[Federal Register Volume 79, Number 120 (Monday, June 23, 2014)]
[Notices]
[Pages 35526-35533]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-14563]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XC784


Takes of Marine Mammals Incidental to Specified Activities; 
Rockaway Delivery Lateral Project Off New York, June 2014 Through 
October 2014

AGENCY: National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; issuance of an Incidental Harassment Authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA), 
notification is hereby given that NMFS has issued an Incidental 
Harassment Authorization (IHA) to Transcontinental Gas Pipe Line 
Company, LLC (Transco) to take marine mammals, by harassment, 
incidental to expanding a natural gas pipeline system off the coast of 
New York.

DATES: Effective June 1, 2014, through October 31, 2014.

ADDRESSES: An electronic copy of the application, authorization, and 
associated documents may be obtained by visiting the internet at: 
http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

FOR FURTHER INFORMATION CONTACT: Shane Guan, National Marine Fisheries 
Service, Office of Protected Resources, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

Background

    Section 101(a)(5)(D) of the Marine Mammal Protection Act of 1972, 
as amended (MMPA; 16 U.S.C. 1361 et seq.) directs the Secretary of 
Commerce to authorize, upon request, the incidental, but not 
intentional, taking of small numbers of marine mammals of a species or 
population stock, by United States citizens who engage in a specified 
activity (other than commercial fishing) within a specified 
geographical region if, after notice of a proposed authorization to the 
public for review and public comment: (1) We make certain findings; and 
(2) the taking is limited to harassment.
    NMFS shall grant authorization for the incidental taking of small 
numbers of marine mammals if we find 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 (where relevant). The authorization must 
set forth the permissible methods of taking; other means of effecting 
the least practicable adverse impact on the species or stock and its 
habitat (i.e., mitigation); and requirements pertaining to the 
monitoring and reporting of such taking. NMFS have 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.''
    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 March 21, 2013, NMFS received an application from Transco for 
the taking of marine mammals incidental to the Rockaway delivery 
lateral project (Project) off the coast of New York over a 1-year 
period beginning in April 2014. We received a revised application from 
Transco on May 13, 2013, which reflected updates to the proposed 
mitigation measures, proposed monitoring measures, and incidental take 
requests for marine mammals. Further revisions were made to the request 
in October 2013 due to a change in the project schedule and the 
application was considered complete and adequate on November 9, 2013. 
On April 14, Transco amended their take

[[Page 35527]]

request based on a shift in the offshore construction schedule.
    Transco plans to expand its pipeline system to meet immediate and 
future demand for natural gas in the New York City market area. This 
project will provide an additional delivery point to National Grid's 
(an international electricity and gas company) local distribution 
companies, giving National Grid the flexibility to redirect supplies 
during peak demand periods. The in-water portion of the project, which 
will require pile driving, may result in the incidental taking of seven 
species of marine mammals by behavioral harassment.

Description of the Specified Activities

    The specific Project activity will be to install a sub-sea natural 
gas pipeline extending from the existing Lower New York Bay Lateral in 
the Atlantic Ocean to an onshore delivery point on the Rockaway 
Peninsula. The work will include the following:

 Horizontal directional drilling
    [cir] Beginning onshore and exiting offshore
    [cir] Includes excavation of the horizontal directional drilling 
exit pit and pile driving activities
 Offshore construction and support vessels
    [cir] Various vessels would be used throughout the in-water work
 Sub-sea dual hot-tap installation of the existing Lower New 
York Bay Lateral
    [cir] Includes use of diver-controlled hand-jetting to clear 
sediment around the existing pipeline
 Offshore pipeline construction
    [cir] Includes offshore pipe laying and subsea jet-sled trenching
 Anode bed installation and cable crossing
    [cir] Includes use of divers and hand-jetting to clear sediment 
around the locations of the anode bed and existing power cable crossing
 Hydrostatic test water withdrawal and discharge
    [cir] Would occur four times during the course of in-water 
construction.
 Post-installation and final (as-built) hydrographic survey
    [cir] Includes the use of a multibeam echo sounder and high 
resolution side scan sonar
 Subsea trench and HDD exit pit backfill
    [cir] Includes the use of a small-scale crane-supported suction 
dredge for the trench
    [cir] Includes the use of diver-controlled hand jetting and/or 
clamshell dredge for the HDD exit pit
 Operation and maintenance

