61426 Federal Register / Vol. 75, No. 192 / Tuesday, October 5, 2010 / Notices 

Dated: September 28, 2010. 

Susan H. Kuhbach, 

Acting Deputy Assistant Secretary for 

Antidumping and Countervailing Duty 

Operations. 

[FR Doc. 2010–24996 Filed 10–4–10; 8:45 am] 

BILLING CODE 3510–DS–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

RIN 0648–XW81 

Takes of Marine Mammals Incidental to 

Specified Activities; Installation of 

Meteorological Data Collection 

Facilities in the Mid-Atlantic Outer 

Continental Shelf 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; issuance of incidental 

harassment authorization. 

SUMMARY: In accordance with 

regulations implementing section the 

Marine Mammal Protection Act 

(MMPA), as amended, notification is 

hereby given that an Incidental 

Harassment Authorization (IHA) to take 

marine mammals, by harassment, 

incidental to pile driving associated 

with installation of two meteorological 

data collection facilities (MDCFs); one 

each off the coast of Delaware and New 

Jersey, has been issued to Bluewater 

Wind, LLC (Bluewater). 

DATES: This authorization is effective 

from October 1- November 15, 2010. 

ADDRESSES: A copy of the application, 

IHA, and a list of references used in this 

document may be obtained by writing to 

P. Michael Payne, Chief, Permits, 

Conservation and Education Division, 

Office of Protected Resources, National 

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

20910–3225. A copy of the application 

may be obtained by writing to this 

address or by telephoning the contact 

listed here and is also available at: 

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

incidental.htm#applications. 

FOR FURTHER INFORMATION CONTACT: 

Jaclyn Daly, Office of Protected 

Resources, NMFS, (301) 713–2289, ext 

151. 

SUPPLEMENTARY INFORMATION: 

Background 

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

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

the Secretary of Commerce to allow, 

upon request, the incidental, but not 

intentional, taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a 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 United States 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 May 5, 2010, NMFS received two 

applications from Bluewater for the 

taking, by Level B harassment, of marine 

mammals incidental to pile driving 

associated with installation of a MDCF 

in Federal waters approximately 16.5 

miles off the coast of Delaware and one 

approximately 20 miles off the coast of 

New Jersey during October 2010. 

Bluewater provided supplemental 

information to NMFS on June 8, 2010, 

completing the applications. In 

summary, to build each MDCF, 

Bluewater must drive, via an impact 

hammer, a single 3–meter pile into the 

seabed which will act as the foundation 

to elevate and support the data 

collection device. Pile driving has the 

potential to result in the take, by Level 

B harassment, of eight species marine 

mammals within the action area as it 

elevates underwater noise levels. Since 

pile driving has the potential to take 

marine mammals, a marine mammal 

take authorization under the MMPA is 

required. 

Description of the Specified Activity 

In November 2009, the Bureau of 

Ocean Energy Management (BOEM), 

formerly the Mineral Management 

Service, issued a lease to Bluewater for 

construction and operation of MDCFs 

designed to support future development 

of, among other companies, Bluewater’s 

planned Delaware and New Jersey 

Offshore Wind Parks. The purpose of 

installing the MDCFs is to determine the 

feasibility of a commercial-scale 

offshore wind energy park at the 

proposed project site. Bluewater will 

collect and analyze at least one full year 

of meteorological data inclusive of wind 

speed and direction at multiple heights, 

information on other seasonal 

meteorological conditions (e.g., 

turbulence, temperature, pressure, and 

atmospheric stability), the marine 

environment (e.g., ocean currents, tides, 

and waves), and avian and bat activity 

(e.g., activity within the potential rotor 

swept area, flight altitude). The IHA 

authorizes the take, by Level B 

harassment only, of marine mammals 

incidental to pile driving the monopole 

foundation required to support the wind 

data collection devices, not future 

installation of wind turbines. 

Bluewater will install a single 3– 

meter diameter pile foundation to 

elevate and stabilize a data collection 

device at two locations; one located in 

the Outer Continental Shelf (OCS) 

Official Protraction Diagram (OPD) lease 

block Salisbury, NJ 18–05 Lease Block 

6325 (approximately16 miles off 

Delaware) and one at OCS OPD lease 

block Wilmington, NJ 18–02 Block 6936 

(approximately 20 miles off NJ). The 

mean lower low water depth (MLLW) at 

the Delaware and New Jersey site is 

approximately 69 feet (21 m) and 82 feet 

(25 m), respectively. Pile driving is 

scheduled to occur in October 2010; 

however, given unforeseen construction 

or weather related delays, NMFS has 

made the IHA effective until November 

15, 2010. 

