[Federal Register Volume 85, Number 146 (Wednesday, July 29, 2020)]
[Notices]
[Pages 45578-45596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-16357]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XA240]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Site Characterization Surveys Off
the Coast of Massachusetts
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 regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
Mayflower Wind Energy LLC (Mayflower) to incidentally harass, by Level
B harassment only, marine mammals during site characterization surveys
off the coast of Massachusetts in the area of the Commercial Lease of
Submerged Lands for Renewable Energy Development on the Outer
Continental Shelf (OCS-A 0521) and along a potential submarine cable
route to landfall at Falmouth, Massachusetts.
DATES: This authorization is effective from July 23, 2020 to July 22,
2021.
FOR FURTHER INFORMATION CONTACT: Amy Fowler, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the application
and supporting documents, as well as a list of the references cited in
this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these
documents, please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are issued or, if the taking is limited to harassment, a notice of a
proposed incidental take authorization may be provided to the public
for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of the takings are set forth.
Summary of Request
On January 17, 2020, NMFS received a request from Mayflower for an
IHA to take marine mammals incidental to site characterization surveys
in the area of the Commercial Lease of Submerged Lands for Renewable
Energy Development on the Outer Continental Shelf (OCS-A 0521; Lease
Area) and a submarine export cable route connecting the Lease Area to
landfall in Falmouth, Massachusetts. A revised application was received
on April 9, 2020. NMFS deemed that request to be adequate and complete.
Mayflower's request is for take of a small number of 14 species of
marine mammals by Level B harassment only. Neither Mayflower nor NMFS
expects serious injury or mortality to result from this activity and,
therefore, an IHA is appropriate.
Description of the Specified Activity
Mayflower plans to conduct marine site characterization surveys,
including high-resolution geophysical (HRG) and geotechnical surveys,
in the area of Commercial Lease of Submerged Lands for Renewable Energy
Development on the Outer Continental Shelf #OCS-A 0521 (Lease Area),
located approximately 60 kilometers (km) south of Martha's Vineyard,
Massachusetts, and along a potential submarine cable route to landfall
at Falmouth, Massachusetts.
The purpose of the planned surveys is to acquire geotechnical and
HRG data on the bathymetry, seafloor morphology, subsurface geology,
environmental/biological sites, seafloor obstructions, soil conditions,
and locations of any man-made, historical, or archaeological resources
within the Lease Area and export cable route to support development of
offshore wind energy facilities. Up to three survey vessels may operate
concurrently as part of the surveys, but the three vessels will spend
no more than a combined total of 215 days at sea. Surveys are expected
to occur over a three-month period, beginning upon issuance of the IHA.
Underwater sound resulting from Mayflower's site characterization
surveys has the potential to result in incidental take of marine
mammals in the form of behavioral harassment.
The HRG survey activities planned by Mayflower are described in
detail in the notice of proposed IHA (85 FR 31856; May 27, 2020). The
HRG equipment planned for use is shown in Table 1.
Table 1--Summary of HRG Survey Equipment Planned for Use by Mayflower
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Pulse
HRG equipment category Specific HRG equipment Operating frequency Source level Beamwidth Typical pulse repetition
range (kHz) (dB rms) (degrees) duration (ms) rate (Hz)
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Sparker.............................. Geomarine Geo-Spark 800 0.25 to 5.............. 203 180 3.4 2
J system.
[[Page 45579]]
Sub-bottom profiler.................. Edgetech 3100 with SB-2- 2 to 16................ 179 65 10 10
16S towfish.
Innomar SES-2000 Medium- 85 to 115.............. 241 2 2 40
100 Parametric.
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As described above, a detailed description of the planned HRG
surveys is provided in the Federal Register notice for the proposed IHA
(85 FR 31856; May 27, 2020). Since that time, no changes have been made
to the planned HRG survey activities. Therefore, a detailed description
is not provided here. Please refer to that Federal Register notice for
the description of the specific activity. Mitigation, monitoring, and
reporting measures are described in detail later in this document
(please see Mitigation and Monitoring and Reporting below).
Comments and Responses
A notice of NMFS's proposal to issue an IHA to Mayflower was
published in the Federal Register on May 27, 2020 (85 FR 31856). That
notice described, in detail, Mayflower's activity, the marine mammal
species that may be affected by the activity, and the anticipated
effects on marine mammals. During the 30-day public comment period,
NMFS received comment letters from the Marine Mammal Commission
(Commission) and a group of environmental non-governmental
organizations (ENGOs) including the Natural Resources Defense Council,
National Wildlife Foundation, Conservation Law Foundation, Whale and
Dolphin Conservation North America, Defenders of Wildlife, Humane
Society of the United States, Humane Society Legislative Fund,
International Fund for Animal Welfare, Mass Audubon, Marine Mammal
Alliance Nantucket, NY4WHALES, Surfrider Foundation, Friends of the
Earth, Ocean Conservation Research, and Sanctuary Education Advisory
Specialists. NMFS has posted the comments online at:
www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. A summary of the
public comments received from the Commission and ENGOs as well as NMFS'
responses to those comments are below.
Comment 1: The Commission recommends that NMFS (1) prohibit
Mayflower and other action proponents from using the impulsive Level A
harassment thresholds for estimating the extents of the Level A
harassment zones for non-impulsive sources (i.e., echosounders,
shallow-penetration sub-bottom profilers (SBPs), pingers, etc.) and (2)
require action proponents to use the correct Level A harassment
thresholds in all future applications. The Commission further
recommends that NMFS justify why it is allowing action proponents to
characterize sources in a manner inconsistent with its own acoustic
guidance (NMFS 2018).
Response: NMFS concurs with the Commission's recommendations and
will work to ensure that applicants are using the correct harassment
thresholds in all future applications. As described in the notice of
proposed IHA, NMFS does not agree with Mayflower's characterization of
certain HRG sources as impulsive sources. However, this
characterization results in more conservative modeling results and take
estimates than if the Level A harassment thresholds for non-pulse
sources were used and in this case, no Level A harassment is predicted
or authorized.
Comment 2: The Commission recommends that NMFS use its revised user
spreadsheet, in-beam source levels, the actual beamwidth proposed to be
used, and the maximum water depth in the survey area to estimate the
Level B harassment zones for Mayflower's activities and all future
proposed authorizations involving HRG sources.
Response: NMFS' interim guidance for determining Level B harassment
zones from HRG sources does incorporate operating frequency and beam
width. We strongly recommend that applicants employ these tools, as we
believe they are generally the best methodologies that are currently
available. However, applicants are free to develop additional models or
use different tools if they believe they are more representative of
real-world conditions. NMFS will evaluate those tools and either use
them where appropriate, or recommend changes. In this case, we note
that the Level B harassment zones calculated by Mayflower using JASCO's
model are the same as those calculated using NMFS's interim guidance
with the exception of the Innomar parametric SBP, for which JASCO's
model calculates a more conservative Level B harassment zone by
incorporating out-of-beam sound levels.
Comment 3: To maximize efficiencies and ensure best available
science is being used, the Commission recommends that NMFS consult with
its acoustic experts to determine how to estimate Level A harassment
zones accurately, what Level A harassment zones are actually expected,
and whether it is necessary to estimate Level A harassment zones for
HRG surveys in general.
Response: NMFS agrees with the Commission's recommendation and is
working with our acoustic experts to evaluate the appropriate methods
for determining the potential for Level A harassment from HRG surveys.
Comment 4: The Commission recommends that NMFS and BOEM expedite
efforts to develop and finalize, in the next six months, methodological
and signal processing standards for HRG sources. Those standards should
be used by action proponents that conduct HRG surveys and that either
choose to conduct in-situ measurements to inform an authorization
application or are required to conduct measurements to fulfill a lease
condition set forth by BOEM.
Response: NMFS agrees with the Commission that methodological and
signal processing standards for HRG sources is warranted and is working
on developing such standards. However, the effort is resource-dependent
and NMFS cannot ensure such standards will be developed within the
Commission's preferred time frame.
Comment 5: The Commission recommends that NMFS evaluate the impacts
of sound sources consistently across all action proponents and deem
sources de minimis in a consistent manner for all proposed incidental
harassment authorizations and rulemakings. This has the potential to
reduce burdens on both action proponents and NMFS.
[[Page 45580]]
Response: NMFS concurs with the Commission's recommendation and is
currently working together with BOEM to develop a tool to assist
applicants and NMFS in more quickly and efficiently identifying
activities and mitigation approaches that are unlikely to result in
take of marine mammals.
Comment 6: The Commission recommends that NMFS consider whether, in
such situations involving HRG surveys, incidental harassment
authorizations are necessary given the small size of the Level B
harassment zones, the proposed shutdown requirements, and the added
protection afforded by the lease-stipulated exclusion zones.
Specifically, the Commission states that NMFS should evaluate whether
taking needs to be authorized for those sources that are not considered
de minimis, including sparkers and boomers, and for which
implementation of the various mitigation measures should be sufficient
to avoid Level B harassment takes.
Response: NMFS has evaluated whether taking needs to be authorized
for those sources that are not considered de minimis, including
sparkers and boomers, factoring into consideration the effectiveness of
mitigation and monitoring measures, and we have determined that
implementation of mitigation and monitoring measures cannot ensure that
all take can be avoided during all HRG survey activities under all
circumstances at this time. If and when we are able to reach such a
conclusion, we will re-evaluate our determination that incidental take
authorization is warranted for these activities.
Comment 7: The Commission recommends that NMFS require Mayflower to
report as soon as possible and cease project activities immediately in
the event of an unauthorized injury or mortality of a marine mammal
from a vessel strike until the NMFS Office of Protected Resources and
the NMFS New England/Mid-Atlantic Regional Stranding Coordinator
determine whether additional measures are necessary to minimize the
potential for additional unauthorized takes.
Response: NMFS has imposed a suite of measures in this IHA to
reduce the risk of vessel strikes and does not anticipate, and has not
authorized, any takes associated with vessel strikes. Further, in the
event of a ship strike Mayflower is required both to collect and report
an extensive suite of information that NMFS has identified in order to
evaluate the ship strike, and to notify OPR and the New England/Mid-
Atlantic Regional Stranding Coordinator as soon as feasible. At that
point, as the Commission suggests, NMFS would work with the applicant
to determine whether there are additional mitigation measures or
modifications that could further reduce the likelihood of vessel strike
for the activities. However, given the existing requirements and the
very low likelihood of a vessel strike occurring, the protective value
of ceasing operations while NMFS and Mayflower discuss potential
additional mitigations in order to avoid a second highly unlikely event
during that limited period is unclear, while a requirement for project
activities to cease would not be practicable for a vessel that is
operating on the open water. Therefore, NMFS does not concur that the
measure is warranted and we have not included this requirement in the
authorization. NMFS retains authority to modify the IHA and cease all
activities immediately based on a vessel strike and will exercise that
authority if warranted.
Comment 8: The Commission recommends that NMFS specify that IHA
Renewals are a one-time opportunity in all Federal Register notices
requesting comments on the possibility of an IHA Renewal and in all
associated proposed and final IHAs.
Response: NMFS concurs and has specified this in the final IHA for
Mayflower's activities and will include this in all future Federal
Register notices and proposed and final authorizations.
Comment 9: The Commission recommends that NMFS refrain from issuing
renewals for any authorization and instead use its abbreviated Federal
Register notice process as that process is similarly expeditious and
fulfills NMFS's intent to maximize efficiencies.
