Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to National Park Service's Research and Monitoring Activities in Southern Alaska National Parks, 64078-64096 [2018-26741]

Download as PDF 64078 Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules thousand 95% or more of the time, the applicable criteria are the saltwater criteria in Column C, except for selenium in waters of the San Francisco Bay upstream to and including Suisun Bay and the Sacramento-San Joaquin Delta where the applicable criteria are the freshwater criteria in Column B of the National Toxic Rule (‘‘NTR’’) at § 131.36. (iii) For waters in which the salinity is between 1 and 10 parts per thousand as defined in paragraphs (c)(3)(i) and (ii) of this section, the applicable criteria are the more stringent of the freshwater or saltwater criteria, except for selenium in waters of the San Francisco Bay upstream to and including Suisun Bay and the Sacramento-San Joaquin Delta where the applicable criteria are the freshwater criteria in Column B of the NTR. However, the Regional Administrator may approve the use of the alternative freshwater or saltwater criteria if scientifically defensible information and data demonstrate that on a site-specific basis the biology of the water body is dominated by freshwater aquatic life and that freshwater criteria are more appropriate; or conversely, the biology of the water body is dominated by saltwater aquatic life and that saltwater criteria are more appropriate. Before approving any change, the EPA will publish for public comment a document proposing the change. * * * * * [FR Doc. 2018–26781 Filed 12–12–18; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 217 [Docket No. 180411364–8364–01] RIN 0648–BH90 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to National Park Service’s Research and Monitoring Activities in Southern Alaska National Parks National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. amozie on DSK3GDR082PROD with PROPOSALS1 AGENCY: NMFS has received a request from the National Park Service (NPS) for authorization to take marine mammals incidental to research and monitoring activities in southern Alaska over the SUMMARY: VerDate Sep<11>2014 17:55 Dec 12, 2018 Jkt 247001 course of five years (2019–2024). These activities include glaucous-winged gull and climate monitoring activities in Glacier Bay National Park (GLBA NP), Alaska and marine bird and mammal survey activities conducted by the Southwest Alaska Inventory and Monitoring Network (SWAN) in national parks and adjacent lands. As required by the Marine Mammal Protection Act (MMPA), NMFS is proposing regulations to govern that take and requests comments on the proposed regulations. DATES: Comments and information must be received no later than January 14, 2019. ADDRESSES: You may submit comments on this document, identified by NOAA– NMFS–2018–0059, by any of the following methods: • Electronic submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D= NOAA-NMFS-2018-0059, click the ‘‘Comment Now!’’ icon, complete the required fields, and enter or attach your comments. • Mail: Submit written comments to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East West Highway, Silver Spring, MD 20910. Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter ‘‘N/ A’’ in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only. FOR FURTHER INFORMATION CONTACT: Gray Redding, Office of Protected Resources, NMFS, (301) 427–8401. SUPPLEMENTARY INFORMATION: Availability A copy of NPS’s application and any 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/incidentaltake-authorizations-research-and-other- PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 activities. In case of problems accessing these documents, please call the contact listed above (see FOR FURTHER INFORMATION CONTACT). National Environmental Policy Act (NEPA) 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 take authorization) with respect to potential impacts on the human environment. This action is consistent with categories of activities identified in CE B4 of the Companion Manual for NOAA Administrative Order 216–6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed rule and subsequent Letters of Authorization qualifies to be categorically excluded from further NEPA review. We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the request. Purpose and Need for Regulatory Action This proposed rule, to be issued under the authority of the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.), would establish a framework for authorizing the take of marine mammals incidental to NPS’s gull and climate monitoring activities within GLBA NP and marine bird and mammal surveys in the SWAN region. Researchers conducting these surveys may cause behavioral disturbance (Level B harassment) of harbor seals and Steller sea lions. We received an application from NPS requesting five-year regulations and authorization to take harbor seals and Steller sea lions. Take would occur by Level B harassment incidental to research and monitoring activities due to behavioral disturbance of pinnipeds. The regulations would be valid from 2019 to 2024. Please see ‘‘Background’’ below for definitions of harassment. Legal Authority for the Proposed Action Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of small numbers of E:\FR\FM\13DEP1.SGM 13DEP1 Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to five years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity, as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing this proposed rule containing five-year regulations, and for any subsequent Letters of Authorization. As directed by this legal authority, this proposed rule contains mitigation, monitoring, and reporting requirements. amozie on DSK3GDR082PROD with PROPOSALS1 Summary of Major Provisions Within the Proposed Rule The following provides a summary of some of the major provisions within the proposed rulemaking for NPS’s research and monitoring activities in southern Alaska. We have preliminarily determined that NPS’s adherence to the proposed mitigation, monitoring, and reporting measures listed below would achieve the least practicable adverse impact on the affected marine mammals. They include: • Measures to minimize the number and intensity of incidental takes during monitoring activities and to minimize the duration of disturbances. • Measures designed to eliminate startling reactions. • Eliminating or altering research activities on GLBA NP beaches when pups are present, and setting limits on the frequency and duration of events during pupping season. Background Paragraphs 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1371 (a)(5)(A) and (D)) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region 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 VerDate Sep<11>2014 16:36 Dec 12, 2018 Jkt 247001 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. NMFS has defined ‘‘unmitigable adverse impact’’ in 50 CFR 216.103 as an impact resulting from the specified activity: • That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: Æ Causing the marine mammals to abandon or avoid hunting areas; Æ Directly displacing subsistence users; or Æ Placing physical barriers between the marine mammals and the subsistence hunters; and • That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met. Except with respect to certain activities not pertinent here, the MMPA defines ‘‘harassment’’ as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment). Summary of Request On February 6, 2018, we received an adequate and complete request from NPS for authorization to take marine mammals incidental to gull and climate monitoring activities in GLBA NP. On February 22, 2018 (83 FR 7699), we published a notice of receipt of NPS’s application in the Federal Register, requesting comments and information related to the request for 30 days. We did not receive any comments. NPS provided a revised application incorporating minor revisions on April 23, 2018. Subsequently, NPS has identified additional research and monitoring projects in southern Alaska (SWAN region) with similar sources of marine mammal disturbance and potential effects. On October 29, 2018, NMFS received an adequate and complete revised application including these additional research and monitoring activities. These additional activities were determined to be similar in scope and impact to the original proposed activities, and NMFS PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 64079 determined that publication of a revised notice of receipt was not necessary for the updated application. Prior to this request for incidental take regulations and subsequent Letters of Authorization (LOA), we issued five consecutive incidental harassment authorizations (IHA) to NPS for incidental take associated with the GLBA NP ongoing gull and climate monitoring activities. NPS was first issued an IHA, valid for a period of one year, effective on September 18, 2014 (79 FR 56065), and was subsequently issued one-year IHAs for incidental take associated with the same activities, effective on March 24, 2015 (80 FR 28229), June 1, 2016 (77 FR 24471), May 20, 2017 (82 FR 24681), and February 15, 2018 (83 FR 6842). NPS has abided by all of NMFS’s mitigation and monitoring requirements in previous activities for which take was authorized. Description of the Specified Activity Glacier Bay NPS is proposing to conduct two research projects within the GLBA NP in southeast Alaska: (1) Glaucouswinged gull monitoring, and (2) the maintenance of a weather station operation for long-term climate monitoring. NPS would conduct ground and vessel surveys at six study sites within GLBA NP for gull monitoring: South Marble Island, Boulder Island, Lone Island, Geikie Rock, Flapjack Island, and Tlingit Point Islet. These sites will be accessed up to five times per year. In addition, NPS is requesting permission to access Lone Island an additional three times per year for weather station maintenance and operation bringing the total number of site visits to Lone Island to eight. This includes adding one additional trip for any emergency repairs that may be needed. Researchers accessing the islands for gull monitoring and weather station operation may cause behavioral disturbance (Level B harassment) of harbor seals. NPS expects that the disturbance to harbor seals from both projects will be limited to Level B harassment. The purpose for the above-mentioned research activities are as follows. Gull monitoring studies are mandated by a Record of Decision of a Legislative Environmental Impact Statement (LEIS) (NPS 2010) which states that NPS must initiate a monitoring program for glaucous-winged gulls (Larus glaucescens) to inform future native egg harvest by the Hoonah Tlingit in Glacier Bay, Alaska. Installation of a new weather station on Lone Island was conducted by the NPS in the spring of E:\FR\FM\13DEP1.SGM 13DEP1 64080 Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules 2018 as one of several installations intended to fill coverage gaps among existing weather stations in GLBA NP (NPS 2015a). In order to properly maintain the newly installed weather station, researchers must access the Lone Island weather station site at least twice a year for annual maintenance and repairs. SWAN NPS is applying for an LOA to conduct the SWAN marine bird and mammal multi-species nearshore surveys along the coastlines of Katmai National Park and Preserve (KATM), Kenai Fjords National Park (KEFJ), and in Kachemak Bay (KBAY) in support of long-term monitoring programs in these regions of southwest Alaska. Occasional disturbance of Steller sea lions and harbor seals may occur during surveys. Steller sea lion and harbor seal habitat coincides with surveyed nearshore transects. Please see NPS’s application for established transect locations for KATM and KEFJ and proposed transect locations for KBAY. NPS expects that the disturbance will be limited to Level B harassment and will not result in serious injury or death. SWAN also seeks to foster further collaborations with NOAA and share monitoring data in the future. Dates and Duration amozie on DSK3GDR082PROD with PROPOSALS1 Glacier Bay The specified activity would be valid during the five-year period of validity for these proposed regulations (March 1, 2019 through February 29, 2024). Ground and vessel surveys for nesting gulls will be conducted from May through September on bird nesting islands in GLBA NP (see Figure 1 of LOA Application) and other suspected gull colonies. There will be 1–3 ground visits and 1–2 vessel surveys at each site for a maximum of five visits per site. Duration of surveys will be 30 minutes to two hours each. Maintenance of the Lone Island weather station may begin March 1, 2019. To avoid the gull-nesting period, all maintenance and emergency repairrelated site visits to this location are planned to occur between March and April during the first year, and October to April in following years, but visits could occur outside of this time period if necessary with authorization from the park Superintendent to ensure protection of park resources and values. Possible unanticipated station failures requiring emergency repair will require up to eight hours. Two planned maintenance visits will require approximately two hours per visit. VerDate Sep<11>2014 16:36 Dec 12, 2018 Jkt 247001 SWAN NPS’s activities in the SWAN region would be valid during the five year period of validity for these proposed regulations (March 1, 2019 through February 29, 2024). Standardized surveys of marine birds are proposed in KATM and KEFJ between late June and early July and are generally conducted by two survey crews on independent small vessels (5–8 m length) traveling at speeds of 8–12 knots along randomly selected sections of coastline that represent independent transects. The two crews operate independently and do not survey the same transects. Winter surveys are conducted in March and consist of the same set of transects surveyed in the summer months. Only one region, either KATM or KEFJ, per winter season is surveyed. Regions surveyed in the winter are on a rotation. Similar annual surveys are proposed in KBAY, with summer surveys occurring in June or July and no winter survey proposed. The survey of each area takes 3–4 days to complete with both crews operating. Specified Geographical Region Glacier Bay The proposed study sites would occur in the vicinity of the following locations: South Marble, Boulder, Lone, and Flapjack Islands, Tlinglit Point Islet, and Geikie Rock in GLBA NP in southeast Alaska (see Figure 1 of LOA application). Each of these study sites are located on the eastern side of the park situated near Geikie Inlet and all provide harbor seal habitat throughout the year, however the highest presence of seals occurs during the breeding and molting season (May to October) (Lewis et al., 2017). On Boulder and Flapjack islands, the proposed gull monitoring study sites are located on the north side whereas harbor seal haulouts are positioned on the south (Lewis et al., 2017). Also, on Lone Island, harbor seals are sited near tidal rocks off the northeast tip of the island (ADEC, 2014), whereas on Geikie Rock they are known to be found throughout the entire site due to its small size (Lewis 2017). NPS will also conduct studies at South Marble Island and Tlingit Point Islet; however, there are no reported harbor seal haulout sites at those locations. South Marble Island is regularly occupied by hauled out Steller sea lions, but GLBA NP researchers have been able to access the island previously while maintaining 100 m minimum distance from the Steller sea lions and avoiding disturbance. PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 SWAN The proposed surveys will occur at two national parks, KATM and KEFJ, as well as the nearby KBAY, in southwest AK. Detailed maps of the survey transects are available in the NPS’s LOA application. Transects are conducted 100 or 150 m from shore and have a total width of approximately 200 to 300 m centered on the vessel. Detailed Description of Activities Glacier Bay’s Glaucous-Winged Gull Monitoring Gull monitoring will be conducted using a combination of ground and vessel surveys by landing at specific access points on the islands. NPS proposes to conduct: (1) Ground-based surveys at a maximum frequency of three visits per site; and (2) vessel-based surveys at a maximum frequency of two visits per site during the period of May through September. Ground-based surveys for gull monitoring will involve two trained observers conducting complete nest counts of the gull colonies. The survey will encompass all portions of the gull colony accessible to humans and thus represent a census of the harvestable nests. GPS locations of nests and associated vegetation along with the number of live and predated eggs will be collected during at least one visit to obtain precise nest locations to characterize nesting habitat. On subsequent surveys, nest counts will be tallied on paper so observers can move through the colony more quickly and minimize disturbance. Ground surveys will be discontinued after the first hatched chick is detected to minimize disturbance and mortalities of gulls. During ground surveys, observers will also record other bird and marine mammal species in proximity to colonies. The observers would access each island using a kayak, a 32.8 to 39.4-foot (ft) (10 to 12 meter (m)) motorboat, or a 12 ft (4 m) inflatable rowing dinghy. The landing craft’s transit speed would not exceed 4 knots (kn) (4.6 miles per hour (mph)). Ground surveys generally last 30 minutes (min) to two hours (hrs) each depending on the size of the island and the number of nesting gulls. During ground surveys, Level B harassment of harbor seals can occur from either acoustic disturbance from motorboat sounds or visual disturbance from the presence of observers. Past monitoring reports show that most takes (flushes or movements greater than one meter) from ground surveys occurred as vessels approached a study site to perform a survey. Takes usually occurred while E:\FR\FM\13DEP1.SGM 13DEP1 64081 Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules the vessel was 50–100 meters from the island (NPS 2015b; NPS 2016). Vessel-based surveys for gull monitoring will be conducted from the deck of a motorized vessel (10 to 12 meters) and will be used to count the number of adult and fledgling gulls that are visible from the water (Zador, 2001; Arimitsu et al., 2007). Vessel surveys provide a more reliable estimate of the numbers of gulls in the colony than ground surveys because NPS can count nesting birds in areas that are inaccessible by foot and because the birds do not flush from the researchers’ presence. GLBA NP would conduct these surveys by circling the islands at approximately 100 m from shore while counting the number of adult and chick gulls as well as other bird and mammal species present. Surveys can be from 30 min to two hrs in duration. During vessel surveys, Level B harassment of harbor seals can occur from either acoustic disturbance from motorboat sounds or visual disturbance from the presence of observers. Past monitoring reports show that most takes (flushes or movements greater than one meter) from vessel surveys occurred as the vessel was 100 m from the island (NPS 2015b; NPS 2016). Glacier Bay’s Climate Monitoring (Weather Station Maintenance) To conduct climate monitoring and weather station maintenance activities, Lone Island will be accessed by a 10– 20 m motor vessel. Materials will be carried by hand to the weather station location. Station configuration and maintenance is typical of Remote Automated Weather Stations (RAWS) operated by land management agencies for weather and climate monitoring, fire weather observation, and other uses. The weather station consists of an 8-ft monopole and associated guy lines. In addition, there is a fuel cell and sealed 12V battery housed in a watertight enclosure that provides power to the station. Standard meteorological sensors for measuring precipitation, wind, temperature, solar radiation, and snow depth are used. Data is housed in internal memory and communicated via satellite telemetry to the Wildland Fire Management Institute where it is relayed to a variety of repositories such as the Western Regional Climate Center in near real-time. It is possible that the weather station can be accessed in a fashion that will not disturb hauled out harbor seals. However NPS is requesting authorization to ensure its ability to perform yearly maintenance of the weather station. SWAN Marine Bird and Marine Mammal Surveys SWAN standardized surveys of marine birds are conducted in KATM and KEFJ between late June and early July and are generally conducted from small vessels (5–8 m length) traveling at speeds of 8–12 knots along randomly selected sections of coastline that represent independent transects. SWAN is also proposing similar surveys be implemented in KBAY in cooperation with USGS and Gulf Watch Alaska. The survey design consists of a series of transects along shorelines such that a minimum of 20 percent of an NPS park shoreline is surveyed. Transects are systematically selected beginning at a random starting point from the pool of contiguous 2.5–5 km transects that are adjacent to the mainland or islands. The transect width is 200–300 m, depending on the elevation of the observer platform, and the survey boat represents the midpoint. There are two survey teams, and each transect is surveyed by one team of three. The boat operator generally surveys the 100–150 m offshore area of the transect, while a second observer surveys the 100–150 m nearshore area. The third team member enters the observations into a laptop running software specifically designed for this type of surveying, and the third team member can assist with observations when needed. All marine birds and mammals within the 200–300 m transect swath are identified and counted. Detailed descriptions of methods and procedures can be found in the Marine Bird and Mammal Survey SOP (Bodkin 2011). Description of Marine Mammals in the Area of the Specified Activity Sections 3 and 4 of the LOA application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS’s Stock Assessment Reports (SAR; https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/marinemammal-stock-assessments) and more general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS’s website (https:// www.fisheries.noaa.gov/find-species). Table 1 lists all species with expected potential for occurrence within the survey areas and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. For taxonomy, we follow the Committee on Taxonomy (2017). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS’s SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats. Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS’s stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS’s U.S. Alaska SARs (Muto et al., 2018). All values presented in Table 1 are the most recent available at the time of publication and are available in the 2017 SARs (Muto et al., 2018). amozie on DSK3GDR082PROD with PROPOSALS1 TABLE 1—MARINE MAMMALS THAT COULD OCCUR IN THE PROJECT AREA Common name Scientific name ESA/ MMPA status; strategic (Y/N) 1 Stock Stock abundance (CV, Nmin, most recent abundance survey) 2 PBR Annual M/SI 3 Order Carnivora—Superfamily Pinnipedia Family Otariidae (eared seals and sea lions): Steller sea lion ................. VerDate Sep<11>2014 Eumetopias jubatus ................ 16:36 Dec 12, 2018 Jkt 247001 PO 00000 Eastern U.S. ........................... Frm 00046 Fmt 4702 Sfmt 4702 -/-; N 41,638 (n/a, 41,638, 2015) 4 .. E:\FR\FM\13DEP1.SGM 13DEP1 306 236 64082 Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules TABLE 1—MARINE MAMMALS THAT COULD OCCUR IN THE PROJECT AREA—Continued Common name Family Phocidae (earless seals): Harbor seal ....................... Scientific name ESA/ MMPA status; strategic (Y/N) 1 Stock Phoca vitulina richardii ........... Stock abundance (CV, Nmin, most recent abundance survey) 2 PBR Annual M/SI 3 Western U.S. .......................... E/D; Y 54,267 (n/a; 54,267; 2017) 4 .. 326 252 Glacier Bay/Icy Strait ............. Cook Inlet/Shelikof Strait ........ Prince William Sound ............. -/-; N -/-; N -/-; N 7,210 (n/a.; 5,647; 2011) 4 ..... 27,386 (n/a; 25,651; 2011) 4 .. 29,889 (n/a; 27,936; 2011) 4 .. 169 770 838 104 234 279 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable (n/a). 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. 4 CV value not reported in SARs. amozie on DSK3GDR082PROD with PROPOSALS1 All marine mammal species that could potentially occur in the proposed survey areas are included in Table 1. While cetaceans, including humpback, beluga, and killer whales, may be present in nearby waters, NPS’s activities are expected to result in harassment only for hauled out pinnipeds. Therefore, cetaceans are not considered further in this analysis. However, NPS does propose cetacean avoidance measures as described in the ‘‘Proposed Mitigation’’ section below. Finally, sea otters may be found throughout the proposed project area. However, sea otters are managed by the U.S. Fish and Wildlife Service and are not considered further in this document. Steller Sea Lions The Steller sea lion is the largest of the eared seals, ranging along the North Pacific Rim from northern Japan to California, with centers of abundance and distribution in the Gulf of Alaska and Aleutian Islands. Steller sea lions were listed as threatened range-wide under the ESA on November 26, 1990 (55 FR 49204). Subsequently, NMFS published a final rule designating critical habitat for the species as a 20 nautical mile buffer around all major haulouts and rookeries, as well as associated terrestrial, air and aquatic zones, and three large offshore foraging areas (58 FR 45269; August 27, 1993). In 1997, NMFS reclassified Steller sea lions as two distinct population segments (DPS), or stocks, based on genetic studies and other information (62 FR 24345; May 5, 1997). Steller sea lion populations that primarily occur west of 144° W (Cape Suckling, Alaska) comprise the western stock, while all others comprise the eastern stock; however, there is regular movement of both stocks across this boundary (Jemison et al., 2013). Upon this reclassification, the western DPS, or VerDate Sep<11>2014 16:36 Dec 12, 2018 Jkt 247001 stock, was listed as endangered while the eastern DPS, or stock, remained as threatened (62 FR 24345; May 5, 1997) and in November 2013, the eastern DPS was delisted (78 FR 66140). Steller sea lions are not known to migrate, but individuals may disperse widely outside the breeding season (late May to early July). At sea, Steller sea lions are commonly found from nearshore habitats to the continental shelf and slope. The western stock breeds on rookeries in Alaska from Prince William Sound west through the Aleutian Islands. Steller sea lions use 38 rookeries and hundreds of haulouts within their range in western Alaska (Allen and Angliss 2013). The eastern stock originates from rookeries east of Cape Suckling, Alaska, and can be found between southeast Alaska and California. SWAN SWAN’s activities all occur west of the 144° W line that splits the two Steller sea lion stocks, but there is some mixing across that boundary. Steller sea lions impacted by NPS’ research and monitoring activities could belong to either stock, and it is not possible to determine which stock a Steller sea lion belongs to by simple observation. Both stocks of Steller sea lions are therefore considered in this analysis. SWAN surveys occur in areas with known Steller sea lion haulouts and there are two rookeries in KEFJ (see application). KATM and KEFJ shorelines are both within Steller sea lion critical habitat including the aquatic zone (or buffer) that extends 37 kilometers (20 nautical miles) seaward in all directions from each rookery and major haulout. Critical habitat also includes three large offshore foraging areas: The Shelikof Strait area, the Bogoslof area, and the Seguam Pass area (58 FR 45269) with only the Shelikof PO 00000 Frm 00047 Fmt 4702 Sfmt 4702 Strait area relevant to this action. Steller sea lions are sometimes present in KBAY, but the area is not critical habitat. Regulations prevent approach by vessel to within three nautical miles of major rookeries (50 CFR 224.103). Glacier Bay The temporal and/or spatial occurrence of Steller sea lions is such that take is not expected to occur in GLBA NP research sites and researchers would not approach Steller sea lions. Steller sea lions which occur in GLBA NP are generally found on South Marble Island (see Figure 1 in the Application). No disturbance of Steller sea lions is expected from GLBA NP activities, so their presence in the area is not discussed beyond the information provided here. A total of five Steller sea lions have been observed during the 2015, 2016, and 2017 GLBA NP gull survey seasons (climate monitoring did not take place during these years) (NPS 2015b; NPS 2016; NPS 2017). However, all Steller sea lions that were spotted were observed outside the study area. Steller sea lions are present in GLBA NP, but are not generally seen on the islands being researched. NPS has proposed mitigation, including staying at least 100 m away from all Steller sea lions (see Proposed Mitigation), which has been found to be sufficient to avoid take by Level B harassment due to Steller sea lions’ tolerance of vessels and lack of response to humans from a distance. Harbor Seals Harbor seals are the most abundant marine mammal species found within the action area and are present yearround. Harbor seals range from Baja California north along the west coasts of Washington, Oregon, California, British Columbia, and Southeast Alaska; west through the Gulf of Alaska, Prince E:\FR\FM\13DEP1.SGM 13DEP1 Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules William Sound, and the Aleutian Islands; and north in the Bering Sea to Cape Newenham and the Pribilof Islands. The current statewide abundance estimate for Alaskan harbor seals is 205,090 (Muto et al., 2017), based on aerial survey data collected during 1998–2011. In 2010, harbor seals in Alaska were partitioned into 12 separate stocks based largely on genetic structure (Allen and Angliss, 2010). Harbor seals have declined dramatically in some parts of their range over the past few decades, while in other parts their numbers have increased or remained stable over similar time periods. Harbor seals haul out on rocks, reefs, beaches, and drifting glacial ice (Allen and Angliss, 2014). They are nonmigratory; their local movements are associated with tides, weather, season, food availability, and reproduction, as well as sex and age class (Allen and Angliss, 2014; Boveng et al., 2012; Lowry et al., 2001; Swain et al., 1996). Pupping in Alaska generally takes place in May and June; while molting generally occurs from June to October. Glacier Bay Stock/Icy Strait Stock Harbor seals of Glacier Bay range from Cape Fairweather southeast to Column Point, extending inland to Glacier Bay, Icy Strait, and from Hanus Reef south to Tenakee Inlet (Muto et al., 2017). This is the only stock that would be impacted by research and monitoring activities in GLBA NP. The Glacier Bay/Icy Strait stock showed a negative population trend from 1992 to 2008 in June and August for glacial (¥7.7 percent/year; ¥8.2 percent/year) and terrestrial sites (¥12.4 percent/year, August only) (Womble et al., 2010 as cited in Muto et al., 2017). Trend estimates by Mathews and Pendleton (2006) were similarly negative for both glacial and terrestrial sites. Prior to 1993, seal counts were up to 1,347 in the East Arm of Glacier Bay; 2008 counts were fewer than 200 (Streveler, 1979; Molnia, 2007 as cited in Muto et al., 2017). These observed declines in harbor seals resulted in new research efforts which were initiated in 2004 and were aimed at trying to further understand the biology and ecology of seals and possible factors that may have contributed to the declines (e.g., Herreman et al. 2009, Blundell et al. 2011, Hueffer et al. 2012, Womble and Gende 2013a, Womble et al. 2014), with an emphasis on possible factors that may have contributed to the declines. The recent studies suggest that (1) harbor seals in Glacier Bay are not significantly stressed due to nutritional constraints (Blundell et al. 2011), (2) the clinical health and disease status of seals within Glacier Bay is not different than seals from stable or increasing populations (Hueffer et al. 2012), and (3) disturbance by vessels does not appear to be a primary factor driving the decline (Young 2009). Long-term monitoring of harbor seals on glacial ice has occurred in Glacier Bay since the 1970s (Mathews and Pendleton, 2006) and has shown this area to support one of the largest breeding aggregations in Alaska (Steveler, 1979; Calambokidis et al., 1987 as cited in Muto et al., 2015). After a large scale retreat of the Muir Glacier (more than 7 km), in the East Arm of Glacier Bay, between 1973 and 1986 and the subsequent grounding and cessation 64083 of calving in 1993, floating glacial ice was greatly reduced as a haulout substrate for harbor seals and ultimately resulted in the abandonment of upper Muir Inlet by harbor seals (Calambokidis et al., 1987; Hall et al., 1995; Mathews, 1995 as cited in Muto et al., 2017). The most recent long-term trend estimate for harbor seals at terrestrial sites in Glacier Bay for the 22year period from 1992–2013 is ¥6.91 percent/year (SE = 0.40, 95% CI = ¥7.69, ¥6.13) (Womble et al. 2015). This trend is less negative than previous estimates stated in the paragraph above. In addition, from 2004–2013, there was a 10-year trend estimate of 9.64 percent increase per year (SE = 1.66, 95% CI = 6.40, 12.89) (Womble et al., 2015). Results from satellite telemetry studies suggest that harbor seals travel extensively beyond the boundaries of Glacier Bay during the post-breeding season (September–April); however, harbor seals demonstrated a high degree of inter-annual site fidelity (93 percent) to Glacier Bay the following breeding season (Womble and Gende 2013b). Spatial and temporal regulations, for vessels transiting in and near harbor seal breeding areas, and operating regulations, for vessels operating within those areas, are all aimed at reducing the impacts of human visitation. Harbor seals from the Glacier Bay/Icy Strait stock can be found hauled out at four of the gull monitoring study sites (Table 2). Seal counts from gull monitoring surveys likely represent a minimum estimate due to difficulty observing marine mammals from a vessel. Counts from gull monitoring surveys are conducted during high tide so fewer seals may be present. TABLE 2—NUMBER OF OBSERVED HARBOR SEALS AND TAKEN BY LEVEL B HARASSMENT FOR THE SPECIES UNDER IHAS AT GULL STUDY SITES FROM 2015–2017 IN GLBA NP Latitude (dd) amozie on DSK3GDR082PROD with PROPOSALS1 Site name Longitude (dd) 2015 Observed/ taken 2016 Observed/ taken 2017 Observed/ taken Boulder ................................................................................. Flapjack ................................................................................ Geikie ................................................................................... Lone ..................................................................................... 58.55535 58.58698 58.69402 58.72102 ¥136.01814 ¥135.98251 ¥136.31291 ¥136.29470 13/11 0/0 45/14 98/32 21/0 101/41 37/0 58/39 4/0 0/0 33/33 49/0 Total .............................................................................. ........................ ........................ 