To install the monopole foundation, 

Bluewater will use an IHC-S 900 

Hydraulic Impact Hammer (or equal) 

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Federal Register / Vol. 75, No. 192 / Tuesday, October 5, 2010 / Notices 61427 

with a maximum rated impact force of 

900 kilojoules (KJ). Bluewater 

anticipates it will take approximately 8 

to 12 hours to mobilize and demobilize 

the construction vessels on site; 

however, only 3–8 of these hours will be 

spent pile driving. The two MDCFs will 

not be installed simultaneously; the 

Delaware MDCF will be installed first 

followed by the New Jersey MDCF 

approximately 1–2 weeks later. Because 

of physical parameters associated with 

this project (e.g., pile size, water depth), 

Bluewater has indicated a vibratory 

hammer cannot be used. Pile driving 

activities will be restricted to daylight 

hours between one-half hour after 

sunrise and one-half hour prior to 

sunset. A complete description of 

installation techniques and associated 

noise levels can be found in the 

proposed IHA notice for this action (75 

FR 42698; July 22, 2010). 

Comments and Responses 

A notice of receipt and request for 

public comment on the Federal Register 

notice of proposed authorization was 

published on July 22, 2010 (75 FR 

42698). NMFS also made BOEM’s EA 

available for comment during this time. 

During the 30–day public comment 

period, NMFS received comments from 

the Marine Mammal Commission 

(Commission) on the proposed IHA. No 

comments were received by any other 

members of the public and none were 

received on BOEM’s EA. 

Comment 1: The Commission 

recommended that, prior to issuance of 

the IHA, NMFS require that 

observations be made during all softstarts of pile driving activities to gather 

data needed to analyze and report on its 

effectiveness as a mitigation measure. 

Response: As described in the 

proposed IHA Federal Register notice, 

protected species observers (PSOs) will 

be stationed at the pile driving location 

and on two vessels before, during, and 

after all pile driving. This includes the 

time before and during soft starts of the 

pile hammer. Bluewater is not 

authorized to begin pile driving should 

any marine mammal be located within 

the Level A harassment zone or if any 

marine mammal listed as endangered or 

threatened under the Endangered 

Species Act (ESA) is located within 

approximately 7 km of the hammer. 

Therefore, data on reactions of marine 

mammals to soft starts very close to the 

hammer or any ESA marine mammal is 

not possible. However, if species 

authorized to be taken are within the 

Level B harassment zone during a soft 

start, data on behavioral reactions of 

those animals will be recorded and 

reported to NMFS, as described in the 

proposed IHA notice. 

Description of Marine Mammals in the 

Area of the Specified Activity 

Several species of marine mammals 

are known to traverse or occasionally 

inhabit the waters within the action area 

of project construction activities, 

including some species listed as 

threatened or endangered under the 

ESA. Thirty-four marine mammal 

species including 29 cetaceans, four 

pinnipeds, and one sirenian species 

have confirmed occurrences in the midAtlantic OCS. A list of these species 

may be found in the proposed IHA 

notice for this action. 

Some marine mammals species are 

likely to occur within the action area 

more so than others; however, marine 

mammal occurrence within the action 

areas during the 3–8 hours of pile 

driving per site is expected to be 

minimal. Marine mammal aerial and 

vessel based surveys were conducted 

from January through December 2008 to 

better assess species present within the 

action area. In addition, multiple 

geophysical and geotechnical (G&G) 

surveys were conducted by three wind 

park developers off the coast of New 

Jersey, all of which had dedicated 

protected species observers onboard the 

survey vessel. Reports from all surveys 

were prepared and provided to NMFS to 

determine species abundance within the 

action area (Geo-Marine, 2008; RPS 

GeoCet, 2009; AIS, 2009; Geo-Marine, 

2009). In general, sightings of marine 

mammals included large whale and 

delphinid species; however, sightings 

were uncommon. The proposed IHA 

notice for this action further describes 

these survey results. 

Although ESA-listed whales may be 

present in OCS waters during the 

scheduled pile driving timeframe, 

Bluewater will implement mitigation 

measures such that no ESA-listed 

marine mammal, including North 

Atlantic right whales, will be exposed to 

sound levels at or above NMFS 

behavioral harassment threshold for 

impulsive noise (i.e., 160 dB re: 1 

microPa). Therefore, NMFS has issued 

authorization to harass eight species of 

marine mammals incidental to MDCF 

installation off Delaware and New 

Jersey. These include bottlenose 

dolphins, spotted dolphins, common 

dolphins, Atlantic white-sided 

dolphins, Risso’s dolphins, pilot 

whales, harbor porpoise, and harbor 

seals; none of these species are listed 

under the ESA. The western north 

Atlantic coastal stock of bottlenose 

dolphins is the only species listed as 

depleted under the MMPA. The action 

area does not provide significant 

reproductive, migratory and feeding 

habitat for any marine mammal. 

Animals will likely be transiting 

through the area or opportunistically 

resting or foraging. A detailed 

description on species status, 

abundance, and ecology of the eight 

species of cetaceans and pinnipeds that 

may be taken from the specified activity 

are provided in the IHA application and 

proposed IHA notice for this action. 

