[Federal Register Volume 78, Number 61 (Friday, March 29, 2013)]
[Notices]
[Pages 19217-19224]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-07304]


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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; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA), 
notification is hereby given that NMFS has issued an Incidental 
Harassment Authorization (IHA) to Cape Wind Associates (CWA) to take 
marine mammals, by harassment, incidental to pre-construction high 
resolution survey activities in Nantucket Sound.

DATES: Effective April 1, 2013, through March 31, 2014.

ADDRESSES: A copy of the IHA and application are available by writing 
to Michael Payne, Chief, Permits and Conservation Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910.
    An electronic copy of the application containing a list of 
references used in this document may be obtained by visiting the 
internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. NMFS prepared its own Environmental 
Assessment (EA) and Finding of No Significant Impact (FONSI) in 2011, 
which are available at the same internet address. Documents cited in 
this notice may 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

[[Page 19218]]

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 United States can apply for an 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 to review 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 plans to conduct a high resolution geophysical survey in 
Nantucket Sound, Massachusetts. The survey 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 is basically an extension of the authorization 
issued on January 1, 2012 for survey activities that were not completed 
under the previous IHA. CWA's survey activities will not change from 
what they originally proposed in their 2011 IHA application. However, 
the geotechnical portion of the survey was completed in 2012 and will 
not be continued during the 2013-2014 season.
    Acoustic stimuli (i.e., increased underwater sound) generated 
during operation of the shallow-penetration and medium-penetration 
subbottom profilers may have the potential to cause short-term 
behavioral disturbance for marine mammals in the survey area. This is 
the principal means of marine mammal taking associated with these 
activities. NMFS does not expect take to result from collision with 
survey vessels because they will be moving at relatively slow speeds (3 
knots) during seismic acquisition and there is not a high density of 
marine mammals within Nantucket Sound. It is likely that any marine 
mammal in the vicinity would be able to avoid the vessel.

Description of the Specified Activity

    CWA plans 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 is 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 will 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 will collect data along 
predetermined track lines using a towed array of instrumentation, which 
will include a side scan sonar, magnetometer, shallow-penetration 
subbottom profiler, multibeam depth sounder, and medium-penetration 
subbottom profiler. Survey activities will 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 5 months. Survey vessels will 
operate during daytime hours only and CWA estimates that one survey 
vessel will cover about 17 Nautical miles (31 kilometers) of track line 
per day. Therefore, CWA conservatively estimates that survey activities 
will 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 will be considerably shorter. NMFS is issuing 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 will 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 will 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 will 
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 will be far enough apart that 
sounds from the chirp and boomer will not overlap. The survey vessels 
will acquire data continuously throughout the survey area during the 
day and terminate survey activities before dark, prior to returning to 
port. NMFS

[[Page 19219]]

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 will result from propeller cavitation, 
propeller singing, propulsion, flow noise from water dragging across 
the hull, and bubbles breaking in the wake. The dominant sound source 
from vessels will be from propeller cavitation; 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 will 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 will use a chirp to provide high 
resolution data of the upper 15 m of sea bottom. An EdgeTech 216S or 
similar model will be used. The chirp will 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 will 
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 will 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 will be used. 
The boomer will 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 will be used during the 2013-2014 
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.