156/57 217/80 86/33 As alluded to, there can be greater numbers of seals on the survey islands than what is detected by the NPS during the gull surveys. Aerial survey maximum counts show that harbor seals sometimes haul out in large numbers at all four locations (see Table 2 of the application). However, harbor seals hauled out at Flapjack Island are VerDate Sep<11>2014 16:36 Dec 12, 2018 Jkt 247001 generally on the southern end whereas the gull colony is on the northern end. Similarly, harbor seals on Boulder Island tend to haul out on the southern end while the gull colony is located and can be accessed on the northern end without causing disturbance of harbor seals. Aerial survey counts for harbor seals are conducted during low tide PO 00000 Frm 00048 Fmt 4702 Sfmt 4702 while ground and vessel surveys are conducted during high tide which, along with greater visibility during aerial surveys, may also contribute to the greater numbers of seals observed during the aerial surveys because there is more land available to use as a haulout during low tide. E:\FR\FM\13DEP1.SGM 13DEP1 64084 Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules Prince William Sound Stock The Prince William Sound stock includes harbor seals both within and adjacent to Prince William Sound proper from approximately Cape Fairweather to Elizabeth Island, including the KEFJ survey area. Within Prince William Sound proper, harbor seals declined in abundance by 63 percent between 1984 and 1997 (Frost et al. 1999). In Aialik Bay, adjacent to Prince William Sound proper, there has been a decline in pup production by 4.6 percent annually from 40 down to 32 pups born from 1994 to 2009 (HooverMiller et al. 2011). The current (2007– 2011) estimate of the Prince William Sound population trend over a 5-year period is +26 seals per year with a probability that the stock is decreasing of 0.56. The presence of an increasing trend with a greater than .5 probability of decreasing is due to skewness impacting statistical estimates. This occurrence is discussed further in Muto et al. (2018). From 1992–1997, results from a satellite telemetry study showed Prince William Sound harbor seals tended to remain in or near Prince William Sound. Juvenile seals were occasionally found to range up to 300 to 500 km east and west into the Gulf of Alaska. In June and July, when SWAN region surveys would occur, harbor seals tended to have their smallest home range sizes, remaining nearer to their haulout than other times of year (Lowry et al. 2001). amozie on DSK3GDR082PROD with PROPOSALS1 Cook Inlet/Shelikof Strait Stock 16:36 Dec 12, 2018 Jkt 247001 This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The ‘‘Estimated Take’’ section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The ‘‘Negligible Impact Analysis and Determination’’ section considers the content of this section, the ‘‘Estimated Take’’ section, and the ‘‘Proposed Mitigation’’ section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks. As previously stated, acoustic and visual stimuli generated by motorboat operations and the presence of researchers have the potential to cause Level B harassment of harbor seals hauled out on Boulder, Lone, and Flapjack Islands, and Geikie Rock within GLBA NP. These same stimuli generated by motorboat operations have the potential to cause Level B harassment of harbor seals and Steller sea lions in KATM, KEFJ, and KBAY. The following discussion provides further detail on the potential visual and acoustic disturbances harbor seals and Steller sea lions may encounter during the NPS’ research and monitoring activities. Human and Vessel Disturbance The Cook Inlet/Shelikof Strait stock includes harbor seals from approximately Elizabeth Island to Unimak Island, as well as those within Cook Inlet. Multiple harbor seal haulouts exist in KBAY and KATM (London et al, 2015; Montgomery et al 2007). This stock of harbor seals would be found in the KATM and KBAY survey areas of SWAN’s activities. A multi-year study of seasonal movements and abundance of harbor seals in Cook Inlet was conducted between 2004 and 2007. This study involved multiple aerial surveys throughout the year, and the data indicated a stable population of harbor seals during the August molting period (Boveng et al. 2011). Aerial surveys along the Alaska Peninsula present greater logistical challenges and have therefore been conducted less frequently. The current (2007–2011) estimate of the Cook Inlet/Shelikof Strait population trend is +313 seals per year, with a probability of 0.38 that the stock is decreasing (Muto et al. 2018). VerDate Sep<11>2014 Potential Effects of the Specified Activity on Marine Mammals and Their Habitat Harbor seals and Steller sea lions may potentially experience behavioral disruption rising to the level of harassment from monitoring and research activities, which may include brief periods of airborne noise from research vessels and visual disturbance due to the presence and activity of the researchers both on vessels and on land during ground surveys. Disturbed pinnipeds are likely to experience any or all of these stimuli, and take may occur due to any in both isolation or combined with one another. Due to the likely constant combination of visual and acoustic stimuli resulting from the presence of vessels and researchers, we do not consider impacts from acoustic and visual stimuli separately. Disturbances resulting from human activity can impact short- and long-term pinniped haul out behavior (Renouf et al., 1981; Schneider and Payne, 1983; Terhune and Almon, 1983; Allen et al., 1984; Stewart, 1984; Suryan and Harvey, 1999; and Kucey and Trites, PO 00000 Frm 00049 Fmt 4702 Sfmt 4702 2006). Disturbance includes a variety of effects, including subtle to conspicuous changes in behavior, movement, and displacement. Reactions to sound, if any, depend on the species, state of maturity, experience, current activity, reproductive state, time of day, and many other factors (Richardson et al., 1995; Wartzok et al., 2004; Southall et al., 2007; Weilgart, 2007). These behavioral reactions from marine mammals are often shown as: changing durations of surfacing and dives, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior; avoidance of areas; and/or flight responses (e.g., pinnipeds flushing into the water from haulouts or rookeries). If a marine mammal does react briefly to human presence by changing its behavior or moving a small distance, the impacts of the change are unlikely to be significant to the individual, let alone the stock or population. However, if visual stimuli from human presence displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on individuals and populations could be significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007). Visual stimuli resulting from the presence of researchers and vessels have the potential to result in take of harbor seals and Steller sea lions on the research islands and coasts where these pinnipeds haul out. The characteristics of these stimuli differ between the GLBA NP and SWAN activities. In SWAN’s activities, vessels move at faster speeds (8–12 kn, vs 2–3 kn for GLBA NP) but are present for a short time period transiting through an area and at a consistent distance. Alternatively, while GLBA NP vessels are slower, they must approach islands where pinnipeds may be hauled out, and both the vessel and researchers will be present for a longer period of time. As noted, harbor seals and Steller sea lions can exhibit a behavioral response (e.g., including alert behavior, movement, vocalizing, or flushing) to visual stimuli. NMFS does not consider the lesser reactions (e.g., alert behavior such as raising a head) to constitute harassment. Table 3 displays NMFS’s three-point scale that categorizes pinniped disturbance reactions by severity. Observed behavior falling within categories two and three would be considered level B harassment. GLBA NP is able to record these behaviors for all observed pinnipeds. Because of the nature of their survey, SWAN E:\FR\FM\13DEP1.SGM 13DEP1 Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules researchers will only be able to record the total number of observed pinnipeds, and those which show an easily observable level 3 response (flushing). With these numbers and previous monitoring information from GLBA NP, NPS and NMFS should be able to estimate the total number of takes by 64085 Level B harassment resulting from SWAN monitoring. TABLE 3—THREE-POINT SCALE amozie on DSK3GDR082PROD with PROPOSALS1 [Seal response to disturbance] Level Type of response Definition 1 ....................... Alert .................................... 2 ....................... Movement .......................... 3 ....................... Flush .................................. 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 ushaped position, changing from a lying to a sitting position, or brief movement of less than twice the animal’s body length. Alerts would be recorded, but not counted as a ‘take’. 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. These movements would be recorded and counted as a ‘take’. All retreats (flushes) to the water. Flushing into the water would be recorded and counted as a ‘take’. Upon the occurrence of low-severity disturbance (i.e., the approach of a vessel or person as opposed to an explosion or sonic boom), pinnipeds typically exhibit a continuum of responses, beginning with alert movements (e.g., raising the head), which may then escalate to movement away from the stimulus and possible flushing into the water. Flushed pinnipeds typically re-occupy the same haulout within minutes to hours of a stimulus (Allen et al., 1984 (Johnson and Acevedo-Gutierrez, 2007). As a result, a minimal number of animals may be taken more than once during the proposed survey activities so the number of takes likely represents exposures. In the case of GLBA NP, because there will be no more than five annual visits to three gull study sites and no more than eight annual visits to one other survey site, it is expected that individual harbor seals at Boulder Island, Flapjack Island, and Geike Rock will be disturbed no more than five times per year and no more than eight times per year on Lone Island. For SWAN’s activities, KATM, KEFJ, and KBAY are each visited during the summer. There is a winter survey conducted each year at either KATM or KEFJ. Therefore individual harbor seals and Stellar sea lions at these locations will be disturbed no more than two times per year. Numerous studies have shown that human activity can flush pinnipeds off haulout sites and beaches (Kenyon, 1972; Allen et al., 1984; Calambokidis et al., 1991; Suryan and Harvey, 1999; and Mortenson et al., 2000, Mathews, 2000). In 1997, Henry and Hammill (2001) conducted a study to measure the impacts of small boats (i.e., kayaks, canoes, motorboats and sailboats) on harbor seal haul out behavior in Me´tis VerDate Sep<11>2014 16:36 Dec 12, 2018 Jkt 247001 Bay, Quebec, Canada. During that study, the authors noted that the most frequent disturbances (n=73) were caused by lower speed, lingering kayaks and canoes (33.3 percent) as opposed to motorboats (27.8 percent) conducting high speed passes. The seals flight reactions could be linked to a surprise factor by kayaks-canoes, which approach slowly, quietly and low on water making them look like predators. However, the authors note that once the animals were disturbed, there did not appear to be any significant lingering effect on the recovery of numbers to their pre-disturbance levels. In conclusion, the study showed that boat traffic at current levels has only a temporary effect on the haul out behavior of harbor seals in the Me´tis Bay area. In 2004, Johnson and AcevedoGutierrez (2007) evaluated the efficacy of buffer zones for watercraft around harbor seal haulout sites on Yellow Island, Washington State. The authors estimated the minimum distance between the vessels and the haulout sites; categorized the vessel types; and evaluated seal responses to the disturbances. During the course of the seven-weekend study, the authors recorded 14 human-related disturbances, which were associated with stopped powerboats and kayaks. During these events, hauled out seals became noticeably active and moved into the water. The flushing occurred when stopped kayaks and powerboats were at distances as far as 453 and 1,217 ft (138 and 371 m) respectively. The authors note that the seals were unaffected by passing powerboats, even those approaching as close as 128 ft (39 m), possibly indicating that the animals had become tolerant of the brief presence of the vessels and ignored PO 00000 Frm 00050 Fmt 4702 Sfmt 4702 them. The authors reported that on average, the seals quickly recovered from the disturbances and returned to the haulout site in less than or equal to 60 minutes. Seal numbers did not return to pre-disturbance levels within 180 minutes of the disturbance less than one quarter of the time observed. The study concluded that the return of seal numbers to pre-disturbance levels and the relatively regular seasonal cycle in abundance throughout the area counter the idea that disturbances from powerboats may result in site abandonment (Johnson and AcevedoGutierrez, 2007). Specific reactions from past NPS gull monitoring surveys are detailed in this proposed rule’s Estimated Take Section. Vessel Strike Glacier Bay The probability of vessel and marine mammal interactions (i.e., motorboat strike) occurring during the proposed research activities is unlikely due to the motorboat’s slow operational speed, which is typically 2 to 3 kn (2.3 to 3.4 mph) and the researchers continually scanning the water for marine mammals presence during transit to the islands. Thus, NMFS does not anticipate that strikes or collisions would result from the movement of the motorboat. SWAN SWAN’s survey vessels move at higher speeds, 8 to 12 kn, than those used in the proposed GLBA NP activities, but vessel and marine mammal interactions are still unlikely because the on board researchers are constantly scanning the water for marine mammal presence. For SWAN’s activities, NMFS does not anticipate any strikes or collisions between vessels and marine mammals. E:\FR\FM\13DEP1.SGM 13DEP1 64086 Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules Harbor Seal Pupping Glacier Bay During the harbor seal breeding (MayJune) and molting (August) periods, ∼66 percent of seals in Glacier Bay inhabit the primary glacial ice site and ∼22 percent of seals are found in and adjacent to a group of islands in the southeast portion of Glacier Bay. At the proposed GLBA NP study sites, in 2016 only one pup was observed and no pups were observed during project activities in 2017 and 2015. Pups have been observed during NPS aerial surveys during the pupping seasons (conducted during low tide), but in few numbers (see Table 4). NMFS does not anticipate that the proposed activities would result in separation of mothers and pups as pups are rarely seen at the study sites. TABLE 4—AVERAGE AND MAXIMUM COUNTS OF HAULED OUT HARBOR SEAL PUPS AT GLAUCOUS-WINGED GULL STUDY SITES DURING HARBOR SEAL MONITORING AERIAL SURVEYS FROM 2007–2016 [Womble unpublished data] Average of pup count Site Max. of pup count Boulder Island .............................................................................................................................. Flapjack Island ............................................................................................................................. Geikie Rock ................................................................................................................................. Lone Island .................................................................................................................................. 0.8 14.9 0.1 0.8 1.3 11.5 0.4 0.9 5 43 2 4 Total ...................................................................................................................................... 4.74 9 43 1A quantity calculated to indicate the extent of deviation for a group of pups as a whole. SWAN Based on aerial surveys between 2003 and 2005, the upper portions of KBAY had high harbor seal pup abundance during the peak pupping season (June) (Boveng at al, 2011). Proposed KBAY survey transects occur in this area of high abundance (See Figure 5 in LOA application). Boveng et al (2011) found that within Cook Inlet, June harbor seal pup abundance in an individual survey unit correlated positively with June adult abundance in that unit. Therefore, based on the anticipated presence of adult harbor seals, there are also likely pups present at sites in KATM and KEFJ during the pupping season (June). Despite the presence of pups, SWAN’s research and monitoring activities are expected to result in minimal disturbance to the hauled out harbor seals of all life stages due to the distance and duration of the vessel’s presence (see Proposed Mitigation), and NMFS does not anticipate that the proposed activities would result in separation of mothers and pups. Steller Sea Lion Pupping SWAN amozie on DSK3GDR082PROD with PROPOSALS1 Std. dev. of pup count 1 During the Steller sea lion pupping season (May–July), mothers spend time both on land with their pups and at sea foraging. Because SWAN’s proposed surveys avoid transects that pass Steller sea lion rookeries, NMFS does not anticipate any impacts on hauled out Steller sea lion mothers and their pups. Summary Based on studies described here and previous monitoring reports from GLBA NP (Discussed further in the Estimated Take Section), we anticipate that any VerDate Sep<11>2014 16:36 Dec 12, 2018 Jkt 247001 pinnipeds found in the vicinity of the proposed projects in both GLBA NP and the SWAN region could have short-term behavioral reactions (i.e., may result in marine mammals avoiding certain areas) due to noise and visual disturbance generated by: (1) Motorboat approaches and departures and (2) human presence during research and monitoring activities. We would expect the pinnipeds to return to a haulout site within minutes to hours of the stimulus based on previous research (Allen et al., 1984). Pinnipeds may be temporarily displaced from their haulout sites, but we do not expect that the pinnipeds would permanently abandon a haulout site during the conduct of the proposed research as activities are short in duration (brief transit through an area to up to two hours), and previous surveys have demonstrated that pinnipeds have returned to their haulout sites and have not permanently abandoned the sites. NMFS does not anticipate that the proposed activities would result in the injury, serious injury, or mortality of pinnipeds. NMFS does not anticipate that vessel strikes would result from the movement of the motorboat. The proposed activities will not result in any permanent impact on habitats used by marine mammals, including prey species and foraging habitat. Marine Mammal Habitat NMFS does not anticipate that the proposed operations in GLBA NP or the SWAN region would result in any effects on the habitats used by the marine mammals in the proposed area, including the food sources they use (i.e., fish and invertebrates). The main impact associated with the proposed activity will be temporarily elevated noise levels PO 00000 Frm 00051 Fmt 4702 Sfmt 4702 from motorboats and human disturbance on marine mammals potentially leading to temporary displacement from a site, previously discussed in this proposed rule. NPS’ LEIS for gull monitoring surveys in GLBA NP concluded that the activities do not result in the loss or modification to marine mammal habitat (NPS 2010). Additionally, any minor habitat alterations stemming from the maintenance of NPS’ weather station will be located in an area that will not impact marine mammals. SWAN’s activities in KATM and KEFJ do occur in Steller sea lion critical habitat, but will have minimal impact due to the nature of the disturbance and explicit avoidance of the most sensitive areas (rookeries). In all, the proposed activities in both GLBA NP and the SWAN region will not result in any permanent impact on habitats used by marine mammals, including prey species and foraging habitat. Estimated Take This section provides an estimate of the number of incidental takes proposed for authorization through this IHA, which will inform both NMFS’s consideration of whether the number of takes is ‘‘small’’ and the negligible impact determination. Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines ‘‘harassment’’ as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the E:\FR\FM\13DEP1.SGM 13DEP1 Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment). Authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to motorboats and the presence of NPS personnel. Based on the nature of the activity and proposed mitigation measures, Level A harassment is neither anticipated nor proposed to be authorized. As described previously, no mortality is anticipated or proposed to be authorized for this activity. Below we describe how the take is estimated. Glacier Bay In GLBA NP, harbor seals may be disturbed when vessels approach or researchers go ashore for the purpose of monitoring gull colonies and for the maintenance of the Lone Island weather tower. Harbor seals tend to haul out in small numbers at study sites. Using monitoring report data from 2015 to 2017 (see raw data from Tables 1 of the 2017, 2016 and 2015 Monitoring Reports, which are available online at: https://www.fisheries.noaa.gov/ national/marine-mammal-protection/ incidental-take-authorizations-researchand-other-activities), the average number of harbor seals per survey visit was calculated to estimate the approximate number of seals observers would find on any given survey day. As a result, the following averages were determined for each island: Boulder Island—average 3.45 seals, Flapjack Island—average 10.10 seals, Geikie Rock—average 9.58 seals, and Lone Island average of 18.91 seals (See Table 5). Estimated take for gull and climate monitoring was calculated by multiplying the average number of seals observed during past gull monitoring surveys (2015–2017) by the number of total site visits. This includes five annual visits to Boulder Island, Flapjack Island, and Geikie Rock and eight 64087 annual visits to Lone Island (to include three site visits for climate monitoring activities). Therefore, the total estimated annual incidents of harassment equals 267 which totals to 1,335 takes during the entire five years of the proposed activities (See Table 5). During climate monitoring, which is expected to take place from March to April and October to February, seal numbers are expected to dramatically decline within the action area. Although harbor seal survey data within GLBA NP is lacking for the months of October through February, results from satellite telemetry studies suggest that harbor seals travel extensively beyond the boundaries of GLBA NP during the postbreeding season (September-April) (Womble and Gende, 2013b). Therefore, using the latest observation data from past gull monitoring activities (that occurred from May to September) is applicable when estimating take for climate monitoring activities, as it will provide the most conservative estimates. TABLE 5—PROPOSED TAKES BY LEVEL B HARASSMENT DURING NPS GULL AND CLIMATE MONITORING SURVEYS Site proposed for survey Average number of seals observed per visit 1 Number of proposed site visits Proposed Level B harassment 1 Boulder Island ................................................. Flapjack Island ................................................ Geikie Rock ..................................................... Lone Island ..................................................... 3.45 seals ....................................................... 10.10 seals ..................................................... 9.58 seals ....................................................... 18.91 seals ..................................................... 5 5 5 28 17.27 50.50 47.92 151.27 0.24 0.70 0.66 2.10 Annual Total ............................................. ......................................................................... ........................ 267 3.70 Percentage of population 3 1 Data from 2015–2017 NPS gull surveys (NPS 2015b; NPS 2016; NPS 2017). includes three additional days for climate monitoring activities. on the percentage of the Glacier Bay/Icy Strait stock of harbor seals that are proposed to be taken by Level B harassment during the NPS’s proposed gull and climate monitoring activities. 2 Number 3 Based amozie on DSK3GDR082PROD with PROPOSALS1 SWAN Harbor seals and Steller sea lions may be disturbed by vessel presence, movement, or noise during the execution of SWAN’s survey transects. The estimated number of takes by Level B harassment included in Table 6 are based on numbers of pinnipeds observed from a similar survey of KATM and KEFJ in 2013. In this survey, researchers observed an estimated 100 harbor seals and 100 Steller sea lions during each of the KATM and KEFJ surveys. Data from 2013 surveys were used to estimate take because in 2013, most of the transects were able to be completed. Thus, 2013 data offers the most conservative count-based estimate. 1 See Table 3 for NMFS’ three-point scale that categorizes pinniped disturbance reactions by VerDate Sep<11>2014 16:36 Dec 12, 2018 Jkt 247001 Based on pinnipeds observed in 2013, NPS estimates that each year, across the three survey sites, SWAN’s activities will result in take by Level B harassment of 300 harbor seals and 200 Steller sea lions. The observed number of harbor seals has been increased by 100 to account for the previously not surveyed KBAY, resulting in an estimated 1500 harbor seal and 1000 Steller sea lion takes by Level B harassment across the five years. For harbor seals, NPS estimates that 100 individuals will experience take by Level B harassment in each survey area each year. Annually, that would mean 200 harbor seal takes by Level B harassment in the Cook Inlet/Shelikof Strait stock (1000 over 5 years), and 100 harbor seal takes by Level B harassment from the Prince William Sound stock (500 over 5 years). For Steller sea lion takes by Level B harassment, NPS estimates that 100 individuals will experience take by Level B harassment each year in KATM and KEFJ. However, no takes by Level B harassment will occur in KBAY because Steller sea lions are not common in KBAY. For simplicity, NMFS assumes and analyzes the impacts of the full Steller sea lion take on both the eastern and western stocks. Because these estimates are based on observations of pinnipeds and not harassments, NMFS considers the estimated numbers of take by Level B harassment presented in Table 6 conservative. severity. NMFS only considers responses falling into Levels 2 and 3 as harassment (Level B Take) under the MMPA. PO 00000 Frm 00052 Fmt 4702 Sfmt 4702 E:\FR\FM\13DEP1.SGM 13DEP1 64088 Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules TABLE 6—PROPOSED TAKES BY LEVEL B HARASSMENT DUE TO SWAN’S RESEARCH AND MONITORING ACTIVITIES Proposed Level B take (annual) Species Stock Harbor seal ..................................................... Cook Inlet/Shelikof Strait ................................ Prince William Sound ..................................... Western .......................................................... Eastern ........................................................... Steller sea lion ................................................ 200 100 2 200 2 200 Total Level B takes in 5 years 1,000 500 2 1,000 2 1,000 Percentage of population over 1 year 1 (%) 0.7 0.3 2 0.4 2 0.5 1 Based on the population size of each relevant stock as presented in Table 1. is only proposing to authorize 200 annual (1000 over 5 years) takes by Level B harassment for Steller sea lions, but is analyzing this take as fully coming from each of the U.S. Steller sea lion stocks. amozie on DSK3GDR082PROD with PROPOSALS1 2 NMFS Effects of Specified Activities on Subsistence Uses of Marine Mammals The availability of the affected marine mammal stocks or species for subsistence uses may be impacted by this activity, though this is not an anticipated outcome. The subsistence uses that may be affected and the potential impacts of the activity on those uses are described below. Measures included in these proposed regulations to reduce the impacts of the activity on subsistence uses are identical to those which minimize disturbance of pinnipeds as described in the Proposed Mitigation section. Last, the information from this section and the Proposed Mitigation section is analyzed to determine whether the necessary findings may be made in the Unmitigable Adverse Impact Analysis and Determination section. Subsistence harvest of pinnipeds is prohibited in GLBA NP, KATM, and KEFJ but it does occur in nearby areas outside park boundaries. Native communities near KBAY, including Homer, Seldovia, Nanwalek, and Port Graham harvested an estimated 32 harbor seals and 3 Steller sea lions in 2007 (Wolfe et al. 2009). It is not known exactly where these pinnipeds were harvested but some of them could potentially have been harvested in KBAY. 2007 harvest of both Steller sea lions and harbor seals was at a low point in June and July when SWAN’s surveys would occur in KBAY. Additionally, the disturbance to pinnipeds caused by NPS’s activities is limited to non-lethal take by Level B harassment and is temporary and short in duration. Because the subsistence harvest is separated in time and space from NPS’s proposed activities, and the disturbance should not result in anything other than short term (minutes to hours) avoidance of haulouts, there should be no impacts on subsistence harvest. 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, ‘‘and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking’’ for certain subsistence uses. NMFS regulations require applicants for ITAs 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 on 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 of implementing 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. Proposed Mitigation In order to issue an incidental take authorization (ITA) under section Glacier Bay NPS has based the mitigation measures which they propose to VerDate Sep<11>2014 16:36 Dec 12, 2018 Jkt 247001 PO 00000 Frm 00053 Fmt 4702 Sfmt 4702 implement during the proposed research, on the following: (1) Protocols used during previous gull research activities as required by our previous authorizations for these activities; and (2) recommended best practices in Womble et al. (2013a); Richardson et al. (1995); and Weir and Dolman (2007). To reduce the potential for disturbance from acoustic and visual stimuli associated with gull and climate monitoring activities within GBLA NP, NPS has proposed to implement the following mitigation measures for marine mammals: Pre-Survey Monitoring Before all surveys, the lead NPS biologist will instruct additional survey crew on appropriate conduct when in the vicinity of hauled-out marine mammals. This training shall brief survey personnel on marine mammals (inclusive of identification as needed, e.g., neonates). Prior to deciding to land onshore to conduct gull and climate monitoring, the researchers would use high-powered image stabilizing binoculars from the watercraft to document the number, species, and location of hauled-out marine mammals at each island. The vessels would maintain a distance of 328 to 1,640 ft (100 to 500 m) from the shoreline to allow the researchers to conduct presurvey monitoring. If offshore predators, harbor seal pups of less than one week of age (i.e., neonates), or Steller sea lions are observed, researchers will follow the protocols for site avoidance discussed below. If neither of these instances occur, researchers will then perform a controlled landing on the survey site. Site Avoidance If a harbor seal pup less than one week old (i.e,. neonates) or a harbor seal predator (i.e., killer whale) is observed near or within the action area, researchers will not go ashore to conduct gull or climate monitoring activities. Also, if Steller sea lions are observed within or near the study site, researchers will maintain a distance of E:\FR\FM\13DEP1.SGM 13DEP1 Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules at least 100 m from the animals at all times. implement the following mitigation measures for marine mammals: Controlled Landings The researchers would determine whether to approach an island study site based on type of animals present. Researchers would approach the island by motorboat at a speed of approximately 2 to 3 kn (2.3 to 3.4 mph). This would provide enough time for any marine mammals present to slowly enter the water without panic (flushing). The researchers would also select a pathway of approach farthest from the hauled-out harbor seals to minimize disturbance. Disturbance Reduction Protocols While surveying study sites, the researchers will maintain a vessel distance of 100 to 150 m from shorelines at all times. If hauled out Steller sea lions and harbor seals are observed, the survey would maintain speed and minimum distance from the haulout to avoid startling. Additionally the survey will be attempted from a distance greater than 150 m, if conditions allow proper execution of the survey at that distance. Minimize Predator Interactions During pre-survey monitoring on approach to a site, NPS will observe the surrounding area for predators. If the researchers visually observe marine predators (i.e., killer whales) present within a one mile radius of hauled-out marine mammals, the researchers would not approach the study site. Disturbance Reduction Protocols While onshore at study sites, the researchers would remain vigilant for hauled-out marine mammals. If marine mammals are present, the researchers would move slowly and use quiet voices to minimize disturbance to the animals present. amozie on DSK3GDR082PROD with PROPOSALS1 Whale Avoidance Although humpback whales and killer whales are not expected to be impacted by the proposed activities at GLBA NP, avoidance measures will be taken if humpback whales or killer whales are observed. Based on regulations (81 FR 62018; September 8, 2016), NPS will avoid operation of a motor vessel within 1⁄4 nautical mile of a whale. If accidentally positioned within 1⁄4 nautical mile of a whale, researchers will slow the vessel speed to 10 knots or less and maintain course away from the whale until at least 1⁄4 nautical mile of separation exists. SWAN NPS has based the mitigation measures which they propose to implement at SWAN on the following: (1) Protocols used during previous authorizations for similar GLBA NP research; (2) recommended best practices in Womble et al. (2013a); Richardson et al. (1995); and Weir and Dolman (2007); and (3) experience of SWAN researchers in previous surveys. To reduce the potential for disturbance from acoustic and visual stimuli associated with SWAN’s surveys, NPS has proposed to VerDate Sep<11>2014 16:36 Dec 12, 2018 Jkt 247001 Rookery Avoidance SWAN will avoid transects that pass known Steller sea lion rookery beaches in order to minimize disturbance of these rookeries and the surrounding critical habitat. Whale Avoidance Although humpback and beluga whales are not expected to be impacted by SWAN’s proposed work, avoidance measures will be taken if these species are observed. Based on regulations (81 FR 62018; September 8, 2016), SWAN will avoid operation of a motor vessel within 1⁄4 mile of a whale. If accidentally positioned within 1⁄4 nautical mile of a whale, researchers will slow the vessel speed to 10 knots or less and maintain course away from the whale until at least 1⁄4 nautical mile of separation exists. Mitigation Conclusions Based on our evaluation of the applicant’s proposed measures, as well as other measures considered by NMFS, NMFS has preliminarily determined that the proposed 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, areas of similar significance, and on the availability of such species or stock for subsistence uses. Proposed Monitoring and Reporting In order to issue an ITA for an activity, section 101(a)(5)(A) of the MMPA states that NMFS must set forth ‘‘requirements pertaining to the monitoring and reporting of such taking.’’ The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on PO 00000 Frm 00054 Fmt 4702 Sfmt 4702 64089 populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring. Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following: • Occurrence of marine mammal species or stocks in the area in which take is anticipated (e.g., presence, abundance, distribution, density); • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas); • Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors; • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks; • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat); and • Mitigation and monitoring effectiveness. SWAN NPS proposes to conduct marine mammal monitoring during the SWAN activities, in order to implement the mitigation measures that require realtime monitoring and to gain a better understanding of marine mammals and their impacts to the project’s activities. Because the activity is a survey of marine birds and mammals in the area, researchers will naturally be monitoring the area for pinnipeds or other marine mammals during all activities. Monitoring activities will consist of conducting and recording observations of pinnipeds within the vicinity of the proposed research areas. The monitoring notes would provide dates, transect location, species, numbers of animals present within the transect, and numbers of pinnipeds that flushed into the water. E:\FR\FM\13DEP1.SGM 13DEP1 64090 Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules The method for recording disturbances follows those in Mortenson (1996). For NPS’ activities in the SWAN region, pinniped disturbances would be based on a three-point scale that represents an increasing response to the disturbance (Table 3). Because SWAN surveys are conducted at speed, researchers will be able to record the total number of each pinniped species observed and the number of Level 3 (Flushing) responses that occur, but not other, less noticeable disturbance responses. SWAN does not have previous monitoring aimed specifically at recording and quantifying marine mammal disturbance. Similarity between the GLBA NP and SWAN proposed activities for this proposed rule suggest mitigation measures based on relevant portions of previous GLBA NP authorizations will provide the means of effecting the least practicable impact on the species or stock in the SWAN activity. GLBA NP NPS proposes to conduct marine mammal monitoring during the present GLBA NP project, in order to implement the mitigation measures that require real-time monitoring and to gain a better understanding of marine mammals and their impacts to the project’s activities. In addition, NPS’s monitoring plan is guiding additional monitoring effort designed to answer questions of interest regarding pinniped usage of GLBA NP haulouts and the effects of NPS’s activity on these local populations. The researchers will monitor the area for pinnipeds during all research activities. Monitoring activities will consist of conducting and recording observations of pinnipeds within the vicinity of the proposed research areas. The monitoring notes would provide dates, location, species, the researcher’s activity, behavioral state, numbers of animals that were alert or moved greater than one meter, and numbers of pinnipeds that flushed into the water. The method for recording disturbances follows those in Mortenson (1996). NPS activities in GLBA NP would record pinniped disturbances on a three-point scale that represents an increasing response to the disturbance (Table 3). Both a level 2 and level 3 response would be recorded as a take by Level B harassment. NPS will record the time, source, and duration of the disturbance, as well as an estimated distance between the source and haulout. Previous Monitoring Results NPS has complied with the monitoring requirements under the previous GLBA NP authorizations. NMFS posted the 2017 report on our website at https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/incidentaltake-authorizations-research-and-otheractivities and the results from the previous NPS monitoring reports support our findings that the mitigation measures required under the 2014— 2017 Authorizations provide the means of effecting the least practicable impact on the species or stock in the GLBA NP activity. During the last 3 years of GLBA NP activity, approximately a third of all observed harbor seals have flushed in response to these activities (37 percent in 2015, 37 percent in 2016, and 38 percent in 2017). The following narratives provide a detailed account of each of the past 3 years of monitoring for the GLBA NP activity (Summarized in Table 7): In 2017, of the 86 harbor seals that were observed: 33 flushed in to the water, 0 became alert but did not move >1 m, and 0 moved >1 m but did not flush into the water. In all, no harbor seal pups were observed. On two occasions, harbor seals were flushed into the water when islands were accessed for gull surveys. In these instances, the vessel approached the island at a very slow speed and most of the harbor seals flushed into the water at approximately 150—185 m. On two events, harbor seals were observed hauled out on Boulder Island and not disturbed due to their distance from the survey area. In addition, during two premonitoring surveys conducted for Lone Island, harbor seals were observed hauled out and the survey was not conducted to prevent disturbance of harbor seals. In 2016, of the 216 harbor seals that were observed: 77 Flushed in to the water; 3 became alert but did not move >1 m, and 17 moved >1 m but did not flush into the water. On five occasions, harbor seals were flushed into the water when islands were accessed for gull surveys. In these instances, the vessel approached the island at a very slow speed and most of the harbor seals flushed into the water at approximately 50–100 m. In four instances, fewer than 25 harbor seals were present, but in one instance, 41 harbor seals were observed flushing into the water when NPS first saw them as they rounded a point of land in kayaks accessing Flapjack Island. In five instances, harbor seals were observed hauled out and not disturbed due to their distance from the survey areas. In 2015, of the 156 harbor seals that were observed: 57 Flushed in to the water; 25 became alert but did not move >1 m, and 0 moved >1 m but did not flush into the water. No pups were observed. On 2 occasions, harbor seals were observed at the study sites in numbers <25 and the islands were accessed for gull surveys. In these instances, the vessel approached the island at very slow speed and most of the harbor seals flushed into water at approximately 200 m (Geikie 8/5/15) and 280 m (Lone, 8/5/15). In one instance, (Lone, 6/11/15) NPS counted 20 harbor seals hauled out during the initial vessel-based monitoring, but once on the island, NPS observed 33 hauled out seals. When NPS realized the number of seals present, they ceased the survey and left the area, flushing 13 seals into the water. TABLE 7—SUMMARY TABLE OF 2015–2017 MONITORING REPORTS FOR NPS GULL STUDIES amozie on DSK3GDR082PROD with PROPOSALS1 Monitoring year Number of adults observed 2017 ..................... 2016 ..................... 2015 ..................... Number of pups observed 86 216 156 Coordination NPS can add to the knowledge of pinnipeds in the proposed action area by noting observations of: (1) Unusual VerDate Sep<11>2014 16:36 Dec 12, 2018 Jkt 247001 Moved >1 m but did not flush Flushed into water 0 1 0 33 77 57 Alert but did not move >1 m 0 3 0 behaviors, numbers, or distributions of pinnipeds, such that any potential follow-up research can be conducted by the appropriate personnel; (2) tag- PO 00000 Frm 00055 Fmt 4702 Sfmt 4702 Level B take authorized for activity 0 17 25 218 500 500 Level B take recorded during activities 33 80 57 bearing carcasses of pinnipeds, allowing transmittal of the information to appropriate agencies and personnel; and E:\FR\FM\13DEP1.SGM 13DEP1 Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules (3) rare or unusual species of marine mammals for agency follow-up. amozie on DSK3GDR082PROD with PROPOSALS1 Glacier Bay NPS actively monitors harbor seals at breeding and molting haulout locations to assess trends over time (e.g., Mathews & Pendleton, 2006; Womble et al. 2010, Womble and Gende, 2013b). NPS’s monitoring plan is guiding additional monitoring effort designed to answer questions of interest regarding pinniped usage of GLBA NP haulouts and the effects of NPS’s activity on these local populations. This monitoring program involves collaborations with biologists from the Alaska Department of Fish and Game, and the NMFS Alaska Fisheries Science Center. NPS will continue these collaborations and encourage continued or renewed monitoring of marine mammal species. NPS will coordinate with state and Federal marine mammal biologists to determine what additional data or observations may be useful for monitoring marine mammals and haulouts in GLBA NP. Additionally, NPS would report vessel-based counts of marine mammals, branded, or injured animals, and all observed disturbances to the appropriate state and Federal agencies. SWAN NPS is establishing a monitoring program for pinnipeds in the SWAN region through its marine bird and marine mammal surveys. NPS will also coordinate with state and Federal marine mammal biologists to determine what additional data or observations may be useful for monitoring marine mammals and haul outs in the SWAN survey areas. SWAN has been conducting nearshore coastal surveys along the KATM and KEFJ since 2006 and 2007, respectively (Coletti et al., 2018). SWAN collaborates closely with U.S. Geological Survey, U.S. Fish and Wildlife Service, the University of Alaska Fairbanks and others under the Gulf Watch Alaska (https://www.gulfwatchalaska.org/) program, primarily funded by the Exxon Valdez Oil Spill Trustee Council. SWAN will continue these collaborations and encourage continued or renewed monitoring of marine mammal species. Additionally, NPS will report vessel-based counts of marine mammals, branded or injured animals, and all observed disturbances to state and Federal agencies. Reporting SWAN and GLBA NP are each required to submit separate draft annual reports on all activities and marine mammal monitoring results to NMFS VerDate Sep<11>2014 16:36 Dec 12, 2018 Jkt 247001 within ninety days following the end of its monitoring period. These reports will include a summary of the information gathered pursuant to the monitoring requirements set forth in the Authorization. SWAN and GLBA NP will submit final reports to NMFS within 30 days after receiving comments on the draft report. If SWAN or GLBA NP receive no comments from NMFS on the report, NMFS will consider the draft report to be the final report. NPS will also submit a comprehensive 5-year report covering all activities conducted under the incidental take regulations 90 days following expiration of these regulations or, if new regulations are sought, no later than 90 days prior to expiration of the regulations. Each report will describe the operations conducted and sightings of marine mammals near the proposed project. The report will provide full documentation of methods, results, and interpretation pertaining to all monitoring. The report will provide: 1. A summary and table of the dates, times, and weather during all research activities; 2. Species, number, location, and behavior of any marine mammals observed throughout all monitoring activities; 3. An estimate of the number (by species) of marine mammals exposed to acoustic or visual stimuli associated with the research activities; and 4. A description of the implementation and effectiveness of the monitoring and mitigation measures of the Authorization 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., vessel-strike, stampede, etc.), NPS shall immediately cease the specified activities and immediately report the incident to the Office of Protected Resources, NMFS and the Alaska 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 tide level 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; PO 00000 Frm 00056 Fmt 4702 Sfmt 4702 64091 • 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). NPS shall not resume its activities until NMFS is able to review the circumstances of the prohibited take. NMFS will work with NPS to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. NPS may not resume their activities until notified by us via letter, email, or telephone. In the event that NPS discovers an injured or dead marine mammal, and the lead researcher 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), NPS will immediately report the incident to the Office of Protected Resources, NMFS and the Alaska Regional Stranding Coordinator. The report must include the same information identified in the paragraph above. Activities may continue while we review the circumstances of the incident. We will work with NPS to determine whether modifications in the activities are appropriate. In the event that NPS 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), NPS will report the incident to the incident to the Office of Protected Resources, NMFS and the Alaska Regional Stranding Coordinator within 24 hours of the discovery. NPS researchers will provide photographs or video footage (if available) or other documentation of the stranded animal sighting to us. NPS can continue their research activities. 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., populationlevel 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 E:\FR\FM\13DEP1.SGM 13DEP1 amozie on DSK3GDR082PROD with PROPOSALS1 64092 Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules 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). During these activities, harbor seals and Steller sea lions may exhibit behavioral modifications, including temporarily vacating the area during the proposed research and monitoring activities to avoid human and vessel disturbance. However, due to the project’s minimal levels of visual and acoustic disturbance (Level B harassment only), NMFS does not expect NPS’s specified activities to cause long-term behavioral disturbance, abandonment of the haulout area, injury, serious injury, or mortality. In addition, while a portion of these proposed activities would take place in areas of significance for marine mammal feeding, resting, breeding, or pupping, there would be no adverse impacts on marine mammal habitat as discussed above. Due to the nature, degree, and context of the behavioral harassment anticipated, we do not expect the activities to impact annual rates of recruitment or survival. NMFS does not expect pinnipeds to permanently abandon any area surveyed by NPS researchers, as is evidenced by continued presence of pinnipeds at the GLBA NP sites during annual gull and climate monitoring. NMFS anticipates that impacts to hauled-out harbor seals and Steller sea lions during NPS’ research and monitoring activities would be behavioral harassment of limited duration (i.e., up to two hours per site visit) and limited intensity (i.e., temporary flushing at most). In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival: VerDate Sep<11>2014 16:36 Dec 12, 2018 Jkt 247001 • No mortality is anticipated or authorized; • The takes from Level B harassment would be due to potential behavioral disturbance; • The effects of the research activities would be limited to short-term startle responses and localized behavioral changes due to the short and sporadic duration of the research activities; • The proposed activities would partially take place in areas of significance for marine mammal feeding, resting, breeding, or pupping but due to their nature and duration would not adversely impact marine mammal habitat or deny pinnipeds access to this habitat because of the large availability of alternate haulouts and short-duration of disturbance; • Anecdotal observations and results from previous monitoring reports show that the pinnipeds returned to the various sites and did not permanently abandon haulout sites after NPS conducted their research activities; and • Harbor seals and Steller sea lions may flush into the water despite researchers best efforts to keep calm and quiet around these pinnipeds; however, injury or mortality has never been documented and is not anticipated from flushing events. GLBA NP researchers would approach study sites slowly to provide enough time for any marine mammals present to slowly enter the water without panic. SWAN researchers would attempt to conduct their surveys at a distance which would not result in pinniped disturbance. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks. Small Numbers Analysis 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 proposed to be 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 PO 00000 Frm 00057 Fmt 4702 Sfmt 4702 as the temporal or spatial scale of the activities. As mentioned previously, NMFS estimates that NPS’ research activities, including gull monitoring, climate monitoring, and marine animal surveys, could potentially affect, by Level B harassment only, two species of marine mammal under our jurisdiction. For harbor seals, this annual take estimate is small relative to the three impacted stocks, ranging from 0.3 to 3.7 percent (See Table 1, Table 5, and Table 6). For Steller sea lions, this annual take estimate is small (200 sea lions) relative to the western stock (0.4 percent) or eastern stock (0.5 percent). In addition to this, there is a high probability in the GLBA NP activities that repetitive takes of the same animal may occur which reduces the percentage of population impacted even further. Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks. Impact on Availability of Affected Species for Taking for Subsistence Uses There are no relevant subsistence uses of marine mammals implicated by the specified activities in GLBA NP, KATM, or KEFJ. Subsistence harvest is prohibited in these national parks and the nature of the activities means they should not affect any harvest occurring in nearby waters. There is possible pinniped harvest in KBAY, but the timing of the survey is removed from the peak seasons of harvest. Additionally, the disturbance to pinnipeds caused by NPS’s activities is limited to non-lethal take by Level B harassment and is temporary and short in duration. Therefore, we have preliminarily 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) Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of E:\FR\FM\13DEP1.SGM 13DEP1 Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules incidental take regulations and subsequent LOAs, NMFS consults internally, in this case with the Alaska Regional Office, whenever we propose to authorize take for endangered or threatened species. NMFS is proposing to authorize take of western DPS Steller sea lions, which are listed under the ESA. NMFS’s Office of Protected Resources has requested initiation of Section 7 consultation with NMFS’s Alaska Regional Office for the issuance of this LOA. NMFS will conclude the ESA consultation prior to reaching a determination regarding the proposed issuance of the authorization. amozie on DSK3GDR082PROD with PROPOSALS1 Adaptive Management The regulations governing the take of marine mammals incidental to NPS research and monitoring activities in GLBA NP and SWAN region would contain an adaptive management component. The reporting requirements associated with this proposed rule are designed to provide NMFS with monitoring data from the previous year to allow consideration of whether any changes are appropriate. The use of adaptive management allows NMFS to consider new information from different sources to determine (with input from NPS regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to marine mammals and if the measures are practicable. NPS’s monitoring program (see ‘‘Proposed Monitoring and Reporting’’) would be managed adaptively. Changes to the proposed monitoring program may be adopted if they are reasonably likely to better accomplish the MMPA monitoring goals described previously or may better answer the specific questions associated with NPS’s monitoring plan. The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) Results from monitoring reports, as required by MMPA authorizations; (2) results from general marine mammal and sound research; and (3) any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOAs. VerDate Sep<11>2014 16:36 Dec 12, 2018 Jkt 247001 Request for Information NMFS requests interested persons to submit comments, information, and suggestions concerning NPS’s request and the proposed regulations (see ADDRESSES). All comments will be reviewed and evaluated as we prepare the final rule and make final determinations on whether to issue the requested authorizations. This notice and referenced documents provide all environmental information relating to our proposed action for public review. Dated: December 4, 2018. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For reasons set forth in the preamble, 50 CFR part 217 is proposed to be amended as follows: PART 217—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS 1. The authority citation for part 217 continues to read as follows: ■ Classification Authority: 16 U.S.C. 1361 et seq. 2. Add subpart C to part 217 to read as follows: Pursuant to the procedures established to implement Executive Order 12866, the Office of Management and Budget has determined that this proposed rule is not significant. Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. NPS is the sole entity that would be subject to the requirements in these proposed regulations, and the NPS is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Because of this certification, a regulatory flexibility analysis is not required and none has been prepared. Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid OMB control number. However, this proposed rule does not contain a collection-of-information requirement subject to the provisions of the Paperwork Reduction Act (PRA) because the applicant is a Federal agency, and the information is not ‘‘uses for general statistical purposes’’. 44 U.S.C. 3502(3)(A). ■ List of Subjects in 50 CFR Part 217 § 217.22 Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation. PO 00000 Frm 00058 Fmt 4702 64093 Sfmt 4702 Subpart C—Taking Marine Mammals Incidental to Research and Monitoring in Southern Alaska National Parks Sec. 217.20 Specified activity and specified geographical region. 217.21 Effective dates. 217.22 Permissible methods of taking. 217.23 Prohibitions. 217.24 Mitigation requirements. 217.25 Requirements for monitoring and reporting. 217.26 Letters of Authorization. 217.27 Renewals and modifications of Letters of Authorization. 217.28 [Reserved] 217.29 [Reserved] § 217.20 Specified activity and specified geographical region. (a) Regulations in this subpart apply only to the National Park Service (NPS) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to the NPS’s research and monitoring activities listed in the Letter of Authorization (LOA). (b) The taking of marine mammals by NPS may be authorized in an LOA only if it occurs at Glacier Bay National Park (GLBA NP) or in the NPS’s Southwest Alaska Inventory and Monitoring Network (SWAN) sites. § 217.21 Effective dates. Regulations in this subpart are effective from March 1, 2019 through February 29, 2024. Permissible methods of taking. Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.26, the Holder of the LOA (hereinafter ‘‘NPS’’) may incidentally, but not intentionally, take marine mammals within the area described in § 217.20(b) by Level B harassment associated with research and monitoring activities, E:\FR\FM\13DEP1.SGM 13DEP1 64094 Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA. § 217.23 Prohibitions. Notwithstanding takings contemplated in § 217.20 and authorized by an LOA issued under §§ 216.106 of this chapter and 217.26, no person in connection with the activities described in § 217.20 may: (a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or an LOA issued under §§ 216.106 of this chapter and 217.26; (b) Take any marine mammal not specified in such LOAs; (c) Take any marine mammal specified in such LOAs in any manner other than as specified; (d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or (e) Take a marine mammal specified in such LOAs if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses. amozie on DSK3GDR082PROD with PROPOSALS1 § 217.24 Mitigation requirements. When conducting the activities identified in § 217.20(a), the mitigation measures contained in any LOA issued under § 216.106 of this chapter and § 217.24 must be implemented. These mitigation measures shall include but are not limited to: (a) General conditions: (1) A copy of any issued LOA must be in the possession of NPS, its designees, and additional survey crew personnel operating under the authority of the issued LOA. (2) Before all surveys, the lead NPS biologist must instruct additional survey crew on appropriate conduct when in the vicinity of hauled-out marine mammals. This training must brief survey personnel on marine mammals (inclusive of identification as needed, e.g., neonates). (3) If humpback whales, killer whales, or beluga whales are observed, NPS must avoid operation of a motor vessel within 1⁄4 nautical mile of a whale. If accidentally positioned within 1⁄4 nautical mile of a whale, NPS must slow the vessel speed to 10 knots or less and maintain course away from the whale until at least 1⁄4 nautical mile of separation exists. (b) Glacier Bay Gull and Climate Monitoring. (1) On an annual basis, NPS may conduct a maximum of five days of gull monitoring for each survey location listed in the LOA. VerDate Sep<11>2014 16:36 Dec 12, 2018 Jkt 247001 (2) On an annual basis, the NPS may conduct a maximum of three days of activities related to climate monitoring on Lone Island. (3) NPS is required to conduct presurvey monitoring before deciding to access a study site. (4) Prior to deciding to land onshore, NPS must use high-powered image stabilizing binoculars before approaching at distances of greater than 500 m (1,640 ft) to determine and document the number, species, and location of hauled-out marine mammals. (5) During pre-survey monitoring, vessels must maintain a distance of 328 to 1,640 ft (100 to 500 m) from the shoreline. (6) If a harbor seal pup less than one week of age (neonate) is present within or near a study site or a path to a study site, NPS must not access the site nor conduct the study at that time. In addition, if during the activity, a pup less than one week of age is observed, all research activities must conclude for the day. (7) NPS must maintain a distance of at least 100 m from any Steller sea lion; (8) NPS must perform controlled and slow ingress to islands where harbor seals are present. (9) NPS must monitor for offshore predators at the study sites during presurvey monitoring and must avoid research activities when killer whales (Orcinus orca) or other predators are observed within a 1 mile radius. (10) NPS must maintain a quiet working atmosphere, avoid loud noises, and must use hushed voices in the presence of hauled-out pinnipeds. (c) SWAN Marine bird and mammal surveys. (1) On an annual basis, NPS may conduct one summer survey at each location listed in the LOA. (2) On an annual basis, the NPS may conduct one winter survey at each location listed in the LOA. (3) NPS must maintain a minimum vessel distance of 100 meters from the shoreline at all times while surveying. (4) If hauled out Steller sea lions or harbor seals are observed, NPS must maintain the vessel speed and minimum distance. If survey conditions allow, the survey will be attempted from a distance greater than 150 meters. § 217.25 Requirements for monitoring and reporting. NPS is required to conduct marine mammal monitoring during research and monitoring activities. NPS and/or its designees must record the following for the designated monitoring activity: (a) Glacier Bay Gull and Climate Monitoring. (1) Species counts (with numbers of adults/juveniles); and PO 00000 Frm 00059 Fmt 4702 Sfmt 4702 numbers of disturbances, by species and age, according to a three-point scale of intensity; (2) Information on the weather, including the tidal state and horizontal visibility; (3) The observer will note the presence of any offshore predators (date, time, number, and species); and (4) The observer will note unusual behaviors, numbers, or distributions of pinnipeds, such that any potential follow-up research can be conducted by the appropriate personnel; marked or tag-bearing pinnipeds or carcasses, allowing transmittal of the information to appropriate agencies; and any rare or unusual species of marine mammal for agency follow-up. The observer will report that information to NMFS’s Alaska Fisheries Science Center and/or the Alaska Department of Fish and Game Marine Mammal Program. (b) SWAN Marine Bird and Mammal Surveying. (1) Species counts and numbers of type 3, flushing, disturbances; (2) Information on the weather, including the tidal state and horizontal visibility; and (3) The observer will note unusual behaviors, numbers, or distributions of pinnipeds, such that any potential follow-up research can be conducted by the appropriate personnel; marked or tag-bearing pinnipeds or carcasses, allowing transmittal of the information to appropriate agencies; and any rare or unusual species of marine mammal for agency follow-up. The observer will report that information to NMFS’s Alaska Fisheries Science Center and/or the Alaska Department of Fish and Game Marine Mammal Program. (c) NPS must submit separate annual draft reports for GLBA NP and SWAN on all monitoring conducted within ninety calendar days of the completion of annual research and monitoring activities. Final reports for both GLBA NP and SWAN must be prepared and submitted within thirty days following resolution of comments on each draft report from NMFS. This report must contain: (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 acoustic or visual stimuli associated with the research activities; and (4) A description of the implementation and effectiveness of the monitoring and mitigation measures of E:\FR\FM\13DEP1.SGM 13DEP1 amozie on DSK3GDR082PROD with PROPOSALS1 Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules the Authorization and full documentation of methods, results, and interpretation pertaining to all monitoring. (d) NPS must submit a comprehensive 5-year report covering all activities conducted under the incidental take regulations at least 90 days prior to expiration of these regulations if new regulations are sought or 90 days after expiration of regulations. (e) Reporting of injured or dead marine mammals. (1) In the unanticipated event that the activity defined in § 219.20(a) clearly causes the take of a marine mammal in a prohibited manner such as an injury (Level A harassment), serious injury, or mortality, NPS must immediately cease the specified activities and report the incident to the Office of Protected Resources, NMFS, and the Alaska Regional Stranding Coordinator, NMFS. The report must include the following information: (i) Time and date of the incident; (ii) Description of the incident; (iii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility); (iv) Description of all marine mammal observations and active sound source use in the 24 hours preceding the incident; (v) Species identification or description of the animal(s) involved; (vi) Fate of the animal(s); and (vii) Photographs or video footage of the animal(s). (2) Activities must not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with NPS to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. NPS must not resume their activities until notified by NMFS. (3) In the event that NPS discovers an injured or dead marine mammal, and the lead observer determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition), NPS must immediately report the incident to the Office of Protected Resources, NMFS, and the Alaska Stranding Coordinator, NMFS. The report must include the same information identified in § 217.25(e)(1). Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with NPS to determine whether additional mitigation measures or modifications to the activities are appropriate. (4) In the event that NPS discovers an injured or dead marine mammal and determines that the injury or death is VerDate Sep<11>2014 16:36 Dec 12, 2018 Jkt 247001 not associated with or related to the activities defined in § 217.20(a) (e.g., previously wounded animal, carcass with moderate to advanced decomposition, scavenger damage), NPS must report the incident to OPR and the Alaska Stranding Coordinator, NMFS, within 24 hours of the discovery. NPS must provide photographs or video footage or other documentation of the stranded animal sighting to NMFS. NPS can continue their research activities. (5) Pursuant to paragraphs § 217.25(e)(2) through (4), NPS may use discretion in determining what injuries (i.e., nature and severity) are appropriate for reporting. At minimum, NPS must report those injuries considered to be serious (i.e., will likely result in death) or that are likely caused by human interaction (e.g., entanglement, gunshot). Also pursuant to paragraphs § 217.25(e)(3) and (4) of this section, NPS may use discretion in determining the appropriate vantage point for obtaining photographs of injured/dead marine mammals. § 217.26 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regulations, NPS must apply for and obtain an LOA. (b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the expiration date of these regulations, NPS may apply for and obtain a renewal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, NPS must apply for and obtain a modification of the LOA as described in § 217.27. (e) The LOA shall set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations. (g) Notice of issuance or denial of an LOA shall be published in the Federal Register within 30 days of a determination. § 217.27 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 217.26 for the PO 00000 Frm 00060 Fmt 4702 Sfmt 4702 64095 activity identified in § 217.20(a) shall be renewed or modified upon request by the applicant, provided that: (1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), and (2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented. (b) For an LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and 217.26 for the activity identified in § 217.20(a) may be modified by NMFS under the following circumstances: (1) Adaptive Management—NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with NPS regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA: (A) Results from NPS’s monitoring from the previous year(s). (B) Results from other marine mammal research or studies. (C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS shall publish a notice of proposed LOA in the Federal Register and solicit public comment. (2) Emergencies—If NMFS determines that an emergency exists that poses a E:\FR\FM\13DEP1.SGM 13DEP1 64096 Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules amozie on DSK3GDR082PROD with PROPOSALS1 significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 217.26, an LOA may be modified without prior VerDate Sep<11>2014 16:36 Dec 12, 2018 Jkt 247001 notice or opportunity for public comment. Notice would be published in the Federal Register within thirty days of the action. PO 00000 § 217.28 [Reserved] § 217.29 [Reserved] [FR Doc. 2018–26741 Filed 12–12–18; 8:45 am] BILLING CODE 3510–22–P Frm 00061 Fmt 4702 Sfmt 9990 E:\FR\FM\13DEP1.SGM 13DEP1

