Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to National Park Service's Research and Monitoring Activities in Southern Alaska National Parks, 8263-8277 [2019-04107]
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III. Statutory and Executive Orders
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this action is
not a ‘‘significant regulatory action’’ and
therefore is not subject to review under
Executive Orders 12866 and 13563 (76
FR 3821, January 21, 2011). This action
is also not subject to Executive Order
13211, ‘‘Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001). This action approves the
state’s negative declaration as meeting
Federal requirements and imposes no
additional requirements beyond those
imposed by state law. Accordingly, the
Administrator certifies that this
rulemaking will not have a significant
economic impact on a substantial
number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.). Because this action does not
impose an enforceable duty upon State,
local, or tribal governments, and does
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requirements applicable to small
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governments, as described in the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4).
This action is not approved to apply
on any Indian reservation land or in any
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has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
This action also does not have
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on the distribution of power and
responsibilities among the various
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Executive Order 13132 (64 FR 43255,
August 10, 1999). Thus Executive Order
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This rulemaking also is not subject to
Executive Order 13045, ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997) because it approves a
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state submission in response to a
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This action does not impose an
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provisions of the Paperwork Reduction
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Burden is defined at 5 CFR 1320.3(b).
List of Subjects in 40 CFR Part 62
Environmental protection, Air
pollution control, Administrative
practice and procedure, sewage sludge
incineration units.
Dated: March 1, 2019.
James Gulliford,
Regional Administrator, Region 7.
For the reasons stated in the
preamble, EPA amends 40 CFR part 62
as set forth below:
PART 62—APPROVAL AND
PROMULGATION OF STATE PLANS
FOR DESIGNATED FACILITIES AND
POLLUTANTS
1. The authority citation for part 62
continues to read as follows:
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Authority: 42 U.S.C. 7401 et seq.
Subpart R—Kansas
2. Amend subpart R by adding an
undesignated center heading and
§ 62.4183 to read as follows:
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Air Emissions From Existing Sewage
Sludge Incineration Units
§ 62.4183 Identification of plan—negative
declaration.
Letter from the Kansas Department of
Health and Environment submitted
April 30, 2018, certifying that there are
no sewage sludge incineration units
subject to 40 CFR part 60, subpart
MMMM.
[FR Doc. 2019–04051 Filed 3–6–19; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 217
[Docket No. 180411364–9092–02]
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.
AGENCY:
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Final rule; issuance of Letters of
Authorization (LOA).
ACTION:
NMFS, upon request from the
National Park Service (NPS), hereby
issues regulations to govern the
unintentional taking of marine
mammals incidental to research and
monitoring activities in southern Alaska
over the course of five years (2019–
2024). These regulations, which allow
for the issuance of Letters of
Authorization (LOA) for the incidental
take of marine mammals during the
described activities and specified
timeframes, prescribe the permissible
methods of taking and other means of
effecting the least practicable adverse
impact on marine mammal species or
stocks and their habitat, as well as
requirements pertaining to the
monitoring and reporting of such taking.
In accordance with the Marine Mammal
Protection Act (MMPA), as amended,
and implementing regulations,
notification is hereby additionally given
that two LOAs have been issued to NPS
to take marine mammals incidental to
research and monitoring activities in
southern Alaska national parks.
DATES: Effective from March 7, 2019
through February 29, 2024.
FOR FURTHER INFORMATION CONTACT: Gray
Redding, Office of Protected Resources,
NMFS, (301) 427–8401.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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-otheractivities. In case of problems accessing
these documents, please call the contact
listed above (see FOR FURTHER
INFORMATION CONTACT).
Purpose and Need for Regulatory
Action
These regulations establish a
framework under the authority of the
Marine Mammal Protection Act
(MMPA) (16 U.S.C. 1361 et seq.) for
authorizing the take of marine mammals
incidental to NPS’s gull and climate
monitoring activities within Glacier Bay
National Park (GLBA NP) and marine
bird surveys in the Southwest Alaska
Inventory and Monitoring Network
(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
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Steller sea lions. Take is expected to
occur by Level B harassment incidental
to research and monitoring activities
due to behavioral disturbance of
pinnipeds. The regulations are valid
from 2019 to 2024. Please see
‘‘Background’’ below for definitions of
harassment.
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Legal Authority for the 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
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 and other means of
effecting the ‘‘least practicable adverse
impact’’ on the affected species or
stocks and their habitat (see the
discussion below in the ‘‘Mitigation’’
section), 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 rule containing five-year
regulations, and for any subsequent
LOAs. As directed by this legal
authority, the regulations contain
mitigation, monitoring, and reporting
requirements.
Summary of Major Provisions Within
the Regulations
The following provides a summary of
some of the major provisions within the
regulations for NPS’s research and
monitoring activities in southern
Alaska. We have determined that NPS’s
adherence to the mitigation, monitoring,
and reporting measures listed below
will 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; and
• 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
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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:
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
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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. On December
13, 2018, NMFS published a notice of
proposed rulemaking in the Federal
Register (83 FR 64078), requesting
comments for 32 days. We received
three comments which are summarized
and addressed below (Comment and
Responses).
Prior to this request for incidental
take regulations and subsequent LOAs,
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.
Authorization
This action also serves as a notice of
issuance of two LOAs to NPS
authorizing the take of marine mammals
by Level B harassment incidental to
research and monitoring activities with
GLBA NP and the SWAN region. The
level and type of take authorized by
these LOAs is outlined in this preamble
to the final rule, and any changes to the
numbers of authorized takes are
presented during the proposed
rulemaking is explained within this
document. Take by mortality or serious
injury is not anticipated or authorized.
Description of the Specified Activity
A detailed description of the planned
NPS project is provided in the Federal
Register in the notice of proposed
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rulemaking (83 FR 64078; December 13,
2018). Since that time, no changes have
been made to the planned NPS
monitoring activities. Therefore, a
detailed description is not provided
here. Please refer to that Federal
Register notice of proposed rulemaking
for the description of the specific
activity.
Glacier Bay
NMFS is issuing one LOA for two
research projects NPS plans to conduct
within the GLBA NP in southeast
Alaska: (1) Glaucous-winged gull
monitoring, and (2) the maintenance of
a weather station operation for longterm climate monitoring. NPS plans to
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. Two of these sites,
South Marble Island and Tlingit Point
Islet, have been accessed during
previous research but have no
documented harbor seal haulouts.
Additionally, Steller sea lions are not
found on the portion of South Marble
Island accessed by GLBA NP
researchers. 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.
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. Disturbance to Steller sea
lions is not expected to occur as a result
of implementation of mitigation
measures.
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
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
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twice a year for annual maintenance and
repairs.
Southwest Alaska Inventory and
Monitoring Network
NMFS is issuing a second LOA for the
SWAN region marine bird multi-species
nearshore surveys that NPS plans to
conduct 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. NMFS 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.
