83_FR_19321 83 FR 19236 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Seabird and Shorebird Research and Monitoring in Massachusetts

83 FR 19236 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Seabird and Shorebird Research and Monitoring in Massachusetts

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 83, Issue 85 (May 2, 2018)

Page Range19236-19243
FR Document2018-09239

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

Federal Register, Volume 83 Issue 85 (Wednesday, May 2, 2018)
[Federal Register Volume 83, Number 85 (Wednesday, May 2, 2018)]
[Notices]
[Pages 19236-19243]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-09239]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XF933


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Seabird and Shorebird Research and 
Monitoring in Massachusetts

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

ACTION: Notice; issuance of an incidental harassment authorization.

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

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

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

[[Page 19237]]


FOR FURTHER INFORMATION CONTACT: Amy Fowler, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the IHA and 
supporting documents, as well as a list of the references cited in this 
document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-research-and-other-activities. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION: 

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (as delegated to NMFS) to allow, upon 
request, the incidental, but not intentional, taking of small numbers 
of marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are made and either regulations are issued or, if 
the taking is limited to harassment, a notice of a authorization is 
provided to the public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.
    The MMPA states that the term ``take'' means to harass, hunt, 
capture, kill or attempt to harass, hunt, capture, or kill any marine 
mammal.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: Any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our action (i.e., the issuance of an incidental 
harassment authorization) with respect to potential impacts on the 
human environment.
    This action is consistent with categories of activities identified 
in CE B4 of the Companion Manual for NOAA Administrative Order 216-6A, 
which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has determined 
that the issuance of the IHA qualifies to be categorically excluded 
from further NEPA review.

Summary of Request

    On December 5, 2017, NMFS received a request from the USFWS for an 
IHA to take marine mammals incidental to seabird and shorebird 
monitoring and research activities within the Complex. NMFS determined 
the application adequate and complete on December 18, 2017. The USFWS's 
request was for take of gray seals and harbor seals by Level B 
harassment only. Neither the USFWS nor NMFS expect mortality to result 
from this activity and, therefore, an IHA is appropriate.
    NMFS previously issued an IHA to the USFWS for similar work (82 FR 
12342, March 2, 2017). The USFWS complied with all the requirements 
(e.g., mitigation, monitoring, and reporting) of the previous IHA and 
information regarding their monitoring may be found in the Estimated 
Take section.

Description of Activity

    The USFWS plans to conduct biological tasks for refuge purposes at 
Monomoy National Wildlife Refuge (NWR), Nantucket NWR, and Nomans Land 
Island NWR in Massachusetts. These three refuges are managed through 
the Complex as part of the NWR System of the USFWS. Complex staff 
census and monitor the presence and productivity of breeding and 
migrating shorebirds using the beaches of Monomoy, Nantucket, and 
Nomans Land Island NWRs from April 1-November 30, annually. Monitoring 
activities occur daily (on Monomoy and Nantucket) from April-August and 
are necessary to document the productivity (number of chicks fledged 
per pair) and population of protected shorebird and seabird species. 
Monomoy NWR also participates in several less frequent, but equally 
important, high priority conservation tasks to monitor for threatened 
and endangered species, including censusing northeastern beach tiger 
beetles (Cicindela dorsalis) and participating in a red knot (Calidris 
canutus) migration study during southward migration. Additionally, both 
Monomoy and Nantucket NWRs serve as vital staging grounds for migrating 
roseate terns (Sterna dougallii), where USFWS staff resight and stage 
counts.
    A detailed description of the planned monitoring and research 
project is provided in the Federal Register notice for the proposed IHA 
(83 FR 9463; March 6, 2018). Since that time, no changes have been made 
to the planned activities. Therefore, a detailed description is not 
provided here. Please refer to that Federal Register notice for the 
description of the specific activity.

Comments and Responses

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

[[Page 19238]]

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

Description of Marine Mammals in the Area of Specified Activities

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

             Table 1--General Information on Marine Mammals in the Vicinity of Eastern Massachusetts National Wildlife Refuge, Massachusetts
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/ MMPA status;   Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
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                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Gray seal.......................  Halichoerus grypus       Western North Atlantic.  -, N                27,131 (N/A, 27,131,        1,554      5,207
                                       atlantica.                                                            2016).
    Harbor seal.....................  Phoca vitulina concolor  Western North Atlantic.  -, N                75,834 (0.15, 66,884,       2,006        368
                                                                                                             2012).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of
  stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
  associated with estimated mortality due to commercial fisheries is presented in some cases.

Sound Sources and Sound Characteristics

    NMFS does not expect acoustic stimuli to result from human 
presence, and will therefore not have the potential to harass marine 
mammals, incidental to the conduct of the activities. One activity 
(cannon nets) may have an acoustic component, but we believe take from 
this activity can be avoided.
    This section includes a brief explanation of the sound measurements 
frequently used in the discussions of acoustic effects in this notice. 
Sound pressure is the sound force per unit area, and is usually 
measured in micropascals ([micro]Pa), where 1 pascal (Pa) is the 
pressure resulting from a force of one newton exerted over an area of 
one square meter. Sound pressure level (SPL) is the ratio of a measured 
sound pressure and a reference level. The commonly used reference 
pressure is 1 [micro]Pa for underwater, and the units for SPLs are dB 
re: 1 [micro]Pa. The commonly used reference pressure is 20 [micro]Pa 
for in air, and the units for SPLs are dB re: 20 [micro]Pa.

SPL (in decibels (dB)) = 20 log (pressure/reference pressure).

    SPL is an instantaneous measurement expressed as the peak, the 
peak-peak, or the root mean square (rms). Root mean square is the 
square root of the arithmetic average of the squared instantaneous 
pressure values. All references to SPL in this document refer to the 
root mean square unless otherwise noted. SPL does not take into account 
the duration of a sound.

Research Activities Sound Characteristics

    Activities that may have an acoustic component (e.g., cannon nets) 
are not expected to reach the thresholds for Level B harassment. Cannon 
nets could be an airborne source of noise, and have a measured SL of 
128 dB at one meter (m) (estimated based on a measurement of 98.4 dB at 
30 m; L. Niles, pers. comm., December 2016); however, the SPL is 
expected to be less than the thresholds for airborne pinniped 
disturbance (e.g., 90 dB for harbor seals, and 100 dB for all other 
pinnipeds) at 80 meters from the source. The USFWS proposes to stay at 
least 100 meters from all pinnipeds if cannon nets are to be used for 
research purposes.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

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

Estimated Take

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

[[Page 19239]]

whether the number of takes is ``small'' and the negligible impact 
determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as: Any act of 
pursuit, torment, or annoyance which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes are by Level B harassment only, in the form of 
disruption of behavioral patterns for individual marine mammals 
resulting from exposure to USFWS research and monitoring surveys. NMFS 
expects that the presence of the USFWS personnel could disturb animals 
hauled out on beaches near research activities and that the animals may 
alter their behavior or attempt to move away from the USFWS personnel. 
Based on the nature of the activity, Level A harassment is neither 
anticipated nor authorized.
    As described previously, no mortality is anticipated or authorized 
for this activity. Below we describe how the take is estimated.
    Behavior of seals is recorded on a three point scale (1 = alert 
reaction, not considered harassment; 2 = moving at least two body 
lengths, or change in direction >90 degrees; and 3 = flushing) (Table 
2). Only levels 2 and 3 are considered take.

 Table 2-- Disturbance Scale of Pinniped Responses to In-Air Sources To
                             Determine Take
------------------------------------------------------------------------
     Level         Type of response               Definition
------------------------------------------------------------------------
1..............  Alert..............  Seal head orientation or brief
                                       movement in response to
                                       disturbance, which may include
                                       turning head towards the
                                       disturbance, craning head and
                                       neck while holding the body rigid
                                       in a u-shaped position, changing
                                       from a lying to a sitting
                                       position, or brief movement of
                                       less than twice the animal's body
                                       length.
2..............  Movement...........  Movements in response to the
                                       source of disturbance, ranging
                                       from short withdrawals at least
                                       twice the animal's body length to
                                       longer retreats over the beach,
                                       or if already moving a change of
                                       direction of greater than 90
                                       degrees.
3..............  Flush..............  All retreats (flushes) to the
                                       water.
------------------------------------------------------------------------

Marine Mammal Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations. Take estimates are based on historical marine mammal 
observations at each site from previous USFWS survey activities.
    Gray Seal--Little information is known about gray seal age and sex 
distribution at the Complex. Gray seals may use Complex sites for 
pupping but research and monitoring activities are not performed during 
the breeding season, so no newborn pups will be disturbed. Group 
composition of individuals present at activity sites are likely to be 
of mixed age and sex classes.
    The greatest disturbance to gray seals is expected to occur during 
the beach nesting bird breeding season from April to August. During 
April and May, when seals are hauled out in very large numbers on the 
refuge, they may be present at beaches of varying widths, between 30 m 
and 300 m. In narrower areas, all of the seals may be disturbed; in 
mid-width areas, some of the younger and smaller seals may flush, but 
large males may remain on the beach; and in the widest area, USFWS 
activities may have no impact on the hauled out seals. USFWS staff 
conduct research and monitoring work outside of the season of highest 
gray seal numbers.
    Harbor Seal--Peak pupping for harbor seals is in June and occurs 
elsewhere, mainly on the coasts of Maine and maritime Canada. Prior to 
a 2001 study, it was thought that the majority of migrating harbor 
seals moving into New England waters were sub-adults and juveniles. The 
study revealed that adult seals also migrate to waters around Cape Cod 
(NOAA 2015b). However, data on harbor seal sex and age distribution is 
still insufficient to report. Harbor seals are only noted in gray seal 
haulouts if they are spotted by USFWS staff or researchers. USFWS staff 
estimate that gray seal haulouts are comprised of five percent or less 
harbor seals based on field observations, as harbor seals are not 
always seen mixed in with every gray seal haulout. Harbor seal numbers 
taper during the summer time when the highest level of seal disturbance 
occurs.

