Small Takes of Marine Mammals Incidental to Specified Activities; Cape Wind's High Resolution Survey in Nantucket Sound, MA, 6167-6177 [2014-02162]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 79, Number 22 (Monday, February 3, 2014)]
[Notices]
[Pages 6167-6177]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-02162]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD105


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.

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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 in 2012, 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 an 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 5, 
2014.

ADDRESSES: Comments on the application and this proposal should be 
addressed to Jolie Harrison, Incidental Take Program Supervisor, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East-West Highway, Silver 
Spring, MD 20910. The mailbox address for providing email comments is 
ITP.Magliocca@noaa.gov. Comments sent via email, including all 
attachments, must not exceed a 25-megabyte file size. NMFS is not 
responsible for comments sent to addresses other than those provided 
here.
    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.
    An electronic copy of the application may be obtained by visiting 
the internet at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm. 
The following

[[Page 6168]]

associated documents are also available at the same internet address: 
2011 Environmental Assessment, 2012 monitoring report. 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.''
    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 20, 2013, 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 20, 2013.
    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 2014. 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.
    NMFS issued CWA an IHA in 2011 (76 FR 80891, December 27, 2011) for 
survey work that was to be completed in 2012. However, subsequent to 
the issuance of that IHA, CWA found it necessary to divide their survey 
into two seasons. They completed approximately 20 percent of the survey 
in 2012 and obtained a second IHA to conduct the remaining 80 percent 
in 2013 (78 FR 19217, March 29, 2013). Due to scheduling adjustments, 
the work was not conducted in 2013 and this request is an extension of 
the original request. 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 2014 
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'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 2014, 
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, 2014, to March 31, 
2015.

Specified Geographic Region

    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 boomer would not overlap. The survey vessels 
would acquire data continuously throughout the survey area during the 
day and terminate survey activities

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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).

Detailed Description of Activities

    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 
were provided in the 2013 proposed IHA notice (78 FR 7402, February 1, 
2013) and have not changed. 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 
[micro]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 2014 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
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            Common name                  Scientific name             ESA Status                MMPA Status
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Humpback whale.....................  Megaptera novaeangilae  endangered...............  depleted.
Fin whale..........................  Balaenoptera physalus.  endangered...............  depleted.
North Atlantic right whale.........  Eubaelena glacialis...  endangered...............  depleted.
Minke whale........................  Balaenoptera
                                      acutorostrata
Atlantic white-sided dolphin.......  Lagenorhynchus acutus
Harbor porpoise....................  Phocoena phocoena
Gray seal..........................  Halichoerus grypus
Harbor seal........................  Phoca vitulina
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    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.
    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 neither requesting nor is NMFS proposing to authorize 
take of 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. Information on each species is summarized below. 
Further information on the biology and local distribution of these 
species and others in the region can be found in CWA's

[[Page 6170]]

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.

             Table 2--Marine Mammals That Could Be Impacted by Survey Activities in Nantucket Sound
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                                                                                             Time of year in New
           Common name              Scientific name       Abundance      Population status         England
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Minke whale.....................  Balaenoptera                 20,741  n/a.................  April through
                                   actuorostrata.                                             October.
Atlantic white-sided dolphin....  Lagenorhynchus               48,819  n/a.................  October through
                                   acutus.                                                    December.
Harbor porpoise.................  Phocoena phocoena..          79,883  n/a.................  Year-round (peak
                                                                                              Sept-Apr).
Gray seal.......................  Halichoerus grypis.         348,900  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 20,741 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 or 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 2012, the estimated population size 
of the Western North Atlantic stock was about 48,819 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 79,883 animals. 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. The current abundance 
estimate for the western North Atlantic stock is 348,900 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 or 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, 
2011). They are most common around coastal islands, ledges, and 
sandbars above 30[deg] N latitude and range 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

[[Page 6171]]

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.

