Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Seabird and Shorebird Monitoring and Research at the Eastern Massachusetts National Wildlife Refuge Complex, Massachusetts, 12342-12348 [2017-04002]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 82, Number 40 (Thursday, March 2, 2017)]
[Notices]
[Pages 12342-12348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-04002]



[[Page 12342]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XF101


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Seabird and Shorebird Monitoring 
and Research at the Eastern Massachusetts National Wildlife Refuge 
Complex, 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 Eastern Massachusetts (MA) National Wildlife Refuge (NWR) Complex, 
U.S. Fish and Wildlife Service (USFWS) to incidentally harass, by Level 
B harassment only, marine mammals during seabird and shorebird 
monitoring and other research activities in the Eastern MA NWR Complex 
(Complex).

DATES: This Authorization is effective from April 1, 2017 through March 
31, 2018.

National Environmental Policy Act (NEPA)

    NMFS prepared an Environmental Assessment (EA) and analyzed the 
potential impacts to marine mammals that would result from the USFWS's 
monitoring and research activities. A Finding of No Significant Impact 
(FONSI) was signed in March 2017. A copy of the EA and FONSI is 
available on our Web site at https://www.nmfs.noaa.gov/pr/permits/incidental/research.htm.

FOR FURTHER INFORMATION CONTACT: Laura McCue, NMFS, Office of Protected 
Resources, NMFS (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(D) of the MMPA of 1972, as amended (MMPA; 16 
U.S.C. 1361 et seq.) directs the Secretary of Commerce to allow, upon 
request, the incidental, but not intentional, taking of small numbers 
of marine mammals of a species or population stock, 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.''

Summary of Request

    On March 16, 2016, NMFS received an application from the USFWS for 
the taking of marine mammals incidental to seabird and shorebird 
monitoring and research activities within the Complex. NMFS received 
updated applications on September 14 and December 16, 2016 with updated 
take numbers and mitigation measures. NMFS determined the application 
complete and adequate on December 29, 2016.
    The USFWS plans to conduct seabird and shorebird monitoring and 
research at several locations within the Complex over a varying number 
of days for each project. This authorization, will be valid for one 
year, beginning on April 1, 2017. The following specific aspects of the 
planned activities would likely result in the disturbance of marine 
mammals: (1) Vessel landings; (2) research activities (e.g., cannon 
nets, sign installation); and (3) human presence. Thus, NMFS 
anticipates that take, by Level B harassment only, of gray seals 
(Halichoerus grypus grypus) and harbor seals (Phoca vitulina concolor) 
could result from the specified activity.

Description of the Specified Activity

Overview
    The USFWS plans 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 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 (82 FR 
3738; January 12, 2017). 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, including the dates and duration 
and the specified geographic region.

Comment and Responses

    A notice of NMFS's proposal to issue an IHA to the USFWS was 
published in the Federal Register on January 12, 2017 (82 FR 3738). 
That notice described, in detail, the USFWS's activity, the marine 
mammal species that may be affected by the activity, and the 
anticipated effects on marine mammals. During the 30-day public comment 
period, NMFS received comments from the Marine Mammal Commission. The 
Marine Mammal Commission recommended that NMFS issue the IHA, subject 
to inclusion of the proposed mitigation, monitoring, and reporting 
measures as described in our notice of proposed IHA and the 
application. All measures proposed in the initial Federal Register 
notice are included within the IHA.

Sound Sources and Sound Characteristics

    NMFS does not expect acoustic stimuli to result from human 
presence, and therefore, will not have the potential to harass marine 
mammals, incidental to the conduct of the planned activities. One 
activity (cannon nets) will have an acoustic component, but take from 
this activity can be avoided through implementation of mitigation.

