[Federal Register Volume 81, Number 237 (Friday, December 9, 2016)]
[Notices]
[Pages 89066-89085]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29597]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XE954


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to a Breakwater Replacement Project in 
Eastport, Maine

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

ACTION: Notice; proposed incidental harassment authorization; request 
for comments.

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SUMMARY: NMFS has received a request from the Maine Department of 
Transportation (ME DOT) for authorization to take marine mammals, by 
harassment, incidental to in-water construction activities from the 
Eastport Breakwater Replacement Project (EBRP) in Eastport, ME. 
Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting 
comments on its proposal to issue an incidental harassment 
authorization (IHA) to the ME DOT to incidentally take marine mammals, 
by Level B harassment only, during the specified activity.

DATES: Comments and information must be received no later than January 
9, 2017.

ADDRESSES: Comments on the applications should be addressed to Jolie 
Harrison, Chief, Permits and Conservation Division, Office of Protected 
Resources, National Marine Fisheries Service. Physical comments should 
be sent to 1315 East-West

[[Page 89067]]

Highway, Silver Spring, MD 20910 and electronic comments should be sent 
to [email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments received electronically, including 
all attachments, must not exceed a 25-megabyte file size. Attachments 
to electronic comments will be accepted in Microsoft Word or Excel or 
Adobe PDF file formats only. All comments received are a part of the 
public record and will generally be posted online at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm without change. All personal 
identifying information (e.g., name, address) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.

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

SUPPLEMENTARY INFORMATION: 

Availability

    An electronic copy of the ME DOT's application and supporting 
documents, as well as a list of the references cited in this document, 
may be obtained online at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing these documents, please 
call the contact listed above.

National Environmental Policy Act

    NMFS is preparing an Environmental Assessment (EA) in accordance 
with the National Environmental Policy Act (NEPA) and will consider 
comments submitted in response to this notice as part of that process.

Background

    Sections 101(a)(5)(D) of the MMPA (16 U.S.C. 1361 et seq.) direct 
the Secretary of Commerce to allow, upon request by U.S. citizens who 
engage in a specified activity (other than commercial fishing) within a 
specified geographical region if certain findings are made and either 
regulations are issued or, if the taking is limited to harassment, a 
notice of a proposed authorization is provided to the public for 
review.
    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'' in 50 CFR 216.103 
as ``. . . an impact resulting from the specified activity that cannot 
be reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the U.S. can apply for an authorization to 
incidentally take small numbers of marine mammals by harassment. 
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of 
an application followed by a 30-day public notice and comment period on 
any proposed authorizations for the incidental harassment of marine 
mammals. Within 45 days of the close of the comment period, NMFS must 
either issue or deny 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 31, 2016, we received an application from the ME DOT for 
authorization to take marine mammals incidental to construction 
activities associated with the replacement and expansion of the pier 
and breakwater in Eastport, Maine. The project includes the removal of 
the original filled sheet pile structure (built in 1962), the 
replacement of the approach pier, expansion of the existing pier head, 
and the construction of a new wave attenuator. The ME DOT submitted a 
revised version of the application on October 21, 2016, and a final 
application on December 2, 2016, which we deemed adequate and complete.
    The proposed activity would begin January 2017 and work may be 
authorized for one year, however, the pile driving activity is expected 
to be accomplished between January and August 2017. Harbor seal (Phoca 
vitulina), gray seal (Halichoerus grypus), harbor porpoise (Phocoena 
phocoena), and Atlantic white-sided dolphin (Lagenorhynchus acutus) are 
expected to be present during the proposed work. Pile driving 
activities are expected to produce in-water noise disturbance that has 
the potential to result in the behavioral harassment of marine mammals. 
NMFS is proposing to authorize take, by Level B Harassment, of the 
marine mammals, listed above, as a result of the specified activity.
    On August 4, 2016, NMFS released its Technical Guidance for 
Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing 
(Guidance). This new guidance established new thresholds for predicting 
auditory injury, which equates to Level A harassment under the MMPA. 
The ME DOT project used this new guidance when determining the injury 
(Level A) zones.

Description of the Specified Activities

Overview

    The Eastport Breakwater is a solid fill multi-use pier serving the 
local fishing community by providing a safe harbor for berthing as well 
as a loading and off-loading point for the fishing fleet. It also 
serves as a berth for larger commercial and passenger ships and a 
docking area for U.S. Coast Guard vessels. It is an `L' shaped 
structure with one leg perpendicular to the shoreline and the outer leg 
parallel (see Appendix A, Project Plans, of the ME DOT IHA 
application). The existing pier was built in 1962 and is on the verge 
of being taken out of service due to public safety concerns. Recently, 
emergency repairs have been completed to prevent shutdown, however, 
these repairs are only temporary and will not keep the pier in service 
indefinitely. The overall replacement structure consists of an open 
pier supported by 151 piles, which would consist of steel pipe piles, 
reinforced concrete pile caps, and a precast pre-stressed plank deck 
with structural overlay. The approach pier would be 40 feet (ft) by 300 
ft and the proposed main pier section that would be parallel to the 
shoreline would be 50 ft by 400 ft.
    ME DOT was issued an IHA for their previous work on this project in 
2014 (79 FR 59247; October 4, 2014) with a revised date for project 
activities in 2015 (80 FR 46565; July 20, 2015). This prosed IHA is a 
continuation of the work to complete the project that began in 2015.

Dates and Duration

    ME DOT plans to begin in-water construction in January 2017. The 
potential construction schedule is presented in Table 1. In-water pile 
driving activities are expected by completed by August 2017. Pile 
driving

[[Page 89068]]

would only occur in weather that provides adequate visibility for 
marine mammal monitoring activities. The proposed IHA would be valid 
for one year from the date of issuance.

                 Table 1--Construction Schedule for the Eastport Breakwater Replacement Project
----------------------------------------------------------------------------------------------------------------
                                                                               Approximate
                                                                              hours of  in-
                                                         Expected timeframe    water noise     Pile type to be
                                                        of  activities with     producing      driven/activity
            Activity                    Duration            potential to       activities     with potential to
                                                             result in         with sound         result in
                                                             harassment        levels over       harassment *
                                                                               120 dB RMS
----------------------------------------------------------------------------------------------------------------
Construction of new pile          8 weeks.............  January 2017-August             190  16''-36'' steel
 supported pier.                                         2017.                                pipe pile.
Breakwater construction.........  32 weeks............  January 2017-August             100  16''-36'' steel
                                                         2017.                                pipe pile; sheet
                                                                                              steel.
Installation of fender piles....  2 weeks.............  January 2017-August              60  16''-36'' steel
                                                         2017.                                pipe pile.
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Specified Geographic Region

    The proposed activity would occur in Cobscook Bay (Washington 
County) in Eastport, ME. The breakwater lies near the mouth of the St. 
Croix River at the end of a long peninsula adjacent to Quoddy Head. 
Cobscook Bay has extremely strong tidal currents and notably high 
tides, creating an extensive intertidal habitat for marine and coastal 
species. Water depths at the proposed project location are between 8 
and 55 ft (2.4-17 meter (m)). The Bay is considered a relatively intact 
marine system, as the area has not experienced much industrialization.

Detailed Description of Activities

    The replacement pier consists of two different sections. The 
approach pier will be replaced in kind by placing fill inside of a 
sheet pile enclosure, supported by driven piles. The approach section 
will consist of sheet piles that are driven just outside of the 
existing sheet piles. The sheet piles can be installed by use of a 
vibratory hammer only. The main pier, fender system, and wave fence 
system will be pile supported with piles ranging from 16 inch to 36 
inch diameter pipe piles. These piles will be driven with a vibratory 
hammer to a point and must be seated with an impact hammer to ensure 
stability.
    The vibratory hammer will drive the pile by applying a rapidly 
alternating force to the pile by rotating eccentric weights resulting 
in a downward vibratory force on the pile. The vibratory hammer will be 
attached to the pile head with a clamp. The vertical vibration in the 
pile functions by disturbing or liquefying the soil next to the pile, 
causing the soil particles to lose their frictional grip on the pile. 
The pile moves downward under its own weight, plus the weight of the 
hammer. It takes approximately one to three minutes to drive one pile. 
An impact hammer will be used to ensure the piles are embedded deep 
enough into the substrate to remain stable for the life of the pier. 
The impact hammer works by dropping a mass on top of the pile 
repeatedly to drive it into the substrate. Diesel combustion is used to 
push the mass upwards and allow it to fall onto the pile again to drive 
it. The breakdown of the size and amount of piles that is needed to 
complete the project can be found in Table 2.

    Table 2--Pile Types and Amounts Required To Complete the Project
------------------------------------------------------------------------
                                            Number of piles remaining to
            Pile size and type                      be installed
------------------------------------------------------------------------
16'' steel pipe pile (vibratory hammer)...  37.
20'' steel pipe pile (impact and vibratory  25.
 hammer).
36'' steel pipe pile (impact and vibratory  2.
 hammer).
Steel sheet pile (vibratory hammer).......  80 pairs.
------------------------------------------------------------------------

    The breakwater/wave attenuation component of the facility consists 
of two portions; Section 1 will consists of sheet piles will be 
installed along the back of the main pier and Section 2 will be a full 
depth wave attenuator consisting of king piles and sheet piles. Each 
king pile is designed as a cantilever beam to resist lateral loads. The 
king piles may also be able to be used to anchor the floating docks. 
The wave attenuator will be placed on the inshore side of the pier 
structure to reduce overall length and eliminate interference with the 
berthing face.
    Electrical and water utilities will be installed inside of the 
approach pier and also under the main pier. This will require a small 
amount of trenching under the main pier to bury portions of these 
lines.
    At this stage of the project, the demolition of the old breakwater/
pier system will take place. This is likely to be staged after a 
portion of the construction of the new pier is completed to help with 
access during demolition. The existing pier is a solid fill pier that 
is surrounded by sheet piles. Demolition will include removal of the 
fill material between the sheet piles, and cutting the sheet piles off 
at the mud line for removal. The fill will likely be removed with an 
excavator.
    Standard ME DOT construction best management practices (BMPs) will 
also be used throughout the project. The erosion and sedimentation 
control BMPs can be found at http://www.maine.gov/dep/land/erosion/escbmps/. A spill prevention, control, and countermeasure plan will 
also be required for the project. This plan will ensure that all 
contaminants are properly stored and a cleanup plan is in place in case 
of any spills.

Description of Marine Mammals in the Area of the Specified Activity

    The marine mammal species under NMFS jurisdiction, proposed for 
incidental Level B take as a result of project activities, are the 
harbor seal, gray seal, harbor porpoise, and Atlantic white-sided 
dolphin. In the species accounts provided below, we offer a brief 
introduction to the species and relevant stock as well as available 
information regarding population trends and threats, and describe any 
information regarding local occurrence (Table 3). Other species that 
may possibly occur in the vicinity of the proposed activity include 
North Atlantic right whale (Eubalaena glacialis), humpback whale 
(Megaptera novaengliae), fin whale (Balaenoptera physalus), minke whale 
(Balaenoptera acutorostrata), and sei whale (Balaenoptera borealis). 
However, these five species are generally associated

[[Page 89069]]

with open ocean habitats and occur in more offshore locations. NMFS has 
concluded that the specified activity will not impact these five 
species and they are not discussed further.