Response: NMFS does not agree with the Commission and, therefore,
does not adopt the Commission's recommendations. NMFS believes IHA
renewals can be appropriate in certain limited circumstances, which are
described in the conditions for the IHA. NMFS has previously provided
responses to this recommendation in multiple notices, including 84 FR
52464 (October 02, 2019), and will provide a more detailed response
within 120 days, as required by section 202(d) of the MMPA.
Comment 10: The ENGOs recommended a seasonal restriction on site
assessment and characterization activities in the Project Areas with
the potential to harass North Atlantic right whales (Eubalaena
glacialis) between January 1 and April 30, 2021.
Response: In evaluating how mitigation may or may not be
appropriate to ensure the least practicable adverse impact on species
or stocks and their habitat, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat; and
(2) the practicability of the measures for applicant implementation,
which may consider such things as relative cost and impact on
operations.
NMFS is concerned about the status of the North Atlantic right
whale population given that an unusual mortality event (UME) has been
in effect for this species since June of 2017 and that there have been
a number of recent mortalities. While the ensonified areas contemplated
for any single HRG vessel are comparatively small and the anticipated
resulting effects of exposure relatively lower-level, the potential
impacts of multiple HRG vessels (up to three vessels are planned for
use by Mayflower) operating simultaneously in areas of higher right
whale density are not well-documented and warrant caution. However,
Mayflower does not plan to conduct HRG survey operations during the
timeframe suggested by the ENGOs, and their BOEM-approved survey plan
requires surveys to end in September 2020. If Mayflower requests future
authorizations that include HRG survey operations between January 1 and
April 30, NMFS will consider the possibility of including seasonal
restrictions.
Comment 11: The ENGOs recommended a prohibition on the commencement
of geophysical surveys at night or during times of poor visibility.
They stated that ramp up should occur during daylight hours only, to
maximize the probability that North Atlantic right whales are detected
and confirmed clear of the exclusion zone.
Response: We acknowledge the limitations inherent in detection of
marine mammals at night. However, no injury is expected to result even
in the absence of mitigation, given the very small estimated Level A
harassment zones. Any potential impacts to marine mammals authorized
for take would be limited to short-term behavioral responses.
Restricting surveys in the manner suggested by the commenters may
reduce marine mammal exposures by some degree in the short term, but
would not result in any significant reduction in either intensity or
duration of noise exposure. Vessels would also potentially be on the
water for an extended time introducing noise into the marine
environment. The restrictions recommended by the
[[Page 45581]]
commenters could result in the surveys spending increased time on the
water, which may result in greater overall exposure to sound for marine
mammals and increase the risk of a vessel strike; thus the commenters
have not demonstrated that such a requirement would result in a net
benefit. Furthermore, restricting the applicant to ramp-up only during
daylight hours would have the potential to result in lengthy shutdowns
of the survey equipment, which could result in the applicant failing to
collect the data they have determined is necessary and, subsequently,
the need to conduct additional surveys the following year. This would
result in significantly increased costs incurred by the applicant.
Thus, the restriction suggested by the commenters would not be
practicable for the applicant to implement. In consideration of
potential effectiveness of the recommended measure and its
practicability for the applicant, NMFS has determined that restricting
survey start-ups to daylight hours when visibility is unimpeded is not
warranted or practicable in this case.
Comment 12: The ENGOs recommended that NMFS require monitoring an
exclusion zone (EZ) for North Atlantic right whales of 1,000 meters
(m), around each vessel conducting activities with noise levels that
could result in injury or harassment to this species.
Response: Regarding the recommendation for a 1,000 m EZ
specifically for North Atlantic right whales, we have determined that
the 500-m EZ, as required in the IHA, is sufficiently protective. We
note that the 500-m EZ exceeds the modeled distance to the largest
Level B harassment isopleth distance (141 m) by a substantial margin.
Thus, we are not requiring shutdown if a right whale is observed beyond
500-m.
Comment 13: The ENGOs recommended that a minimum of four PSOs
should be required, following a two-on/two-off rotation, each
responsible for scanning no more than 180[deg] of the exclusion zone at
any given time.
Response: NMFS does not agree with the commenters that a minimum of
four PSOs should be required, following a two-on/two-off rotation, to
meet the MMPA requirement that mitigation must effect the least
practicable adverse impact upon the affected species or stocks and
their habitat. Previous IHAs issued for HRG surveys have required that
a single PSO must be stationed at the highest vantage point and engaged
in general 360-degree scanning during daylight hours. The monitoring
reports submitted to NMFS have demonstrated that the PSOs are able to
detect marine mammals and implement appropriate mitigation measures,
and project proponents have not exceeded take limits or reported
unauthorized taking.
Comment 14: The ENGOs recommended that a combination of visual
monitoring by PSOs and passive acoustic monitoring (PAM) should be used
at all times that survey work is underway at noise levels that could
injure or harm North Atlantic right whales.
Response: There are several reasons why we do not agree that use of
PAM is warranted for 24-hour HRG surveys such as the one planned by
Mayflower. While NMFS agrees that PAM can be an important tool for
augmenting detection capabilities in certain circumstances, its utility
in further reducing impact for Mayflower's planned HRG survey
activities is limited. First, for this activity, the area expected to
be ensonified above the Level B harassment threshold is relatively
small (a maximum of 141 m as described in the Estimated Take section)--
this reflects the fact that, to start with, the source level is
comparatively low and the intensity of any resulting impacts would be
lower level and, further, it means that inasmuch as PAM will only
detect a portion of any animals exposed within a zone (see below), the
overall probability of PAM detecting an animal in the harassment zone
is low--together these factors support the limited value of PAM for use
in reducing take with smaller zones. PAM is only capable of detecting
animals that are actively vocalizing, while many marine mammal species
vocalize infrequently or during certain activities, which means that
only a subset of the animals within the range of the PAM would be
detected (and potentially have reduced impacts). Additionally,
localization and range detection can be challenging under certain
scenarios. For example, odontocetes are fast moving and often travel in
large or dispersed groups which makes localization difficult. In
addition, the ability of PAM to detect baleen whale vocalizations is
further limited due to being deployed from the stern of a vessel, which
puts the PAM hydrophones in proximity to propeller noise and low
frequency engine noise which can mask the low frequency sounds emitted
by baleen whales, including right whales.
We also note that the effects to North Atlantic right whales, and
all marine mammals, from the types of surveys authorized in this IHA
are expected to be limited to low level behavioral harassment even in
the absence of mitigation; no injury is expected or authorized. In
consideration of the limited additional benefit anticipated by adding
this detection method (especially for right whales and other low
frequency cetaceans, species for which PAM has limited efficacy) and
the cost and impracticability of implementing a full-time PAM program,
we have determined the current requirements for visual monitoring are
sufficient to ensure the least practicable adverse impact on the
affected species or stocks and their habitat. However, we note that
Mayflower will voluntarily implement PAM during night operations as an
added precautionary measure even though this is not a NMFS requirement.
Comment 15: The ENGOs recommended that NMFS require developers to
select SBP systems and operate those systems at power settings that
achieve the lowest practicable source level for the objective.
Response: Mayflower has selected the equipment necessary to achieve
their objectives. We have evaluated the sound produced by their
equipment, and made the necessary findings to authorize taking of
marine mammals incidental to Mayflower's survey activities.
Comment 16: The ENGOs recommended a requirement that all project
vessels (regardless of size) operating within the Project Area observe
a mandatory 10 knot speed restriction during the entire survey period.
The commenters also recommend that if survey activities are delayed
into the fall and winter, all project vessels either transiting to/from
or operating within the Project Area must observe a 10 knot (18.5
kilometer (km)/hour) speed restriction between November 1, 2020 and
April 30, 2021.
Response: NMFS has analyzed the potential for ship strike resulting
from Mayflower's activity and has determined that the mitigation
measures specific to ship strike avoidance are sufficient to avoid the
potential for ship strike. These include: A requirement that all vessel
operators comply with 10 knot (18.5 km/hour) or less speed restrictions
in any established dynamic management area (DMA); a requirement that
all vessel operators reduce vessel speed to 10 knots (18.5 km/hour) or
less when any large whale, any mother/calf pairs, pods, or large
assemblages of non-delphinoid cetaceans are observed within 100 m of an
underway vessel; a requirement that all survey vessels maintain a
separation distance of 500-m or greater from any sighted North Atlantic
right whale; a requirement that, if underway, vessels must steer a
course
[[Page 45582]]
away from any sighted North Atlantic right whale at 10 knots or less
until the 500-m minimum separation distance has been established; and a
requirement that, if a North Atlantic right whale is sighted in a
vessel's path, or within 500 m of an underway vessel, the underway
vessel must reduce speed and shift the engine to neutral. We have
determined that the ship strike avoidance measures are sufficient to
ensure the least practicable adverse impact on species or stocks and
their habitat. As noted previously, occurrence of vessel strike during
surveys is extremely unlikely based on the low vessel speed of
approximately 3 knots (5.6 km/hour) while transiting survey lines.
Furthermore, no documented vessel strikes have occurred for any HRG
surveys which were issued IHAs from NMFS.
Comment 17: The ENGOs objected to NMFS' process to consider
extending any one-year IHA with a truncated 15-day comment period as
contrary to the MMPA.
Response: NMFS' IHA Renewal process meets all statutory
requirements. All IHAs issued, whether an initial IHA or a Renewal IHA,
are valid for a period of not more than one year. In addition, the
public has at least 30 days to comment on all proposed IHAs, with a
cumulative total of 45 days for IHA Renewals. As noted above, the
Request for Public Comments section made clear that the agency was
seeking comment on both the initial proposed IHA and the potential
issuance of a Renewal for this project. Because any Renewal (as
explained in the Request for Public Comments section) is limited to
another year of identical or nearly identical activities in the same
location (as described in the Description of Proposed Activity section)
or the same activities that were not completed within the one-year
period of the initial IHA, reviewers have the information needed to
effectively comment on both the immediate proposed IHA and a possible
one-year Renewal, should the IHA holder choose to request one in the
coming months.
While there will be additional documents submitted with a Renewal
request, for a qualifying Renewal these will be limited to
documentation that NMFS will make available and use to verify that the
activities are identical to those in the initial IHA, are nearly
identical such that the changes would have either no effect on impacts
to marine mammals or decrease those impacts, or are a subset of
activities already analyzed and authorized but not completed under the
initial IHA. NMFS will also confirm, among other things, that the
activities will occur in the same location; involve the same species
and stocks; provide for continuation of the same mitigation,
monitoring, and reporting requirements; and that no new information has
been received that would alter the prior analysis. The Renewal request
will also contain a preliminary monitoring report, but that is to
verify that effects from the activities do not indicate impacts of a
scale or nature not previously analyzed. The additional 15-day public
comment period provides the public an opportunity to review these few
documents, provide any additional pertinent information and comment on
whether they think the criteria for a Renewal have been met. Between
the initial 30-day comment period on these same activities and the
additional 15 days, the total comment period for a Renewal is 45 days.
In addition to the IHA Renewal process being consistent with all
requirements under section 101(a)(5)(D), it is also consistent with
Congress' intent for issuance of IHAs to the extent reflected in
statements in the legislative history of the MMPA. Through the
provision for Renewals in the regulations, description of the process
and express invitation to comment on specific potential Renewals in the
Request for Public Comments section of each proposed IHA, the
description of the process on NMFS' website, further elaboration on the
process through responses to comments such as these, posting of
substantive documents on the agency's website, and provision of 30 or
45 days for public review and comment on all proposed initial IHAs and
Renewals respectively, NMFS has ensured that the public ``is invited
and encouraged to participate fully in the agency decision-making
process.''