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    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 ([mu]Pa), where 1 pascal (Pa) is the pressure resulting 
from a force of one newton exerted over an area of 1 square meter (m). 
Sound pressure level (SPL) is the ratio of a measured sound pressure 
and a reference level. The commonly used reference pressure is 20 
[mu]Pa for in air, and the units for SPLs are dB re: 20 [mu]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 have an acoustic component (e.g., cannon nets) are 
not expected to reach the thresholds for Level B harassment. Cannon 
nets are an airborne source of noise, and have a measured source level 
(SL) of 128 dB at one m (estimated based on a measurement of 98.4 dB at 
30 m; L. Niles, pers. comm., December 2016); however, based on 
calculations using the SL and spherical spreading, 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 25 m and 
80 m from the source, respectively. The USFWS will stay at least 100 m 
from all pinnipeds if cannon nets are used for research purposes.

Description of Marine Mammals in the Area of the Specified Activity

    Table 1 provides the following information: All marine mammal 
species with possible or confirmed occurrence in the activity area; 
information on those species' regulatory status under the MMPA and the 
ESA of 1973 (16 U.S.C. 1531 et seq.); abundance; occurrence and 
seasonality in the activity area. A detailed description of the species 
likely to be affected by the USFWS's project, including brief 
introductions to the species and relevant stocks, available information 
regarding population trends and threats, and information regarding 
local occurrence, were provided in the Federal Register notice for the 
proposed IHA (82 FR 3738; January 12, 2017); 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. Please also refer 
to the draft 2016 NMFS Marine Mammal Stock Assessment Report available 
online at: https://www.nmfs.noaa.gov/pr/sars/ for further information on 
the biology and distribution of these species.

 Table 1--General Information on Marine Mammals That Could Potentially Haul Out on Northwest Seal Rock, November
                                           2015 Through November 2016
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                                                                Stock abundance
                                                                (CV, Nmin, most
           Species                 Stock          Regulatory         recent            PBR        Occurrence and
                                                  status 1 2       abundance                       seasonality
                                                                  survey) \3\
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Gray seal (Halichoerus        Western North    MMPA-NC ESA-NL.  505,000 (unk;               unk  Year-round
 grypus grypus).               Atlantic.                         unk; unk) *.                     presence.
Harbor seal (Phoca vitulina   Western North    MMPA-NC ESA-NL.  75,834 (0.15;             2,006  Occasional.
 concolor).                    Atlantic.                         66,884; 2012).
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\1\ MMPA: D = Depleted, S = Strategic, NC = Not Classified.
\2\ ESA: EN = Endangered, T = Threatened, DL = Delisted, NL = Not listed.
\3\ 2016 draft NMFS Stock Assessment Reports: Waring et al. (2016).
* The Western North Atlantic stock of gray seals is comprised of the Canadian and U.S. populations. The U.S.
  population abundance estimate is unknown, but the Canadian population abundance estimate is 505,000. The 2016
  draft SAR states that the western North Atlantic stock is equivalent to the Canada population.

Potential Effects of the 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 (82 FR 3738; January 12, 2017) 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.

Anticipated Effects on Marine Mammal Habitat

    The main impact associated with the USFWS's project would be visual 
and acoustic disturbance from human presence, vessels, and potential 
cannon nets. The project would not result in permanent impacts to 
habitats used directly by marine mammals, such as haulout sites, or 
short-term impacts to food sources, but may have minor impacts to the 
immediate substrate during installation of signage during the 
monitoring and research project. These potential effects are discussed 
in detail in the Federal Register notice for the proposed IHA (82 FR 
3738; January 12, 2017, therefore that information is not repeated 
here; please refer to that Federal Register notice for that 
information.

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. 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

[[Page 12344]]

stocks, their habitat (50 CFR 216.104(a)(11)).
    Time and Frequency: The USFWS plans to conduct research activities 
throughout the course of the year between April 1 and November 30, 
2017.
    Vessel Approach and Timing Techniques: The USFWS will ensure that 
its vessel approaches to beaches with pinniped haul outs are conducted 
so as to minimize or avoid disturbing marine mammals. To the extent 
possible, the vessel should approach the beaches in a slow and 
controlled approach, as far away as possible from haul outs to prevent 
or minimize flushing. Staff will 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 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 m from the source. The USFWS will 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 
will instruct its members and research staff to avoid making 
unnecessary noise and not visually reveal themselves to pinnipeds 
whenever practicable. USFWS staff will stay at least 50 m from hauled 
out pinnipeds, unless it is absolutely necessary to approach seals 
closer 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 haul outs, 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-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 haul outs if an issue is noticed. 
Similar to the USFWS, the National Park Service 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 m.
    The presence/proximity of seal haul outs 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. Trapping will not take place on sites 
where there is a strong possibility of disturbing seals (i.e., closer 
than 100 m). The Red Knot Stopover Study occurs during the time of year 
(July-Sept) when the least number of seals are present at the activity 
sites.

