[Federal Register Volume 84, Number 130 (Monday, July 8, 2019)]
[Notices]
[Pages 32415-32419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14457]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG949


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to National Wildlife Refuge Complex 
Research, Monitoring, and Maintenance Activities in Massachusetts

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

ACTION: Notice; Issuance of an Incidental Harassment Authorization.

-----------------------------------------------------------------------

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 biological research, 
monitoring, and maintenance activities at the Eastern Massachusetts 
National Wildlife Refuge Complex (Complex).

DATES: This Authorization is effective from June 12, 2019 through June 
11, 2020.

FOR FURTHER INFORMATION CONTACT: Amy Fowler, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application and supporting documents (including NMFS Federal Register 
notices of the original proposed and final authorizations, and the 
previous IHA), as well as a list of the references cited in this 
document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these documents, please call the 
contact listed above.

SUPPLEMENTARY INFORMATION: 

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. 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 incidental take authorization may be provided to the public 
for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the

[[Page 32416]]

affected species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of such takings are set forth.
    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.

History of Request

    On March 16, 2016, NMFS received an application from the USFWS for 
the taking of two species of marine mammals incidental to research, 
monitoring, and maintenance activities within the Complex. The USFWS's 
request was for take of gray seals (Halichoerus grypus atlantica) and 
harbor seals (Phoca vitulina concolor) by Level B harassment. A notice 
of proposed IHA and request for comments was published in the Federal 
Register on January 12, 2017 (82 FR 3738). We subsequently published 
the final notice of our issuance of the IHA on March 2, 2017 (82 FR 
12342) making the IHA valid from April 1, 2017 through March 31, 2018.
    On December 5, 2017, NMFS received a request from the USFWS for an 
IHA for takes of marine mammals incidental to the same research and 
monitoring activities as the initial IHA. A notice of proposed IHA and 
request for comments was published in the Federal Register on March 6, 
2018 (83 FR 9483). We subsequently published the final notice of our 
issuance of the IHA on May 2, 2018 (83 FR 19236), making the IHA valid 
from April 1, 2018 through March 31, 2019. That IHA was identical to 
the initial IHA with the same number of takes authorized and the same 
mitigation, monitoring, and reporting requirements.
    On January 31, 2019, NMFS received a request from the USFWS for an 
IHA to take gray seals (Halichoerus grypus atlantica) and harbor seals 
(Phoca vitulina concolor) by Level B harassment incidental to ongoing 
annual research and monitoring activities. USFWS had received two 
previous IHAs (82 FR 12342, March 2, 2017; 83 FR 19236, May 2, 2018) 
for these activities. In their 2019 request, the USFWS also requested 
take of marine mammals incidental to two new activities, New England 
cottontail introduction and seal haulout protection. The application 
was determined to be adequate and complete on March 20, 2019. On April 
30, 2019, NMFS published its notice of proposed IHA in the Federal 
Register for public comment (84 FR 18259).

Description of the Activity and Anticipated Impacts

    The Complex is comprised of eight refuges, including its three 
coastal refuges: Monomoy NWR, Nantucket NWR, and Nomans Land Island 
(Nomans) NWR in eastern MA. The USFWS conducts ongoing biological tasks 
for refuge purposes at the Complex. The previous IHAs covered shorebird 
and seabird nest monitoring and research, roseate tern staging counts 
and resighting, red knot stopover study, northeastern beach tiger 
beetle census, and coastal shoreline change survey at Monomoy, 
Nantucket, and Nomans NWRs. The USFWS proposes to conduct these same 
activities under the 2019 IHA. The previous IHAs authorized Level B 
take of gray seals and harbor seals. NMFS has issued an IHA to harass 
these same species.
    We refer to the notice of proposed IHA (84 FR 18259; April 30, 
2019) and documents related to the previously issued IHAs and discuss 
any new or changed information here. The previous documents include the 
Federal Register notices of the previous proposed IHAs (82 FR 3738, 
January 12, 2017; 83 FR 9483, March 6, 2018), Federal Register notices 
of issuance of the previous IHAs (82 FR 12342, March 2, 2017; 83 FR 
19236, May 2, 2018), and all associated references and documents. We 
also refer the reader to the USFWS's previous and current applications 
and monitoring reports which can be found at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-research-and-other-activities.

