[Federal Register Volume 77, Number 130 (Friday, July 6, 2012)]
[Notices]
[Pages 39999-40006]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-16583]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XB034


Takes of Marine Mammals Incidental to Specified Activities; Pile 
Placement for Fishermen's Offshore Wind Farm

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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[[Page 40000]]

SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
implementing regulations, notification is hereby given that NMFS has 
issued an incidental harassment authorization (IHA) to Fishermen's 
Atlantic City Windfarm, LLC (Fishermen's), allowing the take of small 
numbers of marine mammals, by Level B harassment only, incidental to 
pile driving off the New Jersey coast.

DATES: Effective May 1, 2013, through August 31, 2013.

ADDRESSES: A copy of the IHA, the application, and the Environmental 
Assessment are available by writing to Michael Payne, Chief, Permits 
and Conservation Division, Office of Protected Resources, National 
Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 
20910 or by telephoning the contact listed here (see FOR FURTHER 
INFORMATION CONTACT), or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Documents 
cited in this notice may also be viewed, by appointment, during regular 
business hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Michelle Magliocca, Office of 
Protected Resources, NMFS, (301) 427-8401.

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 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 specific 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.
    Authorization for incidental takings shall 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 (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. 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.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which U.S. citizens can apply for an authorization to incidentally 
take small numbers of marine mammals by harassment. Section 
101(a)(5)(D) further established 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 the authorization.
    Except with respect to certain activities not pertinent here, 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].

Summary of Request

    On August 30, 2011, NMFS received an application from AMEC 
Environment & Infrastructure, on behalf of Fishermen's, requesting an 
IHA for the take, by Level B harassment, of small numbers of bottlenose 
dolphins, harbor porpoises, and harbor seals incidental to pile driving 
activities off the New Jersey coast. In accordance with the MMPA and 
implementing regulations, NMFS issued a notice in the Federal Register 
on March 13, 2012 (77 FR 14736), requesting comments from the public on 
the proposed IHA.

Description of the Specified Activity

    A complete description of the specified activity may be found in 
NMFS' proposed IHA notice in the Federal Register (77 FR 14736, March 
13, 2012) and a summary is provided here. Fishermen's plans to 
construct a 20 megawatt offshore wind farm 4.5 kilometers (km) off the 
New Jersey coast. The long-term project would comprise a single row of 
six electric generating windmills. Pile driving is required to 
construct a jacketed foundation on the sea floor for each turbine, 
which will result in elevated sound levels.
    Fishermen's will install 18 piles to create six jacketed 
foundations. Each foundation will consist of a three-legged structure, 
made up of three hollow steel pipes with an outer diameter of about 132 
centimeters (cm). Each leg, or pipe, will be driven to a depth of about 
46 meters (m) below the sea floor. The foundations will extend through 
the water column to about 14 m above mean higher high water, depending 
on tide levels. The top of each foundation will connect to the turbine 
with a transition piece, which will be welded to the foundation at 
about 93 m above mean higher high water.
    Fishermen's will use a Delmag D-100 or equivalent hydraulic hammer 
to install the 18 piles. The hydraulic hammer and a lift crane will 
operate from a barge, which will be used to lift the foundation off a 
second barge and place it on the seafloor. Each pile will require 
2,400-2,700 blows over 4-6 hours. The foundations' jacket structure and 
design are expected to lessen the amount and intensity of sound 
propagation.
    Fishermen's will also install a submarine electric cable to 
transmit power from the turbines to the shore. The cable will make 
landfall at a point in Atlantic City and continue underground to the 
existing Huron Substation located along Absecon Avenue. Fishermen's 
will use jet plowing to install the submarine electric cables, which is 
a common burial method that minimizes environmental impacts to water 
quality and aquatic natural resources.

Date and Duration of Activity

    Fishermen's plans to begin turbine installation and cable laying in 
the summer of 2013. Construction of the wind farm may take about 4 
months, but pile driving activities will occur for a maximum of 24 
days, during May and June. Pile driving will only occur in weather that 
provides adequate visibility for marine mammal monitoring activities.

Region of Activity

    The activity will occur in state waters of New Jersey, about 4.5 km 
from Atlantic City, and the turbines will run roughly parallel to the 
coast in a single line. This location was chosen over alternative sites 
in New Jersey waters based on public support. Water depths at the 
proposed project location are 8 to 12 m at mean lower low water.

