Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Installation of the Block Island Wind Farm Export and Inter-Array Cables, 42318-42327 [2016-15370]

Download as PDF 42318 Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Notices 143a), as well as Chinese R–134a,20 that are blended in a third country to produce a subject HFC blend before being imported into the United States. Chinese R–134a is not subject to the scope of this investigation unless it is blended with another Chinese HFC component (i.e., R–32, R–125, and R– 143a) into a subject blend or semi-finished blend before being imported into the United States. Any blend or semi-finished blend that includes an HFC component other than R–32, R–125, R–143a, or R–134a is excluded from the scope of this investigation. Furthermore, semi-finished blends do not include any blends containing both HFCs R–32 and R– 143a. Single-component HFCs and semifinished HFC blends are not excluded from the scope of this investigation when blended with HFCs from non-subject countries. Excluded from this investigation are blends of refrigerant chemicals that include products other than HFCs, such as blends including chlorofluorocarbons (CFCs), hydrochlorofluorocarbons (HCFCs), hydrocarbons (HCs), or hydrofluoroolefins (HFOs). Also excluded from this investigation are patented HFC blends, including, but not limited to, ISCEON® blends, including MO99TM (R–438A), MO79 (R–422A), MO59 (R–417A), MO49PlusTM (R–437A) and MO29TM (R–4 22D), Genetron® PerformaxTM LT (R–407F), Choice® R–421A, and Choice® R–421B. HFC blends covered by the scope of this investigation are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) at subheadings 3824.78.0020 and 3824.78.0050. Single component HFCs are currently classified at subheadings 2903.39.2035 and 2903.39.2045, HTSUS.21 Although the HTSUS subheadings and CAS registry numbers are provided for convenience and customs purposes, the written description of the scope is dispositive. mstockstill on DSK3G9T082PROD with NOTICES Appendix II—List of Topics Discussed in the Issues and Decision Memorandum I. Summary II. Background III. Scope of Investigation IV. Scope Comments V. Use of Adverse Facts Available VI. Margin Calculations VII. Discussion of Issues 1. Number of Classes or Kinds of Merchandise 2. Addition of the Word ‘‘Refrigerants’’ 3. Semi-Finished Blends 4. Third Country Blending 5. Patented Blends and Non-Named HFC Blends 6. Voluntary Respondents 7. Critical Circumstances 20 However, if the only Chinese content of such a third country blend is the R–134a portion, then such a third country blend is excluded from the scope of this investigation. 21 We note that HFC blends were classified at HTSUS subheading 3824.78.0000 and single component HFCs were classified at HTSUS subheading 2903.39.2030 in 2015. VerDate Sep<11>2014 17:18 Jun 28, 2016 Jkt 238001 8. Companies Owned by a State-Owned Enterprise 9. Authority to Base the PRC-Wide Rate on AFA 10. Rejection of Qingsong’s Quantity and Value and Separate Rates Responses 11. Rate Assigned to Separate Rates Companies 12. Ministerial Errors in Certain Combination Rates 13. Verification Failure for Dongyue 14. The Margin Assigned to Dongyue 15. Moot Arguments for Dongyue 16. AFA for TTI 17. Whether TTI or its Supplier is the Respondent 18. Value Added Tax Paid by the Suppliers 19. Selling Expenses Incurred by TT Hong Kong 20. Freight Expenses Paid to a Non-Market Economy Provider 21. Movement Expenses Paid by the Suppliers 22. Zip Codes Used in the Differential Pricing Analysis 23. Factors of Production (FOPs) Reported Based on the Accounting or Calendar Month 24. FOPs for Catalyst 25. Energy FOPs 26. Granting a By-Product Offset for Hydrochloric Acid (HCL) and Hydrogen Fluoride 27. Whether the By-Product Adjustment Should be Based on Sales or Production Quantity 28. Surrogate Value for HCL 29. Surrogate Value for Anhydrous Hydrogen Fluoride 30. Surrogate Financial Statements 31. Margin Calculation Errors VIII. Recommendation Light Street, Baltimore, MD 21202; telephone: 410–234–0550. Council address: Mid-Atlantic Fishery Management Council, 800 N. State Street, Suite 201, Dover, DE 19901; telephone: (302) 674–2331 or on their Web site at www.mafmc.org. FOR FURTHER INFORMATION CONTACT: Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526–5255. SUPPLEMENTARY INFORMATION: Agenda Agenda items to be discussed at the SSC meeting include: Review fishery performance report and multi-year ABC specifications for summer flounder, scup, black sea bass and bluefish; MAFMC risk policy and assignment of CVs for Mid-Atlantic assessments; and, if time permits, review and discuss the Council’s EAFM Guidance Document. Special Accommodations These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to M. Jan Saunders, (302) 526–5251, at least 5 days prior to the meeting date. Authority: 16 U.S.C. 1801 et seq. [FR Doc. 2016–15298 Filed 6–28–16; 8:45 am] Dated: June 24, 2016. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. BILLING CODE 3510–DS–P [FR Doc. 2016–15367 Filed 6–28–16; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XE702 Mid-Atlantic Fishery Management Council (MAFMC); Meeting National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of a public meeting. AGENCY: The Scientific and Statistical Committee (SSC) of the Mid-Atlantic Fishery Management Council (Council) will meet July 20, 2016, through July 21, 2016. DATES: The meeting will begin at 10 a.m. on Wednesday July 20, 2016, and end at 12 p.m. on Thursday, July 21, 2016. For agenda details, see SUPPLEMENTARY INFORMATION. ADDRESSES: The meeting will be held at the Royal Sonesta Harbor Court, 550 SUMMARY: PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XE498 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Installation of the Block Island Wind Farm Export and Inter-Array Cables National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; issuance of an incidental harassment authorization. AGENCY: In accordance with regulations implementing the Marine Mammal Protection Act (MMPA), notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to Deepwater Wind Block Island, LLC (DWBI) to take marine SUMMARY: E:\FR\FM\29JNN1.SGM 29JNN1 Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Notices mammals, by harassment, incidental to the installation of the Block Island Wind Farm (BIWF) Export and Inter-Array Cables. DATES: Effective May 31, 2016, through May 30, 2017. FOR FURTHER INFORMATION CONTACT: John Fiorentino, Office of Protected Resources, NMFS, (301) 427–8401. SUPPLEMENTARY INFORMATION: mstockstill on DSK3G9T082PROD with NOTICES Availability An electronic copy of the application and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the internet at: http:// www.nmfs.noaa.gov/pr/permits/ incidental/. NMFS’ final Environmental Assessment (EA), Issuance of Incidental Harassment Authorizations to Deepwater Wind for the Take of Marine Mammals Incidental to Construction of the Block Island Wind Farm and Block Island Transmission System, which also contains a list of the references used in this document, may also be viewed on our Web site. In case of problems accessing these documents, please call the contact listed above (see FOR FURTHER INFORMATION CONTACT). 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. An 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.’’ Except with respect to certain activities not pertinent here, the MMPA VerDate Sep<11>2014 17:18 Jun 28, 2016 Jkt 238001 defines harassment as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment]. Summary of Request On March 11, 2016, NMFS received an application from DWBI for the taking of marine mammals incidental to the installation of the BIWF export and inter-array cables. This work was originally authorized by NMFS as part of a September 2014 (modified in June 2015) IHA issued to DWBI for construction of the BIWF (offshore installation of wind turbine generator (WTG) jacket foundations and export/ inter-array cable installation (79 FR 53409; September 9, 2014)). However, only the construction activities associated with the WTG jacket foundation installation were performed during that one-year authorization which expired in October 2015. Therefore, DWBI has reapplied for a new IHA to complete the remaining export and inter-array cable installation activities. The proposed export and inter-array cable installation activities remain the same as those described in the Federal Register notice for the original 2014 BIWF IHA. NMFS determined that the application was adequate and complete on March 14, 2016. NMFS published a notice making preliminary determinations and proposing to issue an IHA on April 15, 2016 (81 FR 22216; April 15, 2016). The notice initiated a 30-day comment period. DWBI has begun construction of the BIWF, a 30-megawatt offshore wind farm. Construction activities began in July of 2015 with the installation of the five WTG foundations. The submarine cable (export and inter-array cables) installation is scheduled to occur sometime between May and October, 2016. Noise generated from the use of dynamically positioned (DP) vessel thrusters during cable installation may result in the take of marine mammals. Take, by Level B Harassment only, of individuals of nine species is anticipated to result from the specified activity. Description of the Specified Activity A detailed description of the activity was provided in the Federal Register notice for the proposed IHA (81 FR PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 42319 22216; April 15, 2016; pages 16302– 16304). Since that time, no changes have been made to the proposed construction activities; therefore, a detailed description is not provided here. However, a brief overview of the activity is provided below. Overview The BIWF will consist of five, 6megawatt WTGs, a submarine cable interconnecting the WTGs, and a transmission cable. The WTG jacket foundations were installed in 2015. Erection of the five WTGs, installation of the inter-array and export cable, and construction of the onshore components of the BIWF are planned for 2016. The scope of the activity covered by this IHA is limited to the use of DP vessel thrusters during installation of the submarine cable interconnecting the WTGs (inter-array cable), and a transmission cable from the northernmost WTG to an interconnection point on Block Island, Rhode Island (export cable). DP vessel thrusters are needed to keep the cable laying vessel in position during the cable installation activities. A jet plow, supported by the DP vessel, will be used to install the inter-array and export cable below the seabed as it is pulled behind the cable laying vessel. Dates and Duration BIWF cable installation activities are schedule to occur sometime between May and October, 2016. NMFS is proposing to issue an authorization effective May 2016 through May 2017, based on the anticipated work window for the in-water cable installation activities that could result in the incidental take of marine mammals. While project activities may occur for over a 6-month period, use of the DP vessel thruster during cable installation is expected to occur for approximately 28 days. Cable installation (and subsequent use of the DP vessel thruster) would be conducted 24 hours per day. Specified Geographic Region The offshore components of the BIWF will be located in state territorial waters. The WTGs will be located on average about 4.8 kilometers (km) southeast of Block Island, and about 25.7 km south of the Rhode Island mainland. The WTGs will be arranged in a radial configuration spaced about 0.8 km apart. The inter-array cable will connect the five WTGs for a total length of 3.2 km from the northernmost WTG to the southernmost WTG. Water depths along the inter-array cable range up to 23.3 meters (m). The export cable will E:\FR\FM\29JNN1.SGM 29JNN1 42320 Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Notices mstockstill on DSK3G9T082PROD with NOTICES originate at the northernmost WTG and travel 10 km to a manhole located in the town of New Shoreham (Block Island) in Washington County, Rhode Island. Water depths along the export cable submarine route range up to 36.9 m. Construction staging and laydown for offshore construction is planned to occur at the Port of Providence, Providence, Rhode Island. Comments and Responses A notice of NMFS’ proposal to issue an IHA to DWBI was published in the Federal Register on April 15, 2016 (81 FR 22216). That notice described, in detail, DWBI’s activity, the marine mammal species that may be affected by the proposed cable installation activities, and the anticipated effects on marine mammals and their habitat. During the 30-day public comment period, NMFS only received comments from the Marine Mammal Commission (Commission). Specific comments and responses are provided below. Comments are also posted at http:// www.nmfs.noaa.gov/pr/permits/ incidental/. Comment 1: The Commission recommended that NMFS recalculate take numbers based on an accurate estimate of the distance that DWBI expects cable-laying vessels to travel each day, and clarify the number of days of activities necessary to complete the cable installation. Response: As indicated in their application and in the proposed IHA, DWBI anticipates the same number of days (28) of cable installation activities as was proposed for the original 2014 (modified in 2015) IHA (79 FR 53409). Similar construction activities (submarine cable installation) for the related Block Island Transmission System project, which will interconnect Block Island to the existing Narragansett Electric Company National Grid distribution system on the Rhode Island mainland, confirm that this is an accurate estimation of cable installation project duration. Therefore, NMFS has calculated the takes to be authorized based on a maximum of 28 days of cable installation and DP vessel thruster use. NMFS further clarifies its take calculations as follows. The WTGs will be arranged in a radial configuration spaced about 0.8 km apart. The interarray cable will connect the five WTGs for a total length of 3.2 km. The export cable will originate at the northernmost WTG and travel 10 km to Block Island, Rhode Island. The total line kilometers of cable to be installed, then, is 13.2 km. Assuming 28 days of cable installation, this equates to approximately 0.5 km being laid on any of the 28 days of VerDate Sep<11>2014 17:18 Jun 28, 2016 Jkt 238001 activities. Thus, the zone of influence (ZOI) used to calculate takes is based on a daily ensonified area over 0.5 km traveled per day. As discussed below in the ‘‘Estimated Take by Incidental Harassment’’ section, estimated takes were calculated by multiplying species density (per 100 km2) by the ZOI, multiplied by a correction factor to account for marine mammals underwater, multiplied by the number of days (28) of the specified activity. Comment 2: The Commission recommended a 24-hour ‘‘reset’’ for enumerating takes by applying standard rounding rules before summing the numbers of estimated takes across days. Response: NMFS appreciates the Commission’s recommendation and concurs that a consistent approach to estimating potential takes, where appropriate, is important. We will consider the Commission’s recommended methodology on an action-specific basis. Comment 3: The Commission recommended that NMFS revise its take estimates for harbor and gray seals by removing the 80-percent reduction factor that was used to calculate takes in DWBI’s application and in the proposed IHA (81 FR 22216; ‘‘Estimated Take by Incidental Harassment,’’ pages 22226– 22227). Response: NMFS agrees with the Commission’s recommendation to no longer use a reduction factor to estimate harbor and gray seal densities in the project area. In the proposed IHA, NMFS had applied an 80-percent reduction factor for harbor and gray seal densities based on the presumption that original density estimates for the project area were an overestimation because they included breeding populations of Cape Cod (Schroeder, 2000; Ronald and Gots, 2003). NMFS has since determined that the findings used to inform that reduction factor are outdated and do not accurately reflect the average annual rate of population increase (especially for