Detailed Description of the Action

    A detailed description of the ongoing shorebird and seabird nest 
monitoring and research, roseate tern staging counts and resighting, 
red knot stopover study, northeastern beach tiger beetle census, and 
coastal shoreline change surveys can be found in the previous notices 
of proposed IHAs (82 FR 3738, January 12, 2017; 83 FR 9483, March 6, 
2018). A detailed description of the new activities in the 2019 take 
request (New England cottontail reintroduction and protection of seal 
haulout areas) is found in the notice of proposed IHA (84 FR 18259; 
April 30, 2019).

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
is found in these previous documents, which remains applicable to the 
2019-2020 IHA. In addition, NMFS has reviewed recent draft Stock 
Assessment Reports, information on relevant Unusual Mortality Events 
(UMEs), and recent scientific literature, to evaluate the current 
status of the affected species.
    Since July 2018, elevated numbers of harbor seal and gray seal 
mortalities have occurred across Maine, New Hampshire, and 
Massachusetts. This event has been declared a UME. Additionally, seals 
showing clinical signs of disease have stranded as far south as 
Virginia, although not in elevated numbers. Therefore, the UME 
investigation now encompasses all seal strandings from Maine to 
Virginia. Full or partial necropsy examinations have been conducted on 
some of the seals and samples have been collected for testing. Based on 
tests conducted so far, the main pathogen found in the seals is phocine 
distemper virus. As of May 31, 2019, the total number of seals included 
in the UME was 2,435. More information on this UME is available at 
https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2019-pinniped-unusual-mortality-event-along.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activities 
on marine mammals and their habitat may be found in the documents 
supporting the previous IHAs, which remains applicable to the issuance 
of the proposed 2019-2020 IHA. Although there is currently an ongoing 
UME involving gray and harbor seals, the increased mortality appears to 
be primarily due to infection with phocine distemper virus. As such, 
NMFS has determined that no new information affects our original 
analysis of impacts under the 2018-2019 IHA.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
authorized take is found in these previous documents. All estimated 
take is expected to be in the form of Level B harassment. The methods 
of estimating take for the 2019-2020 IHA are identical to those used in 
the 2018-2019 IHA (i.e., by multiplying the maximum number of seals 
estimated to be present at each location by the number of events at 
each location that may result in disturbance). Take from the two newly 
included activities was estimated in the same manner. The total 
authorized gray seal takes are presented in Table 1.

[[Page 32417]]



  Table 1--Estimated Number of Gray Seal Takes (by Level B Harassment) per Activity at Monomoy, Nantucket, and
                                                   Nomans NWRs
----------------------------------------------------------------------------------------------------------------
                Activity                        Takes per event           Events per activity       Total takes
----------------------------------------------------------------------------------------------------------------
Shorebird and Seabird Monitoring &        1000 (Monomoy)............  34 (Monomoy)..............          34,430
 Research.                                50 (Nantucket)............  8 (Nantucket).............
                                          10 (Nomans)...............  3 (Nomans)................
Roseate Tern Staging Counts & Resighting  10 (Monomoy)..............  6 (Monomoy)...............             100
                                          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
New England Cottontail Introduction.....  10 (Nomans)...............  20 (Nomans)...............             200
Seal Haul Out Protection................  25 (Nantucket)............  10 (Nantucket)............             250
                                                                                                 ---------------
    Total takes.........................  ..........................  ..........................          39,730
----------------------------------------------------------------------------------------------------------------

    Estimated take of harbor seals was estimated using methods 
identical to the 2018-2019 IHA (i.e., estimating five percent of gray 
seal takes). Total authorized takes of gray seals and harbor seals are 
shown in Table 2.

