[Federal Register Volume 61, Number 115 (Thursday, June 13, 1996)]
[Notices]
[Pages 30037-30040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15060]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[I.D. 051496A]
Small Takes of Marine Mammals Incidental to Specified Activities;
Haro Strait Oceanographic Experiment
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of issuance of an incidental harassment authorization.
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SUMMARY: In accordance with provisions of the Marine Mammal Protection
Act (MMPA) as amended, notification is hereby given that an Incidental
Harassment Authorization to take small numbers of marine mammals by
harassment incidental to conducting a physical oceanography experiment
in Haro Strait, Puget Sound, WA has been issued jointly to Prof. Henrik
Schmidt of the Department of Ocean Engineering, and Mr. Patrick Miller
of the Department of Biology, Massachusetts Institute of Technology
(MIT), Cambridge, MA.
EFFECTIVE DATE: This authorization is effective from June 10, 1996, to
July 5, 1996.
ADDRESSES: The application, authorization, and environmental assessment
(EA) are available from the following office: Marine Mammal Division,
Office of Protected Resources, NMFS, 1315 East-West Highway, Silver
Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Kenneth Hollingshead, Office of
Protected Resources at 301-713-2055, or Brent Norberg, Northwest
Regional Office at 206-526-6733.
SUPPLEMENTARY INFORMATION:
Background
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs
NMFS to allow, upon request, the incidental, but not intentional,
taking 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 regulations are
issued.
Permission may be granted if NMFS finds that the taking will have a
negligible impact on the species or stock(s), will not have an
unmitigable adverse impact on the availability of the species or
stock(s) for subsistence uses, and the permissible methods of taking
and requirements pertaining to the monitoring and reporting of such
taking are set forth.
The MMPA Amendments of 1994 established an expedited process by
which citizens of the United States can apply for an authorization to
incidentally take small numbers of marine mammals by harassment. The
MMPA defines ``harassment'' as:
* * *any act of pursuit, torment, or annoyance which (a) has
the potential to injure a marine mammal or marine mammal stock in
the wild; or (b) 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.
New subsection 101(a)(5)(D) establishes a 45-day time limit for
NMFS review of an application followed by a 30-day public notice and
comment period on any proposed authorizations for the incidental
harassment of small numbers of marine mammals. Within 45 days of the
close of the comment period, NMFS must either issue or deny issuance of
the authorization.
Summary of Request
On January 31, 1996, NMFS received a complete application from MIT
requesting an authorization for the harassment of small numbers of
marine mammals incidental to conducting a physical oceanography
experiment that uses sound to study the flow field and mixing processes
in Haro Strait, in the San Juan Island Archipelago (Puget Sound) WA,
just south of Stuart Island (48o39'00'' N, 123o11'00'' W).
The experiment, which will be from June 10 through July 5, 1996,
for a total of 26 days, is scheduled to take advantage of the extreme
ebb tides that
[[Page 30038]]
occur only twice a year. The species of marine mammals requested for
incidental harassment are as follows: Harbor porpoise (Phocoena
phocoena), killer whale (Orcinus orca), Dall's porpoise (Phocoenoides
dalli), and harbor seal (Phoca vitulina). Additional species that are
rare or only occasionally seen in the area at the time of the
experiment may include: Minke whale, elephant seal, Pacific white-sided
dolphin, northern sea lion, California sea lion, humpback whale, and
gray whale. General information on these species can be found in Barlow
et al. 1995 (NOAA Tech. Mem. NMFS-SWFSC-219). More specific information
on marine mammals species in Puget Sound waters, and a description of
the physical oceanography experiment can be found in the application
and in an EA, which are available upon request (see ADDRESSES).
A notice of receipt of the application and the proposed
authorization was published on March 28, 1996 (61 FR 13847) and a 30-
day public comment period was provided on the application and proposed
authorization. Additional information on the mitigation and monitoring
program was provided on April 9, 1996 (61 FR 15785). During the comment
period and subsequent to its closure, several letters were received.
Other than information necessary to respond to comments, additional
information on the activity and authorization request can be found in
the above-mentioned Federal Register documents and does not need to be
repeated here.
Comments and Responses
Authorization Concerns
Comment: Do not permit this experiment.
Response: NMFS would like to make clear that it does not authorize
the project, only the incidental harassment of marine mammals occurring
as a result of this project. Not issuing a permit does not necessarily
terminate the project.
Comment: Because there are too many unknowns as to the impacts on
their sonar, hearing and feeding habits, the research permit should be
denied.
Response: The requested authorization is for an exemption to the
MMPA's prohibition on taking for the harassment of small numbers of
marine mammals incidental to conducting a specified activity within a
specified geographic region. This is an authorization issued under
section 101(a)(5)(D) of the MMPA, not for a scientific research permit
under section 104 of the MMPA. To prohibit incidental takings that
occur while conducting activities otherwise allowed by law would be to
deny an exemption that is authorized by the MMPA provided the best
scientific information and evidence available indicates that the take
is incidental, only small numbers of marine mammals are taken, and the
impact on marine mammals and their habitat is negligible.