gray seal) (refer to Waring et al., 2015 for information on population size and current population trend), and this reduction factor is no longer appropriate for calculating takes for harbor and gray seals. NMFS has revised the take estimates accordingly for harbor and gray seals in this final IHA, using the original densities reported in the Northeast Navy Operations Area (OPAREA) Density Estimates (see Table 3). There is no more recent source of density information available for seals in this region. Comment 4: Given the potential for year-round occurrence of North Atlantic right whales off the coast of Rhode PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 Island, including the summer months, the Commission recommended that NMFS require DWBI to operate vessels conducting cable installation activities at speeds of 10 knots or less year-round. Response: NMFS concurs with the Commission’s recommendation to require a mandatory 10-knot vessel speed restriction throughout the duration of the project. In 2008, NMFS promulgated a regulation implementing a mandatory 10-knot speed limit for vessels 65 feet or greater in length in designated seasonal management areas (SMAs) to reduce the threat of ship collisions with right whales (see 50 CFR 224.105). The SMAs were established to provide protection for right whales, and the timing, duration, and geographic extent of the speed restrictions were specifically designed to reflect right whale movement, distribution, and aggregation patterns. The vessel speed restriction is in effect in the midAtlantic SMA from November 1 through April 30 to reduce the threat of collisions between ships and right whales around their migratory route and calving grounds. Right whales have been observed in or near Rhode Island during all four seasons. However, they are most common in the spring when they are migrating northward and in the fall during their southbound migration (Kenney and Vigness-Raposa, 2009; Right Whale Consortium, 2014)). Although there is no temporal overlap between the Mid-Atlantic SMA and DWBI’s projected cable installation activities, to minimize the potential for vessel collision with right whales and other marine mammal species NMFS will require all DWBI vessels associated with cable installation activities, regardless of their length, to operate at speeds of 10 knots or less throughout the duration of the project. In addition, all DWBI vessels will adhere to NMFS guidelines for marine mammal ship striking avoidance (available online at: http://www.nmfs.noaa.gov/pr/ shipstrike/), including maintaining a distance of at least 1,500 feet from right whales and having dedicated protected species observers who will communicate with the captain to ensure that all measures to avoid whales are taken (see Mitigation Measures below). NMFS believes that the size of right whales, their slow movements, and the amount of time they spend at the surface will make them extremely likely to be spotted by protected species observers during construction activities within the BIWF project area. NMFS does not anticipate any marine mammals to be impacted by vessel movement because only a limited E:\FR\FM\29JNN1.SGM 29JNN1 Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Notices mstockstill on DSK3G9T082PROD with NOTICES number of vessels will be involved in construction activities and they will move at slow speeds throughout construction. Comment 5: Citing safety concerns (both human and environmental) and practicability, the Commission recommended that NMFS review the requirement for applicants to reduce DP thruster power levels (for systems operating at both 100 and 50 percent power) when a marine mammal is observed approaching or within the Level B harassment zone and consider input received from DWBI and other applicants subject to other powerdown requirements. Response: As stated in DWBI’s IHA application and in the proposed IHA, powerdown procedures shall only be implemented by DWBI when reducing DP thruster use would not compromise safety (both human health and environmental) and/or the integrity of the project. Further, the powerdown requirement is consistent with the mitigation measures outlined in the original 2014 IHA and in the 2015 Biological Opinion for the BIWF. However, the Commission’s comment is duly noted and it is NMFS’ intent to review the effectiveness and practicability of this measure both internally and through input from other applicants and IHA holders that have implemented powerdown procedures during DP vessel thruster use. Description of Marine Mammals in the Area of the Specified Activity The ‘‘Description of Marine Mammals in the Area of the Specified Activities’’ section has not changed from what was in the proposed IHA (81 FR 22216, April 15, 2016; pages 22217–22218). The following species are both common in the waters of Rhode Island Sound and have the highest likelihood of occurring, at least seasonally, in the project area: North Atlantic right whale (Eubalaena glacialis), humpback whale (Megaptera novaeangliae), fin whale (Balaenoptera physalus), minke whale (Balaenoptera acutorostrata), harbor porpoise (Phocoena phocoena), Atlantic white-sided dolphin (Lagenorhynchus acutus), short-beaked common dolphin (Delphinus delphis), harbor seal (Phoca vitulina), and gray seal (Halichorus grypus). Three of these species are listed under the Endangered Species Act (ESA): North Atlantic right whale, humpback whale, and fin whale. The proposed IHA and DWBI’s application include a complete description of information on the status, distribution, abundance, vocalizations, density estimates, and general biology of marine mammal species in the study VerDate Sep<11>2014 17:18 Jun 28, 2016 Jkt 238001 area. In addition, NMFS publishes annual stock assessment reports for marine mammals, including some stocks that occur within the study area (http://www.nmfs.noaa.gov/pr/species/ mammals). Potential Effects of the Specified Activity on Marine Mammals and Their Habitat We provided a detailed discussion of the potential effects of the specified activity on marine mammals and their habitat in the notice of the proposed IHA (81 FR 22216; April 15, 2016; pages 22218–22224). That information has not changed and is not repeated here. Mitigation In order to issue an incidental take authorization 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 (where relevant). Mitigation Measures DWBI shall implement the following mitigation measures during export and inter-array cable installation activities. Exclusion and Monitoring Zones: Exclusion zones (defined by NMFS as the Level A harassment ZOI out to the 180/190 decibel (dB) isopleth) and monitoring zones (defined by NMFS as the Level B harassment ZOI out to the 120 dB isopleth for continuous noise) are typically established to minimize impacts to marine mammals. However, noise analysis has indicated that DP vessel thruster use will not produce sound levels at 180/190 dB at any appreciable distance (see DWBI’s Underwater Acoustic Modeling Report in Appendix A of the application). This is consistent with acoustic modeling results for other Atlantic wind farm projects using DP vessel thrusters (Tetra Tech, 2014; DONG Energy, 2016), as well as subsea cable-laying activities using DP vessel thruster use (Quintillion, 2015 and 2016). Therefore, injury to marine mammals is not expected and no Level A harassment exclusion zone is proposed. Consultation with NMFS has indicated that the monitoring zones established out to the 120 dB isopleth for continuous noise will result in zones too large to effectively monitor (up to 4.75 km). Therefore, based on precedent set by the U.S. Department of the Navy PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 42321 and recent European legislation regarding compliance thresholds for wind farm construction noise (U.S. Department of the Navy, 2012; OSPAR, 2008), and consistent with the previous IHA’s issued to DWBI and Deepwater Wind Block Island Transmission, L.L.C. (DWBITS), DWBI will establish a monitoring zone equivalent, at a minimum, to the size of the predicted 160 dB isopleth for DP vessel thruster use (5-m radius from the DP vessel) based on DWBI’s underwater acoustic modeling. All marine mammal sightings which are visually feasible beyond the 5-m 160 dB isopleth will also be recorded and potential takes will be noted. See Visual Monitoring below for additional details on monitoring requirements. DP Thruster Power Reduction— During cable installation a constant tension must be maintained to ensure the integrity of the cable. Any significant stoppage in vessel maneuverability during jet plow activities has the potential to result in significant damage to the cable. Therefore, during cable lay, if marine mammals enter or approach the established 160 dB isopleth monitoring zone (estimated to be a 5-m radius around the DP vessel), DWBI proposes to reduce DP thruster power to the maximum extent possible, except under circumstances when reducing DP thruster use would compromise safety (both human health and environmental) and/or the integrity of the project. After decreasing thruster energy, protected species observers (PSOs) will continue to monitor marine mammal behavior and determine if the animal(s) is moving towards or away from the established monitoring zone. If the animal(s) continues to move towards the sound source, then DP thruster use would remain at the reduced level. Normal thruster use will resume when PSOs report that marine mammals have moved away from and remained clear of the monitoring zone for a minimum of 30 minutes since last the sighting. Vessel Speed Restrictions—To minimize the potential for vessel collision with North Atlantic right whales and other marine mammals, all DWBI project vessels shall operate at speeds of 10 knots or less during cable installation activities. Ship Strike Avoidance—DWBI shall adhere to NMFS guidelines for marine mammal ship strike avoidance (http:// www.nmfs.noaa.gov/pr/shipstrike/). Mitigation Conclusions NMFS has carefully evaluated DWBI’s mitigation measures in the context of ensuring that we prescribe the means of E:\FR\FM\29JNN1.SGM 29JNN1 mstockstill on DSK3G9T082PROD with NOTICES 42322 Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Notices effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: • The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals; • The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and • The practicability of the measure for applicant implementation. Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed here: 1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal). 2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to received levels of activities that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only). 3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to received levels of activities that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only). 4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to received levels of activities that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing the severity of harassment takes only). 5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/ disturbance of habitat during a biologically important time. 6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation. Based on our evaluation of DWBI’s proposed measures, as well as other measures considered by NMFS, NMFS VerDate Sep<11>2014 17:18 Jun 28, 2016 Jkt 238001 has determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Monitoring and Reporting In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, ‘‘requirements pertaining to the monitoring and reporting of such taking.’’ The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for incidental take authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals: 1. An increase in our understanding of the likely occurrence of marine mammal species in the vicinity of the action, i.e., presence, abundance, distribution, and/or density of species. 2. An increase in our understanding of the nature, scope, or context of the likely exposure of marine mammal species to any of the potential stressor(s) associated with the action (e.g. sound or visual stimuli), through better understanding of one or more of the following: the action itself and its environment (e.g. sound source characterization, propagation, and ambient noise levels); the affected species (e.g. life history or dive pattern); the likely co-occurrence of marine mammal species with the action (in whole or part) associated with specific adverse effects; and/or the likely biological or behavioral context of exposure to the stressor for the marine mammal (e.g. age class of exposed animals or known pupping, calving or feeding areas). 3. An increase in our understanding of how individual marine mammals respond (behaviorally or physiologically) to the specific stressors associated with the action (in specific contexts, where possible, e.g., at what distance or received level). 4. An increase in our understanding of how anticipated individual responses, to individual stressors or anticipated combinations of stressors, may impact either: the long-term fitness and survival of an individual; or the population, species, or stock (e.g. PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 through effects on annual rates of recruitment or survival). 5. An increase in our understanding of how the activity affects marine mammal habitat, such as through effects on prey sources or acoustic habitat (e.g., through characterization of longer-term contributions of multiple sound sources to rising ambient noise levels and assessment of the potential chronic effects on marine mammals). 6. An increase in understanding of the impacts of the activity on marine mammals in combination with the impacts of other anthropogenic activities or natural factors occurring in the region. 7. An increase in our understanding of the effectiveness of mitigation and monitoring measures. 