Federal Register / Vol. 77, No. 12 / Thursday, January 19, 2012 / Notices 2701 

fulfill the NACMBE’s charter mandate. 

The agenda may change to 

accommodate Council business. 

DATES: The meeting will be held on 

Monday, February 6, 2012 from 11 a.m. 

to 7 p.m. Eastern Time (ET). 

ADDRESSES: This meeting will be held at 

the U.S. Department of Commerce, 1401 

Constitution Avenue NW., Washington, 

DC 20230. 

FOR FURTHER INFORMATION CONTACT: 

Demetria Gallagher, National Director’s 

Office, Minority Business Development 

Agency (MBDA), U.S. Department of 

Commerce at (202) 482–1624, email: 

dgallagher@mbda.gov. 

SUPPLEMENTARY INFORMATION: 

Background: The Secretary of 

Commerce established the NACMBE 

pursuant to his discretionary authority 

and in accordance with the Federal 

Advisory Committee Act, as amended (5 

U.S.C. App. 2) on April 28, 2010. The 

NACMBE is to provide the Secretary of 

Commerce with recommendations from 

the private sector on a broad range of 

policy issues that affect minority 

businesses and their ability to access 

successfully the domestic and global 

marketplace. 

Topics to be considered: During the 

meeting the three subcommittees will 

report on their work and the Council 

will discuss and deliberate on possible 

recommendations. The Subcommittee 

topics include: (1) Definition of 

Minority Business Enterprises (MBEs) 

and MBDA’s role, (2) Creation of an 

MBE Forum, and (3) Strategic Alliances 

& Exports. 

Public Participation: The meeting is 

open to the public. Public seating is 

limited and available on a first-come, 

first-served basis. Members of the public 

wishing to attend the meeting must 

notify Demetria Gallagher at the contact 

information above by 5 p.m. EST on 

Monday, January 30, 2012, to 

preregister. Please specify any requests 

for reasonable accommodation at least 

ten (10) business days in advance of the 

meeting. Last minute requests will be 

accepted, but may not be possible to 

fulfill. 

A limited amount of time, in the 

afternoon, will be available for pertinent 

brief oral comments from members of 

the public attending the meeting. Any 

member of the public may submit 

pertinent written comments concerning 

affairs of the NACMBE at 

www.mbda.gov/main/nacmbe-submitcomments. To be considered during the 

meeting, comments must be received no 

later than 5 p.m. ET on Wednesday, 

February 1, 2012, to ensure transmission 

to the Council prior to the meeting. 

Comments received after that date will 

be distributed to the members but may 

not be considered at the meeting. 

This meeting is physically accessible 

to people with disabilities. Requests for 

sign language interpretation or other 

auxiliary aids should be directed to 

Demetria Gallagher, at (202) 482–1624, 

or dgallagher@ mbda.gov, at least ten 

(10) days before the meeting date. 

Copies of the NACMBE open meeting 

minutes will be available to the public 

upon request. 

Dated: January 12, 2012. 

David A. Hinson, 

National Director, Minority Business 

Development Agency. 

[FR Doc. 2012–1005 Filed 1–18–12; 8:45 am] 

BILLING CODE 3510–21–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

RIN 0648–XA916 

Takes of Marine Mammals Incidental to 

Specified Activities; Pile Placement for 

ORPC Maine’s Cobscook Bay Tidal 

Energy Pilot Project 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; proposed incidental 

harassment authorization; request for 

comments. 

SUMMARY: NMFS has received an 

application from Ocean Renewable 

Power Company Maine, LLC (ORPC) for 

an Incidental Harassment Authorization 

(IHA) to take marine mammals, by 

harassment, incidental to pile driving in 

Cobscook Bay, Maine. Pursuant to the 

Marine Mammal Protection Act 

(MMPA), NMFS is proposing to issue an 

IHA to incidentally harass, by Level B 

harassment, four species of marine 

mammals during the specified activity 

within a specific geographic region and 

is requesting comments on its proposal. 

DATES: Comments and information must 

be received no later than February 21, 

2012. 

ADDRESSES: Comments on the 

application and this proposal should be 

addressed to Michael Payne, Chief, 

Permits and Conservation Division, 

Office of Protected Resources, National 

Marine Fisheries Service, 1315 EastWest Highway, Silver Spring, MD 

20910. The mailbox address for 

providing email comments is 

ITP.Magliocca@noaa.gov. NMFS is not 

responsible for email comments sent to 

addresses other than the one provided 

here. Comments sent via email, 

including all attachments, must not 

exceed a 10-megabyte file size. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.nmfs.noaa.gov/pr/permits/ 

incidental.htm without change. All 

Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

A copy of the application containing 

a list of the references used in this 

document may be obtained by writing to 

the address specified above, telephoning 

the contact listed below (see FOR

FURTHER INFORMATION CONTACT), or 

visiting the Internet at: http:// 

www.nmfs.noaa.gov/pr/permits/ 

incidental.htm. Documents cited in this 

notice may also be viewed, by 

appointment, during regular business 

hours, at the aforementioned address. 

FOR FURTHER INFORMATION CONTACT: 

Michelle Magliocca, Office of Protected 

Resources, NMFS, (301) 427–8401. 

SUPPLEMENTARY INFORMATION

Background 

Sections 101(a)(5)(A) and (D) of the 

MMPA (16 U.S.C. 1361 et seq.) direct 

the Secretary of Commerce to allow, 

upon request, the incidental, but not 

intentional, taking of small numbers of 

marine mammals by United States 

citizens who engage in a specified 

activity (other than commercial fishing) 

within a specific geographical region if 

certain findings are made and either 

regulations are issued or, if the taking is 

limited to harassment, a notice of a 

proposed authorization is provided to 

the public for review. 

Authorization for incidental takings 

shall be granted if NMFS finds that the 

taking will have a negligible impact on 

the species or stock(s), will not have an 

unmitigable adverse impact on the 

availability of the species or stock(s) for 

subsistence uses (where relevant), and if 

the permissible methods of taking and 

requirements pertaining to the 

mitigation, monitoring and reporting of 

such takings are set forth. NMFS has 

defined ‘‘negligible impact’’ 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 United States can 

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2702 Federal Register / Vol. 77, No. 12 / Thursday, January 19, 2012 / Notices 

apply for an authorization to 

incidentally take small numbers of 

marine mammals by harassment. 