Potential Effects of the Specified Activity on Marine Mammals

    This section includes a summary and discussion of the ways that the 
types of stressors associated with the specified activity have been 
observed to impact marine mammals. This discussion may also include 
reactions that we equate with a take and those that we do not equate 
with a take (for example, with acoustics, we may include a discussion 
of studies that showed animals not reacting at all to sound or 
exhibiting barely measureable avoidance). This section also provides 
background information concerning potential effects of the specified 
activity, but does not consider either the specific manner in which the 
activity will be carried out or the mitigation that will be 
implemented, and how either of these will influence the anticipated 
impacts from this specific activity. The ``Estimated Take by Incidental 
Harassment'' section later in this document will include a quantitative 
analysis of the number of individuals that we expect to be taken by 
this activity. The ``Negligible Impact Analysis'' section will include 
the analysis of how this specific activity will impact marine mammals 
and will consider the content of this section, the ``Estimated Take by 
Incidental Harassment'' section, the ``Proposed Mitigation'' section, 
and the ``Anticipated Effects on Marine Mammal Habitat'' section to 
draw conclusions regarding the likely impacts of this activity on the 
reproductive success or survivorship of individuals and from that on 
the affected marine mammal populations or stocks.
    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).
    Background information on sound, marine mammal hearing, and 
potential effects of the specified activity on marine mammals (i.e., 
hearing impairment, threshold shift, and behavioral disturbance) was 
provided in the 2013 proposed IHA notice 78 FR 7402 (February 1, 2013) 
and that information has not changed.

Anticipated Effects on Marine Mammal Habitat

    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. The proposed activity is not expected to have any 
effects on important marine mammal habitat.

Proposed Mitigation

    In order to issue an incidental take authorization under section 
101(a)(5)(D) of the MMPA, NMFS must prescribe, where applicable, 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. Thus, CWA's proposed 
exclusion zone would minimize impacts to marine mammals from increased 
sound exposures. Finally, 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 (i.e., not initiate any sound sources that 
could result in the harassment of marine mammals) 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 the relevant sound sources 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 of the relevant sound 
sources) to allow any marine mammal that may be in the immediate area 
to leave before the sound sources reach full energy. Sound sources 
shall not commence at nighttime or when the exclusion zone cannot be 
effectively monitored.

Mitigation Conclusions

    NMFS has carefully evaluated the applicant's proposed mitigation 
measures and considered a range of other measures to ensure that NMFS

[[Page 6172]]

prescribes the means of effecting the least practicable 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
     The practicability of the measure for applicant 
implementation
    Any mitigation measures(s) prescribed by NMFS should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    1. Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal)
    2. A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to received 
levels of underwater impulse sounds, or other activities expected to 
result in the take of marine mammals (this goal may contribute to 1, 
above, or to reducing harassment takes only)
    3. A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to received levels of impulse sound, or other activities expected to 
result in the take of marine mammals (this goal may contribute to 1, 
above, or to reducing harassment takes only)
    4. A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to received 
levels of impulse sound, or other activities expected to result in the 
take of marine mammals (this goal may contribute to 1, above, or to 
reducing the severity of harassment takes only)
    5. Avoidance or minimization of adverse effects to marine mammal 
habitat, paying special attention to the food base, activities that 
block or limit passage to or from biologically important areas, 
permanent destruction of habitat, or temporary destruction/disturbance 
of habitat during a biologically important time
    6. For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation

Based on our evaluation of the applicant's proposed measures, as well 
as other measures considered by NMFS, we have 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 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. CWA submitted a marine mammal monitoring plan as 
part of the IHA application, which can be found in section 12 of CWA's 
application. The plan may be modified or supplemented based on comments 
or new information received from the public during the public comment 
period.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
     An increase in the probability of detecting marine 
mammals, both within the mitigation zone (thus allowing for more 
effective implementation of the mitigation) and in general to generate 
more data to contribute to the analyses mentioned below
     An increase in our understanding of how many marine 
mammals are likely to be exposed to levels of impulse sound that we 
associate with specific adverse effects, such as behavioral harassment, 
TTS, or PTS
     An increase in our understanding of how marine mammals 
respond to stimuli expected to result in take and how anticipated 
adverse effects on individuals (in different ways and to varying 
degrees) may impact the population, species, or stock (specifically 
through effects on annual rates of recruitment or survival) through any 
of the following methods:
    [cir] Behavioral observations in the presence of stimuli compared 
to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information)
    [cir] Physiological measurements in the presence of stimuli 
compared to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information)
    [cir] Distribution and/or abundance comparisons in times or areas 
with concentrated stimuli versus times or areas without stimuli
     An increased knowledge of the affected species
     An increase in our understanding of the effectiveness of 
certain mitigation and monitoring measures

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 of the sound source 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, 
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 deploy 
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 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.

[[Page 6173]]

Reporting Measures

    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 
Jolie.Harrison@noaa.gov and Michelle.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 may not resume until NMFS is able to review the 
circumstances of the unauthorized take. NMFS would work with CWA to 
determine what is necessary to minimize the likelihood of further 
unauthorized 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 Jolie.Harrison@noaa.gov and 
Michelle.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 
Jolie.Harrison@noaa.gov and Michelle.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. Activities may 
continue while NMFS reviews the circumstances of the incident.