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate. As discussed earlier, 
NMFS assumes that pinnipeds that move greater than two body lengths or 
make longer retreats over the beach, or if already moving, make a 
change of direction of greater than 90 degrees or flush into the water 
in response to the presence of surveyors, are behaviorally harassed, 
and thus subject to Level B taking. Take estimation is based on the 
number of seals observed in past research years that have been flushed 
during research activities.
    This estimate is based on the number of seals observed in past 
research years that have been flushed during research activities. USFWS 
used their knowledge of the number of seals that use the haulouts near 
their research activities, and how many of these may be taken (Levels 2 
and 3 on the disturbance scale). The majority of takes will occur on 
Monomoy NWR, which is one of the main haulouts for gray seals in the 
country. While the average number of gray seals present (in regards to 
Monomoy NWR) is less than observed counts (B. Josephson, NOAA, pers. 
comm.), not every hauled-out seal on the beach is impacted from each 
activity and not all seals are impacted from every activity event. This 
is especially true for Monomoy NWR because the seal haulout stretches 
across over four miles of beach. For example, the gray seal counts on 
Monomoy NWR are very high, but the beaches are very large, and most of 
the work takes place on the upper berm close to the dune (farther away 
from seals). During April and May when seals are hauled out in very 
large numbers on the refuge, they may be present at beaches of varying 
width, between 30 m and 300 m. In narrower areas, all of the seals may 
be flushed; in mid-width areas, some of the younger and smaller seals 
may flush, but large males may remain on the beach; and in the widest 
area, USFWS activities may have no impact at all on the hauled out 
seals. Also, the amount of disturbance to seals may vary based on staff 
activities (e.g., if project activities require staff to walk quickly 
through an area versus

[[Page 19240]]

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

  Table 3--Estimated Number of Gray Seal Takes per Activity at Monomoy, Nantucket, and Nomans Land Island NWRs
----------------------------------------------------------------------------------------------------------------
                                                    Gray seal
-----------------------------------------------------------------------------------------------------------------
                              Age: all                                           Sex: male and female
----------------------------------------------------------------------------------------------------------------
                                              Number takes/event        Number events/activity      Total takes
----------------------------------------------------------------------------------------------------------------
Shorebird and Seabird Monitoring and      1,000 (Monomoy)...........  34 (Monomoy)..............          34,430
 Research.
                                          50 (Nantucket)............  8 (Nantucket).
                                          10 (Nomans)...............  3 (Nomans).
Roseate Tern Staging Counts and           10 (Monomoy)..............  6 (Monomoy)...............             100
 Resighting.
                                          10 (Nantucket)............  4 (Nantucket).
Red Knot Stopover Study.................  250 (Monomoy).............  5 (Monomoy)...............           2,000
                                          150 (Cape Cod)............  5 (Cape Cod).
Northeastern Beach Tiger Beetle Census..  750 (Monomoy).............  3 (Monomoy)...............           2,250
Coastal Shoreline Change Survey.........  500 (Monomoy).............  1 (Monomoy)...............             500
                                         -----------------------------------------------------------------------
    Total...............................  ..........................  ..........................          39,280
----------------------------------------------------------------------------------------------------------------

    It is unclear exactly how many harbor seals occur at the Complex, 
therefore it is difficult to determine how many takes occur since 
harbor seals are mainly present during the off season when research and 
monitoring is limited. Harbor seals are not present at all gray seal 
haulouts but at haulouts where both species are present, USFWS staff 
estimate that gray seal haulouts during the summer are comprised of 5 
percent or less harbor seals. Due to the lack of available data on 
presence, harbor seal takes are not broken down by activity or site. 
Rather, the number of harbor seal Level B takes requested was 
calculated by taking 5 percent of the total gray seal take estimate. 
USFWS is requesting 1,964 Level B takes of harbor seals incidental to 
research and monitoring activities.

Mitigation Measures

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to such 
activity, and other means of effecting the least practicable impact on 
such species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting such 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned) the likelihood of effective implementation (probability 
implemented as planned); and
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.

Mitigation for Marine Mammals and Their Habitat

    Time and Frequency--The USFWS plans to conduct research activities 
throughout the course of the year between April 1 and November 30, 
2018, outside of the seasons of highest seal abundance and pupping at 
the Complex.
    Vessel Approach and Timing Techniques--The USFWS shall ensure that 
its vessel approaches to beaches with pinniped haulouts would be 
conducted so as to not disturb marine mammals as most practicable. To 
the extent possible, the vessel shall approach the beaches in a slow 
and controlled approach, as far away as possibly from haulouts to 
prevent or minimize flushing. Staff shall also avoid or proceed 
cautiously when operating boats in the direct path of swimming seals 
that may be present in the area.
    Avoidance of Acoustic Impacts from Cannon Nets--Cannon nets have a 
measured SL of 128 dB at one meter (m) (estimated based on a 
measurement of 98.4 dB at 30 m; L. Niles, pers. comm., December 2016); 
however, the SPL is expected to be less than the thresholds for 
airborne pinniped disturbance (e.g., 90 dB for harbor seals, and 100 dB 
for all other pinnipeds) at 80 yards from the source. The USFWS shall 
stay at least 100 meters from all pinnipeds if cannon nets are to be 
used for research purposes.

[[Page 19241]]

    Avoidance of Visual and Acoustic Contact with People--The USFWS 
shall instruct its members and research staff to avoid making 
unnecessary noise and not expose themselves visually to pinnipeds 
whenever practicable. USFWS staff shall stay at least 50 yards from 
hauled out pinnipeds, unless it is absolutely necessary to approach 
seals closer, or potentially flush a seal, in order to continue 
conducting endangered species conservation work. When disturbance is 
unavoidable, staff shall work quickly and efficiently to minimize the 
length of disturbance. Researchers and staff will do so by proceeding 
in a slow and controlled manner, which allows for the seals to slowly 
flush into the water. Staff shall also maintain a quiet working 
atmosphere, avoiding loud noises, and using hushed voices in the 
presence of hauled out pinnipeds. Pathways of approach to the desired 
study or nesting site shall be chosen to minimize seal disturbance if 
an activity event may result in the disturbance of seals. USFWS staff 
shall scan the surrounding waters near the haulouts, and if predators 
(i.e., sharks) are seen, seals shall not be flushed by USFWS staff.
    Researchers, USFWS staff, and volunteers shall be properly informed 
about the MMPA take prohibitions, and shall educate the public on the 
importance of not disturbing marine mammals, when applicable. Staff at 
Nantucket NWR shall remain present on the beaches utilized by pinnipeds 
to prevent anthropogenic disturbance during times of high public use 
(late spring to early fall). Staff at Monomoy NWR shall also be present 
on beaches utilized by seals during the same time of year, and will 
inform the public to keep a distance from haulouts if an issue is 
noticed. Similar to the USFWS, the NPS also takes precautionary 
mitigation to help prevent seal take by the public. In August and on 
the weekends in September, staff and volunteers are present on the 
National Seashore beaches to share with the public the importance of 
preventing disturbance to seals by keeping people at a proper viewing 
distance of at least 50 yards.
    The presence/proximity of seal haulouts and the loud sound created 
by the firing of cannon nets are taken into consideration when 
selecting trapping sites for the Red Knot Stopover Study. Trapping 
sites are decided based on the presence of red knots, the number of 
juveniles located within roosts, and the observation of birds with 
attached geolocators and flags. Sites are not trapped on if there is a 
strong possibility of disturbing seals (i.e., closer than 100 meters). 
The Red Knot Stopover Study occurs during the time of year (July to 
September) when the least number of seals are present at the activity 
sites.
    The mitigation measures are designed to minimize the potential for 
behavioral harassment of pinnipeds hauled out near the survey sites. 
The research and monitoring surveys occur outside of the period of 
highest seal abundance at the Complex. While the survey timing overlaps 
with harbor seal pupping season, pupping is not known to occur at the 
Complex. Gray seal pupping has been documented at the Complex but 
generally occurs between December and February, when USFWS staff will 
not be conducting surveys. We believe the previously stated mitigation 
measures are practicable for the applicant to implement.
    Based on our evaluation of the applicant's planned measures, NMFS 
has determined that the mitigation measures provide the means effecting 
the least practicable impact on the affected species or stocks and 
their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance.

Monitoring and Reporting

Monitoring

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
action area. Effective reporting is critical both to compliance as well 
as ensuring that the most value is obtained from the required 
monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.
    The USFWS shall conduct marine mammal monitoring, in order to 
implement the mitigation measures that require real-time monitoring, 
and satisfy the monitoring requirements of the IHA. These include:
    Monitoring seals as project activities are being conducted. 
Monitoring requirements in relation to the USFWS's activities include 
species counts, numbers of observed disturbances, and descriptions of 
the disturbance behaviors during the research activities, including 
location, date, and time of the event. In addition, the USFWS shall 
record observations regarding the number and species of any marine 
mammals either observed in the water or hauled out. Behavior of seals 
shall be recorded on a three point scale: (1) Alert reaction, not 
considered harassment; (2) moving at least two body lengths, or change 
in direction greater than 90 degrees; (3) flushing (Table 2). USFWS 
staff shall also record and report all observations of sick, injured, 
or entangled marine mammals to the Greater Atlantic Regional Stranding 
Coordinator. Tagged or marked marine mammals shall also be recorded and 
reported to the appropriate research organization or Federal agency, as 
well as any rare or unusual species of marine mammal. Photographs shall 
be taken when possible. This information shall be incorporated into a 
report for NMFS at the end of the season. The USFWS shall also 
coordinate with any university, state, or Federal researchers to attain 
additional data or observations that may be useful for monitoring 
marine mammal usage at the activity sites.
    If at any time injury, serious injury, or mortality of the species 
for which take

[[Page 19242]]

is authorized should occur, or if take of any kind of other marine 
mammal occurs, and such action may be a result of the USFWS's 
activities, the USFWS shall suspend research activities and contact 
NMFS immediately to determine how best to proceed to ensure that 
another injury or death does not occur and to ensure that the applicant 
remains in compliance with the MMPA.