8. An increase in the probability of detecting marine mammals (through improved technology or methodology), both specifically within the safety zone (thus allowing for more effective implementation of the mitigation) and in general, to better achieve the above goals. Visual Monitoring—Visual observation of the 160 dB monitoring zone established for DP vessel operation during cable installation will be performed by qualified and NMFS approved PSOs, the resumes of whom will be provided to NMFS for review and approval prior to the start of construction activities. Observer qualifications will include direct field experience on a marine mammal observation vessel and/or aerial surveys in the Atlantic Ocean/Gulf of Mexico. A minimum of two PSOs will be stationed aboard the cable lay vessel. Each PSO will monitor 360 degrees of the field of vision. PSOs stationed on the DP vessel will begin observation of the monitoring zone as the vessel initially leaves the dock. Observations of the monitoring zone will continue throughout the cable installation and will end after the DP vessel has returned to dock. Observers would estimate distances to marine mammals visually, using laser range finders, or by using reticle binoculars during daylight hours. During night operations, night vision binoculars will be used. If vantage points higher than 25 feet (7.6 m) are available, distances can be measured using inclinometers. Position data will be recorded using hand-held or vessel global positioning system (GPS) units for each sighting, vessel position change, and any environmental change. Each PSO stationed on the cable lay vessel will scan the surrounding area for visual indication of marine mammal presence that may enter the monitoring zone. Observations will take place from E:\FR\FM\29JNN1.SGM 29JNN1 mstockstill on DSK3G9T082PROD with NOTICES Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Notices the highest available vantage point on the cable-lay vessel. General 360-degree scanning will occur during the monitoring periods, and target scanning by the PSO will occur when alerted of a marine mammal presence. Information recorded during each observation shall be used to estimate numbers of animals potentially taken and shall include the following: • Date, time, and location of construction operations; • Numbers of individuals observed; • Frequency of observations; • Location (i.e., distance from sound source); • DP vessel thruster status (i.e., energy level) • Weather conditions (i.e., percent cloud cover, visibility, percent glare); • Water conditions (i.e., Beaufort seastate, tidal state) • Details of mammal sightings (species, sex, age classification (if known), numbers) • Reaction of the animal(s) to relevant sound source (if any) and observed behavior (e.g., avoidance, approach), including bearing and direction of travel; and • Details of any observed ‘‘taking’’ (behavioral disturbances or injury/ mortality). All marine mammal sightings which are visually feasible beyond the 160 dB isopleth (i.e., beyond the 5-m radius around the DP vessel), will also be recorded and potential takes will be noted. In addition, prior to initiation of construction work, all crew members on barges, tugs and support vessels, will undergo environmental training, a component of which will focus on the procedures for sighting and protection of marine mammals. A briefing will also be conducted between the construction supervisors and crews, the PSOs, and DWBI. The purpose of the briefing will be to establish responsibilities of each party, define the chains of command, discuss communication procedures, provide an overview of monitoring purposes, and review operational procedures. The DWBI Construction Compliance Manager (or other authorized individual) will have the authority to stop or delay construction activities, if deemed necessary. New personnel will be briefed as they join the work in progress. Acoustic Field Verification—DWBI would perform field verification to confirm the 160-dB and 120-dB 1 mPam (root mean square (rms)) isopleths. Field verification during cable installation using DP thrusters will be performed using acoustic measurements from two reference locations at two VerDate Sep<11>2014 17:18 Jun 28, 2016 Jkt 238001 water depths (a depth at mid-water and a depth at approximately 1 m above the seafloor). If field verification measurements suggest a larger monitoring zone, the preliminary 5-mradius monitoring zone shall be modified to ensure adequate protection to marine mammals. Reporting Measures—As described above (Visual Monitoring) observers would record and report dates, times, and locations of construction operations; number of individuals observed and frequency of observations; location, weather, and water conditions; details of marine mammal sightings (e.g., species, sex, age, numbers, behavior); DP vessel thruster status, and details of any observed takes, including reaction of animals to sound source and any observed behavior. DWBI shall provide the following notifications and reports during construction activities: • Notification to NMFS and the U.S. Army Corps of Engineers (USACE) within 24-hours of beginning construction activities and again within 24-hours of completion; • NMFS and USACE should be notified within 24 hours whenever a monitoring zone is re-established by DWBI. After any re-establishment of the monitoring zone, DWBI will provide a report to the USACE and NMFS detailing the field-verification measurements within 7 days. This includes information, such as: a detailed account of the levels, durations, and spectral characteristics of DP thruster use, and the peak, rms, and energy levels of the sound pulses and their durations as a function of distance, water depth, and tidal cycle. NMFS and USACE will be notified within 24 hours if field verification measurements suggest a larger monitoring zone. • Within 90 days after completion of the construction activities, a draft technical report will be provided to NMFS and USACE that fully documents the methods, mitigation, and monitoring protocols implemented, summarizes the data recorded during monitoring (see Visual Monitoring), estimates the number of marine mammals that may have been taken during construction activities, and provides an interpretation of the results and an assessment of the implementation and effectiveness of prescribed monitoring and mitigation measures. The draft report shall be subject to review and comment by NMFS. Any recommendations made by NMFS must be addressed in the final report prior to acceptance by NMFS. The draft report will be considered the final report for this activity under this Authorization if PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 42323 NMFS has not provided comments and recommendations within 30 days of receipt of the draft report. • Notification of Injured or Dead Marine Mammals—In the unanticipated event that the specified activities clearly causes the take of a marine mammal in a manner prohibited by the IHA, such as a serious injury, or mortality, DWBI would immediately cease the specified activities and report the incident to the Office of Protected Resources, NMFS, and the Greater Atlantic Regional Fisheries Office (GARFO) Stranding Coordinator, NMFS. The report would include the following information: Æ Time and date of the incident; Æ Description of the incident; Æ Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility); Æ Description of all marine mammal observations and active sound source use in the 24 hours preceding the incident; Æ Species identification or description of the animal(s) involved; Æ Fate of the animal(s); and Æ Photographs or video footage of the animal(s) (if equipment is available). Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with DWBI to determine the measures necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. DWBI may not resume their activities until notified by NMFS. In the event that DWBI discovers an injured or dead marine mammal and 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), DWBI would immediately report the incident to the Office of Protected Resources, NMFS, and the GARFO Stranding Coordinator, NMFS. The report would include the same information identified in the paragraph above. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with DWBI to determine whether additional mitigation measures or modifications to the activities are appropriate. In the event that DWBI discovers an injured or dead marine mammal and 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), DWBI would report the incident to the Office of Protected Resources, NMFS, and the GARFO Stranding Coordinator, NMFS, within 24 hours of the E:\FR\FM\29JNN1.SGM 29JNN1 42324 Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Notices discovery. DWBI would provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS. DWBI can continue its operations under such a case. 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]. Underwater sound associated with the use of DP vessel thrusters during interarray and export cable installation is the only project activity that has the potential to harass marine mammals, as defined by the MMPA. Harassment could take the form of temporary threshold shift, avoidance, or other changes in marine mammal behavior. NMFS anticipates that impacts to marine mammals would be in the form of Level B behavioral harassment and no take by injury, serious injury, or mortality is authorized. NMFS does not anticipate take resulting from the movement of vessels (i.e., vessel strike) associated with construction because there will be a limited number of vessels moving at slow speeds over a relatively shallow, nearshore area, and PSOs on the vessels will be monitoring for marine mammals and will be able to alert the vessels to avoid any marine mammals in the area. NMFS’ current acoustic exposure criteria for estimating take are shown in Table 1 below. DWBI’s modeled distances to these acoustic exposure criteria are shown in Table 2. Details on the model characteristics and results are provided in the Underwater Acoustic Modeling Report found in Appendix A of the application. As discussed in the application and in Appendix A, acoustic modeling took into consideration sound sources using the loudest potential operational parameters, bathymetry, geoacoustic properties of the project area, time of year, and marine mammal hearing ranges. Results from the acoustic modeling showed that the estimated maximum distance to the 120 dB re 1 mPa (rms) MMPA threshold was approximately 4,750 m for 10-m water depth, 4,275 m for 20-m water depth, and 3,575 m for 40-m water depth; average distance to the 120 dB re 1 mPa (rms) MMPA threshold was approximately 2,700 m over the three depths (Table 2). More information on results including figures displaying critical distance information can be found in Appendix A of the application. DWBI and NMFS believe that these estimates represent the worst-case scenario and that the actual distances to the Level B harassment threshold may be shorter. DP vessel thruster use will not produce sound levels at 180/190 dB at any appreciable distance, therefore, no injurious (Level A harassment) takes have been requested or are being authorized. To verify the distance to the MMPA thresholds calculated by underwater acoustic modeling, DWBI has committed to conducting real-time underwater acoustic measurements of the DP vessel thrusters. Field verification of actual sound propagation will enable adjustment of the MMPA threshold level distances to fit actual construction conditions, if necessary. TABLE 1—NMFS’ CURRENT ACOUSTIC EXPOSURE CRITERIA Criterion Criterion definition Threshold Non-Explosive Sound Level A Harassment (Injury) ............................... Level B Harassment ........................................... Level B Harassment ........................................... Permanent Threshold Shift (PTS) (Any level above that which is known to cause temporary threshold shift (TTS)). Behavioral Disruption (for impulse noises) ...... Behavioral Disruption (for continuous, noise) .. 180 dB re 1 μPa-m (cetaceans)/190 dB re 1 μPa-m (pinnipeds) (rms). 160 dB re 1 μPa-m (rms). 120 dB re 1 μoPa-m (rms). TABLE 2—CRITICAL DISTANCES TO MMPA THRESHOLDS FROM DP VESSEL THRUSTERS DURING SUBMARINE CABLE INSTALLATION Marine mammal level B harassment 120 dBRMS re 1 μPa (m) Marine mammal level A harassment 180/190 dBRMS re 1 μPa (m) Source Max. distance mstockstill on DSK3G9T082PROD with NOTICES DP Vessel Thrusters—at 10 m .... DP Vessel Thrusters—at 20 m .... DP Vessel Thrusters—at 40 m .... N/A .................................................................................................... N/A .................................................................................................... N/A .................................................................................................... DWBI estimated species densities within the project area in order to estimate the number of marine mammal exposures to sound levels above 120 dB (continuous noise). The data used as the basis for estimating cetacean species density for the project area are sightings per unit effort (SPUE) taken from Kenney and Vigness-Raposa (2009). SPUE (or, the relative abundance of VerDate Sep<11>2014 17:18 Jun 28, 2016 Jkt 238001 species) is derived by using a measure of survey effort and number of individual cetaceans sighted. SPUE allows for comparison between discrete units of time (i.e. seasons) and space within a project area (Shoop and Kenney, 1992). SPUE calculated by Kenney and Vigness-Raposa (2009) was derived from a number of sources including: (1) North Atlantic Right PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 4,750 4,275 3,575 Average distance 2,125 2,700 3,400 Whale Consortium (NARWC) database; (2) University of Rhode Island Cetacean and Turtle Assessment Program (CeTAP, 1982); (3) sightings data from the Coastal Research and Education Society of Long Island, Inc. and Okeanos Ocean Research Foundation; (4) the Northeast Regional Stranding network (marine mammals); and (5) the E:\FR\FM\29JNN1.SGM 29JNN1 42325 Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Notices NOAA Northeast Fisheries Science Center’s Fisheries Sampling Branch. The OPAREA Density Estimates (U.S. Department of the Navy, 2007) were used for estimating takes for harbor and gray seals. In the proposed IHA, NMFS had applied an 80 percent reduction factor for harbor and gray seal densities based on the presumption that original density estimates for the project area were an overestimation because they included breeding populations of Cape Cod (Schroeder, 2000; Ronald and Gots, 2003). NMFS has since determined that the findings used to inform that reduction factor are outdated and do not accurately reflect the average annual rate of population increase (especially for gray seal), and this reduction factor is no longer appropriate for calculating takes for harbor and gray seals. The methodology for calculating takes was described in the Federal Register notice for the proposed IHA (81 FR 22216; April 15, 2016). Estimated takes were calculated by multiplying species density (per 100 km2) by the ZOI, multiplied by a correction factor to account for marine mammals underwater, multiplied by the number of days of the specified activity. A detailed description of the model used to calculate zones of influence is provided in the Underwater Acoustic Modeling Report found in Appendix A of the application. Acoustic modeling was completed with the U.S. Naval Research Laboratory’s Range-dependent Acoustic Model (RAM) which is widely used by sound engineers and marine biologists due to its adaptability to describe highly complex acoustic scenarios. This modeling analysis method considers range and depth along with a geo-referenced dataset to automatically retrieve the time of year information, bathymetry, and geoacoustic properties (e.g. hard rock, sand, mud) along propagation transects radiating from the sound source. Transects are run along compass points (45°, 90°, 135°, 180°, 225°, 270°, 315°, and 360°) to determine received sound levels at a given location. These values are then summed across frequencies to provide broadband received levels at the MMPA Level A and Level B harassment thresholds as described in Table 1. The representative area ensonified to the MMPA Level B threshold for DP vessel thruster use during cable installation was used to estimate take. The distances to the MMPA thresholds were used to conservatively estimate how many marine mammals would receive a specified amount of sound energy in a given time period and to support the development of monitoring and/or mitigation measures. DWBI used a ZOI of 25 km2 and a maximum installation period of 28 days to estimate take from use of the DP vessel thruster during cable installation. The ZOI represents the average daily ensonified area (using an average modeled distance to the 120 dB re 1 mPa (rms) isopleth of approximately 2.7 km) across the three representative water depths along the 13.2-km cable route. DWBI expects cable installation to occur between May and October. To be conservative, take calculations were based on the highest seasonal species density when cable installation may occur (see Table 3). The resulting take estimates (rounded to the nearest whole number) based upon these conservative assumptions for North Atlantic right, humpback, fin, and minke whales, as well as, short-beaked common and Atlantic white-sided dolphins, harbor porpoise, and harbor and gray seals are presented in Table 3. These numbers represent less than 1.5 percent of the stock for these species, respectively (Table 3). These percentages are the upper boundary of the animal population that could be affected. TABLE 3—DWBI’S ESTIMATED TAKE FOR DP THRUSTER USE DURING THE BIWF PROJECT Maximum seasonal density (Number/ 100 km2) Species North Atlantic Right Whale .......................................................................................................... Humpback Whale ........................................................................................................................ Fin Whale ..................................................................................................................................... Minke Whale ................................................................................................................................ Short-beaked Common Dolphin .................................................................................................. Atlantic White-sided Dolphin ........................................................................................................ Harbor Porpoise ........................................................................................................................... Harbor Seal .................................................................................................................................. Gray Seal ..................................................................................................................................... 