    Only the pile driving activities associated with horizontal 
directional drilling offshore construction are expected to result in 
the take of marine mammals by Level B harassment. Other aspects of the 
project are discussed in more detail in Transco's IHA application 
(http://www.nmfs.noaa.gov/pr/permits/incidental.htm/#applications). No 
vessels will use dynamic positioning (a system to maintain position and 
heading), and only two vessels--a crew boat and picket boat--will make 
weekly trips to the Project area from shore. Elevated sound levels that 
may result in harassment are not expected from the clamshell dredge 
because the dredge will be anchored and dynamic positioning will not be 
used. Dredging and trenching may result in a temporary, localized 
increase in turbidity, but are not expected to rise to the level of 
harassment. A complete description of all in-water Project activities 
is provided in Transco's application (http://www.nmfs.noaa.gov/pr/permits/incidental.htm/#applications).

Vibratory Hammer Installation and Removal

    Vibratory hammers are commonly used in steel pile installation and 
removal when the sediment conditions allow for this method. Transco 
will likely use the MKT V 52 model of vibratory hammer for the Project. 
The vibratory hammer is considered a continuous sound source because it 
continuously drives the pile into the substrate until the desired depth 
is reached. Transco will use a vibratory hammer to install about 70 
piles (5 sets of temporary goal posts and up to 60 temporary fender 
piles). All piles will be 14- to 16-inch diameter steel pipe piles. Two 
vibratory hammers will be on site, but only one hammer will be used at 
a time. Each pile should take about 1 to 2 seconds to install per foot 
of depth driven, with each pile driven to a depth of about 25 to 30 
feet below the seafloor. Therefore, each pile will take up to 60 
seconds of continuous pile driving to install. All piles should be 
installed during a 1-week period, with less than 12 hours of pile 
driving operation. The goal posts and fenders would remain in the 
offshore environment for the duration of the horizontal directional 
drilling portion of construction (3 to 4 months). Extraction of all 
piles at the end of the construction period should take about as long 
as installation.

Location of the Specified Activity

    The Project will be located mostly in nearshore waters (within 
approximately 3 miles of the Atlantic Ocean), southeast of the Rockaway 
Peninsula in Queens County, New York. A linear segment of underwater 
land measuring approximately 2.15 miles will be required for offshore 
pipe lay and trenching activities from the interconnect with Transco's 
pipeline to the proposed horizontal directional drilling exit point in 
the nearshore area, seaward of Jacob Riis Park (see Figure 1 of 
Transco's application). The Project area is located within the greater 
New York Bight region, with construction occurring within approximately 
2.86 miles from the Jacob Riis Park shoreline. Vessels associated with 
the Project will travel between the pipe yard in Elizabeth, New Jersey, 
to the offshore construction site. The greater Project area, therefore, 
is described as the waters between the pipe yard and construction site 
and the waters offshore of Jacob Riis Park where construction will 
occur. However, pile driving activities will only take place around the 
horizontal directional drilling exit point in the nearshore area. All 
work will occur in water depths between 25 and 50 feet.

Duration of the Specified Activity

    Pile driving activities were originally proposed to begin in April 
2014 and expected to be complete in August 2014. However, Transco 
adjusted their construction schedule so that pile installation will 
begin in June 2014 and pile removal will occur in September 2014. The 
IHA is valid through October 2014 to allow for construction delays. 
Total installation time for all piles is expected to total less than 1 
day of operation and would occur during a 1-week period. Total 
operating time for the extraction of all piles at the end of the 
construction period is expected to take a similar amount of time (1 day 
total over a 1-week period).

Metrics Used in This Document

    This section was included in the notice of proposed IHA (78 FR 
78824, December 27, 2013) as a brief explanation of the sound 
measurements frequently used in the discussions of acoustic effects in 
this document and that information has not changed.