Sound Propagation

    Sound is a mechanical disturbance consisting of minute vibrations 
that travel through a medium, such as air or water, and is generally 
characterized by several variables. Frequency describes the sound's 
pitch and is measured in hertz (Hz) or kilohertz (kHz), while sound 
level describes the sound's loudness and is measured in decibels (dB). 
Sound level increases or decreases

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exponentially with each dB of change. For example, 10 dB yields a sound 
level 10 times more intense than 1 dB, while a 20 dB level is 100 times 
more intense, and a 30 dB level is 1,000 times more intense. Sound 
levels are compared to a reference sound pressure (micro-Pascal) to 
identify the medium. For air and water, these reference pressures are 
``re: 20 [mu]Pa'' and ``re: 1 [mu]Pa,'' respectively. Root mean square 
(RMS) is the quadratic mean sound pressure over the duration of an 
impulse. RMS is calculated by squaring all of the sound amplitudes, 
averaging the squares, and then taking the square root of the average 
(Urick, 1975). RMS accounts for both positive and negative values; 
squaring the pressures makes all values positive so that they may be 
accounted for in the summation of pressure levels (Hastings and Popper, 
2005). This measurement is often used in the context of discussing 
behavioral effects, in part because behavioral effects, which often 
result from auditory cues, may be better expressed through averaged 
units rather than peak pressures.
    Based on sound measurements taken around impact hammers at other 
in-water locations, source levels during pile driving are estimated to 
reach about 195 dB RMS. Assuming a practical spreading loss of 15 log 
R, Fishermen's estimates that the 180-dB (Level A harassment threshold) 
isopleth for the impact hammer will be about 107 m from the source. The 
160-dB (Level B harassment threshold) isopleth will be about 2.6 km 
from the source. The amount of sound reduction afforded by the jacket 
structure and design is unknown. Noise associated with other 
construction activities (e.g., cable laying) is expected to be minimal.

Comments and Responses

    A notice of receipt and request for public comment on the 
application and proposed authorization was published on March 13, 2012 
(77 FR 14736). During the 30-day public comment period, the Marine 
Mammal Commission (Commission) provided the only comments.
    Comment 1: The Commission recommends that NMFS require Fishermen's 
to recalculate the Level A and Level B harassment zones using the 
revised source level of 195 dB re 1 [mu]Pa at 10 m. This recommendation 
is based on further review of the ICF Jones & Stokes 2009 paper that 
Fishermen's used for their sound estimates.
    Response: Fishermen's acknowledged that they used an incorrect 
source level and recalculated the Level A and Level B harassment zones 
using the revised source level of 195 dB. Corrections are addressed 
throughout this notice.
    Comment 2: The Commission recommends that NMFS require Fishermen's 
to either (1) adjust the preliminary 1,000-m exclusion zone if the 
exclusion is intended to encompass the Level B harassment zone; or (2) 
require shut down of pile driving if any ESA-listed species approach or 
enter the revised Level B harassment zone.
    Response: NMFS did not authorize the incidental take of any ESA-
listed species. As indicated in the IHA, Fishermen's is required to 
shut down pile driving operation in order to prevent the unauthorized 
harassment of a marine mammal.
    Comment 3: The Commission recommends that NMFS require Fishermen's 
to use the in-situ sound propagation measurements at 50 percent power 
to determine the distance to the Level B harassment threshold during 
power-down procedures.
    Response: Fishermen's will use the in-situ sound propagation 
measurements at the beginning of pile driving to determine the distance 
to the Level B harassment threshold during power-down procedures.
    Comment 4: The Commission recommends that NMFS require Fishermen's 
to clarify their monitoring strategy and explain how it will be 
sufficient for covering the entire Level B harassment zone.
    Response: Fishermen's will have two vessel-based protected species 
observers positioned 600 m from the pile driving equipment, moving in a 
circular route around the sound source at about 10 knots. This will 
allow the observers to monitor the entire 1,000-m exclusion zone and 
also have sufficient view of the 107-m Level A harassment zone. Each 
observer will be responsible for monitoring a 180-degree field of 
vision.
    Although the Level B harassment zone (2.6 km) will extend beyond 
the exclusion zone, the protected observers will still be able to 
monitor part of this area. Their observations will allow Fishermen's to 
estimate the total Level B harassment that occurs during pile driving.
    Comment 5: The Commission recommends that NMFS ensure that 
mitigation measures can be implemented effectively and the number of 
takes can be recorded accurately.
    Response: Fishermen's exclusion zone exceeds the Level A harassment 
zone by 893 m. This is a conservative distance that will minimize the 
chance of a marine mammal being exposed to sound levels at or above 180 
dB. Furthermore, the 1,000-m exclusion zone lessens the area in which 
marine mammals could be exposed to sound levels at or above 160 dB. 
Protected species observers will be on a separate vessel, able to 
maneuver around the sound source and cover a much larger area during 
pile driving operations. Observations of marine mammals will be used to 
estimate the total amount of take that occurs.
    Comment 6: The Commission recommends that NMFS specify that the 
proposed number of pinniped takes may occur by in-water and in-air 
harassment when animals are near the sound source.
    Response: Fishermen's 1,000-m exclusion zone will minimize the 
chances of marine mammals being exposed to sound that could cause Level 
A harassment. For whales and dolphins, NMFS considers this threshold to 
be 180 dB; and for pinnipeds (seals and sea lions), NMFS considers this 
threshold to be 190 dB. The 1,000-m exclusion zone extends beyond both 
of the Level A harassment zones. It is possible that harbor seals 
beyond the 1,000-m exclusion zone may be exposed to in-water and in-air 
sound levels considered to be Level B harassment. However, the take 
numbers that NMFS authorized are considered conservative in that they 
do not account for mitigation measures and are based on the maximum 
number of animals expected to occur within the project area--an area 
much larger than the 1,000-m exclusion zone isopleth. NMFS believes 
that any takes that may occur during Fishermen's pile driving 
operations will not exceed the amount authorized by the IHA.