Comment and Responses
NMFS published a proposed rule in
the Federal Register on December 13,
2018 (83 FR 64078). During the 32-day
comment period on the proposed rule,
NMFS received three comments,
including one from the Marine Mammal
Commission (Commission). All of these
comments were generally in favor of
issuing the rule, including the
Commission’s which recommended
NMFS issue the final rule and
subsequent LOAs, subject to inclusion
of the proposed mitigation, monitoring,
and reporting measures.
Comment 1: One comment requested
further information about the research
results the National Park Service has
generated through their previous work
NMFS has authorized incidental take for
in GLBA NP.
Response: NMFS has not analyzed the
results of NPS’s research but refers the
commenter to information provided by
GLBA NP and NPS related to research
in the park (https://www.nps.gov/glba/
learn/scienceresearch.htm).
Comment 2: One comment raised
general questions about the methods
used to approach survey islands,
suggesting the use of only nonmotorized vessels, such as a row dingy
or kayak. The commenter also suggested
that gull monitoring trips and climate
monitoring/weather station
maintenance trips be combined to
minimize approaches to Lone Island.
Response: NMFS has determined that
the mitigation measures outlined in the
‘‘Mitigation’’ section are sufficient to
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minimize take of marine mammals
during GLBA NP research and
monitoring to the level of least
practicable adverse impact, as required
by the MMPA. GLBA NP researchers
have a vested interest in minimizing the
disturbance of their surveys and vessels
approaches to insure that data they
collect on glaucous-winged gulls is as
representative as possible. As such,
NMFS understands that researchers will
make an appropriate decision on how to
approach islands and conduct surveys
balancing their research needs, safety,
and desire to minimize disturbance.
Additionally, the timing of the climate
monitoring and weather station
maintenance trips and the glaucouswinged gull surveys may not align based
on research and maintenance needs, so
NMFS feels it is not reasonable to
require these trips be combined.
Description of Marine Mammals in the
Area of the Specified Activity
A detailed description of the species
likely to be affected by the NPS projects,
including brief introductions to the
species and relevant stocks as well as
available information regarding
population trends and threats, and
information regarding local occurrence,
are provided in NPS’s application and
the Federal Register notice of proposed
rulemaking (83 FR 64078; December 13,
2018). We are not aware of any changes
in the status of these species and stocks;
therefore, detailed descriptions are not
provided here. Please refer to that
Federal Register notice of proposed
rulemaking for these descriptions.
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).
While there are no changes in the
status of these stocks, NMFS here
provides additional information on the
presence of Steller sea lions in GLBA
NP which may not have been clear in
the preamble to the proposed rule. In
the preamble to the proposed rule,
NMFS stated that Steller sea lions are
not generally seen on the GLBA NP
islands being researched, but this
species is commonly seen year round on
South Marble Island (Womble and
Gende, 2010), one of the islands GLBA
NP plans to survey, and has historically
surveyed, for glaucous-winged gulls.
These Steller sea lions have been
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present on South Marble Island during
GLBA NP’s previous research and
monitoring, but no disturbance has been
documented. In GLBA NP’s research
and monitoring, mitigation measures,
including maintaining a 100 meter
distance from all Steller sea lions, will
help ensure no disturbance of Steller sea
lions, as these measures have been
proven successful in preventing
disturbance during work carried out
under previous IHAs.
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
(2018). 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
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 ....................
Family Phocidae (earless seals):
Harbor seal .........................
Eumetopias jubatus ..................
Phoca vitulina richardii ..............
Eastern U.S. .............................
-/-; N
Western U.S. ............................
E/D; Y
Glacier Bay/Icy Strait ................
-/-; N
Cook Inlet/Shelikof Strait ..........
-/-; N
Prince William Sound ...............
-/-; N
41,638 (n/a, 41,638,
2015) 4.
54,267 (n/a; 54,267;
2017) 4.
306
236
326
252
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
104
770
234
838
279
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1—Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the
ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically
designated under the MMPA as depleted and as a strategic stock.
2—NMFS marine mammal stock assessment reports online at: 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
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 include avoidance
measures for cetaceans, described in the
‘‘Mitigation’’ section below. Finally, sea
otters may be found throughout the
planned project area. However, sea
otters are managed by the U.S. Fish and
Wildlife Service and are not considered
further in this document.
Effects of the Specified Activity on
Marine Mammals and Their Habitat
The proposed rule (83 FR 64078;
December 13, 2018) included a
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discussion of the effects of disturbance
on marine mammals and their habitat,
therefore that information is not
repeated here; please refer to the
Federal Register notice of proposed
rulemaking (83 FR 64078; December 13,
2018) for that information. We provide
only a summary here.
The NPS’s research and monitoring
activities in GLBA NP and the SWAN
region are not expected to have
permanent impacts on marine mammals
or the habitats used directly by marine
mammals, such as haulout sites, nor are
there expected to be measurable impacts
to food sources. Based on the available
data, previous monitoring reports from
GLBA NP, and studies described in the
preamble to the proposed rule, we
anticipate that any pinnipeds found in
the vicinity of the projects could have
short-term behavioral reactions (i.e.,
may result in marine mammals avoiding
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certain areas) due to noise and visual
disturbance generated by: (1) Motorboat
approaches and departures; (2)
motorboat coastal transit; and (3) human
presence during gull research activities.
We expect pinnipeds to return to a
haulout site within minutes to hours of
the stimulus based on previous research
(Johnson and Acevedo-Gutierrez, 2007;
Allen et al., 1985). Pinnipeds may be
temporarily displaced from their
haulout sites, but we do not expect that
the pinnipeds will permanently
abandon a haulout site during site
monitoring as activities are short in
duration (brief transit through an area to
up to 2 hours), and previous surveys at
GLBA NP have demonstrated that
pinnipeds have returned to their
haulout sites and have not permanently
abandoned the sites.
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Marine Mammal Habitat
NMFS does not anticipate that the
planned activities in GLBA NP or the
SWAN region will result in any
measurable effects on the habitats used
by the marine mammals in the planned
area, including the food sources they
use (i.e., fish and invertebrates). The
main impact associated with the
planned 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 the 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 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
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This section provides an estimate of
the number of incidental takes that may
be authorized through LOAs issued
under this rule, which will inform both
NMFS’s consideration of whether the
number of takes is ‘‘small’’ and the
negligible impact determination. During
the comment period for the proposed
rule, NMFS was made aware that the
number of authorized annual takes by
Level B harassment for SWAN activities
does not adequately account for both
summer and winter surveys at each of
the KATM, KEFJ, and KBAY sites. As
stated in the preamble to the proposed
rule, NFMS estimates that 100 harbor
seals and 100 Steller sea lions could be
disturbed during each survey of KATM
and KEFJ. For KBAY, NMFS estimated
that 100 harbor seals could be disturbed
during each survey, but no Steller sea
lions are present at that survey site, so
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none would be disturbed. Accordingly,
NMFS has increased the authorized
annual takes by Level B harassment for
SWAN activities to 600 harbor seals and
400 Steller sea lions to account for the
6 authorized surveys each year (1
summer and 1 winter at each of the 3
sites). This is a doubling of the
authorized takes by Level B harassment
presented in the proposed rule,
originally 300 harbor seals and 200
Steller sea lions annually.