Agencies

[Federal Register Volume 83, Number 239 (Thursday, December 13, 2018)]
[Proposed Rules]
[Pages 64078-64096]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26741]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 180411364-8364-01]
RIN 0648-BH90


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to National Park Service's Research and Monitoring 
Activities in Southern Alaska National Parks

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

ACTION: Proposed rule; request for comments.

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

SUMMARY: NMFS has received a request from the National Park Service 
(NPS) for authorization to take marine mammals incidental to research 
and monitoring activities in southern Alaska over the course of five 
years (2019-2024). These activities include glaucous-winged gull and 
climate monitoring activities in Glacier Bay National Park (GLBA NP), 
Alaska and marine bird and mammal survey activities conducted by the 
Southwest Alaska Inventory and Monitoring Network (SWAN) in national 
parks and adjacent lands. As required by the Marine Mammal Protection 
Act (MMPA), NMFS is proposing regulations to govern that take and 
requests comments on the proposed regulations.

DATES: Comments and information must be received no later than January 
14, 2019.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2018-0059, by any of the following methods:
     Electronic submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D= NOAA-NMFS-2018-0059, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East West Highway, Silver 
Spring, MD 20910.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address), confidential business information, 
or otherwise sensitive information submitted voluntarily by the sender 
will be publicly accessible. NMFS will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous). 
Attachments to electronic comments will be accepted in Microsoft Word, 
Excel, or Adobe PDF file formats only.

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

SUPPLEMENTARY INFORMATION:

Availability

    A copy of NPS's application and any 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 (see FOR FURTHER INFORMATION CONTACT).