Effects on Marine Mammals 

NMFS has determined that openwater impact pile driving of the single 

monopole at each site, as outlined in the 

project description, has the potential to 

result in short term-behavioral 

harassment of marine mammals if they 

are present near the action area. Impacts 

would not exceed the duration of time 

animals are exposed to pile driving 

sound. At maximum, this would be 3– 

8 hours. However, the action area is 

located in habitat animals use for 

traveling; therefore, it is not expected 

that an animal would remain in the area 

for an extended duration of time. In 

addition, pile driving at the sites will 

not occur concurrently; therefore, no 

cumulative impacts from multiple pile 

driving activities would occur. 

Bluewater will implement mitigation 

and monitoring measures designed to 

eliminate potential for Level A 

(injurious) harassment of all marine 

mammals and also Level A or B 

harassment of ESA-listed marine 

mammals (see Proposed Mitigation 

section). 

NMFS is in the process of developing 

guidelines for determining sound 

pressure level (SPL) thresholds for 

acoustic harassment based on the best 

available science. In the interim, NMFS 

generally considers 180 and 190 dB root 

mean square (rms) as the level at which 

cetaceans and pinnipeds, respectively, 

could be subjected to Level A (injurious) 

harassment. Level B (behavioral) 

harassment has the potential to occur if 

marine mammals are exposed to pulsed 

sounds (e.g. impact pile driving) at or 

above 160 dB rms, but below injurious 

thresholds. These thresholds are 

considered conservative. 

Bluewater analyzed pile driving data 

collected during offshore wind farm 

construction in European waters to 

estimate the distances to NMFS’ 

threshold levels during pile driving off 

Delaware and New Jersey (see sections 

2.2 and 2.3 in Bluewater’s IHA 

application). Table 1 below summarizes 

the estimated distances to NMFS’ Level 

A and B harassment isopleths at each 

location based on Bluewater’s modeling. 

Water depth is the main contributing 

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61428 Federal Register / Vol. 75, No. 192 / Tuesday, October 5, 2010 / Notices 

factor to any discrepancy between the 

two proposed sites. 

TABLE 1. ESTIMATED DISTANCES TO NMFS’ HARASSMENT THRESHOLDS FOR IMPACT PILE DRIVING OFF DELAWARE AND

NEW JERSEY. 

Site Location 190 dB re: 1 microPa (rms)1 180 dB re: 1 microPa (rms)2 160 dB re: 1 microPa (rms)3

OCS-Delaware 330 m 760 m 7,230 m 

OCS-New Jersey 375 m 1,000 m >6,600 m 

1 Level A harassment threshold for pinnipeds in water. 2 Level A harassment threshold for cetaceans. 3 Level B harassment thresholds for pinnipeds and cetaceans from impulsive noise. 

Hearing Impairment 

Temporary or permanent hearing 

impairment is possible when marine 

mammals are exposed to very loud 

sounds. Hearing impairment is 

measured in two forms: temporary 

threshold shift (TTS) and permanent 

threshold shift (PTS). There are no 

empirical data for onset of PTS in any 

marine mammal; therefore, PTS- onset 

must be estimated from TTS-onset 

measurements and from the rate of TTS 

growth with increasing exposure levels 

above the level eliciting TTS-onset. PTS 

is presumed to be likely if the hearing 

threshold is reduced by ≥40 dB (i.e., 40 

dB of TTS). Due to mitigation measures 

identified in Bluewater’s application 

and the IHA, NMFS does not expect that 

marine mammals will be exposed to 

levels that could elicit PTS; therefore, it 

will not be discussed further. 

Temporary Threshold Shift (TTS) 

TTS is the mildest form of hearing 

impairment that can occur during 

exposure to a loud sound (Kryter, 1985). 

Few data on sound levels and durations 

necessary to elicit mild TTS have been 

obtained for marine mammals. Because 

it is non-injurious, NMFS considers TTS 

as Level B harassment that is mediated 

by physiological effects on the auditory 

system; however, NMFS does not 

consider onset TTS to be the lowest 

level at which Level B harassment may 

occur. 

Of all marine mammals which could 

be encountered during the very short 

pile driving period (3–8 hours), 

bottlenose and spotted dolphins are the 

species most likely to come within the 

action area as they are the most 

abundant. Bottlenose dolphins have 

been the subject for most TTS studies 

and can be considered a surrogate for 

other delphinids (e.g., spotted dolphins, 

common dolphins) that may be exposed 

to Bluewater’s pile driving activity. For 

bottlenose dolphins, eight different 

captive individuals have been exposed 

to impulsive anthropogenic sound, with 

TTS being induced in five individuals 

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

2004; Finneran et al., 2007; Mooney et 

al., 2009). TTS onset occurred when 

animals were exposed to sound levels 

ranging from 182 to 203 dB re: 1μPa2– 

s (SEL), with a median TTS onset level 

of 192.5 dB SEL. For pinnipeds, 

underwater TTS experiments involving 

exposure to pulse noise is limited to a 

single study. Finneran et al. (2003) 

found no measurable TTS when two 

California sea lions were exposed to 

sounds up to 183 dB re: 1 microPa 

(peak-to-peak). No TTS studies have 

been conducted on mysticetes; 

therefore, no data exist. However, if the 

pattern holds true as that for mid 

frequency cetaceans and pinnipeds, one 

can assume that TTS occurs in 

mysticetes at levels much higher than 

NMFS’ Level B behavioral harassment 

threshold for impulsive noise (i.e., 160 

dB rms) and likely above NMFS’ Level 

A (injurious) harassment thresholds. 