Reporting

    The USFWS shall submit a draft report to NMFS Office of Protected 
Resources no later than 90 days after the conclusion of research and 
monitoring activities in the 2018 season. The report shall include a 
summary of the information gathered pursuant to the monitoring 
requirements set forth in the IHA. The USFWS shall submit a final 
report to NMFS within 30 days after receiving comments from NMFS on the 
draft report. If the USFWS receives no comments from NMFS on the draft 
report, NMFS will consider the draft report to be the final report.
    The report shall describe the operations conducted and sightings of 
marine mammals near the project. The report shall provide full 
documentation of methods, results, and interpretation pertaining to all 
monitoring. The report shall provide:
    1. A summary and table of the dates, times, and weather during all 
research activities;
    2. Species, number, location, and behavior of any marine mammals 
observed throughout all monitoring activities;
    3. An estimate of the number (by species) of marine mammals exposed 
to human presence associated with the USFWS's activities; and
    4. A description of the implementation and effectiveness of the 
monitoring and mitigation measures of the IHA and full documentation of 
methods, results, and interpretation pertaining to all monitoring.
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the 
authorization, such as an injury (Level A harassment), serious injury, 
or mortality (e.g., stampede), USFWS personnel shall immediately cease 
the specified activities and immediately report the incident to the 
Chief, Permits and Conservation Division, Office of Protected 
Resources, NMFS, and the Northeast Regional Stranding Coordinator. The 
report must include the following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Description and location of the incident (including water 
depth, if applicable);
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    The USFWS shall not resume its activities until NMFS is able to 
review the circumstances of the prohibited take. We will work with the 
USFWS to determine what is necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. The USFWS may not 
resume their activities until notified by us via letter, email, or 
telephone.
    In the event that the USFWS discovers an injured or dead marine 
mammal, and the marine mammal observer determines that the cause of 
injury or death is unknown and the death is relatively recent (i.e., in 
less than a moderate state of decomposition as we describe in the next 
paragraph), the USFWS shall immediately report the incident to the 
Chief, Permits and Conservation Division, Office of Protected 
Resources, NMFS, and the Northeast Regional Stranding Coordinator. The 
report must include the same information identified in the paragraph 
above this section. Activities may continue while NMFS reviews the 
circumstances of the incident. NMFS would work with the USFWS to 
determine whether modifications in the activities are appropriate.
    In the event that the USFWS discovers an injured or dead marine 
mammal, and the lead visual observer determines that the injury or 
death is not associated with or related to the authorized activities 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), the USFWS shall report the 
incident to the Chief, Permits and Conservation Division, Office of 
Protected Resources, NMFS, and the Northeast Regional Stranding 
Coordinator within 24 hours of the discovery. The USFWS personnel shall 
provide photographs or video footage (if available) or other 
documentation of the stranded animal sighting to us. The USFWS can 
continue their survey activities while NMFS reviews the circumstances 
of the incident.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    Although the USFWS's survey activities may disturb a small number 
of marine mammals hauled out on beaches in the Complex, NMFS expects 
those impacts to occur to a localized group of animals. Marine mammals 
would likely become alert or, at most, flush into the water in reaction 
to the presence of the USFWS personnel during the activities. Much of 
the disturbance will be limited to a short duration, allowing marine 
mammals to reoccupy haulouts within a short amount of time. Thus, the 
action is unlikely to result in long-term impacts such as permanent 
abandonment of the area because of the availability of alternate areas 
for pinnipeds to avoid the resultant acoustic and visual disturbances 
from the research activities.
    The USFWS's activities would occur during the least sensitive time 
(e.g., April through November, outside of the pupping season) for 
hauled out pinnipeds in the Complex. Thus, pups

[[Page 19243]]

or breeding adults would not be present during the activity days.
    Moreover, the USFWS's mitigation measures regarding vessel 
approaches and procedures that attempt to minimize the potential to 
harass the seals would minimize the potential for flushing and large-
scale movements. Thus, the potential for large-scale movements and 
flushing leading to injury, serious injury, or mortality is low.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
     No injury (Level A harassment) or serious injury is 
anticipated or authorized;
     No mortality is anticipated or authorized;
     Impacts will occur to a localized group of animals;
     Disturbance will be limited to a short duration, allowing 
marine mammals to reoccupy haulouts within a short amount of time;
     Activities will occur during the least sensitive time 
(e.g., April through November, outside of pupping season) for pinnipeds 
hauled out in the Complex, therefore no pups or breeding adults would 
be present during the activity days; and
     The USFWS's mitigation measures regarding visual and 
acoustic disturbance to hauled out pinnipeds would minimize the 
potential for flushing and large-scale movements, therefore the 
potential for large-scale movements and flushing leading to injury, 
serious injury, or mortality is low;
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the 
activity will have a negligible impact on all affected marine mammal 
species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under section 101(a)(5)(D) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, where estimated numbers are 
available, NMFS compares the number of individuals taken to the most 
appropriate estimation of abundance of the relevant species or stock in 
our determination of whether an authorization is limited to small 
numbers of marine mammals. Additionally, other qualitative factors may 
be considered in the analysis, such as the temporal or spatial scale of 
the activities.
    These incidental harassment take numbers represent less than three 
percent of the affected stocks of harbor seals.
    Under the 2017 draft SARs, the take number of gray seals exceeds 
the stock abundance estimate in U.S. waters. However, actual take may 
be slightly less if animals decide to haul out at a different location 
for the day or if animals are foraging at the time of the survey 
activities. The number of individual seals taken is also assumed to be 
less than the take estimate since these species show high philopatry 
(Waring et al., 2016; Wood et al., 2011). We expect the take numbers to 
represent the number of exposures, but assume that the same seals may 
be behaviorally harassed over multiple days, and the likely number of 
individual seals that may be harassed would be less. In addition, this 
project occurs in a small portion of the overall range of the Northwest 
Atlantic population of gray seals. While there is evidence of haulout 
site philopatry, resights of tagged and branded animals and satellite 
tracks of tagged animals show movement of individuals between the 
United States and Canada (Puryear et al., 2016). The percentage of time 
that individuals are resident in U.S. waters is unknown (NMFS 2017). 
Genetic evidence provides a high degree of certainty that the Western 
North Atlantic stock of gray seals is a single stock (Boskovic et al., 
1996; Wood et al., 2011). Thus, although the U.S. stock estimate is 
only 27,131, the overall stock abundance is 451,131. The gray seal take 
estimate for this project represents less than nine percent of the 
overall Western North Atlantic stock abundance in U.S. and Canadian 
waters (Table 4).
    Based on the analysis contained herein of the activity (including 
the mitigation and monitoring measures) and the anticipated take of 
marine mammals, NMFS finds that small numbers of marine mammals will be 
taken relative to the population size of the affected species or 
stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act (ESA)

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

Authorization

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

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



                                               19236                                   Federal Register / Vol. 83, No. 85 / Wednesday, May 2, 2018 / Notices

                                               authorization is limited to small                                      temporal or spatial scale of the                                       amount of take proposed is less than 3.5
                                               numbers of marine mammals.                                             activities.                                                            percent of all stocks except beluga
                                               Additionally, qualitative factors may be                                 Table 7 provides the quantitative                                    whales. For beluga whales, the amount
                                               considered in the analysis, such as the                                analysis informing our small numbers                                   of take proposed represents 12.8 percent
                                                                                                                      determination. For most species, the                                   of the population.
                                                                                TABLE 7—PERCENT OF STOCK PROPOSED TO BE TAKEN BY LEVEL B HARASSMENT
                                                                                                                                                                                             Abundance      Proposed take         % of
                                                                          Species                                                                  Stock                                      (Nbest)         (Level B)         population

                                               Beluga whale ..................................................       Cook Inlet .......................................................              312               2 40                12.8
                                               Humpback whale ............................................           Central North Pacific ......................................                 10,103                  5                0.04
                                               Killer whale ......................................................   Alaska Resident .............................................                 2,347                                    0.4
                                                                                                                     Gulf of Alaska, Aleutian, Bering Sea Tran-                                      587               3 10                 1.7
                                                                                                                       sient.
                                               Harbor porpoise ..............................................        Gulf of Alaska .................................................             31,046                100                 0.3
                                               Harbor seal .....................................................     Cook Inlet/Shelikof Strait ................................                  27,386                972                  3.5
                                               Steller sea lion ................................................     Western U.S. ..................................................              50,983                  6                0.01
                                               Gray whale ......................................................     Eastern North Pacific .....................................                  20,990                  5                0.02
                                               California sea lion ...........................................       U.S. ................................................................       296,750                  5               0.001



                                                  Based on the analysis contained                                       Based on the description of the                                      mentioned mitigation, monitoring and
                                               herein of the proposed activity                                        specified activity, the measures                                       reporting requirements are incorporated.
                                               (including the mitigation and                                          described to minimize adverse effects                                  Donna S. Wieting,
                                               monitoring measures) and the                                           on the availability of marine mammals
                                               anticipated take of marine mammals,                                                                                                           Director, Office of Protected Resources,
                                                                                                                      for subsistence purposes, and the                                      National Marine Fisheries Service.
                                               NMFS finds that small numbers of                                       mitigation and monitoring measures,
                                               marine mammals will be taken relative                                                                                                         [FR Doc. 2018–09242 Filed 5–1–18; 8:45 am]
                                                                                                                      NMFS has determined there will not be
                                               to the population size of the affected                                 an unmitigable adverse impact on
                                                                                                                                                                                             BILLING CODE 3510–22–P

