Small Takes of Marine Mammals Incidental to Specified Activities; Cape Wind's High Resolution Survey in Nantucket Sound, MA, 7402-7411 [2013-02195]
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Federal Register / Vol. 78, No. 22 / Friday, February 1, 2013 / Notices
DEPARTMENT OF COMMERCE
II. Method of Collection
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
Respondents have a choice of either
electronic or paper forms. Methods of
submittal include email of electronic
forms, and mail and facsimile
transmission of paper forms.
National Oceanic and Atmospheric
Administration
Proposed Information Collection;
Comment Request; Paperwork
Submissions Under the Coastal Zone
Management Act Federal Consistency
Requirements
National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice.
AGENCY:
The Department of
Commerce, as part of its continuing
effort to reduce paperwork and
respondent burden, invites the general
public and other Federal agencies to
take this opportunity to comment on
proposed and/or continuing information
collections, as required by the
Paperwork Reduction Act of 1995.
DATES: Written comments must be
submitted on or before April 2, 2013.
ADDRESSES: Direct all written comments
to Jennifer Jessup, Departmental
Paperwork Clearance Officer,
Department of Commerce, Room 6616,
14th and Constitution Avenue NW.,
Washington, DC 20230 (or via the
Internet at JJessup@doc.gov).
FOR FURTHER INFORMATION CONTACT:
Requests for additional information or
copies of the information collection
instrument and instructions should be
directed to David Kaiser, 603–862–2719
or David.Kaiser@noaa.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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I. Abstract
This request is for extension of a
currently approved information
collection.
A number of paperwork submissions
are required by the Coastal Zone
Management Act (CZMA) federal
consistency provision, 16 U.S.C. 1456,
and by NOAA to provide a reasonable,
efficient and predictable means of
complying with CZMA requirements.
The requirements are detailed in 15 CFR
part 930. The information will be used
by coastal states with federallyapproved Coastal Zone Management
Programs to determine if Federal agency
activities, Federal license or permit
activities, and Federal assistance
activities that affect a state’s coastal
zone are consistent with the states’
programs. Information will also be used
by NOAA and the Secretary of
Commerce for appeals to the Secretary
by non-federal applicants regarding
State CZMA objections to federal license
or permit activities.
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III. Data
OMB Control Number: 0648–0411.
Form Number: None.
Type of Review: Regular submission
(extension of a currently approved
collection).
Affected Public: State, local, or tribal
government; business or other for-profit
organizations; individuals or
households.
Estimated Number of Respondents:
2,334.
Estimated Time Per Response:
Applications/certifications and state
preparation of objection or concurrence
letters, 8 hours each; state requests for
review of unlisted activities, 4 hours;
public notices, 1 hour; remedial action
and supplemental review, 6 hours;
listing notices, 1 hour; interstate listing
notices, 30 hours; mediation, 2 hours;
appeals to the Secretary of Commerce,
210 hours.
Estimated Total Annual Burden
Hours: 35,799.
Estimated Total Annual Cost to
Public: $9,024 in recordkeeping/
reporting costs.
IV. Request for Comments
Comments are invited on: (a) Whether
the proposed collection of information
is necessary for the proper performance
of the functions of the agency, including
whether the information shall have
practical utility; (b) the accuracy of the
agency’s estimate of the burden
(including hours and cost) of the
proposed collection of information; (c)
ways to enhance the quality, utility, and
clarity of the information to be
collected; and (d) ways to minimize the
burden of the collection of information
on respondents, including through the
use of automated collection techniques
or other forms of information
technology.
Comments submitted in response to
this notice will be summarized and/or
included in the request for OMB
approval of this information collection;
they also will become a matter of public
record.
Dated: January 28, 2013.
Gwellnar Banks,
Management Analyst, Office of the Chief
Information Officer.
[FR Doc. 2013–02146 Filed 1–31–13; 8:45 am]
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Small Takes of Marine Mammals
Incidental to Specified Activities; Cape
Wind’s High Resolution Survey in
Nantucket Sound, MA
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; proposed incidental
harassment authorization; request for
comments.
AGENCY:
NMFS has received an
application from Cape Wind Associates
(CWA) for an Incidental Harassment
Authorization (IHA) to take marine
mammals, by harassment, incidental to
pre-construction high resolution survey
activities. CWA began pre-construction
activities last year, but was unable to
complete the entire survey. Pursuant to
the Marine Mammal Protection Act
(MMPA), NMFS is requesting comments
on its proposal to issue a second IHA to
CWA to incidentally take, by Level B
harassment only, marine mammals
during the specified activity.
DATES: Comments and information must
be received no later than March 4, 2013.
ADDRESSES: Comments on the
application and this proposal should be
addressed to Michael Payne, Chief,
Permits and Conservation Division,
Office of Protected Resources, National
Marine Fisheries Service, 1315 EastWest Highway, Silver Spring, MD
20910–3225. The mailbox address for
providing email comments is
ITP.Magliocca@noaa.gov. NMFS is not
responsible for email comments sent to
addresses other than the one provided
here. Comments sent via email,
including all attachments, must not
exceed a 10-megabyte file size.
Instructions: All comments received
are a part of the public record and will
generally be posted to https://www.nmfs.
noaa.gov/pr/permits/incidental.htm
without change. All Personal Identifying
Information (for example, name,
address, etc.) voluntarily submitted by
the commenter may be publicly
accessible. Do not submit Confidential
Business Information or otherwise
sensitive or protected information.
A copy of the application containing
a list of the references used in this
document may be obtained by visiting
the internet at: https://www.nmfs.noaa.
gov/pr/permits/incidental.htm. The
following associated documents are also
SUMMARY:
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available at the same internet address:
2011 Environmental Assessment.
Documents cited in this notice may also
be viewed, by appointment, during
regular business hours, at the
aforementioned address.
FOR FURTHER INFORMATION CONTACT:
Michelle Magliocca, Office of Protected
Resources, NMFS, (301) 427–8401.
SUPPLEMENTARY INFORMATION:
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Background
Sections 101(a)(5)(A) and (D) of the
MMPA (16 U.S.C. 1361 et seq.) direct
the Secretary of Commerce to allow,
upon request, the incidental, but not
intentional, taking of small numbers of
marine mammals by U.S. citizens who
engage in a specified activity (other than
commercial fishing) within a specific
geographical region if certain findings
are made and either regulations are
issued or, if the taking is limited to
harassment, a notice of a proposed
authorization is provided to the public
for review.
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.’’
Section 101(a)(5)(D) of the MMPA
established an expedited process by
which citizens of the U.S. can apply for
a 1-year authorization to incidentally
take small numbers of marine mammals
by harassment, provided that there is no
potential for serious injury or mortality
to result from the activity. Section
101(a)(5)(D) establishes a 45-day time
limit for NMFS review of an application
followed by a 30-day public notice and
comment period on any proposed
authorizations for the incidental
harassment of marine mammals. Within
45 days of the close of the comment
period, NMFS must either issue or deny
the authorization.
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
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the potential to disturb a marine
mammal or marine mammal stock in the
wild by causing disruption of behavioral
patterns, including, but not limited to,
migration, breathing, nursing, breeding,
feeding, or sheltering [Level B
harassment].
Summary of Request
On December 19, 2012, NMFS
received an application from CWA for
the taking of marine mammals
incidental to high resolution survey
activities. NMFS determined that the
application was adequate and complete
on December 31, 2012.
CWA proposes to conduct a high
resolution geophysical survey in
Nantucket Sound, Massachusetts. The
proposed activity would occur during
daylight hours over an estimated 109day period beginning in April 2013. The
following equipment used during the
survey is likely to result in the take of
marine mammals: Shallow-penetration
subbottom profiler and mediumpenetration subbottom profiler. Take, by
Level B harassment only, of individuals
of five species is anticipated to result
from the specified activity. This request
is basically an extension of the request
made in April 2011 for survey activities
that were not completed under the
previous IHA. CWA is not proposing to
change their survey activities in any
way. However, the geotechnical portion
of the survey was completed in 2012
and would not be continued during the
2013 season.
Description of the Specified Activity
CWA proposes to conduct a high
resolution geophysical survey in order
to acquire remote-sensing data around
Horseshoe Shoal which would be used
to characterize resources at or below the
seafloor. The purpose of the survey
would be to identify any submerged
cultural resources that may be present
and to generate additional data
describing the geological environment
within the survey area. The survey
would satisfy the mitigation and
monitoring requirements for ‘‘cultural
resources and geology’’ in the
environmental stipulations of the
Bureau of Ocean Energy Management,
Regulation, and Enforcement’s lease.
The survey is part of the first phase of
a larger Cape Wind energy project,
which involves the installation of 130
wind turbine generators on Horseshoe
Shoal over a 2-year period. The survey
would collect data along predetermined
track lines using a towed array of
instrumentation, which would include a
side scan sonar, magnetometer, shallowpenetration subbottom profiler,
multibeam depth sounder, and medium-
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penetration subbottom profiler. The
proposed high resolution geophysical
survey activities would not result in any
disturbance to the sea floor.
Dates and Duration
Survey activities are necessary prior
to construction of the wind turbine
array and are scheduled to begin in the
spring of 2013, continuing on a daily
basis for up to five months. Survey
vessels would operate during daytime
hours only and CWA estimates that one
survey vessel would cover about 17
Nautical miles (31 kilometers) of track
line per day. Therefore, CWA
conservatively estimates that survey
activities would take 109 days (28 days
less than what was expected under the
2012 IHA). However, if more than one
survey vessel is used, the survey
duration would be considerably shorter.
NMFS is proposing to issue an
authorization that extends from April 1,
2013, to March 31, 2014.
Location
Survey vessels are expected to depart
from Falmouth Harbor, Massachusetts,
or another nearby harbor on Cape Cod.
In total, the survey would cover
approximately 110 square kilometers
(km2). This area includes the future
location of the wind turbine
generators—an area about 8.4 km from
Point Gammon, 17.7 km from Nantucket
Island, and 8.9 km from Martha’s
Vineyard—and cables connecting the
wind park to the mainland. The survey
area within the wind park would be
transited by survey vessels towing
specialized equipment along primary
track lines and perpendicular tie lines.
Preliminary survey designs include
primary track lines with northwestsoutheast orientations and assume 30meter (m) line spacing. Preliminary
survey designs also call for tie lines to
likely run in a west-east orientation
covering targeted areas of the
construction footprint where wind
turbine generators would be located.
The survey area along the
interconnecting submarine cable route
includes a construction and anchoring
corridor, as part of the wind farm’s area
of potential effect. The total track line
distance covered during the survey is
estimated to be about 3,432 km (as
opposed to the 4,292 km included in the
2012 IHA).
Multiple survey vessels may operate
within the survey area and would travel
at about 3 knots during data acquisition
and approximately 15 knots during
transit between the survey area and
port. If multiple vessels are used at the
same time, they would be far enough
apart that sounds from the chirp and
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boomer would not overlap. The survey
vessels would acquire data continuously
throughout the survey area during the
day and terminate survey activities
before dark, prior to returning to port.
NMFS believes that the likelihood of a
survey vessel striking a marine mammal
is low considering the low marine
mammal densities within Nantucket
Sound, the relatively short distance
from port to the survey site, the limited
number of vessels, and the small vessel
size. Vessel sounds during survey
activities would result from propeller
cavitations, propeller singing,
propulsion, flow noise from water
dragging across the hull, and bubbles
breaking in the wake. The dominant
sound source from vessels would be
from propeller cavitations; however,
sounds resulting from survey vessel
activity are considered to be no louder
than the existing ambient sound levels
and sound generated from regular
shipping and boating activity in
Nantucket Sound (MMS, 2009).
NMFS expects that acoustic stimuli
resulting from the operation of the
survey equipment have the potential to
harass marine mammals. Background
information on the characteristics and
measurement of sound are provided
later in this document. The dominant
sources of sound during the proposed
survey activities would be from the
towed equipment used to gather seafloor
data. Two of the seismic survey devices
used during the high resolution
geophysical survey emit sounds within
the hearing range of marine mammals in
Nantucket Sound: Shallow-penetration
and medium-penetration subbottom
profilers (known as a ‘‘chirp’’ and
‘‘boomer,’’ respectively). CWA would
use a chirp to provide high resolution
data of the upper 15 m of sea bottom.
An EdgeTech 216S or similar model
would be used. The chirp would be
towed near the center of the survey
vessel directly adjacent to the gunwale
of the boat, about 1 to 1.5 m beneath the
water’s surface. Sources such as the
chirp are considered non-impulsive,
intermittent (as opposed to continuous)
sounds. The frequency range for this
instrument is generally 2 to 16 kilohertz
(kHz)—a range audible by all marine
mammal species in Nantucket Sound.
The estimated sound pressure level at
the source would be 201 dB re 1 mPa at
1 m with a typical pulse length of 32
milliseconds and a pulse repetition rate
of 4 per second. NMFS does not
consider the chirp to be a continuous
sound source (best represented by
vibratory pile driving or drilling). CWA
would use a boomer to obtain deeper
resolution of geologic layering that
cannot be imaged by the chirp. An
AP3000 (dual plate) boomer, or similar
model would be used. The boomer
would be towed about 3 to 5 m behind
the survey vessel’s stern at the water’s
surface. Unlike the chirp, the boomer
emits an impulse sound, characterized
by a relatively rapid rise-time to
maximum pressure followed by a period
of diminishing and oscillating pressures
(Southall et al., 2007). The boomer has
a broad frequency range of 0.3 to 14
kHz—a range audible by all marine
mammal species in Nantucket Sound.