Mitigation Conclusions

    NMFS has carefully evaluated the USFWS's mitigation measures in the 
context of ensuring that we prescribe the means of affecting the least 
practicable impact on the affected marine mammal species and stocks and 
their habitat. The evaluation of potential measures included 
consideration of the following factors in relation to one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     The practicability of the measure for applicant 
implementation.
    Any mitigation measure(s) prescribed by NMFS should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed here:
    1. Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    2. A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to vessel or 
visual presence that NMFS expects to result in the take of marine 
mammals (this goal may contribute to 1, above, or to reducing 
harassment takes only).
    3. A reduction in the number of times (total number or number at 
biologically important time or location) individuals exposed to vessel 
or visual presence that NMFS expects to result in the take of marine 
mammals (this goal may contribute to 1, above, or to reducing 
harassment takes only).
    4. A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to vessel or 
visual presence that NMFS expects to result in the take of marine 
mammals (this goal may contribute to a, above, or to reducing the 
severity of harassment takes only).
    5. Avoidance or minimization of adverse effects to marine mammal 
habitat, paying special attention to the food base, activities that 
block or limit passage to or from biologically important areas, 
permanent destruction of habitat, or temporary destruction/disturbance 
of habitat during a biologically important time.
    6. For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on the evaluation of the USFWS's planned measures, NMFS has 
determined that the mitigation measures provide the means of effecting 
the least practicable impact on marine mammal species or stocks and 
their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance.

Monitoring Measures

    In order to issue an incidental take authorization 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 IHAs 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 NMFS expects to be 
present in the action area.

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    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    1. An increase in our understanding of the likely occurrence of 
marine mammal species in the vicinity of the action, (i.e., presence, 
abundance, distribution, and/or density of species).
    2. An increase in our understanding of the nature, scope, or 
context of the likely exposure of marine mammal species to any of the 
potential stressor(s) associated with the action (e.g., sound or visual 
stimuli), through better understanding of one or more of the following: 
The action itself and its environment (e.g., sound source 
characterization, propagation, and ambient noise levels); the affected 
species (e.g., life history or dive pattern); the likely co-occurrence 
of marine mammal species with the action (in whole or part) associated 
with specific adverse effects; and/or the likely biological or 
behavioral context of exposure to the stressor for the marine mammal 
(e.g., age class of exposed animals or known pupping, calving or 
feeding areas).
    3. An increase in our understanding of how individual marine 
mammals respond (behaviorally or physiologically) to the specific 
stressors associated with the action (in specific contexts, where 
possible, e.g., at what distance or received level).
    4. An increase in our understanding of how anticipated individual 
responses, to individual stressors or anticipated combinations of 
stressors, may impact either: The long-term fitness and survival of an 
individual; or the population, species, or stock (e.g., through effects 
on annual rates of recruitment or survival).
    5. An increase in our understanding of how the activity affects 
marine mammal habitat, such as through effects on prey sources or 
acoustic habitat (e.g., through characterization of longer-term 
contributions of multiple sound sources to rising ambient noise levels 
and assessment of the potential chronic effects on marine mammals).
    6. An increase in understanding of the impacts of the activity on 
marine mammals in combination with the impacts of other anthropogenic 
activities or natural factors occurring in the region.
    7. An increase in our understanding of the effectiveness of 
mitigation and monitoring measures.
    8. An increase in the probability of detecting marine mammals 
(through improved technology or methodology) to better achieve the 
above goals.
    The USFWS will conduct marine mammal monitoring, in order to 
implement the mitigation measures that require real-time monitoring, 
and to satisfy the monitoring requirements of the IHA. The USFWS 
submitted a marine mammal monitoring plan in Section 13 and Appendix A 
of their IHA application. These include:
    Monitoring seals as project activities are being conducted. 
Monitoring requirements in relation to the USFWS's planned activities 
will 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 will 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 2 body 
lengths, or change in direction >90 degrees, 3 = flushing) (Table 2). 
USFWS staff will 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 or unusual species of marine 
mammals 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. 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 
any other marine mammal occurs, and such action may be a result of the 
USFWS's activities, the USFWS will 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.