                                                 Table 3--Marine Mammal Information for the Project Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                     Stock abundance (CV,
              Species                         Stock             ES)/MMPA status;       Nmin, most recent     PBR \3\   Annual M/   Relative occurrence/
                                                              strategic (Y/N) \1\    abundance survey) \2\               SI \4\    season of occurrence
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal........................  Western North Atlantic  -; N                   75,834 (0.15; 66,884;       2,006        420  Harbor seals are year-
                                                                                     2012).                                        round inhabitants of
                                                                                                                                   the coastal waters of
                                                                                                                                   Maine and eastern
                                                                                                                                   Canada.
Gray seal..........................  Western North Atlantic  -; N                   unknown 505,00 (best      unknown      5,004  Gray seals currently
                                                                                     estimate 2014                                 pup at two
                                                                                     Canadian population                           established colonies
                                                                                     DFO 2014).                                    in Maine: Green and
                                                                                                                                   Seal Islands.
Harbor porpoise....................  Gulf of Maine/Bay of    -; N                   79,883 (0.32; 61,415;         706        564  During winter (January
                                      Fundy.                                         2011).                                        to March),
                                                                                                                                   intermediate
                                                                                                                                   densities of harbor
                                                                                                                                   porpoises can be
                                                                                                                                   found in waters off
                                                                                                                                   New York to New
                                                                                                                                   Brunswick, Canada. In
                                                                                                                                   spring (April-June),
                                                                                                                                   harbor porpoises are
                                                                                                                                   widely dispersed from
                                                                                                                                   ME to NJ, with lower
                                                                                                                                   densities farther
                                                                                                                                   north and south.
Atlantic white-sided dolphin.......  Western North Atlantic  -; N                   48,819 (0.61; 30,403;         304        102  During January to May,
                                                                                     2011).                                        low numbers of white-
                                                                                                                                   sided dolphins are
                                                                                                                                   found from Georges
                                                                                                                                   Bank (separates the
                                                                                                                                   Gulf of Maine from
                                                                                                                                   the Atlantic Ocean to
                                                                                                                                   Jeffreys Ledge (in
                                                                                                                                   the Western Gulf of
                                                                                                                                   Maine off of New
                                                                                                                                   Hampshire).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR (see footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species
  or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For certain stocks of
  pinnipeds, abundance estimates are based upon observations of animals (often pups) ashore multiplied by some correction factor derived from knowledge
  of the species (or similar species) life history to arrive at a best abundance estimate; therefore, there is no associated CV. In these cases, the
  minimum abundance may represent actual counts of all animals ashore. The most recent abundance survey that is reflected in the abundance estimate is
  presented; there may be more recent surveys that have not yet been incorporated into the estimate.
\3\ Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a
  marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP).
\4\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value. All
  values presented here are from the final 2015 Pacific SAR. (http://www.nmfs.noaa.gov/pr/sars/region.htm)

Harbor Seals

    On the east coast, harbor seals range from the Canadian Arctic to 
southern New England, New York, and occasionally the Carolinas. Seals 
are year-round inhabitants of the coastal waters of Maine and eastern 
Canada (Katona et al. 1993 as cited in Waring et al. 2016). A northward 
movement from southern New England to ME and eastern Canada occurs 
prior to the pupping season, which takes place from mid-May through 
June along the ME Coast (Richardson 1976; Wilson 1978; Whitman and 
Payne 1990; Kenney 1994; deHart 2002 as cited in Waring et al. 2016). 
Earlier research identified no pupping areas in southern New England 
(Payne and Schneider 1984; Barlas 1999 as cited in Waring et al. 2016); 
however, more recent documentation suggests that some pupping is 
occurring at high-use haulout sites at the Isles of Shoals, ME and off 
Manomet, Massachusetts (MA). The overall geographic range throughout 
coastal New England has not changed significantly during the last 
century (Payne and Selzer 1989 as cited in Waring et al. 2016). Harbor 
seals can be observed year-round in Cobscook Bay. The last surveys in 
Cobscook Bay were conducted in 2001 where a total of 193 harbor seals 
were observed on the U.S. side (144 adults and 49 pups) (Gilbert et al. 
2005). Harbor seals travel back and forth under the bridge at Lubec, ME 
(approximately three miles (mi) south of the project area) and 
Campbello Island, New Brunkswick, Canada (J. Gilbert, University of ME 
and S. Wood, NOAA pers. comm. 2016).

[[Page 89070]]

During the 2001 surveys, a major haulout was observed on Campebello 
Island. Harbor seals also pass through the Eastport area to their 
haulouts with the nearest largest site in South Bay (LuBec, ME) (J. 
Gilbert and S. Wood, pers. comm. 2016).
    Harbor seals are typically found in temperate coastal habitats and 
use rocks, reefs, beaches, and drifting glacial ice as haul outs and 
pupping sites. Seals use terrestrial habitat ``haul-out sites'' 
throughout the year, particularly during the pupping and molting 
periods. In northern New England, they typically haul-out on tidal 
ledges. Haul-out behavior is strongly influenced by tide stage, air 
temperature, time of day, wind speed, and precipitation. Human 
disturbance can also affect haul-out behavior although harbor seals 
appear to acclimate to some human activity (e.g., lobster boats along 
the coast of ME) (Weilgart 2007). Prey species for harbor seals include 
sandlance, silver hake, Atlantic herring, and redfish. Other species 
included cod, haddock, pollock, flounders, mackerel, and squid.
    Pinnipeds, such as the harbor seal (and also the gray seal as 
discussed below) 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. The generalized hearing range for pinnipeds is 50 Hz to 86 
kHz (NOAA 2016). Please also refer to NMFS' Web site (http://www.fisheries.noaa.gov/pr/species/mammals/seals/harbor-seal.html) for 
the harbor seal account and see NMFS' Stock Assessment Reports (SAR), 
available at http://www.nmfs.noaa.gov/pr/sars, for more detailed 
accounts of the harbor seal stocks' status and abundance.

Gray seals

    The Western North Atlantic stock of the gray seal ranges from 
eastern Canada to the northeastern United States. Current estimates of 
the total Western North Atlantic stock are not available; although, 
estimates of portions of the stock are available for select time 
periods. Gray seal abundance is likely increasing in the U.S. Atlantic 
U.S. Exclusive Economic Zone (EEZ), but the rate of increase is 
unknown. Maine coast-wide surveys conducted during the summer found 597 
and 1,731 gray seals in 1993 and 2001, respectively (Gilbert et al. 
2005 as cited in Waring et al. 2016). In March 1999, a maximum of 
5,611gray seals were observed in the region south of ME (between Isles 
of Shoals, ME and Woods Hole, MA) (Barlas 1999 as cited in Waring et 
al. 2016). During the 2001 surveys (May and June), no gray seals were 
observed in Cobscook Bay (J. Gilbert and S. Wood pers. comm. 2016) and 
also none during a survey in early 2000's (January to March) (J. 
Gilbert pers. comm. 2016, Nelson et al. 2006). Given where gray seals 
have been observed during the harbor seal pupping flights (May and 
June) Cobscook Bay does not appear to be important habitat except for 
the gray seals on nearby Campebello Island, New Brunkswick, Canada 
(south of the project area) (S. Wood pers. comm. 2016).
    Gray seals pup at two established colonies off the coast of ME, 
Green Island and Seal Island. Aerial survey data from these sites 
indicate that pup production is increasing with a minimum of 2,620 pups 
born in the U.S. in 2008 (Green Island (59 seals), Seal Island (466 
seals), Muskeget Island, MA (2,095 seals)) (Wood LaFond 2009 as cited 
in Waring et al. 2016). Both colonies are tens of miles away from the 
proposed project area. There is no gray seal pupping in Cobscook Bay 
(J. Gilbert and S. Wood pers. comm. 2016). Overall there have not been 
many reconnaissance flight surveys for gray seal pupping so some areas 
of occurrence may be unknown with the exception of gray seals pupping 
along the mid-coast of ME (i.e. Penobscot Bay) (S. Wood pers. comm. 
2016).
    Gray seals reside in coastal waters and also inhabit islands, 
sandbars, ice shelves, and icebergs. Please also refer to NMFS' Web 
site (http://www.fisheries.noaa.gov/pr/species/mammals/seals/gray-seal.html) for the generalized gray seal account and see NMFS' Stock 
Assessment Reports (SAR), available at http://www.nmfs.noaa.gov/pr/sars, for more detailed accounts of the gray seal stocks' status and 
abundance.

Harbor Porpoises

    In the Western North Atlantic, the harbor porpoise stock is found 
in U.S. and Canadian Atlantic waters. Harbor porpoises in U.S. waters 
are divided into 10 stocks, based on genetics, movement patterns, and 
management (Waring et al. 2016). Any harbor porpoises encountered 
during the proposed project would be part of the Gulf of Maine-Bay of 
Fundy stock. A current trend analysis has not been conducted for this 
stock (Waring et al. 2016). During the winter months (January to 
March), medium densities are found in waters off of New Brunswick, 
Canada to NY. During the spring (April to June) and fall (October to 
December), harbor porpoises are widely dispersed from ME to NJ, with 
lower densities farther north and south (Waring et al. 2016). In the 
summer (July to September), harbor porpoises are concentrated in the 
northern Gulf of Maine and southern Bay of Fundy region, generally in 
waters less than 150 m deep (Gaskin 1977; Kraus et al. 1983; Palka 
1995a, 1995b as cited in Waring et al. 2016), with a few sightings in 
the upper Bay of Fundy and on Georges Bank (Palka 2000 as cited in 
(Waring et al. 2016).
    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 (650 ft) deep. Harbor porpoises are 
considered high-frequency cetaceans and their generalized hearing 
ranges from 275 Hz to 160 kHz (NOAA 2016). Please also refer to NMFS' 
Web site (http://www.fisheries.noaa.gov/pr/species/mammals/porpoises/harbor-porpoise.html) for the generalized harbor porpoise account and 
see NMFS' Stock Assessment Reports (SAR), available at http://www.nmfs.noaa.gov/pr/sars, for more detailed accounts of the harbor 
porpoise stocks' status and abundance.

Atlantic White-Sided Dolphins

    The Western North Atlantic stock of Atlantic white-sided dolphins 
ranges from Greenland to North Carolina. A current trend analysis has 
not been conducted for this stock (Waring et al. 2016). Any Atlantic 
white-sided dolphins encountered during the proposed project would 
likely be part the Gulf of Maine population and are most common in 
continental shelf waters from Hudson Canyon (approximately 39[deg] N) 
to Georges Bank, and in the Gulf of ME and lower Bay of Fundy (Waring 
et al. 2016). During January to May, low numbers of white-sided 
dolphins are found from Georges Bank to Jeffreys Ledge (off New 
Hampshire), with even lower numbers south of Georges Bank (Waring et 
al. 2016). From June through September, large numbers of white-sided 
dolphins are found from Georges Bank to the lower Bay of Fundy. From 
October to December, white-sided dolphins occur at intermediate 
densities from southern Georges Bank to southern Gulf of ME (Payne and 
Heinemann 1990 as cited in Waring et al. 2016).

[[Page 89071]]

    Atlantic white-sided dolphins are found in temperate and sub-polar 
waters, primarily in continental shelf waters to the 100-m contour and 
exhibit seasonal movements between inshore northern waters and southern 
offshore waters (Waring et al. 2016). They are considered mid-frequency 
cetaceans and their generalized hearing ranges from150 Hz to 160 kHz 
(NOAA 2016). Please also refer to NMFS' Web site (http://www.fisheries.noaa.gov/pr/species/mammals/dolphins/atlantic-white-sided-dolphin.html) for the generalized Atlantic white-sided dolphin 
account and see NMFS' Stock Assessment Reports (SAR), available at 
http://www.nmfs.noaa.gov/pr/sars, for more detailed accounts of the 
species status and abundance. The Atlantic white-sided dolphin is 
assessed in the Atlantic SAR (Waring et al. 2016).