CWA performed sound source
verification monitoring in 2012 on the
type of chirp and boomer that would be
used during the 2013 survey season.
Underwater sound was recorded with
two Autonomous Multichannel
Acoustic Recorders, deployed 100 m
apart, in the vicinity of the project area.
The received 90-percent rms sound
pressure levels (SPLs) from the
subbottom profilers did not exceed 175
dB re 1uPa. The loudest source, the
dual-plate boomer, produced a received
90-percent rms SPL of less than 140 dB
re 1 uPa at a 500-m range. The distance
to the 160-dB isopleth was 12 m for the
dual-plate boomer and 10 m for the
chirp.
Description of Marine Mammals in the
Area of the Specified Activity
All marine mammals with possible or
confirmed occurrence in the proposed
activity area are listed in Table 1, along
with their status under the Endangered
Species Act (ESA) and MMPA. In
general, large whales do not frequent
Nantucket Sound, but they are
discussed below because some species
have been reported near the project
vicinity.
TABLE 1—MARINE MAMMALS WITH POSSIBLE OR CONFIRMED OCCURRENCE IN THE PROPOSED ACTIVITY AREA
Scientific name
ESA status
Humpback whale ..............................................
Fin whale ..........................................................
North Atlantic right whale .................................
Long-finned pilot whale ....................................
Minke whale .....................................................
Atlantic white-sided dolphin ..............................
Striped dolphin .................................................
Common dolphin ..............................................
Harbor porpoise ................................................
Atlantic spotted dolphin ....................................
Risso’s dolphin .................................................
Dwarf and pygmy sperm whale .......................
Gray seal ..........................................................
Harbor seal .......................................................
Harp seal ..........................................................
Hooded seal .....................................................
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Common name
Megaptera novaeangilae ................................
Balaenoptera physalus ...................................
Eubaelena glacialis .........................................
Globicephalus melas.
Balaenoptera acutorostrata.
Lagenorhynchus acutus.
Stellena coeruleoalba.
Delphinus delphis.
Phocoena phocoena.
Stenella frontalis.
Grampus griseus.
Kogia spp..
Halichoerus grypus.
Phoca vitulina.
Phoca groenlandica.
Crystophora cristata.
endangered ................
endangered ................
endangered ................
Sightings data indicate that whales
rarely visit Nantucket Sound and there
are no sightings of large whales on
Horseshoe Shoal. Since 2002, no
humpback whales have been observed
anywhere in Nantucket Sound and there
are no documented occurrences of fin
whales within Nantucket Sound. Right
whales are considered rare in Nantucket
Sound and have not been sighted on
Horseshoe Shoal. All of the right whales
observed in Nantucket Sound during
2010 quickly transited the area and
there is no evidence of any persistent
aggregations around the proposed
project area. The best available science
indicates that humpback whales, fin
whales, and right whales—although
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MMPA status
depleted.
depleted.
depleted.
present in the New England region—are
rare in Nantucket Sound and transient
individuals may be occasionally found
20 km from the proposed project area;
this is likely due to the shallow depths
of Nantucket Sound and its location
outside of the coastal migratory
corridor.
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Likewise, sightings data shows no
record of long-finned pilot whales,
striped dolphins, Atlantic spotted
dolphins, common dolphins, Risso’s
dolphins, Kogia species, harp seals, or
hooded seals in Nantucket Sound,
although these stocks exist in the New
England region. Therefore, CWA is not
requesting, nor is NMFS proposing, take
for the aforementioned species.
Marine mammals with known
occurrences in Nantucket Sound that
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could be harassed by high resolution
geophysical survey activity in
Nantucket Sound are listed in Table 2.
These are the species for which take is
being requested.
TABLE 2—MARINE MAMMALS THAT COULD BE IMPACTED BY SURVEY ACTIVITIES IN NANTUCKET SOUND
Common name
Scientific name
Minke whale ....................................
Atlantic white-sided dolphin ............
Harbor porpoise ..............................
Gray seal .........................................
Harbor seal ......................................
Balaenoptera actuorostrata ............
Lagenorhynchus acutus ..................
Phocoena phocoena .......................
Halichoerus grypis ..........................
Phoca vitulina .................................
Minke Whales
In the North Atlantic, minke whales
are found from Canada to the Gulf of
Mexico and concentrated in New
England waters, particularly in the
spring and summer months. Minke
whales found in Nantucket Sound are
part of the Canadian East Coast stock,
which runs from the Davis Strait down
to the Gulf of Mexico. The best available
abundance estimate for this stock is
8,987 individuals. Sightings data
indicate that minke whales prefer
shallower waters when in the Cape Cod
vicinity, but depths significantly greater
than Nantucket Sound. Sightings per
unit effort estimates for Nantucket
Sound are 0.1 to 5.9 minke whales per
1,000 km of survey track for spring and
summer. However, estimates may be
biased due to heavier whale watching
activities during those months. Minke
whales are one of the most abundant
whale species in the world and their
population is considered stable
throughout. The minke whale is not
listed under the ESA nor considered
strategic under the MMPA.
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Atlantic White-Sided Dolphin
Atlantic white-sided dolphins are
found in temperate and sub-polar waters
of the North Atlantic, typically along the
continental shelf and slope. In the
western North Atlantic, they are found
from North Carolina to Greenland.
During summer months, Atlantic whitesided dolphins move north and closer to
shore. Atlantic white-sided dolphins are
rare in Nantucket Sound, but are found
in deeper waters around Massachusetts
and Rhode Island. In 2011, the
estimated population size of the
Western North Atlantic stock was about
23,390 animals. There is insufficient
data to determine population trends, but
Atlantic white-sided dolphins are not
listed under the ESA, although they are
considered strategic under the MMPA.
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Abundance
8,987
63,000
89,504
250,000
99,340
Population
status
stable ...........
n/a ...............
n/a ...............
increasing ....
n/a ...............
Harbor Porpoises
Harbor porpoises have a wide and
discontinuous range that includes the
North Atlantic and North Pacific. In the
western North Atlantic, harbor
porpoises are found from Greenland to
Cape Hatteras, North Carolina. Harbor
porpoises in U.S. waters are divided
into 10 stocks, based on genetics,
movement patterns, and management.
Any harbor porpoises encountered
during the proposed survey activities
would be part of the Gulf of Maine/Bay
of Fundy stock which has an estimated
abundance of 89,054 animals and a
minimum population estimate of 60,970
(NMFS, 2011c). They congregate around
the Gulf of Maine during summer
months, but are otherwise dispersed
along the east coast. No trend analyses
exist for this species. Harbor porpoises
are not listed under the ESA although
they are considered strategic under the
MMPA.
Gray Seals
Gray seals inhabit temperate and subarctic waters. They are found from
Maine to Long Island Sound, live on
remote, exposed islands, shoals, and
unstable sandbars, and are the second
most common pinniped along the U.S.
Atlantic coast. Three major populations
exist in eastern Canada, northwestern
Europe, and the Baltic Sea. The western
North Atlantic stock is equivalent to the
eastern Canada population and ranges
from New York to Labrador. Pupping
occurs on land or ice from late
December through mid-February with
peaks in mid-January. Muskeget Island
(located between Martha’s Vineyard and
Nantucket Island) and Monomoy Island
(at the eastern limit of Nantucket
Sound) are the only gray seal breeding
colonies in the U.S. and the
southernmost gray seal breeding
colonies in the world. These breeding
colonies are about 24 km and 14 km
from the proposed project site,
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Time of year in New England
April through October.
October through December.
Year-round (peak Sept–Apr).
Year-round.
October through April.
respectively. Gray seals presently use
the islands as areas to give birth and
raise their pups. There is no defined
migratory behavior for gray seals, so a
large portion of the population may be
present in Nantucket Sound year-round.
Some adults move north during spring
and summer, out of Nantucket Sound to
the waters off Maine and Canada, but
others have been observed in high
abundance in Chatham Harbor, MA and
other areas of lower Cape Cod during
this time.
Incidental observations of seals were
recorded during avian aerial surveys
conducted independently by CWA and
the Massachusetts Audubon Society.
Between May 2002 and February 2004,
CWA conducted about 46 aerial avian
surveys in Nantucket Sound, with
particular focus on Horseshoe Shoal.
During this time, about 26,873 seals
were observed throughout Nantucket
Sound; about 56 of these were observed
within the proposed project area over
the three-year period. Current
population numbers for the western
North Atlantic stock are unknown, but
some pup surveys suggest about 223,220
animals. Gray seal numbers are
increasing in coastal waters between
southern Massachusetts and eastern
Long Island. Their abundance is likely
increasing throughout the western
Atlantic, but the rate of increase is
unknown. Gray seals are not listed
under the ESA, nor considered strategic
under the MMPA.
Harbor Seals
Harbor seals, also known as common
seals, are found throughout coastal
waters of the Atlantic Ocean and
considered the most abundant pinniped
on the U.S. east coast. The best available
estimate for the harbor seal population
along the New England coast is 99,340
(NMFS, 2011f). They are most common
around coastal islands, ledges, and
sandbars above 30° N latitude and range
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from the Arctic down to Nantucket
Sound. Harbor seals are seasonal
visitors to Massachusetts; breeding and
pupping occur through the spring and
summer in Maine and Canada. Harbor
seals typically over-winter in
Massachusetts, but some remain in
southern New England year-round. No
pupping areas have been identified in
southern New England. Extensive sand
spits off Muskeget Island and
neighboring Tuckernuck and Skiff
Islands have been identified as preferred
haul-out spots for large numbers of
harbor seals.
Harbor seal abundance estimates for
Nantucket Sound are scarce. Barlas
(1999) observed harbor seals on Cape
Cod from October through April and
saw abundance peak in March, with
very few individuals using haul-out
sites in Nantucket Sound. Waring
(unpublished data, 2002) observed an
increased abundance of harbor seals on
Muskeget Island, Monomoy Island, and
Tuckernuck Island in 1999 and 2000;
however, harbor seals are not likely to
be in the same area when gray seals are
breeding.
Further information on the biology
and local distribution of these species
and others in the region can be found in
CWA’s application, which is available
online at: https://www.nmfs.noaa.gov/pr/
permits/incidental.htm#applications,
and the NMFS Marine Mammal Stock
Assessment Reports, which are available
online at: https://www.nmfs.noaa.gov/pr/
species.
Potential Effects of the Specified
Activity on Marine Mammals
Use of subbottom profilers on
Horseshoe Shoal may temporarily
impact marine mammal behavior within
the survey area due to elevated in-water
sound levels. Marine mammals are
continually exposed to many sources of
sound. Naturally occurring sounds such
as lightning, rain, sub-sea earthquakes,
and biological sounds (for example,
snapping shrimp, whale songs) are
widespread throughout the world’s
oceans. Marine mammals produce
sounds in various contexts and use
sound for various biological functions
including, but not limited to, (1) social
interactions; (2) foraging; (3) orientation;
and (4) predator detection. Interference
with producing or receiving these
sounds may result in adverse impacts.
Audible distance, or received levels of
sound depend on the nature of the
sound source, ambient noise conditions,
and the sensitivity of the receptor to the
sound (Richardson et al., 1995). Type
and significance of marine mammal
reactions to sound are likely dependent
on a variety of factors including, but not
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limited to, (1) the behavioral state of the
animal (for example, feeding, traveling,
etc.); (2) frequency of the sound; (3)
distance between the animal and the
source; and (4) the level of the sound
relative to ambient conditions (Southall
et al., 2007).
For background, sound is a physical
phenomenon consisting of minute
vibrations that travel through a medium,
such as air or water, and is generally
characterized by several variables.
Frequency describes the sound’s pitch
and is measured in hertz (Hz) or
kilohertz (kHz), while sound level
describes the sound’s intensity and is
measured in decibels (dB). Sound level
increases or decreases exponentially
with each dB of change. The logarithmic
nature of the scale means that each 10dB increase is a 10-fold increase in
acoustic power (and a 20-dB increase is
then a 100-fold increase in power). A
10-fold increase in acoustic power does
not mean that the sound is perceived as
being 10 times louder, however. Sound
levels are compared to a reference
sound pressure (micro-Pascal) to
identify the medium. For air and water,
these reference pressures are ‘‘re: 20
mPa’’ and ‘‘re: 1 mPa,’’ respectively. Root
mean square (RMS) is the quadratic
mean sound pressure over the duration
of an impulse. RMS is calculated by
squaring all of the sound amplitudes,
averaging the squares, and then taking
the square root of the average (Urick,
1975). RMS accounts for both positive
and negative values; squaring the
pressures makes all values positive so
that they may be accounted for in the
summation of pressure levels (Hastings
and Popper, 2005). This measurement is
often used in the context of discussing
behavioral effects, in part because
behavioral effects, which often result
from auditory cues, may be better
expressed through averaged units rather
than by peak pressures.
Cetaceans are divided into three
functional hearing groups: Lowfrequency, mid-frequency, and highfrequency. Minke whales are considered
low-frequency cetaceans and their
estimated auditory bandwidth (lower to
upper frequency hearing cut-off) ranges
from 7 Hz to 30 kHz. Atlantic whitesided dolphins are considered midfrequency cetaceans and their estimated
auditory bandwidth ranges from 150 Hz
to 160 kHz. Lastly, harbor porpoises are
considered high-frequency cetaceans
and their estimated auditory bandwidth
ranges from 200 Hz to 180 kHz. In
contrast, pinnipeds are divided into two
functional hearing groups: In-water and
in-air. Pinnipeds in water have an
estimated auditory bandwidth of 75 Hz
to 75 kHz. There are no pinniped haul-
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outs close enough to the survey area to
take in-air auditory bandwidths into
consideration.