Comment: The purpose of the project would be to negatively impact
marine life, specifically and intentionally to cause harassment or
harm; sounds are being broadcast to determine if it will affect marine
mammals; and sounds are being transmitted to see if they can withstand
the noise.
Response: As stated in the proposed authorization, the project is a
physical oceanography project that uses various sound sources to study
the flow field and mixing processes in Haro Strait, Puget Sound, WA. It
is not a research project designed to study the effects of sound on
marine mammals. However, an extensive mitigation and monitoring
program, as required under section 101(a)(5)(D) of the MMPA, has been
designed as part of this project to assess impacts of sounds that may
potentially harass marine mammals and to ensure that these impacts are
the lowest level practicable. Therefore, in addition to providing
information on the physical oceanographic processes in Haro Strait, the
experiment will also provide information and data on the effects of
high frequency sounds on marine mammals.
Comment: Sounds would cause harm to a variety of ocean mammals and
other sea creatures.
Response: The proposed authorization analyzed potential impacts and
the mitigation measures proposed to reduce these potential impacts on
marine mammals to the lowest level practicable. These impacts are also
analyzed in the EA prepared for this authorization. Based upon the best
scientific information available, NMFS has determined that this
physical oceanography project would have only a negligible impact on
the stocks of marine mammals in the Haro Straits area. While
statutorily authorized under the MMPA, the potential to cause Level A
harassment (injury) to marine mammals is considered unlikely, provided
planned mitigation and monitoring measures that have been proposed by
the applicant are incorporated.
Comment: Sound may damage the hearing of marine mammals.
Response: The proposed authorization provided detailed analyses on
the potential for auditory damage to marine mammals from the various
sound sources that will be used by this experiment. Calculations
indicate that marine mammals would need to be closer than .25 m of the
long-base-line transponders in order to potentially receive hearing
damage; for other sources, animals would need to be even closer.
However, the applicant presumes that the near-field effects might cause
the distance to be slightly greater (but less than 1 m), than
calculated by spherical spreading alone. As a result, NMFS and the
applicant believe that there is virtually no possibility of inflicting
permanent hearing damage on any marine mammals.
Comment: Marine mammals (especially killer whales) already endure
an unacceptable amount of noise pollution and harassment due to depth
finders, boat/tanker traffic, and whale-watching expeditions. NMFS
should consider assessing whether sounds to be used in the proposed
experiment, combined with sounds from other sources, could have non-
negligible effects on marine mammals.
Response: NMFS notes that, even with various sources of
anthropogenic sources of noise in the marine environment, the southern
resident community of killer whales in Puget Sound has increased 40
percent since 1976. However, activities and the potential impact of
unregulated noise from these activities on marine mammals are of
concern to NMFS. The monitoring measures planned in conjunction with
this short-term oceanography project may provide some insight into
behavioral responses by marine mammals to high frequency sounds.
Habitat Exclusion Concerns
Comment: The marine mammals may be negatively affected to the point
where they vacate the area of the experiment. This will have a very
negative effect on the animals, depriving them of their natural and
normal foraging area. Also, by forcing marine mammals from their
habitats would result in competition with other species over scarce
food.
Response: The only marine mammal species that might be affected by
habitat exclusion are the harbor porpoise and killer whale. As a
result, a monitoring program will be implemented that will involve
suspension of the experiment, recovery of species abundance in the area
and termination if habitat exclusion continues. Please refer to the
earlier Federal Register notices (61 FR 13847, March 28, 1996 and 61 FR
15785, April 9, 1996) for detailed discussion on the mitigation
measures planned to address this concern.
[[Page 30039]]
Comment: The sound would impact an area far wider than suggested,
given the rock faces, steep pitches and water mass interactions in Haro
Straits.
Response: The applicant has provided detailed analyses of the
attenuation of these sources, using spherical and cylindrical models
and factoring in propagation loss. Without providing scientific
information or references to support the comment, NMFS is unable to
analyze the veracity of this comment.
Comment: If this experiment should somehow affect the orcas in that
they decide to move out of the area for a number of days the whale
watching industry would be economically affected. The marine mammals
are the natural resource that the whalewatching industry relies upon to
exist.
Response: Since NMFS does not authorize the project, only the
harassment of marine mammals incidental to the activity, the economic
impact on the commercial whale watch industry is not within the scope
for consideration under the MMPA. However, as noted in the application
and in the previous notices, the experiment will contain mitigation and
monitoring measures that will avoid to the extent possible habitat
exclusion by harbor porpoise and killer whales.
Comment: During June and July, resident orcas have superpods in
that area with the intent of mating. If this experiment should thwart
the superpod mating, the results will not be clear to us now but could
affect the future of the resident pods.
Response: According to the information available to NMFS, there are
approximately 90 resident killer whales in the southern community and
45 transient animals. Based upon Olesiuk et al. (1990) and Bain (pers.
comm. to B. Norberg, May 1996), there appears to be a bimodal calving
period for killer whales which would indicate that successful breeding
is mostly taking place from April to mid-June and again in Sept/Oct.