Section 101(a)(5)(D) further established 

a 45-day time limit for NMFS’ review of 

an application, followed by a 30-day 

public notice and comment period on 

any proposed authorizations for the 

incidental harassment of marine 

mammals. Within 45 days of the close 

of the comment period, NMFS must 

either issue or deny the authorization. 

Except with respect to certain 

activities not pertinent here, the MMPA 

defines ‘‘harassment’’ as: 

Any act of pursuit, torment, or 

annoyance which (i) has the potential to 

injure a marine mammal or marine 

mammal stock in the wild [Level A 

harassment]; or (ii) has the potential to 

disturb a marine mammal or marine 

mammal stock in the wild by causing 

disruption of behavioral patterns, 

including, but not limited to, migration, 

breathing, nursing, breeding, feeding, or 

sheltering [Level B harassment]. 

Summary of Request 

On November 2, 2011, NMFS received 

an application from ORPC requesting an 

IHA for the take, by Level B harassment, 

of small numbers of harbor seal (Phoca 

vitulina), gray seal (Halichoerus grypus), 

harbor porpoise (Phocoena phocoena), 

and Atlantic white-sided dolphin 

(Lagenorhynchus acutus) incidental to 

pile driving activities in Cobscook Bay, 

Maine. Upon receipt of additional 

information and a revised application, 

NMFS determined the application 

complete and adequate on January 7, 

2011. 

ORPC plans to build, deploy, monitor, 

and test a single-device tidal turbine as 

the first phase of a long-term project 

with the ultimate goal of generating and 

delivering electricity to an on-shore 

location in Lubec, Maine and 

connecting to the Bangor Hydro Electric 

Company power grid. The long-term 

project would be carried out in two 

separate phases over an expected 8-year 

pilot license term. Because elevated 

sound levels from pile driving during 

the first phase of the project have the 

potential to result in marine mammal 

harassment, NMFS is proposing to issue 

an IHA for take incidental to pile 

driving activities. 

Description of the Specified Activity 

ORPC proposes to install foundational 

piles to support an underwater tidal 

turbine unit. The turbine unit is 

approximately 98 feet (ft) long, 17 ft 

high, and 17 ft wide and is attached to 

a bottom support frame, which holds 

the unit in place about 15 ft above the 

sea floor. The turbine unit weighs about 

69,000 pounds (lbs) and is coupled with 

the bottom support frame to comprise 

what is called a single-device TidGenTM

Power System. At the interface with the 

seabed, the bottom support frame 

requires a site-specific design based on 

the environmental conditions at the 

deployment area. The foundation design 

for the single-device TidGenTM Power 

System is a pile bent arrangement 

consisting of ten steel pipe piles. Each 

foundation pile would have a 30-inch 

(in) diameter and a half-inch wall 

thickness and would rest on bedrock. 

Piles would vary in length from 15–18 

m (50–60 ft) due to bottom sediment 

depth, but each pile would be driven to 

the top of bedrock and would protrude 

3–5 m (10–15 ft) above the seafloor. 

A total of 11 piles (10 for the 

foundation and one for mounting 

environmental monitoring equipment) 

would be driven from a moored barge 

for the first phase. Piles would be 

placed about six m (20 ft) apart in two 

rows of five and the rows would be 

separated by about 15 m (50 ft). 

Geotechnical data shows that the 

TidGenTM device would be located in an 

area with up to 40 ft of marine clay and 

some thin layers of glacial till 

overlaying bedrock. Based on this data 

and extensive soil studies in the area, 

piles are expected to sink fairly deep 

into the mud line under their own 

weight. Piles would be driven the 

remaining depth using vibratory and 

impact pile driving procedures from 

barge-based pile driving equipment. A 

pile for mounting environmental 

monitoring equipment would also be 

installed with the same pile driving 

equipment. The monitoring pile would 

be two m (six ft) in diameter, or an array 

of three piles not greater than 30 in in 

diameter. The monitoring pile would 

protrude about six m (20 ft) above the 

seafloor. The two-m diameter pile 

would sit about two m below the mud 

line while the array of smaller diameter 

piles would be driven to bedrock. 

ORPC would use an H&M model H– 

1700 vibratory hammer to drive piles to 

the extent possible. If additional energy 

is required to reach bedrock, a 

Berminghammer model B–3505 diesel 

impact hammer would be used, with 

maximum rated impact energy of 21,533 

ft-lb. ORPC expects that the need for an 

impact hammer would be minimal and 

for very short durations. To lessen the 

amount and intensity of sound 

propagation, ORPC would evaluate the 

use of wooden sound absorption 

cushions and/or bubble curtains. 

Date and Duration of Proposed Activity 

ORPC plans to begin pile driving on 

March 1, 2012. Pile driving with a 

vibratory hammer would take up to 3 

minutes per pile and pile driving with 

an impact hammer would take up to 5 

minutes per pile. Due to strong currents 

during ebb and flood tides, pile driving 

would occur during slack tides only. 

ORPC expects that only one pile would 

be driven per slack tide period, for a 

total of 7–12 days of pile driving during 

daylight hours only. Pile driving could 

occur for up to 90 minutes per slack 

tide, with the potential for two slack 

tide pile driving sessions per day. 

NMFS Northeast Regional Office 

recommends that in-water construction 

involving pile driving be conducted 

between November 8 and April 9 to 

avoid impacts to fisheries resources. 

However, ORPC may be able to conduct 

pile driving activities after April 9 if 

they can demonstrate that noise levels 

caused by the impact hammer are below 

NMFS’ guidelines. Although pile 

driving is only expected to last 7–12 

days, NMFS would issue the IHA for a 

1-year period to allow for permitting 

and weather delays. Pile driving would 

only occur in weather that provides 

adequate visibility for marine mammal 

monitoring activities. 

Region of Proposed Activity 

The proposed activity would occur in 

Cobscook Bay, in between Lubec and 

Eastport, Maine. Piles and other 

deployment materials would be 

transported by barge from a staging area 

at the Eastport Boat School or other 

local access point. Cobscook Bay has 

extremely strong tidal currents and 

notably high tides, creating an extensive 

intertidal habitat for marine and coastal 

species. Water depth at the proposed 

project location is 26 m (85 ft) at mean 

lower low water. The Bay is considered 

a relatively intact marine system, as the 

area has not experienced much 

industrialization. 