0.07 0.11 2.15 0.44 8.21 7.46 0.74 * 9.74 * 14.16 Estimated take (Number) 1 2 23 5 87 79 8 110 160 Percentage of stock potentially affected 0.22 0.24 1.42 0.02 0.07 0.16 0.01 0.15 0.05 mstockstill on DSK3G9T082PROD with NOTICES * An 80 percent reduction factor for harbor and gray seal densities was applied in the proposed IHA based on the presumption that original density estimates for the project area were an overestimation because they included breeding populations of Cape Cod (Schroeder, 2000; Ronald and Gots, 2003). NMFS has since determined that the findings used to inform that reduction factor are outdated and do not accurately reflect the average annual rate of population increase (especially for gray seal). Therefore, NMFS no longer considers this reduction factor appropriate for calculating takes for harbor and gray seals. DWBI’s requested take numbers are provided in Table 3 and this is also the number of takes NMFS has authorized. DWBI’s take calculations do not take into account whether a single animal is harassed multiple times or whether each exposure is a different animal. Therefore, the numbers in Table 3 are the maximum number of animals that may be harassed during the cable installation activities (i.e., DWBI assumes that each exposure event is a different animal). These estimates do VerDate Sep<11>2014 17:18 Jun 28, 2016 Jkt 238001 not account for prescribed mitigation measures that DWBI would implement during the specified activities and the fact that powerdown procedures shall be implemented if an animal enters the Level B harassment zone (160 dB), further reducing the potential for any takes to occur during these activities. DWBI did not request, and NMFS is not proposing, take from vessel strike. We do not anticipate marine mammals to be impacted by vessel movement because a limited number of vessels PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 would be involved in construction activities and they would mostly move at slow speeds during DP vessel thruster use during cable installation activities. However, DWBI shall implement measures (e.g., vessel speed restrictions and separation distances; see Mitigation Measures) to further minimize potential impacts to marine mammals from vessel strikes during vessel operations and transit in the project area. E:\FR\FM\29JNN1.SGM 29JNN1 42326 Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Notices mstockstill on DSK3G9T082PROD with NOTICES Analysis and Determinations Negligible Impact Negligible impact is ‘‘an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival’’ (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., populationlevel effects). An estimate of the number of takes, alone, is not enough information on which to base an impact determination, as the severity of harassment may vary greatly depending on the context and duration of the behavioral response, many of which would not be expected to have deleterious impacts on the fitness of any individuals. In determining whether the expected takes will have a negligible impact, in addition to considering estimates of the number of marine mammals that might be ‘‘taken,’’ NMFS must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, and the status of the species. To avoid repetition, the discussion of our analyses applies to all the species listed in Table 3, given that the anticipated effects of this activity on these different marine mammal stocks are expected to be similar. There is no information about the nature or severity of the impacts, or the size, status, or structure of any of these species or stocks that would lead to a different analysis for this activity. As discussed in the ‘‘Potential Effects of the Specified Activity on Marine Mammals and Their Habitat’’ section of the proposed IHA (81 FR 22216; April 15, 2016; pages 22218–22224), permanent threshold shift, masking, non-auditory physical effects, and vessel strike are not expected to occur. There is some potential for limited temporary threshold shift (TTS); however, animals in the area would likely incur no more than brief hearing impairment (i.e., TTS) due to low source levels and the fact that most marine mammals would more likely avoid a loud sound source rather than swim in such close proximity as to result in TTS. Moreover, as the DP vessel is continually moving along the cable route over a 24-hour period, the area within the 120 dB isopleth is constantly moving (i.e., transient sound field) and VerDate Sep<11>2014 17:18 Jun 28, 2016 Jkt 238001 shifting within a 24-hour period. Therefore, no single area in Rhode Island Sound will have noise levels above 120 dB for more than a few hours; once the DP vessel has moved through the cable-laying area, it is not likely to again, therefore reducing the likelihood of repeated impacts within the project area. Potential impacts to marine mammal habitat were discussed in the proposed IHA (see the ‘‘Potential Effects of the Specified Activity on Marine Mammals and Their Habitat’’ section) (81 FR 22216; April 15, 2016; pages 22218– 22224). Marine mammal habitat may be impacted by elevated sound levels and some sediment disturbance, but these impacts would be temporary. Feeding behavior is not likely to be significantly impacted. Prey species are mobile, and are broadly distributed throughout the project area; therefore, marine mammals that may be temporarily displaced during cable installation activities are expected to be able to resume foraging once they have moved away from areas with disturbing levels of underwater noise. Because of the temporary nature of the disturbance, the availability of similar habitat and resources in the surrounding area, and the lack of important or unique marine mammal habitat, the impacts to marine mammals and the food sources that they utilize are not expected to cause significant or long-term consequences for individual marine mammals or their populations. There are no feeding areas known to be biologically important to marine mammals within the project area. There are no rookeries or mating grounds known to be biologically important to marine mammals within the project area. ESA-listed species for which takes are authorized are North Atlantic right, humpback, and fin whales. Recent estimates of abundance indicate a stable or growing humpback whale population, while examination of the minimum number alive population index calculated from the individual sightings database (as it existed on October 25, 2013) for the years 1990– 2010 suggests a positive and slowly accelerating trend in North Atlantic right whale population size (Waring et al., 2015). There are currently insufficient data to determine population trends for fin whale (Waring et al., 2015). There is no designated critical habitat for any ESA-listed marine mammals within the project area, and none of the stocks for nonlisted species authorized to be taken are considered ‘‘depleted’’ or ‘‘strategic’’ by NMFS under the MMPA. The mitigation measures are expected to reduce the potential for exposure of PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 marine mammals by reducing the DP thruster power if a marine mammal is observed within the 160 dB isopleth. Additional vessel strike avoidance requirements will further mitigate potential impacts to marine mammals during vessel transit in the study area. DWBI vessels associated with the BIWF construction will adhere to NMFS guidelines for marine mammal ship striking avoidance (available online at: http://www.nmfs.noaa.gov/pr/ shipstrike/), including maintaining a distance of at least 1,500 feet from right whales and having dedicated protected species observers who will communicate with the captain to ensure that all measures to avoid whales are taken. NMFS believes that the size of right whales, their slow movements, and the amount of time they spend at the surface will make them extremely likely to be spotted by PSOs during construction activities within the project area. DWBI did not request, and NMFS is not authorizing, take of marine mammals by injury, serious injury, or mortality. NMFS expects that takes would mainly be in the form of shortterm Level B behavioral harassment in the form of brief startling reaction and/ or temporary vacating of the area, or temporary decreased foraging (if such activity were occurring)—reactions that are considered to be of low severity and with no lasting biological consequences (e.g., Southall et al., 2007). This is largely due to the short time scale of the proposed activities and the nature of the DP vessel noise (i.e., low source level, constantly moving resulting in a transient sound field), as well as the required mitigation. Based on best available science, NMFS concludes that exposures to marine mammal species and stocks due to DWBI’s DP vessel thruster use during cable installation activities would result in only short-term (temporary and short in duration) and relatively infrequent effects to individuals exposed, and not of the type or severity that would be expected to be additive for the very small portion of the stocks and species likely to be exposed. Given the intensity of the activities, and the fact that shipping contributes to the ambient sound levels in the surrounding waters, NMFS does not anticipate the authorized take estimates to impact annual rates of recruitment or survival. Animals may temporarily avoid the immediate area, but are not expected to permanently abandon the area. Major shifts in habitat use, distribution, or foraging success, are not expected Based on the analysis contained herein of the likely effects of the E:\FR\FM\29JNN1.SGM 29JNN1 Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Notices specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from DWBI’s DP vessel thruster use during cable installation activities will have a negligible impact on the affected marine mammal species or stocks. Small Numbers The takes authorized for the cable installation activities utilizing DP vessel thrusters represent 0.22 percent of the Western North Atlantic (WNA) stock of North Atlantic right whale, 0.24 percent of the Gulf of Maine stock of humpback whale, 1.42 percent of the WNA stock of fin whale, 0.02 percent of the Canadian East Coast stock of minke whale, 0.07 percent of the WNA stock of short-beaked common dolphin, 0.16 percent of the WNA stock of Atlantic white-sided dolphin, 0.01 percent of the Gulf of Maine/Bay of Fundy stock of harbor porpoise, 0.15 percent of the WNA stock of harbor seal, and 0.05 percent of the North Atlantic stock of gray seal. These take estimates represent the percentage of each species or stock that could be taken by Level B behavioral harassment and represent extremely small numbers (less than 1.5 percent) relative to the affected species or stock sizes. Further, the take numbers are the maximum numbers of animals that are expected to be harassed during the project; it is possible that some of these exposures may occur to the same individual. Therefore, NMFS finds that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks. mstockstill on DSK3G9T082PROD with NOTICES Impact on Availability of Affected Species for Taking for Subsistence Uses There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes. Endangered Species Act Under section 7 of the ESA, the USACE (the federal permitting agency for the actual construction) consulted with NMFS’ GARFO on the proposed BIWF project. NMFS also consulted internally on the issuance of an IHA under section 101(a)(5)(D) of the MMPA for this activity. The resultant Biological Opinion determined that the proposed action was not likely to jeopardize the continued existence of fin, humpback, and North Atlantic right whale. NMFS VerDate Sep<11>2014 17:18 Jun 28, 2016 Jkt 238001 has determined that the 2015 Biological Opinion remains valid and that the proposed MMPA authorization provides no new information about the effects of the action, nor does it change the extent of effects of the action, or any other basis to require reinitiation of the opinion. Therefore, the 2015 Biological Opinion meets the requirements of section 7(a)(2) of the ESA and implementing regulations at 50 CFR 402 for our issuance of an IHA under the MMPA, and no further consultation is required. National Environmental Policy Act NMFS conducted the required analysis under the National Environmental Policy Act (NEPA) and prepared an EA for its issuance of the original BIWF IHA, issuing a Finding of No Significant Impact (FONSI) for the action on August 21, 2014 (reaffirmed on June 9, 2015). The potential environmental impacts of issuance of the IHA are within the scope of the environmental impacts analyzed in NMFS’ EA, which was used to support NMFS’ FONSI. NMFS has determined that there are no substantial changes to the action or significant new circumstances or information relevant to environmental concerns which would require a supplement to the 2014 EA or preparation of a new NEPA document. Therefore, NMFS has determined that a new or supplemental EA or Environmental Impact Statement are unnecessary, and we shall rely on the existing EA and FONSI for this action. Authorization As a result of these determinations, NMFS has issued an IHA to DWBI for cable installation activities that use DP vessel thrusters from May 31, 2016, through May 30, 2017, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. Dated: June 24, 2016. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2016–15370 Filed 6–28–16; 8:45 am] BILLING CODE 3510–22–P PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 42327 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Interagency Working Group on the Harmful Algal Bloom and Hypoxia Research and Control Amendments Act Detailed Summary of the Great Lakes Plan on Harmful Algal Blooms (HABs) and Hypoxia; Correction National Ocean Service, National Oceanic and Atmospheric Administration. (NOAA), Department of Commerce. ACTION: Notice; Correction. AGENCY: The National Oceanic and Atmospheric Administration published a document in the Federal Register of June 3, 2016, entitled Interagency Working Group on the Harmful Algal Bloom and Hypoxia Research and Control Amendments Act. The information concerning the submission date has been updated. Other Information: The updated information for when stakeholders are invited to provide input related to concerns and successes pertaining to HABs and hypoxia in the Great Lakes region follows: Stakeholders are invited to submit questions and provide input related to concerns and successes pertaining to HABs and hypoxia in the Great Lakes region. The IWG–HABHRCA continues to seek general and technical feedback on topics including: • Regional, Great Lakes-specific priorities for: Æ Ecological, economic, and social research on the causes and impacts of HABs and hypoxia; Æ Approaches to improving monitoring and early warnings, scientific understanding, prediction and modeling, and socioeconomics of these events; and Æ Mitigating the causes and impacts of HABs and hypoxia. • Communication and information dissemination methods that state, tribal, local, and international governments and organizations may undertake to educate and inform the public concerning HABs and hypoxia in the Great Lakes; and • Perceived needs for handling Great Lakes HAB and hypoxia events, as well as an action strategy for managing future situations. Inquiries and comments may be submitted via email (IWG-HABHRCA@ noaa.gov) or via U.S. mail to Caitlin Gould at NOAA, National Centers for Coastal Ocean Science, SSMC–4, #8237, 1305 East-West Highway, Silver Spring, SUMMARY: E:\FR\FM\29JNN1.SGM 29JNN1