Monitoring Results From Previously Authorized Activities

    CWA complied with the requirements under their 2012 IHA and did not 
conduct any activities under their 2013 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 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 [micro]Pa or 
above, respectively (Level A harassment). This level is considered 
precautionary as it is likely that more intense sounds would be 
required before injury would actually occur

[[Page 6174]]

(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 [micro]Pa for impulse sounds and 120 dB 
re: 1 [micro]Pa for non-pulse noise, but below the aforementioned 
thresholds. These levels are also considered precautionary. NMFS' 
current acoustic exposure criteria are summarized below in Table 3.

    Table 3--NMFS' Current Acoustic Criteria, as They Pertain to the
                           Specified Activity
                          [Non-explosive sound]
------------------------------------------------------------------------
          Criterion           Criterion definition        Threshold
------------------------------------------------------------------------
Level A Harassment (Injury).  Permanent Threshold   180 dB re 1 microPa-
                               Shift (PTS) (Any      m (cetaceans)/190
                               level above that      dB re 1 microPa-m
                               which is known to     (pinnipeds) root
                               cause TTS).           mean square (rms).
Level B Harassment..........  Behavioral            160 dB re 1 microPa-
                               Disruption (for       m (rms).
                               impulse noises).
Level B Harassment..........  Behavioral            120 dB re 1 microPa-
                               Disruption (for       m (rms).
                               continuous noise).
------------------------------------------------------------------------

    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 previous IHAs, 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 nine 
minke whales, 185 Atlantic white-sided dolphins, 110 harbor porpoises, 
314 gray seals, and 79 harbor seals (Table 4). 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.

                                           Table 4--Estimated Take of Marine Mammals by the Specified Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                  Percentage of
                                                                                 Estimated take   Abundance of        stock
             Common name                          Estimated density                by level B         stock        potentially       Population trend
                                                                                   harassment                       affected
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minke whale.........................  0.13-7.4.................................               9          20,741            0.04  n/a.
                                      (species/1,000 km\2\)....................
Atlantic white-sided dolphin........  0.13-164.3...............................             185          48,819            0.38  n/a.
                                      (species/1,000 km\2\)....................
Harbor porpoise.....................  0.13-98.1................................             110          79,883            0.01  n/a.
                                      (species/1,000 km\2\)....................
Gray seal...........................  0.13-0.28................................             314         348,900            0.09  increasing.
                                      (species/km\2\)..........................
Harbor seal.........................  0.03-0.07................................              79          99,340            0.08  n/a.
                                      (species/km\2\)..........................
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Any impacts to marine mammal behavior from the specified activity 
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

[[Page 6175]]

foraging behavior near the survey location.

Analysis and Preliminary Determinations

Negligible Impact

    Negligible impact is ``an impact resulting from the specified 
activity that cannot be reasonably expected to, and is not reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival'' (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of Level B harassment takes, 
alone, is not enough information on which to base an impact 
determination. In addition to considering estimates of the number of 
marine mammals that might be ``taken'' through behavioral harassment, 
NMFS must consider other factors, such as the likely nature of any 
responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, migration, etc.), as 
well as the number and nature of estimated Level A harassment takes, 
the number of estimated mortalities, and effects on habitat.
    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. 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 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 proposed mitigation and 
monitoring measures, NMFS preliminarily finds that the total marine 
mammal take from CWA's survey activities have a negligible impact on 
the affected species or stocks.

Small Numbers

    The amount of take CWA requested, and NMFS proposes to authorize, 
is considered small (less than one percent) relative to the estimated 
populations of 20,741 minke whales, 48,819 Atlantic white-sided 
dolphins, 79,883 harbor porpoises, 348,900 gray seals, and 99,340 
harbor seals. 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 finds that small numbers of 
marine mammals would be taken relative to the population of the 
affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

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

Endangered Species Act (ESA)

