2020-18961. Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to National Wildlife Refuge Complex Research, Monitoring, and Maintenance Activities in Massachusetts

AGENCY:

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

ACTION:

Notice; issuance of Renewal 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 a Renewal incidental harassment authorization (IHA) to the U.S. Fish and Wildlife Service (USFWS) to incidentally harass marine mammals incidental to conducting biological research, monitoring, and maintenance at the Eastern Massachusetts (MA) National Wildlife Refuge Complex (Complex).

DATES:

This Renewal IHA is valid from August 14, 2020 through June 11, 2021.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Background

The Marine Mammal Protection Act (MMPA) prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed incidental take authorization is provided to the public for review.

Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stocks for taking for certain subsistence uses (referred to here as “mitigation measures”). Monitoring and reporting of such takings are also required. The meaning of key terms such as “take,” “harassment,” and “negligible impact” can be found in section 3 of the MMPA (16 U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.

NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) indicate that IHAs may be renewed for additional periods of time not to exceed one year for each reauthorization. In the notice of proposed IHA for the initial authorization, NMFS described the circumstances under which we would consider issuing a Renewal for this activity, and requested public comment on a potential Renewal under those circumstances. Specifically, on a case-by-case basis, NMFS may issue a one-time one-year Renewal IHA following notice to the public providing an additional 15 days for public comments when (1) up to another year of identical or nearly identical, or nearly identical, activities as described in the Specified Activities section of this notice is planned or (2) the activities as described in the Specified Activities section of this notice would not be completed by the time the IHA expires and a Renewal would allow for completion of the activities beyond that described in the Dates and Duration section of this notice, provided all of the following conditions are met:

• A request for Renewal is received no later than 60 days prior to the needed Renewal IHA effective date (recognizing that the Renewal IHA expiration date cannot extend beyond one year from expiration of the initial IHA);
• The request for Renewal must include the following:

(1) An explanation that the activities to be conducted under the requested Renewal IHA are identical to the activities analyzed under the initial IHA, are a subset of the activities, or include changes so minor (e.g., reduction in pile size) that the changes do not affect the previous analyses, mitigation and monitoring requirements, or take estimates (with the exception of reducing the type or amount of take); and

(2) A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized.

Upon review of the request for Renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures will remain the same and appropriate, and the findings in the initial IHA remain valid.

An additional public comment period of 15 days (for a total of 45 days), with direct notice by email, phone, or postal service to commenters on the initial IHA, is provided to allow for any additional comments on the proposed Renewal. A description of the Renewal process may be found on our website at: www.fisheries.noaa.gov/​national/​marine-mammal-protection/​incidental-harassment-authorization-renewals.

History of Request

On June 12, 2019, NMFS issued an IHA to the USFWS to take marine mammals incidental to research, monitoring, and maintenance activities within the Complex (84 FR 32415; July 8, 2019), effective from June 12, 2019 through June 11, 2020. On May 22, 2020, NMFS received an application for the Renewal of that initial IHA. As described in the application for Renewal, the activities for which incidental take is requested are identical to those covered in the initial authorization. As required, the applicant also provided a preliminary monitoring report (available at https://www.fisheries.noaa.gov/​national/​marine-mammal-protection/​incidental-take-authorizations-research-and-other-activities) which confirms that the applicant has implemented the required mitigation and monitoring, and which also shows that no impacts of a scale or nature not previously analyzed or authorized have occurred as a result of the activities conducted.

NMFS has previously issued two additional IHAs to the USFWS for similar activities (82 FR 3738, January 12, 2017; 83 FR 19236, May 2, 2018).

Description of the Specified Activities and Anticipated Impacts

The Complex is comprised of eight refuges, including its three coastal refuges: Monomoy National Wildlife Refuge (NWR), Nantucket NWR, and Nomans Land Island (Nomans) NWR in eastern MA. The USFWS conducts ongoing biological tasks for refuge purposes at the Complex. The 2017 and 2018 IHAs covered shorebird and seabird nest monitoring and research, roseate tern (Sterna dougallii) staging counts and resighting, red knot (Calidris canutus) stopover study, northeastern beach tiger beetle (Cicindela dorsalis) census, and coastal shoreline change survey at Monomoy, Nantucket, and Nomans NWRs. Under the 2019 IHA (the initial IHA), the USFWS conducted identical seabird and shorebird research and monitoring activities, and also conducted New England cottontail (Sylvilagus transitionalis) reintroduction on Nomans NWR and protection of seal haulout areas at Nantucket NWR.