Although Bluewater’s pile driving 

will be both loud and continuous for 3– 

8 hours, NMFS anticipates that if TTS 

does occur, it will be short in duration 

as (1) pile driving will cease if animals 

come within the 190 or 180 dB isopleth 

for pinnipeds and cetaceans, 

respectively, and (2) marine mammals 

will likely not linger in areas with 

sound pressure levels high enough to 

induce long-term TTS. 

Behavioral Impacts 

NMFS has discussed behavioral 

impacts resulting from impact pile 

driving for various other projects which 

are relevant here (e.g., 73 FR 38180; 74 

FR 18492; 74 FR 63724). Additionally, 

in 2009, the BOEM prepared an EA and 

associated Finding of No Significant 

Impact (FONSI) on the Issuance of 

Leases for Wind Resource Data 

Collection on the Outer Continental 

Shelf Offshore Delaware and New Jersey 

which analyzes the impacts of 

constructing, operating, and 

decommissioning MDCFs similar to 

ones proposed by Bluewater in their 

MMPA application. In summary, BOEM 

found that noise from pile driving could 

disturb normal marine mammal 

behaviors (e.g., feeding, social 

interactions), mask calls from 

conspecifics, disrupt echolocation 

capabilities, and mask sounds generated 

by predators. Behavioral effects may be 

incurred at ranges of many miles, and 

hearing impairment may occur at close 

range (Madsen et al., 2006). Behavioral 

reactions may include avoidance of, or 

flight from, the sound source and its 

immediate surroundings, disruption of 

feeding behavior, interruption of vocal 

activity, and modification of vocal 

patterns (Watkins and Scheville, 1975; 

Malme et al., 1984; Bowles et al., 1994; 

Mate et al., 1994). These impacts are 

similar to those previous identified by 

NMFS during analysis of pile driving 

projects, including the specified 

activity. NMFS characterizes the 

potential effects described here as 

indicative of Level B (behavioral) 

harassment. 

In addition to noise related impacts to 

marine mammals, NMFS, and BOEM in 

its EA, has considered the impacts from 

vessel traffic (i.e., ship strikes) and 

potential operational discharges from 

MDCF construction and operation. The 

marine mammals most vulnerable to 

vessel strikes are slow-moving and/or 

spend extended periods of time at the 

surface in order to restore oxygen levels 

within their tissues after deep dives 

(e.g., right whales, fin whales, sperm 

whales). Smaller marine mammals such 

as delphinids, are agile and move more 

quickly through the water, making them 

less susceptible to ship strikes. Vessels 

used for construction include crew 

boats and slow moving support vessels 

such as tugs and barges. To prevent ship 

strikes, crew aboard all vessels 

associated with the specified activity 

transiting to and from the construction 

site will actively watch for whales and 

other marine mammals and vessel 

operators will abide by NMFS’ 

Northeast Marine Mammal Viewing 

Guidelines. As a result, NMFS does not 

anticipate a ship strike is likely to occur. 

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Federal Register / Vol. 75, No. 192 / Tuesday, October 5, 2010 / Notices 61429 

BOEM’s EA also analyzed impacts 

from operational waste generated from 

vessels includes bilge and ballast 

waters, trash and debris, and sanitary 

and domestic wastes. These are 

described in the EA and in NMFS’ 

proposed IHA notice related to this 

action. In summary, NMFS agrees with 

BOEM’s analysis that the impacts to 

marine mammals from the discharge of 

waste materials or the accidental release 

of fuels are expected to be negligible. 

Effects on Habitat 

The footprint of the foundation and 

scour protection (if used) is 

approximately 0.06 acre (30–foot radius 

around the monopole foundation) at the 

MDCF site. Under the terms of the 

BOEM lease, within a period of one year 

after cancellation, expiration, 

relinquishment, or other termination of 

the lease, the lessee shall remove all 

devices, works and structures from the 

leased area and restore the leased area 

to its original condition before issuance 

of the lease (BOEM 2008). Bluewater’s 

consultation with the NMFS under 

Section 7 of the ESA for the BOEM 

lease, completed May 14, 2009, 

concluded that all effects of the 

proposed project, including those to 

habitat, will be insignificant or 

discountable. Under the MMPA, the 

same determination on effects to marine 

mammal habitat applies based on the 

factors in the earlier consultation. 

Mitigation 

In order to issue an incidental take 

authorization (ITA) 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 

grounds, and areas of similar 

significance, and on the availability of 

such species or stock for taking for 

certain subsistence uses. 

