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Small Takes of Marine Mammals Incidental to Specified Activities; Oceanographic Surveys off the Northern Yucatan Peninsula in the Gulf of Mexico
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[Federal Register: March 29, 2004 (Volume 69, Number 60)] [Notices] [Page 16233-16240] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr29mr04-34] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [I.D. 111403B] Small Takes of Marine Mammals Incidental to Specified Activities; Oceanographic Surveys off the Northern Yucatan Peninsula in the Gulf of Mexico AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of issuance of an incidental take authorization. ----------------------------------------------------------------------- SUMMARY: In accordance with provisions of the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to take marine mammals by harassment incidental to conducting oceanographic surveys off the northern Yucatan Peninsula in the Gulf of Mexico to Lamont- Doherty Earth Observatory (LDEO). DATES: Effective from February 27, 2004, through February 26, 2005. ADDRESSES: A copy of the IHA and the application are available by writing to Mr. P. Michael Payne, Chief, Marine Mammal Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910-3225, or by telephoning the contact listed here. A copy of the application containing a list of the [[Page 16234]] references used in this document may be obtained by writing to this address or by telephoning the contact listed here and is also available at: http://www.nmfs.noaa.gov/prot_res/PR2/Small_Take/ smalltake_info.htm#applicationsFOR FURTHER INFORMATION CONTACT: Kimberly Skrupky, Office of Protected Resources, NMFS, (301) 713-2322, ext 163. SUPPLEMENTARY INFORMATION: Background Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (Secretary) 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 either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review and comment. Permission may 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 subsistence uses and that the permissible methods of taking and requirements pertaining to the monitoring and reporting of such takings are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ''...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.'' Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Under section 3(18)(A), 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; 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. The term ``Level A harassment'' means harassment described in subparagraph (A)(i). The term ``Level B harassment'' means harassment described in subparagraph (A)(ii). Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny issuance of the authorization. Summary of Request On October 8, 2003, NMFS received an application from LDEO for the taking, by harassment, of several species of marine mammals incidental to conducting a seismic survey program. As presently scheduled, a seismic survey will be conducted in the Gulf of Mexico off the northern Yucatan Peninsula. The Gulf of Mexico research cruise will be off the coast of the northern Yucatan Peninsula in an area extending between 21[deg] to 22.5[deg] N and 88[deg] to 91[deg] W. The operations will partly take place in the Exclusive Economic Zone (EEZ) of Mexico. The purpose of the project is to study the Chicxulub Crater. The Chicxulub Crater was formed 65 million years ago when a massive meteor crashed into the Yucatan Peninsula of Mexico leaving behind the crater with a diameter of about 195 km (121 mi). The well-known massive extinction event at the Cretaceous-Tertiary (K-T) boundary appears to have been caused, at least in part, by this impact. It is also the only large terrestrial impact crater with a well preserved topographic peak ring. The Chicxulub Crater is uniquely suited for a seismic investigation into the deformation mechanisms of large diameter impacts in general and the physical parameters of the K-T impact in particular. The goals are to: (1) determine the direction of approach and angle of the Chicxulub impact through the collaborative seismic and modeling effort, (2) map the deformation recorded in the upper crust near the crater center that may yield important information about the kinematics of large bolide impacts, (3) image the peak ring and other morphologic features in the northwest quadrant of the crater to further understand the physical parameters of the Chicxulub impact structure, and (4) model the 3-D collapse of an asymmetric transient crater to help better understand the mechanics of large impact craters and to quantify the environmental effects of the K-T impact. Description of the Activity Information of the work proposed for 2004 is contained in the proposed authorization notice (68 FR 70000, December 16, 2003), and in the application and in the Final Yucatan Environmental Assessment for oceanographic surveys in the Gulf of Mexico off the northern Yucatan Peninsula (LDEO, 2003) which are available (see ADDRESSES). In spring 2003, LDEO conducted an acoustic calibration study in the northern Gulf of Mexico. The purpose of the study was to calibrate LDEO's various seismic sources and determine the distances at which received sound levels diminish below levels that may result in take of marine mammals. NMFS received the results of this study on February 20, 2004. They are the first measurements of sound propagation in shallow water using this particular seismic source and are the best available science. The data indicate that the safety zone radius used for mitigation to prevent Level A harassment of marine mammals should be larger than the safety radius in the proposed IHA. The results of the study are available (See ADDRESSES). Changes from the Proposed IHA The calibration study data indicate that the 180 dB isopleth is at a distance of 3500 m (11483 ft) from