As in the initial authorization, NMFS anticipates that take, by Level B harassment only, of gray seals (Halichoerus grypus atlantica) and harbor seals (Phoca vitulina concolor) could result from the specified activities (84 FR 32415; July 8, 2019).

Detailed Description of the Activity

A detailed description of the USFWS proposed seabird and shorebird research and monitoring activities can be found in the Federal Register notice of proposed IHA for the 2018 IHA (83 FR 9483; March 6, 2018). A detailed description of the New England cottontail reintroduction and seal haulout protection activities can be found in the Federal Register notice of proposed IHA for the initial (2019) IHA (84 FR 18259, April 30, 2019). The locations (as described in the Specific Geographic Region section of the initial IHA), timing, amount, and nature of the specified activities are identical to those described in the previous notices.

The IHA Renewal is effective from August 14, 2020 through June 11, 2021.

Description of Marine Mammals

A description of the marine mammals in the area of the activities for which take is authorized, including information on abundance, status, distribution, and hearing, may be found in the Federal Register notice of the proposed IHA for the 2018 IHA (83 FR 9483; March 6, 2018). Summary information is available in the Federal Register notices of the proposed and final initial authorization (84 FR 18259, April 30, 2019; 84 FR 32415, July 8, 2019). NMFS has reviewed the monitoring data from the initial IHA, recent draft Stock Assessment Reports, information on relevant Unusual Mortality Events, and other scientific literature, and determined that neither this nor any other new information affects which species or stocks have the potential to be affected or the pertinent information in the Description of the Marine Mammals in the Area of Specified Activities contained in the supporting documents for the initial IHA.

Potential Effects on Marine Mammals and Their Habitat

A description of the potential effects of the specified activity on marine mammals and their habitat for the activities for which take is authorized here may be found in the Federal Register notice of the proposed IHA for the 2018 IHA (83 FR 9483; March 6, 2018). Summary information is available in the Federal Register notices of the proposed and final initial authorization (84 FR 18259, April 30, 2019; 84 FR 32415, July 8, 2019). NMFS has reviewed the monitoring data from the initial IHA, recent draft Stock Assessment Reports, information on relevant Unusual Mortality Events, and other scientific literature, and determined that neither this nor any other new information affects our initial analysis of impacts on marine mammals and their habitat.

Estimated Take

A detailed description of the methods and inputs used to estimate authorized take is found in the Federal Register notice of the proposed IHA for the 2018 IHA (83 FR 9483; March 6, 2018). Summary information is available in the Federal Register notices of the proposed and final initial authorization (84 FR 18259, April 30, 2019; 84 FR 32415, July 8, 2019). All estimated take is expected to be in the form of Level B harassment. The methods of estimating take for this IHA Renewal are identical to those used in the initial IHA (i.e., by multiplying the maximum number of seals estimated to be present at each location by the number of events at each location that may result in disturbance). Specifically, the frequency of activities and marine mammal occurrence applicable to this authorization remain unchanged from the previously issued IHA (see Table 1). Similarly, the stocks taken, methods of take, and types of take remain unchanged from the previously issued IHA, as do the number of takes, which are indicated below in Table 2.

The total estimated gray seal takes are presented in Table 1.

Table 1—Estimated Number of Gray Seal Takes (by Level B harassment) per Activity at Monomoy, Nantucket, and Nomans NWRs

Activity	Takes per event	Events per activity	Total takes
Shorebird and Seabird Monitoring & Research	1000 (Monomoy), 50 (Nantucket), 10 (Nomans)	34 (Monomoy), 8 (Nantucket), 3 (Nomans)	34,430
Roseate Tern Staging Counts & Resighting	10 (Monomoy), 10 (Nantucket)	6 (Monomoy), 4 (Nantucket)	100
Red Knot Stopover Study	250 (Monomoy), 150 (Cape Cod)	5 (Monomoy), 5 (Cape Cod)	2,000
Northeastern Beach Tiger Beetle Census	750 (Monomoy)	3 (Monomoy)	2,250
Coastal Shoreline Change Survey	500 (Monomoy)	1 (Monomoy)	500
New England Cottontail Introduction	10 (Nomans)	20 (Nomans)	200
Seal Haulout Protection	25 (Nantucket)	10 (Nantucket)	250
Total takes			39,730