Bluewater will implement the 

following mitigation measures designed 

to eliminate the potential for serious 

injury/mortality and Level A (injurious) 

harassment and minimize Level B 

(behavioral) harassment to marine 

mammals: 

Establishment of Exclusion Zone 

Bluewater will establish and monitor 

a preliminary 1,000 m Level A 

harassment exclusion zone (EZ) around 

the pile driving site in order to 

eliminate the potential for injury (Level 

A harassment) of marine mammals. This 

zone is designed to include all areas 

where the underwater SPLs are 

anticipated to equal or exceed 180 dB 

rms. If the acoustic survey (see Acoustic 

Monitoring section) determines that the 

area ensonified by sounds exceeding 

180 dB extends beyond the preliminary 

1,000–meter EZ, a new safety exclusion 

zone will be established. Otherwise, the 

1,000–meter EZ will remain in place. 

Triggers and protocol for pile driving 

shut down for this zone are described 

below. 

Bluewater will also establish a 7–km 

EZ at the Delaware site for ESA-listed 

marine mammals (i.e., large whales) to 

avoid Level B (behavioral) harassment 

to these species. Should acoustic 

monitoring at the Delaware site 

determine the estimated distance to the 

160 dB isopleth (the Level B harassment 

threshold level) is not accurate, the large 

whale exclusion zone will be altered for 

the New Jersey site accordingly, after 

accounting for depth differences 

between the two sites. 

Pile Driving Shut-down and Delay 

Triggers and Procedures 

At least one protected species 

observer (PSO) stationed onboard the 

pile-driving vessel will monitor the 

established 1,000 m EZ for 30 minutes 

prior to the soft-start of pile driving. If 

the PSO observes a marine mammal 

within this zone during this time, the 

PSO will notify the Resident Engineer 

(or other authorized individual) who 

will then delay pile driving. Pile driving 

will not commence until the PSO 

confirms that animal has moved out of 

and on a path away from the EZ or a 

PSO has not sighted the animal within 

the EZ for 15 minutes. If a marine 

mammal approaches or enters the 

exclusion zone after pile driving has 

begun, pile driving will cease until the 

PSO confirms that the animal has 

moved out of and on a path away from 

the EZ or the PSO has not sighted the 

animal within the EZ for 15 min for 

species with shorter dive durations 

(small odontocetes) or 30 min for 

species with longer dive durations 

(mysticetes and large odontocetes, 

including sperm, pygmy sperm, dwarf 

sperm, killer, and beaked whales). If 

pile driving ceases for 30 minutes or 

more, the PSO will observe for an 

additional 30–minute period before he/ 

she will notify the Resident Engineer (or 

other authorized individual) that none 

of the aforementioned situations are 

triggered and pile driving could 

commence. 

On a separate vessel navigating at 

approximately 4–5 kms around the pile 

hammer, PSOs will monitor for large 

whales. Protocol for pile shut down and 

delay will follow the procedures 

described above for the 1,000 EZ. 

Soft-start Procedures 

A soft-start technique will be used at 

the beginning of pile driving in order to 

provide additional protection to marine 

mammals near the project area by 

allowing them time to vacate the area 

prior to the commencement of piledriving activities. The soft-start requires 

an initial set of 3 strikes from the impact 

hammer at 40 percent energy with a one 

minute waiting period between 

subsequent 3–strike sets. The procedure 

will be repeated two additional times. If 

marine mammals are sighted within the 

exclusion zone prior to pile-driving, or 

during the soft start, the Resident 

Engineer (or other authorized 

individual) will delay pile driving until 

the animal has moved outside the 

exclusion zone and no marine mammals 

are sighted for 15 min for species with 

shorter dive durations (small 

odontocetes) or 30 min for species with 

longer dive durations (mysticetes and 

large odontocetes, including sperm, 

pygmy sperm, dwarf sperm, killer, and 

beaked whales). 

Use of Sound Attenuation Devices 

Bluewater has conducted a sound 

attenuation device feasibility study and 

has concluded that traditional devices 

(e.g., bubble curtain, wood cap, and 

sleeve) are not practical or feasible for 

the proposed activity for various reasons 

(see Bluewater’s application). However, 

Bluewater will continue to explore other 

options and, if found, will implement a 

sound attenuation device during pile 

driving. 

Reduced Hammer Force 

Bluewater will not ramp-up to full 

power if, at decreased power, the pile 

can be driven to the desired depth. 

Recall that source levels are directly 

related to hammer force. The estimates 

to the Level A and Level B harassment 

thresholds are based on maximum 

hammer force (900 kJ); hence if less 

energy is used, noise levels will be less 

than anticipated. 

Time-of-Day and Weather Restrictions 

Pile-driving will be limited to day 

light hours between one-half hour after 

sunrise and one-half hour prior to 

sunset. If detection capability of a 

marine mammal within the EZ is 

obscured by foul weather (e.g., rough 

seas, fog), Bluewater will delay or 

suspend pile driving operations until 

the EZ is clear. 