National Environmental Policy Act (NEPA)

    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 take authorization) with respect to potential impacts on the 
human environment.
    This action is consistent with categories of activities identified 
in CE B4 of the Companion Manual for NOAA Administrative Order 216-6A, 
which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has 
preliminarily determined that the issuance of the proposed rule and 
subsequent Letters of Authorization qualifies to be categorically 
excluded from further NEPA review. We will review all comments 
submitted in response to this notice prior to concluding our NEPA 
process or making a final decision on the request.

Purpose and Need for Regulatory Action

    This proposed rule, to be issued under the authority of the Marine 
Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.), would establish 
a framework for authorizing the take of marine mammals incidental to 
NPS's gull and climate monitoring activities within GLBA NP and marine 
bird and mammal surveys in the SWAN region. Researchers conducting 
these surveys may cause behavioral disturbance (Level B harassment) of 
harbor seals and Steller sea lions.
    We received an application from NPS requesting five-year 
regulations and authorization to take harbor seals and Steller sea 
lions. Take would occur by Level B harassment incidental to research 
and monitoring activities due to behavioral disturbance of pinnipeds. 
The regulations would be valid from 2019 to 2024. Please see 
``Background'' below for definitions of harassment.

Legal Authority for the Proposed Action

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs 
the Secretary of Commerce to allow, upon request, the incidental, but 
not intentional taking of small numbers of

[[Page 64079]]

marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
for up to five years if, after notice and public comment, the agency 
makes certain findings and issues regulations that set forth 
permissible methods of taking pursuant to that activity, as well as 
monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA 
and the implementing regulations at 50 CFR part 216, subpart I provide 
the legal basis for issuing this proposed rule containing five-year 
regulations, and for any subsequent Letters of Authorization. As 
directed by this legal authority, this proposed rule contains 
mitigation, monitoring, and reporting requirements.

Summary of Major Provisions Within the Proposed Rule

    The following provides a summary of some of the major provisions 
within the proposed rulemaking for NPS's research and monitoring 
activities in southern Alaska. We have preliminarily determined that 
NPS's adherence to the proposed mitigation, monitoring, and reporting 
measures listed below would achieve the least practicable adverse 
impact on the affected marine mammals. They include:
     Measures to minimize the number and intensity of 
incidental takes during monitoring activities and to minimize the 
duration of disturbances.
     Measures designed to eliminate startling reactions.
     Eliminating or altering research activities on GLBA NP 
beaches when pups are present, and setting limits on the frequency and 
duration of events during pupping season.

Background

    Paragraphs 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1371 
(a)(5)(A) and (D)) direct the Secretary of Commerce to allow, upon 
request, the incidental, but not intentional, taking of small numbers 
of marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
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. NMFS has defined ``unmitigable adverse 
impact'' in 50 CFR 216.103 as an impact resulting from the specified 
activity:
     That is likely to reduce the availability of the species 
to a level insufficient for a harvest to meet subsistence needs by:
    [cir] Causing the marine mammals to abandon or avoid hunting areas;
    [cir] Directly displacing subsistence users; or
    [cir] Placing physical barriers between the marine mammals and the 
subsistence hunters; and
     That cannot be sufficiently mitigated by other measures to 
increase the availability of marine mammals to allow subsistence needs 
to be met.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: Any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).

Summary of Request

    On February 6, 2018, we received an adequate and complete request 
from NPS for authorization to take marine mammals incidental to gull 
and climate monitoring activities in GLBA NP. On February 22, 2018 (83 
FR 7699), we published a notice of receipt of NPS's application in the 
Federal Register, requesting comments and information related to the 
request for 30 days. We did not receive any comments. NPS provided a 
revised application incorporating minor revisions on April 23, 2018. 
Subsequently, NPS has identified additional research and monitoring 
projects in southern Alaska (SWAN region) with similar sources of 
marine mammal disturbance and potential effects. On October 29, 2018, 
NMFS received an adequate and complete revised application including 
these additional research and monitoring activities. These additional 
activities were determined to be similar in scope and impact to the 
original proposed activities, and NMFS determined that publication of a 
revised notice of receipt was not necessary for the updated 
application.
    Prior to this request for incidental take regulations and 
subsequent Letters of Authorization (LOA), we issued five consecutive 
incidental harassment authorizations (IHA) to NPS for incidental take 
associated with the GLBA NP ongoing gull and climate monitoring 
activities. NPS was first issued an IHA, valid for a period of one 
year, effective on September 18, 2014 (79 FR 56065), and was 
subsequently issued one-year IHAs for incidental take associated with 
the same activities, effective on March 24, 2015 (80 FR 28229), June 1, 
2016 (77 FR 24471), May 20, 2017 (82 FR 24681), and February 15, 2018 
(83 FR 6842). NPS has abided by all of NMFS's mitigation and monitoring 
requirements in previous activities for which take was authorized.

Description of the Specified Activity

Glacier Bay

    NPS is proposing to conduct two research projects within the GLBA 
NP in southeast Alaska: (1) Glaucous-winged gull monitoring, and (2) 
the maintenance of a weather station operation for long-term climate 
monitoring. NPS would conduct ground and vessel surveys at six study 
sites within GLBA NP for gull monitoring: South Marble Island, Boulder 
Island, Lone Island, Geikie Rock, Flapjack Island, and Tlingit Point 
Islet. These sites will be accessed up to five times per year. In 
addition, NPS is requesting permission to access Lone Island an 
additional three times per year for weather station maintenance and 
operation bringing the total number of site visits to Lone Island to 
eight. This includes adding one additional trip for any emergency 
repairs that may be needed. Researchers accessing the islands for gull 
monitoring and weather station operation may cause behavioral 
disturbance (Level B harassment) of harbor seals. NPS expects that the 
disturbance to harbor seals from both projects will be limited to Level 
B harassment.
    The purpose for the above-mentioned research activities are as 
follows. Gull monitoring studies are mandated by a Record of Decision 
of a Legislative Environmental Impact Statement (LEIS) (NPS 2010) which 
states that NPS must initiate a monitoring program for glaucous-winged 
gulls (Larus glaucescens) to inform future native egg harvest by the 
Hoonah Tlingit in Glacier Bay, Alaska. Installation of a new weather 
station on Lone Island was conducted by the NPS in the spring of

[[Page 64080]]

2018 as one of several installations intended to fill coverage gaps 
among existing weather stations in GLBA NP (NPS 2015a). In order to 
properly maintain the newly installed weather station, researchers must 
access the Lone Island weather station site at least twice a year for 
annual maintenance and repairs.

SWAN

    NPS is applying for an LOA to conduct the SWAN marine bird and 
mammal multi-species nearshore surveys along the coastlines of Katmai 
National Park and Preserve (KATM), Kenai Fjords National Park (KEFJ), 
and in Kachemak Bay (KBAY) in support of long-term monitoring programs 
in these regions of southwest Alaska. Occasional disturbance of Steller 
sea lions and harbor seals may occur during surveys. Steller sea lion 
and harbor seal habitat coincides with surveyed nearshore transects. 
Please see NPS's application for established transect locations for 
KATM and KEFJ and proposed transect locations for KBAY. NPS expects 
that the disturbance will be limited to Level B harassment and will not 
result in serious injury or death. SWAN also seeks to foster further 
collaborations with NOAA and share monitoring data in the future.

Dates and Duration

Glacier Bay
    The specified activity would be valid during the five-year period 
of validity for these proposed regulations (March 1, 2019 through 
February 29, 2024). Ground and vessel surveys for nesting gulls will be 
conducted from May through September on bird nesting islands in GLBA NP 
(see Figure 1 of LOA Application) and other suspected gull colonies. 
There will be 1-3 ground visits and 1-2 vessel surveys at each site for 
a maximum of five visits per site. Duration of surveys will be 30 
minutes to two hours each.
    Maintenance of the Lone Island weather station may begin March 1, 
2019. To avoid the gull-nesting period, all maintenance and emergency 
repair-related site visits to this location are planned to occur 
between March and April during the first year, and October to April in 
following years, but visits could occur outside of this time period if 
necessary with authorization from the park Superintendent to ensure 
protection of park resources and values. Possible unanticipated station 
failures requiring emergency repair will require up to eight hours. Two 
planned maintenance visits will require approximately two hours per 
visit.
SWAN
    NPS's activities in the SWAN region would be valid during the five 
year period of validity for these proposed regulations (March 1, 2019 
through February 29, 2024). Standardized surveys of marine birds are 
proposed in KATM and KEFJ between late June and early July and are 
generally conducted by two survey crews on independent small vessels 
(5-8 m length) traveling at speeds of 8-12 knots along randomly 
selected sections of coastline that represent independent transects. 
The two crews operate independently and do not survey the same 
transects. Winter surveys are conducted in March and consist of the 
same set of transects surveyed in the summer months. Only one region, 
either KATM or KEFJ, per winter season is surveyed. Regions surveyed in 
the winter are on a rotation. Similar annual surveys are proposed in 
KBAY, with summer surveys occurring in June or July and no winter 
survey proposed. The survey of each area takes 3-4 days to complete 
with both crews operating.

Specified Geographical Region

Glacier Bay
    The proposed study sites would occur in the vicinity of the 
following locations: South Marble, Boulder, Lone, and Flapjack Islands, 
Tlinglit Point Islet, and Geikie Rock in GLBA NP in southeast Alaska 
(see Figure 1 of LOA application). Each of these study sites are 
located on the eastern side of the park situated near Geikie Inlet and 
all provide harbor seal habitat throughout the year, however the 
highest presence of seals occurs during the breeding and molting season 
(May to October) (Lewis et al., 2017). On Boulder and Flapjack islands, 
the proposed gull monitoring study sites are located on the north side 
whereas harbor seal haulouts are positioned on the south (Lewis et al., 
2017). Also, on Lone Island, harbor seals are sited near tidal rocks 
off the northeast tip of the island (ADEC, 2014), whereas on Geikie 
Rock they are known to be found throughout the entire site due to its 
small size (Lewis 2017). NPS will also conduct studies at South Marble 
Island and Tlingit Point Islet; however, there are no reported harbor 
seal haulout sites at those locations. South Marble Island is regularly 
occupied by hauled out Steller sea lions, but GLBA NP researchers have 
been able to access the island previously while maintaining 100 m 
minimum distance from the Steller sea lions and avoiding disturbance.
SWAN
    The proposed surveys will occur at two national parks, KATM and 
KEFJ, as well as the nearby KBAY, in southwest AK. Detailed maps of the 
survey transects are available in the NPS's LOA application. Transects 
are conducted 100 or 150 m from shore and have a total width of 
approximately 200 to 300 m centered on the vessel.

Detailed Description of Activities

Glacier Bay's Glaucous-Winged Gull Monitoring
    Gull monitoring will be conducted using a combination of ground and 
vessel surveys by landing at specific access points on the islands. NPS 
proposes to conduct: (1) Ground-based surveys at a maximum frequency of 
three visits per site; and (2) vessel-based surveys at a maximum 
frequency of two visits per site during the period of May through 
September.
    Ground-based surveys for gull monitoring will involve two trained 
observers conducting complete nest counts of the gull colonies. The 
survey will encompass all portions of the gull colony accessible to 
humans and thus represent a census of the harvestable nests. GPS 
locations of nests and associated vegetation along with the number of 
live and predated eggs will be collected during at least one visit to 
obtain precise nest locations to characterize nesting habitat. On 
subsequent surveys, nest counts will be tallied on paper so observers 
can move through the colony more quickly and minimize disturbance. 
Ground surveys will be discontinued after the first hatched chick is 
detected to minimize disturbance and mortalities of gulls. During 
ground surveys, observers will also record other bird and marine mammal 
species in proximity to colonies.
    The observers would access each island using a kayak, a 32.8 to 
39.4-foot (ft) (10 to 12 meter (m)) motorboat, or a 12 ft (4 m) 
inflatable rowing dinghy. The landing craft's transit speed would not 
exceed 4 knots (kn) (4.6 miles per hour (mph)). Ground surveys 
generally last 30 minutes (min) to two hours (hrs) each depending on 
the size of the island and the number of nesting gulls. During ground 
surveys, Level B harassment of harbor seals can occur from either 
acoustic disturbance from motorboat sounds or visual disturbance from 
the presence of observers. Past monitoring reports show that most takes 
(flushes or movements greater than one meter) from ground surveys 
occurred as vessels approached a study site to perform a survey. Takes 
usually occurred while

[[Page 64081]]

the vessel was 50-100 meters from the island (NPS 2015b; NPS 2016).
    Vessel-based surveys for gull monitoring will be conducted from the 
deck of a motorized vessel (10 to 12 meters) and will be used to count 
the number of adult and fledgling gulls that are visible from the water 
(Zador, 2001; Arimitsu et al., 2007). Vessel surveys provide a more 
reliable estimate of the numbers of gulls in the colony than ground 
surveys because NPS can count nesting birds in areas that are 
inaccessible by foot and because the birds do not flush from the 
researchers' presence. GLBA NP would conduct these surveys by circling 
the islands at approximately 100 m from shore while counting the number 
of adult and chick gulls as well as other bird and mammal species 
present. Surveys can be from 30 min to two hrs in duration. During 
vessel surveys, Level B harassment of harbor seals can occur from 
either acoustic disturbance from motorboat sounds or visual disturbance 
from the presence of observers. Past monitoring reports show that most 
takes (flushes or movements greater than one meter) from vessel surveys 
occurred as the vessel was 100 m from the island (NPS 2015b; NPS 2016).
Glacier Bay's Climate Monitoring (Weather Station Maintenance)
    To conduct climate monitoring and weather station maintenance 
activities, Lone Island will be accessed by a 10-20 m motor vessel. 
Materials will be carried by hand to the weather station location. 
Station configuration and maintenance is typical of Remote Automated 
Weather Stations (RAWS) operated by land management agencies for 
weather and climate monitoring, fire weather observation, and other 
uses. The weather station consists of an 8-ft monopole and associated 
guy lines. In addition, there is a fuel cell and sealed 12V battery 
housed in a watertight enclosure that provides power to the station. 
Standard meteorological sensors for measuring precipitation, wind, 
temperature, solar radiation, and snow depth are used. Data is housed 
in internal memory and communicated via satellite telemetry to the 
Wildland Fire Management Institute where it is relayed to a variety of 
repositories such as the Western Regional Climate Center in near real-
time. It is possible that the weather station can be accessed in a 
fashion that will not disturb hauled out harbor seals. However NPS is 
requesting authorization to ensure its ability to perform yearly 
maintenance of the weather station.
SWAN Marine Bird and Marine Mammal Surveys
    SWAN standardized surveys of marine birds are conducted in KATM and 
KEFJ between late June and early July and are generally conducted from 
small vessels (5-8 m length) traveling at speeds of 8-12 knots along 
randomly selected sections of coastline that represent independent 
transects. SWAN is also proposing similar surveys be implemented in 
KBAY in cooperation with USGS and Gulf Watch Alaska. The survey design 
consists of a series of transects along shorelines such that a minimum 
of 20 percent of an NPS park shoreline is surveyed. Transects are 
systematically selected beginning at a random starting point from the 
pool of contiguous 2.5-5 km transects that are adjacent to the mainland 
or islands. The transect width is 200-300 m, depending on the elevation 
of the observer platform, and the survey boat represents the midpoint. 
There are two survey teams, and each transect is surveyed by one team 
of three. The boat operator generally surveys the 100-150 m offshore 
area of the transect, while a second observer surveys the 100-150 m 
nearshore area. The third team member enters the observations into a 
laptop running software specifically designed for this type of 
surveying, and the third team member can assist with observations when 
needed. All marine birds and mammals within the 200-300 m transect 
swath are identified and counted. Detailed descriptions of methods and 
procedures can be found in the Marine Bird and Mammal Survey SOP 
(Bodkin 2011).

Description of Marine Mammals in the Area of the Specified Activity

    Sections 3 and 4 of the LOA application summarize available 
information regarding status and trends, distribution and habitat 
preferences, and behavior and life history, of the potentially affected 
species. Additional information regarding population trends and threats 
may be found in NMFS's Stock Assessment Reports (SAR; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS's 
website (https://www.fisheries.noaa.gov/find-species).
    Table 1 lists all species with expected potential for occurrence 
within the survey areas and summarizes information related to the 
population or stock, including regulatory status under the MMPA and 
Endangered Species Act (ESA) and potential biological removal (PBR), 
where known. For taxonomy, we follow the Committee on Taxonomy (2017). 
PBR is defined by the MMPA as the maximum number of animals, not 
including natural mortalities, that may be removed from a marine mammal 
stock while allowing that stock to reach or maintain its optimum 
sustainable population (as described in NMFS's SARs). While no 
mortality is anticipated or authorized here, PBR and annual serious 
injury and mortality from anthropogenic sources are included here as 
gross indicators of the status of the species and other threats. Marine 
mammal abundance estimates presented in this document represent the 
total number of individuals that make up a given stock or the total 
number estimated within a particular study or survey area. NMFS's stock 
abundance estimates for most species represent the total estimate of 
individuals within the geographic area, if known, that comprises that 
stock. For some species, this geographic area may extend beyond U.S. 
waters. All managed stocks in this region are assessed in NMFS's U.S. 
Alaska SARs (Muto et al., 2018). All values presented in Table 1 are 
the most recent available at the time of publication and are available 
in the 2017 SARs (Muto et al., 2018).

                                              Table 1--Marine Mammals That Could Occur in the Project Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         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\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
 sea lions):
    Steller sea lion................  Eumetopias jubatus.....  Eastern U.S............  -/-; N              41,638 (n/a, 41,638,          306        236
                                                                                                             2015) \4\.

[[Page 64082]]

 
                                                               Western U.S............  E/D; Y              54,267 (n/a; 54,267;          326        252
                                                                                                             2017) \4\.
Family Phocidae (earless seals):
    Harbor seal.....................  Phoca vitulina           Glacier Bay/Icy Strait.  -/-; N              7,210 (n/a.; 5,647;           169        104
                                       richardii.                                                            2011) \4\.
                                                               Cook Inlet/Shelikof      -/-; N              27,386 (n/a; 25,651;          770        234
                                                                Strait.                                      2011) \4\.
                                                               Prince William Sound...  -/-; N              29,889 (n/a; 27,936;          838        279
                                                                                                             2011) \4\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable (n/a).
\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.
\4\ CV value not reported in SARs.

    All marine mammal species that could potentially occur in the 
proposed survey areas are included in Table 1. While cetaceans, 
including humpback, beluga, and killer whales, may be present in nearby 
waters, NPS's activities are expected to result in harassment only for 
hauled out pinnipeds. Therefore, cetaceans are not considered further 
in this analysis. However, NPS does propose cetacean avoidance measures 
as described in the ``Proposed Mitigation'' section below. Finally, sea 
otters may be found throughout the proposed project area. However, sea 
otters are managed by the U.S. Fish and Wildlife Service and are not 
considered further in this document.

Steller Sea Lions

    The Steller sea lion is the largest of the eared seals, ranging 
along the North Pacific Rim from northern Japan to California, with 
centers of abundance and distribution in the Gulf of Alaska and 
Aleutian Islands. Steller sea lions were listed as threatened range-
wide under the ESA on November 26, 1990 (55 FR 49204). Subsequently, 
NMFS published a final rule designating critical habitat for the 
species as a 20 nautical mile buffer around all major haulouts and 
rookeries, as well as associated terrestrial, air and aquatic zones, 
and three large offshore foraging areas (58 FR 45269; August 27, 1993). 
In 1997, NMFS reclassified Steller sea lions as two distinct population 
segments (DPS), or stocks, based on genetic studies and other 
information (62 FR 24345; May 5, 1997). Steller sea lion populations 
that primarily occur west of 144[deg] W (Cape Suckling, Alaska) 
comprise the western stock, while all others comprise the eastern 
stock; however, there is regular movement of both stocks across this 
boundary (Jemison et al., 2013). Upon this reclassification, the 
western DPS, or stock, was listed as endangered while the eastern DPS, 
or stock, remained as threatened (62 FR 24345; May 5, 1997) and in 
November 2013, the eastern DPS was delisted (78 FR 66140).
    Steller sea lions are not known to migrate, but individuals may 
disperse widely outside the breeding season (late May to early July). 
At sea, Steller sea lions are commonly found from nearshore habitats to 
the continental shelf and slope. The western stock breeds on rookeries 
in Alaska from Prince William Sound west through the Aleutian Islands. 
Steller sea lions use 38 rookeries and hundreds of haulouts within 
their range in western Alaska (Allen and Angliss 2013). The eastern 
stock originates from rookeries east of Cape Suckling, Alaska, and can 
be found between southeast Alaska and California.
SWAN
    SWAN's activities all occur west of the 144[deg] W line that splits 
the two Steller sea lion stocks, but there is some mixing across that 
boundary. Steller sea lions impacted by NPS' research and monitoring 
activities could belong to either stock, and it is not possible to 
determine which stock a Steller sea lion belongs to by simple 
observation. Both stocks of Steller sea lions are therefore considered 
in this analysis.
    SWAN surveys occur in areas with known Steller sea lion haulouts 
and there are two rookeries in KEFJ (see application). KATM and KEFJ 
shorelines are both within Steller sea lion critical habitat including 
the aquatic zone (or buffer) that extends 37 kilometers (20 nautical 
miles) seaward in all directions from each rookery and major haulout. 
Critical habitat also includes three large offshore foraging areas: The 
Shelikof Strait area, the Bogoslof area, and the Seguam Pass area (58 
FR 45269) with only the Shelikof Strait area relevant to this action. 
Steller sea lions are sometimes present in KBAY, but the area is not 
critical habitat. Regulations prevent approach by vessel to within 
three nautical miles of major rookeries (50 CFR 224.103).
Glacier Bay
    The temporal and/or spatial occurrence of Steller sea lions is such 
that take is not expected to occur in GLBA NP research sites and 
researchers would not approach Steller sea lions. Steller sea lions 
which occur in GLBA NP are generally found on South Marble Island (see 
Figure 1 in the Application). No disturbance of Steller sea lions is 
expected from GLBA NP activities, so their presence in the area is not 
discussed beyond the information provided here.
    A total of five Steller sea lions have been observed during the 
2015, 2016, and 2017 GLBA NP gull survey seasons (climate monitoring 
did not take place during these years) (NPS 2015b; NPS 2016; NPS 2017). 
However, all Steller sea lions that were spotted were observed outside 
the study area. Steller sea lions are present in GLBA NP, but are not 
generally seen on the islands being researched. NPS has proposed 
mitigation, including staying at least 100 m away from all Steller sea 
lions (see Proposed Mitigation), which has been found to be sufficient 
to avoid take by Level B harassment due to Steller sea lions' tolerance 
of vessels and lack of response to humans from a distance.