Comments and Responses

    A proposed authorization and request for public comments was 
published in the Federal Register on February 1, 2013 (78 FR 7042). 
During the 30-day public comment period, NMFS only received comments 
from the Marine Mammal Commission (Commission) and Save Our Sound/
Alliance to Protect Nantucket Sound (Alliance; in conjunction with the 
Public Employees for Environmental Responsibility, Lower Laguna Madre 
Foundation, 3 Bays Preservation, Cetacean Society International, 
Pegasus Foundation, Californians for Renewable Energy (CARE), Oceans 
Public Trust Initiative, and a private citizen). All comments have been 
compiled and posted at http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Any application-specific comments that 
address the statutory and regulatory requirements or findings NMFS must 
make to issue an IHA are addressed in this section of the Federal 
Register notice.
    Comment 1: The Commission requested that NMFS require CWA to 
recalculate the buffer zone for the shallow-penetration sub-bottom 
profiler based on the 120-dB threshold and: (1) Consult with experts in 
the field of sound propagation and marine mammal hearing to revise the 
acoustic criteria as necessary to specify threshold levels that would 
be more appropriate for a wider variety of sound sources, including the 
shallow-penetration sub-bottom profiler; and (2) encourage CWA and 
others to conduct research on the impacts of such technology on marine 
mammals.
    Response: Recalculating the buffer zone for the shallow-penetration 
sub-bottom profiler based on a 120-dB threshold is not consistent with 
NMFS' acoustic threshold criteria, or with previously authorized 
activities. The shallow-penetration sub-bottom profiler (``chirper'') 
is a non-impulsive, but intermittent (as opposed to continuous), sound 
source. Continuous sound sources are best represented by vibratory pile 
driving or drilling and produce sounds that are quite different sound 
sources compared to sub-bottom profilers. NMFS has previously applied 
the 160-dB threshold to non-tactical sonar sources used in conjunction 
with seismic surveys. The pseudo-random noise stimulus and tactical 
sonar-like signals that were used in the SOCAL-10 behavioral response 
study are also considered non-impulsive intermittent sources and were 
authorized by NMFS using the 160-dB threshold. NMFS believes that the 
160-dB threshold is appropriately applied to the shallow-penetration 
sub-bottom profiler and there is no need for CWA to recalculate their 
buffer zone.
    NMFS is in the process of developing revised acoustic guidelines 
for assessing the effects of anthropogenic sound on marine mammals. 
Until these guidelines have been peer reviewed, made available for 
public review and comment, and finalized, NMFS will continue to rely on 
the existing criteria.
    In response to encouraging CWA to conduct research on the impacts 
of sub-bottom profilers on marine mammals, CWA's monitoring plan 
includes monitoring for marine mammal behavioral reactions in response 
to the sub-bottom profilers.
    Comment 2: The Commission requested that CWA re-estimate the number 
of takes for gray and harbor seals based on both haul-out counts and 
at-sea sightings data, with appropriate corrections for availability 
and perception biases.
    Response: Density estimates for seals based on haul out counts were 
not used due to the distance of haul outs from the activity area (12.7 
miles to Monomoy Island and 7.4 miles 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 444 m of the activated 
medium-penetration subbottom profiler. CWA calculated seal density 
estimates based on aerial survey counts for seals

[[Page 19220]]