Harassment is the only type of take
expected to result from these activities.
Except with respect to certain activities
not pertinent here, section 3(18) of the
MMPA defines ‘‘harassment’’ as any act
of pursuit, torment, or annoyance which
(i) has the potential to injure a marine
mammal or marine mammal stock in the
wild (Level A harassment); or (ii) has
the potential to disturb a marine
mammal or marine mammal stock in the
wild by causing disruption of behavioral
patterns, including, but not limited to,
migration, breathing, nursing, breeding,
feeding, or sheltering (Level B
harassment).
Authorized takes are by Level B
harassment only, in the form of
disruption of behavioral patterns for
individual marine mammals resulting
from exposure to motorboats and the
presence of NPS personnel. Based on
the nature of the activity and mitigation
measures, Level A harassment is neither
anticipated nor authorized. As
described previously, no mortality is
anticipated or authorized for this
activity. Below we describe how the
take is estimated.
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
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8267
approximate number of seals observers
are expected to 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 18.64 seals
(reduced from 18.91 as this number
stated in the notice of proposed
rulemaking was based on an error in
monitoring data) (See Table 2).
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. As mentioned
previously, no take is authorized for
visits to South Marble Island or Tlingit
Point Islet because the absence of
pinnipeds on the relevant portions of
the islands and implementation of
mitigation measures means no take is
expected to occur. 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
265 which totals to 1,325 takes during
the entire five years of the planned
activities in GLBA NP (See Table 2).
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.
1 See Table 3 in the notice of proposed
rulemaking (83 FR 64078, December 13, 2018) 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.
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TABLE 2—PROPOSED TAKES BY LEVEL B HARASSMENT DURING NPS GULL AND CLIMATE MONITORING SURVEYS
Average number of seals
observed per
visit 1
Site proposed for survey
Number of
proposed site
visits
Proposed
Level B
harassment 1*
Percentage of
population3
Boulder Island ..................................................................................................
Flapjack Island .................................................................................................
Geikie Rock .....................................................................................................
Lone Island ......................................................................................................
3.45
10.10
9.58
18.64
5
5
5
28
17.25
50.50
47.90
149.12
0.24
0.70
0.66
2.06
Annual Total .............................................................................................
........................
........................
265
3.68
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.
* Values in this column have been adjusted slightly from the proposed rulemaking to correct rounding errors.
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 3 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. Based on these findings, each
survey of KBAY is expected to observe
100 harbor seals, but no Steller sea lions
because the species is not generally
found there. 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, and two seasons of
potential sampling, SWAN’s activities
will result in take by Level B
harassment of 600 harbor seals and 400
Steller sea lions. In total, these figures
result in an estimated 3000 harbor seal
and 2000 Steller sea lion takes by Level
B harassment across the five years.
Annually, there would be 400 harbor
seal takes by Level B harassment in the
Cook Inlet/Shelikof Strait stock (KATM
and KBAY surveys), and 200 harbor seal
takes by Level B harassment from the
Prince William Sound stock (KEFJ
surveys). For Steller sea lion takes by
Level B harassment, NPS estimates that
200 individuals will experience take by
Level B harassment each year (across
summer and winter) in both KATM and
KEFJ (400 total), but no takes will occur
in KBAY surveys. 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 3
conservative.
TABLE 3—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 ..........................................
Total level
B takes in
5 years
400
200
2 400
2 400
2000
1000
2 2000
2 2000
Percentage of
population over
1 year 1
1.4
0.7
2 0.7
2 1.0
1 Based
on the population size of each relevant stock as presented in Table 1.
is only proposing to authorize 400 annual (2000 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.
2 NMFS
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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 regulations
to reduce the impacts of the activity on
subsistence uses are identical to those
which minimize disturbance of
pinnipeds as described in the Mitigation
section. Last, the information from this
section and the Mitigation section is
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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
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lions and harbor seals was at a low
point in June and July when SWAN’s
surveys are expected to 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 planned 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.
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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.
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Glacier Bay
NPS has based the mitigation
measures for the planned 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,
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NPS will 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 will 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 are expected
to 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
at least 100 m from the animals at all
times.
Controlled Landings
The researchers will determine
whether to approach an island study
site based on type of animals present.
Researchers will approach the island by
motorboat at a speed of approximately
2 to 3 knots (2.3 to 3.4 mph). This is
expected to provide enough time for any
harbor seals present to slowly enter the
water without panic (flushing). The
researchers will 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 will
not approach the study site.
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8269
Disturbance Reduction Protocols
While onshore at study sites, the
researchers will remain vigilant for
hauled-out marine mammals. If marine
mammals are present, the researchers
will move slowly and use quiet voices
to minimize disturbance to the animals
present.
Avoidance of Unauthorized Take
While conducting activities at GLBA
NP NPS will avoid interaction with
marine mammal species that are either
not authorized for take (including
humpback whales and killer whales) or
a species with all authorized takes met.
NPS avoidance measures for humpback
whales and killer whales will include
not operating a motor vessel within 1⁄4
nautical mile of these cetaceans. If
accidentally positioned within 1⁄4
nautical mile of a humpback or killer
whale, researchers will slow the vessel
speed to 10 knots or less and maintain
course away from the marine mammal
until at least 1⁄4 nautical mile of
separation exists. For humpback whales,
these avoidance measures are required
by regulations (81 FR 62018; September
8, 2016).
SWAN
NPS has based the mitigation
measures for 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 will 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 will 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.
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Avoidance of Unauthorized Take
While conducting SWAN survey
activities NPS will avoid interaction
with marine mammal species that are
either not authorized for take (including
humpback whales and beluga whales) or
a species with all authorized takes met.
NPS avoidance measures for humpback
whales and beluga whales will include
not operating a motor vessel within 1⁄4
nautical mile of these cetaceans. If
accidentally positioned within 1⁄4
nautical mile of a humpback or beluga
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. For humpback whales, these
avoidance measures are required by
regulations (81 FR 62018; September 8,
2016).
Mitigation Conclusions
Based on our evaluation of the
applicant’s planned measures, as well as
other measures considered by NMFS,
NMFS has determined that the planned
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.
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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 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
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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 will 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
research areas. The monitoring notes
will provide dates, transect location,
species, numbers of animals present
within the transect, and numbers of
pinnipeds that flushed into the water.