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

Reporting Measures

    The USFWS will submit a draft report to NMFS' Office of Protected 
Resources no later than 90 days after the expiration of the IHA. The 
report will include a summary of the information gathered pursuant to 
the monitoring requirements set forth in the IHA. The USFWS will submit 
a final report to the NMFS within 30 days after receiving comments from 
NMFS on the draft report. If the USFWS receives no comments from NMFS 
on the 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 project activities. 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.

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    3. An estimate of the number (by species) of marine mammals exposed 
to human presence associated with the USFWS's activities.
    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 the 
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 
circumstances of the incident. NMFS will 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.

Estimated Take by Incidental Harassment

    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).
    All anticipated takes would be by Level B harassment, involving 
temporary changes in behavior. NMFS expects that the mitigation and 
monitoring measures will minimize the possibility of injurious or 
lethal takes. NMFS considers the potential for take by injury, serious 
injury, or mortality as remote. 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.
    As discussed earlier, NMFS assumes that pinnipeds that move greater 
than two body lengths to longer retreats over the beach, or if already 
moving, a change of direction of greater than 90 degrees in response to 
the presence of surveyors, or pinnipeds that flush into the water, are 
behaviorally harassed, and thus subject to Level B taking (Table 2). 
NMFS estimates that 39,666 gray seals will be taken, by Level B 
harassment, over the course of the IHA (Table 3).
    This estimate is based on the number of seals observed in past 
research years that have been flushed during research activities. USFWS 
biologists used their knowledge of the number of seals that use the 
haul outs near their research activities, and how many of those 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 haul outs 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, personal communication), 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 haul out 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 
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 is provide 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.

[[Page 12347]]



  Table 3--Estimated Number of Gray Seal Takes per Activity at Monomoy, Nantucket, and Nomans Land Island NWRs
----------------------------------------------------------------------------------------------------------------
                                                    Gray seal
-----------------------------------------------------------------------------------------------------------------
                              Age: all                                            Sex: Male & female
----------------------------------------------------------------------------------------------------------------
                                            Number takes/event \a\    Number events/activity \b\    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 (CACO)................  5 (CACO)..................
Northeastern beach tiger beetle Census..  750 (Monomoy).............  3 (Monomoy)...............           2,250
Coastal Shoreline Change Survey.........  500 (Monomoy).............  1 (Monomoy)...............             500
                                                                                                 ---------------
                                                                                                          39,280
----------------------------------------------------------------------------------------------------------------
\a\ Number of takes/event are estimates based on NOAA unpublished data (B. Josephson, personal communication)
  and USFWS field observations.
\b\ Number of events/activity were calculated using the numbers in Table 1 of the USFWS's application for each
  site location and duration.

    NMFS estimates that 1,964 harbor seals could be affected by Level B 
behavioral harassment over the course of the IHA. USFWS staff estimate 
that of all of the seals hauled out in mixed species haul outs, 
approximately five percent are harbor seals. We estimated the number of 
Level B takes of harbor seals by taking 5 percent of the total takes of 
gray seals (i.e., 5 percent of 39,280 is 1,964). These incidental 
harassment take numbers represent less than three percent of the 
affected stocks of harbor seals and less than eight percent of the 
stock of gray seals (Table 4). 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 will be less. For example, the maximum number of 
seals observed hauled out on Monomoy NWR during the year is 19,166 (B. 
Josephson, NOAA, personal communication); therefore, we expect the 
actual number of individual takes to be closer to that number for 
activities at Monomoy NWR. Raw counts are not available for Nantucket 
NWR and Nomans NWR.