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. Seal 
density estimates were not based on seal haul-out counts because it is 
highly improbable that all seals (i.e., those seen swimming and/or 
foraging, as well as those found at the haul out sites) would be in the 
activity area simultaneously. Using the haul out counts to estimate 
take would misrepresent the number of seals potentially exposed to 
sounds at or above 160 dB.
    Comment 3: The Commission requested that NMFS include proposed IHA 
language at the end of its Federal Register notices and ensure that the 
language is consistent with that referenced in the main body of the 
Federal Register notice.
    Response: NMFS will include the proposed IHA language at the end of 
future proposed Federal Register notices.
    Comment 4: The Alliance suggested that NMFS cannot issue an IHA for 
the proposed activity because CWA is attempting to segment their larger 
wind energy project and avoid the issuance of a Letter of Authorization 
(LOA) and associated regulations.
    Response: CWA requested an IHA for a discrete, specified activity, 
a high resolution geophysical survey that is required prior to 
construction of CWA's long-term energy project. The MMPA directs NMFS 
to allow, upon request, the incidental taking of small numbers of 
marine mammals by U.S. citizens who engage in a specified activity 
within a specified geographical region if certain findings are made. 
All statutory requirements have been met in this instance. The issuance 
of regulations and an LOA is only required if the proposed activity has 
the potential to result in incidental takings of marine mammals by 
serious injury or mortality. Applicants have the option of applying for 
a 1-year IHA if their specified activity (in this case, the high 
resolution geophysical survey) would not result in the serious injury 
or mortality of marine mammals. Based on factors addressed in the 
application and proposed IHA (e.g., estimated sound propagation, slow 
vessel speeds, and monitoring and mitigation measures,) CWA does not 
anticipate, nor is NMFS authorizing, the incidental taking of marine 
mammals by serious injury or mortality. Therefore, an IHA is 
appropriate. NMFS has notified CWA that future activities may also 
require separate authorization(s) under the MMPA.
    Comment 5: The Alliance also suggested that NMFS' authorization 
must be supported by a full NEPA review that has been subjected to 
public comment.
    Response: In accordance with NEPA, NMFS prepared an EA in 2011 to 
analyze the environmental effects of authorizing Level B incidental 
take of marine mammals during CWA's high resolution geophysical survey 
in Nantucket Sound. During the development of this action, including 
the EA, several documents were available to the public, all of which 
provided a detailed description of the action and potential 
environmental impacts. For example, the analysis of impacts to marine 
mammals from the proposed high resolution geophysical survey activities 
was contained in NMFS' proposed issuance of an IHA dated September 1, 
2011 (76 FR 56735) and is similar to what is contained in the EA. 
Additional environmental information was contained in CWA's 2011 IHA 
application, which was also made available to the public. Other 
documents used to inform the EA included the Biological Opinion (issued 
December 30, 2010 by NMFS Northeast Regional Office, and available at 
http://www.epa.gov/region1/communities/pdf/CapeWind/CapeWindBiologicalOpinion-12-30-10.pdf) and the Final Environmental 
Impact Statement (published by the Bureau of Ocean Energy Management) 
on January 21, 2009 [74 FR 3635]) for the long-term Cape Wind energy 
project. The EA describes potential environmental impacts from the 
limited action for which an IHA was requested--the take of marine 
mammals incidental to CWA's high resolution geophysical survey--which 
is similar to numerous other survey activities that NMFS has analyzed 
in the past. NMFS believes that sufficient environmental information 
was presented to the public and comments on the proposed IHA were taken 
into consideration during preparation of the EA.
    The analysis contained in the 2011 EA is still considered relevant 
for this authorization because CWA's proposed activity has not changed. 
The EA is available on the NFMS Web site listed in the beginning of 
this document.
    Comment 6: The Alliance believes that CWA's survey activities are 
likely to result in the take of right whales, presumably by ship 
strike, and refers to right whale sightings around Nantucket Sound.
    Response: The presence of right whales in Nantucket Sound is not 
common and NMFS believes that the possibility of a survey vessel 
striking a right whale is unlikely. In 2008, NMFS published a final 
rule in the Federal Register instituting Mid-Atlantic Seasonal 
Management Areas with a mandatory 10-knot speed restriction to reduce 
the threat of ship collisions with right whales. The Seasonal 
Management Areas were established to provide additional protection for 
right whales and the timing, duration, and geographic extent of the 
speed restrictions were specifically designed to reflect right whale 
movement, distribution, and aggregation patterns. Nantucket Sound is 
not considered a Seasonal Management Area; however, Nantucket Sound is 
included as part of a Dynamic Management Area (with a voluntary 10-knot 
speed zone) through March 13, 2013.
    The very qualities that make right whales susceptible to being 
struck by vessels in certain areas also make them highly detectable. 
NMFS believes that the size of right whales, their slow movements, and 
the amount of time they spend at the surface would make them extremely 
likely to be spotted by PSOs before they are exposed to sounds that 
constitute harassment. Whenever survey activities are underway, at 
least one PSO will be monitoring the 500-m exclusion zone--which is 
larger than both the Level A (30 m) and Level B (444 m) harassment 
isopleths--and will call for a shutdown if any marine mammal is 
observed within or moving toward the exclusion zone. Furthermore, right 
whales are not common in Nantucket Sound and there are no known 
foraging grounds or other important habitats for right whales in 
Nantucket Sound. However, as stated in the Biological Opinion for the 
long-term Cape Wind energy project, CWA will monitor the Right Whale 
Sighting Advisory System and can modify their survey schedule in the 
unlikely event that whales are present within Nantucket Sound. CWA did 
not propose, and NMFS is not authorizing, the take of right whales from 
survey activities. Although there have been a limited number of right 
whale sightings in Nantucket Sound over the past 10 years (as seen on 
NMFS Northeast Fisheries Science Center Web site: http://www.nefsc.noaa.gov/psb/surveys/), these have not overlapped with 
Horseshoe Shoal, likely due to the shallower water depths.

