulout sites.
    Least terns nest in small groups around South Monomoy Island. 
Productivity is not measured throughout the season, but nesting pairs 
are censused during a 2-3 day period in mid-June. Least terns are 
censused using the line-sweep method throughout the extent of the 
nesting colonies and checked by staff weekly to gauge productivity.
    USFWS staff install symbolic fencing (sign posts with ``area 
closed'' and ``beach closed'' informational signs) around nest sites of 
piping plovers, American oystercatchers, and least terns to inform the 
public about the bird's presence and protect critical habitat from 
human disturbance. These areas are adjacent to known seal haulout sites 
and are regularly monitored throughout the season.
Nantucket NWR
    Similar biological activities are carried out on Nantucket NWR as 
Monomoy NWR. Piping plover, least tern, and American oystercatcher are 
known species to use Nantucket NWR and nearby lands for nesting from 
the end of April until mid-August. Beach nesting birds are monitored 
following similar methods and protocols as Monomoy NWR and areas of 
nesting are posted with closed signs. Signs are placed at least 150 
feet from known seal haulout areas on Nantucket NWR, which 
predominately occur at the north tip of the Refuge. These posts help 
protect those areas from public disturbance. Nesting beach birds 
generally do not nest within the closed area for seals, but instead 
nest adjacent to the haulouts. If need be, staff will briefly enter the 
closed area to check nests, but otherwise stay outside of the closed 
area, greater than 150 feet from seal haulouts. Seabirds and shorebirds 
do not nest on the Complex every year; in 2015, no beach birds nested 
on Nantucket NWR.
Nomans Land Island NWR
    Nomans NWR is closed to the public and is only visited 1-3 times a 
year by USFWS staff. During these visits, the presence of shorebirds 
and seabirds are noted for record. Shorebirds and seabirds are 
inventoried by scoping suitable nesting and feeding habitat on the 
island. The greatest potential for marine mammal disturbance occurs in 
safe boat landing zones, because these areas often overlap with hauled 
out seals. Every precautionary measure is taken to reduce disturbance 
to seals on Nomans Land Island NWR, but staff will land a boat or walk 
within 50 yards (yd) of seal haulouts if safety reasons prevail. A 25-
foot Parker is used to travel to and from Nomans NWR.
2. Roseate Tern Staging Counts and Resighting
Monomoy NWR
    On November 2, 1987, the Service listed the northeastern breeding 
population of the roseate terns as Federally endangered. Monomoy NWR 
serves as an important nesting and

[[Page 9486]]

staging site for the species. Monomoy NWR has a responsibility to 
follow the guidelines provided for management in the Roseate Tern 
Recovery Plan for the Northeast population (USFWS 1998). The primary 
objective of the roseate tern recovery program is to promote an 
increase in breeding population size, distribution, and productivity so 
as to warrant reclassification to threatened status and eventual 
delisting. Actions needed to attain this objective include: (1) Oversee 
breeding roseate terns and their habitat to help increase survival and 
productivity including the physical maintenance, expansion, and 
enhancement of nesting habitat; (2) develop a management plan for 
monitoring wintering and migration areas; (3) secure unprotected sites 
through acquisition and easements; (4) develop outreach materials and 
implement education programs; (5) conduct scientific investigations 
that will facilitate recovery efforts; (6) review progress of recovery 
annually and revise recovery efforts as needed (USFWS 1998). While 
breeding roseate terns prefer nesting habitat far from seal haulout 
sites, migrating terns use areas adjacent to the beach edge. Cape Cod 
and the surrounding islands as a whole serves as an important staging 
ground for common terns (Sterna hirundo) and roseate terns. In fact, 
the entire northeast population of roseate terns stage in this area 
prior to migrating to Central and South America. The USFWS conduct 
staging tern counts to document the importance of Monomoy NWR relative 
to other sites and to record changes in use over time by gathering 
baseline data on the numbers of roseate terns staging on the Complex 
and adjacent beaches as well as the causes and duration of disturbances 
to staging terns. This is in compliance with the recovery plan to 
conduct scientific investigations that will facilitate recovery efforts 
(USFWS 1998).
    In August, USFWS staff traverse areas of suitable staging habitat, 
including sand flats and open sand beaches, and make quick estimates of 
the number of staging terns. The terns are counted using binoculars and 
spotting scopes from a distance that does not disturb the birds. Color 
bands, field readable bands, and any tagged or banded birds are 
identified for reporting purposes. Observations on behavior and 
disturbance are also documented. Depending on the size of the flock, 
these surveys can last anywhere between one to three hours.
Nantucket NWR
    Staging tern counts are carried out on Nantucket NWR following 
similar methods and protocols mentioned for Monomoy NWR.
Nomans Land Island NWR
    Staging tern counts are not performed on Nomans NWR.
3. Red Knot Stopover Study
Monomoy NWR and Nearby Beaches in Chatham, Orleans, and Eastham
    On December 11, 2014, the USFWS listed the rufa subspecies of the 
red knot as Federally threatened under the ESA. As noted in the State 
of the Birds 2014 report, the knot's status is representative of the 
steep declines represented in shorebirds that migrate long distances 
(NABCI 2014). Threats to shorebirds have become more diverse and 
widespread in recent decades, requiring coordinated conservation 
efforts across their vast ranges. Protection of breeding, migration, 
and wintering habitat is critical to this species' recovery (Niles et 
al., 2008).
    Southeastern MA, Monomoy NWR and surrounding beaches in Chatham, 
Orleans, and Eastham in particular, likely provide one of the most 
important areas for adult and juvenile red knots during their southward 
migration (Koch and Paton 2009; Harrington et al., 2010a; Harrington et 
al., 2010b). Research has shown that this region supports red knots 
bound for different winter destinations, including red knots wintering 
as far south as Patagonia (Harrington et al., 2010b). Currently, there 
is little information on migration routes, and no information on 
wintering sites of juvenile red knots.
    The red knot stopover study is not conducted on Nantucket NWR or 
Nomans NWR.
4. Northeastern Beach Tiger Beetle Census
    In August of 1990, the USFWS listed the northeastern beach tiger 
beetle as threatened under the ESA. Currently northeastern beach tiger 
beetle can be found at only two sites in MA: One on the south shore of 
Martha's Vineyard and one on South Monomoy Island and Nauset/South 
Beach in Chatham, MA (USFWS 1994, USFWS 2015). Searches on Monomoy in 
the 1980s failed to locate the northeastern beach tiger beetle, but the 
structure of the habitat seemed favorable, making Monomoy the leading 
candidate as an introduction site. The first beetle larvae transplant 
occurred in May 2000. Since 2004, tiger beetle larvae have not been 
transferred to Monomoy (USFWS 2015). However, through continued adult 
tiger beetle monitoring, the annual presence of tiger beetles has been 
documented on the refuge. Annual monitoring confirms successful 
survival and production of tiger beetles through all stages of life, 
and gives a firm indication of a new self-sustaining population at 
Monomoy NWR.
    Northeastern beach tiger beetle live their entire life on the 
beach, and prefer medium to medium-course sand. Adults occur on the 
beach from June through September and often congregate around the 
water's edge on warm days (USFWS 2011). On Monomoy NWR, the population 
occurs in habitat on the Atlantic side of South Monomoy Island on the 
water's edge and in the wrack line. Several index counts of the tiger 
beetle population are completed by USFWS staff during July and August 
each year. Counts are conducted by slowly walking the water's edge at a 
width of 2-3 people across and tallying adults seen on the surface of 
the beach until the extent of suitable habitat is covered.
    Northeastern beach tiger beetle surveys are not conducted on 
Nantucket NWR or Nomans Land Island NWR.
5. Coastal Shoreline Change Survey
    Since 2011, Monomoy has participated in a long-term coastal 
shoreline monitoring project in collaboration with Rutgers University 
and the National Park Service (NPS) protocol. The annual shoreline 
surveys are conducted twice a year to gain a finer understanding of the 
rate of shoreline change and to provide baseline information for sea 
level rise. Two 1-day surveys are conducted at most sites, one in the 
spring and one in the fall. Surveys are only conducted in the fall at 
Monomoy NWR, typically between September and November, consequent to 
the large number of seals using the area in the spring. To document 
accurate data on shoreline change, a handheld Trimble device is used to 
GPS the neap high tide swash line around the ocean-facing extent of 
South Monomoy Island by walking the beach at a normal pace. The survey 
takes approximately one day to complete.
    Shoreline surveys are not conducted on Nantucket NWR or Nomans NWR.