Comment 18: The ENGOs suggested that it should be NMFS' top
priority to consider any initial data from state monitoring efforts,
passive acoustic monitoring data, opportunistic marine mammal sightings
data, satellite telemetry, and other data sources, because the models
used by NMFS do not adequately capture increased use of the survey
areas by right whales. Further, these commenters state that the density
models NMFS uses result in an underestimate of take, and NMFS should
take steps now to develop a dataset that more accurately reflects
marine mammal presence so that it is in hand for future IHA
authorizations and other work.
Response: NMFS will review any recommended data sources and will
continue to use the best available information. We welcome future input
from interested parties on data sources that may be of use in analyzing
the potential presence and movement patterns of marine mammals,
including North Atlantic right whales, in New England waters. NMFS will
review any recommended data sources and will continue to use the best
available information. NMFS has used the best available scientific
information--in this case the marine mammal density models developed by
the Duke Marine Geospatial Ecology Lab (MGEL) (Roberts et al. 2016,
2017, 2018)--to inform our determinations. While the ENGOs are correct
in their statement that North Atlantic right whale distribution has
shifted in recent years and sightings databases, passive acoustic
monitoring, and satellite telemetry data may provide additional
information on right whale presence in the Project Area, no references
were provided to support any change in density estimates or estimated
take for North Atlantic right whales. Therefore, NMFS has not made any
changes to the density information or estimated take presented in the
Federal Register notice of proposed IHA.
Comment 19: The ENGOs commented that NMFS should analyze the
cumulative impacts from Mayflower's survey activities, and other survey
activities, on North Atlantic right whales and other protected species.
Response: The MMPA grants exceptions to its broad take prohibition
for a ``specified activity.'' 16 U.S.C. 1371(a)(5)(A)(i). Cumulative
impacts (also referred to as cumulative effects) is a term that appears
in the context of NEPA and the ESA, but it is defined differently in
those contexts. Neither the MMPA nor NMFS' codified implementing
regulations address consideration of other unrelated activities and
their impacts on populations. However, the preamble for NMFS'
implementing regulations (54 FR 40338; September 29, 1989) states in
response to comments that the impacts from other past and ongoing
anthropogenic activities are to be incorporated into the negligible
impact analysis via their impacts on the baseline. Accordingly, NMFS
here has factored into its negligible impact analyses the impacts of
other past and ongoing anthropogenic activities via their impacts on
the baseline (e.g., as reflected in the density/distribution and status
of the species, population size and growth rate, and other relevant
stressors).
Changes From the Proposed IHA to Final IHA
The estimated take in the proposed IHA was based on monthly density
[[Page 45583]]
estimates and the expected months of survey operations (June through
September). The survey timing has shifted and surveys are now expected
to occur from July through September. Mayflower plans to conduct the
same number of survey days, but rather than averaging the survey
duration over four months, it has been averaged over three months.
Estimated take has been recalculated by excluding density estimates for
the month of June. By shifting the expected survey effort in June to
the July-September period, the estimated takes for most species either
decreased or remained the same. This is because the expected June
densities of most species are higher than densities during the July-
September period. However, for bottlenose dolphins (Tursiops truncatus)
and common dolphins (Delphinus delphis), the densities during July-
September are somewhat higher than those during June, so the take
estimates for those two species increased. For bottlenose dolphins, the
estimated take by Level B harassment increased from 739 to 812 and for
common dolphins, the estimated take by Level B harassment increased
from 278 to 318. As a conservative approach, NMFS has authorized the
higher estimated take from these two calculations.
In the proposed IHA, NMFS included an exclusion zone of 100-m for
all marine mammal species other than North Atlantic right whales, which
required a 500-m exclusion zone, and certain genera of dolphins
(Delphinus, Lagenorhynchus, and Tursiops) that are most likely to
voluntarily approach the source vessel for purposes of interacting with
the vessel (e.g., bow riding). We included this small dolphin exception
because shutdown requirements for small dolphins represent
practicability concerns without likely commensurate benefits for the
animals in question. Small dolphins are typically the most commonly
observed marine mammals in the specific geographic region and would
typically be the only marine mammals likely to intentionally approach
the vessel. However, since the proposed IHA was published in the
Federal Register on May 27, 2020 (85 FR 31856), Mayflower has been
conducting geotechnical surveys in the Project Area and has reported
numerous gray seals (Halichoerus grypus) and harbor seals (Phoca
vitulina) voluntarily approaching the vessels, within 100 m. Mayflower
expects that similar conditions may occur during the planned HRG
surveys, which would result in additional shutdowns. The potential for
increased shutdowns resulting from pinnipeds approaching within 100 m
would require the survey vessel to revisit the missed track line to
reacquire data, resulting in an overall increase in the total sound
energy input to the marine environment and an increase in the total
duration over which the survey is active in a given area. Removing the
100-m exclusion zone for pinnipeds would reduce the operational burden
on Mayflower, and as described below in the Estimated Take section,
even absent mitigation, NMFS does not expect that auditory injury is
likely to occur to any marine mammal species. NMFS concurs that there
is no meaningful benefit to retaining the 100-m exclusion zone for
pinnipeds, and has changed the mitigation requirements to include
pinnipeds in the shutdown exemption for animals that intentionally
approach the vessel. Pinnipeds that enter the Level B harassment zone
will be recorded as Level B takes. No changes have been made to the
number of seals expected to be taken by Level B harassment.
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history, of the potentially affected species.
Additional information regarding population trends and threats may be
found in NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS's
website. (https://www.fisheries.noaa.gov/find-species).
Table 2 lists all species or stocks for which take is expected and
authorized for this action, and summarizes information related to the
population or stock, including regulatory status under the MMPA and ESA
and potential biological removal (PBR), where known. For taxonomy, we
follow Committee on Taxonomy (2019). PBR is defined by the MMPA as the
maximum number of animals, not including natural mortalities, that may
be removed from a marine mammal stock while allowing that stock to
reach or maintain its optimum sustainable population (as described in
NMFS's SARs). While no mortality is anticipated or authorized here, PBR
and annual serious injury and mortality from anthropogenic sources are
included here as gross indicators of the status of the species and
other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS's stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS's U.S. Atlantic SARs. All values presented in Table 2 are the most
recent available at the time of publication and are available in the
2018 Atlantic and Gulf of Mexico Marine Mammal Stock Assessments (Hayes
et al., 2019a), available online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region
or and draft 2019 Atlantic and Gulf of Mexico Marine Mammal Stock
Assessments (Hayes et al. 2019b) available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports.
Table 2--Marine Mammals Known To Occur in the Project Area That May Be Affected by Mayflower's Planned Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/MMPA Stock abundance
status; (CV, Nmin, most Predicted Annual M/
Common name Scientific name Stock strategic (Y/ recent abundance abundance \3\ PBR \4\ SI \4\
N) \1\ survey) \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
North Atlantic right whale... Eubalaena glacialis. Western North E/D; Y 428 (0; 418; n/a).. * 535 (0.45) 0.9 5.56
Atlantic.
[[Page 45584]]
Family Balaenopteridae
(rorquals):
Humpback whale............... Megaptera Gulf of Maine....... -/-; N 1,396 (0; 1,380; * 1,637 (0.07) 22 12.15
novaeangliae. See SAR).
Fin whale.................... Balaenoptera Western North E/D; Y 7,418 (0.25; 6,029; 4,633 (0.08) 12 2.35
physalus. Atlantic. See SAR).
Sei whale.................... Balaenoptera Nova Scotia......... E/D; Y 6292 (1.015; 3,098; * 717 (0.30) 6.2 1
borealis. see SAR)236.
Minke whale.................. Balaenoptera Canadian East Coast. -/-; N 24,202 (0.3; * 2,112 (0.05) 1,189 8
acutorostrata. 18,902; See SAR).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
Sperm whale.................. Physeter NA.................. E; Y 4349 (0.28;3,451; 5,353 (0.12) 6.9 0
macrocephalus. See SAR).
Family Delphinidae:
Long-finned pilot whale...... Globicephala melas.. Western North -/-; Y 5,636 (0.63; 3,464) \5\ 18,977 35 38
Atlantic. (0.11)
Bottlenose dolphin........... Tursiops spp........ Western North -/-; N 62,851 (0.23; \5\ 97,476 591 28
Atlantic Offshore. 51,914; See SAR). (0.06)
Common dolphin............... Delphinus delphis... Western North -/-; N 172,825 (0.21; 86,098 (0.12) 1,452 419
Atlantic. 145,216; See SAR).
Atlantic white-sided dolphin. Lagenorhynchus Western North -/-; N 92,233 (0.71; 37,180 (0.07) 544 26
acutus. Atlantic. 54,433; See SAR).
Risso's dolphin.............. Grampus griseus..... Western North -/-; N 35,493 (0.19; 7,732 (0.09) 303 54.3
Atlantic. 30,289; See SAR).
Family Phocoenidae (porpoises):
Harbor porpoise.............. Phocoena phocoena... Gulf of Maine/Bay of -/-; N 95,543 (0.31; * 45,089 851 217
Fundy. 74,034; See SAR). (0.12)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Gray seal \6\................ Halichoerus grypus.. Western North -/-; N 27,131 (0.19; N/A 1,389 5,688
Atlantic. 23,158, 2016).
Harbor seal.................. Phoca vitulina...... Western North -/-; N 75,834 (0.15; N/A 345 333
Atlantic. 66,884, 2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
1--Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
2--NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable
3--This information represents species- or guild-specific abundance predicted by recent habitat-based cetacean density models (Roberts et al., 2016,
2017, 2018). These models provide the best available scientific information regarding predicted density patterns of cetaceans in the U.S. Atlantic
Ocean, and we provide the corresponding abundance predictions as a point of reference. Total abundance estimates were produced by computing the mean
density of all pixels in the modeled area and multiplying by its area. For those species marked with an asterisk, the available information supported
development of either two or four seasonal models; each model has an associated abundance prediction. Here, we report the maximum predicted abundance.
4--Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP). Annual M/SI, found in NMFS' SARs,
represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, subsistence hunting, ship
strike). Annual M/SI values often cannot be determined precisely and is in some cases presented as a minimum value. All M/SI values are as presented
in the draft 2019 SARs (Hayes et al., 2019).
5--Abundance estimates are in some cases reported for a guild or group of species when those species are difficult to differentiate at sea. Similarly,
the habitat-based cetacean density models produced by Roberts et al. (2016, 2017, 2018) are based in part on available observational data which, in
some cases, is limited to genus or guild in terms of taxonomic definition. Roberts et al. (2016, 2017, 2018) produced density models to genus level
for Globicephala spp. and produced a density model for bottlenose dolphins that does not differentiate between offshore and coastal stocks.
6--8 NMFS stock abundance estimate applies to U.S. population only, actual stock abundance is approximately 505,000.