Potential Effects of the Specified Activity on Marine Mammals

    This section includes a summary and discussion of the ways that 
components of the specified activity (e.g., pile driving) may impact 
marine mammals. This discussion includes reactions that we consider to 
rise to the level of a take and those that we do not consider to rise 
to the level of a take (for example, with acoustics, we may include a 
discussion of studies that showed animals not reacting at all to sound 
or exhibiting barely measurable avoidance). This section is intended as 
a background of potential effects and does not consider either the 
specific manner in which this activity will be carried out or the 
mitigation that will be implemented, and how either of those will shape 
the anticipated impacts from this specific activity. The Estimated Take 
by Incidental Harassment section later in this document will include a 
quantitative analysis of the number of individuals that are expected to 
be taken by this activity. The Negligible Impact Analysis section will 
include the analysis of how this specific activity will impact marine 
mammals and will consider the content of this section, the Estimated 
Take by Incidental Harassment section, the Proposed Mitigation section, 
and the Anticipated Potential Effects on Marine Mammal Habitat section 
to draw conclusions regarding the likely impacts of this activity on 
the reproductive success or survivorship of individuals and from that 
on the affected marine mammal populations or stocks.

Description of Sound Terms and Sources

    Sound travels in waves, the basic components of which are 
frequency, wavelength, velocity, and amplitude. Frequency is the number 
of pressure waves that pass by a reference point per unit of time and 
is measured in hertz (Hz) or cycles per second. Wavelength is the 
distance between two peaks of a sound wave; lower frequency sounds have 
longer wavelengths than higher frequency sounds and attenuate 
(decrease) more rapidly in shallower water. Amplitude is the height of 
the sound pressure wave or the `loudness' of a sound and is typically 
measured using the decibel (dB) scale. A dB is the ratio between a 
measured pressure (with sound) and a reference pressure (sound at a 
constant pressure, established by scientific standards). It is a 
logarithmic unit that accounts for large variations in amplitude. 
Therefore, relatively small changes in dB ratings correspond to large 
changes in sound pressure. When referring to sound pressure levels 
(SPLs; the sound force per unit area), sound is referenced in the 
context of underwater sound pressure to 1 microPascal ([mu]Pa). One 
pascal is the pressure resulting from a force of one newton exerted 
over an area of one square meter (m). The source level (SL) represents 
the sound level at a distance of 1 m from the source (referenced to 1 
[mu]Pa). The received level is the sound level at the listener's 
position. Note that all underwater sound levels in this document are 
referenced to a pressure of 1 [micro]Pa and all airborne sound levels 
in this document are referenced to a pressure of 20 [micro]Pa.
    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 1983). 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 than by peak pressures.
    When underwater objects vibrate or activity occurs, sound-pressure 
waves are created. These waves alternately compress and decompress the 
water as the sound wave travels. Underwater sound waves radiate in all 
directions away from the source (similar to ripples on the surface of a 
pond), except in cases where the source is directional. The 
compressions and decompressions associated with sound waves are 
detected as changes in pressure by aquatic life and man-made sound 
receptors such as hydrophones.
    Even in the absence of sound from the specified activity, the 
underwater environment is typically loud due to ambient sound. Ambient 
sound is defined as environmental background sound levels lacking a 
single source or point (Richardson et al. 1995), and the sound level of 
a region is defined by the total acoustical energy being generated by 
known and unknown sources. These sources may include physical (e.g., 
waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds 
produced by marine mammals, fish, and invertebrates), and anthropogenic 
sound (e.g., vessels, dredging, aircraft, construction). A number of 
sources contribute to ambient sound, including the following 
(Richardson et al. 1995):
     Wind and waves: The complex interactions between wind and 
water surface, including processes such as breaking waves and wave-
induced bubble oscillations and cavitation, are a main source of 
naturally occurring ambient noise for frequencies between 200 Hz and 50 
kHz (Mitson 1995). In general, ambient sound levels tend to increase 
with increasing wind speed and wave height. Surf noise becomes 
important near shore, with measurements collected at a distance of 8.5 
km from shore showing an increase of 10 dB in the 100 to 700 Hz band 
during heavy surf conditions.
     Precipitation: Sound from rain and hail impacting the 
water surface can become an important component of total noise at 
frequencies above 500 Hz, and possibly down to 100 Hz during quiet 
times.
     Biological: Marine mammals can contribute significantly to 
ambient noise levels, as can some fish and shrimp. The frequency band 
for biological contributions is from approximately 12 Hz to over 100 
kHz.
     Anthropogenic: Sources of ambient noise related to human 
activity include transportation (surface vessels and aircraft), 
dredging and construction, oil and gas drilling and production, seismic 
surveys, sonar, explosions, and ocean acoustic studies. Shipping noise 
typically dominates the total ambient noise for frequencies between 20 
and 300 Hz. In general, the frequencies of anthropogenic sounds are 
below 1 kHz and, if higher frequency sound levels are created, they 
attenuate rapidly (Richardson et al. 1995). Sound from identifiable 
anthropogenic sources other than the activity of interest (e.g., a 
passing vessel) is sometimes termed background sound, as opposed to 
ambient sound.

[[Page 89072]]

    The sum of the various natural and anthropogenic sound sources at 
any given location and time--which comprise ``ambient'' or 
``background'' sound--depends not only on the source levels (as 
determined by current weather conditions and levels of biological and 
shipping activity), but also on the ability of sound to propagate 
through the environment. In turn, sound propagation is dependent on the 
spatially and temporally varying properties of the water column and sea 
floor, and is frequency-dependent. As a result of the dependence on a 
large number of varying factors, ambient sound levels can be expected 
to vary widely over both coarse and fine spatial and temporal scales. 
Sound levels at a given frequency and location can vary by 10-20 dB 
from day to day (Richardson et al. 1995). The result is that, depending 
on the source type and its intensity, sound from the specified activity 
may be a negligible addition to the local environment or could form a 
distinctive signal that may affect marine mammals.
    Noise levels from the previous EBRP project were monitored in 2015/
2016 (see application). The underwater acoustic environment in 
Eastport, ME is likely to be dominated by noise from day-to-day port 
and vessel activities. It is reasonable to believe that levels will 
generally be similar to the previous IHA for the EBRP as there is a 
similar type and degree of activity within the same type of 
environment.
    In-water construction activities associated with the project 
include impact and vibratory pile driving. The sounds produced by these 
activities fall into one of two general sound types: Pulsed and non-
pulsed. The distinction between these two sound types is important 
because they have differing potential to cause physical effects, 
particularly with regard to hearing (e.g., Ward 1997 in Southall et al. 
2007). Please see Southall et al. (2007) for an in-depth discussion of 
these concepts.
    Pulsed sound sources (e.g., explosions, gunshots, sonic booms, 
impact pile driving) produce signals that are brief (typically 
considered to be less than one second), broadband, atonal transients 
(ANSI 1986; Harris 1998; NIOSH 1998; ISO 2003; ANSI 2005) and occur 
either as isolated events or repeated in some succession. Pulsed sounds 
are all characterized by a relatively rapid rise from ambient pressure 
to a maximal pressure value followed by a rapid decay period that may 
include a period of diminishing, oscillating maximal and minimal 
pressures, and generally have an increased capacity to induce physical 
injury as compared with sounds that lack these features.
    The sounds produced by vibratory pile driving falls into the 
general sound type of non-pulsed. Non-pulsed sounds can be tonal, 
narrowband, or broadband, brief or prolonged, and may be either 
continuous or non-continuous (ANSI 1995, NIOSH 1998). Some of these 
non-pulsed sounds can be transient signals of short duration but 
without the essential properties of pulses (e.g., rapid rise time). 
Examples of non-pulsed sounds include those produced by vessels, 
aircraft, machinery operations such as drilling or dredging, vibratory 
pile driving, and active sonar systems. The duration of such sounds, as 
received at a distance, can be greatly extended in a highly reverberant 
environment.
    Vibratory hammers install piles by vibrating them and allowing the 
weight of the hammer to push them into the sediment. Vibratory hammers 
produce significantly less sound than impact hammers. Peak SPLs may be 
180 dB or greater, but are generally 10 to 20 dB lower than SPLs 
generated during impact pile driving of the same-sized pile (Oestman et 
al. 2009). Rise time is slower, reducing the probability and severity 
of injury, and sound energy is distributed over a greater amount of 
time (Nedwell and Edwards 2002; Carlson et al. 2005).

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals, 
and exposure to sound can have deleterious effects. To appropriately 
assess these potential effects, it is necessary to understand the 
frequency ranges marine mammals are able to hear. Current data indicate 
that not all marine mammal species have equal hearing capabilities 
(e.g., Richardson et al. 1995; Wartzok and Ketten 1999; Au and Hastings 
2008). To reflect this, Southall et al. (2007) recommended that marine 
mammals be divided into hearing groups based on measured or estimated 
hearing ranges on the basis of available behavioral data, audiograms 
derived using auditory evoked potential techniques, anatomical 
modeling, and other data. NMFS made modifications to the marine mammal 
hearing groups proposed in Southall et al. (2007) that is reflected in 
the new Technical Guidance for Assessing the Effects of Anthropogenic 
Sound on Marine Mammal Hearing (July 2016) (http://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm). The hearing group, pinnipeds, high 
frequency cetaceans (harbor porpoise) and mid-frequency cetaceans 
(Atlantic white-sided dolphin) which are the subject of this project, 
and the associated generalized hearing range is indicated in Table 4 
below:

                  Table 4--Marine Mammal Hearing Groups
            [as referenced in NOAA 2016, Technical Guidance]
------------------------------------------------------------------------
            Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Phocid pinnipeds (PW) (underwater)     50 Hz to 86 kHz.
 (true seals).
High-frequency (HF) cetaceans (true    275 Hz to 160 kHz.
 porpoises).
Mid-frequency (MF) cetaceans           150 Hz to 160 kHz.
 (dolphins, toothed whales, beaked
 whales, bottlenose whales).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al. 2007) and PW pinniped (approximation).

Acoustic Effects, Underwater

    Potential Effects of Pile Driving Sound--The effects of sounds from 
pile driving might result in one or more of the following: Temporary or 
permanent hearing impairment, non-auditory physical or physiological 
effects, behavioral disturbance, and masking (Richardson et al. 1995; 
Gordon et al. 2003; Nowacek et al. 2007; Southall et al. 2007). The 
effects of pile driving on marine mammals are dependent on several 
factors, including the size, type, and depth of the animal; the depth, 
intensity, and duration of the pile driving sound; the depth of the 
water column; the substrate of the habitat; the standoff distance 
between the pile and