Vessel Transiting and Operation Watch 

Crew aboard all vessels associated 

with the specified activity transiting to 

and from the construction site will 

actively watch for whales and other 

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61430 Federal Register / Vol. 75, No. 192 / Tuesday, October 5, 2010 / Notices 

marine mammals. Vessel operators will 

abide by NMFS’ Northeast Marine 

Mammal Viewing Guidelines (http:// 

www.nero.noaa.gov/protlres/mmv/) 

should a marine mammal be observed 

close to or on a path towards the vessel. 

NMFS has carefully evaluated the 

aforementioned mitigation measures in 

the context of ensuring that NMFS 

prescribes the means of effecting the 

least practicable adverse impact on the 

affected marine mammal species and 

stocks and their habitat. Our evaluation 

of potential measures included 

consideration of the following factors in 

relation to one another: the manner in 

which, and the degree to which, the 

successful implementation of the 

measure is expected to minimize 

adverse impacts to marine mammals; 

the proven or likely efficacy of the 

specific measure to minimize adverse 

impacts as planned; and the 

practicability of the measure for 

applicant implementation, including 

consideration of personnel safety, and 

practicality of implementation. In 

conclusion, NMFS has determined that 

the mitigation measures proposed by 

Bluewater and incorporated into the 

IHA provide the means of effecting the 

least practicable adverse impacts on 

marine mammals species or stocks and 

their habitat, paying particular attention 

to rookeries, mating grounds, and areas 

of similar significance. 

Monitoring and Reporting 

In order to issue an ITA 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. 

Visual Monitoring 

Bluewater will conduct both visual 

and acoustic monitoring to better 

understand impacts to marine mammals 

from pile driving and estimate take. At 

least one PSO will be stationed at the 

pile hammer to monitor, and implement 

mitigation if necessary, the preliminary 

1,000 m EZ and notify the Resident 

Engineer (or other authorized person) if 

shut down is necessary. In addition, at 

least one PSO, in a dedicated visual 

monitoring vessel circumnavigating the 

pile hammer at a distance of 4–5 kms, 

will monitor the Level B harassment 

zone (i.e., those waters estimated to 

carry sound levels at or above 160 dB) 

to determine take numbers for nonlisted marine mammals located at a 

distance to the pile hammer and call for 

pile driving shut down should a large 

whale enter this zone. PSOs will be 

stationed at the highest vantage point 

possible aboard support vessels (the 

higher the platform, the greater distance 

seen). In addition, a visual monitor will 

be aboard the acoustic monitoring vessel 

to observe for marine mammals. All 

PSOs will be in contact with each other 

and the hammer operator at all times. 

Acoustic Monitoring 

Bluewater will carry out an acoustic 

study as described in the application 

(Attachment 1- Underwater Noise 

Survey Protocol). The plan includes the 

use of hydrophone array deployed by 

vessel within the near field (i.e., within 

1,000m) which provides data in real 

time and two autonomous recorders in 

the far field (2km and 5km from the 

hammer) which will archive sound data 

until they are retrieved and 

downloaded. The plan is designed to (1) 

empirically verify the marine mammal 

exclusion and harassment zones; (2) 

estimate site specific underwater sound 

transmission loss decay rates in the 

action area; (3) provide a digital sound 

recording of acoustic measurements 

completed during pile driving; and (4) 

investigate background noise levels in 

absence of pile driving. As stated 

previously, the acoustic models 

contained within the application are 

likely an overestimate of sound levels; 

however, by how much cannot be 

determined at this time. Empirical data 

collection will help refine these 

numbers. Based on the data collected at 

the each site, the EZ will be adjusted 

accordingly (but not less than 1,000 m) 

and from the autonomous recorders at 

the Delaware site, estimates to the Level 

B isopleths may be refined for the New 

Jersey site after adjustment for water 

depth differences. 

Reporting 

Bluewater will submit a Final 

Technical Report, which will 

incorporate PSO sightings and acoustic 

survey results, to NMFS within 120 

days after the expiration of the IHA. 

After re-establishment of an exclusion 

zone, if it occurs, a report detailing the 

field verification measurements will be 

submitted to NMFS within 7 days of 

construction. PSOs will report on 

operation and sighting data collected 

during the period of pile driving at each 

site location. Data will include, but is 

not limited to: date, time and weather 

condition during sighting; number of 

marine mammals observed, by species 

and age class (if possible); behavior of 

marine mammal at time of sighting, 

including direction with respect to 

hammer location; any observable 

changes in behavior, including overt 

reactions (e.g. tail slapping, breaching, 

distinct change in direction) during 

sighting; initial and closest distance of 

marine mammal to hammer; and 

construction activities occurring at time 

of sighting, specifically noting if pile 

driving was ramping up or at full power 

and, if hammering, how long 

hammering was occurring before 

sighting. The acoustic survey results 

will be presented in the final report and 

should include, but is not limited to, the 

following: a detailed account of the 

methodology employed to collect data 

(e.g., equipment used, location of vessel 

in relation to pile during data collection, 

if the vessel was stationary or drifting, 

etc.); hammer operation details (i.e., was 

data collected during ramp-up, upon 

onset of pile driving, etc.); the levels, 

durations, and spectral characteristics of 

the impact pile driving sounds; and the 

peak, rms, and energy levels of the 

sound pulses and their durations as a 

function of distance, water depth, and 

tidal cycle. 