[[Page 9487]]



                     Table 1--Site Location and Duration of the Five Projects in the Eastern Massachusetts National Wildlife Refuge
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                                                                                                            Time of year
     Site location and duration                     Activity               -----------------------------------------------------------------------------
                                                                                  Monomoy NWR            Nantucket NWR               Nomans NWR
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Shorebird and Seabird Monitoring     April-August.........................  17 weeks, 2 days/week,  17 weeks *, 2 days/     1-3 days/year, ~1 hour/day.
 and Research.                                                               6-8 hours/day.          month, <1 hour/day.
Roseate Tern Staging Counts and      Mid July-September...................  3 weeks, 1-2 days/      6-8 weeks, 2 days/      N/A.
 Resighting.                                                                 week, 1-3 hours/day.    month, 1-3 hours/day.
Red Knot Stopover Study............  August-October.......................  Two trapping windows,   N/A...................  N/A.
                                                                             5-10 days in
                                                                             combination with Cape
                                                                             Cod beaches, 6-12
                                                                             hours/day.
Northeastern Beach Tiger Beetle      July-September.......................  1-3 days/year, 6-8      N/A...................  N/A.
 Census.                                                                     hours/day.
Coastal Shoreline Change Survey....  September-October....................  Once/year, 8 hours/day  N/A...................  N/A.
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* Shorebird and Seabird Monitoring and Research on Nantucket is contingent on the presence of nesting beach birds. In 2015, no shorebirds or seabirds
  nested on Nantucket NWR.

    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see ``Proposed 
Mitigation'' and ``Proposed Monitoring and Reporting'').

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 (SAR; https://www.fisheries.noaa.gov/topic/population-assessments/marine-mammals) 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 2 lists all species with expected potential for occurrence in 
the Complex and summarizes information related to the population or 
stock, including regulatory status under the MMPA and ESA and potential 
biological removal (PBR), where known. For taxonomy, we follow 
Committee on Taxonomy (2016). 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. Until 2017, NMFS SARs relied on Canadian Department 
of Fisheries and Oceans (DFO) population models to determine the 
abundance of gray seals in Canada. The portion of gray seals in U.S. 
waters was not determined until the 2017 draft SARs (NMFS 2017). All 
values presented in Table 2 are the most recent available at the time 
of publication and are available in the 2017 draft SARs (NMFS 2017). 
The 2017 draft SARs were published in the Federal Register on December 
19, 2017. The 2017 draft SARs are still up for public comment at the 
time of this publication (https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

             Table 2--General Information on Marine Mammals in the Vicinity of Eastern Massachusetts National Wildlife Refuge, Massachusetts
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                                                                                               ESA/ MMPA
                                                                                                status;       Stock abundance (CV,             Annual M/
            Common name                Scientific name                  Stock               strategic (Y/N)    Nmin, most recent       PBR       SI \3\
                                                                                                  \1\        abundance survey) \2\
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                                                         Order Carnivora--Superfamily Pinnipedia
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Family Phocidae (earless seals):
    Gray seal.....................  Halichoerus grypus     Western North Atlantic........  -,N               27,131 (N/A, 27,131,       1,554      5,207
                                     atlantica.                                                               2016).
    Harbor seal...................  Phoca vitulina         Western North Atlantic........  -,N               75,834 (0.15, 66,884,      2,006        368
                                     concolor.                                                                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: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of
  stock abundance. In some cases, CV is not applicable [explain if this is the case].
\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 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.


[[Page 9488]]

    All species that could potentially occur in the proposed survey 
areas are included in Table 2. As described below, both species (with 
two managed stocks) temporally and spatially co-occur with the activity 
to the degree that take is reasonably likely to occur, and we have 
proposed authorizing it.

Gray Seal

    There are three major populations of gray seals found in the world; 
eastern Canada (western North Atlantic stock), northwestern Europe, and 
the Baltic Sea. The gray seals that occur in the project area belong to 
the western North Atlantic stock, which ranges from New Jersey to 
Labrador. Based on genetic analysis from the Canadian and U.S. 
populations, all individuals were placed into one population providing 
further evidence that this stock is one interbreeding population (Wood 
et al., 2011). U.S. population abundance was estimated using minimum 
U.S. pup production (6,308 pups) fit to population models, yielding a 
U.S. stock abundance of 27,131 seals. U.S. pup production accounts for 
approximately six percent of the total pup production over the entire 
range of the stock (NMFS 2017). Current population trends show that 
gray seal abundance is likely increasing in the U.S. Atlantic Exclusive 
Economic Zone (Waring et al., 2016). Although the rate of increase is 
unknown, surveys conducted since their arrival in the 1980s indicate a 
steady increase in abundance in both Maine and Massachusetts (Waring et 
al., 2016). It is believed that recolonization by Canadian gray seals 
is the source of the U.S. population (Waring et al., 2016). Gray seals 
are not listed under the ESA and the stock is not considered strategic 
or depleted under the MMPA.
    Monomoy NWR is the largest haulout site for gray seals on the U.S. 
Atlantic seaboard, and one of only two consistent sites in 
Massachusetts (the other being Muskeget Island, west of Nantucket) 
where gray seals pup (USFWS 2015). Gray seals are known to use Monomoy 
NWR and Nantucket NWR land and water year round, with higher numbers 
accumulating during the winter and spring when pupping and molting 
occur. While gray seal pupping grounds are historically further north 
on Sable Island in Nova Scotia and in the Gulf of St. Lawrence in 
Canada, there has been a year-round breeding population on Cape Cod and 
the islands since the late 1990s (NOAA 2015a, USFWS 2015).
    Gray seals start to group up in fall and pupping generally occurs 
from mid-December to early February (USFWS 2015). Gray seal pupping on 
Monomoy NWR was limited in the past but has been increasing rapidly in 
recent years. By early spring, upwards of 19,000 gray seals can be 
found hauled out on Monomoy NWR (B. Josephson, NOAA, personal 
communication). While many of these seals use Monomoy NWR for breeding, 
others make their way to the refuge to molt. By late spring, gray seal 
abundance continues to taper until the fall.
    Gray seal pupping information for Nantucket NWR and Nomans Land 
Island NWR is limited, but evidence suggests that a small number of 
pups are born on the latter. Aerial images and evidence do not show 
that pups are born on Nantucket NWR, although speculations persist (S. 
Wood, NOAA, personal communication). Similar trends in distribution at 
Monomoy NWR occur at Nomans and Nantucket NWRs, but in significantly 
less numbers. Gray seals are most abundant at the activity sites from 
late fall until spring, and less frequent during the summer months when 
most activity is occurring. Raw counts of gray seal counts from 2015 
are summarized in Table 3.