Sound Propagation 

Sound is a mechanical disturbance 

consisting of minute vibrations that 

travel through a medium, such as air or 

water, and is generally characterized by 

several variables. Frequency describes 

the sound’s pitch and is measured in 

hertz (Hz) or kilohertz (kHz), while 

sound level describes the sound’s 

loudness and is measured in decibels 

(dB). Sound level increases or decreases 

exponentially with each dB of change. 

For example, 10 dB yields a sound level 

10 times more intense than 1 dB, while 

a 20 dB level equates to 100 times more 

intense, and a 30 dB level is 1,000 times 

more intense. Sound levels are 

compared to a reference sound pressure 

(micro-Pascal) to identify the medium. 

For air and water, these reference 

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Federal Register / Vol. 77, No. 12 / Thursday, January 19, 2012 / Notices 2703 

pressures are ‘‘re: 20 mPa’’ and ‘‘re: 1 

mPa,’’ respectively. Root mean square 

(RMS) is the quadratic mean sound 

pressure over the duration of an 

impulse. RMS is calculated by squaring 

all of the sound amplitudes, averaging 

the squares, and then taking the square 

root of the average (Urick, 1975). RMS 

accounts for both positive and negative 

values; squaring the pressures makes all 

values positive so that they may be 

accounted for in the summation of 

pressure levels (Hastings and Popper, 

2005). This measurement is often used 

in the context of discussing behavioral 

effects, in part because behavioral 

effects, which often result from auditory 

cues, may be better expressed through 

averaged units rather than by peak 

pressures. 

Source levels for the vibratory and 

impact hammer are expected to be 175 

dB and 190 dB, respectively. Assuming 

a practical spreading loss of 15 log R, 

OPRC estimates that the 180-dB (Level 

A) isopleth for the impact hammer 

could be as far as 100 m (328 ft). Based 

on similar estimates, the 160-dB (Level 

B) isopleth for the impact hammer could 

be about 1,800 m (5,906 ft) The 120-dB 

(Level B for continuous sound sources) 

isopleth for the vibratory hammer could 

be as far as 4,600 m (2.5 mi). 

Description of Marine Mammals in the 

Area of the Specified Activity 

Marine mammals with known 

presence in this region of Cobscook Bay 

are the harbor seal, grey seal, harbor 

porpoise, and Atlantic white-sided 

dolphin. ORPC has been conducting 

incidental visual observations of marine 

mammals in Cobscook Bay since 2007, 

for a total effort of 252 4-hr 

observational periods over 222 days. 

During this time, marine mammal 

observers have recorded 57 seals, 47 

harbor porpoises, and two Atlantic 

white-sided dolphins (Table 2). No 

observations of any whale species have 

been made in Cobscook Bay by ORPC 

since monitoring began in 2007. In 

addition, a review of available databases 

does not indicate any recorded whale 

sightings in Cobscook Bay. 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 

borealis), minke whale (Balaenoptera 

acutorostrata), and sei whale 

(Balaenoptera borealis). However, these 

five species are not likely to occur in 

Cobscook Bay and are generally 

associated with open ocean habitats and 

offshore locations. NMFS has concluded 

that the specified activity will not 

impact these five species and they are 

not discussed further. 

Month Hours of effort Harbor and grey 

seal Harbor porpoise Atlantic whitesided dolphin 

January ............................................................................................ 16 0 0 0 

February ........................................................................................... 36 0 1 0 

March ............................................................................................... 56 1 0 0 

April .................................................................................................. 160 4 3 0 

May .................................................................................................. 56 1 3 0 

June ................................................................................................. 84 8 1 0 

July ................................................................................................... 84 4 10 0 

August .............................................................................................. 120 16 24 2 

September ....................................................................................... 100 9 5 0 

October ............................................................................................ 96 8 0 0 

November ........................................................................................ 72 4 0 0 

December ........................................................................................ 104 2 0 0 

Total .......................................................................................... 1,008 57 47 2 

Harbor Seals 

Harbor seals are typically found in 

temperate coastal habitats and use 

rocks, reefs, beaches, and drifting glacial 

ice as haul outs and pupping sites. On 

the east coast, they range from the 

Canadian Arctic to southern New 

England, New York, and occasionally 

the Carolinas. There are an estimated 

91,000 harbor seals in the western North 

Atlantic stock and the population is 

increasing. Harbor seals are not listed 

under the Endangered Species Act 

(ESA) nor considered depleted under 

the MMPA. More information, including 

stock assessment reports, can be found 

at: http://www.nmfs.noaa.gov/pr/

species/mammals/pinnipeds/

harborseal.htm. The only speciesspecific data for Cobscook Bay is from 

ORPC’s 2007–2010 marine mammal 

observations. 

Gray Seals 

Gray seals reside in coastal waters and 

also inhabit islands, sandbars, ice 

shelves, and icebergs. The western 

North Atlantic stock ranges from eastern 

Canada to the northeastern United 

States. Current population numbers for 

the western North Atlantic stocks are 

unknown, but are estimated at over 

250,000 animals. Most recent 

population estimates show increases in 

abundance in Canada and the United 

States, although the population in the 

Gulf of St. Lawrence appears to be 

declining. Gray seals pup at two 

established colonies off the coast of 

Maine: Green Island and Seal Island. 

Both colonies are tens of miles away 

from the proposed project site. Gray 

seals are not listed under the ESA nor 

considered depleted under the MMPA. 

More information, including stock 

assessment reports, can be found at 

http://ww.nmfs.noaa.gov/pr/sepcies/ 

mammals/pinnipeds/grayseal.htm. The 

only species-specific data for Cobscook 

Bay is from ORPC’s 2007–2010 marine 

mammal observations. 

Pinnipeds produce a wide range of 

social signals, most occurring at 

relatively low frequencies (Southall et 

al., 2007), suggesting that hearing is 

keenest at these frequencies. Pinnipeds 

communicate acoustically both on land 

and underwater, but have different 

hearing capabilities dependent upon the 

medium (air or water). Based on 

numerous studies, as summarized in 

Southall et al. (2007), pinnipeds are 

more sensitive to a broader range of 

sound frequencies underwater than in 

air. Underwater, pinnipeds can hear 

frequencies from 75 Hz to 75 kHz. In air, 

pinnipeds can hear frequencies from 75 

Hz to 30 kHz (Southall et al., 2007). 

