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Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations
further reduce the likelihood of injury as well as reduce behavioral disturbances.
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 e.g., Thorson and Reyff 2006.
Individual animals, even if taken multiple times, will most likely move away from the sound source and be temporarily displaced from the areas of pile driving, although even this reaction has been observed primarily only in association with impact pile driving.
The pile driving activities analyzed here are similar to, or less impactful than, numerous other construction activities conducted along both Atlantic and Pacific coasts, which have taken place with no known long-term adverse consequences from behavioral harassment. Furthermore, many projects similar to this one are also believed to result in multiple takes of individual animals without any documented longterm adverse effects. Level B harassment will be minimized through use of mitigation measures described herein and, if sound produced by project activities is sufficiently disturbing, animals are likely to simply avoid the area while the activity is occurring, particularly as the project is located on a busy waterfront with high amounts of vessel traffic.
As described in the proposed rule 85
FR 83001; December 21, 2020, Unusual Mortality Events UMEs have been declared for Northeast pinnipeds including harbor seal and gray seal and Atlantic humpback whales.
However, we do not expect takes that may be authorized under this rule to exacerbate or compound upon these ongoing UMEs. As noted previously, no injury, serious injury, or mortality is expected or will be authorized, and Level B harassment takes of humpback whale, harbor seal and gray seal will be reduced to the level of least practicable adverse impact through the incorporation of the required mitigation measures. For the WNA stock of gray seal, the estimated stock abundance is 451,431 animals, including the Canadian portion of the stock estimated 27,131 animals in the U.S. portion of the stock. Given that only 1 to 3 takes by Level B harassment may be authorized for this stock annually, we do not expect this authorization to exacerbate or compound upon the ongoing UME.
With regard to humpback whales, despite the UME, the relevant
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population of humpback whales the West Indies breeding population, or distinct population segment DPS
remains healthy. Prior to 2016, humpback whales were listed under the ESA as an endangered species worldwide. Following a 2015 global status review Bettridge et al. 2015, NMFS established 14 DPSs with different listing statuses 81 FR 62259;
September 8, 2016 pursuant to the ESA.
The West Indies DPS, which consists of the whales whose breeding range includes the Atlantic margin of the Antilles from Cuba to northern Venezuela, and whose feeding range primarily includes the Gulf of Maine, eastern Canada, and western Greenland, was delisted. The status review identified harmful algal blooms, vessel collisions, and fishing gear entanglements as relevant threats for this DPS, but noted that all other threats are considered likely to have no or minor impact on population size or the growth rate of this DPS Bettridge et al.
2015. As described in Bettridge et al.
2015, the West Indies DPS has a substantial population size i.e., 12,312
95% CI 8,68815,954 whales in 2004
05 Bettridge et al. 2003, and appears to be experiencing consistent growth.
Further, NMFS will authorize no more than eight takes by Level B harassment annually of humpback whale.
For the WNA stock of harbor seals, the estimated abundance is 75,834
individuals. The estimated M/SI for this stock 350 is well below the PBR
2,006. As such, the Level B harassment takes of harbor seal that may be authorized are not expected to exacerbate or compound upon the ongoing UMEs.
The project is also not expected to have significant adverse effects on affected marine mammals habitats. The project activities will not modify existing marine mammal habitat for a significant amount of time. The activities may cause some fish to leave the area of disturbance, thus temporarily impacting marine mammals foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected with no known particular importance to marine mammals, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences.
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
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or stock through effects on annual rates of recruitment or survival:
No mortality or serious injury is anticipated or will be authorized;
No Level A harassment take is anticipated or will be authorized;
The intensity of anticipated takes by Level B harassment is relatively low for all stocks;
The number of anticipated takes is very low for humpback whale, harbor porpoise, and gray seal;
The specified activity and associated ensonifed areas are very small relative to the overall habitat ranges of all species and do not include habitat areas of special significance Biologically Important Areas or ESAdesignated critical habitat;
The lack of anticipated significant or long-term negative effects to marine mammal habitat; and The presumed efficacy of the mitigation measures in reducing the effects of the specified activity.
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 planned monitoring and mitigation measures, NMFS finds that the total marine mammal take from the planned activity 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 101a5A 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. When the predicted number of individuals to be taken is fewer than one third of the species or stock abundance, the take is considered to be of small numbers.
Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
The instances of take of humpback whale, harbor porpoise, harbor seal, and gray seal which NMFS expects to authorize, comprises less than one-third of the best available stock abundance Table 10. The number of animals that we expect to authorize to be taken from these stocks would be considered small relative to the relevant stocks
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