[[Page 89073]]

the animal; and the sound propagation properties of the environment. 
Impacts to marine mammals from pile driving activities are expected to 
result primarily from acoustic pathways. As such, the degree of effect 
is intrinsically related to the received level and duration of the 
sound exposure, which are in turn influenced by the distance between 
the animal and the source. The further away from the source, the less 
intense the exposure should be. The substrate and depth of the habitat 
affect the sound propagation properties of the environment. Shallow 
environments are typically more structurally complex, which leads to 
rapid sound attenuation. In addition, substrates that are soft (e.g., 
sand) would absorb or attenuate the sound more readily than hard 
substrates (e.g., rock) which may reflect the acoustic wave. Soft 
porous substrates would also likely require less time to drive the 
pile, and possibly less forceful equipment, which would ultimately 
decrease the intensity of the acoustic source.
    In the absence of mitigation, impacts to marine species would be 
expected to result from physiological and behavioral responses to both 
the type and strength of the acoustic signature (Viada et al. 2008). 
The type and severity of behavioral impacts are more difficult to 
define due to limited studies addressing the behavioral effects of 
impulsive sounds on marine mammals.
    Hearing Impairment and Other Physical Effects--Marine mammals 
exposed to high intensity sound repeatedly or for prolonged periods can 
experience hearing threshold shift (TS), which is the loss of hearing 
sensitivity at certain frequency ranges (Kastak et al. 1999; Schlundt 
et al. 2000; Finneran et al. 2002, 2005). TS can be permanent (PTS), in 
which case the loss of hearing sensitivity is not recoverable, or 
temporary (TTS), in which case the animal's hearing threshold would 
recover over time (Southall et al. 2007). Marine mammals depend on 
acoustic cues for vital biological functions, (e.g., orientation, 
communication, finding prey, avoiding predators). However, the severity 
of the effects of TTS on an individual and likelihood of effecting its 
fitness depends on the frequency and duration of TTS, as well as the 
biological context in which it occurs. TTS of limited duration, 
occurring in a frequency range that does not coincide with that used 
for recognition of important acoustic cues, would have little to no 
effect on an animal's fitness. Repeated sound exposure that leads to 
TTS could cause PTS. PTS constitutes injury, but TTS does not (Southall 
et al. 2007). Based on the best scientific information available, the 
SPLs for the EBRP may exceed the thresholds that could cause TTS or the 
onset of PTS based on NMFS' new acoustic guidance (NMFS 2016a, 81 FR 
51694; August 4, 2016). The following subsections discuss in somewhat 
more detail the possibilities of TTS, PTS, and non-auditory physical 
effects.
    Temporary Threshold Shift--TTS is the mildest form of hearing 
impairment that can occur during exposure to a strong sound (Kryter 
1985). While experiencing TTS, the hearing threshold rises, and a sound 
must be stronger in order to be heard. In terrestrial mammals, TTS can 
last from minutes or hours to days (in cases of strong TTS). For sound 
exposures at or somewhat above the TTS threshold, hearing sensitivity 
in both terrestrial and marine mammals recovers rapidly after exposure 
to the sound ends. Few data on sound levels and durations necessary to 
elicit mild TTS have been obtained for marine mammals, and none of the 
published data concern TTS elicited by exposure to multiple pulses of 
sound. Available data on TTS in marine mammals are summarized in 
Southall et al. (2007).
    Permanent Threshold Shift--When PTS occurs, there is physical 
damage to the sound receptors in the ear. In severe cases, there can be 
total or partial deafness, while in other cases the animal has an 
impaired ability to hear sounds in specific frequency ranges (Kryter 
1985). There is no specific evidence that exposure to pulses of sound 
can cause PTS in any marine mammal. However, given the possibility that 
mammals close to a sound source might incur TTS, there has been further 
speculation about the possibility that some individuals might incur 
PTS. Single or occasional occurrences of mild TTS are not indicative of 
permanent auditory damage, but repeated or (in some cases) single 
exposures to a level well above that causing TTS onset might elicit 
PTS.
    Relationships between TTS and PTS thresholds have not been studied 
in marine mammals but are assumed to be similar to those in humans and 
other terrestrial mammals. PTS might occur at a received sound level at 
least several decibels above that inducing mild TTS if the animal were 
exposed to strong sound pulses with rapid rise time. Based on data from 
terrestrial mammals, a precautionary assumption is that the PTS 
threshold for impulse sounds (such as pile driving pulses as received 
close to the source) is at least 6 dB higher than the TTS threshold on 
a peak-pressure basis and probably greater than 6 dB (Southall et al. 
2007). On an SEL basis, Southall et al. (2007) estimated that received 
levels would need to exceed the TTS threshold by at least 15 dB for 
there to be risk of PTS.
    Non-auditory Physiological Effects--Non-auditory physiological 
effects or injuries that theoretically might occur in marine mammals 
exposed to strong underwater sound include stress, neurological 
effects, bubble formation, resonance effects, and other types of organ 
or tissue damage (Cox et al. 2006; Southall et al. 2007). Studies 
examining such effects are limited. In general, little is known about 
the potential for pile driving to cause auditory impairment or other 
physical effects in marine mammals. Available data suggest that such 
effects, if they occur at all, would presumably be limited to short 
distances from the sound source and to activities that extend over a 
prolonged period. The available data do not allow identification of a 
specific exposure level above which non-auditory effects can be 
expected (Southall et al. 2007) or any meaningful quantitative 
predictions of the numbers (if any) of marine mammals that might be 
affected in those ways. Marine mammals that show behavioral avoidance 
of pile driving, including some odontocetes and some pinnipeds, are 
especially unlikely to incur auditory impairment or non-auditory 
physical effects.

Disturbance Reactions

    Disturbance includes a variety of effects, including subtle changes 
in behavior, more conspicuous changes in activities, and displacement. 
Behavioral responses to sound are highly variable and context-specific 
and reactions, if any, depend on species, state of maturity, 
experience, current activity, reproductive state, auditory sensitivity, 
time of day, and many other factors (Richardson et al. 1995; Wartzok et 
al. 2003; Southall et al. 2007).
    Habituation can occur when an animal's response to a stimulus wanes 
with repeated exposure, usually in the absence of unpleasant associated 
events (Wartzok et al. 2003). Animals are most likely to habituate to 
sounds that are predictable and unvarying. The opposite process is 
sensitization, when an unpleasant experience leads to subsequent 
responses, often in the form of avoidance, at a lower level of 
exposure. Behavioral state may affect the type of response as well. For 
example, animals that are resting may show greater behavioral change in 
response to disturbing sound levels than animals that are highly 
motivated to remain in an area for feeding (Richardson et al. 1995; NRC 
2003; Wartzok et al. 2003).

[[Page 89074]]

    Controlled experiments with captive marine mammals showed 
pronounced behavioral reactions, including avoidance of loud sound 
sources (Ridgway et al. 1997; Finneran et al. 2003). Responses to 
continuous sound, such as vibratory pile installation, have not been 
documented as well as responses to pulsed sounds.
    With pile driving it is likely that the onset of this activity 
could result in temporary, short term changes in an animal's typical 
behavior and/or avoidance of the affected area. These behavioral 
changes may include (Richardson et al., 1995): Changing durations of 
surfacing and dives, number of blows per surfacing, or moving direction 
and/or speed; reduced/increased vocal activities; changing/cessation of 
certain behavioral activities (such as socializing or feeding); visible 
startle response or aggressive behavior; avoidance of areas where sound 
sources are located; and/or flight responses (e.g., pinnipeds flushing 
into water from haul-outs or rookeries). Pinnipeds may increase their 
haul-out time, possibly to avoid in-water disturbance (Thorson and 
Reyff 2006).
    The biological significance of many of these behavioral 
disturbances is difficult to predict, especially if the detected 
disturbances appear minor. However, the consequences of behavioral 
modification could be expected to be biologically significant if the 
change affects growth, survival, or reproduction. Significant 
behavioral modifications that could potentially lead to effects on 
growth, survival, or reproduction include:
     Drastic changes in diving/surfacing patterns;
     Habitat abandonment due to loss of desirable acoustic 
environment; and
     Cessation of feeding or social interaction.
    The onset of behavioral disturbance from anthropogenic sound 
depends on both external factors (characteristics of sound sources and 
their paths) and the specific characteristics of the receiving animals 
(hearing, motivation, experience, demography) and is difficult to 
predict (Southall et al. 2007).

Auditory Masking

    Natural and artificial sounds can disrupt behavior by masking, or 
interfering with, a marine mammal's ability to hear other sounds. 
Masking occurs when the receipt of a sound is interfered with by 
another coincident sound at similar frequencies and at similar or 
higher levels. Chronic exposure to excessive, though not high-
intensity, sound could cause masking at particular frequencies for 
marine mammals, which utilize sound for vital biological functions. 
Masking can interfere with detection of acoustic signals such as 
communication calls, echolocation sounds, and environmental sounds 
important to marine mammals. Therefore, under certain circumstances, 
marine mammals whose acoustical sensors or environment are being 
severely masked could also be impaired from maximizing their 
performance fitness in survival and reproduction. If the coincident 
(masking) sound were man-made, it could be potentially harassing if it 
disrupted hearing-related behavior. It is important to distinguish TTS 
and PTS, which persist after the sound exposure, from masking, which 
occurs during the sound exposure. Because masking (without resulting in 
TS) is not associated with abnormal physiological function, it is not 
considered a physiological effect, but rather a potential behavioral 
effect.
    The frequency range of the potentially masking sound is important 
in determining any potential behavioral impacts. Because sound 
generated from in-water vibratory pile driving is mostly concentrated 
at low frequency ranges, it may have less effect on high frequency 
echolocation sounds by odontocetes (toothed whales), which may hunt 
harbor seal. However, lower frequency man-made sounds are more likely 
to affect detection of communication calls and other potentially 
important natural sounds such as surf and prey sound. It may also 
affect communication signals when they occur near the sound band and 
thus reduce the communication space of animals (e.g., Clark et al. 
2009) and cause increased stress levels (e.g., Foote et al. 2004; Holt 
et al. 2009).
    Masking has the potential to impact species at the population or 
community levels as well as at individual levels. Masking affects both 
senders and receivers of the signals and can potentially have long-term 
chronic effects on marine mammal species and populations. Recent 
research suggests that low frequency ambient sound levels have 
increased by as much as 20 dB (more than three times in terms of SPL) 
in the world's ocean from pre-industrial periods, and that most of 
these increases are from distant shipping (Hildebrand 2009). All 
anthropogenic sound sources, such as those from vessel traffic, pile 
driving, and dredging activities, contribute to the elevated ambient 
sound levels, thus intensifying masking.
    The most intense underwater sounds by the proposed action are those 
produced by vibratory and impact pile driving. Given that the energy 
distribution of pile driving covers a broad frequency spectrum, sound 
from these sources would likely be within the audible range of marine 
mammals present in the project area.

Acoustic Effects, Airborne

    Marine mammals that occur in the project area could be exposed to 
airborne sounds associated with pile driving activities that have the 
potential to cause harassment, depending on their distance from pile 
driving activities. Airborne sound would only be an issue for pinnipeds 
either hauled-out or looking with heads above water in the project 
area. Most likely, airborne sound would cause behavioral responses 
similar to those discussed above in relation to underwater sound. For 
instance, anthropogenic sound could cause hauled-out pinnipeds to 
exhibit changes in their normal behavior, such as reduction in 
vocalizations, or cause them to temporarily abandon their habitat and 
move further from the source. Studies by Blackwell et al. (2004) and 
Moulton et al. (2005) indicate a tolerance or lack of response to 
unweighted airborne sounds as high as 112 dB peak and 96 dB rms. 
However, there are no major haul-out sites in or near the project area, 
but pinnipeds can be exposed to airborne sound by looking with heads 
above water.

Effects on Marine Mammal Habitat

    The proposed activities at the EBPR would not result in permanent 
impacts to habitats used directly by marine mammals, such as haul-out 
sites, but may have potential short-term impacts to food sources such 
as forage fish. There are no rookeries or major haul-out sites nearby, 
foraging hotspots, or other ocean bottom structure of significant 
biological importance to marine mammals that may be present in the 
marine waters in the vicinity of the project area. Therefore, the main 
impact issue associated with the proposed activity would be temporarily 
elevated sound levels and the associated direct effects on marine 
mammals, as discussed previously in this document. The most likely 
impact to marine mammal habitat occurs from pile driving effects on 
likely marine mammal prey (i.e., fish) near the pier and minor impacts 
to the immediate substrate during installation of piles and removal of 
the old structure during the breakwater replacement project.