 Table 3--Raw Count of the Maximum Number of Individual Gray Seals Using
     Monomoy NWR Lands and Surrounding Waters in 2015 Based on NOAA
                            Unpublished Data
              [B. Josephson, NOAA, personal communication]
------------------------------------------------------------------------
                               Gray seals
-------------------------------------------------------------------------
                          Month                              Raw count
------------------------------------------------------------------------
January.................................................           4,435
February................................................           6,047
March...................................................          16,764
April...................................................          18,098
May.....................................................          19,166
June....................................................           8,764
July....................................................             978
August..................................................           1,206
September...............................................             658
October.................................................           1,113
November................................................           2,379
December................................................             (*)
------------------------------------------------------------------------
* Not calculated.

Harbor Seal

    Harbor seals found on the project area are included in the western 
North Atlantic stock, which ranges from Canadian Arctic to southern New 
England and New York, and occasionally to the Carolinas (Waring et al., 
2016). Based on available counts along the Maine coast in 2012, the 
minimum population estimate is 75,834 (Waring et al., 2016). Harbor 
seals are not listed under the ESA and the stock is not considered 
strategic or depleted under the MMPA.
    Harbor seals occur seasonally in the Complex, and generally arrive 
in early September and remain through May (Waring et al., 2016). 
Numbers of these seals increase slowly through this time period and 
then quickly drop off in March as they make their northward movement 
from southern New England to Maine and eastern Canada, where they breed 
in mid-May (USFWS 2015). Gray seals seem to be displacing harbor seals 
to some extent, but the two species will haul out together, with gray 
seals occupying the upper beach and harbor seals staying closer to the 
water (D. Waring, personal communication). Pupping generally occurs 
between mid-May through June off the coast of Maine; however recent 
evidence suggests that some pupping may occur as far south as Manomet, 
MA, but does not occur in the project area.
    The best current abundance estimate of harbor seals is 75,834 (CV = 
0.15) which is from a 2012 survey (Waring et al., 2015). The minimum 
population estimate is 66,884 based on corrected available counts along 
the Maine coast in 2012. It is unclear how many harbor seals use the 
Complex. Harbor seals are seen infrequently and only occur seasonally. 
USFWS staff estimate that of all the seals they observe in the Complex, 
approximately five percent are harbor seals.

Sound Sources and Sound Characteristics

    NMFS does not expect acoustic stimuli to result from human 
presence, and will therefore not have the potential to harass marine 
mammals, incidental to the conduct of the proposed activities. One 
activity (cannon nets) may have an acoustic component, but we believe 
take from this activity can be avoided.
    This section includes a brief explanation of the sound measurements 
frequently used in the discussions of acoustic effects in this notice. 
Sound pressure is the sound force per unit area, and is usually 
measured in micropascals ([micro]Pa), where 1 pascal (Pa) is the 
pressure resulting from a force of one newton exerted over an area of 
one square meter. Sound pressure level (SPL) is the ratio of a measured 
sound pressure and a reference level. The commonly used reference 
pressure is 1 [micro]Pa for underwater, and the units for SPLs are dB 
re: 1 [micro]Pa. The commonly used reference pressure is 20 [micro]Pa 
for in air, and the units for SPLs are dB re: 20 [micro]Pa.

SPL (in decibels (dB)) = 20 log (pressure/reference pressure).


[[Page 9489]]


    SPL is an instantaneous measurement expressed as the peak, the 
peak-peak, or the root mean square (rms). Root mean square is the 
square root of the arithmetic average of the squared instantaneous 
pressure values. All references to SPL in this document refer to the 
root mean square unless otherwise noted. SPL does not take into account 
the duration of a sound.

Research Activities Sound Characteristics

    Activities that may have an acoustic component (e.g., cannon nets) 
are not expected to reach the thresholds for Level B harassment. Cannon 
nets could be an airborne source of noise, and have a measured SL of 
128 dB at one meter (m) (estimated based on a measurement of 98.4 dB at 
30 m; L. Niles, pers. comm., December 2016); however, the SPL is 
expected to be less than the thresholds for airborne pinniped 
disturbance (e.g., 90 dB for harbor seals, and 100 dB for all other 
pinnipeds) at 80 meters from the source. The USFWS proposes to stay at 
least 100 meters from all pinnipeds if cannon nets are to be used for 
research purposes.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The ``Estimated Take by Incidental Harassment'' section 
later in this document 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 this section, the ``Estimated Take by Incidental 
Harassment'' section, and the ``Proposed 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.
    Acoustic and visual stimuli generated by: (1) Vessel landings; (2) 
research activities (e.g., cannon nets, sign installation); and (3) 
human presence may have the potential to cause behavioral disturbance 
of pinnipeds.

Vessel Presence and Noise

    Researchers have demonstrated temporary threshold shifts (TTS) in 
certain captive odontocetes and pinnipeds exposed to strong sounds 
(reviewed in Southall et al., 2007). In 2004, researchers measured 
auditory fatigue to airborne sound in harbor seals, California sea 
lions, and northern elephant seals after exposure to non-pulse noise 
for 25 minutes (Kastak et al., 2004). In the study, the harbor seal 
experienced approximately six dB of TTS at 99 dB re: 20 [micro]Pa. The 
authors identified onset of TTS in the California sea lion at 122 dB 
re: 20 [micro]Pa. The northern elephant seal experienced TTS-onset at 
121 dB re: 20 [micro]Pa (Kastak et al., 2004).
    Pinnipeds have the potential to be disturbed by underwater noise 
generated by the engine of the vessel (Born et al., 1999; Richardson et 
al., 1995). Data on underwater TTS-onset in pinnipeds exposed to pulses 
are limited to a single study which exposed two California sea lions to 
single underwater pulses from an arc-gap transducer and found no 
measureable TTS following exposures up to 183 dB re: 1 [micro]Pa (peak-
to-peak) (Finneran et al., 2003).
    As a general statement from the available information, pinnipeds 
exposed to intense (approximately 110 to 120 dB re: 20 [micro]Pa) non-
pulse sounds often leave haulout areas and seek refuge temporarily 
(minutes to a few hours) in the water (Southall et al., 2007).
    It is likely that the initial vessel approach would cause a subset, 
or all of the marine mammals hauled out to flush into the water. The 
physical presence of the vessel could also lead to non-auditory effects 
on marine mammals involving visual or other cues. Noise from the vessel 
would not be expected to cause direct physical effects but have the 
potential to affect behavior. The primary factor that may influence 
abrupt movements of animals is engine noise, specifically changes in 
engine noise. Responses by mammals could include hasty dives or turns, 
change in course, or flushing from a haul out site.
    If pinnipeds are present on Nomans NWR when the vessel approaches, 
it is likely that the vessel would cause some number of the pinnipeds 
to flush; however, the USFWS staff would approach in a slow and 
controlled manner, as far away as possible from haulouts to prevent or 
minimize flushing. Staff would also avoid or proceed cautiously when 
operating boats in the direct path of swimming seals that may be 
present in the area as far from hauled out seals as possible.

Human Presence

    The appearance of USFWS personnel may have the potential to cause 
Level B harassment of marine mammals hauled out on the beaches in the 
proposed action area. Disturbance includes a variety of effects, 
including subtle to conspicuous changes in behavior, movement, and 
displacement. Disturbance may result in reactions ranging from an 
animal simply becoming alert to the presence of the USFWS staff (e.g., 
turning the head, assuming a more upright posture) to flushing from the 
haulout site into the water. NMFS does not consider the lesser 
reactions to constitute Level B (behavioral) harassment. However, if 
pinnipeds move greater than two body lengths or make longer retreats 
over the beach or if already moving, make a change of direction of 
greater than 90 degrees or flush into the water in response to the 
presence of surveyors, these are indicative of disruptions of 
behavioral patterns and thus are Level B harassment. NMFS uses a three-
point scale (Table 4) to determine which disturbance reactions 
constitute take under the MMPA. Levels two and three (movement and 
flush) are considered take, whereas Level one (alert) is not.