                                               species or stocks.                                                     subsistence uses from Harvest’s
                                               Unmitigable Adverse Impact Analysis                                    proposed activities.                                                   DEPARTMENT OF COMMERCE
                                               and Determination
                                                                                                                      Endangered Species Act (ESA)                                           National Oceanic and Atmospheric
                                                  In order to issue an IHA, NMFS must
                                               find that the specified activity will not                                 Section 7(a)(2) of the Endangered                                   Administration
                                               have an ‘‘unmitigable adverse impact’’                                 Species Act of 1973 (ESA: 16 U.S.C.
                                               on the subsistence uses of the affected                                1531 et seq.) requires that each Federal                               RIN 0648–XF933
                                               marine mammal species or stocks by                                     agency insure that any action it
                                               Alaskan Natives. NMFS has defined                                                                                                             Takes of Marine Mammals Incidental to
                                                                                                                      authorizes, funds, or carries out is not
                                               ‘‘unmitigable adverse impact’’ in 50 CFR                                                                                                      Specified Activities; Taking Marine
                                                                                                                      likely to jeopardize the continued
                                               216.103 as an impact resulting from the                                                                                                       Mammals Incidental to Seabird and
                                                                                                                      existence of any endangered or
                                               specified activity (1) that is likely to                                                                                                      Shorebird Research and Monitoring in
                                                                                                                      threatened species or result in the                                    Massachusetts
                                               reduce the availability of the species to                              destruction or adverse modification of
                                               a level insufficient for a harvest to meet                             designated critical habitat. To ensure                                 AGENCY:  National Marine Fisheries
                                               subsistence needs by (i) causing the                                   ESA compliance for the issuance of                                     Service (NMFS), National Oceanic and
                                               marine mammals to abandon or avoid                                     IHAs, NMFS consults internally, in this                                Atmospheric Administration (NOAA),
                                               hunting areas; (ii) directly displacing                                                                                                       Commerce.
                                                                                                                      case with Alaska Regional Office,
                                               subsistence users; or (iii) placing
                                                                                                                      whenever we propose to authorize take                                  ACTION: Notice; issuance of an incidental
                                               physical barriers between the marine
                                               mammals and the subsistence hunters;                                   for endangered or threatened species.                                  harassment authorization.
                                               and (2) that cannot be sufficiently                                       On April 25, 2018, NMFS Alaska
                                                                                                                                                                                             SUMMARY:    In accordance with the
                                               mitigated by other measures to increase                                Region issued a Biological Opinion to
                                                                                                                                                                                             regulations implementing the Marine
                                               the availability of marine mammals to                                  NMFS Office of Protected Resources
                                                                                                                                                                                             Mammal Protection Act (MMPA) as
                                               allow subsistence needs to be met.                                     which concluded Harvest’s CIPL project                                 amended, notification is hereby given
                                                  The village of Tyonek engages in                                    is not likely to jeopardize the continued                              that NMFS has issued an incidental
                                               subsistence harvests; however, these                                   existence of Cook Inlet beluga whales,                                 harassment authorization (IHA) to the
                                               efforts are concentrated in areas such as                              the WDPS Steller sea lions, or Mexico                                  U.S. Fish and Wildlife Service (USFWS)
                                               the Susitna Delta where marine                                         and Western North Pacific humpback                                     to incidentally harass, by Level B
                                               mammals are known to occur in greater                                  whales DPSs or destroy or adversely                                    harassment only, marine mammals
                                               abundance. Harbor seals are the only                                   modify critical habitat.                                               during survey activities associated with
                                               species taken by Alaska Natives that
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                                                                                                                      Authorization                                                          the seabird and shorebird monitoring
                                               may also be harassed by the proposed
                                                                                                                                                                                             project at the Eastern Massachusetts
                                               project. However, any harassment to
                                                                                                                        NMFS has issued an IHA to Harvest                                    National Wildlife Refuge Complex
                                               harbor seals is anticipated to be short-
                                                                                                                      for the harassment of small numbers of                                 (Complex).
                                               term, mild, and not result in any
                                               abandonment or behaviors that would                                    eight marine mammal species incidental                                 DATES:This authorization is effective
                                               make the animals unavailable to Alaska                                 to pipeline installation activities in                                 from April 1, 2018 through March 31,
                                               Natives.                                                               Cook Inlet, provided the previously                                    2019.


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                                                                             Federal Register / Vol. 83, No. 85 / Wednesday, May 2, 2018 / Notices                                             19237

                                               FOR FURTHER INFORMATION CONTACT:                        National Environmental Policy Act                     seabird species. Monomoy NWR also
                                               Amy Fowler, Office of Protected                            To comply with the National                        participates in several less frequent, but
                                               Resources, NMFS, (301) 427–8401.                        Environmental Policy Act of 1969                      equally important, high priority
                                               Electronic copies of the IHA and                        (NEPA; 42 U.S.C. 4321 et seq.) and                    conservation tasks to monitor for
                                               supporting documents, as well as a list                 NOAA Administrative Order (NAO)                       threatened and endangered species,
                                               of the references cited in this document,                                                                     including censusing northeastern beach
                                                                                                       216–6A, NMFS must review our action
                                               may be obtained online at: https://                                                                           tiger beetles (Cicindela dorsalis) and
                                                                                                       (i.e., the issuance of an incidental
                                               www.fisheries.noaa.gov/national/                                                                              participating in a red knot (Calidris
                                                                                                       harassment authorization) with respect
                                               marine-mammal-protection/incidental-                                                                          canutus) migration study during
                                                                                                       to potential impacts on the human
                                               take-authorizations-research-and-other-                                                                       southward migration. Additionally, both
                                                                                                       environment.
                                               activities. In case of problems accessing                                                                     Monomoy and Nantucket NWRs serve
                                                                                                          This action is consistent with
                                               these documents, please call the contact                                                                      as vital staging grounds for migrating
                                                                                                       categories of activities identified in CE
                                               listed above.                                                                                                 roseate terns (Sterna dougallii), where
                                                                                                       B4 of the Companion Manual for NOAA
                                                                                                                                                             USFWS staff resight and stage counts.
                                               SUPPLEMENTARY INFORMATION:                              Administrative Order 216–6A, which do                    A detailed description of the planned
                                                                                                       not individually or cumulatively have                 monitoring and research project is
                                               Background
                                                                                                       the potential for significant impacts on              provided in the Federal Register notice
                                                  Sections 101(a)(5)(A) and (D) of the                 the quality of the human environment                  for the proposed IHA (83 FR 9463;
                                               MMPA (16 U.S.C. 1361 et seq.) direct                    and for which we have not identified                  March 6, 2018). Since that time, no
                                               the Secretary of Commerce (as delegated                 any extraordinary circumstances that                  changes have been made to the planned
                                               to NMFS) to allow, upon request, the                    would preclude this categorical                       activities. Therefore, a detailed
                                               incidental, but not intentional, taking of              exclusion. Accordingly, NMFS has                      description is not provided here. Please
                                               small numbers of marine mammals by                      determined that the issuance of the IHA               refer to that Federal Register notice for
                                               U.S. citizens who engage in a specified                 qualifies to be categorically excluded                the description of the specific activity.
                                               activity (other than commercial fishing)                from further NEPA review.
                                               within a specified geographical region if                                                                     Comments and Responses
                                                                                                       Summary of Request
                                               certain findings are made and either                                                                             A notice of NMFS’s proposal to issue
                                               regulations are issued or, if the taking is                On December 5, 2017, NMFS received                 an IHA to the USFWS was published in
                                               limited to harassment, a notice of a                    a request from the USFWS for an IHA                   the Federal Register on March 6, 2018
                                               authorization is provided to the public                 to take marine mammals incidental to                  (83 FR 9483). That notice described, in
                                               for review.                                             seabird and shorebird monitoring and                  detail, the USFWS’s activities, the
                                                  An authorization for incidental                      research activities within the Complex.               marine mammal species that may be
                                               takings shall be granted if NMFS finds                  NMFS determined the application                       affected, and the anticipated effects on
                                               that the taking will have a negligible                  adequate and complete on December 18,                 marine mammals. During the 30-day
                                               impact on the species or stock(s), will                 2017. The USFWS’s request was for take                public comment period, the Marine
                                               not have an unmitigable adverse impact                  of gray seals and harbor seals by Level               Mammal Commission (Commission)
                                               on the availability of the species or                   B harassment only. Neither the USFWS                  provided comments as described below
                                               stock(s) for subsistence uses (where                    nor NMFS expect mortality to result                   and concurred with NMFS’s finding that
                                               relevant), and if the permissible                       from this activity and, therefore, an IHA             recommended the issuance of an IHA,
                                               methods of taking and requirements                      is appropriate.                                       subject to the inclusion of the
                                               pertaining to the mitigation, monitoring                   NMFS previously issued an IHA to                   mitigation, monitoring, and reporting
                                               and reporting of such takings are set                   the USFWS for similar work (82 FR                     measures.
                                               forth.                                                  12342, March 2, 2017). The USFWS                         Comment: The Commission requested
                                                                                                       complied with all the requirements (e.g.,             clarification of certain issues associated
                                                  NMFS has defined ‘‘negligible                                                                              with NMFS’s notice that one-year
                                                                                                       mitigation, monitoring, and reporting) of
                                               impact’’ in 50 CFR 216.103 as an impact                                                                       renewals could be issued in certain
                                                                                                       the previous IHA and information
                                               resulting from the specified activity that                                                                    limited circumstances and expressed
                                                                                                       regarding their monitoring may be
                                               cannot be reasonably expected to, and is                                                                      concern that the process would bypass
                                                                                                       found in the Estimated Take section.
                                               not reasonably likely to, adversely affect                                                                    the public notice and comment
                                               the species or stock through effects on                 Description of Activity
                                                                                                                                                             requirements. The Commission also
                                               annual rates of recruitment or survival.                  The USFWS plans to conduct                          suggested that NMFS should discuss the
                                                  The MMPA states that the term ‘‘take’’               biological tasks for refuge purposes at               possibility of renewals through a more
                                               means to harass, hunt, capture, kill or                 Monomoy National Wildlife Refuge                      general route, such as a rulemaking,
                                               attempt to harass, hunt, capture, or kill               (NWR), Nantucket NWR, and Nomans                      instead of notice in a specific
                                               any marine mammal.                                      Land Island NWR in Massachusetts.                     authorization. The Commission further
                                                  Except with respect to certain                       These three refuges are managed                       recommended that if NMFS did not
                                               activities not pertinent here, the MMPA                 through the Complex as part of the NWR                pursue a more general route, that the
                                               defines ‘‘harassment’’ as: Any act of                   System of the USFWS. Complex staff                    agency provide the Commission and the
                                               pursuit, torment, or annoyance which (i)                census and monitor the presence and                   public with a legal analysis supporting
                                               has the potential to injure a marine                    productivity of breeding and migrating                our conclusion that this process is
                                               mammal or marine mammal stock in the                    shorebirds using the beaches of                       consistent with the requirements of
                                               wild (Level A harassment); or (ii) has                  Monomoy, Nantucket, and Nomans                        101(a)(5)(D) of the MMPA.
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                                               the potential to disturb a marine                       Land Island NWRs from April 1–                           Response: The process of issuing a
                                               mammal or marine mammal stock in the                    November 30, annually. Monitoring                     renewal IHA does not bypass the public
                                               wild by causing disruption of behavioral                activities occur daily (on Monomoy and                notice and comment requirements of the
                                               patterns, including, but not limited to,                Nantucket) from April–August and are                  MMPA. The notice of the proposed IHA
                                               migration, breathing, nursing, breeding,                necessary to document the productivity                expressly notifies the public that under
                                               feeding, or sheltering (Level B                         (number of chicks fledged per pair) and               certain, limited conditions an applicant
                                               harassment).                                            population of protected shorebird and                 could seek a renewal IHA for an