Harbor Porpoises 

Harbor porpoises reside in northern 

temperate and subarctic coastal and 

offshore waters. They are commonly 

found in bays, estuaries, harbors, and 

fjords less than 200 m (650 ft) deep. In 

the western North Atlantic, harbor 

porpoises range from west Greenland to 

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2704 Federal Register / Vol. 77, No. 12 / Thursday, January 19, 2012 / Notices 

Cape Hatteras, North Carolina. Harbor 

porpoises in United States waters are 

divided into 10 stocks, based on 

genetics, movement patterns, and 

management. Any harbor porpoises 

encountered during the proposed 

project would be part of the Gulf of 

Maine-Bay of Fundy stock, which has 

an estimated abundance of 89,054 

animals. Population trends for all U.S. 

stocks of harbor porpoises are currently 

unknown. Gulf of Maine-Bay of Fundy 

harbor porpoises are not listed under 

the ESA nor considered depleted under 

the MMPA. More information, including 

stock assessment reports, can be found 

at: http://www.nmfs.noaa.gov/pr/ 

species/mammals/cetaceans/ 

harborporpoise.htm. The only speciesspecific data for Cobscook Bay is from 

ORPC’s 2007–2010 marine mammal 

observations. 

Cetaceans are divided into three 

functional hearing groups: lowfrequency, mid-frequency, and highfrequency. Harbor porpoises are 

considered high-frequency cetaceans 

and the estimated auditory bandwidth 

(lower to upper frequency hearing cutoff) for this group ranges from 200 Hz 

to 180 kHz. 

Atlantic White-Sided Dolphins 

Atlantic white-sided dolphins are 

only found in temperate waters of the 

North Atlantic Ocean and typically 

reside along the continental shelf and 

slope. They range from Greenland to 

North Carolina and exhibit seasonal 

movements between inshore northern 

waters and southern offshore waters. 

The western North Atlantic stock has an 

estimated 63,000 animals, but there is 

insufficient information to determine 

population trends. Atlantic white-sided 

dolphins are not listed under the ESA 

nor considered depleted under the 

MMPA. More information, including 

stock assessment reports, can be found 

at: http://www.nmfs.noaa.gov/pr/

species/mammals/cetaceans/whitesided

dolphin_atlantic.htm. The only speciesspecific data for Cobscook Bay is from 

ORPC’s 2007–2010 marine mammal 

observations. 

Atlantic white-sided dolphins, like 

harbor porpoises, are considered midfrequency cetaceans and their estimated 

auditory bandwidth ranges from 150 Hz 

to 160 kHz. 

Potential Effects on Marine Mammals 

Elevated in-water sound levels from 

pile driving 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 nautical miles (NM) 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). 

Hearing Impairment 

Marine mammals may experience 

temporary or permanent hearing 

impairment when exposed to loud 

sounds. Hearing impairment is 

classified either as temporary threshold 

shift (TTS) or permanent threshold shift 

(PTS). There are no empirical data for at 

what received level PTS occurs in 

marine mammals; therefore, it must be 

estimated from at what received levels 

the onset of TTS occurs and the rate of 

TTS growth with increasing exposure 

levels. PTS is likely if the animal’s 

hearing threshold is reduced by ≥ 40 dB 

of TTS. PTS is considered auditory 

injury (Southall et al., 2007) and occurs 

in a specific frequency range and 

amount. Irreparable damage to the inner 

or outer cochlear hair cells may cause 

PTS; however, other mechanisms are 

also involved, such as exceeding the 

elastic limits of certain tissues and 

membranes in the middle and inner ears 

and resultant changes in the chemical 

composition of the inner ear fluids 

(Southall et al., 2007). Due to proposed 

mitigation measures and source levels 

in the proposed project area, NMFS 

does not expect marine mammals to be 

exposed to received sound levels 

associated with PTS. 

Temporary Threshold Shift (TTS) 

TTS is the mildest form of hearing 

impairment that can occur during 

exposure to a loud sound (Kryter, 1985). 

While experiencing TTS, the hearing 

threshold rises and a sound must be 

louder in order to be heard. TTS can last 

from minutes or hours to days, but is 

recoverable. TTS also occurs in specific 

frequency ranges; therefore, an animal 

might experience a temporary loss of 

hearing sensitivity only between the 

frequencies of 1 and 10 kHz, for 

example. The amount of change in 

hearing sensitivity is also variable and 

could be reduced by 6 dB or 30 dB, for 

example. Recent literature highlights the 

inherent complexity of predicting TTS 

onset in marine mammals, as well as the 

importance of considering exposure 

duration when assessing potential 

impacts (Mooney et al., 2009a, 2009b; 

Kastak et al., 2007). Generally, with 

sound exposures of equal energy, 

quieter sounds (lower SPL) of longer 

duration were found to induce TTS 

onset more than louder sounds (higher 

SPL) of shorter duration (more similar to 

subbottom profilers). For sound 

exposures at or somewhat above the 

TTS-onset threshold, hearing sensitivity 

recovers rapidly after exposure to the 

sound ends. Southall et al. (2007) 

considers a 6 dB TTS (i.e., baseline 

thresholds are elevated by 6 dB) to be 

a sufficient definition of TTS-onset. 

NMFS considers TTS Level B 

harassment that is mediated by 

physiological effects on the auditory 

system; however, NMFS does not 

consider onset TTS to be the lowest 

level at which Level B harassment may 

occur. Southall et al. (2007) summarizes 

underwater pinniped data from Kastak 

et al. (2005), indicating that a tested 

harbor seal showed a TTS of around 6 

dB when exposed to a nonpulse noise 

at sound pressure level 152 dB re: 1 mPa 

for 25 minutes. Some studies suggest 

that harbor porpoises may be more 

sensitive to sound than other 

odontocetes (Lucket et al., 2009; 

Kastelein et al., 2011). However, while 

TTS onset may occur in harbor 

porpoises at lower received levels 

(when compared to other odontocetes), 

NMFS’ 160-dB threshold criteria are 

based on the onset of behavioral 

harassment, not the onset of TTS. There 

is no information on TTS for Atlantic 

white-sided dolphins or gray seals 

specifically; published data on the onset 

of TTS are limited to the captive 

bottlenose dolphin and beluga 

(Finneran et al., 2000, 2002b, 2005a; 

Schlundt et al., 2000; Nachtigall et al., 

2003, 2004). 