Description of Marine Mammals in the Area of the Specified Activity

    There are 42 marine mammal species with confirmed or potential 
occurrence off the coast of New Jersey. Of these, 20 species are 
regular inhabitants to the northeast Atlantic Ocean and could occur in 
the proposed project area at some point during the year. Information on 
species, status, and distribution was provided in the March 13, 2012 
Federal Register notice (77 FR 14736).
    Fishermen's project area was part of a large, comprehensive 
ecological baseline study of New Jersey's marine waters (NJDEP, 2010). 
From January 2008, through December 2009, the New Jersey Department of 
Environmental Protection surveyed 18,183 km of transects to collect 
baseline information on the distribution, abundance, and migratory 
patterns of coastal and marine species. Within Fishermen's project area 
(a 170-acre area encompassing the future wind turbine array), 611 km of

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study transects were dedicated to surveying for marine mammals and sea 
turtles. Marine mammal data were collected over the 2-year period using 
shipboard surveys, aerial surveys, and passive acoustic monitoring. 
Only bottlenose dolphins and a single unidentified seal were observed 
in the project area.
    In January 2011, marine mammal observers were onboard the vessels 
conducting geophysical and geotechnical surveys of the project area. No 
marine mammal species were sighted during that time. Fishermen's also 
conducted pre-construction monitoring of the project area in order to 
fulfill a New Jersey Department of Environmental Protection 
requirement. This study was comprised of seven survey track lines, 
spaced about 2 km apart, and included a 2-km radius buffer zone around 
the proposed turbine locations. Fishermen's surveyed over 2,601 km of 
track lines for more than 140 survey hours between May 2010 and May 
2011. During this study, observers sighted bottlenose dolphins, fin 
whales, humpback whales, minke whales, harbor porpoises, and harbor 
seals. Bottlenose dolphins were most commonly seen and only six 
mysticetes (baleen whales) were observed during the study. Sightings of 
fin whales, humpback whales, minke whales, and harbor porpoises were 
only observed between late September and mid-April. Based on sightings 
data, habitat preference, seasonality, and the proposed project 
timeline, marine mammal species other than bottlenose dolphins, harbor 
porpoises, and harbor seals are highly unlikely to be exposed to sound 
levels of 160 dB or higher and are not discussed further. Detailed 
information on the species likely to be harassed during pile driving is 
provided below.

Bottlenose Dolphin

    Bottlenose dolphins are found in a wide variety of habitats at both 
tropical and temperate latitudes. Depending on their habitat, they 
might feed on benthic fish, invertebrates, and pelagic or mesopelagic 
fish. They are often found in groups, most commonly of two to 15 
individuals. NMFS currently recognizes 15 stocks of bottlenose dolphins 
in the Atlantic Ocean. Bottlenose dolphins in the proposed project area 
will likely be part of the western North Atlantic northern migratory 
coastal stock. The coastal stock is found along the inner continental 
shelf and around islands and often moves into or resides in bays, 
estuaries, and the lower reaches of rivers and has an estimated 
abundance of 9,604. There are insufficient data to determine the 
population trends for these stocks. Bottlenose dolphins are not listed 
under the Endangered Species Act (ESA), but the coastal stock is 
considered depleted under the MMPA. More information, including stock 
assessment reports, can be found at: http://www.nmfs.noaa.gov/pr/species/mammals/cetaceans/bottlenosedolphin.htm. Bottlenose dolphins, 
like other dolphin species and most toothed whales, are in the mid-
frequency hearing group, with an estimated functional hearing range of 
150 Hz to 160 kHz (Southall et al., 2007).

Harbor Porpoises

    Harbor porpoises reside in northern temperate and subarctic coastal 
and offshore waters. They are commonly found in bays, estuaries, 
harbors, and fjords less than 200 m deep. In the western North 
Atlantic, harbor porpoises range from west Greenland to Cape Hatteras, 
North Carolina. Harbor porpoises in U.S. waters are divided into 10 
stocks, based on genetics, movement patterns, and management. During 
summer months, harbor porpoises are concentrated in the northern Gulf 
of Maine and southern Bay of Fundy region. Any harbor porpoises 
encountered during the proposed project will be part of the Gulf of 
Maine-Bay of Fundy stock, which has an estimated abundance of 89,054 
animals. Population trends for all U.S. stocks of harbor porpoises are 
currently unknown. Gulf of Maine-Bay of Fundy harbor porpoises are not 
listed under the ESA nor considered depleted under the MMPA. More 
information, including stock assessment reports, can be found at: 
http://www.nmfs.noaa.gov/pr/species/mammals/cetaceans/harborporpoise.htm. Harbor porpoises are considered high-frequency 
cetaceans and their estimated auditory bandwidth (lower to upper 
frequency hearing cut-off) ranges from 200 Hz to 180 kHz (Southall et 
al., 2007).