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]. 

As discussed in the Effects on Marine 

Mammals section above, marine 

mammals exposed to certain levels of 

pile driving noise may be taken by Level 

B harassment. Monitoring and 

mitigation measures will prevent 

animals from being exposed to levels 

which could induce Level A (injury) 

harassment. Responses to the specified 

activity may include avoidance, altered 

patterns in foraging, traveling, and 

resting patterns, masking, and stress 

hormone production. Many of these 

effects are difficult to quantify; 

therefore, NMFS has established 

threshold criteria which indicate the 

levels at which any of these effects may 

occur and a take is possible. Hence 

these levels are conservative and 

currently are being refined to better 

reflect the best scientific data available. 

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Federal Register / Vol. 75, No. 192 / Tuesday, October 5, 2010 / Notices 61431 

Consistent with Bluewater’s 

application, NMFS has determined that 

eight species of marine mammals have 

the potential to be taken, by Level B 

harassment only, incidental to pile 

driving. The number of animals 

authorized to be taken for the Delaware 

and New Jersey site, respectively, are 

provided in Table 2 below. These 

numbers are based on density estimates 

for potentially encountered non-ESA 

listed marine mammals which are 

described in the proposed IHA notice 

prepared for this action. No ESA-listed 

species are authorized to be taken by 

harassment under the IHA. For all 

species, the requested take is less than 

1% of the population; therefore, take 

numbers can be considered small 

relative to the population size. 

TABLE 2: THE NUMBER OF MARINE MAMMALS, BY SPECIES AND LOCATION, AUTHORIZED TO BE TAKEN BY LEVEL B 

HARASSMENT. 

Species No. of Animals 

Delaware 

No. of Animals 

New Jersey 

Bottlenose dolphin 15 15 

Spotted dolphin 35 35 

Common dolphin 20 20 

Atlantic White-sided dolphin 15 15 

Risso’s dolphin 15 15 

Pilot whale 10 10 

Harbor porpoise 15 10 

Harbor seal 35 30 

Bluewater will operate support 

vessels (e.g., small vessels, barges, tugs) 

to deliver and install equipment at the 

MDCF site; however, operation of these 

vessels is not anticipated to result in 

takes of marine mammals. Vessels will 

transit to the site slowly and operators 

will follow NMFS’ Northeast Regional 

marine mammal viewing guidelines. 

Vessel transit speed is similar to that in 

NMFS’ final rule concerning right whale 

vessel collision reduction strategy 

which established operational measures 

for the shipping industry to reduce the 

potential for large vessel collisions with 

North Atlantic right whales while 

transiting to and from mid-Atlantic 

ports during right whale migratory 

periods (73 FR 60173; October 10, 

2008). For these reasons (slow transit, 

viewing guideline adherence) NMFS 

does not anticipate take of marine 

mammals incidental to support vessel 

operation. 

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 the 

following: number of anticipated 

mortalities; number and nature of 

anticipated injuries; number, nature, 

intensity, and duration of Level B 

harassment; is the nature of the 

anticipated takes such that we will 

expect it to actually impact rates of 

recruitment or survival; and context in 

which the takes occur- that is will the 

takes occur in areas (and/or times) of 

significance for marine mammals (e.g., 

feeding or resting areas, reproductive 

areas, rookeries, critical habitat, etc.). 

Due to the implementation of 

mitigation measures, no ESA-listed 

species will be exposed to sound levels 

exceeding those established by NMFS as 

indicative of harassment. Therefore, no 

take of ESA-listed marine mammals are 

anticipated not authorized in the IHA. 

Non-ESA listed marine mammals may 

be exposed temporarily to pile driving 

noise; however, at each location, pile 

driving will occur for only 3–8 hours in 

total. The waters in the mid-Atlantic 

OCS are not designated as critical 

habitat for ESA-listed marine mammals, 

nor do they provide significant habitat 

for any marine mammal species (i.e., no 

significant foraging or reproductive 

areas are known to be in this area). 

Animals within the action area are 

likely to be traveling, resting, socializing 

or opportunistically foraging. Noise 

from pile driving may temporarily 

disturb animals in these behavioral 

states and induce mild TTS; however, 

no significant or long-term impacts are 

anticipated given the implementation of 

mitigation measures, short duration of 

pile driving and the anticipation that 

individuals are not expected to linger 

within the action area. While pile 

driving noise may affect more than one 

individual, population level effects are 

not anticipated as impacts are 

anticipated to be limited to short term 

behavioral changes in individuals (e.g., 

avoidance, cessation of activity at time 

of noise exposure, change in 

vocalization patterns) and potential 

masking effects. These effects will not 

alter fitness or reproductive success. 