  Table 4--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.


[[Page 9490]]

    Reactions to human presence, if any, depends on species, state of 
maturity, experience, current activity, reproductive state, time of 
day, and many other factors (Richardson et al., 1995; Southall et al., 
2007; Weilgart 2007). These behavioral reactions from marine mammals 
are often shown as: Changing durations of surfacing and dives, number 
of blows per surfacing, or moving direction and/or speed; reduced/
increased vocal activities; changing/cessation of certain behavioral 
activities (such as socializing or feeding); visible startle response 
or aggressive behavior, avoidance of areas; and/or flight responses 
(e.g., pinnipeds flushing into the water from haulouts or rookeries). 
If a marine mammal does react briefly to human presence by changing its 
behavior or moving a small distance, the impacts of the change are 
unlikely to be significant to the individual, let alone the stock or 
population. However, if visual stimuli from human presence displaces 
marine mammals from an important feeding or breeding area for a 
prolonged period, impacts on individuals and populations could be 
significant (e.g., Lusseau and Bejder 2007; Weilgart 2007).
    Disturbances resulting from human activity can impact short- and 
long-term pinniped haulout behavior (Renouf et al., 1981; Schneider and 
Payne 1983; Terhune and Almon 1983; Allen et al., 1984; Stewart 1984; 
Suryan and Harvey 1999; and Kucey and Trites 2006). Numerous studies 
have shown that human activity can flush harbor seals off haulout sites 
(Allen et al., 1984; Calambokidis et al., 1991; and Suryan and Harvey 
1999) or lead Hawaiian monk seals (Neomonachus schauinslandi) to avoid 
beaches (Kenyon 1972). In one case, human disturbance appeared to cause 
Steller sea lions to desert a breeding area at Northeast Point on St. 
Paul Island, Alaska (Kenyon 1962).
    In cases where vessels actively approached marine mammals (e.g., 
whale watching or dolphin watching boats), scientists have documented 
that animals exhibit altered behavior such as increased swimming speed, 
erratic movement, and active avoidance behavior (Acevedo 1991; Trites 
and Bain 2000; Williams et al., 2002; Constantine et al., 2003), 
reduced blow interval (Richter et al., 2003), disruption of normal 
social behaviors (Lusseau 2003; 2006), and the shift of behavioral 
activities which may increase energetic costs (Constantine et al., 
2003; 2004).
    In 1997, Henry and Hammil (2001) conducted a study to measure the 
impacts of small boats (i.e., kayaks, canoes, motorboats, and 
sailboats) on harbor seal haulout behavior in Metis Bay, Quebec, 
Canada. During that study, the authors noted that the most frequent 
disturbances (n=73) were caused by lower speed, lingering kayaks, and 
canoes (33.3 percent) as opposed to motorboats (27.8 percent) 
conducting high-speed passes. The seal's flight reactions could be 
linked to a surprise factor by kayaks and canoes, which approach 
slowly, quietly, and low on the water making them look like predators. 
However, the authors note that once the animals were disturbed, there 
did not appear to be any significant lingering effect on the recovery 
of numbers to their pre-disturbance levels. In conclusion, the study 
showed that boat traffic at current levels has only a temporary effect 
on the haulout behavior of harbor seals in the Metis Bay area.
    In 2004, Acevedo-Gutierrez and Johnson (2007) evaluated the 
efficacy of buffer zones for watercraft around harbor seal haulout 
sites on Yellow Island, Washington. The authors estimated the minimum 
distance between the vessels and the haulout sites; categorized the 
vessel types; and evaluated seal responses to the disturbances. During 
the course of the seven-weekend study, the authors recorded 14 human-
related disturbances which were associated with stopped powerboats and 
kayaks. During these events, hauled out seals became noticeably active 
and moved into the water. The flushing occurred when stopped kayaks and 
powerboats were at distances as far as 453 and 1,217 ft (138 and 371 m) 
respectively. The authors note that the seals were unaffected by 
passing powerboats, even those approaching as close as 128 ft (39m), 
possibly indicating that the animals had become tolerant of the brief 
presence of the vessels and ignored them. The authors reported that on 
average, the seals quickly recovered from the disturbances and returned 
to the haulout site in less than or equal to 60 minutes. Seal numbers 
did not return to pre-disturbance levels within 180 minutes of the 
disturbance less than one quarter of the time observed. The study 
concluded that the return of seal numbers to pre-disturbance levels and 
the relatively regular seasonal cycle in abundance throughout the area 
counter the idea that disturbances from powerboats may result in site 
abandonment (Acevedo-Gutierrez and Johnson 2007). As a general 
statement from the available information, pinnipeds exposed to intense 
(approximately 110 to 120 decibels re: 20 [micro]Pa) non-pulsed sounds 
often leave haulout areas and seek refuge temporarily (minutes to a few 
hours) in the water (Southall et al., 2007).

Stampede

    There are other ways in which disturbance, as described previously, 
could result in more than Level B harassment of marine mammals. They 
are most likely to be consequences of stampeding, a potentially 
dangerous occurrence in which large numbers of animals succumb to mass 
panic and rush away from a stimulus. These situations are: (1) Falling 
when entering the water at high-relief locations; (2) extended 
separation of mothers and pups; and (3) crushing of pups by large males 
during a stampede. However, NMFS does not expect any of these scenarios 
to occur from the USFWS's research activities. There is the risk of 
injury if animals stampede towards shorelines with precipitous relief 
(e.g., cliffs). However, there are no cliffs on any of the haulout 
locations in the Complex. If disturbed, the small number of hauled out 
adult animals may move toward the water without risk of encountering 
barriers or hazards that would otherwise prevent them from leaving the 
area. Moreover, seals may flush into the water, but would not have the 
potential to crush other seals like sea lions do during a stampede. 
They may bump into each other, but this is not expected to have lethal 
consequences. Thus, in this case, NMFS considers the risk of injury, 
serious injury, or death to hauled-out animals as very low.

Anticipated Effects on Marine Mammal Habitat

    The only habitat modification associated with the proposed activity 
is installation of signs on beaches where haulouts are located. Thus, 
NMFS does not expect that the proposed activity would have any effects 
on marine mammal habitat and NMFS expects that there will be no long- 
or short-term physical impacts to pinniped habitat in the Complex.
    The proposed activities are not expected to result in any permanent 
impact on habitats used by marine mammals, including prey species and 
foraging habitat. The main impact associated with the proposed activity 
will be direct effects on marine mammals from human presence at 
haulouts (i.e., the potential for temporary abandonment of the site), 
previously discussed in this notice.
    NMFS does not anticipate that the proposed research and monitoring 
activities would result in any permanent effects on the habitats used 
by the

[[Page 9491]]

marine mammals in the proposed area, including the food sources they 
use (i.e., fish and invertebrates). Based on the preceding discussion, 
NMFS does not anticipate that the proposed activity would have any 
habitat-related effects that could cause significant or long-term 
consequences for individual marine mammals or their populations.