Predicted Sound Levels From Vibratory Pile Driving

    No source levels were available for 14- to 16-inch diameter steel 
pipe piles at water depths of approximately 33 feet. The most 
applicable source levels available are for 12-inch diameter steel

[[Page 35528]]

pipe piles in water depths of approximately 16 feet. In-water 
measurements for the Mad River Slough Project in Arcata, California, 
indicate that installation of a 12-inch steel pipe pile in about 16 
feet of water measured 10 meters from the source generated 155 dB re 1 
uPa RMS. To account for the increased diameter of the piles planned for 
use during the Project, a change in water depth, and a different 
location than where the reference levels were recorded, Transco 
increased the source levels from the Mad River Slough Project by 5 dB. 
The 5 dB increase was chosen due to an overall lack of current 
information available for reference levels of steel pipe piles of a 
similar size being driven with a vibratory hammer in similar water 
depths. Transco expects that this increase overestimates the actual 
source level from the vibratory hammer.

Description of Marine Mammals in the Area of the Specified Activity

    Thirteen marine mammal species under our jurisdiction may occur in 
the proposed Project area, including four mysticetes (baleen whales), 
six odontocetes (toothed cetaceans), and three pinnipeds (seals). Three 
of these species are listed as endangered under the Endangered Species 
Act of 1973 (ESA; 16 U.S.C. 1531 et seq.), including: The humpback 
(Megaptera novaeangliae), fin (Balaenoptera physalus), and North 
Atlantic right (Eubalaena glacialis) whales.
    However, based on occurrence information, stranding records, and 
seasonal distribution, it is unlikely that humpback whales, fin whales, 
minke whales, Atlantic white-sided dolphins, short-finned pilot whales, 
or long-finned pilot whales will be present in the Project area during 
the winter in-water construction period. Each of these species is 
discussed in detail in section 3 of Transco's IHA application (http://www.nmfs.noaa.gov/pr/permits/incidental.htm/#applications). In summary, 
humpback whales are typically found in other regions of the east coast 
and there have been no reported observations within the vicinity of the 
Project area in recent years; fin whales prefer deeper offshore waters 
and there have been no reported observations within the vicinity of the 
Project area in recent years; minke whales are prevalent in other 
regions there have been no reported observations within the vicinity of 
the Project area in recent years; Atlantic white-sided dolphins 
generally occur in areas east and north of the Project area; and short-
finned and long-finned pilot whales prefer deeper pelagic waters. 
Accordingly, we did not consider these species in greater detail and 
only authorized take for the seven species requested. After the 
proposed IHA was published (78 FR 78824, December 27, 2013), Transco 
amended their application due to a change in construction schedule. 
Their new schedule, which has pile installation occurring in June 2014 
and pile removal occurring in September 2014, does not overlap with 
North Atlantic right whale season (November to April). Therefore, after 
consultation with NMFS, Transco amended their marine mammal take 
request and eliminated the request for incidental take of North 
Atlantic right whales. NMFS further determined that incidental take of 
harp seals from June through September is also highly unlikely because 
of its distribution.
    Table 2 presents information on the abundance, distribution, and 
conservation status of the marine mammals that may occur in the area 
from June through September. While harbor porpoise are most likely in 
the project area during winter months, they are dispersed as far south 
as New Jersey during the spring and fall. Similarly, short-beaked 
common dolphins are most likely in the area from January to May, but 
may still be passing through the area during the summer and fall.

   Table 2--Abundance Estimates, Mean Density, and ESA Status of Marine Mammals That May Occur in the Proposed
                                   Project Area During June Through September
----------------------------------------------------------------------------------------------------------------
                                                                                  Time of year most
          Common name            Scientific name         Stock          ESA \a\    likely expected    Abundance
                                                                                      in region        estimate
----------------------------------------------------------------------------------------------------------------
Odontocetes:
    Harbor porpoise...........  Phocoena phocoena  Gulf of Maine/Bay  ..........  Jan-March........       89,054
                                                    of Fundy.
    Bottlenose dolphin........  Tursiops           Western North      ..........  July-Sept........        7,147
                                 truncatus.         Atlantic
                                                    Northern
                                                    Migratory.
    Short-beaked common         Delphinus delphis  Western North      ..........  Jan-May..........       52,893
     dolphin.                                       Atlantic.
Pinnipeds:
    Gray seal.................  Halichoerus        Western North      ..........  Sept-May.........      348,900
                                 grypus.            Atlantic.
    Harbor seal...............  Phoca vitulina...  Western North      ..........  Sept-May.........       99,340
                                                    Atlantic.
----------------------------------------------------------------------------------------------------------------

    Further information on the biology and local distribution of these 
species can be found in section 3 of Transco's application (see 
ADDRESSES), and the NMFS Marine Mammal Stock Assessment Reports, which 
are available online at: http://www.nmfs.noaa.gov/pr/sars/.