The method for recording
disturbances follows those in Mortenson
(1996). For NPS’ activities in the SWAN
region, pinniped disturbances will be
based on a three-point scale that
represents an increasing response to the
disturbance. 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
activities for these regulations suggest
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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
In the preamble to the proposed
regulations, it was stated that NPS will
report the number of animals that
moved greater than one meter. After
consultation with the Commission,
NMFS has requested that this criteria for
recording a Level 2 disturbance
reaction, and associated take by Level B
harassment, be updated to a movement
greater than two body lengths. This
criteria aligns with NMFS’s three point
scale (see Table 3 in the preamble to the
proposed regulations) that categorizes
pinniped disturbance reactions by
severity and captures what reaction
NMFS considers to rise to the level of
harassment.
NPS will conduct marine mammal
monitoring during the present GLBA NP
project, 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.
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
research areas. The monitoring notes
will provide dates, location, species, the
researcher’s activity, behavioral state,
numbers of animals that were alert or
moved greater than two body lengths,
and numbers of pinnipeds that flushed
into the water.
The method for recording
disturbances follows those in Mortenson
(1996). NPS activities in GLBA NP will
record pinniped disturbances on a
three-point scale that represents an
increasing response to the disturbance.
Both a level 2 and level 3 response will
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://
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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 4):
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
8271
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 hauledout seals. When NPS realized the
number of seals present, they ceased the
survey and left the area, flushing 13
seals into the water.
TABLE 4—SUMMARY TABLE OF 2015–2017 MONITORING REPORTS FOR NPS GULL STUDIES
Monitoring year
Number of
adults
observed
2017 .............................
2016 .............................
2015 .............................
Number of
pups
observed
86
216
156
0
1
0
Coordination
NPS can add to the knowledge of
pinnipeds in the 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
(3) rare or unusual species of marine
mammals for agency follow-up.
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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
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Moved >1 m
but did not
flush
Flushed
into water
33
77
57
0
3
0
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 will report vessel-based counts of
marine mammals, branded, or injured
animals, and all observed disturbances
to the appropriate state and Federal
agencies.
SWAN
While NPS’s main focus is to monitor
marine birds in the SWAN region, their
survey efforts will incidentally record
sightings of marine mammals. This data
can add to understanding of pinniped
regional distribution and population
trends. NPS will also coordinate with
state and Federal marine mammal
biologists to determine what additional
data or observations may be useful to
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Alert but
did not
move >1 m
0
17
25
Level B take
authorized
for activity
218
500
500
Level B take
recorded
during
activities
33
80
57
record for monitoring marine mammals
and haulouts 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 birds
and other incidentally observed species.
Additionally, NPS will report vesselbased 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
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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 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;
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• 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
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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
activities are expected to take place in
areas of significance for marine mammal
feeding, resting, breeding, or pupping,
there are no expected 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 will
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 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:
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• No mortality is anticipated or
authorized;
• The takes from Level B harassment
are expected to be due to potential
behavioral disturbance;
• The effects of the research activities
are expected to be limited to short-term
startle responses and localized
behavioral changes due to the short and
sporadic duration of the research
activities;
• The activities will partially take
place in areas of significance for marine
mammal feeding, resting, breeding, or
pupping but due to their nature and
duration are expected to 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 haul-out 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
will approach study sites slowly to
provide enough time for any marine
mammals present to slowly enter the
water without panic. SWAN researchers
will attempt to conduct their surveys at
a distance which is expected to 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
monitoring and mitigation measures,
NMFS 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 authorized 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
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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 0.7 to 3.7 percent
(See Table 1, Table 2, and Table 3). For
Steller sea lions, this annual take
estimate is small (400 sea lions) relative
to the western stock (0.7 percent) or
eastern stock (1.0 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 activity (including the
mitigation and monitoring measures)
and the authorized take of marine
mammals, NMFS finds that small
numbers of marine mammals will be
taken relative to the population size of
the affected species or stocks.
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
determined that the total taking of
affected species or stocks is not
expected to have an unmitigable adverse
impact on the availability of such
species or stocks for taking for
subsistence purposes.
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.
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8273
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
preclude this categorical exclusion.
Accordingly, NMFS has determined that
the issuance of these final regulations
and subsequent Letters of Authorization
qualifies to be categorically excluded
from further NEPA review.
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 ensure 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
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 authorizing 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. On March 1, 2019, NMFS Alaska
Region issued a Biological Opinion to
NMFS Office of Protected Resources,
which concluded that the NPS research
and monitoring activities are not likely
to jeopardize the continued existence of
western DPS Steller sea lions or
adversely modify critical habitat based
on the nature of the activities.
Adaptive Management
The regulations governing the take of
marine mammals incidental to NPS
research and monitoring activities in
GLBA NP and SWAN region contain an
adaptive management component.
The reporting requirements associated
with this 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
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additions or deletions). Mitigation
measures could be modified if new data
suggests that such modifications are
expected to have a reasonable likelihood
of reducing adverse effects to marine
mammals and if the measures are
practicable.
NPS’s monitoring program (see
‘‘Monitoring and Reporting’’) will be
managed adaptively. Changes to the
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.
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Classification
Pursuant to the procedures
established to implement Executive
Order 12866, the Office of Management
and Budget has determined that this
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 certified to
the Chief Counsel for Advocacy of the
Small Business Administration at the
proposed rule stage that this action will
not have a significant economic impact
on a substantial number of small
entities. NPS is the sole entity that will
be subject to the requirements in these
regulations, and the NPS is not a small
governmental jurisdiction, small
organization, or small business, as
defined by the RFA. No comments were
received on this certification.
Accordingly, 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.
This rule does not contain a COI
requirement subject to the provisions of
the PRA because the applicant is a
Federal agency.
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Waiver of Delay in Effective Date
The Assistant Administrator for
NMFS has determined that there is good
cause under the Administrative
Procedure Act (5 U.S.C 553(d)(3)) to
waive the 30-day delay in the effective
date of this final rule. No individual or
entity other than NPS is affected by the
provisions of these regulations. NPS has
informed NMFS that it requests that this
final rule take effect on or by March 1,
2019, to accommodate NPS’s research
planned to begin March 1, 2019, with its
current IHA expiring February 28, 2019,
so as to not cause a disruption in
planned research and monitoring
activities. The request to authorize take
for NPS activities in the SWAN region
and resulted in delays in receiving a
revised and complete application.
NMFS was also unable to accommodate
the 30-day delay of effectiveness period
due to the need for additional time to
address public comment and carry out
required review, which was delayed by
the partial Federal government
shutdown in December 2018 and
January 2019. The waiver of the 30-day
delay of the effective date of the final
rule will ensure that the MMPA final
rule and LOAs are in place by the time
the previous authorization expires. Any
delay in finalizing the rule would result
in either: (1) A suspension of planned
research and monitoring, which would
result in lost data and wasted funds; or
(2) NPS’s procedural non-compliance
with the MMPA (should NPS conduct
research and monitoring without LOAs),
thereby resulting in the potential for
unauthorized takes of marine mammals.
Moreover, NPS is ready to implement
the rule immediately. For these reasons,
NMFS finds good cause to waive the 30day delay in the effective date. In
addition, the LOAs allow for
authorization of incidental take of
marine mammals that would otherwise
be prohibited under the statute.