Pile Driving Effects on Potential Prey

    Construction activities would produce both pulsed (i.e., impact 
pile driving) and continuous (i.e., vibratory pile

[[Page 89075]]

driving) sounds. Fish react to sounds which are especially strong and/
or intermittent low-frequency sounds. Short duration, sharp sounds can 
cause overt or subtle changes in fish behavior and local distribution. 
Hastings and Popper (2005, 2009) identified several studies that 
suggest fish may relocate to avoid certain areas of sound energy. 
Additional studies have documented effects of pile driving (or other 
types of continuous sounds) on fish, although several are based on 
studies in support of large, multiyear bridge construction projects 
(e.g., Scholik and Yan 2001, 2002; Popper and Hastings 2009). Sound 
pulses at received levels of 160 dB re 1 [mu]Pa may cause subtle 
changes in fish behavior. SPLs of 180 dB may cause noticeable changes 
in behavior (Pearson et al. 1992; Skalski et al. 1992). SPLs of 
sufficient strength may cause injury to fish and fish mortality. The 
most likely impact to fish from pile driving at the project area would 
be temporary behavioral avoidance of the area. The duration of fish 
avoidance of this area after these activities stop is unknown, but a 
rapid return to normal recruitment, distribution and behavior is 
anticipated. In general, impacts to marine mammal prey species are 
expected to be minor and temporary due to the short timeframe for the 
pier replacement project.

Pile Driving Effects on Potential Foraging Habitat

    Avoidance by potential prey (i.e., fish) of the immediate area due 
to the temporary loss of this foraging habitat is also possible. The 
duration of fish avoidance of this area after pile driving stops is 
unknown, but a rapid return to normal recruitment, distribution and 
behavior is anticipated. Any behavioral avoidance by fish of the 
disturbed area would still leave significantly large areas of fish and 
marine mammal foraging habitat in the vicinity of Cobscook Bay.
    Given the short daily duration of sound associated with individual 
pile driving events and the relatively small areas being affected, in-
water construction activities associated with the proposed action are 
not likely to have a permanent, adverse effect on any fish habitat, or 
populations of fish species. Therefore, pile the proposed in-water 
construction activities are not likely to have a permanent, adverse 
effect on marine mammal foraging habitat at the project area.

Proposed Mitigation

    In order to issue an IHA for the under section 101(a)(5)(D) of the 
MMPA, NMFS must set forth the permissible methods of taking pursuant to 
such activity, ``and other means of effecting the least practicable 
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. NMFS regulations require 
applicants for incidental take authorizations to include information 
about the availability and feasibility (economic and technological) of 
equipment, methods, and manner of conducting such activity or other 
means of effecting the least practicable adverse impact upon the 
affected species or stocks, their habitat (50 CFR 216.104(a)(11)).
    For the proposed project, ME DOT worked with NMFS and proposed the 
following mitigation measures to minimize the potential impacts to 
marine mammals in the project vicinity. The primary purposes of these 
mitigation measures are to minimize sound levels from the activities, 
and to monitor marine mammals within designated zones of influence 
corresponding to NMFS' current Level A and B harassment thresholds. 
Here we provide a description of the mitigation measures we propose to 
require as part of the proposed Authorization:

Zones of Influence

    Direct measured data from the pile driving events of the EPBP IHA 
were used to calculate the zones of influence (ZOI) for Level B 
Harassment. These values were used to develop mitigation measures for 
pile driving activities at EBRP. The ZOIs effectively represent the 
mitigation zone that would be established around each pile to prevent 
Level A harassment to marine mammals, while providing estimates of the 
areas within which Level B harassment might occur. In addition to the 
specific measures described later in this section, the EBRP would 
conduct briefings between construction supervisors and crews, marine 
mammal monitoring team, and EBRP staff prior to the start of all pile 
driving activity, and if/when new personnel join the work, in order to 
explain responsibilities, communication procedures, marine mammal 
monitoring protocol, and operational procedures.

Monitoring and Shutdown for Pile Driving

    The following measures would apply to the EBRP's mitigation through 
shutdown and disturbance zones:
    Shutdown Zone--For all pile driving activities, EBPR will establish 
exclusion zones (shutdown zones). Shutdown zones are intended to 
contain the area in which SPLs equal or exceed acoustic injury 
criteria, with the purpose being to define an area within which 
shutdown of activity would occur upon sighting of a marine mammal (or 
in anticipation of an animal entering the defined area), thus 
preventing injury marine mammals (PTS) of marine mammals (as described 
previously under Potential Effects of the Specified Activity on Marine 
Mammals, serious injury or death are unlikely outcomes even in the 
absence of mitigation measures).
    Using the user spreadsheet for the new acoustic guidance, injury 
zones were determined for the mid-frequency and high frequency cetacean 
and pinnipeds (phocids) as the hearing groups being analyzed for this 
project (see Table 5). The purpose of a shutdown zone is to define an 
area within which shutdown of activity would occur upon sighting of a 
marine mammal (or in anticipation of an animal entering the defined 
area). As a precautionary measure, intended to reduce the unlikely 
possibility of injury from direct physical interaction with 
construction operations, ME DOT would implement a minimum shutdown zone 
of 10 m radius around each pile for all construction methods for all 
marine mammals. The shutdown zones calculated for injury were rounded 
to the nearest 10 m to be more conservative or species were grouped 
(e.g., mid and high-frequency cetaceans combined into one group) for 
more streamlined monitoring in the field. In both impact and vibratory 
pile driving, the shutdown zones were increased significantly for mid-
frequency cetaceans to that which was calculated for high-frequency 
cetaceans in order to group all cetaceans together for monitoring.

[[Page 89076]]



            Table 5--Injury Zones and Shutdown Zones for Hearing Groups for Each Construction Method
----------------------------------------------------------------------------------------------------------------
                                                              Mid-frequency    High-frequency   Phocid pinnipeds
                       Hearing group                          cetaceans (m)     cetaceans (m)          (m)
----------------------------------------------------------------------------------------------------------------
                                           Vibratory Pile Driving \1\
----------------------------------------------------------------------------------------------------------------
PTS Isopleth to threshold.................................               7.0             117.5              48.3
                                                           ------------------------------------
Shutdown Zone.............................................                  120                               50
----------------------------------------------------------------------------------------------------------------
                                             Impact Pile Driving \2\
----------------------------------------------------------------------------------------------------------------
PTS Isopleth to threshold.................................               4.6             155.6              69.9
                                                           ------------------------------------
Shutdown Zone.............................................                  160                              70
----------------------------------------------------------------------------------------------------------------
\1\ For vibratory driving, SL is 170, TL is15logR, weighting function is 2.5, duration is 5 hours, and distance
  from the source is 10 meters.
\2\ For impact driving, PK SPL 202, TL is 15log R, weighting function is 2, strikes per pile is 250, number off
  piles per day is 3, and distance from the source is 10 meters.

    Disturbance Zone--Disturbance zones are the areas in which SPLs 
equal or exceed 160 and 120 dB rms (for impulse and continuous sound, 
respectively). Disturbance zones provide utility for monitoring 
conducted for mitigation purposes (i.e., shutdown zone monitoring) by 
establishing monitoring protocols for areas adjacent to the shutdown 
zones. Monitoring of disturbance zones enables observers to be aware of 
and communicate the presence of marine mammals in the project area but 
outside the shutdown zone and thus prepare for potential shutdowns of 
activity. However, the primary purpose of disturbance zone monitoring 
is for documenting incidents of Level B harassment; disturbance zone 
monitoring is discussed in greater detail later (see Proposed 
Monitoring and Reporting). Any marine mammal documented within the 
Level B harassment zone would constitute a Level B take (harassment), 
and will be recorded and reported as such. Nominal radial distances for 
disturbance zones are shown in Table 6. Given the size of the 
disturbance zone for both impact and vibratory pile driving, it is 
impossible to guarantee that all animals would be observed or to make 
comprehensive observations of fine-scale behavioral reactions to sound, 
and only a portion of the zone (e.g., what may be reasonably observed 
by visual observers) would be observed.

              Table 6--Calculated Threshold Distances (m) for Level B Harassment of Marine Mammals
----------------------------------------------------------------------------------------------------------------
                                                                 Threshold distances (m)
                 Source                 ------------------------------------------------------------------------
                                             160 dB                               120 dB
----------------------------------------------------------------------------------------------------------------
Vibratory pile driving.................             n/a  400 m for PZC-18 Sheet Piles.
                                                         665 m for PZC-26 Sheet Piles.
Impact pile driving....................             550  n/a.
----------------------------------------------------------------------------------------------------------------

    In order to document observed incidents of harassment, monitors 
will record all marine mammal observations, regardless of location. The 
observer's location, as well as the location of the pile being driven 
or removed, is known from a GPS. The location of the animal is 
estimated as a distance from the observer, which is then compared to 
the location from the pile. It may then be estimated whether the animal 
was exposed to sound levels constituting incidental harassment on the 
basis of predicted distances to relevant thresholds in post-processing 
of observational and acoustic data, and a precise accounting of 
observed incidences of harassment created. This information may then be 
used to extrapolate observed takes to reach an approximate 
understanding of actual total takes.
    Two Qualified Protected Species Observers (PSO) (NMFS approved 
biologists, monitoring responsibilities fully described in the Proposed 
Monitoring section) would be stationed on the pier. One PSO would be 
responsible for monitoring the shutdown zones, while the second 
observer would conduct behavioral monitoring outwards to a distance of 
1 nautical mile (nmi).

Pile Driving Shut Down and Delay Procedures

    If a PSO sees a marine mammal within or approaching the shutdown 
zones prior to start of pile driving, the observer would notify the on-
site project lead (or other authorized individual) who would then be 
required to delay pile driving until the marine mammal has moved out of 
the shutdown zone (exclusion zone) from the sound source or if the 
animal has not been resighted within 30 minutes. If a marine mammal is 
sighted within or on a path toward a shutdown zone during pile driving, 
pile driving would cease until that animal has moved out of the 
shutdown zone and is on a path away from the shutdown zone or 30 
minutes has lapsed since the last sighting.

Soft-Start Procedures

    A ``soft-start'' technique would be used at the beginning of each 
pile installation to allow any marine mammal that may be in the 
immediate area to leave before the pile hammer reaches full energy. For 
vibratory pile driving, the soft-start procedure requires contractors 
to initiate noise from the vibratory hammer for 15 seconds at 40-60 
percent reduced energy followed by a 1-minute waiting period. The 
procedure would be repeated two

[[Page 89077]]

additional times before full energy may be achieved. For impact pile 
driving, contractors would be required to provide an initial set of 
three strikes from the impact hammer at 40 percent energy, followed by 
a 1-minute waiting period, then two subsequent three-strike sets. Soft-
start procedures would be conducted any time hammering ceases for more 
than 30 minutes.

Time Restrictions

    Work would occur only during daylight hours, when visual monitoring 
of marine mammals can be conducted. To minimize impacts to Federally 
listed Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus), shortnose 
sturgeon (Acipenser brevirostrum) and Atlantic salmon (Salmo salar), ME 
DOT will follow restrictions on pile driving from April through 
November as directed by NMFS' Greater Atlantic Regional Office.

Mitigation Conclusions

    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 affecting the least 
practicable 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 mammal species or stocks;
     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 pile driving, 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 pile driving, 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 pile driving, 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 preliminarily 
determined that the proposed mitigation measures provide the means of 
effecting the least practicable impact on marine mammals species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Proposed 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 
incidental take authorizations 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 in the proposed action area.
    Any monitoring requirement we prescribe should improve our 
understanding of one or more of the following:
     Occurrence of marine mammal species in the action area 
(e.g., presence, abundance, distribution, density).
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
Affected species (e.g., life history, dive patterns); (3) Co-occurrence 
of marine mammal species with the action; or (4) Biological or 
behavioral context of exposure (e.g., age, calving or feeding areas).
     Individual responses to acute stressors, or impacts of 
chronic exposures (behavioral or physiological).
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of an individual; or (2) population, 
species, or stock.
     Effects on marine mammal habitat and resultant impacts to 
marine mammals.
     Mitigation and monitoring effectiveness.