Potential Effects of the Specified Activity on Marine Mammals

    This section of the proposed IHA (78 FR 78824, December 27, 2013) 
included a summary and discussion of the ways that the types of 
stressors associated with the specified activity (pile driving 
activities) have been observed to impact marine mammals. That 
information has not changed and is not repeated here. In summary, the 
potential effects of sound from the proposed activities may include one 
or more of the following: Tolerance; masking of natural sounds; 
behavioral disturbance; non-auditory physical effects; and temporary or 
permanent hearing impairment (Richardson et al., 1995). However, it is 
unlikely that there would be any cases of temporary or permanent 
hearing impairment resulting from these activities.

Anticipated Effects on Marine Mammal Habitat

    This section of the proposed IHA (78 FR 78824, December 27, 2013) 
described the anticipated effects of pile driving activities on marine 
mammal habitat; that information has not changed and is not repeated 
here. In summary, because of the short duration of the activity, the 
impacts to marine mammals and the food sources that they utilize are 
not expected to cause significant or long-

[[Page 35529]]

term consequences for individual marine mammals or their populations.

Comments and Responses

    NMFS published a proposed authorization and request for public 
comments in the Federal Register on December 27, 2013 (78 FR 78824). 
During the 30-day public comment period, NMFS only received comments 
from the Marine Mammal Commission (Commission). All comments are 
addressed below and have been compiled and posted online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
    Comment 1: The Commission recommended that NMFS require Transco to 
(1) provide estimated source levels associated with other pipeline 
construction activities (i.e., horizontal directional drilling, pipe 
laying, and pipe burial); and (2) estimate the number of takes 
associated with those activities based on the Level B harassment 
threshold of 120 dB.
    Response: Only two construction elements involve noise as a concern 
for marine mammals: Vibratory pile driving and vessel operations. Both 
of these activities were discussed in detail in Transco's application 
(see ADDRESSES) and were addressed in the proposed IHA (78 FR 78824, 
December 27, 2013). Noise levels generated by activities such as pipe 
laying and pipe burial are generally very low (Richardson et al., 1995) 
and do not reach the level set forth in NMFS' noise exposure criteria 
that would result in take. There is no underwater construction involved 
with these activities and any noise generation would be conducted on a 
vessel. Horizontal directional drilling will begin onshore and exit 
offshore, and include excavation of the exit pit via clamshell dredge 
and vibratory installation and removal of piles. The clamshell dredge 
will be anchored in place and dynamic positioning will not be used. 
Excavation does not involve a sound source that has the potential to 
result in incidental take of marine mammals. No drilling will occur 
from the offshore HDD location. Further information on each project 
activity is also provided in Transco's application (see ADDRESSES).
    Comment 2: The Commission recommended that NMFS require Transco to 
estimate the number of takes by accounting for the number of days 
(i.e., seven days) that the proposed activities would occur in summer 
(for pile driving) and fall (for pile removal).
    Response: NMFS agrees that the number of days of pile driving 
should be considered when estimating take. In addition, only summer and 
fall densities were considered to estimate take since pile driving 
activities will no longer take place during spring or winter months. 
The take estimates, summarized in Table 3 of this document, have been 
adjusted to account for the number of days of pile installation in the 
summer and removal in the fall.
    Comment 3: The Commission recommended that NMFS require Transco to 
increase its estimated numbers of takes for North Atlantic right whales 
and short-beaked common dolphins to the mean group size for each season 
in which takes are expected to occur.
    Response: As noted in the Description of Marine Mammals section of 
this document, Transco amended their take request after publication of 
the proposed IHA and NMFS believes that take of North Atlantic right 
whales is unlikely considering the new construction schedule. NMFS 
disagrees that estimated numbers of takes for short-beaked common 
dolphins should be increased to reflect the mean group size (which is 
in the hundreds) due to their seasonal presence around the construction 
area and the short duration of pile driving activities. Short-beaked 
common dolphins are most likely to be found offshore New York between 
January and May and prefer oceanic waters. During summer and fall 
months (when pile installation and removal will occur), short-beaked 
common dolphins are expected to be much further north near Georges 
Bank. NMFS authorized take of this species based on the estimated 
density for summer and fall months and does not expect large 
aggregations of short-beaked common dolphins in the area.