Therefore the rule is granting an
exception to NPS and relieving
restrictions under the MMPA, which is
a separate basis for waiving the 30-day
effective date for the rule.
List of Subjects in 50 CFR Part 217
Exports, Fish, Imports, Indians,
Labeling, Marine mammals, Penalties,
Reporting and recordkeeping
requirements, Seafood, Transportation.
Dated: March 4, 2019.
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 amended as follows:
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PART 217—REGULATIONS
GOVERNING THE TAKING AND
IMPORTING OF MARINE MAMMALS
1. The authority citation for part 217
continues to read as follows:
■
Authority: 16 U.S.C. 1361 et seq., unless
otherwise noted.
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.
217.28–217.29 [Reserved]
Subpart C—Taking Marine Mammals
Incidental to Research and Monitoring
in Southern Alaska National Parks
§ 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 Letters 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 7, 2019 through
February 29, 2024.
§ 217.22
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,
provided the activity is in compliance
with all terms, conditions, and
requirements of the regulations in this
subpart and the appropriate LOA.
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§ 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.
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§ 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); and
(3) NPS must avoid interaction with
any marine mammal species for which
take is not authorized (or any species for
which authorized take numbers have
been met). For humpback, killer, and
beluga whales, NPS must avoid
operation of a motor vessel within 1⁄4
nautical mile of these cetaceans. If
accidentally positioned within 1⁄4
nautical mile of these cetaceans, NPS
must slow the vessel speed to 10 knots
or less and maintain course away from
the marine mammal 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;
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(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; and
(10) NPS must maintain a quiet
working atmosphere, avoid loud noises,
and must use hushed voices in the
presence of hauled-out pinnipeds; and
(c) SWAN marine bird 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;
and
(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 must 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
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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 must 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 must
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 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 must 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 must
report that information to NMFS’s
Alaska Fisheries Science Center and/or
the Alaska Department of Fish and
Game Marine Mammal Program.
(c) Annual reporting. 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
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the Authorization and full
documentation of methods, results, and
interpretation pertaining to all
monitoring.
(d) Comprehensive reporting. 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 paragraph
(e)(1) of this section. 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;
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(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 § 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;
and
(5) Pursuant to paragraphs (e)(2)
through (4) of this section, 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 (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.
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§ 217.27 Renewals and modifications of
Letters of Authorization.
(a) An LOA issued under §§ 216.106
of this chapter and 217.26 for the
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
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of proposed LOA in the Federal
Register and solicit public comment.
(2) Emergencies. If NMFS determines
that an emergency exists that poses a
significant risk to the well-being of the
species or stocks of marine mammals
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specified in LOAs issued pursuant to
§§ 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
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the Federal Register within thirty days
of the action.
§ § 217.28–217.29
[Reserved]
[FR Doc. 2019–04107 Filed 3–6–19; 8:45 am]
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]]>Agencies
[Federal Register Volume 84, Number 45 (Thursday, March 7, 2019)]
[Rules and Regulations]
[Pages 8263-8277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-04107]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 180411364-9092-02]
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: Final rule; issuance of Letters of Authorization (LOA).
-----------------------------------------------------------------------
SUMMARY: NMFS, upon request from the National Park Service (NPS),
hereby issues regulations to govern the unintentional taking of marine
mammals incidental to research and monitoring activities in southern
Alaska over the course of five years (2019-2024). These regulations,
which allow for the issuance of Letters of Authorization (LOA) for the
incidental take of marine mammals during the described activities and
specified timeframes, prescribe the permissible methods of taking and
other means of effecting the least practicable adverse impact on marine
mammal species or stocks and their habitat, as well as requirements
pertaining to the monitoring and reporting of such taking. In
accordance with the Marine Mammal Protection Act (MMPA), as amended,
and implementing regulations, notification is hereby additionally given
that two LOAs have been issued to NPS to take marine mammals incidental
to research and monitoring activities in southern Alaska national
parks.
DATES: Effective from March 7, 2019 through February 29, 2024.
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).
Purpose and Need for Regulatory Action
These regulations establish a framework under the authority of the
Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.) for
authorizing the take of marine mammals incidental to NPS's gull and
climate monitoring activities within Glacier Bay National Park (GLBA
NP) and marine bird surveys in the Southwest Alaska Inventory and
Monitoring Network (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
[[Page 8264]]
Steller sea lions. Take is expected to occur by Level B harassment
incidental to research and monitoring activities due to behavioral
disturbance of pinnipeds. The regulations are valid from 2019 to 2024.
Please see ``Background'' below for definitions of harassment.
Legal Authority for the 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 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 and other means of effecting the ``least
practicable adverse impact'' on the affected species or stocks and
their habitat (see the discussion below in the ``Mitigation'' section),
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 rule containing
five-year regulations, and for any subsequent LOAs. As directed by this
legal authority, the regulations contain mitigation, monitoring, and
reporting requirements.
Summary of Major Provisions Within the Regulations
The following provides a summary of some of the major provisions
within the regulations for NPS's research and monitoring activities in
southern Alaska. We have determined that NPS's adherence to the
mitigation, monitoring, and reporting measures listed below will
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; and
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. On December 13, 2018, NMFS published a notice of proposed
rulemaking in the Federal Register (83 FR 64078), requesting comments
for 32 days. We received three comments which are summarized and
addressed below (Comment and Responses).
Prior to this request for incidental take regulations and
subsequent LOAs, 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.
Authorization
This action also serves as a notice of issuance of two LOAs to NPS
authorizing the take of marine mammals by Level B harassment incidental
to research and monitoring activities with GLBA NP and the SWAN region.
The level and type of take authorized by these LOAs is outlined in this
preamble to the final rule, and any changes to the numbers of
authorized takes are presented during the proposed rulemaking is
explained within this document. Take by mortality or serious injury is
not anticipated or authorized.
Description of the Specified Activity
A detailed description of the planned NPS project is provided in
the Federal Register in the notice of proposed
[[Page 8265]]
rulemaking (83 FR 64078; December 13, 2018). Since that time, no
changes have been made to the planned NPS monitoring activities.
Therefore, a detailed description is not provided here. Please refer to
that Federal Register notice of proposed rulemaking for the description
of the specific activity.
Glacier Bay
NMFS is issuing one LOA for two research projects NPS plans to
conduct 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 plans to 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. Two of these sites, South Marble Island and
Tlingit Point Islet, have been accessed during previous research but
have no documented harbor seal haulouts. Additionally, Steller sea
lions are not found on the portion of South Marble Island accessed by
GLBA NP researchers. 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. 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. Disturbance to Steller sea lions is not expected to occur
as a result of implementation of mitigation measures.
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 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.
Southwest Alaska Inventory and Monitoring Network
NMFS is issuing a second LOA for the SWAN region marine bird multi-
species nearshore surveys that NPS plans to conduct 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. NMFS 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.
