[Federal Register Volume 83, Number 85 (Wednesday, May 2, 2018)]
[Notices]
[Pages 19236-19243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09239]


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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; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
the U.S. Fish and Wildlife Service (USFWS) to incidentally harass, by 
Level B harassment only, marine mammals during survey activities 
associated with the seabird and shorebird monitoring project at the 
Eastern Massachusetts National Wildlife Refuge Complex (Complex).

DATES: This authorization is effective from April 1, 2018 through March 
31, 2019.

[[Page 19237]]


FOR FURTHER INFORMATION CONTACT: Amy Fowler, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the IHA 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 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 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 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 determined 
that the issuance of the IHA qualifies to be categorically excluded 
from further NEPA review.

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 was 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 may be found in the Estimated 
Take section.

Description of Activity

    The USFWS plans to conduct biological tasks for refuge purposes at 
Monomoy National Wildlife Refuge (NWR), Nantucket NWR, and Nomans Land 
Island NWR in Massachusetts. These three refuges are managed through 
the Complex as part of the NWR System of the USFWS. Complex staff 
census and monitor the presence and productivity of breeding and 
migrating shorebirds using the beaches of Monomoy, Nantucket, and 
Nomans Land Island NWRs from April 1-November 30, annually. Monitoring 
activities occur daily (on Monomoy and Nantucket) from April-August and 
are 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 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.
    A detailed description of the planned monitoring and research 
project is provided in the Federal Register notice for the proposed IHA 
(83 FR 9463; March 6, 2018). Since that time, no changes have been made 
to the planned activities. Therefore, a detailed description is not 
provided here. Please refer to that Federal Register notice for the 
description of the specific activity.

Comments and Responses

    A notice of NMFS's proposal to issue an IHA to the USFWS was 
published in the Federal Register on March 6, 2018 (83 FR 9483). That 
notice described, in detail, the USFWS's activities, the marine mammal 
species that may be affected, and the anticipated effects on marine 
mammals. During the 30-day public comment period, the Marine Mammal 
Commission (Commission) provided comments as described below and 
concurred with NMFS's finding that recommended the issuance of an IHA, 
subject to the inclusion of the mitigation, monitoring, and reporting 
measures.
    Comment: The Commission requested clarification of certain issues 
associated with NMFS's notice that one-year renewals could be issued in 
certain limited circumstances and expressed concern that the process 
would bypass the public notice and comment requirements. The Commission 
also suggested that NMFS should discuss the possibility of renewals 
through a more general route, such as a rulemaking, instead of notice 
in a specific authorization. The Commission further recommended that if 
NMFS did not pursue a more general route, that the agency provide the 
Commission and the public with a legal analysis supporting our 
conclusion that this process is consistent with the requirements of 
101(a)(5)(D) of the MMPA.
    Response: The process of issuing a renewal IHA does not bypass the 
public notice and comment requirements of the MMPA. The notice of the 
proposed IHA expressly notifies the public that under certain, limited 
conditions an applicant could seek a renewal IHA for an

[[Page 19238]]

additional year. The notice describes the conditions under which such a 
renewal request could be considered and expressly seeks public comment 
in the event such a renewal is sought. Importantly, such renewals would 
be limited to where the activities are identical or nearly identical to 
those analyzed in the proposed IHA, monitoring does not indicate 
impacts that were not previously analyzed and authorized, and the 
mitigation and monitoring requirements remain the same, all of which 
allow the public to comment on the appropriateness and effects of a 
renewal at the same time the public provides comments on the initial 
IHA. NMFS has, however, modified the language for future proposed IHAs 
to clarify that all IHAs, including renewal IHAs, are valid for no more 
than one year and that the agency would consider only one renewal for a 
project at this time. In addition, notice of issuance or denial of a 
renewal IHA would be published in the Federal Register, as are all 
IHAs. Last, NMFS will publish a description of the renewal process on 
our website before any renewal is issued utilizing the new process.