Mitigation

    In order to issue an incidental take authorization under section 
101(a)(5)(D) of the MMPA, we must set forth 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 the availability of such species or 
stock for taking for certain subsistence uses (where relevant).
    To reduce the potential for disturbance from acoustic stimuli 
associated with the activities, Transco will implement the following 
mitigation measures for marine mammals:
    (1) Vibratory pile driving only;
    (2) Pile driving during daylight hours only;
    (3) Shutdown procedures;
    (4) Soft-start (ramp-up) procedures; and
    (5) Discharge control.
    Separately, Transco acknowledges the vessel activity and speed 
restrictions that are already in place along the east coast for the 
north Atlantic right whale. While the Seasonal Management Area is in 
effect (November-April), vessel operators will comply with the 
established regulations. The change in construction schedule (prompted 
by the seasonal distribution of ESA-listed Atlantic sturgeon) also 
reduces the overlap of pile driving activities with the North Atlantic 
right whale season (November-April) and the likelihood of harp seals in 
the area.

Vibratory Pile Driving Only

    Transco will use a vibratory hammer instead of an impact hammer for 
all pile driving activities in order to reduce in-water sound levels 
while installing and removing up to 70 temporary steel pipe piles. The 
sound source level for the vibratory hammer is less than the source 
level for an impact hammer, and by avoiding use of an impact hammer 
Transco removes the potential for Level A harassment of marine mammals.

Pile Driving During Daylight Hours Only

    Pile driving installation and removal will only be conducted when 
lighting and weather conditions allow the protected species observers 
to visually monitor the entire Level B harassment area through the use 
of binoculars or other devices.

Soft-Start (Ramp-Up) Procedures

    Transco will implement soft-start procedures at the beginning of 
each pile driving session (i.e., at the beginning of each day and after 
a lapse of activity for at least 30 minutes). Contractors will initiate 
the vibratory hammer for 15 seconds at 40 to 60 percent reduced energy, 
followed by a 1-minute waiting period. This procedure will be repeated 
two additional times before reach full energy.

Shutdown Procedures

    Protected species observers will monitor the entire Level B 
harassment area for marine mammals displaying abnormal behavior. Such 
behavior may include aggressive signals related to noise exposure 
(e.g., tail/flipper slapping or abrupt directed movement), avoidance of 
the sound source, or an obvious startle response (e.g., rapid change in 
swimming speed, erratic surface movements, or sudden diving associated 
with the onset of a sound source). At NMFS' recommendation, if a 
protected species observer sees any

[[Page 35530]]

abnormal behavior, this information will be related to the construction 
manager and the vibratory hammer will be shutdown until the animal has 
moved outside of the Level B harassment area.