As indicated above, all 14 species (with 14 managed stocks) in
Table 2 temporally and spatially co-occur with the activity to the
degree that take is reasonably likely to occur, and we have authorized
it. All species that could potentially occur in the planned survey
areas are included in Table 4 of the IHA application. However, the
temporal and/or spatial occurrence of several species listed in Table 4
in the IHA application is such that take of these species is not
expected to occur. The blue whale (Balaenoptera musculus), Cuvier's
beaked whale (Ziphius cavirostris), four species of Mesoplodont beaked
whale (Mesoplodon spp.), dwarf and pygmy sperm whale (Kogia sima and
Kogia breviceps), and striped dolphin (Stenella coeruleoalba),
typically occur further offshore than the Project Area, while short-
finned pilot whales (Globicephala macrorhynchus) and Atlantic spotted
dolphins (Stenella frontalis) are typically found further south than
the Project Area (Hayes et al., 2019b). There are stranding records of
harp seals (Pagophilus groenlandicus) in Massachusetts, but the species
typically occurs north of the Project Area and appearances in
Massachusetts usually occur between January and May, outside of the
planned survey dates (Hayes et al., 2019b). As take of these species is
not anticipated as a result of the planned activities, these species
are not analyzed further.
A detailed description of the species for which take has been
authorized,
[[Page 45585]]
including brief introductions to the relevant stocks as well as
available information regarding population trends and threats, and
information regarding local occurrence, were provided in the Federal
Register notice for the proposed IHA (85 FR 31856; May 27, 2020); since
that time, we are not aware of any changes in the status of these
species and stocks; therefore, detailed descriptions are not provided
here. Please refer to that Federal Register notice for these
descriptions. Please also refer to NMFS' website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.
Potential Effects of Specified Activities on Marine Mammals and their
Habitat
The effects of underwater noise from Mayflower's survey activities
have the potential to result in take of marine mammals by harassment in
the vicinity of the survey area. The Federal Register notice for the
proposed IHA (85 FR 31856; May 27, 2020) included a discussion of the
effects of anthropogenic noise on marine mammals and their habitat.
That information and analysis is incorporated by reference into this
final IHA determination and is not repeated here; please refer to the
notice of proposed IHA (85 FR 31856; May 27, 2020).
Estimated Take
This section provides an estimate of the number of incidental takes
authorized through this IHA, which will inform both NMFS' consideration
of ``small numbers'' and the negligible impact determination.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes would be by Level B harassment only in the form of
disruption of behavioral patterns for individual marine mammals
resulting from exposure to HRG sources. Based on the nature of the
activity and the anticipated effectiveness of the mitigation measures
(i.e., exclusion zones and shutdown measures), discussed in detail
below in the Mitigation section, Level A harassment is neither
anticipated nor authorized.
As described previously, no mortality is anticipated or authorized
for this activity. Below we describe how the take is estimated.
Generally speaking, we estimate take by considering: (1) Acoustic
thresholds above which NMFS believes the best available science
indicates marine mammals will be behaviorally harassed or incur some
degree of permanent hearing impairment; (2) the area or volume of water
that will be ensonified above these levels in a day; (3) the density or
occurrence of marine mammals within these ensonified areas; and, (4)
and the number of days of activities. We note that while these basic
factors can contribute to a basic calculation to provide an initial
prediction of takes, additional information that can qualitatively
inform take estimates is also sometimes available (e.g., previous
monitoring results or average group size). Below, we describe the
factors considered here in more detail and present the authorized take.
Acoustic Thresholds
Using the best available science, NMFS has developed acoustic
thresholds that identify the received level of underwater sound above
which exposed marine mammals would be reasonably expected to be
behaviorally harassed (equated to Level B harassment) or to incur
permanent threshold shift (PTS) of some degree (equated to Level A
harassment).
Level B Harassment for non-explosive sources--Though significantly
driven by received level, the onset of behavioral disturbance from
anthropogenic noise exposure is also informed to varying degrees by
other factors related to the source (e.g., frequency, predictability,
duty cycle), the environment (e.g., bathymetry), and the receiving
animals (hearing, motivation, experience, demography, behavioral
context) and can be difficult to predict (Southall et al., 2007,
Ellison et al., 2012). Based on what the available science indicates
and the practical need to use a threshold based on a factor that is
both predictable and measurable for most activities, NMFS uses a
generalized acoustic threshold based on received level to estimate the
onset of behavioral harassment. NMFS predicts that marine mammals are
likely to be behaviorally harassed in a manner we consider Level B
harassment when exposed to underwater anthropogenic noise above
received levels of 160 decibels (dB) re 1 microPascal ([mu]Pa) (root
mean square (rms)) for impulsive and/or intermittent sources (e.g.,
impact pile driving) and 120 dB rms for continuous sources (e.g.,
vibratory driving). Mayflower's planned activity includes the use of
impulsive sources (geophysical survey equipment), and therefore use of
the 160 dB re 1 [mu]Pa (rms) threshold is applicable.
Level A harassment for non-explosive sources--NMFS' Technical
Guidance for Assessing the Effects of Anthropogenic Sound on Marine
Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual
criteria to assess auditory injury (Level A harassment) to five
different marine mammal groups (based on hearing sensitivity) as a
result of exposure to noise from two different types of sources
(impulsive or non-impulsive). The components of Mayflower's planned
activity includes the use of impulsive sources.
Predicted distances to Level A harassment isopleths, which vary
based on marine mammal functional hearing groups were calculated. The
updated acoustic thresholds for impulsive sounds (such as HRG survey
equipment) contained in the Technical Guidance (NMFS, 2018) were
presented as dual metric acoustic thresholds using both cumulative
sound exposure level (SELcum) and peak sound pressure level
metrics. As dual metrics, NMFS considers onset of PTS (Level A
harassment) to have occurred when either one of the two metrics is
exceeded (i.e., metric resulting in the largest isopleth). The
SELcum metric considers both level and duration of exposure,
as well as auditory weighting functions by marine mammal hearing group.
These thresholds are provided in Table 3 below. The references,
analysis, and methodology used in the development of the thresholds are
described in NMFS 2018 Technical Guidance, which may be accessed at:
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
[[Page 45586]]
Table 3--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
PTS Onset acoustic thresholds * (received level)
Hearing group -------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans.......... Cell 1: Lpk,flat: 219 dB; Cell 2: LE,LF,24h: 199 dB.
LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans.......... Cell 3: Lpk,flat: 230 dB; Cell 4: LE,MF,24h: 198 dB.
LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans......... Cell 5: Lpk,flat: 202 dB; Cell 6: LE,HF,24h: 173 dB.
LE,HF,24h: 155 dB;.
Phocid Pinnipeds (PW) (Underwater).... Cell 7: Lpk,flat: 218 dB; Cell 8: LE,PW,24h: 201 dB.
LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)... Cell 9: Lpk,flat: 232 dB; Cell 10: LE,OW,24h: 219 dB.
LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has
a reference value of 1[mu]Pa\2\s. In this Table, thresholds are abbreviated to reflect American National
Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating
frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ``flat'' is
being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized
hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the
designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and
that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be
exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it
is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
exceeded.
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that will feed into identifying the area ensonified above the
acoustic thresholds, which include source levels and transmission loss
coefficient.
The planned survey entails the use of HRG equipment. The distance
to the isopleth corresponding to the threshold for Level B harassment
was calculated for all HRG equipment with the potential to result in
harassment of marine mammals. NMFS has developed methodology for
determining the rms sound pressure level (SPLrms) at the
160-dB isopleth for the purposes of estimating take by Level B
harassment resulting from exposure to HRG survey equipment (NMFS,
2019). This methodology incorporates frequency and some directionality
to refine estimated ensonified zones. Mayflower used the methods
specified in the interim methodology (NMFS, 2019). The Level B
harassment zone for the Innomar parametric sub-bottom profiler was
calculated using this methodology, with additional modifications to
account for energy emitted outside of the primary beam of the source.
For sources that operate with different beam widths, the maximum beam
width was used. The lowest frequency of the source was used when
calculating the absorption coefficient. The formulas used to apply the
methodology are described in detail in Appendix B of the IHA
application.
NMFS considers the data provided by Crocker and Fratantonio (2016)
to represent the best available information on source levels associated
with HRG equipment and therefore recommends that source levels provided
by Crocker and Fratantonio (2016) be incorporated in the method
described above to estimate isopleth distances to the Level B
harassment threshold. In cases when the source level for a specific
type of HRG equipment is not provided in Crocker and Fratantonio
(2016), NMFS recommends that either the source levels provided by the
manufacturer be used, or, in instances where source levels provided by
the manufacturer are unavailable or unreliable, a proxy from Crocker
and Fratantonio (2016) be used instead. Table 1 shows the HRG equipment
types that may be used during the planned surveys and the sound levels
associated with those HRG equipment types. Tables 2 and 4 of Appendix B
in the IHA application shows the literature sources for the sound
source levels that are shown in Table 1 and that were incorporated into
the modeling of Level B isopleth distances to the Level B harassment
threshold.
Results of modeling using the methodology described above indicated
that, of the HRG survey equipment planned for use by Mayflower that has
the potential to result in harassment of marine mammals, sound produced
by the Geomarine Geo-Spark 400 tip sparker would propagate furthest to
the Level B harassment threshold (Table 4); therefore, for the purposes
of the exposure analysis, it was assumed the Geomarine Geo-Spark 400
tip sparker would be active during the entire duration of the surveys.
Thus the distance to the isopleth corresponding to the threshold for
Level B harassment for the Geomarine Geo-Spark 400 tip sparker
(estimated at 141 m; Table 4) was used as the basis of the take
calculation for all marine mammals. Note that this results in a
conservative estimate of the total ensonified area resulting from the
planned activities as Mayflower may not operate the Geomarine Geo-Spark
400 tip sparker during the entire planned survey, and for any survey
segments in which it is not ultimately operated, the distance to the
Level B harassment threshold would be less than 141 m (Table 4).
However, as Mayflower cannot predict the precise number of survey days
that will require the use of the Geomarine Geo-Spark 400 tip sparker,
it was assumed that it would be operated during the entire duration of
the planned surveys.
[[Page 45587]]
Table 4--Modeled Radial Distances From HRG Survey Equipment to Isopleths Corresponding to Level A and Level B
Harassment Thresholds
----------------------------------------------------------------------------------------------------------------
Radial distance to Level A harassment threshold (m) * Radial
---------------------------------------------------------------- distance to
Level B
harassment
Sound source Low frequency Mid frequency High frequency Phocid Threshold (m)
cetaceans cetaceans cetaceans pinnipeds ---------------
(underwater) All marine
mammals
----------------------------------------------------------------------------------------------------------------
Innomar SES-2000 Medium-100 <1 <1 60 <1 116
Parametric.....................
Edgetech 2000-DSS............... <1 <1 3 <1 5
Geomarine Geo-Spark 400 tip <1 <1 8 <1 141
sparker (800 Joules)...........
----------------------------------------------------------------------------------------------------------------
* Distances to the Level A harassment threshold based on the larger of the dual criteria (peak SPL and SELcum)
are shown. For all sources the SELcum metric resulted in larger isopleth distances.
Predicted distances to Level A harassment isopleths, which vary
based on marine mammal functional hearing groups (Table 3), were also
calculated. The updated acoustic thresholds for impulsive sounds (such
as HRG survey equipment) contained in the Technical Guidance (NMFS,
2018) were presented as dual metric acoustic thresholds using both
cumulative sound exposure level (SELcum) and peak sound
pressure level metrics. As dual metrics, NMFS considers onset of PTS
(Level A harassment) to have occurred when either one of the two
metrics is exceeded (i.e., the metric resulting in the largest
isopleth). The SELcum metric considers both level and
duration of exposure, as well as auditory weighting functions by marine
mammal hearing group.