Description of Marine Mammals in the Area of the Specified Activity

    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 1.

[[Page 19221]]

These are the species for which take is being authorized. While other 
marine mammal species are present in the New England region (e.g., 
humpback, fin, and right whales), they are not common in Nantucket 
Sound; this is likely due to the shallow depths of Nantucket Sound and 
its location outside of the coastal migratory corridor. NFMS has 
presented a more detailed discussion of the status of these stocks and 
their occurrence in Nantucket Sound in the notice of the proposed IHA 
(78 FR 7402, February 1, 2013).

             Table 1--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          MMPA  Status \1\             England
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                                         Whales and Dolphins (Cetaceans)
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Minke whale..........................  Balaenoptera             N-D....................  April through October.
                                        actuorostrata.
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Atlantic white-sided dolphin.........  Lagenorhynchus acutus..  N-D....................  October through
                                                                                          December.
Harbor porpoise......................  Phocoena phocoena......  N-D....................  Year-round (peak Sept-
                                                                                          Apr).
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                                                Seals (Pinnipeds)
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Gray seal............................  Halichoerus grypis.....  N-D....................  Year-round.
----------------------------------------------------------------------------------------------------------------
Harbor seal..........................  Phoca vitulina.........  N-D....................  October through April.
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\1\ N-D = non-depleted. None of the species are listed under the Endangered Species Act.

Potential Effects of the Specified Activity on Marine Mammals

    Acoustic stimuli generated by the operation of the shallow-
penetration and medium-penetration subbottom profilers, which introduce 
sound into the marine environment, have the potential to cause Level B 
behavioral harassment of marine mammals in the survey area. The effects 
of sounds from this type of survey equipment might include one or more 
of the following: tolerance, masking of natural sounds, behavioral 
disturbance, temporary or permanent impairment, or non-auditory 
physical or physiological effects (Richardson et al., 1995; Gordon et 
al., 2004; Nowacek et al., 2007; Southall et al., 2007). Permanent 
hearing impairment, in the unlikely event that it occurred, would 
constitute injury, but temporary threshold shift (TTS) is not an injury 
(Southall et al., 2007). Although the possibility cannot be entirely 
excluded, it is unlikely that the project would result in any cases of 
temporary or permanent hearing impairment, or any significant non-
auditory physical or physiological effects. Based on the available data 
and studies described here and in the proposed IHA notice, some 
behavioral disturbance is expected, but NMFS expects the disturbance to 
be localized and short-term.
    The notice of the proposed IHA (78 FR 7402, February 1, 2013) 
included a discussion of the effects of sounds from subbottom profilers 
on cetaceans and pinnipeds. NMFS refers the reader to CWA's application 
and NMFS' EA for additional information on the behavioral reactions (or 
lack thereof) by all types of marine mammals to geophysical surveys.

Anticipated Effects on Marine Mammal Habitat

    NMFS does not expect impacts on marine mammal habitat from CWA's 
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. 
Overall, CWA's survey activities are not expected to cause significant 
impacts on marine mammal habitat or marine mammal prey species in the 
survey area. Therefore, NMFS has determined impacts to marine mammal 
habitat are negligible.

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.
    To reduce the potential for disturbance from acoustic stimuli 
associated with the specified activity, CWA will implement the 
following mitigation measures for marine mammals:

Establishment of an Exclusion Zone

    During all survey activities involving the shallow-penetration and 
medium-penetration subbottom profilers, CWA will maintain a 500-m 
radius exclusion zone around each survey vessel. This area will be 
monitored for marine mammals 60 minutes (as stipulated by the BOEM 
lease) prior to starting or restarting surveys, 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 Level A (30 m) and Level B 
(444 m) isopleths for marine mammal harassment. CWA's exclusion zone 
will 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 will notify the appropriate individual who will then be 
required to delay surveying or shut down survey equipment 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 surveying until the marine mammal 
moves outside of the exclusion

[[Page 19222]]

zone or if the animal has not been resighted for 60 minutes.