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization through this IHA, which will inform both 
NMFS' consideration of whether the number of takes is ``small'' and the 
negligible impact determination.
    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 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 USFWS research and monitoring surveys. NMFS 
expects that the presence of the USFWS personnel could disturb animals 
hauled out on beaches near research activities and that the animals may 
alter their behavior or attempt to move away from the USFWS personnel. 
Based on the nature of the activity, Level A harassment is neither 
anticipated nor proposed to be authorized.
    As described previously, no mortality is anticipated or proposed to 
be 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 will inform the take 
calculations.
    Gray Seal--Little information is known about gray seal age and sex 
distribution at the Complex. Gray seals may use Complex sites for 
pupping but research and monitoring activities are not performed during 
the breeding season, so no newborn pups will be disturbed. Group 
composition of individuals present at activity sites are likely to be 
of mixed age and sex classes.
    The greatest disturbance to gray seals is expected to occur during 
the beach nesting bird breeding season from April to August. During 
April and May, when seals are hauled out in very large numbers on the 
refuge, they may be present at beaches of varying widths, between 30 m 
and 300 m. In narrower areas, all of the seals may be disturbed; in 
mid-width areas, some of the younger and smaller seals may flush, but 
large males may remain on the beach; and in the widest area, USFWS 
activities may have no impact on the hauled out seals. USFWS staff 
conduct research and monitoring work outside of the season of highest 
gray seal numbers.
    Harbor Seal--Peak pupping for harbor seals is in June and occurs 
elsewhere, mainly on the coasts of Maine and maritime Canada. Prior to 
a 2001 study, it was thought that the majority of migrating harbor 
seals moving into New England waters were sub-adults and juveniles. The 
study revealed that adult seals also migrate to waters around Cape Cod 
(NOAA 2015b). However, data on harbor seal sex and age distribution is 
still insufficient to report. Harbor seals are only noted in gray seal 
haulouts if they are spotted by USFWS staff or researchers. USFWS staff 
estimate that gray seal haulouts are comprised of five percent or less 
harbor seals based on field observations, as harbor seals are not 
always seen mixed in with every gray seal haulout. Harbor seal numbers 
taper during the summer time when the highest level of seal disturbance 
occurs.

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate.
    As discussed earlier, NMFS assumes that pinnipeds that move greater 
than two body lengths or make longer retreats over the beach, or if 
already moving, make a change of direction of greater than 90 degrees 
or flush into the water in response to the presence of surveyors, are 
behaviorally harassed, and thus subject to Level B taking. Take 
estimation is based on the number of seals observed in past research 
years that have been flushed during research activities.

  Table 5--Estimated Number of Gray Seal Takes per Activity at Monomoy, Nantucket, and Nomans Land Island NWRs
----------------------------------------------------------------------------------------------------------------
                                                    Gray seal
-----------------------------------------------------------------------------------------------------------------
                              Age: all                                           Sex: Male and female
----------------------------------------------------------------------------------------------------------------
                                                 # takes/event             # events/activity        Total takes
----------------------------------------------------------------------------------------------------------------
Shorebird and Seabird Monitoring and      1000 (Monomoy)............  34 (Monomoy)..............          34,430
 Research.                                50 (Nantucket)............  8 (Nantucket).............  ..............
                                          10 (Nomans)...............  3 (Nomans)................  ..............
Roseate Tern Staging Counts and           10 (Monomoy)..............  6 (Monomoy)...............             100
 Resighting.                              10 (Nantucket)............  4 (Nantucket).............  ..............
Red Knot Stopover Study.................  250 (Monomoy).............  5 (Monomoy)...............           2,000
                                          150 (Cape Cod)............  5 (Cape Cod)..............  ..............
Northeastern Beach Tiger Beetle Census..  750 (Monomoy).............  3 (Monomoy)...............           2,250
Coastal Shoreline Change Survey.........  500 (Monomoy).............  1 (Monomoy)...............             500
                                                                                                 ---------------
    Total...............................  ..........................  ..........................          39,280
----------------------------------------------------------------------------------------------------------------

    Take estimates were based on NOAA unpublished data (Table 3) and 
USFWS field observations. While the average number of gray seals 
present (in regards to Monomoy) from April until August is greater than 
what is reflected in Table 5, not every hauled out seal on the beach is 
impacted from each activity, and not all seals are impacted from every 
activity event. This is especially true for Monomoy NWR because the 
seal haulout stretches across 4+ miles of beach, whereas the haulouts 
on Nomans NWR and Nantucket NWR are more compact at a central location.

[[Page 9492]]

    For shorebird and seabird monitoring and research on Monomoy, an 
average 1,000 gray seals was estimated based on Table 3 unpublished 
data and field observations of staff working on the island. Seals on 
South Monomoy Island will haul out in groups along the Atlantic 
shoreline. Although gray seals will haul out daily on South Monomoy, 
they will not always be present in the same location every day, and 
will haul out during different times of the day in accordance with the 
tide. USFWS staff face the greatest difficulty avoiding seals along the 
narrow shoreline sections of the island at the south end of South 
Monomoy Island. Seal haulouts can be readily avoided given the width of 
the beach and availability of preferred nesting beach bird habitat 
located closer to the dunes. While the average number of gray seals 
hauled out on South Monomoy between April and August is 9,000, an 
average of 1,000 individuals (at any given time) better describes the 
number of seals staff come into contact with (Table 5). USFWS staff 
monitor beach birds along the 4+ mile Atlantic shoreline of South 
Monomoy 5-6 days a week (Table 1). It is important to note that the 
entire extent of the shoreline is not monitored every day. Staff 
monitor as many areas as time allows, although there are some days when 
the north or south end of the island are not visited. Disturbance does 
not always occur when seal haulout areas are visited. During the 17 
week nesting season, USFWS estimates that seals are disturbed during 
shorebird and seabird monitoring twice a week. This equates to 34 
events of disturbance. The same ideology and number of events was 
applied to Nantucket for this activity (Table 5). Nomans Land NWR is 
only visited twice a year during the spring and summer, and the number 
of takes per event is based on observations of staff visiting the 
island.
    The number of gray seal takes per roseate tern staging count and 
resighting event was estimated based on staff observations from 
previous surveys. Seals are rarely disturbed during this activity, as 
roseate terns generally prefer to roost on flats or open sand, while 
seals prefer to haul out on the shoreline of South Monomoy and 
Nantucket. However, disturbance is possible if roseate terns roost 
adjacent to the northern end of the haulout area on South Monomoy 
Island or the haulout on Nantucket. The number of resighting events is 
based on previous year's survey efforts.
    The number of gray seal takes provided for the red knot study were 
derived from previous year's efforts and staff observation. Trapping 
does not always occur on South Monomoy Island, and in fact did not 
occur there in 2017. Trapping locations are chosen based on 
reconnaissance efforts conducted to locate red knot roosts. When 
trapping is conducted on South Monomoy Island, the cannon nets are set 
in one location along the Atlantic shoreline and are not moved for the 
remainder of the trapping effort. Therefore, only the haulouts closest 
to the trapping site may be affected, which the USFWS estimates to be 
around 250 seals (Table 5). Gray seal numbers for Cape Cod were 
provided from seal surveys conducted by the Provincetown Center for 
Coastal Studies. The number of events per red knot trapping activity 
reflects previous year's efforts. Trapping does not occur if a seal 
haulout is located within 100 m of a red knot roost.
    The number of gray seal takes estimated for Northeastern beach 
tiger beetle census is based on USFWS staff observation. This activity 
usually takes two to three days to conduct and results in some seal 
disturbance. The number of takes provided for the coastal shoreline 
change survey is based on unpublished data from NOAA for the month of 
October (Table 3). Monomoy no longer conducts shoreline surveys in the 
spring when seal haulouts are at their highest numbers; only one survey 
is conducted in the fall.
    It is unclear exactly how many harbor seals occur at the Complex, 
therefore it is difficult to determine how many takes occur since 
harbor seals are mainly present during the off season when research and 
monitoring is limited. Harbor seals are not present at all gray seal 
haulouts but at haulouts where both species are present, USFWS staff 
estimate that gray seal haulouts during the summer are comprised of 5 
percent or less harbor seals. Due to the lack of available data on 
presence, harbor seal takes are not broken down by activity or site. 
Rather, the number of harbor seal Level B takes requested was 
calculated by taking 5 percent of the total gray seal take estimate. 
USFWS is requesting 1,964 Level B takes of harbor seals incidental to 
research and monitoring activities.
    These incidental harassment take numbers represent less than three 
percent of the affected stocks of harbor seals. Under the 2017 draft 
SARs, the take number of gray seals exceeds the stock abundance 
estimate in U.S. waters (Table 6). However, actual take may be slightly 
less if animals decide to haul out at a different location for the day 
or if animals are foraging at the time of the survey activities. The 
number of individual seals taken is also assumed to be less than the 
take estimate since these species show high philopatry (Waring et al., 
2016; Wood et al., 2011). We expect the take numbers to represent the 
number of exposures, but assume that the same seals may be behaviorally 
harassed over multiple days, and the likely number of individual seals 
that may be harassed would be less. In addition, this project occurs in 
a small portion of the overall range of the Northwest Atlantic 
population of gray seals. While there is evidence of haulout site 
philopatry, resights of tagged and branded animals and satellite tracks 
of tagged animals show movement of individuals between the U.S. and 
Canada (Puryear et al., 2016). The percentage of time that individuals 
are resident in U.S. waters is unknown (NMFS 2017). Genetic evidence 
provides a high degree of certainty that the Western North Atlantic 
stock of gray seals is a single stock (Boskovic et al., 1996; Wood et 
al., 2011). Thus, although the U.S. stock estimate is only 27,131, the 
overall stock abundance is 451,131. The gray seal take estimate for 
this project represents less than nine percent of the overall Western 
North Atlantic stock abundance in U.S. and Canadian waters (Table 6).