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

Table 2—Total Authorized Take of Marine Mammals, Relative to Population Size

Species	Authorized take by Level B harassment	Stock abundance	Percent (comparison of instances of take to stock abundance)
Gray seal	39,730	a 27,131b (451,131)	146 (8.81)
Harbor seal	1,987	75,834	2.62
a Abundance in U.S. waters (Hayes et al., 2018).
b Overall Western North Atlantic stock abundance (Hayes et al., 2018).

Based on the stock abundance estimate presented in the 2017 Stock Assessment Report, the proposed take number of gray seals exceeds the number of gray seals in U.S. waters (Table 2; Hayes et al., 2018). However, actual take may be slightly less if animals decide to haul out at a different location for the day or if animals are foraging at the time of the survey activities. The number of individual seals taken is also assumed to be less than the take estimate since these species show high philopatry (Waring et al., 2016; Wood et al., 2011). We expect the take numbers to represent the number of exposures (i.e., instances of take), but assume that the same seals may be behaviorally harassed over multiple days, and the likely number of individual seals that may be harassed would be less. In addition, this project occurs in a small portion of the overall range of the Northwest Atlantic population of gray seals. While there is evidence of haulout site philopatry, resights of tagged and branded animals and satellite tracks of tagged animals show movement of individuals between the United States and Canada (Puryear et al., 2016). The percentage of time that individuals are resident in U.S. waters is unknown (NMFS 2017). Genetic evidence provides a high degree of certainty that the Western North Atlantic stock of gray seals is a single stock (Boskovic et al., 1996; Wood et al., 2011). Thus, although the U.S. stock estimate is only 27,131, the overall stock abundance of animals in United States and Canadian waters is 451,131. The gray seal take estimate for this project represents less than 9 percent of the overall Western North Atlantic stock abundance (Table 2) if every separate instance of take were assumed to accrue to a different individual, and because this is not the case, the percentage is likely significantly lower.

Description of Mitigation, Monitoring and Reporting Measures

The mitigation, monitoring, and reporting measures included as requirements in this authorization are identical to those included in the Federal Register notice announcing the issuance of the initial IHA (84 FR 32414; July 8, 2020), and the discussion of the least practicable adverse impact included in that notice remains accurate. The following measures are required in this authorization:

Time and Frequency

The USFWS must conduct all planned research and monitoring activities between April 1 and November 30, outside of the seasons of highest seal abundance and pupping at the Complex. Closure of beaches used by seals may occur year-round at Nantucket NWR.

Vessel Approach and Timing Techniques

The USFWS must ensure that its vessels approach beaches with pinniped haulouts so as to not disturb marine mammals as is most practical. To the extent possible, the vessel must approach the beaches in a slow and controlled approach, as far away as possibly from haulouts to prevent or minimize flushing. Staff must also avoid or proceed cautiously when operating boats in the direct path of swimming seals that may be present in the area.

Avoidance of Acoustic Impacts From Cannon Nets

Cannon nets have a measured source level (SL) of 128 decibels (dB) at one meter (m) (estimated based on a measurement of 98.4 dB at 30 m; L. Niles, pers. comm., December 2016); however, the sound pressure level (SPL) is expected to be less than the thresholds for airborne pinniped disturbance (e.g., 90 dB for harbor seals, and 100 dB for all other pinnipeds) at 80 yards (73 meters) from the source. The USFWS must stay at least 100 m from all pinnipeds if cannon nets are to be used for research purposes.