Harbor Seals

    Harbor seals are the most abundant marine mammal species found 
within the action area and are present year-round. Harbor seals range 
from Baja California north along the west coasts of Washington, Oregon, 
California, British Columbia, and Southeast Alaska; west through the 
Gulf of Alaska, Prince

[[Page 64083]]

William Sound, and the Aleutian Islands; and north in the Bering Sea to 
Cape Newenham and the Pribilof Islands. The current statewide abundance 
estimate for Alaskan harbor seals is 205,090 (Muto et al., 2017), based 
on aerial survey data collected during 1998-2011. In 2010, harbor seals 
in Alaska were partitioned into 12 separate stocks based largely on 
genetic structure (Allen and Angliss, 2010). Harbor seals have declined 
dramatically in some parts of their range over the past few decades, 
while in other parts their numbers have increased or remained stable 
over similar time periods.
    Harbor seals haul out on rocks, reefs, beaches, and drifting 
glacial ice (Allen and Angliss, 2014). They are non-migratory; their 
local movements are associated with tides, weather, season, food 
availability, and reproduction, as well as sex and age class (Allen and 
Angliss, 2014; Boveng et al., 2012; Lowry et al., 2001; Swain et al., 
1996). Pupping in Alaska generally takes place in May and June; while 
molting generally occurs from June to October.
Glacier Bay Stock/Icy Strait Stock
    Harbor seals of Glacier Bay range from Cape Fairweather southeast 
to Column Point, extending inland to Glacier Bay, Icy Strait, and from 
Hanus Reef south to Tenakee Inlet (Muto et al., 2017). This is the only 
stock that would be impacted by research and monitoring activities in 
GLBA NP. The Glacier Bay/Icy Strait stock showed a negative population 
trend from 1992 to 2008 in June and August for glacial (-7.7 percent/
year; -8.2 percent/year) and terrestrial sites (-12.4 percent/year, 
August only) (Womble et al., 2010 as cited in Muto et al., 2017). Trend 
estimates by Mathews and Pendleton (2006) were similarly negative for 
both glacial and terrestrial sites. Prior to 1993, seal counts were up 
to 1,347 in the East Arm of Glacier Bay; 2008 counts were fewer than 
200 (Streveler, 1979; Molnia, 2007 as cited in Muto et al., 2017). 
These observed declines in harbor seals resulted in new research 
efforts which were initiated in 2004 and were aimed at trying to 
further understand the biology and ecology of seals and possible 
factors that may have contributed to the declines (e.g., Herreman et 
al. 2009, Blundell et al. 2011, Hueffer et al. 2012, Womble and Gende 
2013a, Womble et al. 2014), with an emphasis on possible factors that 
may have contributed to the declines. The recent studies suggest that 
(1) harbor seals in Glacier Bay are not significantly stressed due to 
nutritional constraints (Blundell et al. 2011), (2) the clinical health 
and disease status of seals within Glacier Bay is not different than 
seals from stable or increasing populations (Hueffer et al. 2012), and 
(3) disturbance by vessels does not appear to be a primary factor 
driving the decline (Young 2009).
    Long-term monitoring of harbor seals on glacial ice has occurred in 
Glacier Bay since the 1970s (Mathews and Pendleton, 2006) and has shown 
this area to support one of the largest breeding aggregations in Alaska 
(Steveler, 1979; Calambokidis et al., 1987 as cited in Muto et al., 
2015). After a large scale retreat of the Muir Glacier (more than 7 
km), in the East Arm of Glacier Bay, between 1973 and 1986 and the 
subsequent grounding and cessation of calving in 1993, floating glacial 
ice was greatly reduced as a haulout substrate for harbor seals and 
ultimately resulted in the abandonment of upper Muir Inlet by harbor 
seals (Calambokidis et al., 1987; Hall et al., 1995; Mathews, 1995 as 
cited in Muto et al., 2017). The most recent long-term trend estimate 
for harbor seals at terrestrial sites in Glacier Bay for the 22-year 
period from 1992-2013 is -6.91 percent/year (SE = 0.40, 95% CI = -7.69, 
-6.13) (Womble et al. 2015). This trend is less negative than previous 
estimates stated in the paragraph above. In addition, from 2004-2013, 
there was a 10-year trend estimate of 9.64 percent increase per year 
(SE = 1.66, 95% CI = 6.40, 12.89) (Womble et al., 2015).
    Results from satellite telemetry studies suggest that harbor seals 
travel extensively beyond the boundaries of Glacier Bay during the 
post-breeding season (September-April); however, harbor seals 
demonstrated a high degree of inter-annual site fidelity (93 percent) 
to Glacier Bay the following breeding season (Womble and Gende 2013b). 
Spatial and temporal regulations, for vessels transiting in and near 
harbor seal breeding areas, and operating regulations, for vessels 
operating within those areas, are all aimed at reducing the impacts of 
human visitation.
    Harbor seals from the Glacier Bay/Icy Strait stock can be found 
hauled out at four of the gull monitoring study sites (Table 2). Seal 
counts from gull monitoring surveys likely represent a minimum estimate 
due to difficulty observing marine mammals from a vessel. Counts from 
gull monitoring surveys are conducted during high tide so fewer seals 
may be present.

   Table 2--Number of Observed Harbor Seals and Taken by Level B Harassment for the Species Under IHAs at Gull
                                      Study Sites From 2015-2017 in GLBA NP
----------------------------------------------------------------------------------------------------------------
                                                                  2015 Observed/  2016 Observed/  2017 Observed/
            Site name              Latitude (dd)  Longitude (dd)       taken           taken           taken
----------------------------------------------------------------------------------------------------------------
Boulder.........................        58.55535      -136.01814           13/11            21/0             4/0
Flapjack........................        58.58698      -135.98251             0/0          101/41             0/0
Geikie..........................        58.69402      -136.31291           45/14            37/0           33/33
Lone............................        58.72102      -136.29470           98/32           58/39            49/0
                                 -------------------------------------------------------------------------------
    Total.......................  ..............  ..............          156/57          217/80           86/33
----------------------------------------------------------------------------------------------------------------

    As alluded to, there can be greater numbers of seals on the survey 
islands than what is detected by the NPS during the gull surveys. 
Aerial survey maximum counts show that harbor seals sometimes haul out 
in large numbers at all four locations (see Table 2 of the 
application). However, harbor seals hauled out at Flapjack Island are 
generally on the southern end whereas the gull colony is on the 
northern end. Similarly, harbor seals on Boulder Island tend to haul 
out on the southern end while the gull colony is located and can be 
accessed on the northern end without causing disturbance of harbor 
seals. Aerial survey counts for harbor seals are conducted during low 
tide while ground and vessel surveys are conducted during high tide 
which, along with greater visibility during aerial surveys, may also 
contribute to the greater numbers of seals observed during the aerial 
surveys because there is more land available to use as a haulout during 
low tide.

[[Page 64084]]

Prince William Sound Stock
    The Prince William Sound stock includes harbor seals both within 
and adjacent to Prince William Sound proper from approximately Cape 
Fairweather to Elizabeth Island, including the KEFJ survey area. Within 
Prince William Sound proper, harbor seals declined in abundance by 63 
percent between 1984 and 1997 (Frost et al. 1999). In Aialik Bay, 
adjacent to Prince William Sound proper, there has been a decline in 
pup production by 4.6 percent annually from 40 down to 32 pups born 
from 1994 to 2009 (Hoover-Miller et al. 2011). The current (2007-2011) 
estimate of the Prince William Sound population trend over a 5-year 
period is +26 seals per year with a probability that the stock is 
decreasing of 0.56. The presence of an increasing trend with a greater 
than .5 probability of decreasing is due to skewness impacting 
statistical estimates. This occurrence is discussed further in Muto et 
al. (2018).
    From 1992-1997, results from a satellite telemetry study showed 
Prince William Sound harbor seals tended to remain in or near Prince 
William Sound. Juvenile seals were occasionally found to range up to 
300 to 500 km east and west into the Gulf of Alaska. In June and July, 
when SWAN region surveys would occur, harbor seals tended to have their 
smallest home range sizes, remaining nearer to their haulout than other 
times of year (Lowry et al. 2001).
Cook Inlet/Shelikof Strait Stock
    The Cook Inlet/Shelikof Strait stock includes harbor seals from 
approximately Elizabeth Island to Unimak Island, as well as those 
within Cook Inlet. Multiple harbor seal haulouts exist in KBAY and KATM 
(London et al, 2015; Montgomery et al 2007). This stock of harbor seals 
would be found in the KATM and KBAY survey areas of SWAN's activities. 
A multi-year study of seasonal movements and abundance of harbor seals 
in Cook Inlet was conducted between 2004 and 2007. This study involved 
multiple aerial surveys throughout the year, and the data indicated a 
stable population of harbor seals during the August molting period 
(Boveng et al. 2011). Aerial surveys along the Alaska Peninsula present 
greater logistical challenges and have therefore been conducted less 
frequently. The current (2007-2011) estimate of the Cook Inlet/Shelikof 
Strait population trend is +313 seals per year, with a probability of 
0.38 that the stock is decreasing (Muto et al. 2018).

Potential Effects of the Specified Activity on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The ``Estimated Take'' section later in this document 
includes a quantitative analysis of the number of individuals that are 
expected to be taken by this activity. The ``Negligible Impact Analysis 
and Determination'' section considers the content of this section, the 
``Estimated Take'' section, and the ``Proposed Mitigation'' section, to 
draw conclusions regarding the likely impacts of these activities on 
the reproductive success or survivorship of individuals and how those 
impacts on individuals are likely to impact marine mammal species or 
stocks.
    As previously stated, acoustic and visual stimuli generated by 
motorboat operations and the presence of researchers have the potential 
to cause Level B harassment of harbor seals hauled out on Boulder, 
Lone, and Flapjack Islands, and Geikie Rock within GLBA NP. These same 
stimuli generated by motorboat operations have the potential to cause 
Level B harassment of harbor seals and Steller sea lions in KATM, KEFJ, 
and KBAY. The following discussion provides further detail on the 
potential visual and acoustic disturbances harbor seals and Steller sea 
lions may encounter during the NPS' research and monitoring activities.

Human and Vessel Disturbance

    Harbor seals and Steller sea lions may potentially experience 
behavioral disruption rising to the level of harassment from monitoring 
and research activities, which may include brief periods of airborne 
noise from research vessels and visual disturbance due to the presence 
and activity of the researchers both on vessels and on land during 
ground surveys. Disturbed pinnipeds are likely to experience any or all 
of these stimuli, and take may occur due to any in both isolation or 
combined with one another. Due to the likely constant combination of 
visual and acoustic stimuli resulting from the presence of vessels and 
researchers, we do not consider impacts from acoustic and visual 
stimuli separately.
    Disturbances resulting from human activity can impact short- and 
long-term pinniped haul out behavior (Renouf et al., 1981; Schneider 
and Payne, 1983; Terhune and Almon, 1983; Allen et al., 1984; Stewart, 
1984; Suryan and Harvey, 1999; and Kucey and Trites, 2006). Disturbance 
includes a variety of effects, including subtle to conspicuous changes 
in behavior, movement, and displacement. Reactions to sound, if any, 
depend on the species, state of maturity, experience, current activity, 
reproductive state, time of day, and many other factors (Richardson et 
al., 1995; Wartzok et al., 2004; Southall et al., 2007; Weilgart, 
2007). These behavioral reactions from marine mammals are often shown 
as: changing durations of surfacing and dives, or moving direction and/
or speed; reduced/increased vocal activities; changing/cessation of 
certain behavioral activities (such as socializing or feeding); visible 
startle response or aggressive behavior; avoidance of areas; and/or 
flight responses (e.g., pinnipeds flushing into the water from haulouts 
or rookeries). If a marine mammal does react briefly to human presence 
by changing its behavior or moving a small distance, the impacts of the 
change are unlikely to be significant to the individual, let alone the 
stock or population. However, if visual stimuli from human presence 
displaces marine mammals from an important feeding or breeding area for 
a prolonged period, impacts on individuals and populations could be 
significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007).
    Visual stimuli resulting from the presence of researchers and 
vessels have the potential to result in take of harbor seals and 
Steller sea lions on the research islands and coasts where these 
pinnipeds haul out. The characteristics of these stimuli differ between 
the GLBA NP and SWAN activities. In SWAN's activities, vessels move at 
faster speeds (8-12 kn, vs 2-3 kn for GLBA NP) but are present for a 
short time period transiting through an area and at a consistent 
distance. Alternatively, while GLBA NP vessels are slower, they must 
approach islands where pinnipeds may be hauled out, and both the vessel 
and researchers will be present for a longer period of time. As noted, 
harbor seals and Steller sea lions can exhibit a behavioral response 
(e.g., including alert behavior, movement, vocalizing, or flushing) to 
visual stimuli. NMFS does not consider the lesser reactions (e.g., 
alert behavior such as raising a head) to constitute harassment. Table 
3 displays NMFS's three-point scale that categorizes pinniped 
disturbance reactions by severity. Observed behavior falling within 
categories two and three would be considered level B harassment. GLBA 
NP is able to record these behaviors for all observed pinnipeds. 
Because of the nature of their survey, SWAN

[[Page 64085]]

researchers will only be able to record the total number of observed 
pinnipeds, and those which show an easily observable level 3 response 
(flushing). With these numbers and previous monitoring information from 
GLBA NP, NPS and NMFS should be able to estimate the total number of 
takes by Level B harassment resulting from SWAN monitoring.

                       Table 3--Three-Point Scale
                     [Seal response to disturbance]
------------------------------------------------------------------------
                        Type of
       Level            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. Alerts
                                      would be recorded, but not counted
                                      as a `take'.
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. These movements would be
                                      recorded and counted as a `take'.
3.................  Flush..........  All retreats (flushes) to the
                                      water. Flushing into the water
                                      would be recorded and counted as a
                                      `take'.
------------------------------------------------------------------------

    Upon the occurrence of low-severity disturbance (i.e., the approach 
of a vessel or person as opposed to an explosion or sonic boom), 
pinnipeds typically exhibit a continuum of responses, beginning with 
alert movements (e.g., raising the head), which may then escalate to 
movement away from the stimulus and possible flushing into the water. 
Flushed pinnipeds typically re-occupy the same haulout within minutes 
to hours of a stimulus (Allen et al., 1984 (Johnson and Acevedo-
Gutierrez, 2007). As a result, a minimal number of animals may be taken 
more than once during the proposed survey activities so the number of 
takes likely represents exposures. In the case of GLBA NP, because 
there will be no more than five annual visits to three gull study sites 
and no more than eight annual visits to one other survey site, it is 
expected that individual harbor seals at Boulder Island, Flapjack 
Island, and Geike Rock will be disturbed no more than five times per 
year and no more than eight times per year on Lone Island. For SWAN's 
activities, KATM, KEFJ, and KBAY are each visited during the summer. 
There is a winter survey conducted each year at either KATM or KEFJ. 
Therefore individual harbor seals and Stellar sea lions at these 
locations will be disturbed no more than two times per year.
    Numerous studies have shown that human activity can flush pinnipeds 
off haulout sites and beaches (Kenyon, 1972; Allen et al., 1984; 
Calambokidis et al., 1991; Suryan and Harvey, 1999; and Mortenson et 
al., 2000, Mathews, 2000). In 1997, Henry and Hammill (2001) conducted 
a study to measure the impacts of small boats (i.e., kayaks, canoes, 
motorboats and sailboats) on harbor seal haul out behavior in 
M[eacute]tis Bay, Quebec, Canada. During that study, the authors noted 
that the most frequent disturbances (n=73) were caused by lower speed, 
lingering kayaks and canoes (33.3 percent) as opposed to motorboats 
(27.8 percent) conducting high speed passes. The seals flight reactions 
could be linked to a surprise factor by kayaks-canoes, which approach 
slowly, quietly and low on water making them look like predators. 
However, the authors note that once the animals were disturbed, there 
did not appear to be any significant lingering effect on the recovery 
of numbers to their pre-disturbance levels. In conclusion, the study 
showed that boat traffic at current levels has only a temporary effect 
on the haul out behavior of harbor seals in the M[eacute]tis Bay area.
    In 2004, Johnson and Acevedo-Gutierrez (2007) evaluated the 
efficacy of buffer zones for watercraft around harbor seal haulout 
sites on Yellow Island, Washington State. The authors estimated the 
minimum distance between the vessels and the haulout sites; categorized 
the vessel types; and evaluated seal responses to the disturbances. 
During the course of the seven-weekend study, the authors recorded 14 
human-related disturbances, which were associated with stopped 
powerboats and kayaks. During these events, hauled out seals became 
noticeably active and moved into the water. The flushing occurred when 
stopped kayaks and powerboats were at distances as far as 453 and 1,217 
ft (138 and 371 m) respectively. The authors note that the seals were 
unaffected by passing powerboats, even those approaching as close as 
128 ft (39 m), possibly indicating that the animals had become tolerant 
of the brief presence of the vessels and ignored them. The authors 
reported that on average, the seals quickly recovered from the 
disturbances and returned to the haulout site in less than or equal to 
60 minutes. Seal numbers did not return to pre-disturbance levels 
within 180 minutes of the disturbance less than one quarter of the time 
observed. The study concluded that the return of seal numbers to pre-
disturbance levels and the relatively regular seasonal cycle in 
abundance throughout the area counter the idea that disturbances from 
powerboats may result in site abandonment (Johnson and Acevedo-
Gutierrez, 2007). Specific reactions from past NPS gull monitoring 
surveys are detailed in this proposed rule's Estimated Take Section.

Vessel Strike

Glacier Bay
    The probability of vessel and marine mammal interactions (i.e., 
motorboat strike) occurring during the proposed research activities is 
unlikely due to the motorboat's slow operational speed, which is 
typically 2 to 3 kn (2.3 to 3.4 mph) and the researchers continually 
scanning the water for marine mammals presence during transit to the 
islands. Thus, NMFS does not anticipate that strikes or collisions 
would result from the movement of the motorboat.
SWAN
    SWAN's survey vessels move at higher speeds, 8 to 12 kn, than those 
used in the proposed GLBA NP activities, but vessel and marine mammal 
interactions are still unlikely because the on board researchers are 
constantly scanning the water for marine mammal presence. For SWAN's 
activities, NMFS does not anticipate any strikes or collisions between 
vessels and marine mammals.

[[Page 64086]]

Harbor Seal Pupping

Glacier Bay
    During the harbor seal breeding (May-June) and molting (August) 
periods, ~66 percent of seals in Glacier Bay inhabit the primary 
glacial ice site and ~22 percent of seals are found in and adjacent to 
a group of islands in the southeast portion of Glacier Bay. At the 
proposed GLBA NP study sites, in 2016 only one pup was observed and no 
pups were observed during project activities in 2017 and 2015. Pups 
have been observed during NPS aerial surveys during the pupping seasons 
(conducted during low tide), but in few numbers (see Table 4). NMFS 
does not anticipate that the proposed activities would result in 
separation of mothers and pups as pups are rarely seen at the study 
sites.

  Table 4--Average and Maximum Counts of Hauled Out Harbor Seal Pups at Glaucous-Winged Gull Study Sites During
                              Harbor Seal Monitoring Aerial Surveys From 2007-2016
                                            [Womble unpublished data]
----------------------------------------------------------------------------------------------------------------
                                                                  Average of pup   Std. dev. of     Max. of pup
                              Site                                     count       pup count \1\       count
----------------------------------------------------------------------------------------------------------------
Boulder Island..................................................             0.8             1.3               5
Flapjack Island.................................................            14.9            11.5              43
Geikie Rock.....................................................             0.1             0.4               2
Lone Island.....................................................             0.8             0.9               4
                                                                 -----------------------------------------------
    Total.......................................................            4.74               9              43
----------------------------------------------------------------------------------------------------------------
\1\ A quantity calculated to indicate the extent of deviation for a group of pups as a whole.

SWAN
    Based on aerial surveys between 2003 and 2005, the upper portions 
of KBAY had high harbor seal pup abundance during the peak pupping 
season (June) (Boveng at al, 2011). Proposed KBAY survey transects 
occur in this area of high abundance (See Figure 5 in LOA application). 
Boveng et al (2011) found that within Cook Inlet, June harbor seal pup 
abundance in an individual survey unit correlated positively with June 
adult abundance in that unit. Therefore, based on the anticipated 
presence of adult harbor seals, there are also likely pups present at 
sites in KATM and KEFJ during the pupping season (June). Despite the 
presence of pups, SWAN's research and monitoring activities are 
expected to result in minimal disturbance to the hauled out harbor 
seals of all life stages due to the distance and duration of the 
vessel's presence (see Proposed Mitigation), and NMFS does not 
anticipate that the proposed activities would result in separation of 
mothers and pups.

Steller Sea Lion Pupping

SWAN
    During the Steller sea lion pupping season (May-July), mothers 
spend time both on land with their pups and at sea foraging. Because 
SWAN's proposed surveys avoid transects that pass Steller sea lion 
rookeries, NMFS does not anticipate any impacts on hauled out Steller 
sea lion mothers and their pups.

Summary

    Based on studies described here and previous monitoring reports 
from GLBA NP (Discussed further in the Estimated Take Section), we 
anticipate that any pinnipeds found in the vicinity of the proposed 
projects in both GLBA NP and the SWAN region could have short-term 
behavioral reactions (i.e., may result in marine mammals avoiding 
certain areas) due to noise and visual disturbance generated by: (1) 
Motorboat approaches and departures and (2) human presence during 
research and monitoring activities. We would expect the pinnipeds to 
return to a haulout site within minutes to hours of the stimulus based 
on previous research (Allen et al., 1984). Pinnipeds may be temporarily 
displaced from their haulout sites, but we do not expect that the 
pinnipeds would permanently abandon a haulout site during the conduct 
of the proposed research as activities are short in duration (brief 
transit through an area to up to two hours), and previous surveys have 
demonstrated that pinnipeds have returned to their haulout sites and 
have not permanently abandoned the sites.
    NMFS does not anticipate that the proposed activities would result 
in the injury, serious injury, or mortality of pinnipeds. NMFS does not 
anticipate that vessel strikes would result from the movement of the 
motorboat. The proposed activities will not result in any permanent 
impact on habitats used by marine mammals, including prey species and 
foraging habitat.