This bi-modal period, the short-term of the research project (June 10-
July 5) and the mitigation measures imposed to protect killer whales,
indicates that this comment does not appear to warrant additional
mitigation measures be imposed on the experiment.
Comment: The experiment should be done in winter months (so the
whalewatching industry would be unaffected).
Response: As discussed in the proposed authorization, the
experiment, which will be from June 10 through July 5, 1996, is
scheduled to take advantage of the extreme ebb tides that occur only
twice a year. This time of the year would also benefit from spring
freshwater flows. The winter alternative is unacceptable to the
applicant and NMFS, because weather conditions at that time of the year
would make operations extremely difficult and would make marine mammal
monitoring virtually impossible.
Monitoring Concerns
Comment: There would not be any independent monitoring. The
researchers would be basically policing themselves, because the person
in charge of monitoring impacts is also employed by Woods Hole.
Response: There is no requirement under the MMPA that monitoring be
independent of the activity. As noted in the proposed authorization,
the applicant is a faculty member of the Department of Ocean
Engineering, MIT, while the person conducting the monitoring is in the
Department of Biology, MIT. Because the monitoring program under this
activity is more complex than most, NMFS has determined that both
participants should be covered under the authorization. In addition to
a monitoring team, the applicants have established an advisory board
for monitoring this activity's impacts on marine mammals. These
advisors are scientists operating in Haro Strait and are from the
Friday Harbor Whale Museum, the University of Victoria, the University
of Washington, and the Canadian Department of Fisheries and Oceans,
none are from MIT. The applicants have agreed to follow the
recommendations of the scientific oversight committee in scheduling
activities.
Comment: The sound source must be monitored at all times during
these tests with assurances that it will be halted if any marine
mammals are observed having behavioral changes or injuries.
Response: NMFS agrees. Please refer to the notice of proposed
authorization (61 FR 13847, March 28, 1996) where this issue was
addressed in detail.
National Environmental Policy Act Concerns
Comment: An Environmental Impact Statement must be prepared prior
to authorization.
Response: In the notice of proposed authorization (61 FR 13847,
March 28, 1996), NMFS announced that it had conducted a review of the
potential impacts on marine mammals from the issuance of an incidental
harassment authorization to MIT and determined that there would be no
more than a short-term, negligible impact on marine mammals from the
issuance of the harassment authorization. For that reason, NMFS
determined that issuance of an incidental harassment authorization to
MIT was categorically excluded (CE) (as defined in 40 CFR 1508.4) from
the preparation of either an environmental impact statement or an EA
under the National Environmental Policy Act and section 6.02.c.3(i) of
NOAA Administrative Order 216-6 for Environmental Review Procedures
(published August 6, 1991). However, as a result of the comments
received on this application, NMFS has reviewed the conditions under
which it considered the incidental harassment authorization to MIT to
be a CE and has determined that, because of the lack of public
perception on the effects of high frequency noise on marine mammals, an
EA should be prepared to address these concerns. Based upon that EA,
the Assistant Administrator has determined that issuance of this
authorization will not have a significant impact on the human
environment. As a result of this determination, an environmental impact
statement is not required. The EA is available upon request (see
ADDRESSES).
Conclusions
Based upon the information provided in this notice, the two notices
of proposed authorization, and in an EA on this matter,
NMFS has determined that the short-term impact on marine mammals
from conducting a physical oceanography experiment between June 10 and
July 5, 1996, using high-frequency sound to study the flow field and
mixing processes in Haro Strait, Puget Sound, WA, will result in a
negligible impact on marine mammals. This impact is expected to be
limited to a short-term modification in behavior by certain species of
marine mammals. While behavioral modifications may be made by these
species to avoid noise, this behavioral change is expected to have only
a negligible impact on the animals. However, the mitigation and
monitoring measures that are part of the authorization will provide
additional protection to ensure that the project's impact on marine
mammals is at the lowest level practicable. NMFS has also determined
that this experiment will not have an unmitigable adverse impact on the
availability of this stock for subsistence uses.
Since NMFS is assured that the taking will not result in more than
the incidental harassment (as defined by the MMPA Amendments of 1994)
of small numbers of certain species of marine mammals, would have only
a negligible impact on these stocks, will not have an unmitigable
adverse impact on the
[[Page 30040]]
availability of these stocks for subsistence uses, and would result in
the least practicable impact on the stocks, NMFS has determined that
the requirements of section 101(a)(5)(D) have been met and the
authorization can be issued.
Authorization
For the above reasons, NMFS has issued an incidental harassment
authorization for approximately 30 days between June 10 and July 5,
1996 for the above described experiment provided the above mentioned
mitigation, monitoring and reporting requirements are undertaken.
Dated: June 7, 1996.
Patricia A. Montanio,
Deputy Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 96-15060 Filed 6-12-96; 8:45 am]
BILLING CODE 3510-22-F