Modeling of distances to isopleths corresponding to the Level A
harassment threshold was performed for all types of HRG equipment
planned for use with the potential to result in harassment of marine
mammals. Mayflower used a new model developed by JASCO to calculate
distances to Level A harassment isopleths based on both the peak SPL
and the SELcum metric. For the peak SPL metric, the model is
a series of equations that accounts for both seawater absorption and
HRG equipment beam patterns (for all HRG sources with beam widths
larger than 90[deg], it was assumed these sources were
omnidirectional). For the SELcum metric, a model was
developed that accounts for the hearing sensitivity of the marine
mammal group, seawater absorption, and beam width for downwards-facing
transducers. Details of the modeling methodology for both the peak SPL
and SELcum metrics are provided in Appendix A of the IHA
application. This model entails the following steps:
1. Weighted broadband source levels were calculated by assuming a
flat spectrum between the source minimum and maximum frequency,
weighted the spectrum according to the marine mammal hearing group
weighting function (NMFS 2018), and summed across frequency;
2. Propagation loss was modeled as a function of oblique range;
3. Per-pulse SEL was modeled for a stationary receiver at a fixed
distance off a straight survey line, using a vessel transit speed of
3.5 knots and source-specific pulse length and repetition rate. The
off-line distance is referred to as the closest point of approach (CPA)
and was performed for CPA distances between 1 m and 10 km. The survey
line length was modeled as 10 km long (analysis showed longer survey
lines increased SEL by a negligible amount). SEL is calculated as SPL +
10 log10 T/15 dB, where T is the pulse duration;
4. The SEL for each survey line was calculated to produce curves of
weighted SEL as a function of CPA distance; and
5. The curves from Step 4 above were used to estimate the CPA
distance to the impact criteria.
We note that in the modeling methods described above and in
Appendix A of the IHA application, sources that operate with a
repetition rate greater than 10 Hz were assessed with the non-impulsive
(intermittent) source criteria while sources with a repetition rate
equal to or less than 10 Hz were assessed with the impulsive source
criteria. NMFS does not necessarily agree with this step in the
modeling assessment, which results in nearly all HRG sources being
classified as impulsive; however, we note that the classification of
the majority of HRG sources as impulsive results in more conservative
modeling results. Thus, we have assessed the potential for Level A
harassment to result from the planned activities based on the modeled
Level A zones with the acknowledgement that these zones are likely
conservative.
Modeled isopleth distances to Level A harassment thresholds for all
types of HRG equipment and all marine mammal functional hearing groups
are shown in Table 4. The dual criteria (peak SPL and
SELcum) were applied to all HRG sources using the modeling
methodology as described above, and the largest isopleth distances for
each functional hearing group were then carried forward in the exposure
analysis to be conservative. For all HRG sources, the SELcum
metric resulted in larger isopleth distances. Distances to the Level A
harassment threshold based on the larger of the dual criteria (peak SPL
and SELcum) are shown in Table 4.
Modeled distances to isopleths corresponding to the Level A
harassment threshold are very small (<1 m) for three of the four marine
mammal functional hearing groups that may be impacted by the planned
activities (i.e., low frequency and mid frequency cetaceans, and phocid
pinnipeds; see Table 4). Based on the very small Level A harassment
zones for these functional hearing groups, the potential for species
within these functional hearing groups to be taken by Level A
harassment is considered so low as to be discountable. For harbor
porpoises (a high frequency specialist), the largest modeled distance
to the Level A harassment threshold for the high frequency functional
hearing group was 60 m (Table 4). However, as noted above, modeled
distances to isopleths corresponding to the Level A harassment
threshold are assumed to be conservative. Further, the Innomar source
uses a very narrow beam width (two degrees) and the distances to the
Level A harassment isopleths are eight meters or less for the other two
sources. Level A harassment would also be more likely to occur at close
approach to the sound source or as a result of longer duration exposure
to the sound source, and mitigation measures--including a 100-m
exclusion zone for harbor
[[Page 45588]]
porpoises--are expected to minimize the potential for close approach or
longer duration exposure to active HRG sources. In addition, harbor
porpoises are a notoriously shy species which is known to avoid
vessels, and would also be expected to avoid a sound source prior to
that source reaching a level that would result in injury (Level A
harassment). Therefore, we have determined that the potential for take
by Level A harassment of harbor porpoises is so low as to be
discountable. As NMFS has determined that the likelihood of take of any
marine mammals in the form of Level A harassment occurring as a result
of the planned surveys is so low as to be discountable, we therefore
have not authorized the take by Level A harassment of any marine
mammals.
Marine Mammal Occurrence
In this section we provide the information about the presence,
density, or group dynamics of marine mammals that will inform the take
calculations.
The habitat-based density models produced by the Duke University
Marine Geospatial Ecology Laboratory (Roberts et al., 2016, 2017, 2018)
represent the best available information regarding marine mammal
densities in the planned survey area. The density data presented by
Roberts et al. (2016, 2017, 2018) incorporates aerial and shipboard
line-transect survey data from NMFS and other organizations and
incorporates data from 8 physiographic and 16 dynamic oceanographic and
biological covariates, and controls for the influence of sea state,
group size, availability bias, and perception bias on the probability
of making a sighting. These density models were originally developed
for all cetacean taxa in the U.S. Atlantic (Roberts et al., 2016). In
subsequent years, certain models have been updated on the basis of
additional data as well as certain methodological improvements. Our
evaluation of the changes leads to a conclusion that these represent
the best scientific evidence available. More information, including the
model results and supplementary information for each model, is
available online at seamap.env.duke.edu/models/Duke-EC-GOM-2015/.
Marine mammal density estimates in the project area (animals/km\2\)
were obtained using these model results (Roberts et al., 2016, 2017,
2018). The updated models incorporate additional sighting data,
including sightings from the NOAA Atlantic Marine Assessment Program
for Protected Species (AMAPPS) surveys from 2010-2014 (NEFSC & SEFSC,
2011, 2012, 2014a, 2014b, 2015, 2016).
For the exposure analysis, density data from Roberts et al. (2016,
2017, 2018) were mapped using a geographic information system (GIS).
These data provide abundance estimates for species or species guilds
within 10 km x 10 km grid cells (100 km\2\) on a monthly or annual
basis, depending on the species. In order to select a representative
sample of grid cells in and near the Project Area, a 10-km wide
perimeter around the Lease Area and an 8-km wide perimeter around the
cable route were created in GIS (ESRI 2017). The perimeters were then
used to select grid cells near the Project Area containing the most
recent monthly or annual estimates for each species in the Roberts et
al. (2016, 2017, 2018) data. The average monthly abundance for each
species in each survey area (deep-water and shallow-water) was
calculated as the mean value of the grid cells within each survey
portion in each month (July through September), and then converted for
density (individuals/km\2\) by dividing by 100 km\2\ (Tables 5 and 6).
Roberts et al. (2018) produced density models for all seals and did
not differentiate by seal species. Because the seasonality and habitat
use by gray seals roughly overlaps with that of harbor seals in the
survey areas, it was assumed that modeled takes of seals could occur to
either of the respective species, thus the total number of modeled
takes for seals was applied to each species.
Table 5--Average Monthly Densities for Species in the Lease Area and Deep-Water Section of the Cable Route
----------------------------------------------------------------------------------------------------------------
Estimated monthly density (individuals/km\2\)
Species -----------------------------------------------
July August September
----------------------------------------------------------------------------------------------------------------
Fin whale....................................................... 0.0033 0.0029 0.0025
Humpback whale.................................................. 0.0011 0.0005 0.0011
Minke whale..................................................... 0.0010 0.0007 0.0008
North Atlantic right whale...................................... 0.0000 0.0000 0.0000
Sei whale....................................................... 0.0001 0.0000 0.0001
Atlantic white-sided dolphin.................................... 0.0446 0.0243 0.0246
Bottlenose dolphin.............................................. 0.0516 0.0396 0.0494
Harbor porpoise................................................. 0.0125 0.0114 0.0093
Pilot whale..................................................... 0.0066 0.0066 0.0066
Risso's dolphin................................................. 0.0005 0.0009 0.0007
Common dolphin.................................................. 0.0614 0.1069 0.1711
Sperm whale..................................................... 0.0004 0.0004 0.0002
Seals (harbor and gray)......................................... 0.0061 0.0033 0.0040
----------------------------------------------------------------------------------------------------------------
Table 6--Average Monthly Densities for Species in the Shallow-Water Section of the Cable Route
----------------------------------------------------------------------------------------------------------------
Estimated monthly density (individuals/km\2\)
Species -----------------------------------------------
July August September
----------------------------------------------------------------------------------------------------------------
Fin whale....................................................... 0.0003 0.0003 0.0003
Humpback whale.................................................. 0.0001 0.0000 0.0001
Minke whale..................................................... 0.0000 0.0000 0.0000
North Atlantic right whale...................................... 0.0000 0.0000 0.0000
Sei whale....................................................... 0.0000 0.0000 0.0000
Atlantic white-sided dolphin.................................... 0.0006 0.0005 0.0008
[[Page 45589]]
Bottlenose dolphin.............................................. 0.4199 0.3211 0.3077
Harbor porpoise................................................. 0.0023 0.0037 0.0036
Pilot whale..................................................... 0.0000 0.0000 0.0000
Risso's dolphin................................................. 0.0000 0.0000 0.0000
Common dolphin.................................................. 0.0002 0.0006 0.0009
Sperm whale..................................................... 0.0000 0.0000 0.0000
Seals (harbor and gray)......................................... 0.0281 0.0120 0.0245
----------------------------------------------------------------------------------------------------------------
Take Calculation and Estimation
Here we describe how the information provided above is brought
together to produce a quantitative take estimate.
In order to estimate the number of marine mammals predicted to be
exposed to sound levels that would result in harassment, radial
distances to predicted isopleths corresponding to harassment thresholds
are calculated, as described above. Those distances are then used to
calculate the area(s) around the HRG survey equipment predicted to be
ensonified to sound levels that exceed harassment thresholds. The area
estimated to be ensonified to relevant thresholds in a single day is
then calculated, based on areas predicted to be ensonified around the
HRG survey equipment and the estimated trackline distance traveled per
day by the survey vessel. Mayflower estimates that the survey vessel in
the Lease Area and deep-water sections of the cable route will achieve
a maximum daily trackline of 110 km per day and the survey vessels in
the shallow-water section of the cable route will achieve a maximum of
55 km per day during planned HRG surveys. This distance accounts for
survey vessels traveling at roughly 3 knots and accounts for non-active
survey periods.
Based on the maximum estimated distance to the Level B harassment
threshold of 141 m (Table 4) and the maximum estimated daily track line
distance of 110 km, an area of 31.1 km\2\ would be ensonified to the
Level B harassment threshold each day in the Lease Area and deep-water
section of the cable route during Mayflower's planned surveys. During
90 days of anticipated survey activity over the three month period
(July through September), approximately 30 days of survey activity are
expected each month, for an average of 933 km\2\ ensonified to the
Level B harassment threshold in the Lease Area and deep-water section
of the cable route each month of survey activities.
Similarly, based on the maximum estimated distance to the Level B
harassment threshold of 141 m (Table 4) and the maximum estimated daily
track line distance of 55 km, an area of 15.6 km\2\ would be ensonified
to the Level B harassment threshold each day in the shallow-water
section of the cable route. During 125 days of anticipated survey
activity over the three month period (July through September),
approximately 41.7 days of survey activity (split among two vessels)
are expected each month, for an average of 650 km\2\ ensonified to the
Level B harassment threshold in the shallow-water section of the cable
route each month of survey activities.