Behavioral Disturbance 

Behavioral responses to sound are 

highly variable and context-specific. An 

animal’s perception of and response to 

(in both nature and magnitude) an 

acoustic event can be influenced by 

prior experience, perceived proximity, 

bearing of the sound, familiarity of the 

sound, etc. (Southall et al., 2007). If a 

marine mammal does react briefly to an 

underwater sound by changing its 

behavior or moving a small distance, the 

impacts of the change are unlikely to be 

significant to the individual, let alone 

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Federal Register / Vol. 77, No. 12 / Thursday, January 19, 2012 / Notices 2705 

the stock or populations. However, if a 

sound source displaces marine 

mammals from an important feeding or 

breeding area for a prolonged period, 

impacts on individuals and populations 

could be significant (e.g., Lusseau and 

Bejder, 2007; Weilgart, 2007). In order to 

estimate the number of takes by Level B 

harassment, as defined by the MMPA, it 

is common practice to estimate how 

many mammals would be present 

within a particular distance of activities 

and/or exposed to a particular level of 

sound. Additional analyses that include 

a consideration of the context of the 

exposures and other factors are then 

employed to determine what subset of 

the takes would likely affect a marine 

mammal in some biologically-important 

manner. 

Non-Pulse Sounds 

The studies that address responses of 

mid-frequency cetaceans (such as 

Atlantic white-sided dolphins) to nonpulse sounds (like vibratory pile 

driving) include data gathered both in 

the field and the laboratory and related 

to several different sound sources (of 

varying similarity to chirps) including: 

Pingers, drilling playbacks, ship and 

ice-breaking noise, vessel noise, 

acoustic harassment devices (AHDs), 

acoustic deterrent devices (ADDs), midfrequency active sonar, and non-pulse 

bands and tones. Southall et al. (2007) 

conclude that the results of these 

studies do not clearly indicate at what 

received levels marine mammals are 

likely to be disturbed by these types of 

sources. In some cases animals in the 

field showed significant responses to 

received levels between 90 and 120 dB, 

while in other cases these responses 

were not seen in the 120 to 150 dB 

range. The disparity in results was 

likely due to contextual variation and 

the differences between the results in 

the field and laboratory data (animals 

typically responded at lower levels in 

the field). 

The studies that address responses of 

high-frequency cetaceans (such as the 

harbor porpoise) to non-pulse sounds 

include data gathered both in the field 

and the laboratory and related to several 

different sound sources (of varying 

similarity to chirps), including: Pingers, 

AHDs, and various laboratory non-pulse 

sounds. All of these data were collected 

from harbor porpoises. Southall et al. 

(2007) concluded that the existing data 

indicate that harbor porpoises are likely 

sensitive to a wide range of 

anthropogenic sounds at low received 

levels (around 90 to 120 dB), at least for 

initial exposures. All recorded 

exposures above 140 dB induced 

profound and sustained avoidance 

behavior in wild harbor porpoises 

(Southall et al., 2007). Rapid 

habituation was noted in some but not 

all studies. 

There are limited data available on 

the behavioral effects of non-pulse noise 

on pinnipeds while underwater; 

however, field and captive studies to 

date collectively suggest that pinnipeds 

do not react strongly to exposures 

between 90 and 140 dB re: 1 mPa; no 

data exist from exposures at higher 

levels. Jacobs and Terhune (2002) 

observed wild harbor seal reactions to 

high-frequency acoustic harassment 

devices around nine sites. Seals came 

within 44 m of the active acoustic 

harassment devices and failed to 

demonstrate any behavioral response 

when received SPLs were estimated at 

120–130 dB. In a captive study 

(Kastelein, 2006), scientists subjected a 

group of seals to non-pulse sounds 

between 8 and 16 kHz. Exposures 

between 80 and 107 dB did not induce 

strong behavioral responses; however, a 

single observation from 100 to 110 dB 

indicated an avoidance response. The 

seals returned to baseline conditions 

shortly following exposure. Southall et 

al. (2007) notes contextual differences 

between these two studies; the captive 

animals were not reinforced with food 

for remaining in the noise fields, 

whereas free-ranging animals may have 

been more tolerant of exposures because 

of motivation to return to a safe location 

or approach enclosures holding prey 

items. 

Impulse Sounds 

Southall et al. (2007) also addressed 

behavioral responses of marine 

mammals to impulse sounds (like 

impact pile driving). The studies that 

address the responses of mid-frequency 

cetaceans to impulse sounds include 

data gathered both in the field and the 

laboratory and related to several 

different sound sources (of varying 

similarity to boomers), including: Small 

explosives, airgun arrays, pulse 

sequences, and natural and artificial 

pulses. The data show no clear 

indication of increasing probability and 

severity of response with increasing 

received level. Behavioral responses 

seem to vary depending on species and 

stimuli. Data on behavioral responses of 

high-frequency cetaceans to multiple 

pulses is not available. Although 

individual elements of some non-pulse 

sources (such as pingers) could be 

considered pulses, it is believed that 

some mammalian auditory systems 

perceive them as non-pulse sounds 

(Southall et al., 2007). 

The studies that address the responses 

of pinnipeds in water to impulse sounds 

include data gathered in the field and 

related to several different sources, 

including: Small explosives, impact pile 

driving, and airgun arrays. Quantitative 

data on reactions of pinnipeds to 

impulse sounds is limited, but a general 

finding is that exposures in the 150 to 

180 dB range generally have limited 

potential to induce avoidance behavior 

(Southall et al., 2007). 

No impacts to marine mammal 

reproduction are anticipated because 

there are no known pinniped rookeries 

within the proposed project area and 

Cobscook Bay is not a known breeding 

ground for cetaceans. NMFS expects any 

impacts to marine mammal behavior to 

be temporary, Level B harassment (for 

example, avoidance or alteration of 

behavior). ORPC conservatively assumes 

12 pile driving days may occur over the 

validity of the IHA. Marine mammal 

injury or mortality is not likely, as the 

180 dB isopleth (NMFS’ Level A 

harassment threshold for cetaceans) for 

the impact hammer is expected to be no 

more than a 100-m (328 ft) radius. ORPC 

proposes to continuously monitor a 152- 

m (500-ft) area around the sound source 

and cease all pile driving if a marine 

mammal is observed nearing or within 

this 152-m (500-ft) isopleth. 