Harbor Seals

    Harbor seals are typically found in temperate coastal habitats and 
use rocks, reefs, beaches, and drifting glacial ice as haul outs and 
pupping sites. On the east coast, they range from the Canadian Arctic 
to southern New England, New York, and occasionally the Carolinas. 
There are an estimated 91,000 harbor seals in the western North 
Atlantic stock and the population is increasing. There are three well 
known, long-term haul out sites in New Jersey: Sandy Hook, Barnegat 
Inlet, and Great Bay. However, the closest haul out (Great Bay) is 
about 21 km north of the project area. Harbor seal abundance at this 
site has increased since 1994 and shows strong seasonality, with seals 
consistently present between November and April (Slocum et al., 1999; 
Slocum et al., 2005). No other haul out sites were identified during 
aerial surveys for the ecological baseline study. Harbor seals are 
considered the most common seal species present in New Jersey waters, 
although gray seals, harp seals, and hooded seals, also appear in 
winter months. Harbor seals are not listed under the ESA nor considered 
depleted under the MMPA. More information, including stock assessment 
reports, can be found at: http://www.nmfs.noaa.gov/pr/species/mammals/pinnipeds/harborseal.htm. Pinnipeds produce a wide range of social 
signals, most occurring at relatively low frequencies (Southall et al., 
2007), suggesting that hearing is keenest at these frequencies. 
Pinnipeds communicate acoustically both on land and underwater, but 
have different hearing capabilities dependent upon the medium (air or 
water). Based on numerous studies, as summarized in Southall et al. 
(2007), pinnipeds are more sensitive to a broader range of sound 
frequencies underwater than in air. Underwater, pinnipeds can hear 
frequencies from 75 Hz to 75 kHz. In air, pinnipeds can hear 
frequencies from 75 Hz to 30 kHz (Southall et al., 2007).

Potential Effects on Marine Mammals

    Elevated in-water sound levels from pile driving in the project 
area may temporarily change marine mammal behavior. Elevated in-air 
sound levels are not considered a concern because the nearest 
significant pinniped haul-out is 21 km away. However, it is possible 
that a harbor seal may be exposed to elevated in-air sound levels when 
it lifts its head out of the water. A detailed description of potential 
impacts to marine mammals can be found in the March 13, 2012 Federal 
Register notice (77 FR 14736) and is summarized here.
    Marine mammals are continually exposed to many sources of sound. 
For example, lightning, rain, sub-sea earthquakes, and animals are 
natural sound sources throughout the marine environment. Marine mammals 
produce sounds in various contexts and use sound for various biological 
functions including, but not limited to, (1) social interactions; (2) 
foraging; (3) orientation; and (4) predator detection. Interference 
with producing or receiving these sounds may result in adverse impacts. 
Audible distance or received levels will depend on the sound source, 
ambient noise, and the sensitivity of the receptor (Richardson et al., 
1995). Marine mammal reactions to sound may depend

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on sound frequency, ambient sound, what the animal is doing, and the 
animal's distance from the sound source (Southall et al., 2007).

Hearing Impairment

    Marine mammals may experience temporary or permanent hearing 
impairment when exposed to loud sounds. Hearing impairment is 
classified by temporary threshold shift (TTS) and permanent threshold 
shift (PTS). There are no empirical data for when PTS first occurs in 
marine mammals; therefore, it must be estimated from when TTS first 
occurs and from the rate of TTS growth with increasing exposure levels. 
PTS is likely if the animal's hearing threshold is reduced by >=40 dB 
of TTS. PTS is considered auditory injury (Southall et al., 2007) and 
occurs in a specific frequency range and amount. Due to required 
mitigation measures and source levels in the project area, NMFS does 
not expect marine mammals to be exposed to sound levels associated with 
PTS.

Temporary Threshold Shift (TTS)