Marine Mammal Habitat

    NMFS does not anticipate that the proposed operations in GLBA NP or 
the SWAN region would result in any effects on the habitats used by the 
marine mammals in the proposed area, including the food sources they 
use (i.e., fish and invertebrates). The main impact associated with the 
proposed activity will be temporarily elevated noise levels from 
motorboats and human disturbance on marine mammals potentially leading 
to temporary displacement from a site, previously discussed in this 
proposed rule. NPS' LEIS for gull monitoring surveys in GLBA NP 
concluded that the activities do not result in the loss or modification 
to marine mammal habitat (NPS 2010). Additionally, any minor habitat 
alterations stemming from the maintenance of NPS' weather station will 
be located in an area that will not impact marine mammals. SWAN's 
activities in KATM and KEFJ do occur in Steller sea lion critical 
habitat, but will have minimal impact due to the nature of the 
disturbance and explicit avoidance of the most sensitive areas 
(rookeries). In all, the proposed activities in both GLBA NP and the 
SWAN region will not result in any permanent impact on habitats used by 
marine mammals, including prey species and foraging habitat.

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization through this IHA, which will inform both 
NMFS's consideration of whether the number of takes is ``small'' and 
the negligible impact determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the

[[Page 64087]]

wild by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).
    Authorized takes would be by Level B harassment only, in the form 
of disruption of behavioral patterns for individual marine mammals 
resulting from exposure to motorboats and the presence of NPS 
personnel. Based on the nature of the activity and proposed mitigation 
measures, Level A harassment is neither anticipated nor proposed to be 
authorized. As described previously, no mortality is anticipated or 
proposed to be authorized for this activity. Below we describe how the 
take is estimated.
Glacier Bay
    In GLBA NP, harbor seals may be disturbed when vessels approach or 
researchers go ashore for the purpose of monitoring gull colonies and 
for the maintenance of the Lone Island weather tower. Harbor seals tend 
to haul out in small numbers at study sites. Using monitoring report 
data from 2015 to 2017 (see raw data from Tables 1 of the 2017, 2016 
and 2015 Monitoring Reports, which are available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-research-and-other-activities), the average number 
of harbor seals per survey visit was calculated to estimate the 
approximate number of seals observers would find on any given survey 
day. As a result, the following averages were determined for each 
island: Boulder Island--average 3.45 seals, Flapjack Island--average 
10.10 seals, Geikie Rock--average 9.58 seals, and Lone Island average 
of 18.91 seals (See Table 5). Estimated take for gull and climate 
monitoring was calculated by multiplying the average number of seals 
observed during past gull monitoring surveys (2015-2017) by the number 
of total site visits. This includes five annual visits to Boulder 
Island, Flapjack Island, and Geikie Rock and eight annual visits to 
Lone Island (to include three site visits for climate monitoring 
activities). Therefore, the total estimated annual incidents of 
harassment equals 267 which totals to 1,335 takes during the entire 
five years of the proposed activities (See Table 5).
    During climate monitoring, which is expected to take place from 
March to April and October to February, seal numbers are expected to 
dramatically decline within the action area. Although harbor seal 
survey data within GLBA NP is lacking for the months of October through 
February, results from satellite telemetry studies suggest that harbor 
seals travel extensively beyond the boundaries of GLBA NP during the 
post-breeding season (September-April) (Womble and Gende, 2013b). 
Therefore, using the latest observation data from past gull monitoring 
activities (that occurred from May to September) is applicable when 
estimating take for climate monitoring activities, as it will provide 
the most conservative estimates.

          Table 5--Proposed Takes by Level B Harassment During NPS Gull and Climate Monitoring Surveys
----------------------------------------------------------------------------------------------------------------
                                                                     Number of    Proposed Level
       Site proposed for survey          Average number of seals   proposed site   B harassment    Percentage of
                                         observed per visit \1\       visits            \1\       population \3\
----------------------------------------------------------------------------------------------------------------
Boulder Island........................  3.45 seals..............               5           17.27            0.24
Flapjack Island.......................  10.10 seals.............               5           50.50            0.70
Geikie Rock...........................  9.58 seals..............               5           47.92            0.66
Lone Island...........................  18.91 seals.............           \2\ 8          151.27            2.10
                                                                 -----------------------------------------------
    Annual Total......................  ........................  ..............             267            3.70
----------------------------------------------------------------------------------------------------------------
\1\ Data from 2015-2017 NPS gull surveys (NPS 2015b; NPS 2016; NPS 2017).
\2\ Number includes three additional days for climate monitoring activities.
\3\ Based on the percentage of the Glacier Bay/Icy Strait stock of harbor seals that are proposed to be taken by
  Level B harassment during the NPS's proposed gull and climate monitoring activities.

SWAN
    Harbor seals and Steller sea lions may be disturbed by vessel 
presence, movement, or noise during the execution of SWAN's survey 
transects. The estimated number of takes by Level B harassment included 
in Table 6 are based on numbers of pinnipeds observed from a similar 
survey of KATM and KEFJ in 2013. In this survey, researchers observed 
an estimated 100 harbor seals and 100 Steller sea lions during each of 
the KATM and KEFJ surveys. Data from 2013 surveys were used to estimate 
take because in 2013, most of the transects were able to be completed. 
Thus, 2013 data offers the most conservative count-based estimate. 
Based on pinnipeds observed in 2013, NPS estimates that each year, 
across the three survey sites, SWAN's activities will result in take by 
Level B harassment of 300 harbor seals and 200 Steller sea lions. The 
observed number of harbor seals has been increased by 100 to account 
for the previously not surveyed KBAY, resulting in an estimated 1500 
harbor seal and 1000 Steller sea lion takes by Level B harassment 
across the five years. For harbor seals, NPS estimates that 100 
individuals will experience take by Level B harassment in each survey 
area each year. Annually, that would mean 200 harbor seal takes by 
Level B harassment in the Cook Inlet/Shelikof Strait stock (1000 over 5 
years), and 100 harbor seal takes by Level B harassment from the Prince 
William Sound stock (500 over 5 years). For Steller sea lion takes by 
Level B harassment, NPS estimates that 100 individuals will experience 
take by Level B harassment each year in KATM and KEFJ. However, no 
takes by Level B harassment will occur in KBAY because Steller sea 
lions are not common in KBAY. For simplicity, NMFS assumes and analyzes 
the impacts of the full Steller sea lion take on both the eastern and 
western stocks. Because these estimates are based on observations of 
pinnipeds and not harassments, NMFS considers the estimated numbers of 
take by Level B harassment presented in Table 6 conservative.
---------------------------------------------------------------------------

    \1\ See Table 3 for NMFS' three-point scale that categorizes 
pinniped disturbance reactions by severity. NMFS only considers 
responses falling into Levels 2 and 3 as harassment (Level B Take) 
under the MMPA.

[[Page 64088]]



         Table 6--Proposed Takes by Level B Harassment Due to SWAN's Research and Monitoring Activities
----------------------------------------------------------------------------------------------------------------
                                                                                                   Percentage of
                                                                  Proposed Level   Total Level B    population
                Species                           Stock               B take        takes in 5      over 1 year
                                                                     (annual)          years          \1\ (%)
----------------------------------------------------------------------------------------------------------------
Harbor seal...........................  Cook Inlet/Shelikof                  200           1,000             0.7
                                         Strait.
                                        Prince William Sound....             100             500             0.3
Steller sea lion......................  Western.................         \2\ 200       \2\ 1,000         \2\ 0.4
                                        Eastern.................         \2\ 200       \2\ 1,000         \2\ 0.5
----------------------------------------------------------------------------------------------------------------
\1\ Based on the population size of each relevant stock as presented in Table 1.
\2\ NMFS is only proposing to authorize 200 annual (1000 over 5 years) takes by Level B harassment for Steller
  sea lions, but is analyzing this take as fully coming from each of the U.S. Steller sea lion stocks.

Effects of Specified Activities on Subsistence Uses of Marine Mammals

    The availability of the affected marine mammal stocks or species 
for subsistence uses may be impacted by this activity, though this is 
not an anticipated outcome. The subsistence uses that may be affected 
and the potential impacts of the activity on those uses are described 
below. Measures included in these proposed regulations to reduce the 
impacts of the activity on subsistence uses are identical to those 
which minimize disturbance of pinnipeds as described in the Proposed 
Mitigation section. Last, the information from this section and the 
Proposed Mitigation section is analyzed to determine whether the 
necessary findings may be made in the Unmitigable Adverse Impact 
Analysis and Determination section.
    Subsistence harvest of pinnipeds is prohibited in GLBA NP, KATM, 
and KEFJ but it does occur in nearby areas outside park boundaries. 
Native communities near KBAY, including Homer, Seldovia, Nanwalek, and 
Port Graham harvested an estimated 32 harbor seals and 3 Steller sea 
lions in 2007 (Wolfe et al. 2009). It is not known exactly where these 
pinnipeds were harvested but some of them could potentially have been 
harvested in KBAY. 2007 harvest of both Steller sea lions and harbor 
seals was at a low point in June and July when SWAN's surveys would 
occur in KBAY. Additionally, the disturbance to pinnipeds caused by 
NPS's activities is limited to non-lethal take by Level B harassment 
and is temporary and short in duration. Because the subsistence harvest 
is separated in time and space from NPS's proposed activities, and the 
disturbance should not result in anything other than short term 
(minutes to hours) avoidance of haulouts, there should be no impacts on 
subsistence harvest.

Proposed Mitigation

    In order to issue an incidental take authorization (ITA) under 
section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible 
methods of taking pursuant to such activity, ``and other means of 
effecting the least practicable impact on such species or stock and its 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance, and on the availability of such species 
or stock for taking'' for certain subsistence uses. NMFS regulations 
require applicants for ITAs 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 on 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 of 
implementing 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.

Glacier Bay

    NPS has based the mitigation measures which they propose to 
implement during the proposed research, on the following: (1) Protocols 
used during previous gull research activities as required by our 
previous authorizations for these activities; and (2) recommended best 
practices in Womble et al. (2013a); Richardson et al. (1995); and Weir 
and Dolman (2007).
    To reduce the potential for disturbance from acoustic and visual 
stimuli associated with gull and climate monitoring activities within 
GBLA NP, NPS has proposed to implement the following mitigation 
measures for marine mammals:
Pre-Survey Monitoring
    Before all surveys, the lead NPS biologist will instruct additional 
survey crew on appropriate conduct when in the vicinity of hauled-out 
marine mammals. This training shall brief survey personnel on marine 
mammals (inclusive of identification as needed, e.g., neonates). Prior 
to deciding to land onshore to conduct gull and climate monitoring, the 
researchers would use high-powered image stabilizing binoculars from 
the watercraft to document the number, species, and location of hauled-
out marine mammals at each island. The vessels would maintain a 
distance of 328 to 1,640 ft (100 to 500 m) from the shoreline to allow 
the researchers to conduct pre-survey monitoring. If offshore 
predators, harbor seal pups of less than one week of age (i.e., 
neonates), or Steller sea lions are observed, researchers will follow 
the protocols for site avoidance discussed below. If neither of these 
instances occur, researchers will then perform a controlled landing on 
the survey site.
Site Avoidance
    If a harbor seal pup less than one week old (i.e,. neonates) or a 
harbor seal predator (i.e., killer whale) is observed near or within 
the action area, researchers will not go ashore to conduct gull or 
climate monitoring activities. Also, if Steller sea lions are observed 
within or near the study site, researchers will maintain a distance of

[[Page 64089]]

at least 100 m from the animals at all times.
Controlled Landings
    The researchers would determine whether to approach an island study 
site based on type of animals present. Researchers would approach the 
island by motorboat at a speed of approximately 2 to 3 kn (2.3 to 3.4 
mph). This would provide enough time for any marine mammals present to 
slowly enter the water without panic (flushing). The researchers would 
also select a pathway of approach farthest from the hauled-out harbor 
seals to minimize disturbance.
Minimize Predator Interactions
    During pre-survey monitoring on approach to a site, NPS will 
observe the surrounding area for predators. If the researchers visually 
observe marine predators (i.e., killer whales) present within a one 
mile radius of hauled-out marine mammals, the researchers would not 
approach the study site.
Disturbance Reduction Protocols
    While onshore at study sites, the researchers would remain vigilant 
for hauled-out marine mammals. If marine mammals are present, the 
researchers would move slowly and use quiet voices to minimize 
disturbance to the animals present.
Whale Avoidance
    Although humpback whales and killer whales are not expected to be 
impacted by the proposed activities at GLBA NP, avoidance measures will 
be taken if humpback whales or killer whales are observed. Based on 
regulations (81 FR 62018; September 8, 2016), NPS will avoid operation 
of a motor vessel within \1/4\ nautical mile of a whale. If 
accidentally positioned within \1/4\ nautical mile of a whale, 
researchers will slow the vessel speed to 10 knots or less and maintain 
course away from the whale until at least \1/4\ nautical mile of 
separation exists.
SWAN
    NPS has based the mitigation measures which they propose to 
implement at SWAN on the following: (1) Protocols used during previous 
authorizations for similar GLBA NP research; (2) recommended best 
practices in Womble et al. (2013a); Richardson et al. (1995); and Weir 
and Dolman (2007); and (3) experience of SWAN researchers in previous 
surveys.
    To reduce the potential for disturbance from acoustic and visual 
stimuli associated with SWAN's surveys, NPS has proposed to implement 
the following mitigation measures for marine mammals:
Disturbance Reduction Protocols
    While surveying study sites, the researchers will maintain a vessel 
distance of 100 to 150 m from shorelines at all times. If hauled out 
Steller sea lions and harbor seals are observed, the survey would 
maintain speed and minimum distance from the haulout to avoid 
startling. Additionally the survey will be attempted from a distance 
greater than 150 m, if conditions allow proper execution of the survey 
at that distance.
Rookery Avoidance
    SWAN will avoid transects that pass known Steller sea lion rookery 
beaches in order to minimize disturbance of these rookeries and the 
surrounding critical habitat.
Whale Avoidance
    Although humpback and beluga whales are not expected to be impacted 
by SWAN's proposed work, avoidance measures will be taken if these 
species are observed. Based on regulations (81 FR 62018; September 8, 
2016), SWAN will avoid operation of a motor vessel within \1/4\ mile of 
a whale. If accidentally positioned within \1/4\ nautical mile of a 
whale, researchers will slow the vessel speed to 10 knots or less and 
maintain course away from the whale until at least \1/4\ nautical mile 
of separation exists.

Mitigation Conclusions

    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed 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, areas of similar significance, and on the availability 
of such species or stock for subsistence uses.

Proposed Monitoring and Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
proposed action area. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.

SWAN

    NPS proposes to conduct marine mammal monitoring during the SWAN 
activities, in order to implement the mitigation measures that require 
real-time monitoring and to gain a better understanding of marine 
mammals and their impacts to the project's activities. Because the 
activity is a survey of marine birds and mammals in the area, 
researchers will naturally be monitoring the area for pinnipeds or 
other marine mammals during all activities. Monitoring activities will 
consist of conducting and recording observations of pinnipeds within 
the vicinity of the proposed research areas. The monitoring notes would 
provide dates, transect location, species, numbers of animals present 
within the transect, and numbers of pinnipeds that flushed into the 
water.

[[Page 64090]]

    The method for recording disturbances follows those in Mortenson 
(1996). For NPS' activities in the SWAN region, pinniped disturbances 
would be based on a three-point scale that represents an increasing 
response to the disturbance (Table 3). Because SWAN surveys are 
conducted at speed, researchers will be able to record the total number 
of each pinniped species observed and the number of Level 3 (Flushing) 
responses that occur, but not other, less noticeable disturbance 
responses.
    SWAN does not have previous monitoring aimed specifically at 
recording and quantifying marine mammal disturbance. Similarity between 
the GLBA NP and SWAN proposed activities for this proposed rule suggest 
mitigation measures based on relevant portions of previous GLBA NP 
authorizations will provide the means of effecting the least 
practicable impact on the species or stock in the SWAN activity.

GLBA NP

    NPS proposes to conduct marine mammal monitoring during the present 
GLBA NP project, in order to implement the mitigation measures that 
require real-time monitoring and to gain a better understanding of 
marine mammals and their impacts to the project's activities. In 
addition, NPS's monitoring plan is guiding additional monitoring effort 
designed to answer questions of interest regarding pinniped usage of 
GLBA NP haulouts and the effects of NPS's activity on these local 
populations. The researchers will monitor the area for pinnipeds during 
all research activities. Monitoring activities will consist of 
conducting and recording observations of pinnipeds within the vicinity 
of the proposed research areas. The monitoring notes would provide 
dates, location, species, the researcher's activity, behavioral state, 
numbers of animals that were alert or moved greater than one meter, and 
numbers of pinnipeds that flushed into the water.
    The method for recording disturbances follows those in Mortenson 
(1996). NPS activities in GLBA NP would record pinniped disturbances on 
a three-point scale that represents an increasing response to the 
disturbance (Table 3). Both a level 2 and level 3 response would be 
recorded as a take by Level B harassment. NPS will record the time, 
source, and duration of the disturbance, as well as an estimated 
distance between the source and haulout.
Previous Monitoring Results
    NPS has complied with the monitoring requirements under the 
previous GLBA NP authorizations. NMFS posted the 2017 report on our 
website at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-research-and-other-activities 
and the results from the previous NPS monitoring reports support our 
findings that the mitigation measures required under the 2014--2017 
Authorizations provide the means of effecting the least practicable 
impact on the species or stock in the GLBA NP activity. During the last 
3 years of GLBA NP activity, approximately a third of all observed 
harbor seals have flushed in response to these activities (37 percent 
in 2015, 37 percent in 2016, and 38 percent in 2017). The following 
narratives provide a detailed account of each of the past 3 years of 
monitoring for the GLBA NP activity (Summarized in Table 7):
    In 2017, of the 86 harbor seals that were observed: 33 flushed in 
to the water, 0 became alert but did not move >1 m, and 0 moved >1 m 
but did not flush into the water. In all, no harbor seal pups were 
observed. On two occasions, harbor seals were flushed into the water 
when islands were accessed for gull surveys. In these instances, the 
vessel approached the island at a very slow speed and most of the 
harbor seals flushed into the water at approximately 150--185 m. On two 
events, harbor seals were observed hauled out on Boulder Island and not 
disturbed due to their distance from the survey area. In addition, 
during two pre-monitoring surveys conducted for Lone Island, harbor 
seals were observed hauled out and the survey was not conducted to 
prevent disturbance of harbor seals.
    In 2016, of the 216 harbor seals that were observed: 77 Flushed in 
to the water; 3 became alert but did not move >1 m, and 17 moved >1 m 
but did not flush into the water. On five occasions, harbor seals were 
flushed into the water when islands were accessed for gull surveys. In 
these instances, the vessel approached the island at a very slow speed 
and most of the harbor seals flushed into the water at approximately 
50-100 m. In four instances, fewer than 25 harbor seals were present, 
but in one instance, 41 harbor seals were observed flushing into the 
water when NPS first saw them as they rounded a point of land in kayaks 
accessing Flapjack Island. In five instances, harbor seals were 
observed hauled out and not disturbed due to their distance from the 
survey areas.
    In 2015, of the 156 harbor seals that were observed: 57 Flushed in 
to the water; 25 became alert but did not move >1 m, and 0 moved >1 m 
but did not flush into the water. No pups were observed. On 2 
occasions, harbor seals were observed at the study sites in numbers <25 
and the islands were accessed for gull surveys. In these instances, the 
vessel approached the island at very slow speed and most of the harbor 
seals flushed into water at approximately 200 m (Geikie 8/5/15) and 280 
m (Lone, 8/5/15). In one instance, (Lone, 6/11/15) NPS counted 20 
harbor seals hauled out during the initial vessel-based monitoring, but 
once on the island, NPS observed 33 hauled out seals. When NPS realized 
the number of seals present, they ceased the survey and left the area, 
flushing 13 seals into the water.

                                       Table 7--Summary Table of 2015-2017 Monitoring Reports for NPS Gull Studies
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                         Number of                                                                      Level B take      Level B take
           Monitoring year                adults      Number of pups   Flushed into   Moved >1 m but   Alert but did   authorized for    recorded during
                                         observed        observed          water       did not flush   not move >1 m      activity         activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
2017................................              86               0              33               0               0               218                33
2016................................             216               1              77               3              17               500                80
2015................................             156               0              57               0              25               500                57
--------------------------------------------------------------------------------------------------------------------------------------------------------

Coordination

    NPS can add to the knowledge of pinnipeds in the proposed action 
area by noting observations of: (1) Unusual behaviors, numbers, or 
distributions of pinnipeds, such that any potential follow-up research 
can be conducted by the appropriate personnel; (2) tag-bearing 
carcasses of pinnipeds, allowing transmittal of the information to 
appropriate agencies and personnel; and

[[Page 64091]]

(3) rare or unusual species of marine mammals for agency follow-up.
Glacier Bay
    NPS actively monitors harbor seals at breeding and molting haulout 
locations to assess trends over time (e.g., Mathews & Pendleton, 2006; 
Womble et al. 2010, Womble and Gende, 2013b). NPS's monitoring plan is 
guiding additional monitoring effort designed to answer questions of 
interest regarding pinniped usage of GLBA NP haulouts and the effects 
of NPS's activity on these local populations. This monitoring program 
involves collaborations with biologists from the Alaska Department of 
Fish and Game, and the NMFS Alaska Fisheries Science Center. NPS will 
continue these collaborations and encourage continued or renewed 
monitoring of marine mammal species. NPS will coordinate with state and 
Federal marine mammal biologists to determine what additional data or 
observations may be useful for monitoring marine mammals and haulouts 
in GLBA NP. Additionally, NPS would report vessel-based counts of 
marine mammals, branded, or injured animals, and all observed 
disturbances to the appropriate state and Federal agencies.
SWAN
    NPS is establishing a monitoring program for pinnipeds in the SWAN 
region through its marine bird and marine mammal surveys. NPS will also 
coordinate with state and Federal marine mammal biologists to determine 
what additional data or observations may be useful for monitoring 
marine mammals and haul outs in the SWAN survey areas.
    SWAN has been conducting nearshore coastal surveys along the KATM 
and KEFJ since 2006 and 2007, respectively (Coletti et al., 2018). SWAN 
collaborates closely with U.S. Geological Survey, U.S. Fish and 
Wildlife Service, the University of Alaska Fairbanks and others under 
the Gulf Watch Alaska (https://www.gulfwatchalaska.org/) program, 
primarily funded by the Exxon Valdez Oil Spill Trustee Council. SWAN 
will continue these collaborations and encourage continued or renewed 
monitoring of marine mammal species. Additionally, NPS will report 
vessel-based counts of marine mammals, branded or injured animals, and 
all observed disturbances to state and Federal agencies.