                  Table 4--The Percentage of Stock Affected by the Number of Takes per Species
----------------------------------------------------------------------------------------------------------------
                                                                                       Stock        Percent of
                             Species                                Take number      abundance         stock
----------------------------------------------------------------------------------------------------------------
Gray seal (Halichoerus grypus grypus)...........................          39,280       * 505,000            7.78
Harbor seal (Phoca vitulina concolor)...........................           1,964          75,834            2.59
----------------------------------------------------------------------------------------------------------------
* The Western North Atlantic stock of gray seals is comprised of the Canadian and U.S. populations. The U.S.
  population abundance estimate is unknown, but the Canadian population abundance estimate is 505,000. The 2016
  draft SAR states that the western North Atlantic stock is equivalent to the Canada population.

    Because of the required mitigation measures and the likelihood that 
some pinnipeds will avoid the area, NMFS does not expect any injury, 
serious injury, or mortality to pinnipeds to occur and NMFS has not 
authorized take by Level A harassment for this activity.

Analysis and Determinations

Negligible Impact

    Negligible impact is ``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). The lack of 
likely adverse effects on annual rates of recruitment or survival 
(i.e., population level effects) forms the basis of a negligible impact 
finding. An estimate of the number of Level B harassment 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 behavioral 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 the number and nature of 
estimated Level A harassment takes, the number of estimated 
mortalities, and effects on habitat.
    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's personnel during the activities. Much of 
the disturbance will be limited to a short duration, allowing marine 
mammals to reoccupy haul outs within a short amount of time. Thus, the 
planned activities are 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 will occur during the least sensitive time 
(e.g.,

[[Page 12348]]

April through November, outside of the pupping season) for hauled out 
pinnipeds in the Complex. Thus, pups or breeding adults will not be 
present during the planned activity days. If mothers and pups are 
observed, USFWS staff will avoid disturbing them by rescheduling 
surveys, if possible, or by refraining from activities that may cause 
disturbance (e.g., large movements or flushing).
    Moreover, the USFWS's mitigation measures regarding vessel 
approaches and procedures that attempt to minimize the potential to 
harass the seals will 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, NMFS anticipates that impacts to hauled-out pinnipeds 
during the USFWS's planned research activities would be behavioral 
harassment of limited intensity (i.e., temporary flushing at most). 
NMFS does not expect stampeding, and therefore does not expect injury 
or mortality to occur (see Mitigation Measures for more details). 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 USFWS's 
survey activities will have a negligible impact on the affected marine 
mammal species or stocks.

Small Numbers

    As mentioned previously, NMFS estimates that the USFWS's planned 
activities could potentially affect, 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 4). 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 in this notice of the likely 
effects of the specified activity on marine mammals and their habitat, 
and taking into consideration the implementation of the mitigation and 
monitoring measures, NMFS finds that the USFWS's activities will take 
small numbers of marine mammals relative to the populations of the 
affected species or stocks.

Impact on Availability of Affected Species or Stock for Taking for 
Subsistence Uses

    There are no relevant subsistence uses of marine mammals 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)

    NMFS does not expect that the USFWS's planned research activities 
will affect any species listed under the ESA. Therefore, NMFS has 
determined that a section 7 consultation under the ESA is not required.

National Environmental Policy Act (NEPA)

    NMFS prepared an EA and analyzed the potential impacts to marine 
mammals that may result from the USFWS's monitoring and research 
activities. A FONSI was signed in February 2017. A copy of the EA and 
FONSI is available on our Web site at https://www.nmfs.noaa.gov/pr/permits/incidental/research.htm.

Authorization

    NMFS has issued an IHA to the USFWS for the potential harassment of 
small numbers of two marine mammal species incidental to the seabird 
and shorebird monitoring and other research activities in the Complex, 
provided the previously mentioned mitigation, monitoring and reporting.

    Dated: February 24, 2017.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2017-04002 Filed 3-1-17; 8:45 am]
 BILLING CODE 3510-22-P