the array, rather than the 900 m (2935 ft) estimated in the application and proposed IHA. This new data changes the take estimates for marine mammals. Refer to the Estimates of Take for the Northern Yucatan Peninsula Cruise in this Notice for the updated take estimates. In light of the new data, NMFS has imposed additional mitigation measures for this seismic survey. First, the safety radius will be 3500 m (11483 ft) rather than the proposed 1350 m (4429 ft) (which is 1.5 times the estimated 180 dB isopleth). Second, in addition to visual observers, LDEO will use passive acoustic monitoring (PAM) whenever the vessel is operating in waters deep enough for the PAM hydrophone array to be towed. Third, LDEO will increase the number of visual observers from two to at least four, and several acousticians will be available to monitor the PAM system. Finally, LDEO will use Big Eyes binoculars to enable observers to detect marine mammals at greater distances from the vessel. See Mitigation for more information. NMFS has also determined that takes of pinnipeds are not likely to occur in the action area. Therefore, hooded seals are not included in this IHA. Comments and Responses A notice of receipt of the LDEO northern Yucatan application and proposed IHA was published in the [[Page 16235]] Federal Register on December 16, 2003 (68 FR 70000). During the 30-day comment period, comments were received from the Animal Welfare Institute, the Center for Biological Diversity (CBD), and an individual. In addition, NMFS received supplemental comments from CBD on February 26, 2004. Those comments were received well after the comment period closed and shortly before the subject seismic surveys were scheduled to begin. Therefore, NMFS did not consider them in issuing this IHA, except where they overlap with CBD's first set of comments. Comment 1: One commentor states that it is the job of the Office of Protected Resources to administer programs that deal with the protection, conservation, and recovery of species protected under the Endangered Species Act and they must pay attention to the fact that marine mammals are sentient beings. Response: NMFS affirms that marine mammals should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management. In that regard, the MMPA was amended in 1981 and 1994 to allow for the taking (by harassment, injury and mortality) of marine mammals by otherwise lawful activities provided that the total taking by the activity is not having more than a negligible impact on affected marine mammal stocks, and would not have an unmitigable adverse impact on the availability of those marine mammal stocks for subsistence uses. For the proposed activity, the requisite findings have been made, as explained in this document. Comment 2: The Animal Welfare Institute objects to the issuance of an Incidental Harassment Authorization for this project based on the precautionary principle. They feel that it is dangerous to experiment with sounds as loud as these in the open ocean. Response: As mentioned in the previous comment, the MMPA requires the Secretary to authorize the taking of marine mammals provided certain conditions are met. For this authorization, NMFS believes it has applied a precautionary approach that is consistent with the requirements of the MMPA and based on the best available science. That is, LDEO has implemented several mitigation measures that will minimize harassment takings to the lowest level practicable (as required by the MMPA). These mitigation measures include (1) establishment and monitoring of safety zones to prevent Level A harassment; (2) implementation of ramp-up to allow marine mammals sufficient time to leave the immediate vicinity of the seismic array before sounds become annoying or dangerous; (3) establishment of a 30-minute pre-ramp-up monitoring program; and (4) passive acoustic monitoring where practicable. The research being conducted is not an ``experiment'' but scientifically valid peer-reviewed research being undertaken to improve knowledge of geological history. Seismic arrays were developed to mitigate impacts to marine life by eliminating the use of large explosives used in earlier decades to explore for oil and conduct scientific research. Comment 3: CBD believes NMFS has not demonstrated that the LDEO project will take only small numbers of marine mammals. Response: NMFS believes that the small numbers requirement has been satisfied. The U.S. District Court for the Northern District of California held in NRDC v. Evans that NMFS' regulatory definition of ``small numbers'' improperly conflates it with the ``negligible impact'' definition. Even if that is the case, NMFS has made a separate determination that the numbers of takes of the affected marine mammal species will be small. The best estimate of takes indicates that 9.4 percent or less of the affected species or stocks will be harassed. Although the absolute numbers may arguably not be small, they are small relative to the population sizes. Comment 4: CBD states that NMFS does not adequately analyze the depths of water in which the surveys will take place and how the difference in depths affect the impacts to marine mammals. Response: The LDEO application describes how seismic sounds can be received in the ocean. Seismic sound received at any given point will arrive via a direct path, indirect paths that include reflection form the sea surface and bottom, and often indirect paths including segments through the bottom sediments. Sound propagating via indirect paths travel longer distances and often arrive later than sounds arriving via a direct path. These variations in travel time have the effect of lengthening the duration of the received pulse. Received levels of low-frequency underwater sounds diminish close to the surface because of pressure-release and interference phenomena that occur at and near the