Bluewater will not conduct pile driving 

at both sites simultaneously; therefore, 

no cumulative impacts which could 

arise from exposure to noise from 

multiple pile hammers are expected. 

Finally, the project footprint is 

extremely small, and each MDCF will be 

removed after 1–2 years. Therefore, no 

long term impacts to marine mammal 

habitat are anticipated. 

Bluewater has conducted a 

conservative analysis of estimated 

sound levels and used these estimates to 

determine take. Hence, the number of 

animals potentially taken is likely an 

overestimate as it is not anticipated that 

all species listed in Table 2 will be 

encountered during the short duration 

of pile driving. The number of animals 

requested to be taken is considered 

small (less than 1 percent) when 

compared to the estimated stock size for 

each species. Again, no ESA-listed 

species will be taken based on 

implementation of the proposed 

mitigation and monitoring measures and 

no Level A (injurious) harassment, 

serious injury, or mortality is 

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61432 Federal Register / Vol. 75, No. 192 / Tuesday, October 5, 2010 / Notices 

anticipated nor will any be authorized 

in the proposed IHA. 

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 found that pile driving 

conducted by Bluewater during MDCF 

installation will result in the incidental 

take of small numbers of marine 

mammals, by Level B harassment only, 

and that the total taking from will have 

a negligible impact on the affected 

species or stocks. Therefore, issuance of 

an IHA to Bluewater was warranted. 

Impact on Availability of Affected 

Species for Taking for Subsistence Uses 

There are no relevant subsistence uses 

of marine mammals implicated by this 

action. 

Endangered Species Act (ESA) 

NMFS Protected Resources 

determined that, based on the 

implementation of the monitoring and 

mitigation plan developed by 

Bluewater, in consultation with NMFS, 

is not likely to adversely affect listed 

marine mammal species. NMFS 

Northeast Region provided concurrence 

with this determination on September 

14, 2010. 

National Environmental Policy Act 

(NEPA) 

On June 2, 2009, the BOEM issued an 

EA and associated Finding of No 

Significant Impact (FONSI) on the 

Issuance of Leases for Wind Resource 

Data Collection on the Outer 

Continental Shelf Offshore Delaware 

and New Jersey. The EA evaluates the 

impacts to the human environment, 

including those to marine mammals, 

from issuing seven leases in the Atlantic 

OCS for purposes of constructing, 

operating, and decommissioning a 

MDCF in each lease block. The MDCFs 

proposed by Bluewater are included in 

that analysis. BOEM concluded that the 

proposed action would not have a 

significant adverse impact on the 

human environment. Therefore, 

preparation of an EIS was not necessary. 

After independently reviewing BOEM’s 

EA, NMFS determined the EA 

adequately evaluated impacts to marine 

mammals anticipated from issuance of 

the IHA. Accordingly, NMFS adopted 

BOEM’s EA and issued a FONSI. 

Therefore, the preparation of another EA 

by NMFS for issuance of an IHA to 

Bluewater for the specified activity was 

not warranted. 

Dated: September 29, 2010. 

Helen M. Golde, 

Deputy Director, Office of Protected 

Resources, National Marine Fisheries Service. 

[FR Doc. 2010–24987 Filed 10–4–10; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

RIN 0648–XY30 

Takes of Marine Mammals Incidental to 

Specified Activities; Construction of 

the Parsons Slough Sill 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 the NOAA Restoration 

Center, Southwest Region, for an 

Incidental Harassment Authorization 

(IHA) to take marine mammals, by 

harassment, incidental to the Parsons 

Slough Sill Project. Pursuant to the 

Marine Mammal Protection Act 

(MMPA), NMFS is requesting comments 

on its proposal to issue an IHA to the 

NOAA Restoration Center, Southwest 

Region, to take, by Level B Harassment 

only, small numbers of harbor seals 

(Phoca vitulina richardsi) during the 

specified activity. 

DATES: Comments and information must 

be received no later than November 4, 

2010. 

ADDRESSES: Comments on the 

application should be addressed to 

Michael Payne, Chief, Permits, 

Conservation and Education Division, 

Office of Protected Resources, National 

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

20910. The mailbox address for 

providing e-mail comments is PR1.0648- 

XY30@noaa.gov. NMFS is not 

responsible for e-mail comments sent to 

addresses other than the one provided 

here. Comments sent via e-mail, 

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: 

Brian D. Hopper or Candace Nachman, 

Office of Protected Resources, NMFS, 

(301) 713–2289, or Monica DeAngelis, 

NMFS Southwest Region, (562) 980– 

3232. 

SUPPLEMENTARY INFORMATION: 

Background 

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

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

the Secretary of Commerce to allow, 

upon request, the incidental, but not 

intentional, taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a 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 

authorization published in the Federal 

Register for the incidental harassment of 

marine mammals. Within 45 days of the 

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