                    Table 6--Percentage of Stock Affected by the Number of Takes per Species
----------------------------------------------------------------------------------------------------------------
                          Species                               Level B      Stock abundance \1\   % Population
----------------------------------------------------------------------------------------------------------------
Gray seal.................................................          39,280  \2\ 27,131 (451,131)    144.8 (8.71)
Harbor seal...............................................           1,964                75,834            2.59
----------------------------------------------------------------------------------------------------------------
\1\ NMFS 2017.
\2\ Overall Western North Atlantic stock abundance.


[[Page 9493]]

Proposed Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to such 
activity, ``and other means of effecting the least practicable impact 
on such species or stock and its habitat, paying particular attention 
to rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stock for taking'' for certain 
subsistence uses (latter not applicable for this action). 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 such 
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, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.

Mitigation for Marine Mammals and Their Habitat

    Time and Frequency--The USFWS would conduct research activities 
throughout the course of the year between April 1 and November 30, 
2018, outside of the seasons of highest seal abundance and pupping at 
the Complex.
    Vessel Approach and Timing Techniques--The USFWS would ensure that 
its vessel approaches to beaches with pinniped haulouts would be 
conducted so as to not disturb marine mammals as most practicable. To 
the extent possible, the vessel would approach the beaches in a slow 
and controlled approach, as far away as possibly from haulouts to 
prevent or minimize flushing. Staff would also avoid or proceed 
cautiously when operating boats in the direct path of swimming seals 
that may be present in the area.
    Avoidance of Acoustic Impacts from Cannon Nets--Cannon nets have a 
measured SL of 128 dB at one meter (m) (estimated based on a 
measurement of 98.4 dB at 30 m; L. Niles, pers. comm., December 2016); 
however, the SPL is expected to be less than the thresholds for 
airborne pinniped disturbance (e.g., 90 dB for harbor seals, and 100 dB 
for all other pinnipeds) at 80 yards from the source. The USFWS 
proposes to stay at least 100 meters from all pinnipeds if cannon nets 
are to be used for research purposes.
    Avoidance of Visual and Acoustic Contact with People--The USFWS 
would instruct its members and research staff to avoid making 
unnecessary noise and not expose themselves visually to pinnipeds 
whenever practicable. USFWS staff would stay at least 50 yards from 
hauled out pinnipeds, unless it is absolutely necessary to approach 
seals closer, or potentially flush a seal, in order to continue 
conducting endangered species conservation work. When disturbance is 
unavoidable, staff will work quickly and efficiently to minimize the 
length of disturbance. Researchers and staff will do so by proceeding 
in a slow and controlled manner, which allows for the seals to slowly 
flush into the water. Staff will also maintain a quiet working 
atmosphere, avoiding loud noises, and using hushed voices in the 
presence of hauled out pinnipeds. Pathways of approach to the desired 
study or nesting site will be chosen to minimize seal disturbance if an 
activity event may result in the disturbance of seals. USFWS staff will 
scan the surrounding waters near the haulouts, and if predators (i.e., 
sharks) are seen, seals will not be flushed by USFWS staff.
    Researchers, USFWS staff, and volunteers will be properly informed 
about the MMPA take prohibitions, and will educate the public on the 
importance of not disturbing marine mammals, when applicable. Staff at 
Nantucket NWR will remain present on the beaches utilized by pinnipeds 
to prevent anthropogenic disturbance during times of high public use 
(late spring to early fall). Staff at Monomoy NWR will also be present 
on beaches utilized by seals during the same time of year, and will 
inform the public to keep a distance from haulouts if an issue is 
noticed. Similar to the USFWS, the NPS also takes precautionary 
mitigation to help prevent seal take by the public. In August and on 
the weekends in September, staff and volunteers are present on the 
National Seashore beaches to share with the public the importance of 
preventing disturbance to seals by keeping people at a proper viewing 
distance of at least 50 yards.
    The presence/proximity of seal haulouts and the loud sound created 
by the firing of cannon nets are taken into consideration when 
selecting trapping sites for the Red Knot Stopover Study. Trapping 
sites are decided based on the presence of red knots, the number of 
juveniles located within roosts, and the observation of birds with 
attached geolocators and flags. Sites are not trapped on if there is a 
strong possibility of disturbing seals (i.e., closer than 100 meters). 
The Red Knot Stopover Study occurs during the time of year (July to 
September) when the least number of seals are present at the activity 
sites.
    The proposed mitigation measures are designed to minimize the 
potential for behavioral harassment of pinnipeds hauled out near the 
survey sites. The proposed surveys occur outside of the period of 
highest seal abundance at the Complex. While the survey timing overlaps 
with harbor seal pupping season, pupping is not known to occur at the 
Complex. Gray seal pupping has been documented at the Complex but 
generally occurs between December and February, when USFWS staff will 
not be conducting surveys. We believe the proposed mitigation measures 
are practicable for the applicant to implement.
    Based on our evaluation of the applicant's proposed measures, NMFS 
has preliminarily determined that the proposed 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.

Proposed Monitoring and Reporting

Monitoring

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth, ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
authorizations must include the suggested means of

[[Page 9494]]

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 proposed action area. Effective reporting is critical 
both to compliance as well as ensuring that the most value 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); and
     Mitigation and monitoring effectiveness.
    As part of its IHA application, the USFWS proposes to conduct 
marine mammal monitoring, in order to implement the mitigation measures 
that require real-time monitoring, and satisfy the monitoring 
requirements of the proposed IHA. These include:
    Monitoring seals as project activities are being conducted. 
Proposed monitoring requirements in relation to the USFWS's proposed 
activities would include species counts, numbers of observed 
disturbances, and descriptions of the disturbance behaviors during the 
research activities, including location, date, and time of the event. 
In addition, the USFWS would record observations regarding the number 
and species of any marine mammals either observed in the water or 
hauled out. Behavior of seals will be recorded on a three point scale: 
1= alert reaction, not considered harassment; 2= moving at least two 
body lengths, or change in direction greater than 90 degrees; 3= 
flushing (Table 4). USFWS staff would also record and report all 
observations of sick, injured, or entangled marine mammals on Monomoy 
NWR to the International Fund for Animal Welfare (IFAW) marine mammal 
rescue team, and will report to NOAA if injured seals are found at 
Nantucket NWR and Nomans NWR. Tagged or marked marine mammals will also 
be recorded and reported to the appropriate research organization or 
Federal agency, as well as any rare or unusual species of marine 
mammal. Photographs will be taken when possible. This information will 
be incorporated into a report for NMFS at the end of the season. The 
USFWS will also coordinate with any university, state, or Federal 
researchers to attain additional data or observations that may be 
useful for monitoring marine mammal usage at the activity sites.
    If at any time injury, serious injury, or mortality of the species 
for which take is authorized should occur, or if take of any kind of 
other marine mammal occurs, and such action may be a result of the 
USFWS's activities, the USFWS would suspend research activities and 
contact NMFS immediately to determine how best to proceed to ensure 
that another injury or death does not occur and to ensure that the 
applicant remains in compliance with the MMPA.