Agencies

[Federal Register Volume 81, Number 125 (Wednesday, June 29, 2016)]
[Notices]
[Pages 42318-42327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15370]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XE498


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Installation of the Block 
Island Wind Farm Export and Inter-Array Cables

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with regulations implementing the Marine Mammal 
Protection Act (MMPA), notification is hereby given that NMFS has 
issued an Incidental Harassment Authorization (IHA) to Deepwater Wind 
Block Island, LLC (DWBI) to take marine

[[Page 42319]]

mammals, by harassment, incidental to the installation of the Block 
Island Wind Farm (BIWF) Export and Inter-Array Cables.

DATES: Effective May 31, 2016, through May 30, 2017.

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

SUPPLEMENTARY INFORMATION: 

Availability

    An electronic copy of the application and supporting documents, as 
well as a list of the references cited in this document, may be 
obtained by visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental/. NMFS' final Environmental Assessment (EA), 
Issuance of Incidental Harassment Authorizations to Deepwater Wind for 
the Take of Marine Mammals Incidental to Construction of the Block 
Island Wind Farm and Block Island Transmission System, which also 
contains a list of the references used in this document, may also be 
viewed on our Web site. In case of problems accessing these documents, 
please call the contact listed above (see FOR FURTHER INFORMATION 
CONTACT).

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.
    An 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.''
    Except with respect to certain activities not pertinent here, the 
MMPA defines harassment as: Any act of pursuit, torment, or annoyance 
which (i) has the potential to injure a marine mammal or marine mammal 
stock in the wild [Level A harassment]; or (ii) has the potential to 
disturb a marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering [Level 
B harassment].

Summary of Request

    On March 11, 2016, NMFS received an application from DWBI for the 
taking of marine mammals incidental to the installation of the BIWF 
export and inter-array cables. This work was originally authorized by 
NMFS as part of a September 2014 (modified in June 2015) IHA issued to 
DWBI for construction of the BIWF (offshore installation of wind 
turbine generator (WTG) jacket foundations and export/inter-array cable 
installation (79 FR 53409; September 9, 2014)). However, only the 
construction activities associated with the WTG jacket foundation 
installation were performed during that one-year authorization which 
expired in October 2015. Therefore, DWBI has reapplied for a new IHA to 
complete the remaining export and inter-array cable installation 
activities. The proposed export and inter-array cable installation 
activities remain the same as those described in the Federal Register 
notice for the original 2014 BIWF IHA. NMFS determined that the 
application was adequate and complete on March 14, 2016. NMFS published 
a notice making preliminary determinations and proposing to issue an 
IHA on April 15, 2016 (81 FR 22216; April 15, 2016). The notice 
initiated a 30-day comment period.
    DWBI has begun construction of the BIWF, a 30-megawatt offshore 
wind farm. Construction activities began in July of 2015 with the 
installation of the five WTG foundations. The submarine cable (export 
and inter-array cables) installation is scheduled to occur sometime 
between May and October, 2016. Noise generated from the use of 
dynamically positioned (DP) vessel thrusters during cable installation 
may result in the take of marine mammals. Take, by Level B Harassment 
only, of individuals of nine species is anticipated to result from the 
specified activity.

Description of the Specified Activity

    A detailed description of the activity was provided in the Federal 
Register notice for the proposed IHA (81 FR 22216; April 15, 2016; 
pages 16302-16304). Since that time, no changes have been made to the 
proposed construction activities; therefore, a detailed description is 
not provided here. However, a brief overview of the activity is 
provided below.

Overview

    The BIWF will consist of five, 6-megawatt WTGs, a submarine cable 
interconnecting the WTGs, and a transmission cable. The WTG jacket 
foundations were installed in 2015. Erection of the five WTGs, 
installation of the inter-array and export cable, and construction of 
the onshore components of the BIWF are planned for 2016. The scope of 
the activity covered by this IHA is limited to the use of DP vessel 
thrusters during installation of the submarine cable interconnecting 
the WTGs (inter-array cable), and a transmission cable from the 
northernmost WTG to an interconnection point on Block Island, Rhode 
Island (export cable). DP vessel thrusters are needed to keep the cable 
laying vessel in position during the cable installation activities. A 
jet plow, supported by the DP vessel, will be used to install the 
inter-array and export cable below the seabed as it is pulled behind 
the cable laying vessel.

Dates and Duration

    BIWF cable installation activities are schedule to occur sometime 
between May and October, 2016. NMFS is proposing to issue an 
authorization effective May 2016 through May 2017, based on the 
anticipated work window for the in-water cable installation activities 
that could result in the incidental take of marine mammals. While 
project activities may occur for over a 6-month period, use of the DP 
vessel thruster during cable installation is expected to occur for 
approximately 28 days. Cable installation (and subsequent use of the DP 
vessel thruster) would be conducted 24 hours per day.

Specified Geographic Region

    The offshore components of the BIWF will be located in state 
territorial waters. The WTGs will be located on average about 4.8 
kilometers (km) southeast of Block Island, and about 25.7 km south of 
the Rhode Island mainland. The WTGs will be arranged in a radial 
configuration spaced about 0.8 km apart. The inter-array cable will 
connect the five WTGs for a total length of 3.2 km from the 
northernmost WTG to the southernmost WTG. Water depths along the inter-
array cable range up to 23.3 meters (m). The export cable will

[[Page 42320]]