Control of Discharge

    All in-water construction activities will comply with federal 
regulations to control the discharge of operational waste such as bilge 
and ballast waters, trash and debris, and sanitary and domestic waste 
that could be generated from all vessels associated with the Project. 
All Project vessels will also comply with the U.S. Coast Guard 
requirements for the prevention and control of oil and fuel spills (see 
Transco's application for more detail).
    NMFS has carefully evaluated the applicant's proposed mitigation 
measures and considered a range of other measures in the context of 
ensuring that NMFS prescribes the means of effecting the least 
practicable adverse impact on the affected marine mammal species and 
stocks and their habitat. Our evaluation of potential measures included 
consideration of the following factors in relation to one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     The practicability of the measure for applicant 
implementation.
    Any mitigation measure(s) prescribed by NMFS should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    1. Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    2. A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to received 
levels of in-water pile driving activities, or other activities 
expected to result in the take of marine mammals (this goal may 
contribute to 1, above, or to reducing harassment takes only).
    3. A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to received levels of in-water pile driving activities, or other 
activities expected to result in the take of marine mammals (this goal 
may contribute to 1, above, or to reducing harassment takes only).
    4. A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to received 
levels of in-water pile driving activity, or other activities expected 
to result in the take of marine mammals (this goal may contribute to a, 
above, or to reducing the severity of harassment takes only).
    5. Avoidance or minimization of adverse effects to marine mammal 
habitat, paying special attention to the food base, activities that 
block or limit passage to or from biologically important areas, 
permanent destruction of habitat, or temporary destruction/disturbance 
of habitat during a biologically important time.
    6. For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has determined that the 
aforementioned mitigation measures provide the means of effecting the 
least practicable adverse impact on marine mammal species or stocks and 
their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an incidental take authorization for an activity, 
section 101(a)(5)(D) of the MMPA states that we 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 an authorization must include the suggested 
means of accomplishing the necessary monitoring and reporting that 
would result in increased knowledge of the species and our expectations 
of the level of taking or impacts on populations of marine mammals 
present in the proposed action area.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    1. An increase in the probability of detecting marine mammals, both 
within the mitigation zone (thus allowing for more effective 
implementation of the mitigation) and in general to generate more data 
to contribute to the analyses mentioned below;
    2. An increase in our understanding of how many marine mammals are 
likely to be exposed to levels of in-water pile driving activity that 
we associate with specific adverse effects, such as behavioral 
harassment, TTS, or PTS;
    3. An increase in our understanding of how marine mammals respond 
to stimuli expected to result in take and how anticipated adverse 
effects on individuals (in different ways and to varying degrees) may 
impact the population, species, or stock (specifically through effects 
on annual rates of recruitment or survival) through any of the 
following methods:
     Behavioral observations in the presence of stimuli 
compared to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
     Physiological measurements in the presence of stimuli 
compared to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
     Distribution and/or abundance comparisons in times or 
areas with concentrated stimuli versus times or areas without stimuli;
    4. An increased knowledge of the affected species; and
    5. An increase in our understanding of the effectiveness of certain 
mitigation and monitoring measures.

Visual Monitoring

    Two NMFS-approved protected species observers will survey the Level 
B harassment area (~3 miles) for marine mammals 30 minutes before, 
during, and 30 minutes after all vibratory pile driving activities. The 
observers will be stationed on a picket boat, located about 1.5 miles 
from the pile hammer. The picket boat will circle the pile hammer at a 
1.5-mile distance so that the entire Level B harassment area could be 
surveyed. Information recorded during each observation within the Level 
B harassment area will be used to estimate numbers of animals 
potentially taken and will include the following:
     Numbers of individuals observed;
     Frequency of observation;
     Location within the Level B harassment area (i.e., 
distance from the sound source);
     Vibratory pile driving status (i.e., soft-start, active, 
post pile driving, etc.); and
     Reaction of the animal(s) to pile driving (if any) and 
observed behavior within the Level B harassment area, including bearing 
and direction of travel.
    If the Level B harassment area is obscured by fog or poor lighting 
conditions, vibratory pile driving will be delayed until the area is 
visible. If the Level B harassment area becomes

[[Page 35531]]

obscured by fog or poor lighting conditions while pile driving 
activities are occurring, pile driving will be shut down until the area 
is visible again.

Reporting

    Transco will provide NMFS with a draft monitoring report within 90 
days of the conclusion of monitoring. This report will include the 
following:

     A summary of the activity and monitoring plan (i.e., 
dates, times, locations);
     A summary of mitigation implementation;
     Monitoring results and a summary that addresses the goals 
of the monitoring plan, including the following:
    [cir] Environmental conditions when observations were made;
    [ssquf] Water conditions (i.e., Beaufort sea-state, tidal state)
    [ssquf] Weather conditions (i.e., percent cloud cover, visibility, 
percent glare)
    [cir] Survey-specific data:
    [ssquf] Date and time survey initiated and terminated;
    [cir] Date, time, number, species, and any other relevant data 
regarding marine mammals observed (for pre-activity, during activity, 
and post-activity surveys);
    [cir] Description of the observed behaviors (in both the presence 
and absence of activities):
    [cir] If possible, the correlation to underwater sound level 
occurring at the time of any observable behavior
    [cir] Estimated exposure/take numbers during activities
 An assessment of the implementation and effectiveness of 
prescribed mitigation and monitoring measures.

    Transco will submit a final report within 30 days after receiving 
NMFS' comments on the draft report. If NMFS has no comments, the draft 
report will be considered final.
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner not permitted by the 
authorization (if issued), such as an injury, serious injury, or 
mortality (e.g., ship-strike, gear interaction, and/or entanglement), 
Transco shall immediately cease the specified activities and 
immediately report the incident to the Incidental Take Program 
Supervisor, Permits and Conservation Division, Office of Protected 
Resources, NMFS, at 301-427-8401 and/or by email to 
[email protected] and the Northeast Regional Stranding 
Coordinator at 978-281-9300 ([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 hours 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 hours 
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).