Avoidance of Visual and Acoustic Contact With People

The USFWS must instruct its members and research staff to avoid making unnecessary noise and not allow themselves to be seen by pinnipeds whenever practicable. USFWS staff must stay at least 50 yards (46 meters) from hauled out pinnipeds, unless it is absolutely necessary to approach seals closer, or potentially flush a seal, in order to continue conducting endangered species conservation work. When disturbance is unavoidable, staff must work quickly and efficiently to minimize the length of disturbance. Researchers and staff must proceed in a slow and controlled manner, which allows for the seals to slowly flush into the water. Staff must also maintain a quiet working atmosphere, avoiding loud noises, and using hushed voices in the presence of hauled out pinnipeds. Pathways of approach to the desired study or nesting site must be chosen to minimize seal disturbance if an activity event may result in the disturbance of seals. USFWS staff must scan the surrounding waters near the haulouts, and if predators (i.e., sharks) are seen, seals must not be flushed by USFWS staff.

Marine Mammal Monitoring

The USFWS must monitor seals as project activities are conducted. Monitoring requirements include documenting 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 must record observations regarding the number and species of any marine mammals either observed in the water or hauled out. Behavior of seals must be recorded on a three point scale: 1 = alert reaction, not considered harassment; 2 = moving at least two body lengths, or change in direction greater than 90 degrees; 3 = flushing (Table 3). USFWS staff must also record and report all observations of sick, injured, or entangled marine mammals on Monomoy NWR to the International Fund for Animal Welfare (IFAW) marine mammal rescue team, and must report to NOAA if injured seals are found at Nantucket NWR and Nomans NWR. Tagged or marked marine mammals must also be recorded and reported to the appropriate research organization or Federal agency, as well as any rare or unusual species of marine mammal. Photographs must be taken when possible. This information must be incorporated into a report for NMFS at the end of the season. The USFWS must also coordinate with any university, state, or Federal researchers to attain additional data or observations that may be useful for monitoring marine mammal usage at the activity sites.

Table 3—Levels of Pinniped Behavioral Disturbance

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

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

Reporting

The USFWS must submit a draft report to NMFS Office of Protected Resources no later than 90 days after the expiration of this authorization. The report must include a summary of the information gathered pursuant to the monitoring requirements set forth in the IHA as well as the raw sightings data. The USFWS must submit a final report to NMFS within 30 days after receiving comments from NMFS on the draft report. If the USFWS receives no comments from NMFS on the draft report, NMFS will consider the draft report to be the final report.

Public Comments

A notice of NMFS' proposal to issue a Renewal IHA to the USFWS was published in the Federal Register on July 15, 2020 (85 FR 42832). That notice either described, or referenced descriptions of, the USFWS's activity, the marine mammal species that may be affected by the activity, the anticipated effects on marine mammals and their habitat, proposed amount and manner of take, and proposed mitigation, monitoring and reporting measures. NMFS received a comment letter from the Marine Mammal Commission (Commission). The comments and our responses are summarized below.

Comment 1: The Commission noted that the USFWS used an outdated disturbance scale in their 2019 IHA monitoring report and that some of the information the USFWS was required to collect (sections 5(b) and 5 (c)(i-v) in the IHA) was not required to be included in the monitoring report. Therefore, the Commission recommended that NMFS (1) include its disturbance scale in the final authorization Renewal consistent with conditions 5(c)(i) to (iv) in the 2019 authorization Renewal for Point Blue and ensure FWS is aware of the changes to the disturbance scale, (2) include all the information that FWS would be required to collect under 5(b) and 5(c)(i) to (v) as specific reporting requirements in section 6(b) of the final authorization Renewal, and (3) include the requirement for FWS to provide the raw sightings data in section 6(b) of the final IHA Renewal.

Response: NMFS agrees with the Commission's recommendations to include the disturbance scale in the IHA and ensure the USFWS uses the correct scale in their monitoring efforts. NMFS also agrees with the Commission's recommendation to revise the authorization text such that the reporting requirements align with the monitoring requirements. The USFWS has previously voluntarily provided raw sightings data spreadsheets as appendices in their monitoring report, but NMFS has agreed to include this requirement in section 6(b) of the IHA Renewal.

Comment 2: The Commission recommends that NMFS refrain from issuing Renewals for any authorization and instead use its abbreviated Federal Register notice process.