originate at the northernmost WTG and travel 10 km to a manhole located 
in the town of New Shoreham (Block Island) in Washington County, Rhode 
Island. Water depths along the export cable submarine route range up to 
36.9 m. Construction staging and laydown for offshore construction is 
planned to occur at the Port of Providence, Providence, Rhode Island.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to DWBI was published in 
the Federal Register on April 15, 2016 (81 FR 22216). That notice 
described, in detail, DWBI's activity, the marine mammal species that 
may be affected by the proposed cable installation activities, and the 
anticipated effects on marine mammals and their habitat. During the 30-
day public comment period, NMFS only received comments from the Marine 
Mammal Commission (Commission). Specific comments and responses are 
provided below. Comments are also posted at http://www.nmfs.noaa.gov/pr/permits/incidental/.
    Comment 1: The Commission recommended that NMFS recalculate take 
numbers based on an accurate estimate of the distance that DWBI expects 
cable-laying vessels to travel each day, and clarify the number of days 
of activities necessary to complete the cable installation.
    Response: As indicated in their application and in the proposed 
IHA, DWBI anticipates the same number of days (28) of cable 
installation activities as was proposed for the original 2014 (modified 
in 2015) IHA (79 FR 53409). Similar construction activities (submarine 
cable installation) for the related Block Island Transmission System 
project, which will interconnect Block Island to the existing 
Narragansett Electric Company National Grid distribution system on the 
Rhode Island mainland, confirm that this is an accurate estimation of 
cable installation project duration. Therefore, NMFS has calculated the 
takes to be authorized based on a maximum of 28 days of cable 
installation and DP vessel thruster use.
    NMFS further clarifies its take calculations as follows. The WTGs 
will be arranged in a radial configuration spaced about 0.8 km apart. 
The inter-array cable will connect the five WTGs for a total length of 
3.2 km. The export cable will originate at the northernmost WTG and 
travel 10 km to Block Island, Rhode Island. The total line kilometers 
of cable to be installed, then, is 13.2 km. Assuming 28 days of cable 
installation, this equates to approximately 0.5 km being laid on any of 
the 28 days of activities. Thus, the zone of influence (ZOI) used to 
calculate takes is based on a daily ensonified area over 0.5 km 
traveled per day. As discussed below in the ``Estimated Take by 
Incidental Harassment'' section, estimated takes were calculated by 
multiplying species density (per 100 km\2\) by the ZOI, multiplied by a 
correction factor to account for marine mammals underwater, multiplied 
by the number of days (28) of the specified activity.
    Comment 2: The Commission recommended a 24-hour ``reset'' for 
enumerating takes by applying standard rounding rules before summing 
the numbers of estimated takes across days.
    Response: NMFS appreciates the Commission's recommendation and 
concurs that a consistent approach to estimating potential takes, where 
appropriate, is important. We will consider the Commission's 
recommended methodology on an action-specific basis.
    Comment 3: The Commission recommended that NMFS revise its take 
estimates for harbor and gray seals by removing the 80-percent 
reduction factor that was used to calculate takes in DWBI's application 
and in the proposed IHA (81 FR 22216; ``Estimated Take by Incidental 
Harassment,'' pages 22226-22227).
    Response: NMFS agrees with the Commission's recommendation to no 
longer use a reduction factor to estimate harbor and gray seal 
densities in the project area. In the proposed IHA, NMFS had applied an 
80-percent reduction factor for harbor and gray seal densities based on 
the presumption that original density estimates for the project area 
were an overestimation because they included breeding populations of 
Cape Cod (Schroeder, 2000; Ronald and Gots, 2003). NMFS has since 
determined that the findings used to inform that reduction factor are 
outdated and do not accurately reflect the average annual rate of 
population increase (especially for gray seal) (refer to Waring et al., 
2015 for information on population size and current population trend), 
and this reduction factor is no longer appropriate for calculating 
takes for harbor and gray seals. NMFS has revised the take estimates 
accordingly for harbor and gray seals in this final IHA, using the 
original densities reported in the Northeast Navy Operations Area 
(OPAREA) Density Estimates (see Table 3). There is no more recent 
source of density information available for seals in this region.
    Comment 4: Given the potential for year-round occurrence of North 
Atlantic right whales off the coast of Rhode Island, including the 
summer months, the Commission recommended that NMFS require DWBI to 
operate vessels conducting cable installation activities at speeds of 
10 knots or less year-round.
    Response: NMFS concurs with the Commission's recommendation to 
require a mandatory 10-knot vessel speed restriction throughout the 
duration of the project. In 2008, NMFS promulgated a regulation 
implementing a mandatory 10-knot speed limit for vessels 65 feet or 
greater in length in designated seasonal management areas (SMAs) to 
reduce the threat of ship collisions with right whales (see 50 CFR 
224.105). The SMAs were established to provide protection for right 
whales, and the timing, duration, and geographic extent of the speed 
restrictions were specifically designed to reflect right whale 
movement, distribution, and aggregation patterns. The vessel speed 
restriction is in effect in the mid-Atlantic SMA from November 1 
through April 30 to reduce the threat of collisions between ships and 
right whales around their migratory route and calving grounds.
    Right whales have been observed in or near Rhode Island during all 
four seasons. However, they are most common in the spring when they are 
migrating northward and in the fall during their southbound migration 
(Kenney and Vigness-Raposa, 2009; Right Whale Consortium, 2014)). 
Although there is no temporal overlap between the Mid-Atlantic SMA and 
DWBI's projected cable installation activities, to minimize the 
potential for vessel collision with right whales and other marine 
mammal species NMFS will require all DWBI vessels associated with cable 
installation activities, regardless of their length, to operate at 
speeds of 10 knots or less throughout the duration of the project. In 
addition, all DWBI vessels will adhere to NMFS guidelines for marine 
mammal ship striking avoidance (available online at: http://www.nmfs.noaa.gov/pr/shipstrike/), including maintaining a distance of 
at least 1,500 feet from right whales and having dedicated protected 
species observers who will communicate with the captain to ensure that 
all measures to avoid whales are taken (see Mitigation Measures below). 
NMFS believes that the size of right whales, their slow movements, and 
the amount of time they spend at the surface will make them extremely 
likely to be spotted by protected species observers during construction 
activities within the BIWF project area. NMFS does not anticipate any 
marine mammals to be impacted by vessel movement because only a limited

[[Page 42321]]

number of vessels will be involved in construction activities and they 
will move at slow speeds throughout construction.
    Comment 5: Citing safety concerns (both human and environmental) 
and practicability, the Commission recommended that NMFS review the 
requirement for applicants to reduce DP thruster power levels (for 
systems operating at both 100 and 50 percent power) when a marine 
mammal is observed approaching or within the Level B harassment zone 
and consider input received from DWBI and other applicants subject to 
other powerdown requirements.
    Response: As stated in DWBI's IHA application and in the proposed 
IHA, powerdown procedures shall only be implemented by DWBI when 
reducing DP thruster use would not compromise safety (both human health 
and environmental) and/or the integrity of the project. Further, the 
powerdown requirement is consistent with the mitigation measures 
outlined in the original 2014 IHA and in the 2015 Biological Opinion 
for the BIWF. However, the Commission's comment is duly noted and it is 
NMFS' intent to review the effectiveness and practicability of this 
measure both internally and through input from other applicants and IHA 
holders that have implemented powerdown procedures during DP vessel 
thruster use.

Description of Marine Mammals in the Area of the Specified Activity

    The ``Description of Marine Mammals in the Area of the Specified 
Activities'' section has not changed from what was in the proposed IHA 
(81 FR 22216, April 15, 2016; pages 22217-22218). The following species 
are both common in the waters of Rhode Island Sound and have the 
highest likelihood of occurring, at least seasonally, in the project 
area: North Atlantic right whale (Eubalaena glacialis), humpback whale 
(Megaptera novaeangliae), fin whale (Balaenoptera physalus), minke 
whale (Balaenoptera acutorostrata), harbor porpoise (Phocoena 
phocoena), Atlantic white-sided dolphin (Lagenorhynchus acutus), short-
beaked common dolphin (Delphinus delphis), harbor seal (Phoca 
vitulina), and gray seal (Halichorus grypus). Three of these species 
are listed under the Endangered Species Act (ESA): North Atlantic right 
whale, humpback whale, and fin whale.
    The proposed IHA and DWBI's application include a complete 
description of information on the status, distribution, abundance, 
vocalizations, density estimates, and general biology of marine mammal 
species in the study area. In addition, NMFS publishes annual stock 
assessment reports for marine mammals, including some stocks that occur 
within the study area (http://www.nmfs.noaa.gov/pr/species/mammals).

Potential Effects of the Specified Activity on Marine Mammals and Their 
Habitat

    We provided a detailed discussion of the potential effects of the 
specified activity on marine mammals and their habitat in the notice of 
the proposed IHA (81 FR 22216; April 15, 2016; pages 22218-22224). That 
information has not changed and is not repeated here.

Mitigation

    In order to issue an incidental take authorization 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 (where relevant).

Mitigation Measures

    DWBI shall implement the following mitigation measures during 
export and inter-array cable installation activities.
    Exclusion and Monitoring Zones: Exclusion zones (defined by NMFS as 
the Level A harassment ZOI out to the 180/190 decibel (dB) isopleth) 
and monitoring zones (defined by NMFS as the Level B harassment ZOI out 
to the 120 dB isopleth for continuous noise) are typically established 
to minimize impacts to marine mammals. However, noise analysis has 
indicated that DP vessel thruster use will not produce sound levels at 
180/190 dB at any appreciable distance (see DWBI's Underwater Acoustic 
Modeling Report in Appendix A of the application). This is consistent 
with acoustic modeling results for other Atlantic wind farm projects 
using DP vessel thrusters (Tetra Tech, 2014; DONG Energy, 2016), as 
well as subsea cable-laying activities using DP vessel thruster use 
(Quintillion, 2015 and 2016). Therefore, injury to marine mammals is 
not expected and no Level A harassment exclusion zone is proposed.
    Consultation with NMFS has indicated that the monitoring zones 
established out to the 120 dB isopleth for continuous noise will result 
in zones too large to effectively monitor (up to 4.75 km). Therefore, 
based on precedent set by the U.S. Department of the Navy and recent 
European legislation regarding compliance thresholds for wind farm 
construction noise (U.S. Department of the Navy, 2012; OSPAR, 2008), 
and consistent with the previous IHA's issued to DWBI and Deepwater 
Wind Block Island Transmission, L.L.C. (DWBITS), DWBI will establish a 
monitoring zone equivalent, at a minimum, to the size of the predicted 
160 dB isopleth for DP vessel thruster use (5-m radius from the DP 
vessel) based on DWBI's underwater acoustic modeling. All marine mammal 
sightings which are visually feasible beyond the 5-m 160 dB isopleth 
will also be recorded and potential takes will be noted. See Visual 
Monitoring below for additional details on monitoring requirements.
    DP Thruster Power Reduction--During cable installation a constant 
tension must be maintained to ensure the integrity of the cable. Any 
significant stoppage in vessel maneuverability during jet plow 
activities has the potential to result in significant damage to the 
cable. Therefore, during cable lay, if marine mammals enter or approach 
the established 160 dB isopleth monitoring zone (estimated to be a 5-m 
radius around the DP vessel), DWBI proposes to reduce DP thruster power 
to the maximum extent possible, except under circumstances when 
reducing DP thruster use would compromise safety (both human health and 
environmental) and/or the integrity of the project. After decreasing 
thruster energy, protected species observers (PSOs) will continue to 
monitor marine mammal behavior and determine if the animal(s) is moving 
towards or away from the established monitoring zone. If the animal(s) 
continues to move towards the sound source, then DP thruster use would 
remain at the reduced level. Normal thruster use will resume when PSOs 
report that marine mammals have moved away from and remained clear of 
the monitoring zone for a minimum of 30 minutes since last the 
sighting.
    Vessel Speed Restrictions--To minimize the potential for vessel 
collision with North Atlantic right whales and other marine mammals, 
all DWBI project vessels shall operate at speeds of 10 knots or less 
during cable installation activities.
    Ship Strike Avoidance--DWBI shall adhere to NMFS guidelines for 
marine mammal ship strike avoidance (http://www.nmfs.noaa.gov/pr/shipstrike/).

Mitigation Conclusions

    NMFS has carefully evaluated DWBI's mitigation measures in the 
context of ensuring that we prescribe the means of

[[Page 42322]]

effecting the least practicable impact on the affected marine mammal 
species and stocks and their habitat. Our evaluation of potential 
measures included consideration of the following factors in relation to 
one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     The practicability of the measure for applicant 
implementation.
    Any mitigation measure(s) prescribed by NMFS should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed here:
    1. Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    2. A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to received 
levels of activities that we expect to result in the take of marine 
mammals (this goal may contribute to 1, above, or to reducing 
harassment takes only).
    3. A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to received levels of activities that we expect to result in the take 
of marine mammals (this goal may contribute to 1, above, or to reducing 
harassment takes only).
    4. A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to received 
levels of activities that we expect to result in the take of marine 
mammals (this goal may contribute to 1, above, or to reducing the 
severity of harassment takes only).
    5. Avoidance or minimization of adverse effects to marine mammal 
habitat, paying special attention to the food base, activities that 
block or limit passage to or from biologically important areas, 
permanent destruction of habitat, or temporary destruction/disturbance 
of habitat during a biologically important time.
    6. For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on our evaluation of DWBI's proposed measures, as well as 
other measures considered by NMFS, NMFS has determined that the 
proposed mitigation measures provide the means of effecting the least 
practicable impact on marine mammals species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth, ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
incidental take authorizations must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the proposed action area.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    1. An increase in our understanding of the likely occurrence of 
marine mammal species in the vicinity of the action, i.e., presence, 
abundance, distribution, and/or density of species.
    2. An increase in our understanding of the nature, scope, or 
context of the likely exposure of marine mammal species to any of the 
potential stressor(s) associated with the action (e.g. sound or visual 
stimuli), through better understanding of one or more of the following: 
the action itself and its environment (e.g. sound source 
characterization, propagation, and ambient noise levels); the affected 
species (e.g. life history or dive pattern); the likely co-occurrence 
of marine mammal species with the action (in whole or part) associated 
with specific adverse effects; and/or the likely biological or 
behavioral context of exposure to the stressor for the marine mammal 
(e.g. age class of exposed animals or known pupping, calving or feeding 
areas).
    3. An increase in our understanding of how individual marine 
mammals respond (behaviorally or physiologically) to the specific 
stressors associated with the action (in specific contexts, where 
possible, e.g., at what distance or received level).
    4. An increase in our understanding of how anticipated individual 
responses, to individual stressors or anticipated combinations of 
stressors, may impact either: the long-term fitness and survival of an 
individual; or the population, species, or stock (e.g. through effects 
on annual rates of recruitment or survival).
    5. An increase in our understanding of how the activity affects 
marine mammal habitat, such as through effects on prey sources or 
acoustic habitat (e.g., through characterization of longer-term 
contributions of multiple sound sources to rising ambient noise levels 
and assessment of the potential chronic effects on marine mammals).
    6. An increase in understanding of the impacts of the activity on 
marine mammals in combination with the impacts of other anthropogenic 
activities or natural factors occurring in the region.
    7. An increase in our understanding of the effectiveness of 
mitigation and monitoring measures.
    8. An increase in the probability of detecting marine mammals 
(through improved technology or methodology), both specifically within 
the safety zone (thus allowing for more effective implementation of the 
mitigation) and in general, to better achieve the above goals.
    Visual Monitoring--Visual observation of the 160 dB monitoring zone 
established for DP vessel operation during cable installation will be 
performed by qualified and NMFS approved PSOs, the resumes of whom will 
be provided to NMFS for review and approval prior to the start of 
construction activities. Observer qualifications will include direct 
field experience on a marine mammal observation vessel and/or aerial 
surveys in the Atlantic Ocean/Gulf of Mexico. A minimum of two PSOs 
will be stationed aboard the cable lay vessel. Each PSO will monitor 
360 degrees of the field of vision. PSOs stationed on the DP vessel 
will begin observation of the monitoring zone as the vessel initially 
leaves the dock. Observations of the monitoring zone will continue 
throughout the cable installation and will end after the DP vessel has 
returned to dock.
    Observers would estimate distances to marine mammals visually, 
using laser range finders, or by using reticle binoculars during 
daylight hours. During night operations, night vision binoculars will 
be used. If vantage points higher than 25 feet (7.6 m) are available, 
distances can be measured using inclinometers. Position data will be 
recorded using hand-held or vessel global positioning system (GPS) 
units for each sighting, vessel position change, and any environmental 
change.
    Each PSO stationed on the cable lay vessel will scan the 
surrounding area for visual indication of marine mammal presence that 
may enter the monitoring zone. Observations will take place from