Hearing Impairment
Marine mammals may experience
temporary or permanent hearing
impairment when exposed to loud
sounds. Hearing impairment is
classified by temporary threshold shift
(TTS) and permanent threshold shift
(PTS). There are no empirical data for
onset of PTS in any marine mammal;
therefore, PTS-onset must be estimated
from TTS-onset measurements and from
the rate of TTS growth with increasing
exposure levels above the level eliciting
TTS-onset. PTS is presumed to be likely
if the hearing threshold is reduced by ≥
40 dB (that is, 40 dB of TTS). PTS is
considered auditory injury (Southall et
al., 2007) and occurs in a specific
frequency range and amount. Irreparable
damage to the inner or outer cochlear
hair cells may cause PTS; however,
other mechanisms are also involved,
such as exceeding the elastic limits of
certain tissues and membranes in the
middle and inner ears and resultant
changes in the chemical composition of
the inner ear fluids (Southall et al.,
2007). Due to proposed mitigation
measures and source levels, NMFS does
not expect marine mammals to be
exposed to PTS levels during the
proposed survey activities.
Temporary Threshold Shift (TTS)
TTS is the mildest form of hearing
impairment that can occur during
exposure to a loud sound (Kryter, 1985).
While experiencing TTS, the hearing
threshold rises and a sound must be
stronger in order to be heard. At least in
terrestrial mammals, TTS can last from
minutes or hours to (in cases of strong
TTS) days, can be limited to a particular
frequency range, and can occur to
varying degrees (i.e., a loss of a certain
number of dBs of sensitivity). For sound
exposures at or somewhat above the
TTS threshold, hearing sensitivity in
both terrestrial and marine mammals
recovers rapidly after exposure to the
noise ends.
Marine mammal hearing plays a
critical role in communication with
conspecifics and in interpretation of
environmental cues for purposes such
as predator avoidance and prey capture.
Depending on the degree (elevation of
threshold in dB), duration (i.e., recovery
time), and frequency range of TTS and
the context in which it is experienced,
TTS can have effects on marine
mammals ranging from discountable to
serious. For example, a marine mammal
may be able to readily compensate for
a brief, relatively small amount of TTS
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in a non-critical frequency range that
takes place during a time when the
animals is traveling through the open
ocean, where ambient noise is lower
and there are not as many competing
sounds present. Alternatively, a larger
amount and longer duration of TTS
sustained during a time when
communication is critical for successful
mother/calf interactions could have
more serious impacts if it were in the
same frequency band as the necessary
vocalizations and of a severity that it
impeded communication. The fact that
animals exposed to levels and durations
of sound that would be expected to
result in this physiological response
would also be expected to have
behavioral responses of a comparatively
more severe or sustained nature is also
notable and potentially of more
importance than the simple existence of
a TTS.
Recent literature highlights the
inherent complexity of predicting TTS
onset in marine mammals, as well as the
importance of considering exposure
duration when assessing potential
impacts (Mooney et al., 2009a, 2009b;
Kastak et al., 2007). Generally, with
sound exposures of equal energy,
quieter sounds (lower SPL) of longer
duration were found to induce TTS
onset more than louder sounds (higher
SPL) of shorter duration (more similar to
subbottom profilers). For intermittent
sounds, less threshold shift will occur
than from a continuous exposure with
the same energy (some recovery will
occur between intermittent exposures)
(Kryter et al., 1966; Ward, 1997). For
sound exposures at or somewhat above
the TTS-onset threshold, hearing
sensitivity recovers rapidly after
exposure to the sound ends. Southall et
al. (2007) considers a 6 dB TTS (that is,
baseline thresholds are elevated by 6
dB) to be a sufficient definition of TTSonset. NMFS considers TTS as Level B
harassment that is mediated by
physiological effects on the auditory
system; however, NMFS does not
consider TTS-onset to be the lowest
level at which Level B harassment may
occur. Southall et al. (2007) summarizes
underwater pinniped data from Kastak
et al. (2005), indicating that a tested
harbor seal showed a TTS of around 6
dB when exposed to a nonpulse noise
at sound pressure level 152 dB re: 1 mPa
for 25 minutes.
Some studies suggest that harbor
porpoises may be more sensitive to
sound than other odontocetes (Lucke et
al., 2009; Kastelein et al., 2011). While
TTS onset may occur in harbor
porpoises at lower received levels
(when compared to other odontocetes),
NMFS 160-dB threshold criteria are
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based on the onset of behavioral
harassment, not the onset of TTS. The
potential for TTS is considered within
NMFS’ analysis of potential impacts
from Level B harassment.
Behavioral Disturbance
Behavioral responses to sound are
highly variable and context-specific. An
animal’s perception of and response to
(in both nature and magnitude) an
acoustic event can be influenced by
prior experience, perceived proximity,
bearing of the sound, familiarity of the
sound, etc. (Southall et al., 2007). If a
marine mammal does react briefly to an
underwater sound by changing its
behavior or moving a small distance, the
impacts of the change are unlikely to be
significant to the individual, let alone
the stock or population. However, if a
sound source displaces marine
mammals from an important feeding or
breeding area for a prolonged period,
impacts on individuals and populations
could be significant (e.g., Lusseau and
Bejder, 2007; Weilgart, 2007). Given the
many uncertainties in predicting the
quantity and types of impacts of noise
on marine mammals, it is common
practice to estimate how many
mammals would be present within a
particular distance of activities and/or
exposed to a particular level of sound.
In most cases, this approach likely
overestimates the numbers of marine
mammals that would be affected in
some biologically-important manner.
The studies that address responses of
low-frequency cetaceans (such as the
minke whale) to non-pulse sounds
include data gathered in the field and
related to several types of sound sources
(of varying similarity to chirps),
including: Vessel noise, drilling and
machinery playback, low-frequency Msequences (sine wave with multiple
phase reversals) playback, tactical lowfrequency active sonar playback, drill
ships, and non-pulse playbacks. These
studies generally indicate no (or very
limited) responses to received levels in
the 90 to 120 dB re: 1mPa range and an
increasing likelihood of avoidance and
other behavioral effects in the 120 to
160 dB range. As mentioned earlier,
though, contextual variables play a very
important role in the reported responses
and the severity of effects are not linear
when compared to received level. Also,
few of the laboratory or field datasets
had common conditions, behavioral
contexts, or sound sources, so it is not
surprising that responses differ.
The studies that address responses of
mid-frequency cetaceans (such as
Atlantic white-sided dolphins) to nonpulse sounds include data gathered both
in the field and the laboratory and
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related to several different sound
sources (of varying similarity to chirps)
including: Pingers, drilling playbacks,
ship and ice-breaking noise, vessel
noise, Acoustic harassment devices
(AHDs), Acoustic Deterrent Devices
(ADDs), mid-frequency active sonar, and
non-pulse bands and tones. Southall et
al. (2007) were unable to come to a clear
conclusion regarding the results of these
studies. In some cases animals in the
field showed significant responses to
received levels between 90 and 120 dB,
while in other cases these responses
were not seen in the 120 to 150 dB
range. The disparity in results was
likely due to contextual variation and
the differences between the results in
the field and laboratory data (animals
typically responded at lower levels in
the field).
The studies that address responses of
high-frequency cetaceans (such as the
harbor porpoise) to non-pulse sounds
include data gathered both in the field
and the laboratory and related to several
different sound sources (of varying
similarity to chirps), including: Pingers,
AHDs, and various laboratory non-pulse
sounds. All of these data were collected
from harbor porpoises. Southall et al.
(2007) concluded that the existing data
indicate that harbor porpoises are likely
sensitive to a wide range of
anthropogenic sounds at low received
levels (around 90 to 120 dB), at least for
initial exposures. All recorded
exposures above 140 dB induced
profound and sustained avoidance
behavior in wild harbor porpoises
(Southall et al., 2007). Rapid
habituation was noted in some but not
all studies.
The studies that address the responses
of pinnipeds in water to non-pulse
sounds include data gathered both in
the field and the laboratory and related
to several different sound sources (of
varying similarity to chirps), including:
AHDs, various non-pulse sounds used
in underwater data communication,
underwater drilling, and construction
noise. Few studies exist with enough
information to include them in the
analysis. The limited data suggest that
exposures to non-pulse sounds between
90 and 140 dB generally do not result
in strong behavioral responses of
pinnipeds in water, but no data exist at
higher received levels (Southall et al.,
2007).
Southall et al. (2007) also addressed
behavioral responses of marine
mammals to impulse sounds. The
studies that address the responses of
low-frequency cetaceans to impulse
sounds include data gathered in the
field and related to two sound sources:
Airguns and explosions. The onset of
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significant behavioral disturbance
varied between 120 and 160 dB,
depending on species. The studies that
address the responses of mid-frequency
cetaceans to impulse sounds include
data gathered both in the field and the
laboratory and related to several
different sound sources (of varying
similarity to boomers), including: Small
explosives, airgun arrays, pulse
sequences, and natural and artificial
pulses. The data show no clear
indication of increasing probability and
severity of response with increasing
received level. Behavioral responses
seem to vary depending on species and
stimuli. Data on behavioral responses of
high-frequency cetaceans to multiple
pulses is not available. Although
individual elements of some non-pulse
sources (such as pingers) could be
considered pulses, it is believed that
some mammalian auditory systems
perceive them as non-pulse sounds
(Southall et al., 2007).
The studies that address the responses
of pinnipeds in water to impulse sounds
include data gathered in the field and
related to several different sources (of
varying similarity to boomers),
including: Small explosives, impact pile
driving, and airgun arrays. Quantitative
data on reactions of pinnipeds to
impulse sounds is limited, but a general
finding is that exposures in the 150 to
180 dB range generally have limited
potential to induce avoidance behavior
(Southall et al., 2007).
Any impacts to marine mammal
behavior are expected to be temporary.
Animals may avoid the area around the
survey vessels, thereby reducing
exposure. Any disturbance to marine
mammals is likely to be in the form of
temporary avoidance or alteration of
opportunistic foraging behavior near the
survey location. In addition, because
protected species observers would be
monitoring a 500-m exclusion zone
(much larger than the 30-m, 180-dB
isopleth in which Level A harassment
could occur), marine mammal injury or
mortality is not anticipated. The
protected species observers would be on
watch to stop survey activities, a
mitigation measure designed to prevent
animals from being exposed to injurious
level sounds. For these reasons, any
changes to marine mammal behavior are
expected to be temporary and result in
a negligible impact to affected species
and stocks.
Anticipated Effects on Habitat
There is no anticipated impact on
marine mammal habitat from the
proposed survey activities. The high
resolution geophysical survey
equipment would not come in contact
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with the seafloor and would not be a
source of air or water pollution. Marine
mammals may avoid the survey area
temporarily due to ensonification, but
survey activities are not expected to
result in long-term abandonment of
marine mammal habitat. A negligible
area of seafloor would be temporarily
disturbed during the collection of
geotechnical data.
Overall, the proposed activity is not
expected to cause significant impacts on
marine mammal habitat or marine
mammal prey species in the proposed
survey area. Therefore, NMFS has
preliminarily determined impacts to
marine mammal habitat are negligible.
Proposed Mitigation
In order to issue an incidental take
authorization under section 101(a)(5)(D)
of the MMPA, NMFS must, where
applicable, 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
subsistence uses where relevant.
CWA proposed, with NMFS’
guidance, the following mitigation
measures to help ensure the least
practicable adverse impact on marine
mammals:
Establishment of an Exclusion Zone
During all survey activities involving
the shallow-penetration and mediumpenetration subbottom profilers, CWA
would establish a 500-m radius
exclusion zone around each survey
vessel. This area would be monitored
for marine mammals 60 minutes (as
stipulated by the BOEMRE lease) prior
to starting or restarting surveys, and
during surveys, and 60 minutes after
survey equipment has been turned off.
Typically, the exclusion zone is based
on the area in which marine mammals
could be exposed to injurious (Level A)
levels of sound. CWA’s lease specifies a
500-m exclusion zone, which exceeds
both the estimated Level A and Level B
isopleths for marine mammal
harassment. CWA’s proposed exclusion
zone would minimize impacts to marine
mammals from increased sound
exposures. The exclusion zone must not
be obscured by fog or poor lighting
conditions.
Shut Down and Delay Procedures
If a protected species observer sees a
marine mammal within or approaching
the exclusion zone prior to the start of
surveying, the observer would notify the
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appropriate individual who would then
be required to delay surveying until the
marine mammal moves outside of the
exclusion zone or if the animal has not
been resighted for 60 minutes. If a
protected species observer sees a marine
mammal within or approaching the
exclusion zone during survey activities,
the observer would notify the
appropriate individual who would then
be required to shut down surveying
until the marine mammal moves outside
of the exclusion zone or if the animal
has not been resighted for 60 minutes.
Soft-start Procedures
A ‘‘soft-start’’ technique would be
used at the beginning of survey
activities each day (or following a shut
down) to allow any marine mammal
that may be in the immediate area to
leave before the sound sources reach
full energy. Surveys shall not commence
at nighttime or when the exclusion zone
cannot be effectively monitored.