Reporting

    The USFWS would submit a draft report to NMFS Office of Protected 
Resources no later than 90 days after the conclusion of research and 
monitoring activities in the 2018 season. The report will include a 
summary of the information gathered pursuant to the monitoring 
requirements set forth in the proposed IHA. The USFWS will submit a 
final report to NMFS within 30 days after receiving comments from NMFS 
on the draft report. If the USFWS receives no comments from NMFS on the 
draft report, NMFS will consider the draft report to be the final 
report.
    The report will describe the operations conducted and sightings of 
marine mammals near the proposed project. The report will provide full 
documentation of methods, results, and interpretation pertaining to all 
monitoring. The report will provide:
    1. A summary and table of the dates, times, and weather during all 
research activities;
    2. Species, number, location, and behavior of any marine mammals 
observed throughout all monitoring activities;
    3. An estimate of the number (by species) of marine mammals exposed 
to human presence associated with the USFWS's activities; and
    4. A description of the implementation and effectiveness of the 
monitoring and mitigation measures of the IHA and full documentation of 
methods, results, and interpretation pertaining to all monitoring.
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the 
authorization, such as an injury (Level A harassment), serious injury, 
or mortality (e.g., stampede), USFWS personnel shall immediately cease 
the specified activities and immediately report the incident to the 
Chief, Permits and Conservation Division, Office of Protected 
Resources, NMFS, and the Northeast Regional Stranding Coordinator. The 
report must include the following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Description and location of the incident (including water 
depth, if applicable);
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    The USFWS shall not resume its activities until NMFS is able to 
review the circumstances of the prohibited take. We will work with the 
USFWS to determine what is necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. The USFWS may not 
resume their activities until notified by us via letter, email, or 
telephone.
    In the event that the USFWS discovers an injured or dead marine 
mammal, and the marine mammal observer determines that the cause of 
injury or death is unknown and the death is relatively recent (i.e., in 
less than a moderate state of decomposition as we describe in the next 
paragraph), the USFWS will immediately report the incident to the 
Chief, Permits and Conservation Division, Office of Protected 
Resources, NMFS, and the Northeast Regional Stranding Coordinator. The 
report must include the same information identified in the paragraph 
above this section. Activities may continue while NMFS reviews the

[[Page 9495]]

circumstances of the incident. NMFS would work with the USFWS to 
determine whether modifications in the activities are appropriate.
    In the event that the USFWS discovers an injured or dead marine 
mammal, and the lead visual observer determines that the injury or 
death is not associated with or related to the authorized activities 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), the USFWS will report the incident 
to the Chief, Permits and Conservation Division, Office of Protected 
Resources, NMFS, and the Northeast Regional Stranding Coordinator 
within 24 hours of the discovery. The USFWS personnel will provide 
photographs or video footage (if available) or other documentation of 
the stranded animal sighting to us. The USFWS can continue their survey 
activities while NMFS reviews the circumstances of the incident.

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).
    Although the USFWS's survey activities may disturb a small number 
of marine mammals hauled out on beaches in the Complex, NMFS expects 
those impacts to occur to a localized group of animals. Marine mammals 
would likely become alert or, at most, flush into the water in reaction 
to the presence of the USFWS personnel during the proposed activities. 
Much of the disturbance will be limited to a short duration, allowing 
marine mammals to reoccupy haulouts within a short amount of time. 
Thus, the proposed action is unlikely to result in long-term impacts 
such as permanent abandonment of the area because of the availability 
of alternate areas for pinnipeds to avoid the resultant acoustic and 
visual disturbances from the research activities.
    The USFWS's activities would occur during the least sensitive time 
(e.g., April through November, outside of the pupping season) for 
hauled out pinnipeds in the Complex. Thus, pups or breeding adults 
would not be present during the proposed activity days.
    Moreover, the USFWS's mitigation measures regarding vessel 
approaches and procedures that attempt to minimize the potential to 
harass the seals would minimize the potential for flushing and large-
scale movements. Thus, the potential for large-scale movements and 
flushing leading to injury, serious injury, or mortality is low.
    In summary and as described above, the following factors primarily 
support our preliminary 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 injury (Level A harassment) or serious injury is 
anticipated or authorized;
     No mortality is anticipated or authorized;
     Impacts will occur to a localized group of animals;
     Disturbance will be limited to a short duration, allowing 
marine mammals to reoccupy haulouts within a short amount of time;
     Activities will occur during the least sensitive time 
(e.g., April through November, outside of pupping season) for pinnipeds 
hauled out in the Complex, therefore no pups or breeding adults would 
be present during the proposed activity days; and
     The USFWS's mitigation measures regarding visual and 
acoustic disturbance to hauled out pinnipeds would minimize the 
potential for flushing and large-scale movements, therefore the 
potential for large-scale movements and flushing leading to injury, 
serious injury, or mortality is low;
    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 proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed 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 section 101(a)(5)(D) 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. Additionally, other qualitative factors may 
be considered in the analysis, such as the temporal or spatial scale of 
the activities.
    NMFS estimates that the USFWS's proposed activities could 
potentially take, by Level B harassment only, two species of marine 
mammal under our jurisdiction. For each species, these estimates are 
small numbers (less than three percent of the affected stock of harbor 
seals and less than eight percent of the stock of gray seals) relative 
to the population size (Table 6). As stated before, the number of 
individual seals taken is also assumed to be less than the take 
estimate (number of exposures) since we assume that the same seals may 
be behaviorally harassed over multiple days.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily 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 
preliminarily determined that the total taking of affected species or 
stocks would not have an unmitigable adverse impact on

[[Page 9496]]

the availability of such species or stocks for taking for subsistence 
purposes.

Endangered Species Act (ESA)

    No incidental take of ESA-listed species is proposed for 
authorization 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.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to the USFWS for conducting research activities at the 
Eastern MA NWR locations, from April 1, 2018 through November 30, 2018, 
provided the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated. This section contains a draft of the IHA 
itself. The wording contained in this section is proposed for inclusion 
in the IHA (if issued).