As described above, this is a conservative estimate as it assumes
the HRG sources that result in the greatest isopleth distances to the
Level B harassment threshold would be operated at all times during all
215 vessel days.
The estimated numbers of marine mammals that may be taken by Level
B harassment were calculated by multiplying the monthly density for
each species in each survey area (Tables 5 and 6) by the respective
monthly ensonified area within each survey section. The results were
then summed to determine the total estimated take (Table 7).
Table 7--Total Numbers of Authorized Incidental Takes of Marine Mammals and Takes as a Percentage of Population
--------------------------------------------------------------------------------------------------------------------------------------------------------
Calculated take by survey Total
region authorized
-------------------------------- Total Authorized Authorized instances of
Species calculated takes by Level takes by Level take as a
Lease area and Shallow- water takes by Level A harassment B harassment b percentage of
deep- water cable route B harassment population a
cable route
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fin whale............................................... 8.3 0.6 8.9 0 9 0.3
Humpback whale.......................................... 2.9 0.2 3.1 0 4 0.2
Minke whale............................................. 3.4 0.2 3.6 0 4 0.1
North Atlantic right whale.............................. 0.9 0 0.9 0 c 3 0.8
Sei whale............................................... 0.3 0 0.3 0 c 2 0.4
Atlantic white-sided dolphin............................ 109.3 1.4 110.7 0 111 0.1
Bottlenose dolphin...................................... 131.0 680.4 811.5 0 812 1.0
Harbor porpoise......................................... 36.4 7 43.4 0 44 0.1
Pilot whale............................................. 18.4 0 18.4 0 19 0.1
Risso's dolphin......................................... 1.7 0 1.7 0 b 6 0.1
Common dolphin.......................................... 316.5 1.1 317.6 0 318 0.3
Sperm whale............................................. 0.8 0 0.8 0 c 2 <0.01
[[Page 45590]]
Seals (harbor and gray)................................. 40.4 152.8 193.2 0 194 0.7
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Calculations of percentage of stock taken are based on the best available abundance estimate as shown in Table 2. In most cases the best available
abundance estimate is provided by Roberts et al. (2016, 2017, 2018), when available, to maintain consistency with density estimates derived from
Roberts et al. (2016, 2017, 2018). For bottlenose dolphins and seals, Roberts et al. (2016, 2017, 2018) provides only a single abundance estimate and
does not provide abundance estimates at the stock or species level (respectively), so the abundance estimate used to estimate percentage of stock
taken for bottlenose dolphins is derived from NMFS SARs (Hayes et al., 2019). For seals, NMFS proposes to authorize 194 takes of seals as a guild by
Level B harassment and assumes take could occur to either species. For the purposes of estimating percentage of stock taken, the NMFS SARs abundance
estimate for gray seals was used as the abundance of gray seals is lower than that of harbor seals (Hayes et al., 2019).
\b\ Authorized take equal to calculated take rounded up to next integer, or mean group size.
\c\ Authorized take increased to mean group size (Palka et al., 2017; Kraus et al., 2016).
Using the take methodology approach described above, the take
estimates for Risso's dolphin, sei whale, North Atlantic right whale,
and sperm whale were less than the average group sizes estimated for
these species (Table 7). However, information on the social structures
of these species indicates these species are likely to be encountered
in groups. Therefore it is reasonable to conservatively assume that one
group of each of these species will be taken during the planned survey.
We have therefore authorized the take of the average group size for
these species to account for the possibility that the planned survey
encounters a group of either of these species (Table 7).
As described above, NMFS has determined that the likelihood of take
of any marine mammals in the form of Level A harassment occurring as a
result of the planned surveys is so low as to be discountable;
therefore, we have not authorized take of any marine mammals by Level A
harassment.
Mitigation
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, we
carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned); and
(2) the practicability of the measures for applicant
implementation, which may consider such things as cost, impact on
operations, and, in the case of a military readiness activity,
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity.
Mitigation Measures
NMFS has required the following mitigation measures be implemented
during Mayflower's planned marine site characterization surveys.
Marine Mammal Exclusion Zones, Buffer Zone and Monitoring Zone
Marine mammal exclusion zones (EZ) must be established around the
HRG survey equipment and monitored by protected species observers (PSO)
during HRG surveys as follows:
A 500-m EZ is required for North Atlantic right whales;
and
A 100-m EZ is required for all other marine mammals (with
the exception of certain small dolphin species and pinnipeds specified
below).
If a marine mammal is detected approaching or entering the EZs
during the planned survey, the vessel operator must adhere to the
shutdown procedures described below. In addition to the EZs described
above, PSOs must visually monitor a 200 m Buffer Zone. During use of
acoustic sources with the potential to result in marine mammal
harassment (i.e., anytime the acoustic source is active, including
ramp-up), occurrences of marine mammals within the Buffer Zone (but
outside the EZs) must be communicated to the vessel operator to prepare
for potential shutdown of the acoustic source. The Buffer Zone is not
applicable when the EZ is greater than 100 meters. PSOs are also
required to observe a 500-m Monitoring Zone and record the presence of
all marine mammals within this zone. In addition, any marine mammals
observed within 141 m of the active HRG equipment operating at or below
180 kHz must be documented by PSOs as taken by Level B harassment. The
zones described above must be based upon the radial distance from the
active equipment (rather than being based on distance from the vessel
itself).
Visual Monitoring
A minimum of one NMFS-approved PSO must be on duty and conducting
visual observations at all times during daylight hours (i.e., from 30
minutes prior to sunrise through 30 minutes following sunset) and 30
minutes prior to and during nighttime ramp-ups of HRG equipment. Visual
monitoring
[[Page 45591]]
must begin no less than 30 minutes prior to ramp-up of HRG equipment
and must continue until 30 minutes after use of the acoustic source
ceases or until 30 minutes past sunset. PSOs must establish and monitor
the applicable EZs, Buffer Zone and Monitoring Zone as described above.
Visual PSOs must coordinate to ensure 360[deg] visual coverage around
the vessel from the most appropriate observation posts, and must
conduct visual observations using binoculars and the naked eye while
free from distractions and in a consistent, systematic, and diligent
manner. PSOs must estimate distances to marine mammals located in
proximity to the vessel and/or relevant using range finders. It is the
responsibility of the Lead PSO on duty to communicate the presence of
marine mammals as well as to communicate and enforce the action(s) that
are necessary to ensure mitigation and monitoring requirements are
implemented as appropriate. Position data must be recorded using hand-
held or vessel global positioning system (GPS) units for each confirmed
marine mammal sighting.
Pre-Clearance of the Exclusion Zones
Prior to initiating HRG survey activities, Mayflower must implement
a 30-minute pre-clearance period. During pre-clearance monitoring
(i.e., before ramp-up of HRG equipment begins), the Buffer Zone will
also act as an extension of the 100-m EZ in that observations of marine
mammals within the 200-m Buffer Zone will also preclude HRG operations
from beginning. During this period, PSOs must ensure that no marine
mammals are observed within 200 m of the survey equipment (500 m in the
case of North Atlantic right whales). HRG equipment must not start up
until this 200-m zone (or, 500-m zone in the case of North Atlantic
right whales) is clear of marine mammals for at least 30 minutes. The
vessel operator must notify a designated PSO of the planned start of
HRG survey equipment as agreed upon with the lead PSO; the notification
time should not be less than 30 minutes prior to the planned initiation
of HRG equipment order to allow the PSOs time to monitor the EZs and
Buffer Zone for the 30 minutes of pre-clearance. A PSO conducting pre-
clearance observations must be notified again immediately prior to
initiating active HRG sources.
If a marine mammal were observed within the relevant EZs or Buffer
Zone during the pre-clearance period, initiation of HRG survey
equipment must not begin until the animal(s) has been observed exiting
the respective EZ or Buffer Zone, or, until an additional time period
has elapsed with no further sighting (i.e., minimum 15 minutes for
small odontocetes and seals, and 30 minutes for all other species). The
pre-clearance requirement includes small delphinoids that approach the
vessel (e.g., bow ride). PSOs must also continue to monitor the zone
for 30 minutes after survey equipment is shut down or survey activity
has concluded.
Ramp-Up of Survey Equipment
When technically feasible, a ramp-up procedure must be used for
geophysical survey equipment capable of adjusting energy levels at the
start or re-start of survey activities. The ramp-up procedure must be
used at the beginning of HRG survey activities in order to provide
additional protection to marine mammals near the Project Area by
allowing them to detect the presence of the survey and vacate the area
prior to the commencement of survey equipment operation at full power.
Ramp-up of the survey equipment must not begin until the relevant EZs
and Buffer Zone has been cleared by the PSOs, as described above. HRG
equipment must be initiated at their lowest power output and must be
incrementally increased to full power. If any marine mammals are
detected within the EZs or Buffer Zone prior to or during ramp-up, the
HRG equipment must be shut down (as described below).
Shutdown Procedures
If an HRG source is active and a marine mammal is observed within
or entering a relevant EZ (as described above) an immediate shutdown of
the HRG survey equipment is required. When shutdown is called for by a
PSO, the acoustic source must be immediately deactivated and any
dispute resolved only following deactivation. Any PSO on duty has the
authority to delay the start of survey operations or to call for
shutdown of the acoustic source if a marine mammal is detected within
the applicable EZ. The vessel operator must establish and maintain
clear lines of communication directly between PSOs on duty and crew
controlling the HRG source(s) to ensure that shutdown commands are
conveyed swiftly while allowing PSOs to maintain watch. Subsequent
restart of the HRG equipment must only occur after the marine mammal
has either been observed exiting the relevant EZ, or, until an
additional time period has elapsed with no further sighting of the
animal within the relevant EZ (i.e., 15 minutes for small odontocetes
and seals, and 30 minutes for large whales).
Upon implementation of shutdown, the HRG source may be reactivated
after the marine mammal that triggered the shutdown has been observed
exiting the applicable EZ (i.e., the animal is not required to fully
exit the Buffer Zone where applicable) or, following a clearance period
of 15 minutes for small odontocetes and seals and 30 minutes for all
other species with no further observation of the marine mammal(s)
within the relevant EZ. If the HRG equipment shuts down for brief
periods (i.e., less than 30 minutes) for reasons other than mitigation
(e.g., mechanical or electronic failure) the equipment may be re-
activated as soon as is practicable at full operational level, without
30 minutes of pre-clearance, only if PSOs have maintained constant
visual observation during the shutdown and no visual detections of
marine mammals occurred within the applicable EZs and Buffer Zone
during that time. For a shutdown of 30 minutes or longer, or if visual
observation was not continued diligently during the pause, pre-
clearance observation is required, as described above.
The shutdown requirement is waived for certain genera of small
delphinids (i.e., Delphinus, Lagenorhynchus, and Tursiops) and
pinnipeds (gray and harbor seals) under certain circumstances. If a
delphinid(s) from these genera or seal(s) is visually detected
approaching the vessel (i.e., to bow ride) or towed survey equipment,
shutdown is not required. If there is uncertainty regarding
identification of a marine mammal species (i.e., whether the observed
marine mammal(s) belongs to one of the delphinid genera for which
shutdown is waived), PSOs must use best professional judgment in making
the decision to call for a shutdown.