Description of Marine Mammals in the Area of Specified Activities

    A detailed description of the species likely to be affected by the 
research and monitoring project, including brief introductions to the 
species and relevant stocks as well as available information regarding 
population trends and threats, and information regarding local 
occurrence, were provided in the Federal Register notice for the 
proposed IHA (83 FR 9463; March 6, 2018). Since that time, we are not 
aware of any changes in the status of these species and stocks; 
therefore, detailed descriptions are not provided here. Please refer to 
that Federal Register notice for these descriptions as well as to NMFS' 
website (https://www.fisheries.noaa.gov/topic/population-assessments/marine-mammals) for generalized species accounts.

             Table 1--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,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
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                                                         Order Carnivora--Superfamily Pinnipedia
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Family 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 concolor  Western North Atlantic.  -, N                75,834 (0.15, 66,884,       2,006        368
                                                                                                             2012).
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\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.
\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.

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 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).

    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

    The effects of airborne noise and visual disturbance from 
monitoring and research activities for the USFWS's project have the 
potential to result in behavioral harassment of marine mammals in the 
vicinity of the action area. The Federal Register notice for the 
proposed IHA (83 FR 9463; March 6, 2018) included a discussion of the 
effects of anthropogenic noise and visual disturbance on marine 
mammals, therefore that information is not repeated here; please refer 
to that Federal Register notice for that information.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform both NMFS' consideration 
of

[[Page 19239]]

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 are 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 authorized.
    As described previously, no mortality is anticipated or authorized 
for this activity. Below we describe how the take is estimated.
    Behavior of seals is recorded on a three point scale (1 = alert 
reaction, not considered harassment; 2 = moving at least two body 
lengths, or change in direction >90 degrees; and 3 = flushing) (Table 
2). Only levels 2 and 3 are considered take.

 Table 2-- Disturbance Scale of Pinniped Responses to In-Air Sources To
                             Determine Take
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     Level         Type of response               Definition
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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.
------------------------------------------------------------------------

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. Take estimates are based on historical marine mammal 
observations at each site from previous USFWS survey activities.
    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.
    This estimate is based on the number of seals observed in past 
research years that have been flushed during research activities. USFWS 
used their knowledge of the number of seals that use the haulouts near 
their research activities, and how many of these may be taken (Levels 2 
and 3 on the disturbance scale). The majority of takes will occur on 
Monomoy NWR, which is one of the main haulouts for gray seals in the 
country. While the average number of gray seals present (in regards to 
Monomoy NWR) is less than observed counts (B. Josephson, NOAA, pers. 
comm.), 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 over four miles of beach. For example, the gray seal counts on 
Monomoy NWR are very high, but the beaches are very large, and most of 
the work takes place on the upper berm close to the dune (farther away 
from seals). During April and May when seals are hauled out in very 
large numbers on the refuge, they may be present at beaches of varying 
width, between 30 m and 300 m. In narrower areas, all of the seals may 
be flushed; 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 at all on the hauled out 
seals. Also, the amount of disturbance to seals may vary based on staff 
activities (e.g., if project activities require staff to walk quickly 
through an area versus

[[Page 19240]]

spending more time in one area close to seals). Take numbers were 
estimated from the number of seals using the refuge and the times that 
the activity might overlap with seal use areas. For example, most of 
the staging counts are not done in areas where seals haul out so the 
number of disturbances is very low during this task. Group size also 
played into the estimates. USFWS staff would impact a smaller number of 
seals during times of the year when group sizes are smaller (e.g., 
outside of April and May). USFWS staff who have conducted these 
activities for multiple years provided the best information available 
to us about the number of takes these activities may cause. In this 
IHA, we have included monitoring requirements that should inform our 
take numbers in future years.
    The take numbers for gray seals is thought to be conservative, and 
likely an overestimate. USFWS staff believe these estimates are 
realistic and do not expect to exceed the take numbers.