Visual Marine Mammal Observations

    PSOs shall be used to detect, document, and minimize impacts to 
marine mammals. Monitoring would be conducted before, during, and after 
construction activities. In addition, PSOs shall record all incidents 
of marine mammal occurrence, regardless of distance from activity, and 
document any behavioral reactions in concert with distance from 
construction activities. Important qualifications for PSOs for visual 
monitoring include:
     Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of marine mammals on land or in the water 
with ability to estimate target size and distance; use of binoculars 
may be necessary to correctly identify the target;
     Advanced education in biological science or related field 
(undergraduate degree or higher required);
     Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience);
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when construction activities 
were conducted; dates and times when construction activities were 
suspended, if necessary; and marine mammal behavior; and
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time

[[Page 89078]]

information on marine mammals observed in the area as necessary.
    PSOs shall also conduct mandatory biological resources awareness 
training for construction personnel. The awareness training shall be 
provided to brief construction personnel on marine mammals and the need 
to avoid and minimize impacts to marine mammals. If new construction 
personnel are added to the project, the contractor shall ensure that 
the personnel receive the mandatory training before starting work. The 
PSO would have authority to stop construction if marine mammals appear 
distressed (evasive maneuvers, rapid breathing, inability to flush) or 
in danger of injury.
    The ME DOT has developed a monitoring plan based on discussions 
between the ME DOT and NMFS. The ME DOT will collect sighting data and 
behavioral responses to construction activities for marine mammal 
species observed in the region of activity during the period of 
activity. All PSOs will be trained in marine mammal identification and 
behaviors and are required to have no other construction-related tasks 
while conducting monitoring.

Data Collection

    We require that PSOs use approved data forms. Among other pieces of 
information, the ME DOT will record detailed information about any 
implementation of shutdowns, including the distance of animals to the 
pile and description of specific actions that ensued and resulting 
behavior of the animal, if any. In addition, the ME DOT will attempt to 
distinguish between the number of individual animals taken and the 
number of incidents of take. We require that, at a minimum, the 
following information be collected on the sighting forms:
     Date and time that monitored activity begins or ends;
     Construction activities occurring during each observation 
period;
     Weather parameters (e.g., percent cover, visibility);
     Water conditions (e.g., sea state, tide state);
     Species, numbers, and, if possible, sex and age class of 
marine mammals;
     Description of any observable marine mammal behavior 
patterns, including bearing and direction of travel and distance from 
pile driving activity;
     Distance from pile driving activities to marine mammals 
and distance from the marine mammals to the observation point;
     Locations of all marine mammal observations; and
     Other human activity in the area.

Reporting

    ME DOT is required to submit a draft monitoring report to NMFS 
within 90 days of completion of in-water construction activities. The 
report would include data from marine mammal sightings as described in 
the Data Collection section above (i.e., 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 
(i.e., wind speed and direction, sea state, tidal 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, ME DOT would immediately cease the specified activities and 
immediately report the incident to the Permits and Conservation 
Division, Office of Protected Resources, NMFS and the Greater Atlantic 
Regional Fisheries Office Stranding Coordinator. 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, 
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 would not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS would work with ME DOT to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. ME DOT may not resume their 
activities until notified by NMFS via letter, email, or telephone.
    In the event that ME DOT 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), 
ME DOT would immediately report the incident to the Permits and 
Conservation Division, Office of Protected Resources, NMFS and the 
Greater Atlantic Regional Fisheries Office Stranding Coordinator. The 
report must include the same information identified in the paragraph 
above. Activities may continue while NMFS reviews the circumstances of 
the incident. NMFS would work with ME DOT to determine whether 
modifications in the activities are appropriate.
    In the event that ME DOT 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), ME DOT would report the incident 
to the Permits and Conservation Division, Office of Protected 
Resources, NMFS and the NMFS Stranding Hotline and/or by email to the 
Greater Atlantic Regional Fisheries Office Stranding Coordinator within 
24 hrs of the discovery. ME DOT would 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 of Incidental Harassment

    Except with respect to certain activities not pertinent here, 
section 3(18) of 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).''
    All anticipated takes would be by Level B harassment resulting from 
pile driving activities involving temporary changes in behavior. The 
proposed mitigation and monitoring measures are expected to minimize 
the possibility of injurious or lethal takes such that take by Level A 
harassment, serious injury, or mortality is considered discountable.
    If a marine mammal responds to a stimulus by changing its behavior, 
the response may or may not constitute taking, and is unlikely to 
affect the stock or the species as a whole. However, if

[[Page 89079]]

a sound source displaces marine mammals from an important feeding or 
breeding area for a prolonged period, impacts on animals or on the 
stock or species could potentially be significant (e.g., Lusseau and 
Bejder 2007; Weilgart 2007). Given the many uncertainties in predicting 
the quantity and types of impacts of sound on marine mammals, it is 
common practice to estimate how many animals are likely to be present 
within a particular distance of a given activity, or exposed to a 
particular level of sound. In practice, depending on the amount of 
information available to characterize daily and seasonal movement and 
distribution of affected marine mammals, it can be difficult to 
distinguish between the number of individuals harassed and the 
instances of harassment and, when duration of the activity is 
considered, it can result in a take estimate that overestimates the 
number of individuals harassed. In particular, for stationary 
activities, it is more likely that some smaller number of individuals 
may accrue a number of incidences of harassment per individual than for 
each incidence to accrue to a new individual, especially if those 
individuals display some degree of residency or site fidelity and the 
impetus to use the site (e.g., because of foraging opportunities) is 
stronger than the deterrence presented by the harassing activity.
    Elevated in-water sound levels from pile driving activities in the 
proposed project area may temporarily impact marine mammal behavior. 
Elevated in-air sound levels are not a concern because the nearest 
significant pinniped haul-out is more than six nmi away. 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 on sound frequency, 
ambient sound, what the animal is doing, and the animal's distance from 
the sound source (Southall et al., 2007).
    Behavioral disturbances that could result from anthropogenic sound 
associated with these activities are expected to affect only a small 
number of individual marine mammals, although those effects could be 
recurring over the life of the project if the same individuals remain 
in the project vicinity.
    The ME DOT has requested authorization for the incidental taking of 
small numbers of harbor seals, gray seals, harbor porpoise, and 
Atlantic white-sided dolphins incidental to the pile driving associated 
with the EBRP described previously in this document. In order to 
estimate the potential incidents of take that may occur incidental to 
the specified activity, we must first estimate the extent of the sound 
field that may be produced by the activity and then consider in 
combination with information about marine mammal density or abundance 
in the project area and the number of days the activity will be 
conducted. We first provide information on applicable sound thresholds 
for determining effects to marine mammals before describing the 
information used in estimating the sound fields, the available marine 
mammal density or abundance information, and the method of estimating 
potential incidents of take.
    As discussed above, in-water pile driving activities generate loud 
noises that could potentially harass marine mammals in the vicinity of 
the ME DOT's proposed EBRP. No impacts from visual disturbance are 
anticipated because there are no known pinniped haul-outs within the 
proposed project area. The only potential disturbance anticipated to 
occur would be during driving operations, which may cause individual 
marine mammals to temporarily avoid the area.

Sound Thresholds

    We use generic sound exposure thresholds to determine when an 
activity that produces sound might result in impacts to a marine mammal 
such that a take by harassment might occur. To date, no studies have 
been conducted that explicitly examine impacts to marine mammals from 
pile driving sounds or from which empirical sound thresholds have been 
established. These thresholds (Table 7) are used to estimate when 
harassment may occur (i.e., when an animal is exposed to levels equal 
to or exceeding the relevant criterion) in specific contexts; however, 
useful contextual information that may inform our assessment of effects 
is typically lacking and we consider these thresholds as step 
functions. NMFS new guidance establishes new thresholds for predicting 
auditory injury, which equates to Level A harassment under the MMPA. 
The ME DOT project used this new guidance when determining the injury 
(Level A) zones (see Table 5).

   Table 7--Current Acoustic Exposure Criteria for Level B Harassment
------------------------------------------------------------------------
           Criterion                Definition           Threshold
------------------------------------------------------------------------
Level B harassment              Behavioral         160 dB (impulsive
 (underwater).                   disruption.        source)/120 dB
                                                    (continuous source)
                                                    (rms).
Level B harassment (airborne).  Behavioral         90 dB (harbor seals)/
                                 disruption.        100 dB (other
                                                    pinnipeds)
                                                    (unweighted).
------------------------------------------------------------------------

Distance to Sound Thresholds

    Pile driving generates underwater noise that can potentially result 
in disturbance to marine mammals in the project area. Transmission loss 
(TL) is the decrease in acoustic intensity as an acoustic pressure wave 
propagates out from a source. TL parameters vary with frequency, 
temperature, sea conditions, current, source and receiver depth, water 
depth, water chemistry, and bottom composition and topography. The 
general formula for underwater TL is:

TL = B * log10(R1/R2),

Where

R1 = the distance of the modeled SPL from the driven 
pile, and
R2 = the distance from the driven pile of the initial 
measurement.

    This formula neglects loss due to scattering and absorption, which 
is assumed to be zero here. The degree to which underwater sound 
propagates away from a sound source is dependent on a variety of 
factors, most notably the water bathymetry and presence or absence of 
reflective or absorptive conditions including in-water structures and 
sediments. Spherical spreading occurs in a perfectly unobstructed 
(free-field) environment not limited by depth or water surface, 
resulting in a 6 dB reduction in sound level for each doubling of 
distance from the source (20*log[range]). Cylindrical spreading occurs 
in an environment in which

[[Page 89080]]

sound propagation is bounded by the water surface and sea bottom, 
resulting in a reduction of 3 dB in sound level for each doubling of 
distance from the source (10*log[range]). A practical spreading value 
of fifteen is often used under conditions, where water increases with 
depth as the receiver moves away from the shoreline, resulting in an 
expected propagation environment that would lie between spherical and 
cylindrical spreading loss conditions.
    In this case we have measured field data available from the 
previous EBRP IHA at the same location and from the same type of piles/
sheet piles showing at a particular point where the received level is 
below 120 dB, to determine the disturbance distance for the Level B 
ZOI. For sheet piles PZC-18, 400m is the measured distance where the 
Level B ZOI is below 120 dB. For sheet piles PZC-26, the farthest 
measurement does not go below 120 dB so the statistical analysis of 90 
percent CI was used, which pointed to 665 m for the Level B ZOI. For 
impact pile driving, we used the third farthest point from the measured 
field data, which was 550 m from the source, and measured under 160 dB.
    The sound field in the project area is the existing ambient noise 
plus additional construction noise from the proposed project. The 
primary components of the project expected to affect marine mammals is 
the sound generated by impact and vibratory pile driving. The intensity 
of pile driving sounds is greatly influenced by factors such as the 
type of piles, hammers, and the physical environment in which the 
activity takes place. In order to determine the distance to the 
thresholds and the received levels to marine mammals that are likely to 
result from pile driving at EBRP, we evaluated the acoustic monitoring 
data (Table 8) from the previous EBRP IHA project with similar 
properties to the proposed activity.