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                                               19238                                   Federal Register / Vol. 83, No. 85 / Wednesday, May 2, 2018 / Notices

                                               additional year. The notice describes the                            language for future proposed IHAs to                            introductions to the species and
                                               conditions under which such a renewal                                clarify that all IHAs, including renewal                        relevant stocks as well as available
                                               request could be considered and                                      IHAs, are valid for no more than one                            information regarding population trends
                                               expressly seeks public comment in the                                year and that the agency would consider                         and threats, and information regarding
                                               event such a renewal is sought.                                      only one renewal for a project at this                          local occurrence, were provided in the
                                               Importantly, such renewals would be                                  time. In addition, notice of issuance or                        Federal Register notice for the proposed
                                               limited to where the activities are                                  denial of a renewal IHA would be                                IHA (83 FR 9463; March 6, 2018). Since
                                               identical or nearly identical to those                               published in the Federal Register, as are                       that time, we are not aware of any
                                               analyzed in the proposed IHA,                                        all IHAs. Last, NMFS will publish a                             changes in the status of these species
                                               monitoring does not indicate impacts                                 description of the renewal process on                           and stocks; therefore, detailed
                                               that were not previously analyzed and                                our website before any renewal is issued                        descriptions are not provided here.
                                               authorized, and the mitigation and                                   utilizing the new process.                                      Please refer to that Federal Register
                                               monitoring requirements remain the                                                                                                   notice for these descriptions as well as
                                                                                                                    Description of Marine Mammals in the
                                               same, all of which allow the public to                                                                                               to NMFS’ website (https://
                                                                                                                    Area of Specified Activities
                                               comment on the appropriateness and                                                                                                   www.fisheries.noaa.gov/topic/
                                               effects of a renewal at the same time the                               A detailed description of the species                        population-assessments/marine-
                                               public provides comments on the initial                              likely to be affected by the research and                       mammals) for generalized species
                                               IHA. NMFS has, however, modified the                                 monitoring project, including brief                             accounts.
                                                     TABLE 1—GENERAL INFORMATION ON MARINE MAMMALS IN THE VICINITY OF EASTERN MASSACHUSETTS NATIONAL
                                                                                    WILDLIFE REFUGE, MASSACHUSETTS
                                                                                                                                                                              ESA/
                                                                                                                                                                             MMPA          Stock abundance                 Annual
                                                         Common name                                 Scientific name                               Stock                     status;     (CV, Nmin, most recent   PBR      M/SI 3
                                                                                                                                                                            strategic     abundance survey) 2
                                                                                                                                                                             (Y/N) 1

                                                                                                                         Order Carnivora—Superfamily Pinnipedia

                                               Family Phocidae (earless seals):
                                                  Gray seal ............................    Halichoerus grypus atlantica ....       Western North Atlantic ..............   -, N        27,131 (N/A, 27,131,       1,554     5,207
                                                                                                                                                                                          2016).
                                                    Harbor seal .........................   Phoca vitulina concolor .............   Western North Atlantic ..............   -, N        75,834 (0.15, 66,884,      2,006       368
                                                                                                                                                                                          2012).
                                                 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the
                                               ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
                                               which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically
                                               designated under the MMPA as depleted and as a strategic stock.
                                                 2 NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; N
                                                                                                                                                                            min is the minimum estimate of stock
                                               abundance. In some cases, CV is not applicable.
                                                 3 These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fish-
                                               eries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated
                                               mortality due to commercial fisheries is presented in some cases.


                                               Sound Sources and Sound                                              SPL (in decibels (dB)) = 20 log                                 80 meters from the source. The USFWS
                                               Characteristics                                                           (pressure/reference pressure).                             proposes to stay at least 100 meters from
                                                  NMFS does not expect acoustic                                       SPL is an instantaneous measurement                           all pinnipeds if cannon nets are to be
                                               stimuli to result from human presence,                               expressed as the peak, the peak-peak, or                        used for research purposes.
                                               and will therefore not have the potential                            the root mean square (rms). Root mean                           Potential Effects of Specified Activities
                                               to harass marine mammals, incidental to                              square is the square root of the                                on Marine Mammals and Their Habitat
                                               the conduct of the activities. One                                   arithmetic average of the squared
                                               activity (cannon nets) may have an                                   instantaneous pressure values. All                                 The effects of airborne noise and
                                               acoustic component, but we believe take                              references to SPL in this document refer                        visual disturbance from monitoring and
                                               from this activity can be avoided.                                   to the root mean square unless                                  research activities for the USFWS’s
                                                  This section includes a brief                                     otherwise noted. SPL does not take into                         project have the potential to result in
                                               explanation of the sound measurements                                account the duration of a sound.                                behavioral harassment of marine
                                               frequently used in the discussions of                                                                                                mammals in the vicinity of the action
                                                                                                                    Research Activities Sound                                       area. The Federal Register notice for the
                                               acoustic effects in this notice. Sound
                                                                                                                    Characteristics                                                 proposed IHA (83 FR 9463; March 6,
                                               pressure is the sound force per unit
                                               area, and is usually measured in                                       Activities that may have an acoustic                          2018) included a discussion of the
                                               micropascals (mPa), where 1 pascal (Pa)                              component (e.g., cannon nets) are not                           effects of anthropogenic noise and
                                               is the pressure resulting from a force of                            expected to reach the thresholds for                            visual disturbance on marine mammals,
                                               one newton exerted over an area of one                               Level B harassment. Cannon nets could                           therefore that information is not
                                               square meter. Sound pressure level                                   be an airborne source of noise, and have                        repeated here; please refer to that
                                               (SPL) is the ratio of a measured sound                               a measured SL of 128 dB at one meter                            Federal Register notice for that
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                                               pressure and a reference level. The                                  (m) (estimated based on a measurement                           information.
                                               commonly used reference pressure is 1                                of 98.4 dB at 30 m; L. Niles, pers.
                                                                                                                                                                                    Estimated Take
                                               mPa for underwater, and the units for                                comm., December 2016); however, the
                                               SPLs are dB re: 1 mPa. The commonly                                  SPL is expected to be less than the                               This section provides an estimate of
                                               used reference pressure is 20 mPa for in                             thresholds for airborne pinniped                                the number of incidental takes
                                               air, and the units for SPLs are dB re: 20                            disturbance (e.g., 90 dB for harbor seals,                      authorized through this IHA, which will
                                               mPa.                                                                 and 100 dB for all other pinnipeds) at                          inform both NMFS’ consideration of


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                                                                                      Federal Register / Vol. 83, No. 85 / Wednesday, May 2, 2018 / Notices                                              19239

                                               whether the number of takes is ‘‘small’’                        of behavioral patterns, including, but                personnel. Based on the nature of the
                                               and the negligible impact                                       not limited to, migration, breathing,                 activity, Level A harassment is neither
                                               determination.                                                  nursing, breeding, feeding, or sheltering             anticipated nor authorized.
                                                 Harassment is the only type of take                           (Level B harassment).                                    As described previously, no mortality
                                               expected to result from these activities.                          Authorized takes are by Level B
                                                                                                                                                                     is anticipated or authorized for this
                                               Except with respect to certain activities                       harassment only, in the form of
                                                                                                                                                                     activity. Below we describe how the
                                               not pertinent here, section 3(18) of the                        disruption of behavioral patterns for
                                               MMPA defines ‘‘harassment’’ as: Any                             individual marine mammals resulting                   take is estimated.
                                               act of pursuit, torment, or annoyance                           from exposure to USFWS research and                      Behavior of seals is recorded on a
                                               which (i) has the potential to injure a                         monitoring surveys. NMFS expects that                 three point scale (1 = alert reaction, not
                                               marine mammal or marine mammal                                  the presence of the USFWS personnel                   considered harassment; 2 = moving at
                                               stock in the wild (Level A harassment);                         could disturb animals hauled out on                   least two body lengths, or change in
                                               or (ii) has the potential to disturb a                          beaches near research activities and that             direction >90 degrees; and 3 = flushing)
                                               marine mammal or marine mammal                                  the animals may alter their behavior or               (Table 2). Only levels 2 and 3 are
                                               stock in the wild by causing disruption                         attempt to move away from the USFWS                   considered take.

                                                                TABLE 2— DISTURBANCE SCALE OF PINNIPED RESPONSES TO IN-AIR SOURCES TO DETERMINE TAKE
                                                                      Type of
                                                 Level                                                                                                  Definition
                                                                     response

                                               1 ..........   Alert ......................   Seal head orientation or brief movement in response to disturbance, which may include turning head towards the
                                                                                                disturbance, craning head and neck while holding the body rigid in a u-shaped position, changing from a lying
                                                                                                to a sitting position, or brief movement of less than twice the animal’s body length.
                                               2 ..........   Movement ............          Movements in response to the source of disturbance, ranging from short withdrawals at least twice the animal’s
                                                                                                body length to longer retreats over the beach, or if already moving a change of direction of greater than 90
                                                                                                degrees.
                                               3 ..........   Flush ....................     All retreats (flushes) to the water.