    TTS is the mildest form of hearing impairment that can occur during 
exposure to a loud sound (Kryter, 1985). While experiencing TTS, the 
hearing threshold rises and a sound must be louder in order to be 
heard. TTS can last from minutes or hours to days, but is recoverable. 
TTS also occurs in specific frequency ranges; therefore, an animal 
might experience a temporary loss of hearing sensitivity only between 
the frequencies of 1 and 10 kHz, for example. The amount of change in 
hearing sensitivity is also variable and could be reduced by 6 dB or 30 
dB, for example. Southall et al. (2007) considers a 6 dB TTS (i.e., 
baseline thresholds are elevated by 6 dB) to be a sufficient definition 
of TTS-onset. NMFS considers TTS as Level B harassment that is mediated 
by physiological effects on the auditory system; however, NMFS does not 
consider onset TTS to be the lowest level at which Level B harassment 
may occur.
    A limited number of behavioral studies have been performed to 
assess the responses of mid-frequency cetaceans (such as bottlenose 
dolphins) to multiple pulses. Combined data show a range of behavioral 
responses, from temporary pauses in vocalization for received levels of 
80 to 90 dB, to a lack of observable reactions for received levels of 
120 to 180 dB (Southall, et al., 2007). Data on behavioral reactions of 
pinnipeds to multiple pulses is also limited, but suggests that 
exposures in the 150 to 180 dB range have limited potential to induce 
avoidance behavior (Southall et al., 2007). Some studies suggest that 
harbor porpoises may be more sensitive to sound than other odontocetes 
(Lucke et al., 2009 and Kastelein et al., 2011). Although TTS onset may 
occur in harbor porpoises at lower received levels (when compared to 
other odontocetes), NMFS' Level B harassment threshold is based on the 
onset of behavioral harassment, not TTS. However, the potential for TTS 
is considered in NMFS' analysis of potential impacts from Level B 
harassment.

Behavioral Effects

    Behavioral responses to sound are highly variable and context-
specific. An animal's perception of and response to (in both nature and 
magnitude) an acoustic event can be influenced by prior experience, 
perceived proximity, bearing of the sound, familiarity of the sound, 
etc. (Southall et al., 2007). If a marine mammal does react briefly to 
an underwater sound by changing its behavior or moving a small 
distance, the impacts of the change are unlikely to be significant to 
the individual, let alone the stock or populations. However, if a sound 
source displaces marine mammals from an important feeding or breeding 
area for a prolonged period, impacts on individuals and populations 
could be significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007). 
Given the many uncertainties in predicting the quantity and types of 
impacts of noise on marine mammals, it is common practice to estimate 
how many mammals would be present within a particular distance of 
activities and/or exposed to a particular level of sound.

Impulse Sounds

    The only sounds from the activity expected to result in the 
harassment of marine mammals are impulse sounds associated with impact 
pile driving. Southall et al. (2007) addresses behavioral responses of 
marine mammals to impulse sounds (like impact pile driving). The 
studies that address the responses of mid-frequency cetaceans to 
impulse sounds include data gathered both in the field and the 
laboratory and related to several different sound sources (of varying 
similarity to boomers), including: Small explosives, airgun arrays, 
pulse sequences, and natural and artificial pulses. The data show no 
clear indication of increasing probability and severity of response 
with increasing received level. Behavioral responses seem to vary 
depending on species and stimuli. Data on behavioral responses of high-
frequency cetaceans to multiple pulses is not available. Although 
individual elements of some non-pulse sources (such as pingers) could 
be considered pulses, it is believed that some mammalian auditory 
systems perceive them as non-pulse sounds (Southall et al., 2007).
    The studies that address the responses of pinnipeds in water to 
impulse sounds include data gathered in the field and related to 
several different sources, including: Small explosives, impact pile 
driving, and airgun arrays. Quantitative data on reactions of pinnipeds 
to impulse sounds is limited, but a general finding is that exposures 
in the 150 to 180 dB range generally have limited potential to induce 
avoidance behavior (Southall et al., 2007).
    No impacts to marine mammal reproduction are anticipated because 
there are no known pinniped rookeries or cetacean breeding grounds 
within the proposed project area. Marine mammals may avoid the area 
around the hammer, thereby reducing their exposure to elevated sound 
levels. NMFS expects any changes in marine mammal behavior to be 
temporary, Level B harassment (e.g., avoidance or alteration of 
behavior). Fishermen's conservatively assumes a maximum of 24 pile 
driving days may occur over the validity of the IHA. Marine mammal 
injury or mortality is not likely, as the 180 dB isopleth (NMFS' Level 
A harassment threshold for cetaceans) for the impact hammer is expected 
to be about a 100-m radius.

Anticipated Effects on Habitat

    The installation of piles and submarine electric cable will cause 
temporary disturbance and limited, but permanent, loss of benthic 
habitat. These effects will be limited to the area within the project 
footprint and along the cable route where sediment-disturbing 
activities will occur. The cable installation process will temporarily 
affect benthic resources and habitat by entrainment of microorganisms 
and displacement or burial of other benthic resources. However, since 
the jetting and cable laying process occurs very slowly (less than 1 
knot speed by the vessel), most mobile organisms are likely to avoid 
the area. Installation may result in a temporary loss of forage items 
and a temporary reduction in the amount of benthic habitat available 
for foraging marine mammals. However, there are no known foraging 
grounds around the project area, so marine mammals in the area will 
likely be traveling or foraging opportunistically. The cable route has 
been designed to avoid submerged

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aquatic vegetation. Impacts associated with cable installation and 
vessel anchoring will be temporary and localized.
    Pile driving (resulting in temporary ensonification) may cause prey 
species and marine mammals to avoid or abandon the area; however, these 
impacts are expected to be local and temporary. Installation of the 
jacketed foundations and associated scour protection will result in the 
permanent loss of less than one acre of benthic habitat. However, this 
loss is not likely to have a measurable adverse impact on marine mammal 
foraging activity due to the limited size and lack of known or 
significant foraging grounds in the proposed project area. The total 
impacted area represents less than one percent of similar bottom 
habitat in the proposed project area. Furthermore, the vertical 
foundation structure that will be added to the environment may provide 
additional habitat and foraging opportunities to marine species. The 
effects of habitat loss or modification to marine mammals are expected 
to be insignificant or discountable.