NMFS has carefully evaluated the
applicant’s proposed mitigation
measures and considered a range of
other measures in the context of
ensuring that NMFS prescribes the
means of effecting the least practicable
adverse impact on the affected marine
mammal species and stocks and their
habitat. Our evaluation of potential
measures included consideration of the
following factors in relation to one
another:
• The manner in which, and the
degree to which, the successful
implementation of the measure is
expected to minimize adverse impacts
to marine mammals;
• The proven or likely efficacy of the
specific measure to minimize adverse
impacts as planned; and
• The practicability of the measure
for applicant implementation, including
consideration of personnel safety, and
practicality of implementation.
Based on our evaluation of the
applicant’s proposed measures, as well
as other measures considered by NMFS,
NMFS has preliminarily determined
that the proposed mitigation measures
provide the means of effecting the least
practicable adverse impacts on marine
mammals species or stocks and their
habitat, paying particular attention to
rookeries, mating grounds, and areas of
similar significance.
Proposed Monitoring and Reporting
In order to issue an incidental take
statement for an activity, section
101(a)(5)(D) of the MMPA states that
NMFS must set forth, where applicable,
‘‘requirements pertaining to the
monitoring and reporting of such
taking.’’ The MMPA implementing
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regulations at 50 CFR 216.104(a)(13)
indicate that requests for incidental take
authorizations must include the
suggested means of accomplishing the
necessary monitoring and reporting that
will result in increased knowledge of
the species and of the level of taking or
impacts on populations of marine
mammals that are expected to be
present in the proposed action area.
Visual Monitoring
CWA would designate at least one
biologically-trained, on-site individual,
approved in advance by NMFS, to
monitor the area for marine mammals
60 minutes before, during, and 60
minutes after all survey activities and
call for shut down if any marine
mammal is observed within or
approaching the designated 500-m
exclusion zone. Should a marine
mammal not included in an incidental
take authorization be observed at any
time within the 500-m exclusion zone,
shut down and delay procedures would
be followed.
CWA would also provide additional
monitoring efforts that would result in
increased knowledge of marine mammal
species in Nantucket Sound. At least
one NMFS-approved protected species
observer would conduct behavioral
monitoring from the survey vessel for
two days for every 14 days of survey
activity to estimate take and evaluate
the behavioral impacts that survey
activities have on marine mammals
outside of the 500-m exclusion zone. In
addition, CWA would also send out an
additional vessel with a NMFSapproved protected species observer to
collect data on species presence and
behavior before surveys begin and once
a month during survey activities.
Protected species observers would be
provided with the equipment necessary
to effectively monitor for marine
mammals (for example, high-quality
binoculars, compass, and range-finder)
in order to determine if animals have
entered into the harassment isopleths
and to record marine mammal sighting
information. Protected species observers
must be able to effectively monitor the
500-m exclusion zone whenever the
subbottom profilers are in use. Survey
efforts would only take place during
daylight hours and visibility must not
be obscured by fog, lighting conditions,
etc.
CWA would submit a report to NMFS
within 90 days of expiration of the IHA
or completion of surveying, whichever
comes first. The report would provide
full documentation of methods, results,
and interpretation pertaining to all
monitoring. More specifically, the report
would include the following
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information when a marine mammal is
sighted:
• Dates, times, locations, heading,
speed, weather, sea conditions
(including Beaufort sea state and wind
force), and associated activities during
all survey operations and marine
mammal sightings;
• Species, number, location, distance
from the vessel, and behavior of any
marine mammals, as well as associated
survey activity (number of shut-downs
or delays), observed throughout all
monitoring activities;
• An estimate of the number (by
species) of marine mammals that are
known to have been exposed to the
survey activity (based on visual
observation) at received levels greater
than or equal to 160 dB re 1 uPa (rms)
and/or 180 dB re 1 uPa (rms) for
cetaceans and 190 dB re 1 uPa (rms) for
pinnipeds with a discussion of any
specific behaviors those individuals
exhibited; and
• A description of the
implementation and effectiveness of the
mitigation measures of the IHA.
In the unanticipated event that the
specified activity clearly causes the take
of a marine mammal in a manner
prohibited by the IHA, such as an injury
(Level A harassment), serious injury, or
mortality (e.g., ship-strike, gear
interaction, and/or entanglement), CWA
would immediately cease the specified
activities and report the incident to the
Chief of the Permits and Conservation
Division, Office of Protected Resources,
NMFS, at 301–427–8401 and/or by
email to Michael.Payne@noaa.gov and
ITP.Magliocca@noaa.gov and the
Northeast Regional Stranding
Coordinator at 978–281–9300
(Mendy.Garron@noaa.gov). The report
must include the following information:
• Time, date, and location (latitude/
longitude) of the incident;
• Name and type of vessel involved;
• Vessel’s speed during and leading
up to the incident;
• Description of the incident;
• Status of all sound source use in the
24 hours preceding the incident;
• Water depth;
• 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).
Activities would not resume until
NMFS is able to review the
circumstances of the prohibited take.
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NMFS would work with CWA to
determine what is necessary to
minimize the likelihood of further
prohibited take and ensure MMPA
compliance. CWA may not resume their
activities until notified by NMFS via
letter, email, or telephone.
In the event that CWA discovers an
injured or dead marine mammal, and
the lead PSO determines that the cause
of the injury or death is unknown and
the death is relatively recent (i.e., in less
than a moderate state of decomposition
as described in the next paragraph),
CWA would immediately report the
incident to the Chief of the Permits and
Conservation Division, Office of
Protected Resources, NMFS, at 301–
427–8401 and/or by email to
Michael.Payne@noaa.gov and
ITP.Magliocca@noaa.gov and the
Northeast Regional Stranding
Coordinator at 978–281–9300
(Mendy.Garron@noaa.gov). The report
must include the same information
identified in the paragraph above.
Activities may continue while NMFS
reviews the circumstances of the
incident. NMFS would work with CWA
to determine whether modifications in
the activities are appropriate.
In the event that CWA discovers an
injured or dead marine mammal, and
the lead PSO determines that the injury
or death is not associated with or related
to the activities authorized in the IHA
(e.g., previously wounded animal,
carcass with moderate to advanced
decomposition, or scavenger damage),
CWA would report the incident to the
Chief of the Permits and Conservation
Division, Office of Protected Resources,
NMFS, at 301–427–8401 and/or by
email to Michael.Payne@noaa.gov and
ITP.Magliocca@noaa.gov and the
Northeast Regional Stranding
Coordinator at 978–281–9300
(Mendy.Garron@noaa.gov), within 24
hours of the discovery. CWA would
provide photographs or video footage (if
available) or other documentation of the
stranded animal sighting to NMFS.
Summary of Past Monitoring and
Reporting
CWA complied with the requirements
under their 2012 IHA. CWA completed
28 days and 459 nautical transect miles
of survey activity during 2012 and no
living marine mammals were sighted.
On July 10, 2012, a deceased harbor seal
was seen by two protected species
observers and survey equipment was
immediately shut down. The observers
determined that the seal had been
deceased for 24–48 hours, based on
signs of scavenger damage and bloating,
which suggest moderate decomposition
(Pugliares et al., 2007). Both observers
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concurred that the animal was not
injured due to survey activities;
however, a 60-minute post watch was
performed to ensure that no other
protected species were in the vicinity. A
full report was submitted to NMFS on
July 11, 2012, within 24 hours of the
initial sighting. No marine mammal
takes were reported during the 2012
season. CWA’s monitoring report is
available online at: https://
www.nmfs.noaa.gov/pr/permits/
incidental.htm#applications.
Estimated Take by Incidental
Harassment
Except with respect to certain
activities not pertinent here, the MMPA
defines ‘‘harassment’’ as: Any act of
pursuit, torment, or annoyance which (i)
has the potential to injure a marine
mammal or marine mammal stock in the
wild [Level A harassment]; or (ii) has
the potential to disturb a marine
mammal or marine mammal stock in the
wild by causing disruption of behavioral
patterns, including, but not limited to,
migration, breathing, nursing, breeding,
feeding, or sheltering [Level B
harassment].
Based on CWA’s application and
NMFS’ subsequent analysis, the impact
of the described survey activities may
result in, at most, short-term
modification of behavior by small
numbers of marine mammals within the
action area. Marine mammals may avoid
the area or change their behavior at time
of exposure to elevated sound levels.
Current NMFS practice regarding
exposure of marine mammals to
anthropogenic sound is that in order to
avoid the potential for injury of marine
mammals (for example, PTS), cetaceans
and pinnipeds should not be exposed to
impulsive sounds of 180 and 190 dB re:
1 mPa or above, respectively. This level
is considered precautionary as it is
likely that more intense sounds would
be required before injury would actually
occur (Southall et al., 2007). Potential
for behavioral harassment (Level B) is
considered to have occurred when
marine mammals are exposed to sounds
at or above 160 dB re: 1 mPa for impulse
sounds and 120 dB re: 1 mPa for nonpulse noise, but below the
aforementioned thresholds. These levels
are also considered precautionary.
CWA estimated the number of
potential takes resulting from survey
activities by considering species
density, the zone of influence, and
duration of survey activities. More
specifically, take estimates were
calculated by multiplying the estimated
species density values (n) measured in
individuals per square kilometers, by
the area of the zone of influence in km2,
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times the total number of survey days (d
= 109). The zone of influence was
calculated as a function of the distance
a survey vessel with deployed boomer
would travel in one survey day and the
area around the boomer where sound
levels reach or exceed 160 dB. For
consistency with the 2011 IHA, the take
estimate is based on a zone of influence
equal to 444 m (the initial estimate for
the 160 dB isopleth for the boomer),
although based on acoustic
measurements taken at the beginning of
the 2012 survey, the 160 dB isopleth is
thought to be much smaller. This
distance was applied consistently to all
marine mammal species.
Estimated numbers of species
potentially exposed to disturbing levels
of sound from the boomer (the survey
equipment with the largest 160 dB
isopleth) were calculated for minke
whales, Atlantic white-sided dolphins,
harbor porpoises, gray seals, and harbor
seals. These estimates were calculated
by multiplying the low and high end of
the ranges of species density by the
boomer’s zone of influence and the
number of days of survey operation.
CWA calculated seal density estimates
based on aerial survey counts for seals
observed swimming and/or foraging in
open water within the activity area.
CWA included an adjustment factor in
these density calculations for seals not
seen, but considered present during
aerial surveys. Density estimates for
seals based on haul out counts were not
used due to the distance of haul outs
from the activity area (about 20 km to
Monomoy Island and 12 km to
Muskeget Island). Gray seals and harbor
seals congregating in these locations are
not expected to hear sounds from the
survey equipment at 160 dB or higher.
The seals most likely to be exposed to
potentially disturbing sounds are the
individuals swimming and/or foraging
within the zone of influence for the
activated medium-penetration
subbottom profiler.
CWA is requesting incidental take
based on the highest estimated possible
species exposures to potentially
disturbing levels of sound from the
boomer. No marine mammals are
expected to be exposed to injurious
levels of sound in excess of 180 dB
during survey activities. CWA is
requesting, and NMFS is proposing,
Level B harassment of 9 minke whales,
185 Atlantic white-sided dolphins, 110
harbor porpoises, 314 gray seals, and 79
harbor seals. These numbers
overestimate the number of animals
likely to be taken because they are based
on the highest density estimates and do
not account for proposed mitigation
measures (such as the 500-m exclusion
PO 00000
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zone, marine mammal monitoring, and
ramp up procedures). These numbers
indicate the maximum number of
animals expected to occur within 444 m
of the boomer. Estimated and proposed
level of take of each species is less than
one percent of each affected stock and
therefore is considered small in relation
to the stock estimates previously set
forth.
Negligible Impact and Small Numbers
Analysis and Determination
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.’’ In making a
negligible impact determination, NMFS
considers a number of factors which
include, but are not limited to, number
of anticipated injuries or mortalities
(none of which would be authorized
here), number, nature, intensity, and
duration of Level B harassment, and the
context in which takes occur (for
instance, will the takes occur in an area
or time of significance for marine
mammals, or are takes occurring to a
small, localized population?).
As described above, marine mammals
would not be exposed to activities or
sound levels which would result in
injury (for instance, PTS), serious
injury, or mortality. Anticipated impacts
of survey activities on marine mammals
are temporary behavioral changes due to
avoidance of the area. All marine
mammals in the vicinity of survey
operations would be transient as no
breeding, calving, pupping, or nursing
areas, or haul-outs, overlap with the
survey area. The closest pinniped haulouts are about 20 km and 12 km away
on Monomoy Island and Muskeget
Island, respectively. Marine mammals
approaching the survey area would
likely be traveling or opportunistically
foraging. The amount of take CWA
requested, and NMFS proposes to
authorize, is considered small (less than
one percent) relative to the estimated
populations of 8,987 minke whales,
23,390 Atlantic white-sided dolphins,
89,054 harbor porpoises, 250,000 gray
seals, and 99,340 harbor seals.
Furthermore, the amount of take CWA
requested and NMFS proposes to
authorize likely overestimates the actual
take that would occur; no marine
mammal takes were observed during 28
days of survey activity in 2012. No
affected marine mammals are listed
under the ESA and only the Atlantic
white-sided dolphin and harbor
porpoise are considered strategic under
the MMPA. Marine mammals are
E:\FR\FM\01FEN1.SGM
01FEN1
Federal Register / Vol. 78, No. 22 / Friday, February 1, 2013 / Notices
expected to avoid the survey area,
thereby reducing exposure and impacts.