Response: In prior responses to comments about IHA Renewals (e.g., 84 FR 52464; October 02, 2019), NMFS has explained how the Renewal process, as implemented, is consistent with the statutory requirements contained in section 101(a)(5)(D) of the MMPA and, therefore, we plan to continue to issue qualifying Renewals when the requirements outlined on our website are met. Thus, NMFS agrees with the Commission's recommendation that we should not issue a Renewal for any authorization unless it is consistent with the procedural requirements specified in section 101(a)(5)(D)(iii) of the MMPA.

Additionally, regarding the recommendation to use abbreviated notices, we agree that they are a useful tool by which to increase efficiency in conjunction with the use of Renewals, but we disagree that their use alone would equally fulfill NMFS' goal to maximize efficiency and provide regulatory certainty for applicants, with no reduction in protections for marine mammals. The Renewal process, with its narrowly described qualifying actions, specific issuance criteria, and additional 15-day comment period, allows for NMFS to broadly commit to a 60-day processing time. This commitment, which would not be possible in the absence of this narrow definition and the 15-day additional comment period, provides both a meaningfully shortened processing time and regulatory certainty for planning purposes. Increasing the comment period for Renewals to 30 days would increase processing time by 25% and is unnecessary, given the legal sufficiency of the process as it stands, as described above, and no additional protections for marine mammals that would result. NMFS uses abbreviated notices when proposed actions do not qualify for Renewals, but still allow for reliance upon previous documentation and analyses. These abbreviated notice projects, which deviate from the narrow qualifications of a Renewal, require some additional time for the analyst to appropriately review the small changes from the initial IHA and further necessitate the 30-day public review required for a new IHA. NMFS has evaluated the use of both the Renewal and abbreviated notice processes, as well as the associated workload for each, and determined that using both of these processes provides maximum efficiency for the agency and applicants, regulatory certainty, and appropriate protections for marine mammals consistent with the statutory standards. Using the abbreviated notice process, however, is unnecessary and unwarranted for projects that meet the narrow qualifications for a Renewal IHA.

As previously noted, we have found that the Renewal process is consistent with the statutory requirements of the MMPA and, further, promotes NMFS' goals of improving conservation of marine mammals and increasing efficiency in the MMPA compliance process. Therefore, we intend to continue implementing the Renewal process.

National Environmental Policy Act

To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our proposed action (i.e., the issuance of an IHA Renewal) with respect to potential impacts on the human environment.

This action is consistent with categories of activities identified in CE B4 of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has determined that the issuance of the proposed IHA Renewal qualifies to be categorically excluded from further NEPA review.

Determinations

The seabird and shorebird research and monitoring activities planned by the USFWS are identical to those analyzed in the initial IHA, as are the expected number of days of activity, the method of taking, and the effects of the action. The potential effects of the USFWS's activities are limited to Level B harassment in the form of behavioral disturbance. In analyzing the effects of the activities in the initial IHA, NMFS determined that the USFWS's activities would have a negligible impact on the affected species or stocks and that the authorized take numbers of each species or stock were small relative to the relevant stocks (e.g., less than 9 percent of all stocks). The numbers of marine mammals authorized to be taken are identical to those authorized in the initial IHA. The mitigation measures and monitoring requirements as described above also are identical to the initial IHA, and NMFS has clarified the reporting requirements to align with the monitoring data the USFWS is required to collect.

NMFS has concluded that there is no new information suggesting that our analysis or findings should change from those reached for the initial IHA. Based on the information and analysis contained here and in the referenced documents, NMFS has determined the following: (1) The required mitigation measures will effect the least practicable impact on marine mammal species or stocks and their habitat; (2) the authorized takes will have a negligible impact on the affected marine mammal species or stocks; (3) the authorized takes represent small numbers of marine mammals relative to the affected stock abundances; (4) USFWS's activities will not have an unmitigable adverse impact on taking for subsistence purposes as no relevant subsistence uses of marine mammals are implicated by this action; and (5) appropriate monitoring and reporting requirements are included.

Endangered Species Act

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

Renewal

NMFS has issued a Renewal IHA to the USFWS for the take of marine mammals incidental to conducting research and monitoring activities at the Complex from August 14, 202 through June 11, 2021.

Dated: August 17, 2020.

Donna S. Wieting,

Director, Office of Protected Resources, National Marine Fisheries Service.