If a species for which authorization has not been granted, or, a
species for which authorization has been granted but the authorized
number of takes have been met, approaches or is observed within the
area encompassing the Level B harassment isopleth (141 m), shutdown
must occur.
Vessel Strike Avoidance
Vessel strike avoidance measures include, but are not limited to,
the following, except under circumstances when complying with these
requirements would put the safety of the vessel or crew at risk:
All vessel operators and crew will maintain vigilant watch
for cetaceans and pinnipeds, and slow down or stop their vessel to
avoid striking these protected species;
All survey vessels, regardless of size, must observe a 10-
knot speed
[[Page 45592]]
restriction in DMAs designated by NMFS for the protection of North
Atlantic right whales from vessel strikes. Note that this requirement
includes vessels, regardless of size, to adhere to a 10 knot speed
limit in DMAs, not just vessels 65 ft or greater in length;
All vessel operators will reduce vessel speed to 10 knots
(18.5 km/hr) or less when any large whale, any mother/calf pairs, large
assemblages of non-delphinoid cetaceans are observed near (within 100 m
(330 ft)) an underway vessel;
All vessels will maintain a separation distance of 500 m
(1,640 ft) or greater from any sighted North Atlantic right whale;
If underway, vessels must steer a course away from any
sighted North Atlantic right whale at 10 knots (18.5 km/hr) or less
until the 500-m (1,640 ft) minimum separation distance has been
established. If a North Atlantic right whale is sighted in a vessel's
path, or within 100 m (330 ft) to an underway vessel, the underway
vessel must reduce speed and shift the engine to neutral. Engines will
not be engaged until the North Atlantic right whale has moved outside
of the vessel's path and beyond 100 m. If stationary, the vessel must
not engage engines until the North Atlantic right whale has moved
beyond 100 m;
All vessels will maintain a separation distance of 100 m
(330 ft) or greater from any sighted non-delphinoid cetacean. If
sighted, the vessel underway must reduce speed and shift the engine to
neutral, and must not engage the engines until the non-delphinoid
cetacean has moved outside of the vessel's path and beyond 100 m. If a
survey vessel is stationary, the vessel will not engage engines until
the non-delphinoid cetacean has moved out of the vessel's path and
beyond 100 m;
All vessels will maintain a separation distance of 50 m
(164 ft) or greater from any sighted delphinoid cetacean. Any vessel
underway remain parallel to a sighted delphinoid cetacean's course
whenever possible, and avoid excessive speed or abrupt changes in
direction. Any vessel underway reduces vessel speed to 10 knots (18.5
km/hr) or less when pods (including mother/calf pairs) or large
assemblages of delphinoid cetaceans are observed. Vessels may not
adjust course and speed until the delphinoid cetaceans have moved
beyond 50 m and/or the abeam of the underway vessel;
All vessels will maintain a separation distance of 50 m
(164 ft) or greater from any sighted pinniped; and
All vessels underway will not divert or alter course in
order to approach any whale, delphinoid cetacean, or pinniped. Any
vessel underway will avoid excessive speed or abrupt changes in
direction to avoid injury to the sighted cetacean or pinniped.
Project-specific training will be conducted for all vessel crew
prior to the start of survey activities. Confirmation of the training
and understanding of the requirements will be documented on a training
course log sheet. Signing the log sheet will certify that the crew
members understand and will comply with the necessary requirements
throughout the survey activities.
Passive Acoustic Monitoring
Mayflower will also employ passive acoustic monitoring (PAM) to
support monitoring during night time operations to provide for
acquisition of species detections at night. While PAM is not typically
required by NMFS for HRG surveys, it may a provide additional benefit
as a mitigation and monitoring measure to further limit potential
exposure to underwater sound at levels that could result in injury or
behavioral harassment.
Based on our evaluation of the applicant's planned measures, as
well as other measures considered by NMFS, NMFS has determined that the
required mitigation measures provide the means effecting the least
practicable impact on the affected species or stocks and their habitat,
paying particular attention to rookeries, mating grounds, and areas of
similar significance.
Monitoring and Reporting
In order to issue an IHA for an activity, Section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104 (a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present in the
planned action area. Effective reporting is critical both to compliance
as well as ensuring that the most value is obtained from the required
monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) Action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and
Mitigation and monitoring effectiveness.
Monitoring Measures
As described above, visual monitoring must be performed by
qualified and NMFS-approved PSOs. Mayflower must use independent,
dedicated, trained PSOs, meaning that the PSOs must be employed by a
third-party observer provider, must have no tasks other than to conduct
observational effort, collect data, and communicate with and instruct
relevant vessel crew with regard to the presence of marine mammals and
mitigation requirements (including brief alerts regarding maritime
hazards), and must have successfully completed an approved PSO training
course appropriate for their designated task. Mayflower must provide
resumes of all proposed PSOs (including alternates) to NMFS for review
and approval prior to the start of survey operations.
During survey operations (e.g., any day on which use of an HRG
source is planned to occur), a minimum of one PSO must be on duty and
conducting visual observations at all times on all active survey
vessels during daylight hours (i.e., from 30 minutes prior to sunrise
through 30 minutes following sunset) and nighttime ramp-ups of HRG
equipment. Visual monitoring must begin no less than 30 minutes prior
to initiation of HRG survey equipment and
[[Page 45593]]
must continue until one hour after use of the acoustic source ceases or
until 30 minutes past sunset. PSOs must coordinate to ensure 360[deg]
visual coverage around the vessel from the most appropriate observation
posts, and must conduct visual observations using binoculars and the
naked eye while free from distractions and in a consistent, systematic,
and diligent manner. PSOs may be on watch for a maximum of four
consecutive hours followed by a break of at least two hours between
watches and may conduct a maximum of 12 hours of observation per 24-
hour period. In cases where multiple vessels are surveying
concurrently, any observations of marine mammals must be communicated
to PSOs on all survey vessels.
PSOs must be equipped with binoculars and have the ability to
estimate distances to marine mammals located in proximity to the vessel
and/or exclusion zone using range finders. Reticulated binoculars will
also be available to PSOs for use as appropriate based on conditions
and visibility to support the monitoring of marine mammals. Position
data must be recorded using hand-held or vessel GPS units for each
sighting. Observations must take place from the highest available
vantage point on the survey vessel. General 360-degree scanning must
occur during the monitoring periods, and target scanning by the PSO
must occur when alerted of a marine mammal presence.
During good conditions (e.g., daylight hours; Beaufort sea state
(BSS) 3 or less), to the maximum extent practicable, PSOs must conduct
observations when the acoustic source is not operating for comparison
of sighting rates and behavior with and without use of the acoustic
source and between acquisition periods. Any observations of marine
mammals by crew members aboard any vessel associated with the survey
must be relayed to the PSO team.
Data on all PSO observations must be recorded based on standard PSO
collection requirements. This includes dates, times, and locations of
survey operations; dates and times of observations, location and
weather; details of marine mammal sightings (e.g., species, numbers,
behavior); and details of any observed marine mammal take that occurs
(e.g., noted behavioral disturbances).
Reporting Measures
Within 90 days after completion of survey activities, a final
technical report must be provided to NMFS that fully documents the
methods and monitoring protocols, summarizes the data recorded during
monitoring, summarizes the number of marine mammals estimated to have
been taken during survey activities (by species, when known),
summarizes the mitigation actions taken during surveys (including what
type of mitigation and the species and number of animals that prompted
the mitigation action, when known), and provides an interpretation of
the results and effectiveness of all mitigation and monitoring. Any
recommendations made by NMFS must be addressed in the final report
prior to acceptance by NMFS.
In addition to the final technical report, Mayflower must provide
the reports described below as necessary during survey activities. In
the unanticipated event that Mayflower's activities lead to an injury
(Level A harassment) of a marine mammal, Mayflower must immediately
cease the specified activities and report the incident to the NMFS
Office of Protected Resources Permits and Conservation Division and the
NMFS Northeast Regional Stranding Coordinator. 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 must not resume until NMFS is able to review the
circumstances of the event. NMFS will work with Mayflower to minimize
reoccurrence of such an event in the future. Mayflower must not resume
activities until notified by NMFS.
In the event that Mayflower personnel discover an injured or dead
marine mammal, Mayflower must report the incident to the OPR Permits
and Conservation Division and the NMFS Northeast Regional Stranding
Coordinator as soon as feasible. The report must include the following
information:
Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
Species identification (if known) or description of the
animal(s) involved;
Condition of the animal(s) (including carcass condition if
the animal is dead);
Observed behaviors of the animal(s), if alive;
If available, photographs or video footage of the
animal(s); and
General circumstances under which the animal was
discovered.
In the unanticipated event of a ship strike of a marine mammal by
any vessel involved in the activities covered by the IHA, Mayflower
must report the incident to the NMFS OPR Permits and Conservation
Division and the NMFS Northeast Regional Stranding Coordinator as soon
as feasible. The report must include the following information:
Time, date, and location (latitude/longitude) of the
incident;
Species identification (if known) or description of the
animal(s) involved;
Vessel's speed during and leading up to the incident;
Vessel's course/heading and what operations were being
conducted (if applicable);
Status of all sound sources in use;
Description of avoidance measures/requirements that were
in place at the time of the strike and what additional measures were
taken, if any, to avoid strike;
Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility) immediately preceding the
strike;
Estimated size and length of animal that was struck;
Description of the behavior of the marine mammal
immediately preceding and following the strike;
If available, description of the presence and behavior of
any other marine mammals immediately preceding the strike;
Estimated fate of the animal (e.g., dead, injured but
alive, injured and moving, blood or tissue observed in the water,
status unknown, disappeared); and
To the extent practicable, photographs or video footage of
the animal(s).
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival
[[Page 45594]]
(50 CFR 216.103). A negligible impact finding is based on the lack of
likely adverse effects on annual rates of recruitment or survival
(i.e., population-level effects). An estimate of the number of takes
alone is not enough information on which to base an impact
determination. In addition to considering estimates of the number of
marine mammals that might be ``taken'' through harassment, NMFS
considers other factors, such as the likely nature of any responses
(e.g., intensity, duration), the context of any responses (e.g.,
critical reproductive time or location, migration), as well as effects
on habitat, and the likely effectiveness of the mitigation. We also
assess the number, intensity, and context of estimated takes by
evaluating this information relative to population status. Consistent
with the 1989 preamble for NMFS's implementing regulations (54 FR
40338; September 29, 1989), the impacts from other past and ongoing
anthropogenic activities are incorporated into this analysis via their
impacts on the environmental baseline (e.g., as reflected in the
regulatory status of the species, population size and growth rate where
known, ongoing sources of human-caused mortality, or ambient noise
levels).
To avoid repetition, our analysis applies to all the species listed
in Table 7, given that NMFS expects the anticipated effects of the
planned survey to be similar in nature. NMFS does not anticipate that
serious injury or mortality would result from HRG surveys, even in the
absence of mitigation, and no serious injury or mortality is
authorized. As discussed in the Potential Effects section of the notice
of proposed IHA (85 FR 31856; May 27, 2020), non-auditory physical
effects and vessel strike are not expected to occur. We expect that
potential takes would be in the form of short-term Level B behavioral
harassment in the form of temporary avoidance of the area or decreased
foraging (if such activity were occurring), reactions that are
considered to be of low severity and with no lasting biological
consequences (e.g., Southall et al., 2007). As described above, Level A
harassment is not expected to result given the nature of the
operations, the anticipated size of the Level A harassment zones, the
density of marine mammals in the area, and the required shutdown zones.