No disruption to reproductive behavior
is anticipated and there is no
anticipated effect on annual rates of
recruitment or survival of affected
marine mammals.
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
mitigation and monitoring measures,
NMFS preliminarily determines that
CWA’s survey activities would result in
the incidental take of small numbers of
marine mammals, by Level B
harassment, and that the total taking
would have a negligible impact on the
affected species or stocks.
Impact on Availability of Affected
Species for Taking for Subsistence Uses
DEPARTMENT OF COMMERCE
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
United States Patent and Trademark
Office
[Docket No. PTO–P–2013–0001]
RIN 0648–XC470
Vessel Monitoring Systems (VMS);
Certification of New VMS Unit for Use
in Northeast Fisheries
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
AGENCY:
ACTION:
Notice of VMS unit certification.
NMFS announces the
approval and certification of the CLS
America Thorium VMS Terminal model
100 (TST–100) with Iridium satellite
communications network for use in the
northeastern United States in which
VMS units are required.
SUMMARY:
There are no relevant subsistence uses
of marine mammals implicated by this
action.
DATES:
Endangered Species Act (ESA)
FOR FURTHER INFORMATION CONTACT:
No marine mammal species listed
under the ESA are anticipated to occur
within the action area. Therefore,
section 7 consultation under the ESA is
not required.
National Environmental Policy Act
(NEPA)
srobinson on DSK4SPTVN1PROD with NOTICES
In compliance with the National
Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.), as implemented by
the regulations published by the
Council on Environmental Quality (40
CFR parts 1500–1508), and NOAA
Administrative Order 216–6, NMFS
prepared an Environmental Assessment
(EA) to consider the direct, indirect, and
cumulative effects to marine mammals
and other applicable environmental
resources resulting from issuance of a
one-year IHA and the potential issuance
of additional authorization for
incidental harassment for the ongoing
project in 2012. This analysis is still
considered relevant for the proposed
IHA because the applicant’s proposed
activity has not changed. This EA is
available on the NMFS Web site listed
in the beginning of this document.
Dated: January 29, 2013.
Helen M. Golde,
Acting Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2013–02195 Filed 1–31–13; 8:45 am]
This new TST–100 unit can be
used effective January 24, 2013.
Office of Law Enforcement, Northeast
Division, Northeast VMS Team,
telephone 978–281–9213.
SUPPLEMENTARY INFORMATION:
Regulations at 50 CFR 648.9 and 648.10
set forth VMS requirements for fisheries
in the northeastern United States for the
operation of VMS units used for
reporting and monitoring. Specifically,
50 CFR 648.9 requires that minimum
performance criteria published by the
NMFS Office of Law Enforcement and
any established Northeast regional
standards must be met in order to be
certified for use.
The Administrator, Northeast Region,
NMFS, has reviewed all components of
the TST–100 VMS unit and other
information provided by the vendor and
has certified the following unit for use
in all Northeast fisheries in which VMS
units are required: Thorium TST–100,
available from CLS America, Inc., 4300
Forbes Blvd., Suite 110, Lanham,
Maryland 20706, telephone (301) 925–
4411, fax (301) 925–8995, email:
fishing@clsamerica.com.
Authority: 16 U.S.C. 1801 et seq.
Dated: January 25, 2013.
Kara Meckley,
Acting Deputy Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. 2013–02131 Filed 1–31–13; 8:45 am]
BILLING CODE 3510–22–P
BILLING CODE 3510–22–P
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7411
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Notice of Public Hearing and Request
for Comments on Matters Related to
the Harmonization of Substantive
Patent Law
United States Patent and
Trademark Office, Department of
Commerce.
ACTION: Notice of Public Hearing and
Request for Comments on Matters
Related to the Harmonization of
Substantive Patent Law.
AGENCY:
The United States Patent and
Trademark Office (USPTO) is seeking
stakeholder input on certain matters
relating to international harmonization
of substantive patent law, in particular,
information and views on: (1) The grace
period; (2) publication of applications;
(3) the treatment of conflicting
applications and (4) prior user rights. To
assist in gathering this information, the
USPTO is holding a public hearing at
which interested members of the public
are invited to testify on the issues
outlined above. In addition, interested
members of the public are encouraged to
complete an electronic questionnaire
relating to the above-identified issues.
Separate written comments may be
provided through electronic mail,
though completion of the questionnaire
is strongly preferred in lieu of separate
comments. Additional details may be
found in the supplementary information
section of this notice.
Public Hearing: A public hearing will
be held on March 21, 2013, beginning at
8:30 a.m. Eastern Daylight Time (EDT)
and ending at 12:00 p.m. EDT. The
public hearing will be held at the
USPTO, Madison Auditorium,
Concourse Level, Madison Building, 600
Dulany Street, Alexandria, Virginia
22314.
Those wishing to present oral
testimony at the hearing must request an
opportunity to do so in writing by email
to IP.Policy@uspto.gov no later than
February 28, 2013. Requests to testify at
the hearing must indicate the following
information: (1) The name of the person
desiring to testify; (2) the person’s
contact information (telephone number
and electronic mail address); (3) the
organization(s) the person represents, if
any; and (4) a preliminary written copy
of their testimony. The opportunity to
testify will only be for those physically
present. Based on the requests received,
an agenda of scheduled testimony will
be sent to testifying respondents, and
SUMMARY:
E:\FR\FM\01FEN1.SGM
01FEN1
Agencies
[Federal Register Volume 78, Number 22 (Friday, February 1, 2013)]
[Notices]
[Pages 7402-7411]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02195]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XC430
Small Takes of Marine Mammals Incidental to Specified Activities;
Cape Wind's High Resolution Survey in Nantucket Sound, MA
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; proposed incidental harassment authorization; request
for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS has received an application from Cape Wind Associates
(CWA) for an Incidental Harassment Authorization (IHA) to take marine
mammals, by harassment, incidental to pre-construction high resolution
survey activities. CWA began pre-construction activities last year, but
was unable to complete the entire survey. Pursuant to the Marine Mammal
Protection Act (MMPA), NMFS is requesting comments on its proposal to
issue a second IHA to CWA to incidentally take, by Level B harassment
only, marine mammals during the specified activity.
DATES: Comments and information must be received no later than March 4,
2013.
ADDRESSES: Comments on the application and this proposal should be
addressed to Michael Payne, Chief, Permits and Conservation Division,
Office of Protected Resources, National Marine Fisheries Service, 1315
East-West Highway, Silver Spring, MD 20910-3225. The mailbox address
for providing email comments is ITP.Magliocca@noaa.gov. NMFS is not
responsible for email comments sent to addresses other than the one
provided here. Comments sent via email, including all attachments, must
not exceed a 10-megabyte file size.
Instructions: All comments received are a part of the public record
and will generally be posted to https://www.nmfs.noaa.gov/pr/permits/incidental.htm without change. All Personal Identifying Information
(for example, name, address, etc.) voluntarily submitted by the
commenter may be publicly accessible. Do not submit Confidential
Business Information or otherwise sensitive or protected information.
A copy of the application containing a list of the references used
in this document may be obtained by visiting the internet at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm. The following associated
documents are also
[[Page 7403]]
available at the same internet address: 2011 Environmental Assessment.
Documents cited in this notice may also be viewed, by appointment,
during regular business hours, at the aforementioned address.
FOR FURTHER INFORMATION CONTACT: Michelle Magliocca, Office of
Protected Resources, NMFS, (301) 427-8401.
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 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 specific geographical region if certain
findings are made and either regulations are issued or, if the taking
is limited to harassment, a notice of a proposed authorization is
provided to the public for review.
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.''
Section 101(a)(5)(D) of the MMPA established an expedited process
by which citizens of the U.S. can apply for a 1-year authorization to
incidentally take small numbers of marine mammals by harassment,
provided that there is no potential for serious injury or mortality to
result from the activity. Section 101(a)(5)(D) establishes a 45-day
time limit for NMFS review of an application followed by a 30-day
public notice and comment period on any proposed authorizations for the
incidental harassment of marine mammals. Within 45 days of the close of
the comment period, NMFS must either issue or deny the authorization.
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as: Any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild [Level A harassment]; or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering [Level B harassment].
Summary of Request
On December 19, 2012, NMFS received an application from CWA for the
taking of marine mammals incidental to high resolution survey
activities. NMFS determined that the application was adequate and
complete on December 31, 2012.
CWA proposes to conduct a high resolution geophysical survey in
Nantucket Sound, Massachusetts. The proposed activity would occur
during daylight hours over an estimated 109-day period beginning in
April 2013. The following equipment used during the survey is likely to
result in the take of marine mammals: Shallow-penetration subbottom
profiler and medium-penetration subbottom profiler. Take, by Level B
harassment only, of individuals of five species is anticipated to
result from the specified activity. This request is basically an
extension of the request made in April 2011 for survey activities that
were not completed under the previous IHA. CWA is not proposing to
change their survey activities in any way. However, the geotechnical
portion of the survey was completed in 2012 and would not be continued
during the 2013 season.
Description of the Specified Activity
CWA proposes to conduct a high resolution geophysical survey in
order to acquire remote-sensing data around Horseshoe Shoal which would
be used to characterize resources at or below the seafloor. The purpose
of the survey would be to identify any submerged cultural resources
that may be present and to generate additional data describing the
geological environment within the survey area. The survey would satisfy
the mitigation and monitoring requirements for ``cultural resources and
geology'' in the environmental stipulations of the Bureau of Ocean
Energy Management, Regulation, and Enforcement's lease. The survey is
part of the first phase of a larger Cape Wind energy project, which
involves the installation of 130 wind turbine generators on Horseshoe
Shoal over a 2-year period. The survey would collect data along
predetermined track lines using a towed array of instrumentation, which
would include a side scan sonar, magnetometer, shallow-penetration
subbottom profiler, multibeam depth sounder, and medium-penetration
subbottom profiler. The proposed high resolution geophysical survey
activities would not result in any disturbance to the sea floor.
Dates and Duration
Survey activities are necessary prior to construction of the wind
turbine array and are scheduled to begin in the spring of 2013,
continuing on a daily basis for up to five months. Survey vessels would
operate during daytime hours only and CWA estimates that one survey
vessel would cover about 17 Nautical miles (31 kilometers) of track
line per day. Therefore, CWA conservatively estimates that survey
activities would take 109 days (28 days less than what was expected
under the 2012 IHA). However, if more than one survey vessel is used,
the survey duration would be considerably shorter. NMFS is proposing to
issue an authorization that extends from April 1, 2013, to March 31,
2014.
Location
Survey vessels are expected to depart from Falmouth Harbor,
Massachusetts, or another nearby harbor on Cape Cod. In total, the
survey would cover approximately 110 square kilometers (km\2\). This
area includes the future location of the wind turbine generators--an
area about 8.4 km from Point Gammon, 17.7 km from Nantucket Island, and
8.9 km from Martha's Vineyard--and cables connecting the wind park to
the mainland. The survey area within the wind park would be transited
by survey vessels towing specialized equipment along primary track
lines and perpendicular tie lines. Preliminary survey designs include
primary track lines with northwest-southeast orientations and assume
30-meter (m) line spacing. Preliminary survey designs also call for tie
lines to likely run in a west-east orientation covering targeted areas
of the construction footprint where wind turbine generators would be
located. The survey area along the interconnecting submarine cable
route includes a construction and anchoring corridor, as part of the
wind farm's area of potential effect. The total track line distance
covered during the survey is estimated to be about 3,432 km (as opposed
to the 4,292 km included in the 2012 IHA).
Multiple survey vessels may operate within the survey area and
would travel at about 3 knots during data acquisition and approximately
15 knots during transit between the survey area and port. If multiple
vessels are used at the same time, they would be far enough apart that
sounds from the chirp and
[[Page 7404]]
boomer would not overlap. The survey vessels would acquire data
continuously throughout the survey area during the day and terminate
survey activities before dark, prior to returning to port. NMFS
believes that the likelihood of a survey vessel striking a marine
mammal is low considering the low marine mammal densities within
Nantucket Sound, the relatively short distance from port to the survey
site, the limited number of vessels, and the small vessel size. Vessel
sounds during survey activities would result from propeller
cavitations, propeller singing, propulsion, flow noise from water
dragging across the hull, and bubbles breaking in the wake. The
dominant sound source from vessels would be from propeller cavitations;
however, sounds resulting from survey vessel activity are considered to
be no louder than the existing ambient sound levels and sound generated
from regular shipping and boating activity in Nantucket Sound (MMS,
2009).
NMFS expects that acoustic stimuli resulting from the operation of
the survey equipment have the potential to harass marine mammals.
Background information on the characteristics and measurement of sound
are provided later in this document. The dominant sources of sound
during the proposed survey activities would be from the towed equipment
used to gather seafloor data. Two of the seismic survey devices used
during the high resolution geophysical survey emit sounds within the
hearing range of marine mammals in Nantucket Sound: Shallow-penetration
and medium-penetration subbottom profilers (known as a ``chirp'' and
``boomer,'' respectively). CWA would use a chirp to provide high
resolution data of the upper 15 m of sea bottom. An EdgeTech 216S or
similar model would be used. The chirp would be towed near the center
of the survey vessel directly adjacent to the gunwale of the boat,
about 1 to 1.5 m beneath the water's surface. Sources such as the chirp
are considered non-impulsive, intermittent (as opposed to continuous)
sounds. The frequency range for this instrument is generally 2 to 16
kilohertz (kHz)--a range audible by all marine mammal species in
Nantucket Sound. The estimated sound pressure level at the source would
be 201 dB re 1 [mu]Pa at 1 m with a typical pulse length of 32
milliseconds and a pulse repetition rate of 4 per second. NMFS does not
consider the chirp to be a continuous sound source (best represented by
vibratory pile driving or drilling). CWA would use a boomer to obtain
deeper resolution of geologic layering that cannot be imaged by the
chirp. An AP3000 (dual plate) boomer, or similar model would be used.