                                               Marine Mammal Occurrence                                        mainly on the coasts of Maine and                     that have been flushed during research
                                                  In this section we provide the                               maritime Canada. Prior to a 2001 study,               activities. USFWS used their knowledge
                                               information about the presence, density,                        it was thought that the majority of                   of the number of seals that use the
                                                                                                               migrating harbor seals moving into New                haulouts near their research activities,
                                               or group dynamics of marine mammals
                                                                                                               England waters were sub-adults and                    and how many of these may be taken
                                               that will inform the take calculations.
                                                                                                               juveniles. The study revealed that adult              (Levels 2 and 3 on the disturbance
                                               Take estimates are based on historical
                                                                                                               seals also migrate to waters around Cape              scale). The majority of takes will occur
                                               marine mammal observations at each
                                                                                                               Cod (NOAA 2015b). However, data on                    on Monomoy NWR, which is one of the
                                               site from previous USFWS survey
                                                                                                               harbor seal sex and age distribution is               main haulouts for gray seals in the
                                               activities.
                                                                                                               still insufficient to report. Harbor seals            country. While the average number of
                                                  Gray Seal—Little information is
                                                                                                               are only noted in gray seal haulouts if               gray seals present (in regards to
                                               known about gray seal age and sex
                                                                                                               they are spotted by USFWS staff or                    Monomoy NWR) is less than observed
                                               distribution at the Complex. Gray seals                         researchers. USFWS staff estimate that
                                               may use Complex sites for pupping but                                                                                 counts (B. Josephson, NOAA, pers.
                                                                                                               gray seal haulouts are comprised of five              comm.), not every hauled-out seal on
                                               research and monitoring activities are                          percent or less harbor seals based on
                                               not performed during the breeding                                                                                     the beach is impacted from each activity
                                                                                                               field observations, as harbor seals are               and not all seals are impacted from
                                               season, so no newborn pups will be                              not always seen mixed in with every
                                               disturbed. Group composition of                                                                                       every activity event. This is especially
                                                                                                               gray seal haulout. Harbor seal numbers                true for Monomoy NWR because the
                                               individuals present at activity sites are                       taper during the summer time when the
                                               likely to be of mixed age and sex                                                                                     seal haulout stretches across over four
                                                                                                               highest level of seal disturbance occurs.             miles of beach. For example, the gray
                                               classes.
                                                  The greatest disturbance to gray seals                       Take Calculation and Estimation                       seal counts on Monomoy NWR are very
                                               is expected to occur during the beach                             Here we describe how the information                high, but the beaches are very large, and
                                               nesting bird breeding season from April                         provided above is brought together to                 most of the work takes place on the
                                               to August. During April and May, when                           produce a quantitative take estimate. As              upper berm close to the dune (farther
                                               seals are hauled out in very large                              discussed earlier, NMFS assumes that                  away from seals). During April and May
                                               numbers on the refuge, they may be                              pinnipeds that move greater than two                  when seals are hauled out in very large
                                               present at beaches of varying widths,                           body lengths or make longer retreats                  numbers on the refuge, they may be
                                               between 30 m and 300 m. In narrower                             over the beach, or if already moving,                 present at beaches of varying width,
                                               areas, all of the seals may be disturbed;                       make a change of direction of greater                 between 30 m and 300 m. In narrower
                                               in mid-width areas, some of the younger                         than 90 degrees or flush into the water               areas, all of the seals may be flushed; in
                                               and smaller seals may flush, but large                          in response to the presence of surveyors,             mid-width areas, some of the younger
                                               males may remain on the beach; and in                           are behaviorally harassed, and thus                   and smaller seals may flush, but large
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                                               the widest area, USFWS activities may                           subject to Level B taking. Take                       males may remain on the beach; and in
                                               have no impact on the hauled out seals.                         estimation is based on the number of                  the widest area, USFWS activities may
                                               USFWS staff conduct research and                                seals observed in past research years                 have no impact at all on the hauled out
                                               monitoring work outside of the season                           that have been flushed during research                seals. Also, the amount of disturbance to
                                               of highest gray seal numbers.                                   activities.                                           seals may vary based on staff activities
                                                  Harbor Seal—Peak pupping for harbor                            This estimate is based on the number                (e.g., if project activities require staff to
                                               seals is in June and occurs elsewhere,                          of seals observed in past research years              walk quickly through an area versus


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                                               19240                                   Federal Register / Vol. 83, No. 85 / Wednesday, May 2, 2018 / Notices

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

                                                   TABLE 3—ESTIMATED NUMBER OF GRAY SEAL TAKES PER ACTIVITY AT MONOMOY, NANTUCKET, AND NOMANS LAND
                                                                                            ISLAND NWRS
                                                                                                                                                    Gray seal

                                                                                                                Age: all                                                                                               Sex: male and female

                                                                                                                                                                Number                                             Number                               Total takes
                                                                                                                                                              takes/event                                       events/activity

                                               Shorebird and Seabird Monitoring and Research ....................                               1,000 (Monomoy) ....................                34 (Monomoy) .........................                    34,430
                                                                                                                                                50 (Nantucket) ........................             8 (Nantucket).
                                                                                                                                                10 (Nomans) ...........................             3 (Nomans).
                                               Roseate Tern Staging Counts and Resighting .........................                             10 (Monomoy) .........................              6 (Monomoy) ...........................                      100
                                                                                                                                                10 (Nantucket) ........................             4 (Nantucket).
                                               Red Knot Stopover Study .........................................................                250 (Monomoy) .......................               5 (Monomoy) ...........................                    2,000
                                                                                                                                                150 (Cape Cod) ......................               5 (Cape Cod).
                                               Northeastern Beach Tiger Beetle Census ................................                          750 (Monomoy) .......................               3 (Monomoy) ...........................                    2,250
                                               Coastal Shoreline Change Survey ...........................................                      500 (Monomoy) .......................               1 (Monomoy) ...........................                      500

                                                    Total ...................................................................................   .................................................   .................................................         39,280



                                                  It is unclear exactly how many harbor                                  feasibility (economic and technological)                                    Mitigation for Marine Mammals and
                                               seals occur at the Complex, therefore it                                  of equipment, methods, and manner of                                        Their Habitat
                                               is difficult to determine how many takes                                  conducting such activity or other means
                                                                                                                                                                                                        Time and Frequency—The USFWS
                                               occur since harbor seals are mainly                                       of effecting the least practicable adverse
                                                                                                                                                                                                     plans to conduct research activities
                                               present during the off season when                                        impact upon the affected species or
                                                                                                                                                                                                     throughout the course of the year
                                               research and monitoring is limited.                                       stocks and their habitat (50 CFR
                                                                                                                                                                                                     between April 1 and November 30,
                                               Harbor seals are not present at all gray                                  216.104(a)(11)).
                                                                                                                            In evaluating how mitigation may or                                      2018, outside of the seasons of highest
                                               seal haulouts but at haulouts where both
                                                                                                                         may not be appropriate to ensure the                                        seal abundance and pupping at the
                                               species are present, USFWS staff
                                                                                                                         least practicable adverse impact on                                         Complex.
                                               estimate that gray seal haulouts during
                                               the summer are comprised of 5 percent                                     species or stocks and their habitat, as                                        Vessel Approach and Timing
                                               or less harbor seals. Due to the lack of                                  well as subsistence uses where                                              Techniques—The USFWS shall ensure
                                               available data on presence, harbor seal                                   applicable, we carefully consider two                                       that its vessel approaches to beaches
                                               takes are not broken down by activity or                                  primary factors:                                                            with pinniped haulouts would be
                                               site. Rather, the number of harbor seal                                      (1) The manner in which, and the                                         conducted so as to not disturb marine
                                               Level B takes requested was calculated                                    degree to which, the successful                                             mammals as most practicable. To the
                                               by taking 5 percent of the total gray seal                                implementation of the measure(s) is                                         extent possible, the vessel shall
                                               take estimate. USFWS is requesting                                        expected to reduce impacts to marine                                        approach the beaches in a slow and
                                               1,964 Level B takes of harbor seals                                       mammals, marine mammal species or                                           controlled approach, as far away as
                                               incidental to research and monitoring                                     stocks, and their habitat. This considers                                   possibly from haulouts to prevent or
                                               activities.                                                               the nature of the potential adverse                                         minimize flushing. Staff shall also avoid
                                                                                                                         impact being mitigated (likelihood,                                         or proceed cautiously when operating
                                               Mitigation Measures                                                       scope, range). It further considers the                                     boats in the direct path of swimming
                                                  In order to issue an IHA under section                                 likelihood that the measure will be                                         seals that may be present in the area.
                                               101(a)(5)(D) of the MMPA, NMFS must                                       effective if implemented (probability of                                       Avoidance of Acoustic Impacts from
                                               set forth the permissible methods of                                      accomplishing the mitigating result if                                      Cannon Nets—Cannon nets have a
                                               taking pursuant to such activity, and                                     implemented as planned) the likelihood                                      measured SL of 128 dB at one meter (m)
                                               other means of effecting the least                                        of effective implementation (probability                                    (estimated based on a measurement of
                                               practicable impact on such species or                                     implemented as planned); and                                                98.4 dB at 30 m; L. Niles, pers. comm.,
                                               stock and its habitat, paying particular                                     (2) The practicability of the measures                                   December 2016); however, the SPL is
                                               attention to rookeries, mating grounds,                                   for applicant implementation, which                                         expected to be less than the thresholds
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                                               and areas of similar significance, and on                                 may consider such things as cost,                                           for airborne pinniped disturbance (e.g.,
                                               the availability of such species or stock                                 impact on operations, and, in the case                                      90 dB for harbor seals, and 100 dB for
                                               for taking for certain subsistence uses                                   of a military readiness activity,                                           all other pinnipeds) at 80 yards from the
                                               (latter not applicable for this action).                                  personnel safety, practicality of                                           source. The USFWS shall stay at least
                                               NMFS regulations require applicants for                                   implementation, and impact on the                                           100 meters from all pinnipeds if cannon
                                               incidental take authorizations to include                                 effectiveness of the military readiness                                     nets are to be used for research
                                               information about the availability and                                    activity.                                                                   purposes.