Effects on individuals that are taken by Level B harassment, on the
basis of reports in the literature as well as monitoring from other
similar activities, will likely be limited to reactions such as
increased swimming speeds, increased surfacing time, or decreased
foraging (if such activity were occurring). Most likely, individuals
will simply move away from the sound source and temporarily avoid the
area where the survey is occurring. We expect that any avoidance of the
survey area by marine mammals would be temporary in nature and that any
marine mammals that avoid the survey area during the survey activities
would not be permanently displaced. Even repeated Level B harassment of
some small subset of an overall stock is unlikely to result in any
significant realized decrease in viability for the affected
individuals, and thus would not result in any adverse impact to the
stock as a whole.
Regarding impacts to marine mammal habitat, prey species are
mobile, and are broadly distributed throughout the Project Area and the
footprint of the activity is small; therefore, marine mammals that may
be temporarily displaced during survey activities are expected to be
able to resume foraging once they have moved away from areas with
disturbing levels of underwater noise. Because of the availability of
similar habitat and resources in the surrounding area the impacts to
marine mammals and the food sources that they utilize are not expected
to cause significant or long-term consequences for individual marine
mammals or their populations. The HRG survey equipment itself will not
result in physical habitat disturbance. Avoidance of the area around
the HRG survey activities by marine mammal prey species is possible.
However, any avoidance by prey species would be expected to be short
term and temporary.
ESA-listed species for which takes are authorized are North
Atlantic right, fin, sei, and sperm whales, and these effects are
anticipated to be limited to lower level behavioral effects. The
planned survey is not anticipated to affect the fitness or reproductive
success of individual animals. Since impacts to individual survivorship
and fecundity are unlikely, the planned survey is not expected to
result in population-level effects for any ESA-listed species or alter
current population trends of any ESA-listed species.
The status of the North Atlantic right whale population is of
heightened concern and, therefore, merits additional analysis. NMFS has
rigorously assessed potential impacts to right whales from this survey.
We have established a 500-m shutdown zone for right whales which is
precautionary considering the Level B harassment isopleth for the
largest source utilized (i.e. GeoMarine Geo-Source 400 tip sparker) is
estimated to be 141 m.
The Project Area encompasses or is in close proximity to feeding
biologically important areas (BIAs) for right whales (February-April),
humpback whales (March-December), fin whales (March-October), and sei
whales (May-November) as well as a migratory BIA for right whales
(March-April and November-December). Most of these feeding BIAs are
extensive and sufficiently large (705 km\2\ and 3,149 km\2\ for right
whales; 47,701 km\2\ for humpback whales; 2,933 km\2\ for fin whales;
and 56,609 km\2\ for sei whales), and the acoustic footprint of the
planned survey is sufficiently small, that feeding opportunities for
these whales would not be reduced appreciably. Any whales temporarily
displaced from the Project Area would be expected to have sufficient
remaining feeding habitat available to them, and would not be prevented
from feeding in other areas within the biologically important feeding
habitat. In addition, any displacement of whales from the BIA or
interruption of foraging bouts would be expected to be temporary in
nature. Therefore, we do not expect impacts to whales within feeding
BIAs to effect the fitness of any large whales.
A migratory BIA for North Atlantic right whales (effective March-
April and November-December) extends from Massachusetts to Florida
(LaBrecque, et al., 2015). Off the south coast of Massachusetts and
Rhode Island, this BIA extends from the coast to beyond the shelf
break. The fact that the spatial acoustic footprint of the planned
survey is very small relative to the spatial extent of the available
migratory habitat means that right whale migration is not expected to
be impacted by the p survey. Required vessel strike avoidance measures
will also decrease risk of ship strike during migration. NMFS is
expanding the standard avoidance measures by requiring that all
vessels, regardless of size, adhere to a 10 knot speed limit in any
established DMAs. Additionally, limited take by Level B harassment of
North Atlantic right whales has been authorized as HRG survey
operations are required to shut down at 500 m to minimize the potential
for behavioral harassment of this species.
There are several active unusual mortality events (UMEs) occurring
in the vicinity of Mayflower's planned surveys. Elevated humpback whale
mortalities have occurred along the Atlantic coast from Maine through
Florida since January 2016. Of the cases examined, approximately half
had evidence of human interaction (ship
[[Page 45595]]
strike or entanglement). The UME does not yet provide cause for concern
regarding population-level impacts. Despite the UME, the relevant
population of humpback whales (the West Indies breeding population, or
distinct population segment (DPS)) remains stable. Beginning in January
2017, elevated minke whale strandings have occurred along the Atlantic
coast from Maine through South Carolina, with highest numbers in
Massachusetts, Maine, and New York. This event does not provide cause
for concern regarding population level impacts, as the likely
population abundance is greater than 20,000 whales. Elevated North
Atlantic right whale mortalities began in June 2017, primarily in
Canada. Overall, preliminary findings support human interactions,
specifically vessel strikes or rope entanglements, as the cause of
death for the majority of the right whales. Elevated numbers of harbor
seal and gray seal mortalities were first observed in July 2018 and
have occurred across Maine, New Hampshire and Massachusetts. Based on
tests conducted so far, the main pathogen found in the seals is phocine
distemper virus although additional testing to identify other factors
that may be involved in this UME are underway. The UME does not yet
provide cause for concern regarding population-level impacts to any of
these stocks. For harbor seals, the population abundance is over 75,000
and annual M/SI (345) is well below PBR (2,006) (Hayes et al., 2018).
For gray seals, the population abundance in the United States is over
27,000, with an estimated abundance including seals in Canada of
approximately 505,000, and abundance is likely increasing in the U.S.
Atlantic Exclusive Economic Zone as well as in Canada (Hayes et al.,
2018).
Direct physical interactions (ship strikes and entanglements)
appear to be responsible for many of the UME humpback and right whale
mortalities recorded. The planned HRG survey will require ship strike
avoidance measures which would minimize the risk of ship strikes while
fishing gear and in-water lines will not be employed as part of the
survey. Furthermore, the planned activities are not expected to promote
the transmission of infectious disease among marine mammals. The survey
is not expected to result in the deaths of any marine mammals or
combine with the effects of the ongoing UMEs to result in any
additional impacts not analyzed here. Accordingly, Mayflower did not
request, and NMFS has not authorized, take of marine mammals by serious
injury, or mortality.
The required mitigation measures are expected to reduce the number
and/or severity of takes by giving animals the opportunity to move away
from the sound source before HRG survey equipment reaches full energy
and preventing animals from being exposed to sound levels that have the
potential to cause injury (Level A harassment) and more severe Level B
harassment during HRG survey activities, even in the biologically
important areas described above. No Level A harassment is anticipated
or authorized.
NMFS expects that takes would be in the form of short-term Level B
behavioral harassment in the form of brief startling reaction and/or
temporary vacating of the area, or decreased foraging (if such activity
were occurring)--reactions that (at the scale and intensity anticipated
here) are considered to be of low severity and with no lasting
biological consequences. Since both the source and the marine mammals
are mobile, only a smaller area would be ensonified by sound levels
that could result in take for only a short period. Additionally,
required mitigation measures would reduce exposure to sound that could
result in more severe behavioral harassment.
In summary and as described above, the following factors primarily
support our determination that the impacts resulting from this activity
are not expected to adversely affect the species or stock through
effects on annual rates of recruitment or survival:
No mortality or serious injury is anticipated or
authorized;
No Level A harassment (PTS) is anticipated;
Any foraging interruptions are expected to be short term
and unlikely to be cause significantly impacts;
Impacts on marine mammal habitat and species that serve as
prey species for marine mammals are expected to be minimal and the
alternate areas of similar habitat value for marine mammals are readily
available;
Take is anticipated to be primarily Level B behavioral
harassment consisting of brief startling reactions and/or temporary
avoidance of the Project Area;
Survey activities would occur in such a comparatively
small portion of the biologically important area for north Atlantic
right whale migration, that any avoidance of the Project Area due to
activities would not affect migration. In addition, mitigation measures
to shut down at 500 m to minimize potential for Level B behavioral
harassment would limit both the number and severity of take of the
species;
Similarly, due to the relatively small footprint of the
survey activities in relation to the size of a biologically important
areas for right, humpback, fin, and sei whales foraging, the survey
activities would not affect foraging success of this species; and
Required mitigation measures, including visual monitoring
and shutdowns, are expected to minimize the intensity of potential
impacts to 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 required monitoring and
mitigation measures, NMFS finds that the total marine mammal take from
the Mayflower's planned HRG surveys will have a negligible impact on
all affected marine mammal species or stocks.
Small Numbers
As noted above, only small numbers of incidental take may be
authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. Additionally, other qualitative
factors may be considered in the analysis, such as the temporal or
spatial scale of the activities.
The numbers of marine mammals that we authorize to be taken, for
all species and stocks, would be considered small relative to the
relevant stocks or populations (less than one third of the best
available population abundance for all species and stocks) (see Table
7). In fact, the total amount of taking authorized for all species is 1
percent or less for all affected stocks.
Based on the analysis contained herein of the planned activity
(including the required mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS finds that small numbers of
marine mammals will be taken relative to the population size of the
affected species or stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or
[[Page 45596]]
stocks would not have an unmitigable adverse impact on the availability
of such species or stocks for taking for subsistence purposes.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action (i.e., the issuance of an
incidental harassment authorization) with respect to potential impacts
on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (incidental harassment authorizations with
no anticipated serious injury or mortality) of the Companion Manual for
NOAA Administrative Order 216-6A, which do not individually or
cumulatively have the potential for significant impacts on the quality
of the human environment and for which we have not identified any
extraordinary circumstances that would preclude this categorical
exclusion. Accordingly, NMFS has determined that the issuance of the
IHA qualifies to be categorically excluded from further NEPA review.
Endangered Species Act (ESA)
Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.) requires that each Federal agency insure that any action
it authorizes, funds, or carries out is not likely to jeopardize the
continued existence of any endangered or threatened species or result
in the destruction or adverse modification of designated critical
habitat. To ensure ESA compliance for the issuance of IHAs, NMFS
consults internally, in this case with the NMFS Greater Atlantic
Regional Fisheries Office (GARFO), whenever we propose to authorize
take for endangered or threatened species.
The NMFS Office of Protected Resources is authorizing the
incidental take of four species of marine mammals which are listed
under the ESA: Fin, sei, sperm, and North Atlantic right whales. We
requested initiation of consultation under section 7 of the ESA with
NMFS GARFO on May 6, 2020, for the issuance of this IHA. On July 22,
2020, NMFS GARFO determined our issuance of the IHA to Mayflower was
not likely to adversely affect the North Atlantic right, fin, sei, and
sperm whale or the critical habitat of any ESA-listed species or result
in the take of any marine mammals in violation of the ESA.
Authorization
NMFS has issued an IHA to Mayflower for the potential harassment of
small numbers of 14 marine mammal species incidental to the conducting
marine site characterization surveys offshore of Massachusetts in the
area of the Commercial Lease of Submerged Lands for Renewable Energy
Development on the Outer Continental Shelf (OCS-A 0521) and along a
potential submarine cable route to landfall at Falmouth, Massachusetts,
provided the previously mentioned mitigation, monitoring and reporting
requirements are followed.
Dated: July 23, 2020.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2020-16357 Filed 7-28-20; 8:45 am]
BILLING CODE 3510-22-P