The boomer would be towed about 3 to 5 m behind the survey vessel's
stern at the water's surface. Unlike the chirp, the boomer emits an
impulse sound, characterized by a relatively rapid rise-time to maximum
pressure followed by a period of diminishing and oscillating pressures
(Southall et al., 2007). The boomer has a broad frequency range of 0.3
to 14 kHz--a range audible by all marine mammal species in Nantucket
Sound. CWA performed sound source verification monitoring in 2012 on
the type of chirp and boomer that would be used during the 2013 survey
season. Underwater sound was recorded with two Autonomous Multichannel
Acoustic Recorders, deployed 100 m apart, in the vicinity of the
project area. The received 90-percent rms sound pressure levels (SPLs)
from the subbottom profilers did not exceed 175 dB re 1uPa. The loudest
source, the dual-plate boomer, produced a received 90-percent rms SPL
of less than 140 dB re 1 uPa at a 500-m range. The distance to the 160-
dB isopleth was 12 m for the dual-plate boomer and 10 m for the chirp.
Description of Marine Mammals in the Area of the Specified Activity
All marine mammals with possible or confirmed occurrence in the
proposed activity area are listed in Table 1, along with their status
under the Endangered Species Act (ESA) and MMPA. In general, large
whales do not frequent Nantucket Sound, but they are discussed below
because some species have been reported near the project vicinity.
Table 1--Marine Mammals With Possible or Confirmed Occurrence in the Proposed Activity Area
----------------------------------------------------------------------------------------------------------------
Common name Scientific name ESA status MMPA status
----------------------------------------------------------------------------------------------------------------
Humpback whale....................... Megaptera novaeangilae. endangered............. depleted.
Fin whale............................ Balaenoptera physalus.. endangered............. depleted.
North Atlantic right whale........... Eubaelena glacialis.... endangered............. depleted.
Long-finned pilot whale.............. Globicephalus melas....
Minke whale.......................... Balaenoptera
acutorostrata.
Atlantic white-sided dolphin......... Lagenorhynchus acutus..
Striped dolphin...................... Stellena coeruleoalba..
Common dolphin....................... Delphinus delphis......
Harbor porpoise...................... Phocoena phocoena......
Atlantic spotted dolphin............. Stenella frontalis.....
Risso's dolphin...................... Grampus griseus........
Dwarf and pygmy sperm whale.......... Kogia spp..............
Gray seal............................ Halichoerus grypus.....
Harbor seal.......................... Phoca vitulina.........
Harp seal............................ Phoca groenlandica.....
Hooded seal.......................... Crystophora cristata...
----------------------------------------------------------------------------------------------------------------
Sightings data indicate that whales rarely visit Nantucket Sound
and there are no sightings of large whales on Horseshoe Shoal. Since
2002, no humpback whales have been observed anywhere in Nantucket Sound
and there are no documented occurrences of fin whales within Nantucket
Sound. Right whales are considered rare in Nantucket Sound and have not
been sighted on Horseshoe Shoal. All of the right whales observed in
Nantucket Sound during 2010 quickly transited the area and there is no
evidence of any persistent aggregations around the proposed project
area. The best available science indicates that humpback whales, fin
whales, and right whales--although present in the New England region--
are rare in Nantucket Sound and transient individuals may be
occasionally found 20 km from the proposed project area; this is likely
due to the shallow depths of Nantucket Sound and its location outside
of the coastal migratory corridor.
[[Page 7405]]
Likewise, sightings data shows no record of long-finned pilot
whales, striped dolphins, Atlantic spotted dolphins, common dolphins,
Risso's dolphins, Kogia species, harp seals, or hooded seals in
Nantucket Sound, although these stocks exist in the New England region.
Therefore, CWA is not requesting, nor is NMFS proposing, take for the
aforementioned species.
Marine mammals with known occurrences in Nantucket Sound that could
be harassed by high resolution geophysical survey activity in Nantucket
Sound are listed in Table 2. These are the species for which take is
being requested.
Table 2--Marine Mammals That Could Be Impacted by Survey Activities in Nantucket Sound
----------------------------------------------------------------------------------------------------------------
Time of year in New
Common name Scientific name Abundance Population status England
----------------------------------------------------------------------------------------------------------------
Minke whale..................... Balaenoptera 8,987 stable.............. April through
actuorostrata. October.
Atlantic white-sided dolphin.... Lagenorhynchus 63,000 n/a................. October through
acutus. December.
Harbor porpoise................. Phocoena phocoena.. 89,504 n/a................. Year-round (peak
Sept-Apr).
Gray seal....................... Halichoerus grypis. 250,000 increasing.......... Year-round.
Harbor seal..................... Phoca vitulina..... 99,340 n/a................. October through
April.
----------------------------------------------------------------------------------------------------------------
Minke Whales
In the North Atlantic, minke whales are found from Canada to the
Gulf of Mexico and concentrated in New England waters, particularly in
the spring and summer months. Minke whales found in Nantucket Sound are
part of the Canadian East Coast stock, which runs from the Davis Strait
down to the Gulf of Mexico. The best available abundance estimate for
this stock is 8,987 individuals. Sightings data indicate that minke
whales prefer shallower waters when in the Cape Cod vicinity, but
depths significantly greater than Nantucket Sound. Sightings per unit
effort estimates for Nantucket Sound are 0.1 to 5.9 minke whales per
1,000 km of survey track for spring and summer. However, estimates may
be biased due to heavier whale watching activities during those months.
Minke whales are one of the most abundant whale species in the world
and their population is considered stable throughout. The minke whale
is not listed under the ESA nor considered strategic under the MMPA.
Atlantic White-Sided Dolphin
Atlantic white-sided dolphins are found in temperate and sub-polar
waters of the North Atlantic, typically along the continental shelf and
slope. In the western North Atlantic, they are found from North
Carolina to Greenland. During summer months, Atlantic white-sided
dolphins move north and closer to shore. Atlantic white-sided dolphins
are rare in Nantucket Sound, but are found in deeper waters around
Massachusetts and Rhode Island. In 2011, the estimated population size
of the Western North Atlantic stock was about 23,390 animals. There is
insufficient data to determine population trends, but Atlantic white-
sided dolphins are not listed under the ESA, although they are
considered strategic under the MMPA.
Harbor Porpoises
Harbor porpoises have a wide and discontinuous range that includes
the North Atlantic and North Pacific. In the western North Atlantic,
harbor porpoises are found from Greenland to Cape Hatteras, North
Carolina. Harbor porpoises in U.S. waters are divided into 10 stocks,
based on genetics, movement patterns, and management. Any harbor
porpoises encountered during the proposed survey activities would be
part of the Gulf of Maine/Bay of Fundy stock which has an estimated
abundance of 89,054 animals and a minimum population estimate of 60,970
(NMFS, 2011c). They congregate around the Gulf of Maine during summer
months, but are otherwise dispersed along the east coast. No trend
analyses exist for this species. Harbor porpoises are not listed under
the ESA although they are considered strategic under the MMPA.
Gray Seals
Gray seals inhabit temperate and sub-arctic waters. They are found
from Maine to Long Island Sound, live on remote, exposed islands,
shoals, and unstable sandbars, and are the second most common pinniped
along the U.S. Atlantic coast. Three major populations exist in eastern
Canada, northwestern Europe, and the Baltic Sea. The western North
Atlantic stock is equivalent to the eastern Canada population and
ranges from New York to Labrador. Pupping occurs on land or ice from
late December through mid-February with peaks in mid-January. Muskeget
Island (located between Martha's Vineyard and Nantucket Island) and
Monomoy Island (at the eastern limit of Nantucket Sound) are the only
gray seal breeding colonies in the U.S. and the southernmost gray seal
breeding colonies in the world. These breeding colonies are about 24 km
and 14 km from the proposed project site, respectively. Gray seals
presently use the islands as areas to give birth and raise their pups.
There is no defined migratory behavior for gray seals, so a large
portion of the population may be present in Nantucket Sound year-round.
Some adults move north during spring and summer, out of Nantucket Sound
to the waters off Maine and Canada, but others have been observed in
high abundance in Chatham Harbor, MA and other areas of lower Cape Cod
during this time.
Incidental observations of seals were recorded during avian aerial
surveys conducted independently by CWA and the Massachusetts Audubon
Society. Between May 2002 and February 2004, CWA conducted about 46
aerial avian surveys in Nantucket Sound, with particular focus on
Horseshoe Shoal. During this time, about 26,873 seals were observed
throughout Nantucket Sound; about 56 of these were observed within the
proposed project area over the three-year period. Current population
numbers for the western North Atlantic stock are unknown, but some pup
surveys suggest about 223,220 animals. Gray seal numbers are increasing
in coastal waters between southern Massachusetts and eastern Long
Island. Their abundance is likely increasing throughout the western
Atlantic, but the rate of increase is unknown. Gray seals are not
listed under the ESA, nor considered strategic under the MMPA.
Harbor Seals
Harbor seals, also known as common seals, are found throughout
coastal waters of the Atlantic Ocean and considered the most abundant
pinniped on the U.S. east coast. The best available estimate for the
harbor seal population along the New England coast is 99,340 (NMFS,
2011f). They are most common around coastal islands, ledges, and
sandbars above 30[deg] N latitude and range
[[Page 7406]]
from the Arctic down to Nantucket Sound. Harbor seals are seasonal
visitors to Massachusetts; breeding and pupping occur through the
spring and summer in Maine and Canada. Harbor seals typically over-
winter in Massachusetts, but some remain in southern New England year-
round. No pupping areas have been identified in southern New England.
Extensive sand spits off Muskeget Island and neighboring Tuckernuck and
Skiff Islands have been identified as preferred haul-out spots for
large numbers of harbor seals.
Harbor seal abundance estimates for Nantucket Sound are scarce.
Barlas (1999) observed harbor seals on Cape Cod from October through
April and saw abundance peak in March, with very few individuals using
haul-out sites in Nantucket Sound. Waring (unpublished data, 2002)
observed an increased abundance of harbor seals on Muskeget Island,
Monomoy Island, and Tuckernuck Island in 1999 and 2000; however, harbor
seals are not likely to be in the same area when gray seals are
breeding.
Further information on the biology and local distribution of these
species and others in the region can be found in CWA's application,
which is available online at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications, and the NMFS Marine Mammal Stock
Assessment Reports, which are available online at: https://www.nmfs.noaa.gov/pr/species.
Potential Effects of the Specified Activity on Marine Mammals
Use of subbottom profilers on Horseshoe Shoal may temporarily
impact marine mammal behavior within the survey area due to elevated
in-water sound levels. Marine mammals are continually exposed to many
sources of sound. Naturally occurring sounds such as lightning, rain,
sub-sea earthquakes, and biological sounds (for example, snapping
shrimp, whale songs) are widespread throughout the world's oceans.
Marine mammals produce sounds in various contexts and use sound for
various biological functions including, but not limited to, (1) social
interactions; (2) foraging; (3) orientation; and (4) predator
detection. Interference with producing or receiving these sounds may
result in adverse impacts. Audible distance, or received levels of
sound depend on the nature of the sound source, ambient noise
conditions, and the sensitivity of the receptor to the sound
(Richardson et al., 1995). Type and significance of marine mammal
reactions to sound are likely dependent on a variety of factors
including, but not limited to, (1) the behavioral state of the animal
(for example, feeding, traveling, etc.); (2) frequency of the sound;
(3) distance between the animal and the source; and (4) the level of
the sound relative to ambient conditions (Southall et al., 2007).
For background, sound is a physical phenomenon consisting of minute
vibrations that travel through a medium, such as air or water, and is
generally characterized by several variables. Frequency describes the
sound's pitch and is measured in hertz (Hz) or kilohertz (kHz), while
sound level describes the sound's intensity and is measured in decibels
(dB). Sound level increases or decreases exponentially with each dB of
change. The logarithmic nature of the scale means that each 10-dB
increase is a 10-fold increase in acoustic power (and a 20-dB increase
is then a 100-fold increase in power). A 10-fold increase in acoustic
power does not mean that the sound is perceived as being 10 times
louder, however. Sound levels are compared to a reference sound
pressure (micro-Pascal) to identify the medium. For air and water,
these reference pressures are ``re: 20 [mu]Pa'' and ``re: 1 [mu]Pa,''
respectively. Root mean square (RMS) is the quadratic mean sound
pressure over the duration of an impulse. RMS is calculated by squaring
all of the sound amplitudes, averaging the squares, and then taking the
square root of the average (Urick, 1975). RMS accounts for both
positive and negative values; squaring the pressures makes all values
positive so that they may be accounted for in the summation of pressure
levels (Hastings and Popper, 2005). This measurement is often used in
the context of discussing behavioral effects, in part because
behavioral effects, which often result from auditory cues, may be
better expressed through averaged units rather than by peak pressures.