Proposed Authorization Language

    The United States Fish and Wildlife Service, Eastern Massachusetts 
National Wildlife Refuge Complex (USFWS) is hereby authorized under 
section 101(a)(5)(D) of the Marine Mammal Protection Act (MMPA; 16 
U.S.C. 1371(a)(5)(D)) to harass marine mammals incidental to conducting 
research activities in the Eastern Massachusetts National Wildlife 
Refuge Complex (Complex), when adhering to the following terms and 
conditions.
    1. This Incidental Harassment Authorization (IHA) is valid from 
April 1, 2018 through March 31, 2019.
    2. This IHA is valid only for activities associated with the 
research activities and human presence in the Complex.
    3. General Conditions.
    (a) A copy of this IHA must be in the possession of the USFWS, its 
designees, and work crew personnel operating under the authority of 
this IHA.
    (b) The species authorized for taking are the gray seal 
(Halichoerus grypus atlantica) and the harbor seal (Phoca vitulina 
concolor).
    (c) The taking, by Level B harassment only, is limited to the 
species listed in condition 3(b). The authorized take numbers are shown 
below:
    (i) 2,147 harbor seals.
    (ii) 39,680 gray seals.
    (d) The taking by injury (Level A harassment), serious injury, or 
death of any of the species listed in condition 3(b) of the 
Authorization or any taking of any other species of marine mammal is 
prohibited and may result in the modification, suspension, or 
revocation of this IHA.
    (e) The USFWS shall conduct briefings between survey crews, marine 
mammal monitoring team, and Complex staff prior to the start of all 
research and monitoring activities, and when new personnel join the 
work, in order to explain responsibilities, communication procedures, 
marine mammal monitoring protocol, and operational procedures.
    (f) The USFWS may not conduct activities between the dates of 
December 1, 2018 and March 31, 2019.
    4. Mitigation Measures.
    The holder of this Authorization is required to implement the 
following mitigation measures:
    (a) Research activities shall be conducted only between April 1, 
2018 and November 30, 2018.
    (b) Ensure that vessel approaches to Nomans NWR shall be such that 
the techniques are least disturbing to marine mammals. The vessel must 
conduct a slow and controlled approach to the island as far away as 
possible from haulouts. USFWS staff shall avoid operating boats in the 
direct path of swimming seals that may be present in the area unless 
seals are in the only safe path to the beach.
    (c) Provide instructions to USFWS staff and team members on 
appropriate conduct in the vicinity of hauled out marine mammals. The 
USFWS research teams shall maintain a quiet working atmosphere by 
avoiding making unnecessary noise and by using hushed voices while near 
hauled out seals; shall remain at least 50 yards (yd) from seals unless 
absolutely necessary to conduct endangered species conservation work; 
and shall choose pathways to study sites that will minimize disturbance 
to seals.
    (d) Ensure cannon nets will not be used closer than 100 m from 
seals.
    (e) Ensure that the waters surrounding the haulouts are free of 
predators (e.g., sharks) before USFWS staff flush seals from the 
haulouts.
    5. Monitoring.
    The holder of this Authorization is required to conduct marine 
mammal monitoring during seabird and shorebird research. Monitoring and 
reporting shall be conducted in accordance with the Monitoring Plan. 
The holder of this IHA is required to:
    (a) Monitor seals when research activities are conducted in the 
presence of marine mammals.
    (b) Record the date, time, and location (or closest point of 
ingress) of each of the research activities in the presence of marine 
mammals.
    (c) Collect the following information for each visit:
    (i) Information on the numbers (by species) of marine mammals 
observed during the activities, by age and sex, if possible;
    (ii) The estimated number of marine mammals (by species) that may 
have been harassed during the activities based on the 3-point 
disturbance scale;
    (iii) Any behavioral responses or modifications of behaviors that 
may be attributed to the specific activities (e.g., flushing into 
water, becoming alert and moving, rafting);
    (iv) The date, location, and start and end times of the event;
    (v) Information on the weather, including the tidal state and 
horizontal visibility; and
    (vi) Observations of sick, injured, or entangled marine mammals, 
and any tagged or marked marine mammals. Photographs will be taken when 
possible.
    6. Reporting.
    The holder of this Authorization is required to:
    (a) Submit a draft report on all monitoring conducted under the IHA 
within 90 calendar days of the completion of seabird and shorebird 
research and monitoring activities. A final report shall be prepared 
and submitted within thirty days following resolution of comments on 
the draft report from NMFS. This report must contain the informational 
elements described in the Monitoring Plan, at minimum (see attached), 
and shall also include:
    (i) A summary of the dates, times, and weather during all research 
activities;
    (ii) Species, number, location, and behavior of any marine mammals, 
observed throughout all monitoring activities;
    (iii) An estimate of the number (by species) of marine mammals that 
are known to have been exposed to visual and acoustic stimuli 
associated with the research activities; and
    (iv) A description of the implementation and effectiveness of the 
monitoring and mitigation measures of the IHA and full documentation of 
methods, results, and interpretation pertaining to all monitoring.
    (b) Reporting injured or dead marine mammals:
    (i) In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by this IHA, 
such as an injury (Level A harassment), serious injury, or mortality, 
the USFWS shall immediately cease the specified activities and report 
the incident to the Office of Protected Resources (301-427-8461), NMFS, 
and the Greater Atlantic Regional Stranding Coordinator (978-282-8478), 
NMFS. The report must include the following information:
    1. Time and date of the incident;
    2. Description of the incident;

[[Page 9497]]

    3. Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    4. Description of all marine mammal observations and active sound 
source use in the 24 hours preceding the incident;
    5. Species identification or description of the animal(s) involved;
    6. Fate of the animal(s); and
    7. Photographs or video footage of the animal(s).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with the USFWS to 
determine what measures are necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. The USFWS may not 
resume their activities until notified by NMFS.
    (ii) In the event that the USFWS discovers an injured or dead 
marine mammal, and the lead observer determines that the cause of the 
injury or death is unknown and the death is relatively recent (e.g., in 
less than a moderate state of decomposition), the USFWS shall 
immediately report the incident to the Office of Protected Resources, 
NMFS, and the Greater Atlantic Regional Stranding Coordinator, NMFS.
    The report must include the same information identified in 6(b)(i) 
of this IHA. Activities may continue while NMFS reviews the 
circumstances of the incident. NMFS will work with the USFWS to 
determine whether additional mitigation measures or modifications to 
the activities are appropriate.
    (iii) In the event that the USFWS discovers an injured or dead 
marine mammal, and the lead observer determines that the injury or 
death is not associated with or related to the activities authorized in 
the IHA (e.g., previously wounded animal, carcass with moderate to 
advanced decomposition, or scavenger damage), the USFWS shall report 
the incident to the Office of Protected Resources, NMFS, and the 
Greater Atlantic Regional Stranding Coordinator, NMFS, within 24 hours 
of the discovery. The USFWS shall provide photographs or video footage 
or other documentation of the stranded animal sighting to NMFS.
    7. This Authorization may be modified, suspended or withdrawn if 
the holder fails to abide by the conditions prescribed herein, or if 
NMFS determines the authorized taking is having more than a negligible 
impact on the species or stock of affected marine mammals.

Request for Public Comments

    We request comment on our analyses, the proposed authorization, and 
any other aspect of this Notice of Proposed IHA for the proposed 
research and monitoring project. We also request comment on the 
potential for renewal of this proposed IHA as described in the 
paragraph below. Please include with your comments any supporting data 
or literature citations to help inform our final decision on the 
request for MMPA authorization.
    On a case-by-case basis, NMFS may issue a second one-year IHA 
without additional notice when 1) another year of identical or nearly 
identical activities as described in the Specified Activities section 
is planned or 2) the activities would not be completed by the time the 
IHA expires and a second IHA would allow for completion of the 
activities beyond that described in the Dates and Duration section, 
provided all of the following conditions are met:
     A request for renewal is received no later than 60 days 
prior to expiration of the current IHA.;
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted beyond the 
initial dates either are identical to the previously analyzed 
activities or include changes so minor (e.g., reduction in pile size) 
that the changes do not affect the previous analyses, take estimates, 
or mitigation and monitoring requirements;
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized; and
     Upon review of the request for renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures remain the same and appropriate, 
and the original findings remain valid.

    Dated: February 28, 2018.
Donna Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2018-04440 Filed 3-5-18; 8:45 am]
BILLING CODE 3510-22-P