[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 (48<SUP>o39'00'' N, 123<SUP>o11'00'' 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]
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