Anticipated Effects on Habitat 

No permanent detrimental impacts to 

marine mammal habitat are expected to 

result from the proposed project. 

Disturbance in the water column would 

be limited to the area of each pile. 

Turbidity resulting from pile driving 

activity would be limited because pile 

driving would only occur at slack tide 

and the seafloor geology in the proposed 

action area is predominantly gravel and 

cobbles. Pile driving (resulting in 

temporary ensonification) may impact 

prey species and marine mammals by 

causing avoidance or abandonment of 

the area; however these impacts are 

expected to be local and temporary. The 

benthic impact of the foundation for this 

phase of the proposed project would be 

about 113 ft2 during pile placement, 

including disturbance from pile driving 

equipment. While the foundation frame 

will take up a limited amount of space 

on the seafloor, there are no expected 

adverse impacts to marine mammal 

habitat. 

Proposed Mitigation 

In order to issue an IHA 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 adverse impact on such 

species or stock and its habitat, paying 

particular attention to rookeries, mating 

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2706 Federal Register / Vol. 77, No. 12 / Thursday, January 19, 2012 / Notices 

grounds, and areas of similar 

significance, and on the availability of 

such species or stock for taking for 

certain subsistence uses. 

ORPC proposed the following 

mitigation measures to minimize 

adverse impacts to marine mammals: 

Sound Attenuation Device 

When using a diesel impact hammer 

to ‘‘proof’’ piles, ORPC would use 

wooden sound absorption cushions 

and/or a bubble curtain to reduce 

hydroacoustic sound levels and avoid 

the potential for marine mammal injury. 

Based on previous studies, sound 

attenuation devices are expected to 

reduce sound levels by at least 5 dB. 

Exclusion Zone 

The purpose of the proposed 

exclusion zone is to prevent Level A 

harassment (injury) of any marine 

mammal species. During all in-water 

impact pile driving, ORPC would 

establish a preliminary marine mammal 

exclusion zone around each pile to 

avoid exposure to sounds at or above 

180 dB. The preliminary exclusion zone 

would have a radius of 152 m (500 ft). 

This encompasses the initial estimate of 

the 180 dB isopleth, where injury could 

occur, plus a 52-m (171-ft) buffer zone. 

The buffer zone would be established to 

account for the initial lack of in-water 

acoustic measurements. Once 

hydroacoustic monitoring is conducted, 

the exclusion zone may be adjusted 

upward accordingly to ensure that 

marine mammals are not exposed to 

Level A harassment sound pressure 

levels. The exclusion zone would be 

monitored continuously during impact 

pile driving to ensure that no marine 

mammals enter the area. Protected 

species observers (PSOs) would be 

stationed on two observer boats, one 152 

m (500 ft) upstream and one 500 ft 

downstream of the installation site. One 

observer on each vessel would survey 

the exclusion zone, while the second 

observer would conduct behavioral 

monitoring outwards to a distance of 1 

nm. Several floats anchored at 152 m 

(500 ft) and 305 m (1,000 ft) would be 

located around the installation site to 

help identify when marine mammals are 

entering or within the exclusion zone. 

An exclusion zone for vibratory pile 

driving or installation of concrete piles 

is unnecessary as source levels would 

not exceed the Level A harassment 

threshold. 

Pile Driving Shut Down and Delay 

Procedures 

If a PSO sees a marine mammal 

within or approaching the 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 marine 

mammal has moved 305 m (1,000 ft) 

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 the 152-m 

(500-ft) exclusion zone during pile 

driving, pile driving would cease until 

that animal has moved 305 m (1,000 ft) 

and is on a path away from the 

exclusion 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 

additional times before full energy may 

be achieved. For impact hammering, 

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. 

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 IHAs must 

include the suggested means of 

accomplishing the necessary monitoring 

and reporting that will result in 

increased knowledge of the species and 

of the level of taking or impacts on 

populations of marine mammals that are 

expected to be present. 

Hydroacoustic monitoring would be 

performed at the initial installation of 

each pile driving method to ensure that 

the harassment isopleths are not 

extending past the calculated distances 

described in this notice and to assess 

the efficiency of the sound attenuation 

devices. ORPC would designate two 

biologically trained, on-site PSOs, 

approved in advance by NMFS, to 

monitor the exclusion zone 

(preliminarily set at 152 m [500 ft]) for 

marine mammals 30 minutes before, 

during, and 30 minutes after all impact 

pile driving activities and call for shut 

down if any marine mammal is 

observed within or approaching the 

exclusion zone. These PSOs would be 

positioned on two vessels, one anchored 

upstream and one anchored 

downstream at 152 m (500 ft) on the 

edge of the exclusion zone. One 

observer on each vessel would survey 

inwards toward the pile driving site and 

the second observer would conduct 

behavioral monitoring outwards to a 

distance of 1 nm during all impact pile 

driving. In addition, PSOs would be 

stationed at the Level B harassment 

isopleth 4,600 m (2.5 mi) during at least 

three events of vibratory pile driving to 

conduct behavioral monitoring. 

Additional PSOs would be stationed at 

the Level B harassment isopleth 

(preliminarily set at 4,600 m [2.5 mi]) on 

at least three days of vibratory pile 

driving to validate take estimates and 

evaluate the behavioral impacts pile 

driving has on marine mammals out to 

the Level B harassment isopleth. 

Protected species observers would be 

provided with the equipment necessary 

to effectively monitor for marine 

mammals (for example, 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. If hydroacoustic monitoring 

indicates that threshold isopleths are 

greater than originally calculated, ORPC 

would contact NMFS within 48 hours 

and make the necessary adjustments. 

Likewise, if threshold isopleths are 

actually less than originally calculated, 

downward adjustments may be made to 

the exclusion zone. Protected species 

observers would be required to submit 

a report to NMFS within 90 days of 

completion of pile driving. The report 

would include data from marine 

mammal sightings (such as date, time, 

location, species, group size, and 

behavior), any observed reactions to 

construction, distance to operating pile 

hammer, and construction activities 

occurring at time of sighting and 

environmental data for the period (wind 

speed and direction, Beaufort sea state, 

cloud cover, and visibility). 