  Table 8--Eastport Breakwater Noise Monitoring Data for Un-Attenuated Pile Strikes With an Impact Hammer and a
                                                Vibratory Hammer
----------------------------------------------------------------------------------------------------------------
                                                  Relative  water
                 Pile type/size                     depth  (m)                     Max avg dB RMS
----------------------------------------------------------------------------------------------------------------
                                               Impact Pile Driving
----------------------------------------------------------------------------------------------------------------
20 ft/Steel Pipe...............................                15  182.
20 ft/Steel Pipe (`Spin fin')..................                15  186.
----------------------------------------------------------------------------------------------------------------
                                             Vibratory Pile Driving
----------------------------------------------------------------------------------------------------------------
24 ft Steel Sheet PZC-16.......................                15  170 (max dB RMS).
----------------------------------------------------------------------------------------------------------------

    We consider the values presented in Table 8. to be representative 
of SPLs that may be produced by pile driving in the project area. 
Distances to the harassment isopleths vary by marine mammal type and 
pile extraction/driving tool. All calculated distances to and the total 
area encompassed by the marine mammal sound thresholds were provided in 
Tables 5 and 6.
    In addition, we generally recognize that pinnipeds occurring within 
an estimated airborne harassment zone, whether in the water or hauled 
out (no haul outs within six nmi of the project area), could be exposed 
to airborne sound that may result in behavioral harassment. However, 
any animal exposed to airborne sound above the behavioral harassment 
threshold is likely to also be exposed to underwater sound above 
relevant thresholds (which are typically in all cases larger zones than 
those associated with airborne sound). Thus, the behavioral harassment 
of these animals is already accounted for in the estimates of potential 
take. Multiple incidents within a day of exposure to sound above NMFS' 
thresholds for behavioral harassment are not believed to result in 
increased behavioral disturbance, in either nature or intensity of 
disturbance reaction. Therefore, we do not believe that authorization 
of incidental take resulting from airborne sound for pinnipeds is 
warranted, and airborne sound is not discussed further here.

Acoustic Impacts

    When considering the influence of various kinds of sound on the 
marine environment, it is necessary to understand that different kinds 
of marine life are sensitive to different frequencies of sound. Based 
on available behavioral data, audiograms have been derived using 
auditory evoked potentials, anatomical modeling, and other data. 
Southall et al. (2007) designated hearing groups for marine mammals and 
estimated the lower and upper frequencies of hearing of the groups. 
NMFS made modifications to the marine mammal hearing groups proposed in 
Southall et al. (2007) and is reflected in the new Technical Guidance 
for Assessing the Effects of Anthropogenic Sound on Marine Mammal 
Hearing (July 2016) (http://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm). The marine mammal hearing groups, pinnipeds, high 
frequency cetaceans (harbor porpoise) and mid-frequency cetaceans 
(Atlantic white-sided dolphin) which are the subject of this project, 
and their associated generalized hearing range were previous discussed 
in the Marine Mammal Hearing section and also in Table 4.
    As mentioned previously in this document, four marine mammal 
species (two cetacean and two pinniped species) are likely to occur in 
the area of the proposed activity. Of the two cetacean species likely 
to occur in the proposed project area, the Atlantic white-sided dolphin 
is classified as a mid-frequency cetacean and the harbor porpoise is 
classified as a high-frequency cetacean (NOAA 2016). A species' hearing 
group and its generalized hearing range is a consideration when we 
analyze the effects of exposure to sound on marine mammals.
    ME DOT and NMFS determined that in-water construction activities 
involving the use of impact and vibratory pile driving during the 
Eastport Breakwater replacement project have the potential to result in 
behavioral harassment of marine mammal species and stocks in the 
vicinity of the proposed activity.

Description of Take Calculation

    The following sections are descriptions of how take was determined 
for impacts to marine mammals from noise disturbance related to pile 
driving.

[[Page 89081]]

    Incidental take is calculated for each species by estimating the 
likelihood of a marine mammal being present within the ensonified area 
above the threshold during pile driving activities, based on 
information about the presence of the animal (density estimates or the 
best available occurrence data) and the size of the zones of influence, 
which in this case is based on previous measurements from the acoustic 
monitoring in the previous EBRP IHA. Expected marine mammal presence is 
determined by past observations and general abundance during the 
construction window. When local abundance is the best available 
information, in lieu of the density-area method, we may simply multiply 
some number of animals (as determined through counts of animals hauled-
out) by the number of days of activity, under the assumption that all 
of those animals will be present within the area ensonified by the 
threshold and incidentally taken on each day of activity.
    There are a number of reasons why estimates of potential incidents 
of take may be conservative, assuming that available density or 
abundance estimates and estimated ZOI areas are accurate. We assume, in 
the absence of information supporting a more refined conclusion, that 
the output of the calculation represents the number of individuals that 
may be taken by the specified activity. In fact, in the context of 
stationary activities such as pile driving and in areas where resident 
animals may be present, this number more realistically represents the 
number of incidents of take that may accrue to a smaller number of 
individuals. While pile driving can occur any day throughout the in-
water work window, and the analysis is conducted on a per day basis, 
only a fraction of that time (typically a matter of hours on any given 
day) is actually spent pile driving. The potential effectiveness of 
mitigation measures in reducing the number of takes is typically not 
quantified in the take estimation process. For these reasons, these 
take estimates may be conservative.
    For this project, the take requests were estimated using local 
marine mammal data sets and information from Federal agencies and other 
experts. The best available data for marine mammals in the vicinity of 
the project area was derived from three sources including: Three years 
(2007-2010) of marine mammal monitoring data from the Ocean Renewable 
Power Company (ORPC) tidal generator project that was located between 
Eastport and Lubec, ME, the 2015-2016 marine mammal monitoring data 
from the previous EBRP IHA, and communication with marine mammals 
experts from ME (Stephanie Wood, (NOAA Biologist) and Dr. James Gilbert 
(Wildlife Ecologist, University of ME). Although the ORPC project was 
located on the other side of the peninsula from the Eastport pier, the 
presence of species and timing of their occurrence appears similar 
between the ORPC data and marine mammal monitoring data from the 
previous EBRP IHA.
    The calculation for marine mammal exposures is estimated by:

Exposure estimate = N (number of animals in the area that is ensonified 
above the thresholds based on the previous sound measurements) * 160 
days of pile driving activities from January to August 2017.

    The estimated number of animals in the area was mostly determined 
based on the maximum group size of animals observed during ORPC's 
marine mammal observation effort (six seals (harbor and gray seals 
combined), six harbor porpoises, and one Atlantic white-sided dolphin) 
multiplied by the maximum expected number of pile/sheet installation 
and sheet removal days. However, during the winter and spring months we 
expect lower numbers of harbor porpoise in the Gulf of Maine (including 
the project area) and therefore take estimates were lower (Jan-May). 
Atlantic white-sided dolphins are not expected to frequent the project 
area as they are more of a pelagic species. Only two Atlantic white-
sided dolphins were observed in four years of marine mammal monitoring 
(ORPC and EBPR IHA) and therefore, the take estimates are conservative 
and reflection of those observations. Harbor and gray seals were 
combined into one pinniped group because they cannot always be 
identified by species level. See Tables 9 and 10 for total estimated 
incidents of take.

                          Table 9--Marine Mammal Calculated Take for Level B Harassment
----------------------------------------------------------------------------------------------------------------
                                                                  Calculated       Calculated       Calculated
                                                                 harbor/gray         harbor      atlantic  white-
                    Month                       Pile driving     seal take by    porpoise take    sided  dolphin
                                               days per month      Level B        by  Level B     take  by Level
                                                                  harassment       harassment      B harassment
----------------------------------------------------------------------------------------------------------------
Jan.........................................               20              120                6                1
Feb.........................................               20              120                6                1
March.......................................               20              120                6                1
April.......................................               20              120                6                1
May.........................................               20              120                6                1
June........................................               20              120              120                1
July........................................               20              120              120                1
August......................................               20              120              120                1
Sept........................................  ...............  ...............  ...............  ...............
Oct.........................................  ...............  ...............  ...............  ...............
Nov.........................................  ...............  ...............  ...............  ...............
Dec.........................................  ...............  ...............  ...............  ...............
                                             -------------------------------------------------------------------
    Total...................................              160              960              390                8
----------------------------------------------------------------------------------------------------------------


[[Page 89082]]


                         Table 10--Estimated Marine Mammal Takes by Level B Harassment.
----------------------------------------------------------------------------------------------------------------
                                                                           Approximate
                                                                          percentage of
            Species                  Take              Abundance         estimated stock      Population trend
                                 authorization                          (takes authorized/
                                                                            population)
----------------------------------------------------------------------------------------------------------------
Harbor seal *.................             960  75,834--Western North   1.27.............  unknown.
                                                 Atlantic stock.
Gray seal.....................  ..............  Unknown for U.S.--      unknown..........  increasing in the
                                                 Western North                              U.S. (EEZ), but the
                                                 Atlantic stock.                            rate of increase is
                                                                                            unknown.
Harbor porpoise...............             390  79,883--Gulf of Maine/  0.48.............  unknown.
                                                 Bay of Fundy stock.
Atlantic white-sided dolphin..               8  48,819--Western North   0.016............  unknown.
                                                 Atlantic stock.
----------------------------------------------------------------------------------------------------------------
* Note: Any pinnipeds observed/taken by Level B harassment will likely be harbor seals rather than gray seal (as
  gray seals do not frequent the waters of the project area as much and are found more in Canadian waters/haul
  out).

Analysis and Determinations

Negligible Impact

    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``. . . 
an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.'' 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, we consider other factors, such as the likely nature of any 
responses (e.g., intensity, duration), the context of any responses 
(e.g., critical reproductive time or location, migration), as well as 
the number and nature of estimated Level A harassment takes, the number 
of estimated mortalities, and effects on habitat.
    Pile driving activities associated with this project have the 
potential to disturb or displace marine mammals. Elevated noise levels 
are expected to be generated as a result of these activities. No 
serious injury or mortality would be expected at all, and with 
mitigation we expect to avoid any potential for Level A harassment as a 
result of the EBRP activities, and none are authorized by NMFS. The 
specified activities may result in take, in the form of Level B 
harassment (behavioral disturbance) only, from in-water noise from 
construction activities.
    Effects on individuals that are taken by Level B harassment, on the 
basis of reports in the literature as well as monitoring from other 
similar activities, will likely be limited to reactions from these low 
intensity, localized, and short-term noise exposures that may cause 
brief startle reactions or short-term behavioral modifications by the 
animals. These reactions and behavioral changes are expected to subside 
quickly when the exposures cease. Moreover, marine mammals are expected 
to avoid the area during in-water construction because animals 
generally move away from active sound sources, thereby reducing 
exposure and impacts. In addition, through mitigation measures 
including soft start, marine mammals are expected to move away from a 
sound source that is annoying prior to its becoming potentially 
injurious and detection of marine mammals by observers would enable the 
implementation of shutdowns to avoid injury. Repeated exposures of 
individuals to levels of noise disturbance that may cause Level B 
harassment are unlikely to result in hearing impairment or to 
significantly disrupt foraging behavior.
    In-water construction activities would occur in relatively shallow 
coastal waters of Cobscook Bay. The proposed project area is not 
considered significant habitat for marine mammals and therefore no 
adverse effects on marine mammal habitat are expected. Marine mammals 
approaching the action area would likely be traveling or 
opportunistically foraging. There are no rookeries or major haul-out 
sites nearby, foraging hotspots, or other ocean bottom structure of 
significant biological importance to marine mammals that may be present 
in the marine waters in the vicinity of the project area. The closest 
significant pinniped haul out is more than six nmi away, which is well 
outside the project area's largest harassment zone. The proposed 
project area is not a prime habitat for marine mammals, nor is it 
considered an area frequented by marine mammals. Therefore, behavioral 
disturbances that could result from anthropogenic noise associated with 
breakwater replacement activities are expected to affect only a small 
number of marine mammals on an infrequent basis. Although it is 
possible that some individual marine mammals may be exposed to sounds 
from in-water construction activities more than once, the duration of 
these multi-exposures is expected to be low since animals would be 
constantly moving in and out of the area and in-water construction 
activities would not occur continuously throughout the day.
    Harbor and gray seals, harbor porpoise, and Atlantic white-sided 
dolphins as the potentially affected marine mammal species under NMFS 
jurisdiction in the action area, are not listed as threatened or 
endangered under the ESA and are not considered strategic under the 
MMPA. Even after repeated Level B harassment of some small subset of 
the overall stocks are unlikely to result in any significant realized 
decrease in fitness to those individuals, and thus would not result in 
any adverse impact to the stocks as a whole. Level B harassment will be 
reduced to the level of least practicable impact through use of 
mitigation measures described herein and, if sound produced by project 
activities is sufficiently disturbing, animals are likely to simply 
avoid the project area while the activity is occurring.
    In summary, this negligible impact analysis is founded on the 
following factors: (1) The possibility of injury, serious injury, or 
mortality may reasonably be considered discountable; (2) the 
anticipated incidents of Level B harassment consist of, at worst, 
temporary modifications in behavior; (3) there is no primary foraging 
and reproductive habitat in the project area and the project activities 
are not expected to result in the alteration of habitat important to 
these behaviors or substantially impact the behaviors themselves (4) 
there is no major haul out habitat within six nmi of the project area 
(5) the proposed project area is not

[[Page 89083]]

a prime habitat for marine mammals, nor will have no adverse effect on 
marine mammal habitat (6) and the presumed efficacy of the mitigation 
measures in reducing the effects of the specified activity to the level 
of least practicable impact. In addition, these stocks are not listed 
under the ESA or considered depleted under the MMPA. In combination, we 
believe that these factors, as well as the available body of evidence 
from other similar activities, demonstrate that the potential effects 
of the specified activities will have only short-term effects on 
individuals. The specified activities are not expected to impact rates 
of recruitment or survival and will therefore not result in population-
level impacts.
    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 monitoring and mitigation 
measures, we preliminarily find that the total marine mammal take from 
the construction activities will have a negligible impact on the 
affected marine mammal species or stocks.