[[Page 42323]]

the highest available vantage point on the cable-lay vessel. General 
360-degree scanning will occur during the monitoring periods, and 
target scanning by the PSO will occur when alerted of a marine mammal 
presence.
    Information recorded during each observation shall be used to 
estimate numbers of animals potentially taken and shall include the 
following:
     Date, time, and location of construction operations;
      Numbers of individuals observed;
     Frequency of observations;
     Location (i.e., distance from sound source);
     DP vessel thruster status (i.e., energy level)
     Weather conditions (i.e., percent cloud cover, visibility, 
percent glare);
     Water conditions (i.e., Beaufort sea-state, tidal state)
     Details of mammal sightings (species, sex, age 
classification (if known), numbers)
     Reaction of the animal(s) to relevant sound source (if 
any) and observed behavior (e.g., avoidance, approach), including 
bearing and direction of travel; and
     Details of any observed ``taking'' (behavioral 
disturbances or injury/mortality).
    All marine mammal sightings which are visually feasible beyond the 
160 dB isopleth (i.e., beyond the 5-m radius around the DP vessel), 
will also be recorded and potential takes will be noted.
    In addition, prior to initiation of construction work, all crew 
members on barges, tugs and support vessels, will undergo environmental 
training, a component of which will focus on the procedures for 
sighting and protection of marine mammals. A briefing will also be 
conducted between the construction supervisors and crews, the PSOs, and 
DWBI. The purpose of the briefing will be to establish responsibilities 
of each party, define the chains of command, discuss communication 
procedures, provide an overview of monitoring purposes, and review 
operational procedures. The DWBI Construction Compliance Manager (or 
other authorized individual) will have the authority to stop or delay 
construction activities, if deemed necessary. New personnel will be 
briefed as they join the work in progress.
    Acoustic Field Verification--DWBI would perform field verification 
to confirm the 160-dB and 120-dB 1 [micro]Pa-m (root mean square (rms)) 
isopleths. Field verification during cable installation using DP 
thrusters will be performed using acoustic measurements from two 
reference locations at two water depths (a depth at mid-water and a 
depth at approximately 1 m above the seafloor). If field verification 
measurements suggest a larger monitoring zone, the preliminary 5-m-
radius monitoring zone shall be modified to ensure adequate protection 
to marine mammals.
    Reporting Measures--As described above (Visual Monitoring) 
observers would record and report dates, times, and locations of 
construction operations; number of individuals observed and frequency 
of observations; location, weather, and water conditions; details of 
marine mammal sightings (e.g., species, sex, age, numbers, behavior); 
DP vessel thruster status, and details of any observed takes, including 
reaction of animals to sound source and any observed behavior.
    DWBI shall provide the following notifications and reports during 
construction activities:
     Notification to NMFS and the U.S. Army Corps of Engineers 
(USACE) within 24-hours of beginning construction activities and again 
within 24-hours of completion;
     NMFS and USACE should be notified within 24 hours whenever 
a monitoring zone is re-established by DWBI. After any re-establishment 
of the monitoring zone, DWBI will provide a report to the USACE and 
NMFS detailing the field-verification measurements within 7 days. This 
includes information, such as: a detailed account of the levels, 
durations, and spectral characteristics of DP thruster use, and the 
peak, rms, and energy levels of the sound pulses and their durations as 
a function of distance, water depth, and tidal cycle. NMFS and USACE 
will be notified within 24 hours if field verification measurements 
suggest a larger monitoring zone.
     Within 90 days after completion of the construction 
activities, a draft technical report will be provided to NMFS and USACE 
that fully documents the methods, mitigation, and monitoring protocols 
implemented, summarizes the data recorded during monitoring (see Visual 
Monitoring), estimates the number of marine mammals that may have been 
taken during construction activities, and provides an interpretation of 
the results and an assessment of the implementation and effectiveness 
of prescribed monitoring and mitigation measures. The draft report 
shall be subject to review and comment by NMFS. Any recommendations 
made by NMFS must be addressed in the final report prior to acceptance 
by NMFS. The draft report will be considered the final report for this 
activity under this Authorization if NMFS has not provided comments and 
recommendations within 30 days of receipt of the draft report.
     Notification of Injured or Dead Marine Mammals--In the 
unanticipated event that the specified activities clearly causes the 
take of a marine mammal in a manner prohibited by the IHA, such as a 
serious injury, or mortality, DWBI would immediately cease the 
specified activities and report the incident to the Office of Protected 
Resources, NMFS, and the Greater Atlantic Regional Fisheries Office 
(GARFO) Stranding Coordinator, NMFS. The report would include the 
following information:
    [cir] Time and date of the incident;
    [cir] Description of the incident;
    [cir] Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    [cir] Description of all marine mammal observations and active 
sound source use in the 24 hours preceding the incident;
    [cir] Species identification or description of the animal(s) 
involved;
    [cir] Fate of the animal(s); and
    [cir] Photographs or video footage of the animal(s) (if equipment 
is available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with DWBI to 
determine the measures necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. DWBI may not resume their 
activities until notified by NMFS.
    In the event that DWBI discovers an injured or dead marine mammal 
and 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), DWBI would immediately report the incident to the 
Office of Protected Resources, NMFS, and the GARFO Stranding 
Coordinator, NMFS. The report would include the same information 
identified in the paragraph above. Activities may continue while NMFS 
reviews the circumstances of the incident. NMFS will work with DWBI to 
determine whether additional mitigation measures or modifications to 
the activities are appropriate.
    In the event that DWBI discovers an injured or dead marine mammal 
and 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), DWBI would report the incident to the Office of 
Protected Resources, NMFS, and the GARFO Stranding Coordinator, NMFS, 
within 24 hours of the

[[Page 42324]]

discovery. DWBI would provide photographs or video footage (if 
available) or other documentation of the stranded animal sighting to 
NMFS. DWBI can continue its operations under such a case.

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].
    Underwater sound associated with the use of DP vessel thrusters 
during inter-array and export cable installation is the only project 
activity that has the potential to harass marine mammals, as defined by 
the MMPA. Harassment could take the form of temporary threshold shift, 
avoidance, or other changes in marine mammal behavior. NMFS anticipates 
that impacts to marine mammals would be in the form of Level B 
behavioral harassment and no take by injury, serious injury, or 
mortality is authorized. NMFS does not anticipate take resulting from 
the movement of vessels (i.e., vessel strike) associated with 
construction because there will be a limited number of vessels moving 
at slow speeds over a relatively shallow, nearshore area, and PSOs on 
the vessels will be monitoring for marine mammals and will be able to 
alert the vessels to avoid any marine mammals in the area.
    NMFS' current acoustic exposure criteria for estimating take are 
shown in Table 1 below. DWBI's modeled distances to these acoustic 
exposure criteria are shown in Table 2. Details on the model 
characteristics and results are provided in the Underwater Acoustic 
Modeling Report found in Appendix A of the application. As discussed in 
the application and in Appendix A, acoustic modeling took into 
consideration sound sources using the loudest potential operational 
parameters, bathymetry, geoacoustic properties of the project area, 
time of year, and marine mammal hearing ranges. Results from the 
acoustic modeling showed that the estimated maximum distance to the 120 
dB re 1 [mu]Pa (rms) MMPA threshold was approximately 4,750 m for 10-m 
water depth, 4,275 m for 20-m water depth, and 3,575 m for 40-m water 
depth; average distance to the 120 dB re 1 [mu]Pa (rms) MMPA threshold 
was approximately 2,700 m over the three depths (Table 2). More 
information on results including figures displaying critical distance 
information can be found in Appendix A of the application. DWBI and 
NMFS believe that these estimates represent the worst-case scenario and 
that the actual distances to the Level B harassment threshold may be 
shorter. DP vessel thruster use will not produce sound levels at 180/
190 dB at any appreciable distance, therefore, no injurious (Level A 
harassment) takes have been requested or are being authorized. To 
verify the distance to the MMPA thresholds calculated by underwater 
acoustic modeling, DWBI has committed to conducting real-time 
underwater acoustic measurements of the DP vessel thrusters. Field 
verification of actual sound propagation will enable adjustment of the 
MMPA threshold level distances to fit actual construction conditions, 
if necessary.

            Table 1--NMFS' Current Acoustic Exposure Criteria
------------------------------------------------------------------------
          Criterion           Criterion definition        Threshold
------------------------------------------------------------------------
                           Non-Explosive Sound
------------------------------------------------------------------------
Level A Harassment (Injury).  Permanent Threshold   180 dB re 1
                               Shift (PTS) (Any      [micro]Pa-m
                               level above that      (cetaceans)/190 dB
                               which is known to     re 1 [micro]Pa-m
                               cause temporary       (pinnipeds) (rms).
                               threshold shift
                               (TTS)).
Level B Harassment..........  Behavioral            160 dB re 1
                               Disruption (for       [micro]Pa-m (rms).
                               impulse noises).
Level B Harassment..........  Behavioral            120 dB re 1
                               Disruption (for       [micro]oPa-m (rms).
                               continuous, noise).
------------------------------------------------------------------------


   Table 2--Critical Distances to MMPA Thresholds From DP Vessel Thrusters During Submarine Cable Installation
----------------------------------------------------------------------------------------------------------------
                                                                            Marine mammal level B harassment 120
                                          Marine mammal level A harassment        dBRMS re 1 [micro]Pa  (m)
                 Source                   180/190 dBRMS re 1 [micro]Pa (m) -------------------------------------
                                                                              Max. distance    Average  distance
----------------------------------------------------------------------------------------------------------------
DP Vessel Thrusters--at 10 m............  N/A.............................              4,750              2,125
DP Vessel Thrusters--at 20 m............  N/A.............................              4,275              2,700
DP Vessel Thrusters--at 40 m............  N/A.............................              3,575              3,400
----------------------------------------------------------------------------------------------------------------