surface (Urick, 1983; Richardson et al. 1995). Paired measurements of received airgun sounds at depths of 3 m (9.8 ft) vs 9 m (29.5 ft) or 18 m (59 ft) have shown that received levels are typically several decibels lower at 3 m (Greene and Richardson, 1988). During a 2003 study in the northern Gulf of Mexico, LDEO obtained measurements of received sound levels as a function of distance from LDEO's airgun arrays. The report on those ``calibration measurements'' has been completed. The measurement indicate that received levels in deep water (3200 m) (10499 ft) diminish more rapidly with increasing distance, whereas levels in shallow water (30 m) (98 ft) diminish less rapidly. The 2003 calibration results show that the measured depth- specific 180 dB distance is 3500 m (11483 ft). The required mitigation measures have been modified to account for this. LDEO plans to obtain additional data on received levels of the sounds from the various LDEO airgun configurations during a follow-up calibration study in the northern Gulf of Mexico in April 2004. Plans for that study call for measurements in shallow, intermediate, and deep water. Comment 5: CBD states that there is no mention of the compounded impact of the 20-airgun array's seismic output along with the two other acoustical data acquisition systems, the sonar and sub-bottom profiler. CBD states that the proposed IHA Federal Register notice provides no estimate of take from the sonar and profiler individually or from all three sources collectively, and instead assumed that any marine mammals close enough to be affected by the multibeam sonar would already be affected by the airguns. Therefore, no additional allowance is included for animals that might be affected by the multibeam sonar. CBD comments that this explanation does not account for times when all three sources may not be operating simultaneously or provide any discussion of the enhanced impact of multiple acoustic sources when operating together. Response: As NMFS indicated in the FR notice of the proposed IHA, the multibeam sonar has an anticipated radius of influence less than that for the airgun array. It is further stated that marine mammals close enough to be affected by the multibeam sonar would already be affected by the airguns. Therefore, no additional allowance is included for animals that might be affected by the sonar. There is no enhanced impact of using the multibeam when operating it together with the airgun array. The sub-bottom profiler would not enhance impacts, since the radii of influence are smaller for the profiler than those of the airgun array. [[Page 16236]] It is true that there are no estimates of take for times when the multibeam sonar and/or sub-bottom profiler are operated without airguns. This is because the 160-dB and 180-dB isopleths of the sub- bottom profiler and multibeam are small. Durations of exposure and of behavioral responses to these sources would be brief, and any behavioral reactions would not rise to the level of take. Also, visual monitoring would be most effective at those shorter distances from the vessel, allowing for greater detection and avoidance of marine mammals in the vicinity. Comment 6: CBD states that NMFS' analysis of mitigation measures to ensure least practicable impact is flawed because its analysis of impacts is incomplete, for the following reasons. First, the safety radii have not been verified. Also, the only proposed marine mammal detection method is visual surveillance by daytime observers. Although bridge personnel will keep watch at night, nighttime detection rates of marine mammals are probably very low. There is no discussion of why nighttime operations are considered necessary, why experienced marine mammal observers will not be on duty during nighttime hours, how effective any observation efforts are expected to be, or why alternative means of ensuring that the required monitoring program is likely to detect most marine mammals in or near the safety zones are not identified and required. Also, NMFS has failed to mention or require any exclusion zones to avoid seismic operations in coastal areas and key habitat for feeding, mating, breeding, and migration. Response: NMFS believes that the required mitigation measures ensure the least practicable adverse impacts. The 180-dB isopleth modeling has been recently verified and NMFS' IHA has accordingly set the safety radius as 3500 m (11483 ft) from the arrays, within which sound levels greater than or equal to 180 dB re 1 microPa rms (the criteria for onset of Level A harassment for cetaceans) are predicted to be received. Nighttime operations are necessary due to cost considerations. The daily cost to the Federal Government to operate vessels such as Ewing and the Seaward Johnson is approximately $33,000 to $35,000/day (Ljunngren, pers. comm. May 28, 2003). If the vessels were prohibited from operating during nighttime, it is possible that each trip would require an additional three to five days, or up to $175,000 more, depending on average daylight at the time of work. NMFS agrees that the effectiveness of nighttime visual monitoring is limited. LDEO will now also incorporate passive acoustic monitoring whenever depth conditions allow. LDEO and the marine mammal observers have attended an orientation course for the use of the Lamont Seamap system onboard the Ewing. In addition to the observers, several acousticians from the science party will be able to monitor the passive acoustic system. Taking into consideration the additional costs of prohibiting nighttime operations and the likely impact of the activity (including all required mitigation and monitoring), NMFS has determined that the IHA's requirements ensure that the activity will have the least practicable impact on the affected species or stocks. Marine mammals will have sufficient notice of a vessel approaching with operating