Small Numbers

    The amount of take NMFS proposes to authorize is considered small, 
less than one percent relative to the estimated populations for harbor 
porpoises and Atlantic white-sided dolphins and 1.27 percent for harbor 
seals. 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 mitigation and monitoring 
measures, NMFS finds that small numbers of marine mammals will be taken 
relative to the populations of 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. Therefore, NMFS has determined that the total taking of 
affected species or stocks would not have an unmitigable adverse impact 
on the availability of such species or stocks for taking for 
subsistence purposes.

Endangered Species Act (ESA)

    No species listed under the ESA are expected to be affected by 
these activities. Therefore, NMFS has determined that a section 7 
consultation under the ESA 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), NMFS 
is preparing an EA to consider the environmental impacts of issuance of 
a one-year IHA.

Proposed Authorization

    NMFS proposes an IHA to ME DOT for the potential harassment of 
small numbers of marine mammal species incidental to its EBRP, 
Eastport, Maine, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated. The draft IHA 
language is provided next.
    1. This Authorization is valid for one year from issuance.
    2. This Authorization is valid only for activities associated with 
the EBRP in Eastport, Maine.
    3. General Conditions
    (a) The species authorized for incidental harassment takings, Level 
B harassment only, are: Harbor seal (Phoca vitulina), gray seal 
(Halichoerus grypus), harbor porpoise (Phocoena phocoena), and Atlantic 
white-sided dolphin (Lagenorhynchus acutus). The allowed take numbers 
of these species are shown in Table 11.

  Table 11--Species/Stocks and Numbers of Marine Mammals Allowed Under
                                This IHA
------------------------------------------------------------------------
                                                             Estimated
                         Species                           marine mammal
                                                               takes
------------------------------------------------------------------------
Harbor seal, Gray seal..................................             960
Harbor porpoise.........................................             390
Atlantic white-sided dolphin............................               8
------------------------------------------------------------------------

    (b) The authorization for taking by harassment is limited to the 
following acoustic sources and from the following activities:
     Impact and vibratory driving activities
    (c) The taking of any marine mammal in a manner prohibited under 
this Authorization must be reported within 24 hours of the taking to 
the Greater Atlantic Region Fisheries Office (GARFO), National Marine 
Fisheries Service (NMFS) Permits and Conservation Division, Office of 
Protected Resources.
    4. The holder of this Authorization must notify the NMFS' Permits 
and Conservation Division, Office of Protected Resources, at least 48 
hours prior to the start of activities identified in 3(b) (unless 
constrained by the date of issuance of this Authorization in which case 
notification shall be made as soon as possible).
    5. Prohibitions
    (a) The taking, by incidental harassment only, is limited to the 
species listed under condition 3(a) above and by the numbers listed in 
Table 11. The taking by Level A harassment, injury or death of these 
species or the taking by harassment, injury or death of any other 
species of marine mammal is prohibited and may result in the 
modification, suspension, or revocation of this Authorization.
    (b) The taking of any marine mammal is prohibited whenever the 
required protected species observers (PSOs), required by condition 
7(a), are not present in conformance with condition 7(a) of this 
Authorization.
    6. Mitigation:
    (a) Shutdown and Level B Zones
    (i) ME DOT shall implement shutdown zones (exclusion zones) for 
Level A Harassment and zones for Level B Harassment as described in 
Table 12 below.

         Table 12--Shutzone and Level B Zones for Marine Mammals
------------------------------------------------------------------------
                Activity                   Pinnipeds (m)   Cetaceans (m)
------------------------------------------------------------------------
Impact Pile Driving (Level A)...........              70             160
                                         -------------------------------
Impact Pile Driving (Level B)...........                550
                                         -------------------------------
Vibratory Pile Driving (Level A)........              50             120
                                         -------------------------------
Vibratory Pile Driving (Level B):

[[Page 89084]]

 
    PZC-18 Sheet Piles..................                400
    PZC-26 Sheet Piles..................                665
------------------------------------------------------------------------

    (b) Soft Start
    (i) For vibratory pile driving, contractors shall initiate noise 
from the vibratory hammer for 15 seconds at 40-60 percent reduced 
energy, followed by a 1-minute waiting period. The procedure shall be 
repeated two additional times before full energy may be achieved.
    (ii) For impact hammering, contractors shall provide an initial set 
of three strikes from the impact hammer at 40 percent energy, followed 
by a 1-minute waiting period, then two subsequent three-strike sets.
    (iii) The soft-start procedure will be conducted prior to driving 
each pile if hammering ceases for more than 30 minutes.
    (c) Shutdown Measures
    (i) If a marine mammal is sighted within or approaching the 
shutdown zones (exclusion zone) prior to start of impact pile driving, 
the observer would notify the on-site project lead (or other authorized 
individual) who would then be required to delay pile driving until the 
animal has moved out of the shutdown zone (exclusion zone) or if the 
animal has not been resighted within 30 minutes.
    (ii) If a marine mammal is sighted within or on a path toward the 
exclusion zone during pile driving, pile driving would cease until that 
animal has moved out of the shutdown (exclusion zone) or 30 minutes has 
lapsed since the last sighting.
    (iii) Although it is unlikely, if a marine mammal that is not 
covered under the IHA is sighted in the vicinity of the project area 
and is about to enter the ZOI, ME DOT shall implement shutdown measures 
to ensure that the animal is not exposed to noise levels that could 
result a take.
    (d) Timing Restrictions
    (i) Work would occur only during daylight hours, when visual 
monitoring of marine mammals can be conducted. To minimize impacts to 
Federally listed Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus), 
shortnose sturgeon (Acipenser brevirostrum) and Atlantic salmon (Salmo 
salar), ME DOT will follow restrictions on pile driving from April 
through November as directed by NMFS'GARFO.
    7. Monitoring:
    (a) Visual Monitoring
    (i) Protected Species Observers
    ME DOT shall employ two biologically-trained, NMFS-approved 
protected species observers (PSOs) to conduct marine mammal monitoring 
for its EBRP.
    (ii) Visual monitoring for marine mammals in the shutdown zone 
(exclusion zone) shall be conducted 30 minutes before, during, and 30 
minutes after all impact pile driving activities.
    (iii) PSOs shall be positioned on the pier. One observer would 
survey inwards toward the pile driving site and the second observer 
would conduct behavioral monitoring outwards to a distance of 1 km 
during all impact pile driving.
    (iv) PSOs shall provide 100 percent coverage for marine mammal 
exclusion zones and conduct monitoring out to the extent of the 
relevant Level B harassment zones for vibratory pile driving 
activities.
    (v) PSOs shall be provided with the equipment necessary to 
effectively monitor for marine mammals (e.g., high-quality binoculars, 
compass, and range-finder as well as a digital SLR camera with 
telephoto lens and video capability) in order to determine if animals 
have entered into the exclusion zone or Level B harassment isopleth and 
to record species, behaviors, and responses to pile driving.
    8. Reporting:
    (a) ME DOT shall provide NMFS with a draft monitoring report within 
90 days of the conclusion of the construction work. This report shall 
detail the monitoring protocol, summarize the data recorded during 
monitoring, and estimate the number of marine mammals that may have 
been harassed.
    (b) If comments are received from the NMFS GARFO or NMFS Office of 
Protected Resources on the draft report, a final report shall be 
submitted to NMFS within 30 days thereafter. If no comments are 
received from NMFS, the draft report will be considered to be the final 
report.
    (c) In the unanticipated event that the construction activities 
clearly cause the take of a marine mammal in a manner prohibited by 
this Authorization (if issued), such as an injury, serious injury or 
mortality (e.g., ship-strike, gear interaction, and/or entanglement), 
ME DOT shall immediately cease all operations and immediately report 
the incident to NMFS Permits and Conservation Division, Office of 
Protected Resources, and the GARFO Stranding Coordinators. The report 
must include the following information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) description of the incident;
    (iii) status of all sound source use in the 24 hours preceding the 
incident;
    (iv) environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility, and water depth);
    (v) description of marine mammal observations in the 24 hours 
preceding the incident;
    (vi) species identification or description of the animal(s) 
involved;
    (vii) the fate of the animal(s); and
    (viii) photographs or video footage of the animal (if equipment is 
available).
    (d) Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS shall work with ME DOT to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. ME DOT may not resume their 
activities until notified by NMFS via letter, email, or telephone.
    (e) In the event that ME DOT 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), 
GARFO will immediately report the incident to NMFS Permits and 
Conservation Division, Office of Protected Resources, and the GARFO 
Stranding Coordinators. The report must include the same information 
identified above. Activities may continue while NMFS reviews the 
circumstances of the incident. NMFS will work with ME DOT to determine 
whether modifications in the activities are appropriate.
    (f) In the event that ME DOT 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 proposed in the IHA (e.g., 
previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage),

[[Page 89085]]

ME DOT shall report the incident to NMFS Permits and Conservation 
Division, Office of Protected Resources, and the GARFO Stranding 
Coordinators, within 24 hours of the discovery. ME DOT shall provide 
photographs or video footage (if available) or other documentation of 
the stranded animal sighting to NMFS and the Marine Mammal Stranding 
Network. ME DOT can continue its operations under such a case.
    9. This Authorization may be modified, suspended or withdrawn if 
the holder fails to abide by the conditions prescribed herein or if the 
authorized taking is having more than a negligible impact on the 
species or stock of affected marine mammals, or if there is an 
unmitigable adverse impact on the availability of such species or 
stocks for subsistence uses.
    10. A copy of this proposed Authorization must be in the possession 
of each contractor who performs the EBRP in Eastport, Maine.
    11. This Authorization may be modified, suspended, or withdrawn if 
the Holder fails to abide by the conditions prescribed herein or if the 
authorized taking is having more than a negligible impact on the 
species or stock of affected marine mammals.

Request for Public Comments

    NMFS requests comments on our analysis, the draft authorization, 
and any other aspect of the Notice of Proposed IHA for ME DOT's 
construction project in Eastport, Maine. Please include with your 
comments any supporting data or literature citations to help inform our 
final decision on ME DOT's request for an MMPA authorization.

    Dated: December 6, 2016.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2016-29597 Filed 12-8-16; 8:45 am]
 BILLING CODE 3510-22-P