    The proposed activity will have no effect on any ESA-listed species 
as none are expected to be in the action area. Therefore, NMFS has 
determined that a 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). The EA includes an analysis of the direct, indirect, 
and cumulative effects to marine mammals and other applicable 
environmental resources resulting from the issuance of a 1-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.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to CWA for conducting a high resolution geophysical survey 
in Nantucket Sound beginning in the spring of 2014, provided the 
previously mentioned mitigation, monitoring, and reporting requirements 
are incorporated. The proposed IHA language is provided next.
    This section contains a draft of the IHA itself. The wording 
contained in this section is proposed for inclusion in the IHA (if 
issued).
    Cape Wind Associates, LLC (CWA), 20 Park Plaza, Suite 320, Boston, 
Massachusetts 02116, is hereby authorized under section 101(a)(5)(D) of 
the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1371(a)(5)(D)) to 
harass small numbers of marine mammals incidental to a high resolution 
geophysical survey conducted in Nantucket Sound, contingent upon the 
following conditions:
    1. This Authorization is valid from April 1, 2014, through March 
31, 2015.
    2. This Authorization is valid only for CWA's activities associated 
with the high resolution geophysical survey operations that shall occur 
in the following specified area: Around Horseshoe Shoal in Nantucket 
Sound, as specified in CWA's 2013 IHA application.
    3. Species Impacted and Level of Takes
    (a). The incidental taking of marine mammals, by Level B harassment 
only, is limited to the following species in the waters of Nantucket 
Sound:
    (i). Minke whale (Balaenoptera actuorostrata)--9
    (ii). Atlantic white-sided dolphin (Lagenorhynchus acutus)--185
    (iii). Harbor porpoise (Phocoena phocoena)--110

[[Page 6176]]

    (iv). Gray seal (Halichoerus grypis)--314
    (v). Harbor seal (Phoca vitulina)--79
    (vi). If any marine mammal species are encountered during survey 
activities that are not listed here for authorized taking and are 
likely to be exposed to sound pressure levels (SPLs) greater than or 
equal to 160 dB re 1 [mu]Pa (rms), then the Holder of this 
Authorization must alter speed or course, power-down or shut-down 
survey activities to avoid take.
    (b). The taking by injury (Level A harassment), serious injury, or 
mortality of any of the species listed in Condition 3(a) above or the 
taking of any other species of marine mammal is prohibited and may 
result in the modification, suspension, or revocation of this 
Authorization.
    4. The methods authorized for taking, by Level B harassment only, 
are limited to the following acoustic sources, without an amendment to 
this Authorization:
    (a). Shallow-penetration subbottom profiler; and
    (b). Medium-penetration subbottom profiler.
    5. The taking of any marine mammal in a manner prohibited under 
this Authorization must be reported immediately to the Chief, Permits 
and Conservation Division, Office of Protected Resources, National 
Marine Fisheries Service (NMFS) or his designee, at 301-427-8401.
    6. Mitigation Requirements: The Holder of this Authorization is 
required to implement the following mitigation requirements when 
conducting the specified activities to achieve the least practicable 
impact on affected marine mammal species or stocks:
    (a). Establishment of an exclusion zone--During all survey 
activities involving the shallow-penetration and medium-penetration 
subbottom profilers, a 500-m radius exclusion zone shall be established 
around each survey vessel. This area will be monitored for marine 
mammals 60 minutes prior to starting or restarting surveys, during 
surveys, and 60 minutes after survey equipment has been turned off. The 
exclusion zone must not be obscured by fog or poor lighting conditions.
    (b). 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 sound sources, the observer will notify the 
appropriate individual who will then be required to delay the start of 
sound sources or shut down sound sources 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 will notify the appropriate individual who will then be 
required to shut down sound sources until the marine mammal moves 
outside of the exclusion zone or if the animal has not been resighted 
for 60 minutes.
    (c). Soft-start procedures--A ``soft-start'' technique for sound 
sources shall be used at the beginning of survey activities each day 
(or following a shut down of the sound sources) to allow any marine 
mammal that may be in the immediate area to leave before the sound 
sources reach full energy. Sound sources shall not commence at 
nighttime or when the exclusion zone cannot be effectively monitored.
    7. Monitoring Requirements: The Holder of this Authorization is 
required to implement the following monitoring requirements when 
conducting the specified activities to result in increased knowledge of 
the species and of the level of taking or impacts on populations of 
marine mammals that are expected to be present in the action area.
    Visual monitoring--At least one biologically trained, on-site 
individual, approved in advance by NMFS, shall implement the mitigation 
measures that require real-time monitoring. Protected species observers 
(PSOs) shall monitor for marine mammals 60 minutes before, during, and 
60 minutes after all survey activities and call for delay or shutdown 
if any marine mammal is observed approaching or within the 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 shall be followed.
    The Holder shall provide additional monitoring efforts to increase 
knowledge of marine mammal species in Nantucket Sound. At least one 
NMFS-approved protected species observer shall conduct behavioral 
monitoring from the survey vessel for 2 days, 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, a separate vessel with a NMFS-approved protected 
species observer shall collect data on species presence and behavior 
before surveys begin and once a month during survey activities.
    Protected species observers shall be provided with the equipment 
necessary to effectively monitor for marine mammals (e.g., 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 shall only take place during 
daylight hours and visibility must not be obscured by fog, lighting 
conditions, etc.
    8. Reporting Requirements: The Holder of this Authorization is 
required to:
    (a). Submit a report on all activities and monitoring results to 
the Office of Protected Resources, NMFS, within 90 days of expiration 
of the IHA or completion of surveying, whichever comes first. This 
report must contain and summarize the following information:
    (i). 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;
    (ii). 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.
    (iii). 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 [mu]Pa (rms) and/or 180 dB re 1 [mu]Pa (rms) for cetaceans and 190 
dB re 1 [mu]Pa (rms) for pinnipeds with a discussion of any specific 
behaviors those individuals exhibited.
    (iv). A description of the implementation and effectiveness of the 
mitigation measures of the Incidental Harassment Authorization.
    (b). Submit a final report to the Chief, Permits and Conservation 
Division, Office of Protected Resources, NMFS, 1315 East-West Highway, 
Silver Spring, Maryland 20910, within 30 days after receiving comments 
from NMFS on the draft report. If NMFS decides that the draft report 
needs no comments, the draft report shall be considered the final 
report.
    (c). In the unanticipated event that the survey operations clearly 
cause the take of a marine mammal in a manner prohibited by this 
Authorization, such as an injury (Level A harassment), serious injury, 
or mortality (e.g., ship-strike, gear interaction, and/or 
entanglement), CWA shall immediately cease survey operations and report 
the incident to the Chief of the Permits and