Mitigation Measures

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth, where applicable, the permissible methods of 
taking pursuant to such activity, and other means of effecting the 
least practicable adverse impact on such species or stock and its 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance, and on the availability of such species 
or stock for taking for certain subsistence uses. There are no relevant 
subsistence uses of marine mammals implicated by this action. 
Fishermen's will be required to employ the following mitigation 
measures during pile driving operations:

Exclusion Zone

    The purpose of Fishermen's exclusion zone is to prevent Level A 
harassment (injury) of any marine mammal species. Fishermen's will 
establish a radius around each pile driving site that will be 
continuously monitored for marine mammals. If a marine mammal is 
observed nearing or entering this perimeter, Fishermen's will reduce 
hammering power (or stop hammering) to reduce the sound pressure 
levels. More specifically, Fishermen's will establish a preliminary 
1,000-m exclusion zone around each pile driving site, based on the 
estimated rates of sound attenuation discussed earlier in this notice. 
This distance will encompass the estimated 180-dB isopleth, within 
which injury could occur, plus an additional 893-m buffer. Fishermen's 
will perform field verification of the impact hammer's resulting sound 
pressure levels to ensure that estimated distances to the 180-dB (Level 
A) and 160-dB (Level B) isopleths are accurate. Once hydroacoustic 
monitoring is conducted, the exclusion zone may be adjusted 
accordingly, with input from NMFS, so that marine mammals are not 
exposed to Level A harassment sound pressure levels.
    The exclusion zone will be monitored continuously during impact 
pile driving to ensure that no marine mammals enter the area. If a 
marine mammal is nearing or enters the 1,000-m zone, hammering will be 
reduced to 50 percent capacity, which will reduce the distance to the 
160-dB isopleth. If a marine mammal continues to move toward the 107-m 
Level A harassment zone, Fishermen's will stop all pile driving 
operations in order to prevent Level A harassment to marine mammals. 
Fishermen's initially proposed having a single protected species 
observer (PSO) to monitor the exclusion zone. However, following NMFS 
recommendation, Fishermen's will use two PSOs, each responsible for 
monitoring a 180-degree field of vision. The PSOs will be stationed 
aboard a dedicated support vessel that will patrol the exclusion zone 
throughout pile driving.

Pile Driving Shut Down and Delay Procedures

    If a PSO sees a marine mammal within or approaching the exclusion 
zone (1,000 m) prior to start of impact pile driving, the observer will 
notify the construction manager (or other authorized individual) who 
will then be required to delay pile driving until the marine mammal 
leaves the exclusion zone or if the animal has not been resighted 
within 15/30 minutes (pinnipeds/cetaceans). If a marine mammal is 
sighted within or approaching the exclusion zone during pile driving, 
pile driving will be reduced to 50 percent capacity, which will reduce 
the size of the Level B harassment zones. The 107-m Level A harassment 
zone will be maintained throughout pile driving, regardless of power 
level. This conservative measure will ensure that the area is clear of 
marine mammals prior to the hammer operating at full capacity. If an 
animal continues to approach the 107-m Level A harassment zone after 
pile driving is reduced to 50 percent capacity, then pile driving 
operations will be stopped until the animal has left the exclusion zone 
or 30 minutes have passed since the last sighting.

Soft-Start Procedures

    A ``soft-start'' technique will be used at the start of each pile 
installation to allow marine mammals that may be in the area to leave 
before the hammer reaches full energy. Soft starts require an initial 
set of three strikes from the impact hammer at 40 percent energy with a 
1-minute waiting period between subsequent three-strike sets. If a 
marine mammal is observed within the exclusion zone prior to pile 
driving, or during the soft start, the construction manager (or other 
authorized individual) will delay pile driving until the animal has 
moved outside of the exclusion zone or 15/30 (pinnipeds/cetaceans) 
minutes have passed since the last sighting. Soft-start procedures will 
be conducted any time hammering stops for more than 30 minutes.

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 IHAs 
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.
    Fishermen's will verify estimated sound levels to ensure that the 
Level A and Level B harassment zones are accurate. Fishermen's will 
take sound measurements during the pile driving of the first three 
jacket foundations. As recommended by the Commission, in-situ 
measurements will also be used to measure the Level B harassment zone 
when the pile hammer is at 50 percent capacity. Fishermen's will 
establish one reference location at a distance of 100 m from the sound 
source. They will take sound measurements from the reference location 
at two depths (one near the middle of the water column and one near the 
bottom of the water column). Two additional in-water measurements will 
be taken in two different directions of the pile driving site. Sound 
measurements will also be recorded 10 m from the sound source, as 
necessary, to determine the source level and affirm the distances to 
the Level B and Level A harassment zones. Fishermen's will integrate 90 
percent of the energy window from each blow into their sound analysis 
when computing RMS sound pressure levels.