In the unanticipated event that the 

specified activity clearly causes the take 

of a marine mammal in a manner 

prohibited by the IHA (if issued), such 

as an injury (Level A harassment), 

serious injury, or mortality, ORPC 

would immediately cease the specified 

activities and immediately report the 

incident to the Chief of the Permits and 

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Federal Register / Vol. 77, No. 12 / Thursday, January 19, 2012 / Notices 2707 

Conservation Division, Office of 

Protected Resources, NMFS, at (301) 

427–8401 and/or by email to 

Michael.Payne@noaa.gov and 

Michelle.Magliocca@noaa.gov and the 

Northeast Regional Stranding 

Coordinator (Mendy.Garron@noaa.gov). 

The report must include the following 

information: 

• Time, date, and location (latitude/ 

longitude) of the incident; 

• Name and type of vessel involved; 

• Vessel’s speed during and leading 

up to the incident; 

• Description of the incident; 

• Status of all sound source use in the 

24 hrs preceding the incident; 

• Water depth; 

• Environmental conditions (e.g., 

wind speed and direction, Beaufort sea 

state, cloud cover, and visibility); 

• Description of all marine mammal 

observations in the 24 hrs preceding the 

incident; 

• Species identification or 

description of the animal(s) involved; 

• Fate of the animal(s); and 

• Photographs or video footage of the 

animal(s) (if equipment is available). 

Activities would not resume until 

NMFS is able to review the 

circumstances of the prohibited take. 

NMFS would work with ORPC to 

determine what is necessary to 

minimize the likelihood of further 

prohibited take and ensure MMPA 

compliance. ORPC may not resume their 

activities until notified by NMFS via 

letter, email, or telephone. 

In the event that ORPC 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), 

ORPC would immediately report the 

incident to the Chief of the Permits and 

Conservation Division, Office of 

Protected Resources, NMFS, at (301) 

427–8401, and/or by email to 

Michael.Payne@noaa.gov and 

Michelle.Magliocca@noaa.gov and the 

Northeast Regional Stranding 

Coordinator at (978) 281–9300 

(Mendy.Garron@noaa.gov). 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 ORPC 

to determine whether modifications in 

the activities are appropriate. 

In the event that ORPC 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), 

ORPC would report the incident to the 

Chief of the Permits and Conservation 

Division, Office of Protected Resources, 

NMFS, at (301) 427–8401, and/or by 

email to Michael.Payne@noaa.gov and 

Michelle.Magliocca@noaa.gov and the 

NMFS Northeast Stranding Hotline 

(866) 755–6622 and/or by email to the 

Northeast Regional Stranding 

Coordinator (Mendy.Garron@noaa.gov), 

within 24 hrs of the discovery. ORPC 

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 by Incidental 

Harassment 

Except with respect to certain 

activities not pertinent here, the MMPA 

defines ‘‘harassment’’ as: 

Any act of pursuit, torment, or 

annoyance which (i) has the potential to 

injure a marine mammal or marine 

mammal stock in the wild [Level A 

harassment]; or (ii) has the potential to 

disturb a marine mammal or marine 

mammal stock in the wild by causing 

disruption of behavioral patterns, 

including, but not limited to, migration, 

breathing, nursing, breeding, feeding, or 

sheltering [Level B harassment]. 

Current NMFS practice regarding 

exposure of marine mammals to 

anthropogenic noise is that in order to 

avoid the potential for injury (PTS), 

cetaceans and pinnipeds should not be 

exposed to impulsive sounds of 180 and 

190 dB or above, respectively. This level 

is considered precautionary as it is 

likely that more intense sounds would 

be required before injury would actually 

occur (Southall et al., 2007). Potential 

for behavioral Level B harassment is 

considered to have occurred when 

marine mammals are exposed to sounds 

at or above 160 dB for impulse sounds 

(such as impact pile driving) and 120 dB 

for non-pulse noise (such as vibratory 

pile driving). These levels are also 

considered precautionary. 

Distances to NMFS’ harassment 

thresholds were calculated based on the 

expected sound levels at each source 

and the expected attenuation rate of 

sound (Table 3). The 152-m (500-ft) 

distance to the exclusion zone provides 

protected species observers plenty of 

time and adequate visibility to prevent 

marine mammals from entering the area 

during impact pile driving. This would 

prevent marine mammals from being 

exposed to sound levels that reach the 

Level A harassment threshold. 

The estimated number of marine 

mammals potentially taken is based on 

ORPC’s marine mammal monitoring 

observations between 2007 and 2010. 

NMFS is unaware of any other speciesspecific data for Cobscook Bay. Based 

on marine mammal sightings during 

that period, and the estimated number 

of pile driving days, ORPC requested 

authorization for the incidental take of 

four harbor and grey seals and two 

harbor porpoises. Based on further 

consultation with NMFS and further 

evaluation of ORPC’s monitoring 

records between 2007 and 2010, NMFS 

is proposing to authorize the take of 72 

total seals (because they cannot always 

be identified to the species-level), 72 

harbor porpoises, and 12 Atlantic whitesided dolphins. The increase in 

proposed take is based on the maximum 

group size of animals observed during 

ORPC’s marine mammal observations 

(i.e., six seals, five to six harbor 

porpoises, and one Atlantic white-sided 

dolphin) multiplied by the maximum 

expected number of pile driving days 

(i.e., 12). NMFS recognizes that ORPC’s 

2007–2010 marine mammal 

observations may not have accounted 

for every animal in the area; however, 

NMFS believes that the above take 

estimates are extremely conservative 

considering the short duration of 

proposed pile driving and indicate the 

maximum number of animals expected 

to occur within the largest Level B 

harassment isopleth 4,600 m (2.5 mi). 

Negligible Impact and Small Numbers 

Analysis and Determination 

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.’’ In making a 

negligible impact determination, NMFS 

considers a number of factors which 

include, but are not limited to, the 

number of anticipated injuries or 

mortalities (none of which would be 

authorized here), number, nature, 

intensity, and duration of Level B 

harassment, and the context in which 

takes occur. 

As described above, marine mammals 

would not be exposed to activities or 

sound levels which would result in 

injury (PTS), serious injury, or 

mortality. Pile driving would occur in 

relatively shallow coastal waters of 

Cobscook Bay. The proposed project 

area is not considered significant habitat 

for marine mammals. The closest 

regular pinniped haul out is more than 

six NM away, which is well outside the 

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2708 Federal Register / Vol. 77, No. 12 / Thursday, January 19, 2012 / Notices 

1 75 FR 71379. 