Comment and Responses
NMFS published a proposed rule in the Federal Register on December
13, 2018 (83 FR 64078). During the 32-day comment period on the
proposed rule, NMFS received three comments, including one from the
Marine Mammal Commission (Commission). All of these comments were
generally in favor of issuing the rule, including the Commission's
which recommended NMFS issue the final rule and subsequent LOAs,
subject to inclusion of the proposed mitigation, monitoring, and
reporting measures.
Comment 1: One comment requested further information about the
research results the National Park Service has generated through their
previous work NMFS has authorized incidental take for in GLBA NP.
Response: NMFS has not analyzed the results of NPS's research but
refers the commenter to information provided by GLBA NP and NPS related
to research in the park (https://www.nps.gov/glba/learn/scienceresearch.htm).
Comment 2: One comment raised general questions about the methods
used to approach survey islands, suggesting the use of only non-
motorized vessels, such as a row dingy or kayak. The commenter also
suggested that gull monitoring trips and climate monitoring/weather
station maintenance trips be combined to minimize approaches to Lone
Island.
Response: NMFS has determined that the mitigation measures outlined
in the ``Mitigation'' section are sufficient to minimize take of marine
mammals during GLBA NP research and monitoring to the level of least
practicable adverse impact, as required by the MMPA. GLBA NP
researchers have a vested interest in minimizing the disturbance of
their surveys and vessels approaches to insure that data they collect
on glaucous-winged gulls is as representative as possible. As such,
NMFS understands that researchers will make an appropriate decision on
how to approach islands and conduct surveys balancing their research
needs, safety, and desire to minimize disturbance. Additionally, the
timing of the climate monitoring and weather station maintenance trips
and the glaucous-winged gull surveys may not align based on research
and maintenance needs, so NMFS feels it is not reasonable to require
these trips be combined.
Description of Marine Mammals in the Area of the Specified Activity
A detailed description of the species likely to be affected by the
NPS projects, including brief introductions to the species and relevant
stocks as well as available information regarding population trends and
threats, and information regarding local occurrence, are provided in
NPS's application and the Federal Register notice of proposed
rulemaking (83 FR 64078; December 13, 2018). We are not aware of any
changes in the status of these species and stocks; therefore, detailed
descriptions are not provided here. Please refer to that Federal
Register notice of proposed rulemaking for these descriptions.
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).
While there are no changes in the status of these stocks, NMFS here
provides additional information on the presence of Steller sea lions in
GLBA NP which may not have been clear in the preamble to the proposed
rule. In the preamble to the proposed rule, NMFS stated that Steller
sea lions are not generally seen on the GLBA NP islands being
researched, but this species is commonly seen year round on South
Marble Island (Womble and Gende, 2010), one of the islands GLBA NP
plans to survey, and has historically surveyed, for glaucous-winged
gulls. These Steller sea lions have been
[[Page 8266]]
present on South Marble Island during GLBA NP's previous research and
monitoring, but no disturbance has been documented. In GLBA NP's
research and monitoring, mitigation measures, including maintaining a
100 meter distance from all Steller sea lions, will help ensure no
disturbance of Steller sea lions, as these measures have been proven
successful in preventing disturbance during work carried out under
previous IHAs.
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 (2018).
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\.
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 include avoidance measures for
cetaceans, described in the ``Mitigation'' section below. Finally, sea
otters may be found throughout the planned project area. However, sea
otters are managed by the U.S. Fish and Wildlife Service and are not
considered further in this document.
Effects of the Specified Activity on Marine Mammals and Their Habitat
The proposed rule (83 FR 64078; December 13, 2018) included a
discussion of the effects of disturbance on marine mammals and their
habitat, therefore that information is not repeated here; please refer
to the Federal Register notice of proposed rulemaking (83 FR 64078;
December 13, 2018) for that information. We provide only a summary
here.
The NPS's research and monitoring activities in GLBA NP and the
SWAN region are not expected to have permanent impacts on marine
mammals or the habitats used directly by marine mammals, such as
haulout sites, nor are there expected to be measurable impacts to food
sources. Based on the available data, previous monitoring reports from
GLBA NP, and studies described in the preamble to the proposed rule, we
anticipate that any pinnipeds found in the vicinity of the projects
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; (2) motorboat
coastal transit; and (3) human presence during gull research
activities. We expect pinnipeds to return to a haulout site within
minutes to hours of the stimulus based on previous research (Johnson
and Acevedo-Gutierrez, 2007; Allen et al., 1985). Pinnipeds may be
temporarily displaced from their haulout sites, but we do not expect
that the pinnipeds will permanently abandon a haulout site during site
monitoring as activities are short in duration (brief transit through
an area to up to 2 hours), and previous surveys at GLBA NP have
demonstrated that pinnipeds have returned to their haulout sites and
have not permanently abandoned the sites.
[[Page 8267]]
Marine Mammal Habitat
NMFS does not anticipate that the planned activities in GLBA NP or
the SWAN region will result in any measurable effects on the habitats
used by the marine mammals in the planned area, including the food
sources they use (i.e., fish and invertebrates). The main impact
associated with the planned 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 the 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 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
that may be authorized through LOAs issued under this rule, which will
inform both NMFS's consideration of whether the number of takes is
``small'' and the negligible impact determination. During the comment
period for the proposed rule, NMFS was made aware that the number of
authorized annual takes by Level B harassment for SWAN activities does
not adequately account for both summer and winter surveys at each of
the KATM, KEFJ, and KBAY sites. As stated in the preamble to the
proposed rule, NFMS estimates that 100 harbor seals and 100 Steller sea
lions could be disturbed during each survey of KATM and KEFJ. For KBAY,
NMFS estimated that 100 harbor seals could be disturbed during each
survey, but no Steller sea lions are present at that survey site, so
none would be disturbed. Accordingly, NMFS has increased the authorized
annual takes by Level B harassment for SWAN activities to 600 harbor
seals and 400 Steller sea lions to account for the 6 authorized surveys
each year (1 summer and 1 winter at each of the 3 sites). This is a
doubling of the authorized takes by Level B harassment presented in the
proposed rule, originally 300 harbor seals and 200 Steller sea lions
annually.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes are by Level B harassment only, in the form of
disruption of behavioral patterns for individual marine mammals
resulting from exposure to motorboats and the presence of NPS
personnel. Based on the nature of the activity and mitigation measures,
Level A harassment is neither anticipated nor authorized. As described
previously, no mortality is anticipated or authorized for this
activity. Below we describe how the take is estimated.
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 are expected to 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 18.64 seals (reduced from 18.91 as this number stated in the
notice of proposed rulemaking was based on an error in monitoring data)
(See Table 2). 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. As mentioned previously, no take is authorized for visits to
South Marble Island or Tlingit Point Islet because the absence of
pinnipeds on the relevant portions of the islands and implementation of
mitigation measures means no take is expected to occur. 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 265 which totals to 1,325 takes
during the entire five years of the planned activities in GLBA NP (See
Table 2).