Reporting

    SWAN and GLBA NP are each required to submit separate draft annual 
reports on all activities and marine mammal monitoring results to NMFS 
within ninety days following the end of its monitoring period. These 
reports will include a summary of the information gathered pursuant to 
the monitoring requirements set forth in the Authorization. SWAN and 
GLBA NP will submit final reports to NMFS within 30 days after 
receiving comments on the draft report. If SWAN or GLBA NP receive no 
comments from NMFS on the report, NMFS will consider the draft report 
to be the final report. NPS will also submit a comprehensive 5-year 
report covering all activities conducted under the incidental take 
regulations 90 days following expiration of these regulations or, if 
new regulations are sought, no later than 90 days prior to expiration 
of the regulations.
    Each report will describe the operations conducted and sightings of 
marine mammals near the proposed project. The report will provide full 
documentation of methods, results, and interpretation pertaining to all 
monitoring. The report will provide:
    1. A summary and table of the dates, times, and weather during all 
research activities;
    2. Species, number, location, and behavior of any marine mammals 
observed throughout all monitoring activities;
    3. An estimate of the number (by species) of marine mammals exposed 
to acoustic or visual stimuli associated with the research activities; 
and
    4. A description of the implementation and effectiveness of the 
monitoring and mitigation measures of the Authorization 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., vessel-strike, stampede, etc.), NPS shall 
immediately cease the specified activities and immediately report the 
incident to the Office of Protected Resources, NMFS and the Alaska 
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 tide 
level 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).
    NPS shall not resume its activities until NMFS is able to review 
the circumstances of the prohibited take. NMFS will work with NPS to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. NPS may not resume their 
activities until notified by us via letter, email, or telephone.
    In the event that NPS discovers an injured or dead marine mammal, 
and the lead researcher 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), NPS will immediately report the incident to the Office of 
Protected Resources, NMFS and the Alaska Regional Stranding 
Coordinator. The report must include the same information identified in 
the paragraph above. Activities may continue while we review the 
circumstances of the incident. We will work with NPS to determine 
whether modifications in the activities are appropriate.
    In the event that NPS 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), NPS will report the incident to 
the incident to the Office of Protected Resources, NMFS and the Alaska 
Regional Stranding Coordinator within 24 hours of the discovery. NPS 
researchers will provide photographs or video footage (if available) or 
other documentation of the stranded animal sighting to us. NPS can 
continue their research activities.

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

[[Page 64092]]

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).
    During these activities, harbor seals and Steller sea lions may 
exhibit behavioral modifications, including temporarily vacating the 
area during the proposed research and monitoring activities to avoid 
human and vessel disturbance. However, due to the project's minimal 
levels of visual and acoustic disturbance (Level B harassment only), 
NMFS does not expect NPS's specified activities to cause long-term 
behavioral disturbance, abandonment of the haulout area, injury, 
serious injury, or mortality. In addition, while a portion of these 
proposed activities would take place in areas of significance for 
marine mammal feeding, resting, breeding, or pupping, there would be no 
adverse impacts on marine mammal habitat as discussed above. Due to the 
nature, degree, and context of the behavioral harassment anticipated, 
we do not expect the activities to impact annual rates of recruitment 
or survival.
    NMFS does not expect pinnipeds to permanently abandon any area 
surveyed by NPS researchers, as is evidenced by continued presence of 
pinnipeds at the GLBA NP sites during annual gull and climate 
monitoring. NMFS anticipates that impacts to hauled-out harbor seals 
and Steller sea lions during NPS' research and monitoring activities 
would be behavioral harassment of limited duration (i.e., up to two 
hours per site visit) and limited intensity (i.e., temporary flushing 
at most).
    In summary and as described above, the following factors primarily 
support our preliminary determination that the impacts resulting from 
this activity are not expected to adversely affect the species or stock 
through effects on annual rates of recruitment or survival:
     No mortality is anticipated or authorized;
     The takes from Level B harassment would be due to 
potential behavioral disturbance;
     The effects of the research activities would be limited to 
short-term startle responses and localized behavioral changes due to 
the short and sporadic duration of the research activities;
     The proposed activities would partially take place in 
areas of significance for marine mammal feeding, resting, breeding, or 
pupping but due to their nature and duration would not adversely impact 
marine mammal habitat or deny pinnipeds access to this habitat because 
of the large availability of alternate haulouts and short-duration of 
disturbance;
     Anecdotal observations and results from previous 
monitoring reports show that the pinnipeds returned to the various 
sites and did not permanently abandon haulout sites after NPS conducted 
their research activities; and
     Harbor seals and Steller sea lions may flush into the 
water despite researchers best efforts to keep calm and quiet around 
these pinnipeds; however, injury or mortality has never been documented 
and is not anticipated from flushing events. GLBA NP researchers would 
approach study sites slowly to provide enough time for any marine 
mammals present to slowly enter the water without panic. SWAN 
researchers would attempt to conduct their surveys at a distance which 
would not result in pinniped disturbance.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed activity will have a negligible impact on 
all affected marine mammal species or stocks.

Small Numbers Analysis

    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 proposed to be 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.
    As mentioned previously, NMFS estimates that NPS' research 
activities, including gull monitoring, climate monitoring, and marine 
animal surveys, could potentially affect, by Level B harassment only, 
two species of marine mammal under our jurisdiction. For harbor seals, 
this annual take estimate is small relative to the three impacted 
stocks, ranging from 0.3 to 3.7 percent (See Table 1, Table 5, and 
Table 6). For Steller sea lions, this annual take estimate is small 
(200 sea lions) relative to the western stock (0.4 percent) or eastern 
stock (0.5 percent). In addition to this, there is a high probability 
in the GLBA NP activities that repetitive takes of the same animal may 
occur which reduces the percentage of population impacted even further.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals will be taken relative to the population size 
of the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by the specified activities in GLBA NP, KATM, or KEFJ. Subsistence 
harvest is prohibited in these national parks and the nature of the 
activities means they should not affect any harvest occurring in nearby 
waters. There is possible pinniped harvest in KBAY, but the timing of 
the survey is removed from the peak seasons of harvest. Additionally, 
the disturbance to pinnipeds caused by NPS's activities is limited to 
non-lethal take by Level B harassment and is temporary and short in 
duration. Therefore, we have preliminarily 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)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of

[[Page 64093]]

incidental take regulations and subsequent LOAs, NMFS consults 
internally, in this case with the Alaska Regional Office, whenever we 
propose to authorize take for endangered or threatened species.
    NMFS is proposing to authorize take of western DPS Steller sea 
lions, which are listed under the ESA.
    NMFS's Office of Protected Resources has requested initiation of 
Section 7 consultation with NMFS's Alaska Regional Office for the 
issuance of this LOA. NMFS will conclude the ESA consultation prior to 
reaching a determination regarding the proposed issuance of the 
authorization.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
NPS research and monitoring activities in GLBA NP and SWAN region would 
contain an adaptive management component.
    The reporting requirements associated with this proposed rule are 
designed to provide NMFS with monitoring data from the previous year to 
allow consideration of whether any changes are appropriate. The use of 
adaptive management allows NMFS to consider new information from 
different sources to determine (with input from NPS regarding 
practicability) on an annual or biennial basis if mitigation or 
monitoring measures should be modified (including additions or 
deletions). Mitigation measures could be modified if new data suggests 
that such modifications would have a reasonable likelihood of reducing 
adverse effects to marine mammals and if the measures are practicable.
    NPS's monitoring program (see ``Proposed Monitoring and 
Reporting'') would be managed adaptively. Changes to the proposed 
monitoring program may be adopted if they are reasonably likely to 
better accomplish the MMPA monitoring goals described previously or may 
better answer the specific questions associated with NPS's monitoring 
plan.
    The following are some of the possible sources of applicable data 
to be considered through the adaptive management process: (1) Results 
from monitoring reports, as required by MMPA authorizations; (2) 
results from general marine mammal and sound research; and (3) any 
information which reveals that marine mammals may have been taken in a 
manner, extent, or number not authorized by these regulations or 
subsequent LOAs.

Request for Information

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning NPS's request and the proposed regulations 
(see ADDRESSES). All comments will be reviewed and evaluated as we 
prepare the final rule and make final determinations on whether to 
issue the requested authorizations. This notice and referenced 
documents provide all environmental information relating to our 
proposed action for public review.

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
proposed rule is not significant.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
NPS is the sole entity that would be subject to the requirements in 
these proposed regulations, and the NPS is not a small governmental 
jurisdiction, small organization, or small business, as defined by the 
RFA. Because of this certification, a regulatory flexibility analysis 
is not required and none has been prepared.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act (PRA) unless that collection of information 
displays a currently valid OMB control number. However, this proposed 
rule does not contain a collection-of-information requirement subject 
to the provisions of the Paperwork Reduction Act (PRA) because the 
applicant is a Federal agency, and the information is not ``uses for 
general statistical purposes''. 44 U.S.C. 3502(3)(A).

List of Subjects in 50 CFR Part 217

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

    Dated: December 4, 2018.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 217--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

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

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

0
2. Add subpart C to part 217 to read as follows:

Subpart C--Taking Marine Mammals Incidental to Research and 
Monitoring in Southern Alaska National Parks

Sec.
217.20 Specified activity and specified geographical region.
217.21 Effective dates.
217.22 Permissible methods of taking.
217.23 Prohibitions.
217.24 Mitigation requirements.
217.25 Requirements for monitoring and reporting.
217.26 Letters of Authorization.
217.27 Renewals and modifications of Letters of Authorization.
217.28 [Reserved]
217.29 [Reserved]


Sec.  217.20  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the National Park 
Service (NPS) and those persons it authorizes or funds to conduct 
activities on its behalf for the taking of marine mammals that occurs 
in the area outlined in paragraph (b) of this section and that occurs 
incidental to the NPS's research and monitoring activities listed in 
the Letter of Authorization (LOA).
    (b) The taking of marine mammals by NPS may be authorized in an LOA 
only if it occurs at Glacier Bay National Park (GLBA NP) or in the 
NPS's Southwest Alaska Inventory and Monitoring Network (SWAN) sites.


Sec.  217.21   Effective dates.

    Regulations in this subpart are effective from March 1, 2019 
through February 29, 2024.


Sec.  217.22  Permissible methods of taking.

    Under LOAs issued pursuant to Sec. Sec.  216.106 of this chapter 
and 217.26, the Holder of the LOA (hereinafter ``NPS'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  217.20(b) by Level B harassment associated with 
research and monitoring activities,

[[Page 64094]]

provided the activity is in compliance with all terms, conditions, and 
requirements of the regulations in this subpart and the appropriate 
LOA.


Sec.  217.23  Prohibitions.

    Notwithstanding takings contemplated in Sec.  217.20 and authorized 
by an LOA issued under Sec. Sec.  216.106 of this chapter and 217.26, 
no person in connection with the activities described in Sec.  217.20 
may:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or an LOA issued under Sec. Sec.  216.106 
of this chapter and 217.26;
    (b) Take any marine mammal not specified in such LOAs;
    (c) Take any marine mammal specified in such LOAs in any manner 
other than as specified;
    (d) Take a marine mammal specified in such LOAs if NMFS determines 
such taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (e) Take a marine mammal specified in such LOAs if NMFS determines 
such taking results in an unmitigable adverse impact on the species or 
stock of such marine mammal for taking for subsistence uses.


Sec.  217.24  Mitigation requirements.

    When conducting the activities identified in Sec.  217.20(a), the 
mitigation measures contained in any LOA issued under Sec.  216.106 of 
this chapter and Sec.  217.24 must be implemented. These mitigation 
measures shall include but are not limited to:
    (a) General conditions: (1) A copy of any issued LOA must be in the 
possession of NPS, its designees, and additional survey crew personnel 
operating under the authority of the issued LOA.
    (2) Before all surveys, the lead NPS biologist must instruct 
additional survey crew on appropriate conduct when in the vicinity of 
hauled-out marine mammals. This training must brief survey personnel on 
marine mammals (inclusive of identification as needed, e.g., neonates).
    (3) If humpback whales, killer whales, or beluga whales are 
observed, NPS must avoid operation of a motor vessel within \1/4\ 
nautical mile of a whale. If accidentally positioned within \1/4\ 
nautical mile of a whale, NPS must slow the vessel speed to 10 knots or 
less and maintain course away from the whale until at least \1/4\ 
nautical mile of separation exists.
    (b) Glacier Bay Gull and Climate Monitoring. (1) On an annual 
basis, NPS may conduct a maximum of five days of gull monitoring for 
each survey location listed in the LOA.
    (2) On an annual basis, the NPS may conduct a maximum of three days 
of activities related to climate monitoring on Lone Island.
    (3) NPS is required to conduct pre-survey monitoring before 
deciding to access a study site.
    (4) Prior to deciding to land onshore, NPS must use high-powered 
image stabilizing binoculars before approaching at distances of greater 
than 500 m (1,640 ft) to determine and document the number, species, 
and location of hauled-out marine mammals.
    (5) During pre-survey monitoring, vessels must maintain a distance 
of 328 to 1,640 ft (100 to 500 m) from the shoreline.
    (6) If a harbor seal pup less than one week of age (neonate) is 
present within or near a study site or a path to a study site, NPS must 
not access the site nor conduct the study at that time. In addition, if 
during the activity, a pup less than one week of age is observed, all 
research activities must conclude for the day.
    (7) NPS must maintain a distance of at least 100 m from any Steller 
sea lion;
    (8) NPS must perform controlled and slow ingress to islands where 
harbor seals are present.
    (9) NPS must monitor for offshore predators at the study sites 
during pre-survey monitoring and must avoid research activities when 
killer whales (Orcinus orca) or other predators are observed within a 1 
mile radius.
    (10) NPS must maintain a quiet working atmosphere, avoid loud 
noises, and must use hushed voices in the presence of hauled-out 
pinnipeds.
    (c) SWAN Marine bird and mammal surveys. (1) On an annual basis, 
NPS may conduct one summer survey at each location listed in the LOA.
    (2) On an annual basis, the NPS may conduct one winter survey at 
each location listed in the LOA.
    (3) NPS must maintain a minimum vessel distance of 100 meters from 
the shoreline at all times while surveying.
    (4) If hauled out Steller sea lions or harbor seals are observed, 
NPS must maintain the vessel speed and minimum distance. If survey 
conditions allow, the survey will be attempted from a distance greater 
than 150 meters.


Sec.  217.25   Requirements for monitoring and reporting.

    NPS is required to conduct marine mammal monitoring during research 
and monitoring activities. NPS and/or its designees must record the 
following for the designated monitoring activity:
    (a) Glacier Bay Gull and Climate Monitoring. (1) Species counts 
(with numbers of adults/juveniles); and numbers of disturbances, by 
species and age, according to a three-point scale of intensity;
    (2) Information on the weather, including the tidal state and 
horizontal visibility;
    (3) The observer will note the presence of any offshore predators 
(date, time, number, and species); and
    (4) The observer will note unusual behaviors, numbers, or 
distributions of pinnipeds, such that any potential follow-up research 
can be conducted by the appropriate personnel; marked or tag-bearing 
pinnipeds or carcasses, allowing transmittal of the information to 
appropriate agencies; and any rare or unusual species of marine mammal 
for agency follow-up. The observer will report that information to 
NMFS's Alaska Fisheries Science Center and/or the Alaska Department of 
Fish and Game Marine Mammal Program.
    (b) SWAN Marine Bird and Mammal Surveying. (1) Species counts and 
numbers of type 3, flushing, disturbances;
    (2) Information on the weather, including the tidal state and 
horizontal visibility; and
    (3) The observer will note unusual behaviors, numbers, or 
distributions of pinnipeds, such that any potential follow-up research 
can be conducted by the appropriate personnel; marked or tag-bearing 
pinnipeds or carcasses, allowing transmittal of the information to 
appropriate agencies; and any rare or unusual species of marine mammal 
for agency follow-up. The observer will report that information to 
NMFS's Alaska Fisheries Science Center and/or the Alaska Department of 
Fish and Game Marine Mammal Program.
    (c) NPS must submit separate annual draft reports for GLBA NP and 
SWAN on all monitoring conducted within ninety calendar days of the 
completion of annual research and monitoring activities. Final reports 
for both GLBA NP and SWAN must be prepared and submitted within thirty 
days following resolution of comments on each draft report from NMFS. 
This report must contain:
    (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 acoustic or visual stimuli associated with the research 
activities; and
    (4) A description of the implementation and effectiveness of the 
monitoring and mitigation measures of

[[Page 64095]]

the Authorization and full documentation of methods, results, and 
interpretation pertaining to all monitoring.
    (d) NPS must submit a comprehensive 5-year report covering all 
activities conducted under the incidental take regulations at least 90 
days prior to expiration of these regulations if new regulations are 
sought or 90 days after expiration of regulations.
    (e) Reporting of injured or dead marine mammals. (1) In the 
unanticipated event that the activity defined in Sec.  219.20(a) 
clearly causes the take of a marine mammal in a prohibited manner such 
as an injury (Level A harassment), serious injury, or mortality, NPS 
must immediately cease the specified activities and report the incident 
to the Office of Protected Resources, NMFS, and the Alaska Regional 
Stranding Coordinator, NMFS. The report must include the following 
information:
    (i) Time and date of the incident;
    (ii) Description of the incident;
    (iii) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    (iv) Description of all marine mammal observations and active sound 
source use in the 24 hours preceding the incident;
    (v) Species identification or description of the animal(s) 
involved;
    (vi) Fate of the animal(s); and
    (vii) Photographs or video footage of the animal(s).
    (2) Activities must not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with NPS to 
determine what measures are necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. NPS must not resume 
their activities until notified by NMFS.
    (3) In the event that NPS discovers an injured or dead marine 
mammal, and the lead observer determines that the cause of the injury 
or death is unknown and the death is relatively recent (e.g., in less 
than a moderate state of decomposition), NPS must immediately report 
the incident to the Office of Protected Resources, NMFS, and the Alaska 
Stranding Coordinator, NMFS. The report must include the same 
information identified in Sec.  217.25(e)(1). Activities may continue 
while NMFS reviews the circumstances of the incident. NMFS will work 
with NPS to determine whether additional mitigation measures or 
modifications to the activities are appropriate.
    (4) In the event that NPS discovers an injured or dead marine 
mammal and determines that the injury or death is not associated with 
or related to the activities defined in Sec.  217.20(a) (e.g., 
previously wounded animal, carcass with moderate to advanced 
decomposition, scavenger damage), NPS must report the incident to OPR 
and the Alaska Stranding Coordinator, NMFS, within 24 hours of the 
discovery. NPS must provide photographs or video footage or other 
documentation of the stranded animal sighting to NMFS. NPS can continue 
their research activities.
    (5) Pursuant to paragraphs Sec.  217.25(e)(2) through (4), NPS may 
use discretion in determining what injuries (i.e., nature and severity) 
are appropriate for reporting. At minimum, NPS must report those 
injuries considered to be serious (i.e., will likely result in death) 
or that are likely caused by human interaction (e.g., entanglement, 
gunshot). Also pursuant to paragraphs Sec.  217.25(e)(3) and (4) of 
this section, NPS may use discretion in determining the appropriate 
vantage point for obtaining photographs of injured/dead marine mammals.


Sec.  217.26   Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, NPS must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) If an LOA expires prior to the expiration date of these 
regulations, NPS may apply for and obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, NPS must apply 
for and obtain a modification of the LOA as described in Sec.  217.27.
    (e) The LOA shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA shall be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of an LOA shall be published in 
the Federal Register within 30 days of a determination.


Sec.  217.27   Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec. Sec.  216.106 of this chapter and 
217.26 for the activity identified in Sec.  217.20(a) shall be renewed 
or modified upon request by the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision in paragraph (c)(1) 
of this section), and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For an LOA modification or renewal requests by the applicant 
that include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in paragraph (c)(1) of this section) that do not change the 
findings made for the regulations or result in no more than a minor 
change in the total estimated number of takes (or distribution by 
species or years), NMFS may publish a notice of proposed LOA in the 
Federal Register, including the associated analysis of the change, and 
solicit public comment before issuing the LOA.
    (c) An LOA issued under Sec. Sec.  216.106 of this chapter and 
217.26 for the activity identified in Sec.  217.20(a) may be modified 
by NMFS under the following circumstances:
    (1) Adaptive Management--NMFS may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting with NPS regarding the practicability of the modifications) 
if doing so creates a reasonable likelihood of more effectively 
accomplishing the goals of the mitigation and monitoring set forth in 
the preamble for these regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from NPS's monitoring from the previous year(s).
    (B) Results from other marine mammal research or studies.
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
shall publish a notice of proposed LOA in the Federal Register and 
solicit public comment.
    (2) Emergencies--If NMFS determines that an emergency exists that 
poses a

[[Page 64096]]

significant risk to the well-being of the species or stocks of marine 
mammals specified in LOAs issued pursuant to Sec. Sec.  216.106 of this 
chapter and 217.26, an LOA may be modified without prior notice or 
opportunity for public comment. Notice would be published in the 
Federal Register within thirty days of the action.


Sec.  217.28   [Reserved]


Sec.  217.29   [Reserved]

[FR Doc. 2018-26741 Filed 12-12-18; 8:45 am]
 BILLING CODE 3510-22-P