[[Page 40005]]

    As explained in the Mitigation Measures section of this notice, 
there will be two PSOs monitoring the exclusion zone (1,000 m). PSOs 
will monitor the exclusion zone for at least 30 minutes prior to soft 
start, during pile driving, and for 30 minutes after pile driving is 
completed. PSOs will have the equipment needed to effectively monitor 
for marine mammals (for example, high-quality binoculars, compass, and 
range-finder), determine if animals have entered into the exclusion 
zone, and record species, behaviors, and responses to pile driving. 
Fishermen's will provide weekly status reports to NMFS that include a 
summary of the previous week's monitoring activities and an estimate of 
the number of marine mammals that may have been harassed as a result of 
pile driving. PSOs will submit a comprehensive report to NMFS within 90 
days of completion of pile driving. The report will include data from 
marine mammal sightings (such as date, time, location, species, group 
size, and behavior), any observed reactions to construction, distance 
to operating pile hammer, and construction activities occurring at time 
of sighting and environmental data for the period (wind speed and 
direction, Beaufort sea state, cloud cover, and visibility).
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHA 
(if issued), such as an injury (Level A harassment), serious injury, or 
mortality, Fishermen's will immediately cease the specified activities 
and report the incident to the Chief of the Permits and Conservation 
Division, Office of Protected Resources, NMFS, at 301-427-8401 and/or 
by email to [email protected] and [email protected] and 
the Northeast Regional Stranding Coordinator ([email protected]). 
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 hrs 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 
hrs 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 will not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with Fishermen's 
to determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Fishermen's may not resume 
their activities until notified by NMFS via letter, email, or 
telephone.
    In the event that Fishermen's discovers an injured or dead marine 
mammal, and the lead PSO determines that the cause of the injury or 
death is unknown and the death is relatively recent (i.e., in less than 
a moderate state of decomposition as described in the next paragraph), 
Fishermen's will immediately report the incident to the Chief of the 
Permits and Conservation Division, Office of Protected Resources, NMFS, 
at 301-427-8401, and/or by email to [email protected] and 
[email protected] and the Northeast Regional Stranding 
Coordinator at 978-281-9300 ([email protected]). The report must 
include the same information identified in the paragraph above. 
Activities may continue while NMFS reviews the circumstances of the 
incident. NMFS will work with Fishermen's to determine whether 
modifications in the activities are appropriate.
    In the event that Fishermen's discovers an injured or dead marine 
mammal, and the lead PSO determines that the injury or death is not 
associated with or related to the activities authorized in the IHA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), Fishermen's will report the 
incident within 24 hours of the discovery to the Chief of the Permits 
and Conservation Division, Office of Protected Resources, NMFS, at 301-
427-8401, and/or by email to [email protected] and 
[email protected] and the NMFS Northeast Stranding Hotline 
(866-755-6622) and/or by email to the Northeast Regional Stranding 
Coordinator ([email protected]). Fishermen's will provide 
photographs or video footage (if available) or other documentation of 
the stranded animal sighting to NMFS and the Marine Mammal Stranding 
Network. Activities may continue while NMFS reviews the circumstances 
of the incident.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, 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].
    Current NMFS practice regarding exposure of marine mammals to 
anthropogenic noise is that in order to avoid the potential for injury 
(PTS), cetaceans and pinnipeds should not be exposed to impulsive 
sounds of 180 and 190 dB or above, respectively. This level is 
considered precautionary as it is likely that more intense sounds would 
be required before injury would actually occur (Southall et al., 2007). 
Potential for behavioral Level B harassment is considered to have 
occurred when marine mammals are exposed to in-water sounds at or above 
160 dB for impulse sounds (such as impact pile driving) and 120 dB for 
non-pulse noise (such as vibratory pile driving).
    Fishermen's calculated distances to NMFS' harassment thresholds are 
based on the expected source level of the impact hammer and the 
expected attenuation rate of sound. Fishermen's exclusion zone extends 
893 m beyond the Level A harassment zone, which minimizes potential 
impacts to marine mammals from increased sound exposure. The difference 
between the exclusion zone (1,000 m) and the Level A harassment 
threshold (107 m) for cetaceans provides PSOs time and adequate 
visibility to prevent marine mammals from being exposed to injurious 
sound levels if an animal (e.g., a small dolphin or pinniped) enters 
the exclusion zone undetected.
    Fishermen's estimated the number of marine mammals potentially 
taken by using their 2010-2011 pre-construction survey data as site-
specific density estimates for the project area over a 1-year period. 
During that survey, Fishermen's observed 260 bottlenose dolphins, three 
humpback whales, two fin whales, one minke whale, two harbor seals, and 
five harbor porpoises. However, the survey was performed over a 1-year 
period, whereas pile driving will only take place between May and June. 
The only marine mammal species observed during May and June were 
bottlenose dolphins and an unidentified seal. Fishermen's considered 
the expected number of pile driving days and requested authorization 
for the Level B incidental take of five bottlenose dolphins. NMFS 
determined that this number does not