  Table 3--Estimated Number of Gray Seal Takes per Activity at Monomoy, Nantucket, and Nomans Land Island NWRs
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                                                    Gray seal
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                              Age: all                                           Sex: male and female
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                                              Number takes/event        Number events/activity      Total takes
----------------------------------------------------------------------------------------------------------------
Shorebird and Seabird Monitoring and      1,000 (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
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    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.

Mitigation Measures

    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 plans to 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 shall 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 shall approach the beaches in a slow 
and controlled approach, as far away as possibly from haulouts to 
prevent or minimize flushing. Staff shall 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 shall 
stay at least 100 meters from all pinnipeds if cannon nets are to be 
used for research purposes.

[[Page 19241]]

    Avoidance of Visual and Acoustic Contact with People--The USFWS 
shall instruct its members and research staff to avoid making 
unnecessary noise and not expose themselves visually to pinnipeds 
whenever practicable. USFWS staff shall 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 shall 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 shall 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 shall be chosen to minimize seal disturbance if 
an activity event may result in the disturbance of seals. USFWS staff 
shall scan the surrounding waters near the haulouts, and if predators 
(i.e., sharks) are seen, seals shall not be flushed by USFWS staff.
    Researchers, USFWS staff, and volunteers shall be properly informed 
about the MMPA take prohibitions, and shall educate the public on the 
importance of not disturbing marine mammals, when applicable. Staff at 
Nantucket NWR shall 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 shall 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 mitigation measures are designed to minimize the potential for 
behavioral harassment of pinnipeds hauled out near the survey sites. 
The research and monitoring 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 previously stated mitigation 
measures are practicable for the applicant to implement.
    Based on our evaluation of the applicant's planned measures, NMFS 
has determined that the mitigation measures provide the means effecting 
the least practicable impact on the affected species or stocks and 
their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance.

Monitoring and Reporting

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 accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
action area. Effective reporting is critical both to compliance as well 
as ensuring that the most value 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.
    The USFWS shall conduct marine mammal monitoring, in order to 
implement the mitigation measures that require real-time monitoring, 
and satisfy the monitoring requirements of the IHA. These include:
    Monitoring seals as project activities are being conducted. 
Monitoring requirements in relation to the USFWS's activities 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 shall 
record observations regarding the number and species of any marine 
mammals either observed in the water or hauled out. Behavior of seals 
shall 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 2). USFWS 
staff shall also record and report all observations of sick, injured, 
or entangled marine mammals to the Greater Atlantic Regional Stranding 
Coordinator. Tagged or marked marine mammals shall 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 shall 
be taken when possible. This information shall be incorporated into a 
report for NMFS at the end of the season. The USFWS shall 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

[[Page 19242]]

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 shall 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 shall 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 shall include a 
summary of the information gathered pursuant to the monitoring 
requirements set forth in the IHA. The USFWS shall 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 shall describe the operations conducted and sightings of 
marine mammals near the project. The report shall provide full 
documentation of methods, results, and interpretation pertaining to all 
monitoring. The report shall 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 shall 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 
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 shall 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 shall 
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 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 
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

[[Page 19243]]

or breeding adults would not be present during the 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 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 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 monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the 
activity will have a negligible impact on all affected marine mammal 
species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under 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.
    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. 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 
United States 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 4).
    Based on the analysis contained herein of the activity (including 
the mitigation and monitoring measures) and the anticipated take of 
marine mammals, NMFS finds that small numbers of marine mammals will be 
taken relative to the population size of the affected species or 
stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act (ESA)

    No incidental take of ESA-listed species is authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal consultation under section 7 of the ESA is not required for this 
action.

Authorization

    As a result of these determinations, NMFS has issued an IHA to the 
USFWS for the harassment of small numbers of gray and harbor seals 
incidental to seabird and shorebird research activities at the Eastern 
Massachusetts National Wildlife Refuge Complex, Massachusetts, provided 
the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated.

    Dated: April 26, 2018.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2018-09239 Filed 5-1-18; 8:45 am]
 BILLING CODE 3510-22-P