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                                                                             Federal Register / Vol. 83, No. 85 / Wednesday, May 2, 2018 / Notices                                               19241

                                                  Avoidance of Visual and Acoustic                     meters). The Red Knot Stopover Study                  noise); (2) affected species (e.g., life
                                               Contact with People—The USFWS shall                     occurs during the time of year (July to               history, dive patterns); (3) co-occurrence
                                               instruct its members and research staff                 September) when the least number of                   of marine mammal species with the
                                               to avoid making unnecessary noise and                   seals are present at the activity sites.              action; or (4) biological or behavioral
                                               not expose themselves visually to                          The mitigation measures are designed               context of exposure (e.g., age, calving or
                                               pinnipeds whenever practicable.                         to minimize the potential for behavioral              feeding areas);
                                               USFWS staff shall stay at least 50 yards                harassment of pinnipeds hauled out                       • Individual marine mammal
                                               from hauled out pinnipeds, unless it is                 near the survey sites. The research and               responses (behavioral or physiological)
                                               absolutely necessary to approach seals                  monitoring surveys occur outside of the               to acoustic stressors (acute, chronic, or
                                               closer, or potentially flush a seal, in                 period of highest seal abundance at the               cumulative), other stressors, or
                                               order to continue conducting                            Complex. While the survey timing                      cumulative impacts from multiple
                                               endangered species conservation work.                   overlaps with harbor seal pupping                     stressors;
                                               When disturbance is unavoidable, staff                  season, pupping is not known to occur                    • How anticipated responses to
                                               shall work quickly and efficiently to                   at the Complex. Gray seal pupping has                 stressors impact either: (1) Long-term
                                               minimize the length of disturbance.                     been documented at the Complex but                    fitness and survival of individual
                                               Researchers and staff will do so by                     generally occurs between December and                 marine mammals; or (2) populations,
                                               proceeding in a slow and controlled                     February, when USFWS staff will not be                species, or stocks;
                                               manner, which allows for the seals to                   conducting surveys. We believe the                       • Effects on marine mammal habitat
                                               slowly flush into the water. Staff shall                previously stated mitigation measures                 (e.g., marine mammal prey species,
                                               also maintain a quiet working                           are practicable for the applicant to                  acoustic habitat, or other important
                                               atmosphere, avoiding loud noises, and                   implement.                                            physical components of marine
                                               using hushed voices in the presence of                     Based on our evaluation of the                     mammal habitat); and
                                               hauled out pinnipeds. Pathways of                       applicant’s planned measures, NMFS                       • Mitigation and monitoring
                                               approach to the desired study or nesting                has determined that the mitigation                    effectiveness.
                                               site shall be chosen to minimize seal                                                                            The USFWS shall conduct marine
                                                                                                       measures provide the means effecting
                                               disturbance if an activity event may                                                                          mammal monitoring, in order to
                                                                                                       the least practicable impact on the
                                               result in the disturbance of seals.                                                                           implement the mitigation measures that
                                                                                                       affected species or stocks and their
                                               USFWS staff shall scan the surrounding                                                                        require real-time monitoring, and satisfy
                                                                                                       habitat, paying particular attention to               the monitoring requirements of the IHA.
                                               waters near the haulouts, and if                        rookeries, mating grounds, and areas of
                                               predators (i.e., sharks) are seen, seals                                                                      These include:
                                                                                                       similar significance.                                    Monitoring seals as project activities
                                               shall not be flushed by USFWS staff.
                                                  Researchers, USFWS staff, and                        Monitoring and Reporting                              are being conducted. Monitoring
                                               volunteers shall be properly informed                                                                         requirements in relation to the USFWS’s
                                                                                                       Monitoring                                            activities include species counts,
                                               about the MMPA take prohibitions, and
                                               shall educate the public on the                            In order to issue an IHA for an                    numbers of observed disturbances, and
                                               importance of not disturbing marine                     activity, section 101(a)(5)(D) of the                 descriptions of the disturbance
                                               mammals, when applicable. Staff at                      MMPA states that NMFS must set forth                  behaviors during the research activities,
                                               Nantucket NWR shall remain present on                   requirements pertaining to the                        including location, date, and time of the
                                               the beaches utilized by pinnipeds to                    monitoring and reporting of such taking.              event. In addition, the USFWS shall
                                               prevent anthropogenic disturbance                       The MMPA implementing regulations at                  record observations regarding the
                                               during times of high public use (late                   50 CFR 216.104 (a)(13) indicate that                  number and species of any marine
                                               spring to early fall). Staff at Monomoy                 requests for authorizations must include              mammals either observed in the water
                                               NWR shall also be present on beaches                    the suggested means of accomplishing                  or hauled out. Behavior of seals shall be
                                               utilized by seals during the same time                  the necessary monitoring and reporting                recorded on a three point scale: (1) Alert
                                               of year, and will inform the public to                  that will result in increased knowledge               reaction, not considered harassment; (2)
                                               keep a distance from haulouts if an                     of the species and of the level of taking             moving at least two body lengths, or
                                               issue is noticed. Similar to the USFWS,                 or impacts on populations of marine                   change in direction greater than 90
                                               the NPS also takes precautionary                        mammals that are expected to be                       degrees; (3) flushing (Table 2). USFWS
                                               mitigation to help prevent seal take by                 present in the action area. Effective                 staff shall also record and report all
                                               the public. In August and on the                        reporting is critical both to compliance              observations of sick, injured, or
                                               weekends in September, staff and                        as well as ensuring that the most value               entangled marine mammals to the
                                               volunteers are present on the National                  is obtained from the required                         Greater Atlantic Regional Stranding
                                               Seashore beaches to share with the                      monitoring.                                           Coordinator. Tagged or marked marine
                                               public the importance of preventing                        Monitoring and reporting                           mammals shall also be recorded and
                                               disturbance to seals by keeping people                  requirements prescribed by NMFS                       reported to the appropriate research
                                               at a proper viewing distance of at least                should contribute to improved                         organization or Federal agency, as well
                                               50 yards.                                               understanding of one or more of the                   as any rare or unusual species of marine
                                                  The presence/proximity of seal                       following:                                            mammal. Photographs shall be taken
                                               haulouts and the loud sound created by                     • Occurrence of marine mammal                      when possible. This information shall
                                               the firing of cannon nets are taken into                species or stocks in the area in which                be incorporated into a report for NMFS
                                               consideration when selecting trapping                   take is anticipated (e.g., presence,                  at the end of the season. The USFWS
                                               sites for the Red Knot Stopover Study.                  abundance, distribution, density);                    shall also coordinate with any
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                                               Trapping sites are decided based on the                    • Nature, scope, or context of likely              university, state, or Federal researchers
                                               presence of red knots, the number of                    marine mammal exposure to potential                   to attain additional data or observations
                                               juveniles located within roosts, and the                stressors/impacts (individual or                      that may be useful for monitoring
                                               observation of birds with attached                      cumulative, acute or chronic), through                marine mammal usage at the activity
                                               geolocators and flags. Sites are not                    better understanding of: (1) Action or                sites.
                                               trapped on if there is a strong possibility             environment (e.g., source                                If at any time injury, serious injury, or
                                               of disturbing seals (i.e., closer than 100              characterization, propagation, ambient                mortality of the species for which take


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                                               19242                         Federal Register / Vol. 83, No. 85 / Wednesday, May 2, 2018 / Notices

                                               is authorized should occur, or if take of                  • Description and location of the                  Negligible Impact Analysis and
                                               any kind of other marine mammal                         incident (including water depth, if                   Determination
                                               occurs, and such action may be a result                 applicable);
                                               of the USFWS’s activities, the USFWS                                                                             NMFS has defined negligible impact
                                                                                                          • Environmental conditions (e.g.,                  as an impact resulting from the
                                               shall suspend research activities and                   wind speed and direction, Beaufort sea
                                               contact NMFS immediately to                                                                                   specified activity that cannot be
                                                                                                       state, cloud cover, and visibility);                  reasonably expected to, and is not
                                               determine how best to proceed to ensure
                                               that another injury or death does not                      • Description of all marine mammal                 reasonably likely to, adversely affect the
                                               occur and to ensure that the applicant                  observations in the 24 hours preceding                species or stock through effects on
                                               remains in compliance with the MMPA.                    the incident;                                         annual rates of recruitment or survival
                                                                                                          • Species identification or                        (50 CFR 216.103). A negligible impact
                                               Reporting                                               description of the animal(s) involved;                finding is based on the lack of likely
                                                                                                                                                             adverse effects on annual rates of
                                                 The USFWS shall submit a draft                           • Fate of the animal(s); and
                                               report to NMFS Office of Protected                                                                            recruitment or survival (i.e., population-
                                                                                                          • Photographs or video footage of the              level effects). An estimate of the number
                                               Resources no later than 90 days after the               animal(s) (if equipment is available).
                                               conclusion of research and monitoring                                                                         of takes alone is not enough information
                                               activities in the 2018 season. The report                  The USFWS shall not resume its                     on which to base an impact
                                               shall include a summary of the                          activities until NMFS is able to review               determination. In addition to
                                               information gathered pursuant to the                    the circumstances of the prohibited                   considering estimates of the number of
                                               monitoring requirements set forth in the                take. We will work with the USFWS to                  marine mammals that might be ‘‘taken’’
                                               IHA. The USFWS shall submit a final                     determine what is necessary to                        through harassment, NMFS considers
                                               report to NMFS within 30 days after                     minimize the likelihood of further                    other factors, such as the likely nature
                                               receiving comments from NMFS on the                     prohibited take and ensure MMPA                       of any responses (e.g., intensity,
                                               draft report. If the USFWS receives no                  compliance. The USFWS may not                         duration), the context of any responses
                                               comments from NMFS on the draft                         resume their activities until notified by             (e.g., critical reproductive time or
                                               report, NMFS will consider the draft                    us via letter, email, or telephone.                   location, migration), as well as effects
                                               report to be the final report.                             In the event that the USFWS                        on habitat, and the likely effectiveness
                                                                                                       discovers an injured or dead marine                   of the mitigation. We also assess the
                                                 The report shall describe the                                                                               number, intensity, and context of
                                               operations conducted and sightings of                   mammal, and the marine mammal
                                                                                                       observer determines that the cause of                 estimated takes by evaluating this
                                               marine mammals near the project. The                                                                          information relative to population
                                               report shall provide full documentation                 injury or death is unknown and the
                                                                                                       death is relatively recent (i.e., in less             status. Consistent with the 1989
                                               of methods, results, and interpretation                                                                       preamble for NMFS’s implementing
                                               pertaining to all monitoring. The report                than a moderate state of decomposition
                                                                                                       as we describe in the next paragraph),                regulations (54 FR 40338; September 29,
                                               shall provide:                                                                                                1989), the impacts from other past and
                                                                                                       the USFWS shall immediately report the
                                                 1. A summary and table of the dates,                                                                        ongoing anthropogenic activities are
                                                                                                       incident to the Chief, Permits and
                                               times, and weather during all research                                                                        incorporated into this analysis via their
                                                                                                       Conservation Division, Office of
                                               activities;                                                                                                   impacts on the environmental baseline
                                                                                                       Protected Resources, NMFS, and the
                                                 2. Species, number, location, and                     Northeast Regional Stranding                          (e.g., as reflected in the regulatory status
                                               behavior of any marine mammals                          Coordinator. The report must include                  of the species, population size and
                                               observed throughout all monitoring                      the same information identified in the                growth rate where known, ongoing
                                               activities;                                             paragraph above this section. Activities              sources of human-caused mortality, or
                                                 3. An estimate of the number (by                      may continue while NMFS reviews the                   ambient noise levels).
                                               species) of marine mammals exposed to                   circumstances of the incident. NMFS                      Although the USFWS’s survey
                                               human presence associated with the                      would work with the USFWS to                          activities may disturb a small number of
                                               USFWS’s activities; and                                 determine whether modifications in the                marine mammals hauled out on beaches
                                                 4. A description of the                               activities are appropriate.                           in the Complex, NMFS expects those
                                               implementation and effectiveness of the                    In the event that the USFWS                        impacts to occur to a localized group of
                                               monitoring and mitigation measures of                   discovers an injured or dead marine                   animals. Marine mammals would likely
                                               the IHA and full documentation of                       mammal, and the lead visual observer                  become alert or, at most, flush into the
                                               methods, results, and interpretation                    determines that the injury or death is                water in reaction to the presence of the
                                               pertaining to all monitoring.                           not associated with or related to the                 USFWS personnel during the activities.
                                                 In the unanticipated event that the                   authorized activities (e.g., previously               Much of the disturbance will be limited
                                               specified activity clearly causes the take              wounded animal, carcass with moderate                 to a short duration, allowing marine
                                               of a marine mammal in a manner                          to advanced decomposition, or                         mammals to reoccupy haulouts within a
                                               prohibited by the authorization, such as                scavenger damage), the USFWS shall                    short amount of time. Thus, the action
                                               an injury (Level A harassment), serious                 report the incident to the Chief, Permits             is unlikely to result in long-term
                                               injury, or mortality (e.g., stampede),                  and Conservation Division, Office of                  impacts such as permanent
                                               USFWS personnel shall immediately                       Protected Resources, NMFS, and the                    abandonment of the area because of the
                                               cease the specified activities and                      Northeast Regional Stranding                          availability of alternate areas for
                                               immediately report the incident to the                  Coordinator within 24 hours of the                    pinnipeds to avoid the resultant
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                                               Chief, Permits and Conservation                         discovery. The USFWS personnel shall                  acoustic and visual disturbances from
                                               Division, Office of Protected Resources,                provide photographs or video footage (if              the research activities.
                                               NMFS, and the Northeast Regional                        available) or other documentation of the                 The USFWS’s activities would occur
                                               Stranding Coordinator. The report must                  stranded animal sighting to us. The                   during the least sensitive time (e.g.,
                                               include the following information:                      USFWS can continue their survey                       April through November, outside of the
                                                 • Time, date, and location (latitude/                 activities while NMFS reviews the                     pupping season) for hauled out
                                               longitude) of the incident;                             circumstances of the incident.                        pinnipeds in the Complex. Thus, pups