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.
---------------------------------------------------------------------------
\1\ See Table 3 in the notice of proposed rulemaking (83 FR
64078, December 13, 2018) 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 8268]]
Table 2--Proposed Takes by Level B Harassment During NPS Gull and Climate Monitoring Surveys
----------------------------------------------------------------------------------------------------------------
Average number Proposed
of seals Number of Level B Percentage of
Site proposed for survey observed per proposed site harassment population\3\
visit \1\ visits \1\*
----------------------------------------------------------------------------------------------------------------
Boulder Island.................................. 3.45 5 17.25 0.24
Flapjack Island................................. 10.10 5 50.50 0.70
Geikie Rock..................................... 9.58 5 47.90 0.66
Lone Island..................................... 18.64 \2\ 8 149.12 2.06
---------------------------------------------------------------
Annual Total................................ .............. .............. 265 3.68
----------------------------------------------------------------------------------------------------------------
\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.
* Values in this column have been adjusted slightly from the proposed rulemaking to correct rounding errors.
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 3 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. Based on these findings, each survey of KBAY
is expected to observe 100 harbor seals, but no Steller sea lions
because the species is not generally found there. 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, and two
seasons of potential sampling, SWAN's activities will result in take by
Level B harassment of 600 harbor seals and 400 Steller sea lions. In
total, these figures result in an estimated 3000 harbor seal and 2000
Steller sea lion takes by Level B harassment across the five years.
Annually, there would be 400 harbor seal takes by Level B harassment in
the Cook Inlet/Shelikof Strait stock (KATM and KBAY surveys), and 200
harbor seal takes by Level B harassment from the Prince William Sound
stock (KEFJ surveys). For Steller sea lion takes by Level B harassment,
NPS estimates that 200 individuals will experience take by Level B
harassment each year (across summer and winter) in both KATM and KEFJ
(400 total), but no takes will occur in KBAY surveys. 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
3 conservative.
Table 3--Proposed Takes by Level B Harassment Due to SWAN's Research and Monitoring Activities
----------------------------------------------------------------------------------------------------------------
Total level B Percentage of
Species Stock Proposed level takes in 5 population over
B take (annual) years 1 year \1\
----------------------------------------------------------------------------------------------------------------
Harbor seal........................ Cook Inlet/Shelikof 400 2000 1.4
Strait.
Prince William Sound. 200 1000 0.7
Steller sea lion................... Western.............. \2\ 400 \2\ 2000 \2\ 0.7
Eastern.............. \2\ 400 \2\ 2000 \2\ 1.0
----------------------------------------------------------------------------------------------------------------
\1\ Based on the population size of each relevant stock as presented in Table 1.
\2\ NMFS is only proposing to authorize 400 annual (2000 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 regulations to reduce the impacts of
the activity on subsistence uses are identical to those which minimize
disturbance of pinnipeds as described in the Mitigation section. Last,
the information from this section and the 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 are
expected to 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 planned
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.
[[Page 8269]]
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 for the planned 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 will 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 will 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 are expected to 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
at least 100 m from the animals at all times.
Controlled Landings
The researchers will determine whether to approach an island study
site based on type of animals present. Researchers will approach the
island by motorboat at a speed of approximately 2 to 3 knots (2.3 to
3.4 mph). This is expected to provide enough time for any harbor seals
present to slowly enter the water without panic (flushing). The
researchers will 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 will not
approach the study site.
Disturbance Reduction Protocols
While onshore at study sites, the researchers will remain vigilant
for hauled-out marine mammals. If marine mammals are present, the
researchers will move slowly and use quiet voices to minimize
disturbance to the animals present.
Avoidance of Unauthorized Take
While conducting activities at GLBA NP NPS will avoid interaction
with marine mammal species that are either not authorized for take
(including humpback whales and killer whales) or a species with all
authorized takes met. NPS avoidance measures for humpback whales and
killer whales will include not operating a motor vessel within \1/4\
nautical mile of these cetaceans. If accidentally positioned within \1/
4\ nautical mile of a humpback or killer whale, researchers will slow
the vessel speed to 10 knots or less and maintain course away from the
marine mammal until at least \1/4\ nautical mile of separation exists.
For humpback whales, these avoidance measures are required by
regulations (81 FR 62018; September 8, 2016).
SWAN
NPS has based the mitigation measures for 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 will 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 will
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.
[[Page 8270]]
Avoidance of Unauthorized Take
While conducting SWAN survey activities NPS will avoid interaction
with marine mammal species that are either not authorized for take
(including humpback whales and beluga whales) or a species with all
authorized takes met. NPS avoidance measures for humpback whales and
beluga whales will include not operating a motor vessel within \1/4\
nautical mile of these cetaceans. If accidentally positioned within \1/
4\ nautical mile of a humpback or beluga 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. For
humpback whales, these avoidance measures are required by regulations
(81 FR 62018; September 8, 2016).
Mitigation Conclusions
Based on our evaluation of the applicant's planned measures, as
well as other measures considered by NMFS, NMFS has determined that the
planned 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.
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
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 will 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 research areas. The monitoring notes will provide
dates, transect location, species, numbers of animals present within
the transect, and numbers of pinnipeds that flushed into the water.
The method for recording disturbances follows those in Mortenson
(1996). For NPS' activities in the SWAN region, pinniped disturbances
will be based on a three-point scale that represents an increasing
response to the disturbance. 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 activities for these regulations 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
In the preamble to the proposed regulations, it was stated that NPS
will report the number of animals that moved greater than one meter.
After consultation with the Commission, NMFS has requested that this
criteria for recording a Level 2 disturbance reaction, and associated
take by Level B harassment, be updated to a movement greater than two
body lengths. This criteria aligns with NMFS's three point scale (see
Table 3 in the preamble to the proposed regulations) that categorizes
pinniped disturbance reactions by severity and captures what reaction
NMFS considers to rise to the level of harassment.
NPS will 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 research
areas. The monitoring notes will provide dates, location, species, the
researcher's activity, behavioral state, numbers of animals that were
alert or moved greater than two body lengths, and numbers of pinnipeds
that flushed into the water.
The method for recording disturbances follows those in Mortenson
(1996). NPS activities in GLBA NP will record pinniped disturbances on
a three-point scale that represents an increasing response to the
disturbance. Both a level 2 and level 3 response will 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://
[[Page 8271]]
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 4):
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 4--Summary Table of 2015-2017 Monitoring Reports for NPS Gull Studies
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level B take
Number of Number of pups Flushed into Moved >1 m but Alert but did Level B take recorded
Monitoring year adults observed water did not flush not move >1 m authorized for during
observed 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 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 (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 will report vessel-based counts of marine
mammals, branded, or injured animals, and all observed disturbances to
the appropriate state and Federal agencies.