                  Table 2--Total Estimated Take of Marine Mammals, Relative to Population Size
----------------------------------------------------------------------------------------------------------------
                                                                                                    Percent
                                                                                                (comparison of
                       Species                          Estimated take      Stock abundance    instances of take
                                                                                                   to stock
                                                                                                  abundance)
----------------------------------------------------------------------------------------------------------------
Gray seal...........................................              39,730          \a\ 27,131                 146
                                                                               \b\ (451,131)              (8.81)
Harbor seal.........................................               1,987              75,834                2.62
----------------------------------------------------------------------------------------------------------------
\a\ Abundance in U.S. waters (Hayes et al., 2018)
\b\ Overall Western North Atlantic stock abundance (Hayes et al., 2018)

    Based on the stock abundance estimate presented in the 2017 SARS, 
the take number of gray seals exceeds the number of gray seals in U.S. 
waters (Table 2). 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 (i.e., instances of take), 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 of animals in 
United States and Canadian waters is 451,131. The gray seal take 
estimate for this project represents less than nine percent of the 
overall Western North Atlantic stock abundance (Table 2) if every 
separate instance of take were assumed to accrue to a different 
individual, and because this is not the case, the percentage is likely 
significantly lower.

Description of Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures described here 
are identical to those included in the Federal Register notice 
announcing the final 2018-2019 IHA (83 FR 19236; May 2, 2018) and apply 
to all activities described in previous Federal Register notices (i.e., 
83 FR 9483; March 6, 2018) and the two new activities included in this 
document. The discussion of the least practicable adverse impact 
included in the Federal Register notice of final IHA (83 FR 19236; May 
2, 2018) remains accurate. The following measures are included in this 
IHA:
    Time and Frequency--The USFWS would conduct all proposed activities 
throughout the course of the year between April 1 and November 30, 
outside of the seasons of highest seal abundance and pupping at the 
Complex. Closure of beaches used by seals may occur year-round at 
Nantucket NWR.
    Vessel Approach and Timing Techniques--The USFWS must ensure that 
its vessel approaches to beaches with pinniped haulouts are conducted 
so as to not disturb marine mammals as most practicable. To the extent 
possible, the vessel must approach the beaches in a slow and controlled 
approach, as far away as possibly from haulouts to prevent or minimize 
flushing. Staff must 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 source level (SL) of 128 decibels (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 sound pressure level (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

[[Page 32418]]

pinnipeds) at 80 yards from the source. The USFWS must stay at least 
100 m from all pinnipeds if cannon nets are to be used for research 
purposes.
    Avoidance of Visual and Acoustic Contact with People--The USFWS 
must instruct its members and research staff to avoid making 
unnecessary noise and not allow themselves to be seen by pinnipeds 
whenever practicable. USFWS staff must 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 must work quickly and efficiently to minimize the 
length of disturbance. Researchers and staff must do so by proceeding 
in a slow and controlled manner, which allows for the seals to slowly 
flush into the water. Staff must 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 must be chosen to minimize seal disturbance if an 
activity event may result in the disturbance of seals. USFWS staff must 
scan the surrounding waters near the haulouts, and if predators (i.e., 
sharks) are seen, seals must not be flushed by USFWS staff. The USFWS 
must avoid disturbance of mothers and pups by either rescheduling 
surveys, if possible, or refraining from conducting activities that may 
cause high-level disturbance (e.g., flushing or long movements over 
land.
    Marine Mammal Monitoring--The USFWS must monitor seals as project 
activities are 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 
for each site and activity. In addition, the USFWS will record 
observations regarding the number and species of any marine mammals 
either observed in the water or hauled out. Behavior of seals must 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 3). USFWS staff 
must also record and report all observations of sick, injured, or 
entangled marine mammals to the Office of Protected Resources, NMFS, 
and the Greater Atlantic Regional Stranding Coordinator, NMFS. Tagged 
or marked marine mammals must 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 must be taken 
when possible. This information must be incorporated into a report for 
NMFS at the end of the season. The USFWS must 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.

  Table 3--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.

    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 must suspend 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 must 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 must 
include a summary of the information gathered pursuant to the 
monitoring requirements set forth in the proposed IHA. The USFWS must 
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 reporting requirements included in this IHA are 
identical to those described in the previous IHA (83 FR 19236, May 2, 
2018).

Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the 
Federal Register on April 30, 2019 (84 FR 18259). During the 30-day 
public comment period, the Marine Mammal Commission (Commission) 
submitted a letter, providing comments as described below.
    Comment: The Commission questioned whether the public notice 
provisions for IHA Renewals fully satisfy the public notice and comment 
provision in the MMPA and discussed the potential burden on reviewers 
of reviewing key documents and developing comments quickly. 
Additionally, the Commission recommended that NMFS use the IHA Renewal 
process sparingly and selectively for activities expected to have the 
lowest levels of impacts to marine mammals and that require less 
complex analysis.
    Response: NMFS has taken a number of steps to ensure the public has 
adequate notice, time, and information to be able to comment 
effectively on IHA Renewals within the limitations of processing IHA 
applications efficiently. The Federal Register notice for the proposed 
IHA (84 FR 18259; April 30, 2019) previously identified the conditions 
under which a one-year Renewal IHA might be appropriate. This 
information is presented in the Request for Public Comments section of 
the initial proposed IHA and thus encourages submission of comments on 
the potential of a one-year renewal as well as the initial IHA during 
the 30-day comment period. In addition, when we receive an application 
for a Renewal

[[Page 32419]]

IHA, we publish a notice of the proposed IHA Renewal in the Federal 
Register and provide an additional 15 days for public comment, for a 
total of 45 days of public comment. We will also directly contact all 
commenters on the initial IHA by email, phone, or, if the commenter did 
not provide email or phone information, by postal service to provide 
them the opportunity to submit any additional comments on the proposed 
Renewal IHA.
    NMFS also strives to ensure the public has access to key 
information needed to submit comments on a proposed IHA, whether an 
initial IHA or a Renewal IHA. The agency's website includes information 
for all projects under consideration, including the application, 
references, and other supporting documents. Each Federal Register 
notice also includes contact information in the event a commenter has 
questions or cannot find the information they seek.
    Regarding the Commission's comment that Renewal IHAs should be 
limited to certain types of projects, NMFS has explained on its website 
and in individual Federal Register notices that Renewal IHAs are 
appropriate where the continuing activities are identical, nearly 
identical, or a subset of the activities for which the initial 30-day 
comment period applied. Where the commenter has likely already reviewed 
and commented on the initial proposed IHA for these activities, the 
abbreviated additional comment period is sufficient for consideration 
of the results of the preliminary monitoring report and new information 
(if any) from the past year.

Determinations

    The USFWS proposes to conduct research and monitoring activities 
that are nearly identical to those conducted previously. Take of marine 
mammals from two new activities has been included in this IHA but the 
potential impacts to marine mammals from these activities are identical 
to those previously analyzed for the issuance of the 2018 IHA. 
Therefore, the potential effects from Level B harassment of marine 
mammals previously analyzed remain applicable, as do NMFS prior 
determinations.
    When issuing the 2018 IHA, NMFS found the USFWS's activities, in 
their entirety, would have a negligible impact to species or stocks' 
rates of recruitment and survival and the amount of taking would be 
small relative to the population size of such species or stock. This 
IHA authorizes more takes of seals by Level B harassment than the 
previously issued IHAs (82 FR 12342, March 2, 2017; 83 FR 19236, May 2, 
2018) but the amount of taking is still small relative to the 
population size of the affected species and stocks (i.e., less than 
nine percent). The IHA includes identical required mitigation, 
monitoring, and reporting measures as the 2018 IHA. In conclusion, 
there is no new information suggesting that our analysis or findings 
should change.
    Based on the information contained here and in the referenced 
documents, NMFS has determined the following: (1) The required 
mitigation measures will effect the least practicable impact on marine 
mammal species or stocks and their habitat; (2) the authorized takes 
will have a negligible impact on the affected marine mammal species or 
stocks; (3) the authorized takes represent small numbers of marine 
mammals relative to the affected stock abundances; and (4) the USFWS's 
activities will not have an unmitigable adverse impact on taking for 
subsistence purposes as no relevant subsistence uses of marine mammals 
are implicated by this action, and (5) appropriate monitoring and 
reporting requirements are included.

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.

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 determined 
that the issuance of the proposed IHA qualifies to be categorically 
excluded from further NEPA review.

Authorization

    As a result of these determinations, NMFS has issued an IHA to the 
USFWS for the harassment of small numbers of marine mammals incidental 
to conducting research and monitoring activities at the Complex for a 
period of one year, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated.

Donna Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2019-14457 Filed 7-5-19; 8:45 am]
 BILLING CODE 3510-22-P