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                                                                             Federal Register / Vol. 83, No. 85 / Wednesday, May 2, 2018 / Notices                                                   19243

                                               or breeding adults would not be present                 determination of whether an                           adverse impact on the availability of
                                               during the activity days.                               authorization is limited to small                     such species or stocks for taking for
                                                  Moreover, the USFWS’s mitigation                     numbers of marine mammals.                            subsistence purposes.
                                               measures regarding vessel approaches                    Additionally, other qualitative factors
                                               and procedures that attempt to                                                                                Endangered Species Act (ESA)
                                                                                                       may be considered in the analysis, such
                                               minimize the potential to harass the                    as the temporal or spatial scale of the                  No incidental take of ESA-listed
                                               seals would minimize the potential for                  activities.                                           species is authorized or expected to
                                               flushing and large-scale movements.                        These incidental harassment take                   result from this activity. Therefore,
                                               Thus, the potential for large-scale                     numbers represent less than three                     NMFS has determined that formal
                                               movements and flushing leading to                       percent of the affected stocks of harbor              consultation under section 7 of the ESA
                                               injury, serious injury, or mortality is                 seals.                                                is not required for this action.
                                               low.                                                       Under the 2017 draft SARs, the take
                                                                                                       number of gray seals exceeds the stock                Authorization
                                                  In summary and as described above,
                                               the following factors primarily support                 abundance estimate in U.S. waters.                       As a result of these determinations,
                                               our determination that the impacts                      However, actual take may be slightly                  NMFS has issued an IHA to the USFWS
                                               resulting from this activity are not                    less if animals decide to haul out at a               for the harassment of small numbers of
                                               expected to adversely affect the species                different location for the day or if                  gray and harbor seals incidental to
                                               or stock through effects on annual rates                animals are foraging at the time of the               seabird and shorebird research activities
                                               of recruitment or survival:                             survey activities. The number of                      at the Eastern Massachusetts National
                                                  • No injury (Level A harassment) or                  individual seals taken is also assumed                Wildlife Refuge Complex,
                                               serious injury is anticipated or                        to be less than the take estimate since               Massachusetts, provided the previously
                                               authorized;                                             these species show high philopatry                    mentioned mitigation, monitoring, and
                                                  • No mortality is anticipated or                     (Waring et al., 2016; Wood et al., 2011).             reporting requirements are incorporated.
                                               authorized;                                             We expect the take numbers to represent
                                                                                                                                                               Dated: April 26, 2018.
                                                  • Impacts will occur to a localized                  the number of exposures, but assume
                                                                                                                                                             Donna S. Wieting,
                                               group of animals;                                       that the same seals may be behaviorally
                                                  • Disturbance will be limited to a                   harassed over multiple days, and the                  Director, Office of Protected Resources,
                                               short duration, allowing marine                         likely number of individual seals that                National Marine Fisheries Service.
                                               mammals to reoccupy haulouts within a                   may be harassed would be less. In                     [FR Doc. 2018–09239 Filed 5–1–18; 8:45 am]
                                               short amount of time;                                   addition, this project occurs in a small              BILLING CODE 3510–22–P
                                                  • Activities will occur during the                   portion of the overall range of the
                                               least sensitive time (e.g., April through               Northwest Atlantic population of gray
                                               November, outside of pupping season)                    seals. While there is evidence of haulout             DEPARTMENT OF COMMERCE
                                               for pinnipeds hauled out in the                         site philopatry, resights of tagged and
                                                                                                                                                             National Oceanic and Atmospheric
                                               Complex, therefore no pups or breeding                  branded animals and satellite tracks of
                                                                                                                                                             Administration
                                               adults would be present during the                      tagged animals show movement of
                                               activity days; and                                      individuals between the United States                 RIN 0648–XF882
                                                  • The USFWS’s mitigation measures                    and Canada (Puryear et al., 2016). The
                                               regarding visual and acoustic                           percentage of time that individuals are               Takes of Marine Mammals Incidental to
                                               disturbance to hauled out pinnipeds                     resident in U.S. waters is unknown                    Specified Activities; Taking Marine
                                               would minimize the potential for                        (NMFS 2017). Genetic evidence                         Mammals Incidental to Astoria
                                               flushing and large-scale movements,                     provides a high degree of certainty that              Waterfront Bridge Replacement Project
                                               therefore the potential for large-scale                 the Western North Atlantic stock of gray              AGENCY:  National Marine Fisheries
                                               movements and flushing leading to                       seals is a single stock (Boskovic et al.,             Service (NMFS), National Oceanic and
                                               injury, serious injury, or mortality is                 1996; Wood et al., 2011). Thus, although              Atmospheric Administration (NOAA),
                                               low;                                                    the U.S. stock estimate is only 27,131,               Commerce.
                                                  Based on the analysis contained                      the overall stock abundance is 451,131.
                                               herein of the likely effects of the                                                                           ACTION: Notice; Issuance of an Incidental
                                                                                                       The gray seal take estimate for this
                                               specified activity on marine mammals                    project represents less than nine percent             Harassment Authorization.
                                               and their habitat, and taking into                      of the overall Western North Atlantic                 SUMMARY:    In accordance with the
                                               consideration the implementation of the                 stock abundance in U.S. and Canadian                  regulations implementing the Marine
                                               monitoring and mitigation measures,                     waters (Table 4).                                     Mammal Protection Act (MMPA) as
                                               NMFS finds that the total marine                           Based on the analysis contained                    amended, notification is hereby given
                                               mammal take from the activity will have                 herein of the activity (including the                 that NMFS has issued an incidental
                                               a negligible impact on all affected                     mitigation and monitoring measures)                   harassment authorization (IHA) to the
                                               marine mammal species or stocks.                        and the anticipated take of marine                    City of Astoria, Oregon, to incidentally
                                                                                                       mammals, NMFS finds that small                        harass, by Level B harassment only,
                                               Small Numbers
                                                                                                       numbers of marine mammals will be                     marine mammals during construction
                                                 As noted above, only small numbers                    taken relative to the population size of
                                               of incidental take may be authorized                                                                          activities associated with a waterfront
                                                                                                       the affected species or stocks.                       bridges replacement project in Astoria,
                                               under section 101(a)(5)(D) of the MMPA
                                               for specified activities other than                     Unmitigable Adverse Impact Analysis                   Oregon.
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                                               military readiness activities. The MMPA                 and Determination                                     DATES: This authorization is effective
                                               does not define small numbers and so,                     There are no relevant subsistence uses              from October 1, 2018 through
                                               in practice, where estimated numbers                    of the affected marine mammal stocks or               September 30, 2019.
                                               are available, NMFS compares the                        species implicated by this action.                    FOR FURTHER INFORMATION CONTACT:
                                               number of individuals taken to the most                 Therefore, NMFS has determined that                   Amy Fowler, Office of Protected
                                               appropriate estimation of abundance of                  the total taking of affected species or               Resources, NMFS, (301) 427–8401.
                                               the relevant species or stock in our                    stocks would not have an unmitigable                  Electronic copies of the IHA and


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Document Created: 2018-05-02 00:49:42
Document Modified: 2018-05-02 00:49:42
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice; issuance of an incidental harassment authorization.
DatesThis authorization is effective from April 1, 2018 through March 31, 2019.
ContactAmy Fowler, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the IHA and supporting documents, as well as a list of the references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/ national/marine-mammal-protection/incidental-take-authorizations- research-and-other-activities. In case of problems accessing these documents, please call the contact listed above.
FR Citation83 FR 19236 
RIN Number0648-XF93

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