SWAN
While NPS's main focus is to monitor marine birds in the SWAN
region, their survey efforts will incidentally record sightings of
marine mammals. This data can add to understanding of pinniped regional
distribution and population trends. NPS will also coordinate with state
and Federal marine mammal biologists to determine what additional data
or observations may be useful to record for monitoring marine mammals
and haulouts 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 birds and other incidentally observed 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
[[Page 8272]]
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 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 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
activities are expected to take place in areas of significance for
marine mammal feeding, resting, breeding, or pupping, there are no
expected 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
will 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 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:
[[Page 8273]]
No mortality is anticipated or authorized;
The takes from Level B harassment are expected to be due
to potential behavioral disturbance;
The effects of the research activities are expected to be
limited to short-term startle responses and localized behavioral
changes due to the short and sporadic duration of the research
activities;
The activities will partially take place in areas of
significance for marine mammal feeding, resting, breeding, or pupping
but due to their nature and duration are expected to 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 haul-out 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 will
approach study sites slowly to provide enough time for any marine
mammals present to slowly enter the water without panic. SWAN
researchers will attempt to conduct their surveys at a distance which
is expected to 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 monitoring and mitigation
measures, NMFS 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 authorized 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 0.7 to 3.7 percent (See Table 1, Table 2, and
Table 3). For Steller sea lions, this annual take estimate is small
(400 sea lions) relative to the western stock (0.7 percent) or eastern
stock (1.0 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 activity (including
the mitigation and monitoring measures) and the authorized take of
marine mammals, NMFS finds that small numbers of marine mammals will be
taken relative to the population size of the affected species or
stocks.
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 determined that the total taking of
affected species or stocks is not expected to have an unmitigable
adverse impact on the availability of such species or stocks for taking
for subsistence purposes.
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
preclude this categorical exclusion. Accordingly, NMFS has determined
that the issuance of these final regulations and subsequent Letters of
Authorization qualifies to be categorically excluded from further NEPA
review.
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 ensure 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
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 authorizing 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. On March 1, 2019, NMFS Alaska Region issued a
Biological Opinion to NMFS Office of Protected Resources, which
concluded that the NPS research and monitoring activities are not
likely to jeopardize the continued existence of western DPS Steller sea
lions or adversely modify critical habitat based on the nature of the
activities.
Adaptive Management
The regulations governing the take of marine mammals incidental to
NPS research and monitoring activities in GLBA NP and SWAN region
contain an adaptive management component.
The reporting requirements associated with this 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
[[Page 8274]]
additions or deletions). Mitigation measures could be modified if new
data suggests that such modifications are expected to have a reasonable
likelihood of reducing adverse effects to marine mammals and if the
measures are practicable.
NPS's monitoring program (see ``Monitoring and Reporting'') will be
managed adaptively. Changes to the 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.
Classification
Pursuant to the procedures established to implement Executive Order
12866, the Office of Management and Budget has determined that this
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
certified to the Chief Counsel for Advocacy of the Small Business
Administration at the proposed rule stage that this action will not
have a significant economic impact on a substantial number of small
entities. NPS is the sole entity that will be subject to the
requirements in these regulations, and the NPS is not a small
governmental jurisdiction, small organization, or small business, as
defined by the RFA. No comments were received on this certification.
Accordingly, 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. This rule does not
contain a COI requirement subject to the provisions of the PRA because
the applicant is a Federal agency.
Waiver of Delay in Effective Date
The Assistant Administrator for NMFS has determined that there is
good cause under the Administrative Procedure Act (5 U.S.C 553(d)(3))
to waive the 30-day delay in the effective date of this final rule. No
individual or entity other than NPS is affected by the provisions of
these regulations. NPS has informed NMFS that it requests that this
final rule take effect on or by March 1, 2019, to accommodate NPS's
research planned to begin March 1, 2019, with its current IHA expiring
February 28, 2019, so as to not cause a disruption in planned research
and monitoring activities. The request to authorize take for NPS
activities in the SWAN region and resulted in delays in receiving a
revised and complete application. NMFS was also unable to accommodate
the 30-day delay of effectiveness period due to the need for additional
time to address public comment and carry out required review, which was
delayed by the partial Federal government shutdown in December 2018 and
January 2019. The waiver of the 30-day delay of the effective date of
the final rule will ensure that the MMPA final rule and LOAs are in
place by the time the previous authorization expires. Any delay in
finalizing the rule would result in either: (1) A suspension of planned
research and monitoring, which would result in lost data and wasted
funds; or (2) NPS's procedural non-compliance with the MMPA (should NPS
conduct research and monitoring without LOAs), thereby resulting in the
potential for unauthorized takes of marine mammals. Moreover, NPS is
ready to implement the rule immediately. For these reasons, NMFS finds
good cause to waive the 30-day delay in the effective date. In
addition, the LOAs allow for authorization of incidental take of marine
mammals that would otherwise be prohibited under the statute. Therefore
the rule is granting an exception to NPS and relieving restrictions
under the MMPA, which is a separate basis for waiving the 30-day
effective date for the rule.
List of Subjects in 50 CFR Part 217
Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and recordkeeping requirements, Seafood,
Transportation.
Dated: March 4, 2019.
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 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., unless otherwise noted.
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.
217.28-217.29 [Reserved]
Subpart C--Taking Marine Mammals Incidental to Research and
Monitoring in Southern Alaska National Parks
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 Letters 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 7, 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, provided the activity is in
compliance with all terms, conditions, and requirements of the
regulations in this subpart and the appropriate LOA.
[[Page 8275]]
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. Sec.
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);
and
(3) NPS must avoid interaction with any marine mammal species for
which take is not authorized (or any species for which authorized take
numbers have been met). For humpback, killer, and beluga whales, NPS
must avoid operation of a motor vessel within \1/4\ nautical mile of
these cetaceans. If accidentally positioned within \1/4\ nautical mile
of these cetaceans, NPS must slow the vessel speed to 10 knots or less
and maintain course away from the marine mammal 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; and
(10) NPS must maintain a quiet working atmosphere, avoid loud
noises, and must use hushed voices in the presence of hauled-out
pinnipeds; and
(c) SWAN marine bird 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; and
(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 must 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 must 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 must 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 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 must 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 must report that information to
NMFS's Alaska Fisheries Science Center and/or the Alaska Department of
Fish and Game Marine Mammal Program.
(c) Annual reporting. 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 8276]]
the Authorization and full documentation of methods, results, and
interpretation pertaining to all monitoring.
(d) Comprehensive reporting. 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 paragraph (e)(1) of this section. 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; and
(5) Pursuant to paragraphs (e)(2) through (4) of this section, 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 (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
[[Page 8277]]
of proposed LOA in the Federal Register and solicit public comment.
(2) Emergencies. If NMFS determines that an emergency exists that
poses a 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. Sec. 217.28-217.29 [Reserved]
[FR Doc. 2019-04107 Filed 3-6-19; 8:45 am]
BILLING CODE 3510-22-P