[[Page 6177]]

Conservation Division, Office of Protected Resources, NMFS, at 301-427-
8401 and/or by email to Jolile.Harrison@noaa.gov and 
Michelle.Magliocca@noaa.gov and the Northeast Regional Stranding 
Coordinator (Mendy.Garron@noaa.gov). The report must include the 
following information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) The name and type of vessel involved;
    (iii) The vessel's speed during and leading up to the incident;
    (iv) Description of the incident;
    (v) Status of all sound source use in the 24 hours preceding the 
incident;
    (vi) Water depth;
    (vii) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    (viii) Description of marine mammal observations in the 24 hours 
preceding the incident;
    (ix) Species identification or description of the animal(s) 
involved;
    (x) The fate of the animal(s); and
    (xi) Photographs or video footage of the animal (if equipment is 
available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS shall 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.
    (d). In the event that CWA discovers an injured or dead marine 
mammal, and the lead protected species observer 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 will 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 
Jolile.Harrison@noaa.gov and Michelle.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 will work with CWA to 
determine whether modifications to the activities are appropriate.
    (e). In the event that CWA discovers an injured or dead marine 
mammal, and the lead protected species observer determines that the 
injury or death is not associated with or related to the activities 
authorized in Condition 2 of this Authorization (e.g., previously 
wounded animal, carcass with moderate to advanced decomposition, or 
scavenger damage), CWA shall 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 Jolie.Harrison@noaa.gov and 
Michelle.Magliocca@noaa.gov and the NMFS Northeast Stranding Hotline 
(866-755-6622) and/or by email to the Northeast Regional Stranding 
Coordinator (Mendy.Garron@noaa.gov), within 24 hours of the discovery. 
CWA shall provide photographs or video footage (if available) or other 
documentation of the stranded animal sighting to NMFS and the Marine 
Mammal Stranding Network. Activities may continue while NMFS reviews 
the circumstances of the incident.
    10. A copy of this Authorization must be in the possession of all 
contractors and protected species observers operating under the 
authority of this Incidental Harassment Authorization.
    11. Penalties and Permit Sanctions
    Any person who violates any provision of this Incidental Harassment 
Authorization is subject to civil and criminal penalties, permit 
sanctions, and forfeiture as authorized under the MMPA.

Request for Public Comments

    NMFS requests comment on our analysis, the draft authorization, and 
any other aspect of the Notice of Proposed IHA for CWA's high 
resolution geophysical survey. Please include with your comments any 
supporting data or literature citations to help inform our final 
decision on CWA's request for an MMPA authorization.

    Dated: January 29, 2014.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2014-02162 Filed 1-31-14; 8:45 am]
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