Cetaceans are divided into three functional hearing groups: Low-
frequency, mid-frequency, and high-frequency. Minke whales are
considered low-frequency cetaceans and their estimated auditory
bandwidth (lower to upper frequency hearing cut-off) ranges from 7 Hz
to 30 kHz. Atlantic white-sided dolphins are considered mid-frequency
cetaceans and their estimated auditory bandwidth ranges from 150 Hz to
160 kHz. Lastly, harbor porpoises are considered high-frequency
cetaceans and their estimated auditory bandwidth ranges from 200 Hz to
180 kHz. In contrast, pinnipeds are divided into two functional hearing
groups: In-water and in-air. Pinnipeds in water have an estimated
auditory bandwidth of 75 Hz to 75 kHz. There are no pinniped haul-outs
close enough to the survey area to take in-air auditory bandwidths into
consideration.
Hearing Impairment
Marine mammals may experience temporary or permanent hearing
impairment when exposed to loud sounds. Hearing impairment is
classified by temporary threshold shift (TTS) and permanent threshold
shift (PTS). There are no empirical data for onset of PTS in any marine
mammal; therefore, PTS-onset must be estimated from TTS-onset
measurements and from the rate of TTS growth with increasing exposure
levels above the level eliciting TTS-onset. PTS is presumed to be
likely if the hearing threshold is reduced by >= 40 dB (that is, 40 dB
of TTS). PTS is considered auditory injury (Southall et al., 2007) and
occurs in a specific frequency range and amount. Irreparable damage to
the inner or outer cochlear hair cells may cause PTS; however, other
mechanisms are also involved, such as exceeding the elastic limits of
certain tissues and membranes in the middle and inner ears and
resultant changes in the chemical composition of the inner ear fluids
(Southall et al., 2007). Due to proposed mitigation measures and source
levels, NMFS does not expect marine mammals to be exposed to PTS levels
during the proposed survey activities.
Temporary Threshold Shift (TTS)
TTS is the mildest form of hearing impairment that can occur during
exposure to a loud sound (Kryter, 1985). While experiencing TTS, the
hearing threshold rises and a sound must be stronger in order to be
heard. At least in terrestrial mammals, TTS can last from minutes or
hours to (in cases of strong TTS) days, can be limited to a particular
frequency range, and can occur to varying degrees (i.e., a loss of a
certain number of dBs of sensitivity). For sound exposures at or
somewhat above the TTS threshold, hearing sensitivity in both
terrestrial and marine mammals recovers rapidly after exposure to the
noise ends.
Marine mammal hearing plays a critical role in communication with
conspecifics and in interpretation of environmental cues for purposes
such as predator avoidance and prey capture. Depending on the degree
(elevation of threshold in dB), duration (i.e., recovery time), and
frequency range of TTS and the context in which it is experienced, TTS
can have effects on marine mammals ranging from discountable to
serious. For example, a marine mammal may be able to readily compensate
for a brief, relatively small amount of TTS
[[Page 7407]]
in a non-critical frequency range that takes place during a time when
the animals is traveling through the open ocean, where ambient noise is
lower and there are not as many competing sounds present.
Alternatively, a larger amount and longer duration of TTS sustained
during a time when communication is critical for successful mother/calf
interactions could have more serious impacts if it were in the same
frequency band as the necessary vocalizations and of a severity that it
impeded communication. The fact that animals exposed to levels and
durations of sound that would be expected to result in this
physiological response would also be expected to have behavioral
responses of a comparatively more severe or sustained nature is also
notable and potentially of more importance than the simple existence of
a TTS.
Recent literature highlights the inherent complexity of predicting
TTS onset in marine mammals, as well as the importance of considering
exposure duration when assessing potential impacts (Mooney et al.,
2009a, 2009b; Kastak et al., 2007). Generally, with sound exposures of
equal energy, quieter sounds (lower SPL) of longer duration were found
to induce TTS onset more than louder sounds (higher SPL) of shorter
duration (more similar to subbottom profilers). For intermittent
sounds, less threshold shift will occur than from a continuous exposure
with the same energy (some recovery will occur between intermittent
exposures) (Kryter et al., 1966; Ward, 1997). For sound exposures at or
somewhat above the TTS-onset threshold, hearing sensitivity recovers
rapidly after exposure to the sound ends. Southall et al. (2007)
considers a 6 dB TTS (that is, baseline thresholds are elevated by 6
dB) to be a sufficient definition of TTS-onset. NMFS considers TTS as
Level B harassment that is mediated by physiological effects on the
auditory system; however, NMFS does not consider TTS-onset to be the
lowest level at which Level B harassment may occur. Southall et al.
(2007) summarizes underwater pinniped data from Kastak et al. (2005),
indicating that a tested harbor seal showed a TTS of around 6 dB when
exposed to a nonpulse noise at sound pressure level 152 dB re: 1 [mu]Pa
for 25 minutes.
Some studies suggest that harbor porpoises may be more sensitive to
sound than other odontocetes (Lucke et al., 2009; Kastelein et al.,
2011). While TTS onset may occur in harbor porpoises at lower received
levels (when compared to other odontocetes), NMFS 160-dB threshold
criteria are based on the onset of behavioral harassment, not the onset
of TTS. The potential for TTS is considered within NMFS' analysis of
potential impacts from Level B harassment.
Behavioral Disturbance
Behavioral responses to sound are highly variable and context-
specific. An animal's perception of and response to (in both nature and
magnitude) an acoustic event can be influenced by prior experience,
perceived proximity, bearing of the sound, familiarity of the sound,
etc. (Southall et al., 2007). If a marine mammal does react briefly to
an underwater sound by changing its behavior or moving a small
distance, the impacts of the change are unlikely to be significant to
the individual, let alone the stock or population. However, if a sound
source displaces marine mammals from an important feeding or breeding
area for a prolonged period, impacts on individuals and populations
could be significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007).
Given the many uncertainties in predicting the quantity and types of
impacts of noise on marine mammals, it is common practice to estimate
how many mammals would be present within a particular distance of
activities and/or exposed to a particular level of sound. In most
cases, this approach likely overestimates the numbers of marine mammals
that would be affected in some biologically-important manner.
The studies that address responses of low-frequency cetaceans (such
as the minke whale) to non-pulse sounds include data gathered in the
field and related to several types of sound sources (of varying
similarity to chirps), including: Vessel noise, drilling and machinery
playback, low-frequency M-sequences (sine wave with multiple phase
reversals) playback, tactical low-frequency active sonar playback,
drill ships, and non-pulse playbacks. These studies generally indicate
no (or very limited) responses to received levels in the 90 to 120 dB
re: 1[mu]Pa range and an increasing likelihood of avoidance and other
behavioral effects in the 120 to 160 dB range. As mentioned earlier,
though, contextual variables play a very important role in the reported
responses and the severity of effects are not linear when compared to
received level. Also, few of the laboratory or field datasets had
common conditions, behavioral contexts, or sound sources, so it is not
surprising that responses differ.
The studies that address responses of mid-frequency cetaceans (such
as Atlantic white-sided dolphins) to non-pulse sounds include data
gathered both in the field and the laboratory and related to several
different sound sources (of varying similarity to chirps) including:
Pingers, drilling playbacks, ship and ice-breaking noise, vessel noise,
Acoustic harassment devices (AHDs), Acoustic Deterrent Devices (ADDs),
mid-frequency active sonar, and non-pulse bands and tones. Southall et
al. (2007) were unable to come to a clear conclusion regarding the
results of these studies. In some cases animals in the field showed
significant responses to received levels between 90 and 120 dB, while
in other cases these responses were not seen in the 120 to 150 dB
range. The disparity in results was likely due to contextual variation
and the differences between the results in the field and laboratory
data (animals typically responded at lower levels in the field).
The studies that address responses of high-frequency cetaceans
(such as the harbor porpoise) to non-pulse sounds include data gathered
both in the field and the laboratory and related to several different
sound sources (of varying similarity to chirps), including: Pingers,
AHDs, and various laboratory non-pulse sounds. All of these data were
collected from harbor porpoises. Southall et al. (2007) concluded that
the existing data indicate that harbor porpoises are likely sensitive
to a wide range of anthropogenic sounds at low received levels (around
90 to 120 dB), at least for initial exposures. All recorded exposures
above 140 dB induced profound and sustained avoidance behavior in wild
harbor porpoises (Southall et al., 2007). Rapid habituation was noted
in some but not all studies.
The studies that address the responses of pinnipeds in water to
non-pulse sounds include data gathered both in the field and the
laboratory and related to several different sound sources (of varying
similarity to chirps), including: AHDs, various non-pulse sounds used
in underwater data communication, underwater drilling, and construction
noise. Few studies exist with enough information to include them in the
analysis. The limited data suggest that exposures to non-pulse sounds
between 90 and 140 dB generally do not result in strong behavioral
responses of pinnipeds in water, but no data exist at higher received
levels (Southall et al., 2007).
Southall et al. (2007) also addressed behavioral responses of
marine mammals to impulse sounds. The studies that address the
responses of low-frequency cetaceans to impulse sounds include data
gathered in the field and related to two sound sources: Airguns and
explosions. The onset of
[[Page 7408]]
significant behavioral disturbance varied between 120 and 160 dB,
depending on species. The studies that address the responses of mid-
frequency cetaceans to impulse sounds include data gathered both in the
field and the laboratory and related to several different sound sources
(of varying similarity to boomers), including: Small explosives, airgun
arrays, pulse sequences, and natural and artificial pulses. The data
show no clear indication of increasing probability and severity of
response with increasing received level. Behavioral responses seem to
vary depending on species and stimuli. Data on behavioral responses of
high-frequency cetaceans to multiple pulses is not available. Although
individual elements of some non-pulse sources (such as pingers) could
be considered pulses, it is believed that some mammalian auditory
systems perceive them as non-pulse sounds (Southall et al., 2007).
The studies that address the responses of pinnipeds in water to
impulse sounds include data gathered in the field and related to
several different sources (of varying similarity to boomers),
including: Small explosives, impact pile driving, and airgun arrays.
Quantitative data on reactions of pinnipeds to impulse sounds is
limited, but a general finding is that exposures in the 150 to 180 dB
range generally have limited potential to induce avoidance behavior
(Southall et al., 2007).
Any impacts to marine mammal behavior are expected to be temporary.
Animals may avoid the area around the survey vessels, thereby reducing
exposure. Any disturbance to marine mammals is likely to be in the form
of temporary avoidance or alteration of opportunistic foraging behavior
near the survey location. In addition, because protected species
observers would be monitoring a 500-m exclusion zone (much larger than
the 30-m, 180-dB isopleth in which Level A harassment could occur),
marine mammal injury or mortality is not anticipated. The protected
species observers would be on watch to stop survey activities, a
mitigation measure designed to prevent animals from being exposed to
injurious level sounds. For these reasons, any changes to marine mammal
behavior are expected to be temporary and result in a negligible impact
to affected species and stocks.
Anticipated Effects on Habitat
There is no anticipated impact on marine mammal habitat from the
proposed survey activities. The high resolution geophysical survey
equipment would not come in contact with the seafloor and would not be
a source of air or water pollution. Marine mammals may avoid the survey
area temporarily due to ensonification, but survey activities are not
expected to result in long-term abandonment of marine mammal habitat. A
negligible area of seafloor would be temporarily disturbed during the
collection of geotechnical data.
Overall, the proposed activity is not expected to cause significant
impacts on marine mammal habitat or marine mammal prey species in the
proposed survey area. Therefore, NMFS has preliminarily determined
impacts to marine mammal habitat are negligible.
Proposed Mitigation
In order to issue an incidental take authorization under section
101(a)(5)(D) of the MMPA, NMFS must, where applicable, 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 subsistence uses where relevant.
CWA proposed, with NMFS' guidance, the following mitigation
measures to help ensure the least practicable adverse impact on marine
mammals:
Establishment of an Exclusion Zone
During all survey activities involving the shallow-penetration and
medium-penetration subbottom profilers, CWA would establish a 500-m
radius exclusion zone around each survey vessel. This area would be
monitored for marine mammals 60 minutes (as stipulated by the BOEMRE
lease) prior to starting or restarting surveys, and during surveys, and
60 minutes after survey equipment has been turned off. Typically, the
exclusion zone is based on the area in which marine mammals could be
exposed to injurious (Level A) levels of sound. CWA's lease specifies a
500-m exclusion zone, which exceeds both the estimated Level A and
Level B isopleths for marine mammal harassment. CWA's proposed
exclusion zone would minimize impacts to marine mammals from increased
sound exposures. The exclusion zone must not be obscured by fog or poor
lighting conditions.
Shut Down and Delay Procedures
If a protected species observer sees a marine mammal within or
approaching the exclusion zone prior to the start of surveying, the
observer would notify the appropriate individual who would then be
required to delay surveying until the marine mammal moves outside of
the exclusion zone or if the animal has not been resighted for 60
minutes. If a protected species observer sees a marine mammal within or
approaching the exclusion zone during survey activities, the observer
would notify the appropriate individual who would then be required to
shut down surveying until the marine mammal moves outside of the
exclusion zone or if the animal has not been resighted for 60 minutes.
Soft-start Procedures
A ``soft-start'' technique would be used at the beginning of survey
activities each day (or following a shut down) to allow any marine
mammal that may be in the immediate area to leave before the sound
sources reach full energy. Surveys shall not commence at nighttime or
when the exclusion zone cannot be effectively monitored.
NMFS has carefully evaluated the applicant's proposed mitigation
measures and considered a range of other measures in the context of
ensuring that NMFS prescribes the means of effecting the least
practicable adverse impact on the affected marine mammal species and
stocks and their habitat. Our evaluation of potential measures included
consideration of the following factors in relation to one another:
The manner in which, and the degree to which, the
successful implementation of the measure is expected to minimize
adverse impacts to marine mammals;
The proven or likely efficacy of the specific measure to
minimize adverse impacts as planned; and
The practicability of the measure for applicant
implementation, including consideration of personnel safety, and
practicality of implementation.