Soft-start Procedures

    A ``soft-start'' technique will 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 or recommended by the public, 
NMFS has determined that the mitigation measures provide the means of 
effecting the least practicable adverse impacts on marine mammal 
species or stocks and their habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an incidental take authorization 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 
action area.

Visual Monitoring

    CWA will 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 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 would be followed.
    CWA will also provide additional monitoring efforts to increase 
knowledge of marine mammal species in Nantucket Sound. At least one 
NMFS-approved protected species observer will conduct behavioral 
monitoring from the survey vessel at least twice a week 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 
will send out a separate 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 will 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 will only take place during 
daylight hours and visibility must not be obscured by fog, lighting 
conditions, etc.

Reporting

    CWA will submit a report to NMFS within 90 days of expiration of 
the IHA or completion of surveying, whichever comes first. The report 
will provide full documentation of methods, results, and interpretation 
pertaining to all monitoring. More specifically, the report will 
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 sighting;
    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 
[micro]Pa (rms) and/or 180 dB re 1 [micro]Pa (rms) for cetaceans and 
190 dB re 1 [micro]Pa (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 shall 
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 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 will not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will 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 injred or dead marine mammal, 
and the lead PSO determines that the cause of the injury or death in 
unknown and the death is relatively recent (i.e., in less than a 
moderate state of decomposition

[[Page 19223]]

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 
Michael.Payne@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 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 will 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 will 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 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: http://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. Take by 
injury, serious injury, or mortality is neither anticipated nor 
authorized. NMFS has determined that the required mitigation and 
monitoring measures will minimize any potential risk for injury or 
mortality.
    A detailed discussion of the methods used to calculate marine 
mammal densities and take estimates in the survey area was included in 
notice for the proposed IHA (78 FR 7409, February 1, 2013). In summary, 
sightings per unit effort (SPUE) data were used to estimate species 
density within the survey area and take estimates were calculated by 
multiplying the density values (n) measured in individuals per square 
kilometers, by the area of the zone of influence in square kilometers, 
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.
    CWA requested 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. 
NMFS is authorizing the 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 mitigation measures (such as the 500-m 
exclusion zone, marine mammal monitoring, and ramp up procedures). More 
specifically, CWA's 500-m exclusion zone means that they will be 
shutting down before an animal ever enters the Level B harassment 
isopleth (444 m), so take numbers should be notably less. The 
authorized take numbers indicate the maximum number of animals expected 
to occur within the largest Level B harassment isopleth (444 m) and 
take into account the possibility that an animal may not be seen before 
it enters the 500-m exclusion zone. 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 will not be exposed to 
activities or sound levels which will 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 will be transient as no known breeding, calving, pupping, 
nursing, or haul-outs overlap with the survey area. The closest 
pinniped haul-outs are 23.5 km (12.7 NM) and 13.7 km (7.4 NM) away on 
Monomoy Island and Muskeget Island, respectively. Marine mammals 
approaching the survey area will likely be traveling or 
opportunistically foraging. The amount of take authorized is considered 
small (less than one percent) relative to the estimated populations of 
8,987 minke whales, 63,368 Atlantic white-sided dolphins, 89,504 harbor 
porpoises, 250,000 gray seals, and 99,340 harbor seals. Furthermore, 
the amount of take CWA requested and NMFS authorizes

[[Page 19224]]

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 or 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 mitigation and monitoring 
measures, NMFS determines that CWA's survey activities may result in 
the incidental take of small numbers of marine mammals, by Level B 
harassment, and that the total taking will 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 1-year IHA to and the potential issuance 
of additional authorization for incidental harassment. This analysis is 
still considered relevant for the proposed IHA because the applicant's 
proposed activity has not changed. The EA is available on the NMFS Web 
site listed in the beginning of this document concurrently with this 
notice.

    Dated: March 25, 2013.
Helen M. Golde,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2013-07304 Filed 3-28-13; 8:45 am]
BILLING CODE 3510-22-P