    Transco shall not resume its activities until we are able to review 
the circumstances of the prohibited take. We will work with Transco to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Transco may not resume 
their activities until notified by us via letter, email, or telephone.
    In the event that Transco discovers an injured or dead marine 
mammal, and the lead visual observer 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 we describe in the next 
paragraph), Transco shall immediately report the incident to the 
Incidental Take Program Supervisor, Permits and Conservation Division, 
Office of Protected Resources, at 301-427-8401 and/or by email to 
[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 this 
section. Activities may continue while we review the circumstances of 
the incident. We would work with Transco to determine whether 
modifications in the activities are appropriate.
    In the event that Transco discovers an injured or dead marine 
mammal, and the lead visual observer determines that the injury or 
death is not associated with or related to the authorized activities 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), Transco would report the incident 
to the Incidental Take Program Supervisor, Permits and Conservation 
Division, Office of Protected Resources, at 301-427-8401 and/or by 
email to [email protected] and the Northeast Regional Stranding 
Coordinator at 978-281-9300 ([email protected]), within 24 hours of 
the discovery. Transco would provide photographs or video footage (if 
available) or other documentation of the stranded animal sighting to 
us.

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].
    This section of the proposed IHA (78 FR 78824, December 27, 2013) 
described the methods used to estimate marine mammal density; that 
information has not changed except for the fact that pile driving 
activities will no longer take place during spring or winter months. 
Therefore, the marine mammal densities for the winter and spring 
seasons are no longer applicable and only summer and fall densities 
were considered. Transco estimated potential take by multiplying the 
area of the zone of influence (the Level B harassment area) by the 
local animal density. This provides an estimate of the number of 
animals that might occupy the Level B harassment area at any given 
moment during vibratory pile driving activities. Further information on 
these calculations and how they were applied to each species is also 
provided in section 6.3 of Transco's application (see ADDRESSES). Based 
on a comment from the Marine Mammal Commission, the number of days of 
pile driving was also considered when estimating take.
    NMFS' current acoustic exposure criteria are provided in Table 2 
below. Based on these thresholds, Transco estimated the number of 
marine mammals that may be exposed to noise that rises to the level of 
take. Table 3 shows the authorized take for Transco's specified 
activity, based on the estimated seasonal densities for pile 
installation and removal and the number of days of activity (up to 
seven for installation and seven for removal). Table 3 was adjusted 
from the proposed IHA to account for the new construction schedule and 
the Marine Mammal Commission's comment.

[[Page 35532]]



------------------------------------------------------------------------
                           Non-explosive sound
-------------------------------------------------------------------------
          Criterion           Criterion definition        Threshold
------------------------------------------------------------------------
Level A Harassment (injury).  Permanent Threshold   180 dB re 1 microPa-
                               Shift (PTS) (Any      m (cetaceans)/190
                               level above that      dB re 1 microPa-m
                               which is known to     (pinnipeds) root
                               cause TTS).           mean square (rms).
Level B Harassment..........  Behavioral            160 dB re 1 microPa-
                               Disruption (for       m (rms).
                               impulse noises).
Level B Harassment..........  Behavioral            120 dB re 1 microPa-
                               Disruption (for       m (rms).
                               continuous noises).
------------------------------------------------------------------------


                                Table 3--Estimated Densities and Authorized Marine Mammal Take for the Specified Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Est. daily   Est. daily
                                     Est. summer      Est. fall    summer take   fall take    Total take   Abundance     % of stock
       Common species name          density  (per   density  (per   by level B   by level B   authorized    of stock     potentially       Pop. trend
                                   100 km\2\) \1\  100 km\2\) \1\   harassment   harassment                               affected
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray seal........................             N/A             N/A           14           14          196      348,900            0.06  increasing.
Harbor seal......................          156.41          156.41           69           69          966       99,340            0.97  N/A.
Bottlenose dolphin...............           26.91            3.70           12            2           98        7,147            1.37  N/A.
Short-beaked common dolphin......            3.59            5.28            2            3           35       52,893            0.06  N/A.
Harbor porpoise..................            0.00            3.20            0            2           14       99,340            0.01  N/A.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Source: Navy OPAREA Density Estimates (NODE) for the Northeast OPAREAS: Boston, Narragansett Bay, and Atlantic City (2007).
N/A = Not available