Based on our evaluation of the applicant's proposed measures, as
well as other measures considered by NMFS, NMFS has preliminarily
determined that the proposed mitigation measures provide the means of
effecting the least practicable adverse impacts on marine mammals
species or stocks and their habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance.
Proposed Monitoring and Reporting
In order to issue an incidental take statement for an activity,
section 101(a)(5)(D) of the MMPA states that NMFS must set forth, where
applicable, ``requirements pertaining to the monitoring and reporting
of such taking.'' The MMPA implementing
[[Page 7409]]
regulations at 50 CFR 216.104(a)(13) indicate that requests for
incidental take authorizations must include the suggested means of
accomplishing the necessary monitoring and reporting that will result
in increased knowledge of the species and of the level of taking or
impacts on populations of marine mammals that are expected to be
present in the proposed action area.
Visual Monitoring
CWA would designate at least one biologically-trained, on-site
individual, approved in advance by NMFS, to monitor the area for marine
mammals 60 minutes before, during, and 60 minutes after all survey
activities and call for shut down if any marine mammal is observed
within or approaching the designated 500-m exclusion zone. Should a
marine mammal not included in an incidental take authorization be
observed at any time within the 500-m exclusion zone, shut down and
delay procedures would be followed.
CWA would also provide additional monitoring efforts that would
result in increased knowledge of marine mammal species in Nantucket
Sound. At least one NMFS-approved protected species observer would
conduct behavioral monitoring from the survey vessel for two days for
every 14 days of survey activity to estimate take and evaluate the
behavioral impacts that survey activities have on marine mammals
outside of the 500-m exclusion zone. In addition, CWA would also send
out an additional vessel with a NMFS-approved protected species
observer to collect data on species presence and behavior before
surveys begin and once a month during survey activities.
Protected species observers would be provided with the equipment
necessary to effectively monitor for marine mammals (for example, high-
quality binoculars, compass, and range-finder) in order to determine if
animals have entered into the harassment isopleths and to record marine
mammal sighting information. Protected species observers must be able
to effectively monitor the 500-m exclusion zone whenever the subbottom
profilers are in use. Survey efforts would only take place during
daylight hours and visibility must not be obscured by fog, lighting
conditions, etc.
CWA would submit a report to NMFS within 90 days of expiration of
the IHA or completion of surveying, whichever comes first. The report
would provide full documentation of methods, results, and
interpretation pertaining to all monitoring. More specifically, the
report would include the following information when a marine mammal is
sighted:
Dates, times, locations, heading, speed, weather, sea
conditions (including Beaufort sea state and wind force), and
associated activities during all survey operations and marine mammal
sightings;
Species, number, location, distance from the vessel, and
behavior of any marine mammals, as well as associated survey activity
(number of shut-downs or delays), observed throughout all monitoring
activities;
An estimate of the number (by species) of marine mammals
that are known to have been exposed to the survey activity (based on
visual observation) at received levels greater than or equal to 160 dB
re 1 uPa (rms) and/or 180 dB re 1 uPa (rms) for cetaceans and 190 dB re
1 uPa (rms) for pinnipeds with a discussion of any specific behaviors
those individuals exhibited; and
A description of the implementation and effectiveness of
the mitigation measures of the IHA.
In the unanticipated event that the specified activity clearly
causes the take of a marine mammal in a manner prohibited by the IHA,
such as an injury (Level A harassment), serious injury, or mortality
(e.g., ship-strike, gear interaction, and/or entanglement), CWA would
immediately cease the specified activities and report the incident to
the Chief of the Permits and Conservation Division, Office of Protected
Resources, NMFS, at 301-427-8401 and/or by email to
Michael.Payne@noaa.gov and ITP.Magliocca@noaa.gov and the Northeast
Regional Stranding Coordinator at 978-281-9300 (Mendy.Garron@noaa.gov).
The report must include the following information:
Time, date, and location (latitude/longitude) of the
incident;
Name and type of vessel involved;
Vessel's speed during and leading up to the incident;
Description of the incident;
Status of all sound source use in the 24 hours preceding
the incident;
Water depth;
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).
Activities would not resume until NMFS is able to review the
circumstances of the prohibited take. NMFS would work with CWA to
determine what is necessary to minimize the likelihood of further
prohibited take and ensure MMPA compliance. CWA may not resume their
activities until notified by NMFS via letter, email, or telephone.
In the event that CWA discovers an injured or dead marine mammal,
and the lead PSO determines that the cause of the injury or death is
unknown and the death is relatively recent (i.e., in less than a
moderate state of decomposition as described in the next paragraph),
CWA would immediately report the incident to the Chief of the Permits
and Conservation Division, Office of Protected Resources, NMFS, at 301-
427-8401 and/or by email to Michael.Payne@noaa.gov and
ITP.Magliocca@noaa.gov and the Northeast Regional Stranding Coordinator
at 978-281-9300 (Mendy.Garron@noaa.gov). The report must include the
same information identified in the paragraph above. Activities may
continue while NMFS reviews the circumstances of the incident. NMFS
would work with CWA to determine whether modifications in the
activities are appropriate.
In the event that CWA discovers an injured or dead marine mammal,
and the lead PSO determines that the injury or death is not associated
with or related to the activities authorized in the IHA (e.g.,
previously wounded animal, carcass with moderate to advanced
decomposition, or scavenger damage), CWA would report the incident to
the Chief of the Permits and Conservation Division, Office of Protected
Resources, NMFS, at 301-427-8401 and/or by email to
Michael.Payne@noaa.gov and ITP.Magliocca@noaa.gov and the Northeast
Regional Stranding Coordinator at 978-281-9300 (Mendy.Garron@noaa.gov),
within 24 hours of the discovery. CWA would provide photographs or
video footage (if available) or other documentation of the stranded
animal sighting to NMFS.
Summary of Past Monitoring and Reporting
CWA complied with the requirements under their 2012 IHA. CWA
completed 28 days and 459 nautical transect miles of survey activity
during 2012 and no living marine mammals were sighted. On July 10,
2012, a deceased harbor seal was seen by two protected species
observers and survey equipment was immediately shut down. The observers
determined that the seal had been deceased for 24-48 hours, based on
signs of scavenger damage and bloating, which suggest moderate
decomposition (Pugliares et al., 2007). Both observers
[[Page 7410]]
concurred that the animal was not injured due to survey activities;
however, a 60-minute post watch was performed to ensure that no other
protected species were in the vicinity. A full report was submitted to
NMFS on July 11, 2012, within 24 hours of the initial sighting. No
marine mammal takes were reported during the 2012 season. CWA's
monitoring report is available online at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
Estimated Take by Incidental Harassment
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as: Any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild [Level A harassment]; or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering [Level B harassment].
Based on CWA's application and NMFS' subsequent analysis, the
impact of the described survey activities may result in, at most,
short-term modification of behavior by small numbers of marine mammals
within the action area. Marine mammals may avoid the area or change
their behavior at time of exposure to elevated sound levels.
Current NMFS practice regarding exposure of marine mammals to
anthropogenic sound is that in order to avoid the potential for injury
of marine mammals (for example, PTS), cetaceans and pinnipeds should
not be exposed to impulsive sounds of 180 and 190 dB re: 1 [mu]Pa or
above, respectively. This level is considered precautionary as it is
likely that more intense sounds would be required before injury would
actually occur (Southall et al., 2007). Potential for behavioral
harassment (Level B) is considered to have occurred when marine mammals
are exposed to sounds at or above 160 dB re: 1 [mu]Pa for impulse
sounds and 120 dB re: 1 [mu]Pa for non-pulse noise, but below the
aforementioned thresholds. These levels are also considered
precautionary.
CWA estimated the number of potential takes resulting from survey
activities by considering species density, the zone of influence, and
duration of survey activities. More specifically, take estimates were
calculated by multiplying the estimated species density values (n)
measured in individuals per square kilometers, by the area of the zone
of influence in km\2\, times the total number of survey days (d = 109).
The zone of influence was calculated as a function of the distance a
survey vessel with deployed boomer would travel in one survey day and
the area around the boomer where sound levels reach or exceed 160 dB.
For consistency with the 2011 IHA, the take estimate is based on a zone
of influence equal to 444 m (the initial estimate for the 160 dB
isopleth for the boomer), although based on acoustic measurements taken
at the beginning of the 2012 survey, the 160 dB isopleth is thought to
be much smaller. This distance was applied consistently to all marine
mammal species.
Estimated numbers of species potentially exposed to disturbing
levels of sound from the boomer (the survey equipment with the largest
160 dB isopleth) were calculated for minke whales, Atlantic white-sided
dolphins, harbor porpoises, gray seals, and harbor seals. These
estimates were calculated by multiplying the low and high end of the
ranges of species density by the boomer's zone of influence and the
number of days of survey operation. CWA calculated seal density
estimates based on aerial survey counts for seals observed swimming
and/or foraging in open water within the activity area. CWA included an
adjustment factor in these density calculations for seals not seen, but
considered present during aerial surveys. Density estimates for seals
based on haul out counts were not used due to the distance of haul outs
from the activity area (about 20 km to Monomoy Island and 12 km to
Muskeget Island). Gray seals and harbor seals congregating in these
locations are not expected to hear sounds from the survey equipment at
160 dB or higher. The seals most likely to be exposed to potentially
disturbing sounds are the individuals swimming and/or foraging within
the zone of influence for the activated medium-penetration subbottom
profiler.
CWA is requesting incidental take based on the highest estimated
possible species exposures to potentially disturbing levels of sound
from the boomer. No marine mammals are expected to be exposed to
injurious levels of sound in excess of 180 dB during survey activities.
CWA is requesting, and NMFS is proposing, Level B harassment of 9 minke
whales, 185 Atlantic white-sided dolphins, 110 harbor porpoises, 314
gray seals, and 79 harbor seals. These numbers overestimate the number
of animals likely to be taken because they are based on the highest
density estimates and do not account for proposed mitigation measures
(such as the 500-m exclusion zone, marine mammal monitoring, and ramp
up procedures). These numbers indicate the maximum number of animals
expected to occur within 444 m of the boomer. Estimated and proposed
level of take of each species is less than one percent of each affected
stock and therefore is considered small in relation to the stock
estimates previously set forth.
Negligible Impact and Small Numbers Analysis and Determination
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.'' In making a negligible impact determination,
NMFS considers a number of factors which include, but are not limited
to, number of anticipated injuries or mortalities (none of which would
be authorized here), number, nature, intensity, and duration of Level B
harassment, and the context in which takes occur (for instance, will
the takes occur in an area or time of significance for marine mammals,
or are takes occurring to a small, localized population?).
As described above, marine mammals would not be exposed to
activities or sound levels which would result in injury (for instance,
PTS), serious injury, or mortality. Anticipated impacts of survey
activities on marine mammals are temporary behavioral changes due to
avoidance of the area. All marine mammals in the vicinity of survey
operations would be transient as no breeding, calving, pupping, or
nursing areas, or haul-outs, overlap with the survey area. The closest
pinniped haul-outs are about 20 km and 12 km away on Monomoy Island and
Muskeget Island, respectively. Marine mammals approaching the survey
area would likely be traveling or opportunistically foraging. The
amount of take CWA requested, and NMFS proposes to authorize, is
considered small (less than one percent) relative to the estimated
populations of 8,987 minke whales, 23,390 Atlantic white-sided
dolphins, 89,054 harbor porpoises, 250,000 gray seals, and 99,340
harbor seals. Furthermore, the amount of take CWA requested and NMFS
proposes to authorize likely overestimates the actual take that would
occur; no marine mammal takes were observed during 28 days of survey
activity in 2012. No affected marine mammals are listed under the ESA
and only the Atlantic white-sided dolphin and harbor porpoise are
considered strategic under the MMPA. Marine mammals are
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expected to avoid the survey area, thereby reducing exposure and
impacts. No disruption to reproductive behavior is anticipated and
there is no anticipated effect on annual rates of recruitment or
survival of affected marine mammals.
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 mitigation and monitoring
measures, NMFS preliminarily determines that CWA's survey activities
would result in the incidental take of small numbers of marine mammals,
by Level B harassment, and that the total taking would have a
negligible impact on the affected species or stocks.
Impact on Availability of Affected Species for Taking for Subsistence
Uses
There are no relevant subsistence uses of marine mammals implicated
by this action.
Endangered Species Act (ESA)
No marine mammal species listed under the ESA are anticipated to
occur within the action area. Therefore, section 7 consultation under
the ESA is not required.
National Environmental Policy Act (NEPA)
In compliance with the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.), as implemented by the regulations published
by the Council on Environmental Quality (40 CFR parts 1500-1508), and
NOAA Administrative Order 216-6, NMFS prepared an Environmental
Assessment (EA) to consider the direct, indirect, and cumulative
effects to marine mammals and other applicable environmental resources
resulting from issuance of a one-year IHA and the potential issuance of
additional authorization for incidental harassment for the ongoing
project in 2012. This analysis is still considered relevant for the
proposed IHA because the applicant's proposed activity has not changed.
This EA is available on the NMFS Web site listed in the beginning of
this document.
Dated: January 29, 2013.
Helen M. Golde,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2013-02195 Filed 1-31-13; 8:45 am]
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