seismic airguns (at least 1 hour in advance), thereby giving them an opportunity to avoid the approaching array; if ramp-up is required after an extended power-down, two marine mammal observers will be required to monitor the safety radii using night vision devices for 30 minutes before ramp-up begins and verify that no marine mammals are in or approaching the safety radii; start-up may not begin unless the entire safety radii are visible; and ramp-up may occur at night only if one airgun with a sound pressure level of at least 180 dB has been maintained during interruption of seismic activity. Therefore it is virtually impossible that the 20-gun array will be ramped-up from a shut-down at night. In regards to exclusion zones, during the period of the survey, marine mammals will be dispersed throughout the proposed study area in the southern Gulf of Mexico. No concentrations of marine mammals or marine mammal prey species are known to occur in the study area at that time of year. The airgun operations will not result in any permanent impact on habitats used by marine mammals or their food sources. The use of the OBS receivers may have a temporary disturbance to sediments and benthic organisms, but the area that may be disturbed is a small fraction of marine mammal habitat and the habitat of their prey species. The airguns are used as the energy source for the seismic surveys because they do not kill fish. Injurious effects on fish would be limited to short distances. The ramp-ups will also give the fish an opportunity to move away from the sound source as the strength of the sound increases. Comment 7: CBD believes that in order for NMFS to comply with the National Environmental Policy Act (NEPA), it must demonstrate that it has fully analyzed the impacts of, alternatives to, and mitigation measures for the project prior to issuing an IHA for the LDEO project. NMFS must assess the cumulative impacts of the project in conjunction with other actions on the environment. Response: NMFS follows NEPA regulations and NOAA Administrative Order 216-6 (Environmental Review Procedures for Implementing the National Environmental Policy Act, May 20, 1999) before making a determination on whether it will adopt another federal agency's NEPA document, or prepare its own. Critical to this determination is the quality of another agency's NEPA document, whether it fully addresses the action proposed by NOAA Fisheries, and whether NOAA Fisheries' proposed action is significant as defined in 40 CFR 1508.27 and NAO 216-6, section 6.01. As noted in the proposed authorization notice (68 FR 60086; October 21, 2003), an EA was prepared by National Science Foundation (NSF) and released to the public by NOAA Fisheries. That EA contained a complete description of the proposed action and identified alternatives to that action; a description of the affected environment; an assessment of impacts, including unavoidable impacts, indirect impacts and cumulative impacts; and the mitigation measures to reduce impacts to the lowest level practicable. In accordance with NAO 216-6, NMFS has reviewed the information contained in the NSF EA and determined that it accurately and completely describes the proposed action alternative, reasonable additional alternatives, and the potential impacts on marine mammals, endangered species, and other marine life that could be impacted by the preferred alternative and the other alternatives. Based on this review and analysis, NMFS adopted the NSF EA under 40 CFR 1506.3 and made its own Finding of No Significant Impact (FONSI). As a result, NMFS has determined that it is not necessary to issue either a new EA, supplemental EA or an environmental impact statement for the issuance of an IHA to LDEO for this activity. Description of Habitat and Marine Mammals Affected by the Activity A detailed description of the Gulf of Mexico off the northern Yucatan Peninsula and its associated marine mammals can be found in the LDEO application and a number of documents referenced in the LDEO application, and is not repeated here. In the Gulf of Mexico near the Yucatan Peninsula, 29 marine mammal species are known to occur within the proposed study area. The species included in this application [[Page 16237]] are the sperm whale (Physeter macrocephalus), pygmy sperm whale (Kogia breviceps), dwarf sperm whale (Kogia sima), Cuvier's beaked whale (Ziphius cavirostris), Sowerby's beaked whale (Mesoplodon densirostris), Gervais' beaked whale (Mesoplodon europaeus), Blainville's beaked whale (Mesoplodon densirostris), rough-toothed dolphin (Steno bredanensis), bottlenose dolphin (Tursiops truncatus), pantropical spotted dolphin (Stenella attenuata), Atlantic spotted dolphin (Stenella frontalis), spinner dolphin (Stenella longirostris), clymene dolphin (Stenella clymene), striped dolphin (Stenella coeruleoalba), short-beaked common dolphin (Delphinus delphis), long- beaked common dolphin (Delphinus capensis), Fraser's dolphin (Lagenodelphis hosei), Risso's dolphin (Grampus griseus), melon-headed whale (Peponocephala electra), pygmy killer whale (Feresa attenuata), false killer whale (Pseudorca crassidens), killer whale (Orcinus orca), short-finned pilot whale (Globicephala macrorhynchus), long-finned pilot whale (Globicephala melas), North Atlantic right whale (Eubalaena glacialis), humpback whale (Megaptera novaeangliae), minke whale (Balaenoptera acutorostrata), Bryde's whale (Balaenoptera edeni), sei whale (Balaenoptera borealis), fin whale (Balaenoptera physalus), and blue whale (Balaenoptera musculus). Seven of these species are listed as endangered under the U.S. Endangered Species Act (ESA): sperm, North Atlantic right, humpback, sei, fin, and blue whales, as well as West Indian manatee. Additional information on most of these species is available at: http://www.nmfs.noaa.gov/prot_res/PR2/ Stock_Assessment_Program/sars.html.