Analysis and Preliminary Determinations

Negligible Impact

    Negligible impact is ``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'' (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of Level B harassment takes, 
alone, is not enough information on which to base an impact 
determination. In addition to considering estimates of the number of 
marine mammals that might be ``taken'' through behavioral harassment, 
NMFS must consider other factors, such as the likely nature of any 
responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, migration, etc.), as 
well as the number and nature of estimated Level A harassment takes, 
the number of estimated mortalities, and effects on habitat.
    We do not anticipate that any injuries, serious injuries, or 
mortalities will occur as a result of Transco's Project, and we are not 
authorizing injury, serious injury, or mortality for this Project. We 
have determined, provided that the aforementioned mitigation and 
monitoring measures are implemented, that the impact of conducting pile 
driving activities off Rockaway Peninsula, from June 2014 through 
September 2014, may result, at worst, in a modification in behavior 
and/or low-level physiological effects (Level B harassment) of certain 
species of marine mammals. There are no known important feeding areas 
or haul-outs within the project area. While these species may make 
behavioral modifications, including temporarily vacating the area 
during the operation of the pile hammer to avoid the resultant acoustic 
disturbance, the availability of similar habitat surrounding the 
project area and the short and sporadic duration of the specified 
activities, have led us to determine that this action will not 
adversely affect annual rates of recruitment or survival.
    Many animals perform vital functions, such as feeding, resting, 
traveling, and socializing, on a diel cycle (i.e., 24 hour cycle). 
Behavioral reactions to noise exposure (such as disruption of critical 
life functions, displacement, or avoidance of important habitat) are 
more likely to be significant if they last more than one diel cycle or 
recur on subsequent days (Southall et al., 2007). While vibratory pile 
driving will occur over 2 consecutive days, this is still considered a 
short overall duration and it will only occur during daylight hours.
    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 required monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
Transco's specified activity will have a negligible impact on the 
affected marine mammal species or stocks.

Small Numbers

    The take numbers for each marine mammal species we are authorizing 
are small (all estimates are less than two percent) relative to the 
affected stock sizes. Accordingly, NMFS finds that small numbers of 
marine mammals will be taken.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action. Therefore, NMFS has determined that the total taking of 
affected species or stocks will not have an unmitigable adverse impact 
on the availability of such species or stocks for taking for 
subsistence purposes.

Endangered Species Act (ESA)

    Transco originally requested, and NMFS proposed, the incidental 
take of North Atlantic right whale, which is listed as endangered under 
the Endangered Species Act. Under section 7 of the Act, the Federal 
Energy Regulatory Commission (FERC; the federal agency responsible for 
permitting Transco's construction) initiated formal consultation with 
our Northeast Regional Office on the Project. We (i.e., National Marine 
Fisheries Service, Office of Protected Resources, Permits and 
Conservation Division), also initiated formal consultation under 
section 7 of the Act with the Northeast Regional Office to obtain a 
Biological Opinion (Opinion) evaluating the effects of issuing an 
incidental harassment

[[Page 35533]]

authorization for threatened and endangered marine mammals and, if 
appropriate, authorizing incidental take. However, following Transco's 
amendment to their request, the Permits and Conservation Division and 
the Northeast Regional Office concluded that take of North Atlantic 
right whale is unlikely. Therefore, the Project is not expected to 
result in the take of any threatened or endangered marine mammal 
species.

National Environmental Policy Act (NEPA)

    NMFS participated as a cooperating agency on the FERC's Rockaway 
Delivery Lateral Project Environmental Impact Statement (EIS), which 
was published on March 10, 2014 (79 FR 13295) and is available here: 
https://www.ferc.gov/industries/gas/enviro/eis/2014/02-28-14-eis.asp. 
NMFS determined that the EIS is adequate and appropriate to meet our 
responsibilities under NEPA for the issuance of an IHA. NMFS adopted 
FERC's FEIS on May 27, 2014.

    Dated: June 18, 2014.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2014-14563 Filed 6-20-14; 8:45 am]
BILLING CODE 3510-22-P