2Public Law 111–203, 124 Stat. 1376 (2010). The 

text of the Dodd-Frank Act may be accessed through 

the Commission’s Web site, http://www.cftc.gov. 

3The CEA and the Commission’s regulations 

issued thereunder similarly may be accessed 

through the Commission’s Web site. 

4Regulation 23.21(c) makes clear that each 

affiliate of an insured depository institution 

described in Dodd-Frank Act Section 716(c) is 

subject to the registration provisions under the CEA 

and Part 3 of the regulations as an SD, if the affiliate 

is an SD, or as an MSP, if the affiliate is an MSP. 

The Commission also is issuing today such 

amendments to Part 3 of its regulations as may be 

project area’s largest harassment zone. 

Pinnipeds may occasionally haul out in 

areas closer to the proposed project, but 

not with any regularity. Marine 

mammals approaching the action area 

would likely be traveling or 

opportunistically foraging. The amount 

of take NMFS proposes to authorize, is 

considered small (less than one percent) 

relative to the estimated populations of 

91,000 harbor seals, 250,000 gray seals, 

89,054 harbor porpoises, and 63,000 

Atlantic white-sided dolphins. Marine 

mammals may be temporarily adversely 

impacted by pile driving noise. 

However, some marine mammals are 

expected to avoid the area when pile 

driving is occurring, thereby reducing 

exposure and impacts, and mitigation 

will further ensure that injury is 

unlikely to occur (although it would not 

be expected even in the absence of 

mitigation given the source levels, 

density of animals in the area, and short 

duration of the activities). Pile driving 

activities are expected to occur for about 

7–12 days total (up to 180 minutes per 

day). There is no anticipated effect on 

annual rates of recruitment or survival 

of affected marine mammals. Based on 

the application and subsequent analysis, 

the impact of the described pile driving 

operations may result in, at most, shortterm modification of behavior by small 

numbers of marine mammals within the 

action area. Marine mammals may avoid 

the area or temporarily alter their 

behavior at time of exposure. 

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 preliminarily determines that 

ORPC’s proposed pile driving activities 

will result in the incidental take of 

small numbers of marine mammals, by 

Level B harassment only, and that the 

total taking will have a negligible 

impact on the affected species or stocks. 

Impact on Availability of Affected 

Species for Taking for Subsistence Uses 

There are no relevant subsistence uses 

of marine mammals implicated by this 

action. 

Endangered Species Act (ESA) 

No marine mammal species listed 

under the ESA are anticipated to occur 

within the action area. Therefore, no 

effects to listed species are expected and 

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), and NOAA 

Administrative Order 216–6, NMFS is 

preparing an Environmental Assessment 

(EA) to consider the environmental 

impacts of issuance of a one-year IHA. 

Upon completion, this EA will be 

available on the NMFS Web site listed 

in the beginning of this document (see 

ADDRESSES). 

Dated: January 13, 2012. 

James H. Lecky, 

Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2012–991 Filed 1–18–12; 8:45 am] 

BILLING CODE 3510–22–P 

COMMODITY FUTURES TRADING 

COMMISSION 

Performance of Registration Functions 

by National Futures Association With 

Respect To Swap Dealers and Major 

Swap Participants 

AGENCY: Commodity Futures Trading 

Commission. 

ACTION: Notice and Order. 

SUMMARY: The Commodity Futures 

Trading Commission (Commission) is 

authorizing the National Futures 

Association (NFA), effective January 19, 

2012, in accordance with the standards 

established by the Commodity Exchange 

Act (CEA) and the Commission’s 

regulations issued thereunder, to take 

the following actions: To process and 

grant applications for registration and 

withdrawals of registration with respect 

to swap dealers (SDs) and major swap 

participants (MSPs), and to notify of 

provisional registration; to confirm 

initial compliance with requirements 

applicable to SDs and MSPs under CEA 

Section 4s; to conduct proceedings to 

deny, condition, suspend, restrict or 

revoke the registration of any SD or MSP 

or of any applicant for registration in 

either category; to maintain records 

regarding SDs and MSPs; and to serve 

as the official custodian of those 

Commission records. 

DATES: Effective date: January 19, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Barbara S. Gold, Associate Director, 

Christopher W. Cummings, Special 

Counsel, or Elizabeth Miller, AttorneyAdvisor, Division of Swap Dealer and 

Intermediary Oversight, 1155 21st Street 

NW., Washington, DC 20581. Telephone 

Number: (202) 418–6700 and electronic 

mail: bgold@cftc.gov, 

ccummings@cftc.gov, or 

emiller@cftc.gov. 

SUPPLEMENTARY INFORMATION

I. Authority and Background 

In a separate document published 

elsewhere in today’s Federal Register, 

the Commission is issuing final 

regulations regarding the registration 

process for SDs and MSPs. These final 

regulations follow the publication of 

proposed regulations on November 23, 

2010,1 and they implement the 

registration requirements for SDs and 

MSPs set forth in the Dodd-Frank Wall 

Street Reform and Consumer Protection 

Act (Dodd-Frank Act).2 Specifically, 

Section 731 of the Dodd-Frank Act 

added Sections 4s(a) and 4s(b) to the 

CEA 3 to provide for the registration of 

SDs and MSPs in pertinent part as 

follows: 

(a) REGISTRATION.— 

(1) SWAP DEALERS.—It shall be 

unlawful for any person to act as a swap 

dealer unless the person is registered as 

a swap dealer with the Commission. 

(2) MAJOR SWAP PARTICIPANTS.— 

It shall be unlawful for any person to act 

as a major swap participant unless the 

person is registered as a major swap 

participant with the Commission. 

(b) REQUIREMENTS.— 

(1) IN GENERAL.—A person shall 

register as a swap dealer or major swap 

participant by filing a registration 

application with the Commission. 

(2) CONTENTS.— 

(A). IN GENERAL.—The application 

shall be made in such form and manner 

as prescribed by the Commission, and 

shall contain such information, as the 

Commission considers necessary 

concerning the business in which the 

applicant is or will be engaged. 

Pursuant to CEA Sections 4s(a) and 

4s(b), then, the Commission is today 

issuing Regulations 23.21(a) and 

23.21(b), which respectively subject 

each person who meets the definition of 

an SD or MSP to the registration 

provisions under the CEA and to Part 3 

of the Commission’s regulations.4

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