[[Page 40006]]

adequately account for the likelihood that numerous animals went 
undetected during visual surveys. To account for this, NMFS multiplied 
species group size by the maximum number of pile driving days. More 
specifically, NMFS used the average group size of bottlenose dolphins 
observed between May and June during the pre-construction survey and 
multiplied this number by 24 (the maximum number of pile driving days). 
Because harbor porpoises were never observed during the months of May 
and June, NMFS conservatively used the maximum group size (two) of 
harbor porpoises observed during the entire pre-construction survey. 
NMFS also used the maximum group size (two) of harbor seals observed 
during the entire pre-construction survey. These calculations are 
illustrated below in Table 2.

     Table 2--NMFS' Method for Calculating Potential Takes of Marine Mammals During Fishermen's Pile Driving
                                                   Operations
----------------------------------------------------------------------------------------------------------------
                                                                                  Maximum Number
                             Species                                Group size        of pile       Authorized
                                                                                   driving days      take \1\
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin..............................................            \2\5              24             120
Harbor porpoise.................................................            \3\2              24              48
Harbor seal.....................................................            \3\2              24             48
----------------------------------------------------------------------------------------------------------------
\1\ Authorized take was calculated by multiplying group size and the maximum number of pile driving days.
\2\ NMFS used the average group size of bottlenose dolphins observed during the pre-construction survey for the
  months of May and June (when pile driving will occur).
\3\ NMFS conservatively used the maximum group size of harbor seals observed during the entire pre-construction
  survey.

    NMFS is authorizing the take of 120 bottlenose dolphins, 48 harbor 
porpoises, and 48 harbor seals. The increase in proposed take is based 
on the likelihood that smaller animals may not have been detected 
during surveys, but may be present in the proposed project area during 
pile driving. These numbers are conservative in that they do not 
account for mitigation measures and are based on the maximum number of 
animals expected to occur within the project area--an area much larger 
than the 1,000-m exclusion zone isopleth. Pile driving operations will 
occur during months when other marine mammal species are unlikely to be 
in the area.

Negligible Impact and Small Numbers 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.'' In making a negligible impact determination, NMFS considers 
a number of factors which include the number of anticipated injuries or 
mortalities (none of which are authorized here), number, nature, 
intensity, and duration of Level B harassment, and the context in which 
takes occur.
    As described above, marine mammals will not be exposed to 
activities or sound levels which will result in injury (PTS), serious 
injury, or mortality. The project area is not considered significant 
habitat for marine mammals and the closest significant pinniped haul 
out is 21 km away, which is well outside the project area's largest 
harassment zone. Marine mammals around the action area will likely be 
traveling or opportunistically foraging. The amount of take NMFS 
authorized is considered small (less than two percent of each species) 
relative to the estimated populations of 9,604 bottlenose dolphins, 
89,054 harbor porpoises, and 91,000 harbor seals. Marine mammals may be 
temporarily impacted by pile driving noise. However, marine mammals may 
avoid the area, thereby reducing exposure and impacts, and mitigation 
measures will minimize any behavioral harassment and reduce the risk of 
injury or mortality. Pile driving operations will occur for 15-24 days. 
NMFS does not expect any changes to annual rates of recruitment or 
survival of marine mammals exposed to elevated sound levels.
    Based on analysis in this notice, the proposed IHA notice (77 FR 
14736, March 13, 2012), and the application, and taking into 
consideration the implementation of mitigation and monitoring measures, 
pile driving operations may result in, at most, short-term modification 
of behavior by small numbers of marine mammals. Marine mammals may 
avoid the area or temporarily alter their behavior at time of exposure. 
NMFS has determined that Fishermen's pile driving operations will 
result in the incidental take of small numbers of marine mammals, by 
Level B harassment only, and that the total taking will have a 
negligible impact on the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action.

Endangered Species Act (ESA)

    NMFS has determined that pile driving operations during May and 
June will not impact species or critical habitat protected under the 
ESA. Therefore, consultation under section 7 is not required.

National Environmental Policy Act (NEPA)

    In compliance with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), as implemented by the regulations published 
by the Council on Environmental Quality (40 CFR parts 1500-1508), and 
NOAA Administrative Order 216-6, NMFS prepared an Environmental 
Assessment (EA) to consider the environmental impacts of issuing a 1-
year IHA. NMFS analysis resulted in finding of no significant impact 
(FONSI). The EA and FONSI are available on the NMFS Web site listed in 
the beginning of this document (see ADDRESSES).

    Dated: June 27, 2012.
Helen M. Golde,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2012-16583 Filed 7-5-12; 8:45 am]
BILLING CODE 3510-22-P