    DWBI estimated species densities within the project area in order 
to estimate the number of marine mammal exposures to sound levels above 
120 dB (continuous noise). The data used as the basis for estimating 
cetacean species density for the project area are sightings per unit 
effort (SPUE) taken from Kenney and Vigness-Raposa (2009). SPUE (or, 
the relative abundance of species) is derived by using a measure of 
survey effort and number of individual cetaceans sighted. SPUE allows 
for comparison between discrete units of time (i.e. seasons) and space 
within a project area (Shoop and Kenney, 1992). SPUE calculated by 
Kenney and Vigness-Raposa (2009) was derived from a number of sources 
including: (1) North Atlantic Right Whale Consortium (NARWC) database; 
(2) University of Rhode Island Cetacean and Turtle Assessment Program 
(CeTAP, 1982); (3) sightings data from the Coastal Research and 
Education Society of Long Island, Inc. and Okeanos Ocean Research 
Foundation; (4) the Northeast Regional Stranding network (marine 
mammals); and (5) the

[[Page 42325]]

NOAA Northeast Fisheries Science Center's Fisheries Sampling Branch.
    The OPAREA Density Estimates (U.S. Department of the Navy, 2007) 
were used for estimating takes for harbor and gray seals. In the 
proposed IHA, NMFS had applied an 80 percent reduction factor for 
harbor and gray seal densities based on the presumption that original 
density estimates for the project area were an overestimation because 
they included breeding populations of Cape Cod (Schroeder, 2000; Ronald 
and Gots, 2003). NMFS has since determined that the findings used to 
inform that reduction factor are outdated and do not accurately reflect 
the average annual rate of population increase (especially for gray 
seal), and this reduction factor is no longer appropriate for 
calculating takes for harbor and gray seals.
    The methodology for calculating takes was described in the Federal 
Register notice for the proposed IHA (81 FR 22216; April 15, 2016). 
Estimated takes were calculated by multiplying species density (per 100 
km\2\) by the ZOI, multiplied by a correction factor to account for 
marine mammals underwater, multiplied by the number of days of the 
specified activity.
    A detailed description of the model used to calculate zones of 
influence is provided in the Underwater Acoustic Modeling Report found 
in Appendix A of the application. Acoustic modeling was completed with 
the U.S. Naval Research Laboratory's Range-dependent Acoustic Model 
(RAM) which is widely used by sound engineers and marine biologists due 
to its adaptability to describe highly complex acoustic scenarios. This 
modeling analysis method considers range and depth along with a geo-
referenced dataset to automatically retrieve the time of year 
information, bathymetry, and geo-acoustic properties (e.g. hard rock, 
sand, mud) along propagation transects radiating from the sound source. 
Transects are run along compass points (45[deg], 90[deg], 135[deg], 
180[deg], 225[deg], 270[deg], 315[deg], and 360[deg]) to determine 
received sound levels at a given location. These values are then summed 
across frequencies to provide broadband received levels at the MMPA 
Level A and Level B harassment thresholds as described in Table 1. The 
representative area ensonified to the MMPA Level B threshold for DP 
vessel thruster use during cable installation was used to estimate 
take. The distances to the MMPA thresholds were used to conservatively 
estimate how many marine mammals would receive a specified amount of 
sound energy in a given time period and to support the development of 
monitoring and/or mitigation measures.
    DWBI used a ZOI of 25 km\2\ and a maximum installation period of 28 
days to estimate take from use of the DP vessel thruster during cable 
installation. The ZOI represents the average daily ensonified area 
(using an average modeled distance to the 120 dB re 1 [mu]Pa (rms) 
isopleth of approximately 2.7 km) across the three representative water 
depths along the 13.2-km cable route. DWBI expects cable installation 
to occur between May and October. To be conservative, take calculations 
were based on the highest seasonal species density when cable 
installation may occur (see Table 3). The resulting take estimates 
(rounded to the nearest whole number) based upon these conservative 
assumptions for North Atlantic right, humpback, fin, and minke whales, 
as well as, short-beaked common and Atlantic white-sided dolphins, 
harbor porpoise, and harbor and gray seals are presented in Table 3. 
These numbers represent less than 1.5 percent of the stock for these 
species, respectively (Table 3). These percentages are the upper 
boundary of the animal population that could be affected.

                   Table 3--DWBI's Estimated Take for DP Thruster Use During the BIWF Project
----------------------------------------------------------------------------------------------------------------
                                                                      Maximum
                                                                     seasonal                      Percentage of
                             Species                                  density     Estimated take       stock
                                                                    (Number/100      (Number)       potentially
                                                                      km\2\)                         affected
----------------------------------------------------------------------------------------------------------------
North Atlantic Right Whale......................................            0.07               1            0.22
Humpback Whale..................................................            0.11               2            0.24
Fin Whale.......................................................            2.15              23            1.42
Minke Whale.....................................................            0.44               5            0.02
Short-beaked Common Dolphin.....................................            8.21              87            0.07
Atlantic White-sided Dolphin....................................            7.46              79            0.16
Harbor Porpoise.................................................            0.74               8            0.01
Harbor Seal.....................................................          * 9.74             110            0.15
Gray Seal.......................................................         * 14.16             160            0.05
----------------------------------------------------------------------------------------------------------------
* An 80 percent reduction factor for harbor and gray seal densities was applied in the proposed IHA based on the
  presumption that original density estimates for the project area were an overestimation because they included
  breeding populations of Cape Cod (Schroeder, 2000; Ronald and Gots, 2003). NMFS has since determined that the
  findings used to inform that reduction factor are outdated and do not accurately reflect the average annual
  rate of population increase (especially for gray seal). Therefore, NMFS no longer considers this reduction
  factor appropriate for calculating takes for harbor and gray seals.

    DWBI's requested take numbers are provided in Table 3 and this is 
also the number of takes NMFS has authorized. DWBI's take calculations 
do not take into account whether a single animal is harassed multiple 
times or whether each exposure is a different animal. Therefore, the 
numbers in Table 3 are the maximum number of animals that may be 
harassed during the cable installation activities (i.e., DWBI assumes 
that each exposure event is a different animal). These estimates do not 
account for prescribed mitigation measures that DWBI would implement 
during the specified activities and the fact that powerdown procedures 
shall be implemented if an animal enters the Level B harassment zone 
(160 dB), further reducing the potential for any takes to occur during 
these activities.
    DWBI did not request, and NMFS is not proposing, take from vessel 
strike. We do not anticipate marine mammals to be impacted by vessel 
movement because a limited number of vessels would be involved in 
construction activities and they would mostly move at slow speeds 
during DP vessel thruster use during cable installation activities. 
However, DWBI shall implement measures (e.g., vessel speed restrictions 
and separation distances; see Mitigation Measures) to further minimize 
potential impacts to marine mammals from vessel strikes during vessel 
operations and transit in the project area.

[[Page 42326]]

Analysis and Determinations

Negligible Impact

    Negligible impact is ``an impact resulting from the specified 
activity that cannot be reasonably expected to, and is not reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival'' (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes, alone, is not 
enough information on which to base an impact determination, as the 
severity of harassment may vary greatly depending on the context and 
duration of the behavioral response, many of which would not be 
expected to have deleterious impacts on the fitness of any individuals. 
In determining whether the expected takes will have a negligible 
impact, in addition to considering estimates of the number of marine 
mammals that might be ``taken,'' NMFS must consider other factors, such 
as the likely nature of any responses (their intensity, duration, 
etc.), the context of any responses (critical reproductive time or 
location, migration, etc.), as well as the number and nature of 
estimated Level A harassment takes, the number of estimated 
mortalities, and the status of the species.
    To avoid repetition, the discussion of our analyses applies to all 
the species listed in Table 3, given that the anticipated effects of 
this activity on these different marine mammal stocks are expected to 
be similar. There is no information about the nature or severity of the 
impacts, or the size, status, or structure of any of these species or 
stocks that would lead to a different analysis for this activity.
    As discussed in the ``Potential Effects of the Specified Activity 
on Marine Mammals and Their Habitat'' section of the proposed IHA (81 
FR 22216; April 15, 2016; pages 22218-22224), permanent threshold 
shift, masking, non-auditory physical effects, and vessel strike are 
not expected to occur. There is some potential for limited temporary 
threshold shift (TTS); however, animals in the area would likely incur 
no more than brief hearing impairment (i.e., TTS) due to low source 
levels and the fact that most marine mammals would more likely avoid a 
loud sound source rather than swim in such close proximity as to result 
in TTS. Moreover, as the DP vessel is continually moving along the 
cable route over a 24-hour period, the area within the 120 dB isopleth 
is constantly moving (i.e., transient sound field) and shifting within 
a 24-hour period. Therefore, no single area in Rhode Island Sound will 
have noise levels above 120 dB for more than a few hours; once the DP 
vessel has moved through the cable-laying area, it is not likely to 
again, therefore reducing the likelihood of repeated impacts within the 
project area.
    Potential impacts to marine mammal habitat were discussed in the 
proposed IHA (see the ``Potential Effects of the Specified Activity on 
Marine Mammals and Their Habitat'' section) (81 FR 22216; April 15, 
2016; pages 22218-22224). Marine mammal habitat may be impacted by 
elevated sound levels and some sediment disturbance, but these impacts 
would be temporary. Feeding behavior is not likely to be significantly 
impacted. Prey species are mobile, and are broadly distributed 
throughout the project area; therefore, marine mammals that may be 
temporarily displaced during cable installation activities are expected 
to be able to resume foraging once they have moved away from areas with 
disturbing levels of underwater noise. Because of the temporary nature 
of the disturbance, the availability of similar habitat and resources 
in the surrounding area, and the lack of important or unique marine 
mammal habitat, the impacts to marine mammals and the food sources that 
they utilize are not expected to cause significant or long-term 
consequences for individual marine mammals or their populations. There 
are no feeding areas known to be biologically important to marine 
mammals within the project area.
    There are no rookeries or mating grounds known to be biologically 
important to marine mammals within the project area. ESA-listed species 
for which takes are authorized are North Atlantic right, humpback, and 
fin whales. Recent estimates of abundance indicate a stable or growing 
humpback whale population, while examination of the minimum number 
alive population index calculated from the individual sightings 
database (as it existed on October 25, 2013) for the years 1990-2010 
suggests a positive and slowly accelerating trend in North Atlantic 
right whale population size (Waring et al., 2015). There are currently 
insufficient data to determine population trends for fin whale (Waring 
et al., 2015). There is no designated critical habitat for any ESA-
listed marine mammals within the project area, and none of the stocks 
for non-listed species authorized to be taken are considered 
``depleted'' or ``strategic'' by NMFS under the MMPA.
    The mitigation measures are expected to reduce the potential for 
exposure of marine mammals by reducing the DP thruster power if a 
marine mammal is observed within the 160 dB isopleth. Additional vessel 
strike avoidance requirements will further mitigate potential impacts 
to marine mammals during vessel transit in the study area. DWBI vessels 
associated with the BIWF construction will adhere to NMFS guidelines 
for marine mammal ship striking avoidance (available online at: http://www.nmfs.noaa.gov/pr/shipstrike/), including maintaining a distance of 
at least 1,500 feet from right whales and having dedicated protected 
species observers who will communicate with the captain to ensure that 
all measures to avoid whales are taken. NMFS believes that the size of 
right whales, their slow movements, and the amount of time they spend 
at the surface will make them extremely likely to be spotted by PSOs 
during construction activities within the project area.
    DWBI did not request, and NMFS is not authorizing, take of marine 
mammals by injury, serious injury, or mortality. NMFS expects that 
takes would mainly be in the form of short-term Level B behavioral 
harassment in the form of brief startling reaction and/or temporary 
vacating of the area, or temporary decreased foraging (if such activity 
were occurring)--reactions that are considered to be of low severity 
and with no lasting biological consequences (e.g., Southall et al., 
2007). This is largely due to the short time scale of the proposed 
activities and the nature of the DP vessel noise (i.e., low source 
level, constantly moving resulting in a transient sound field), as well 
as the required mitigation.
    Based on best available science, NMFS concludes that exposures to 
marine mammal species and stocks due to DWBI's DP vessel thruster use 
during cable installation activities would result in only short-term 
(temporary and short in duration) and relatively infrequent effects to 
individuals exposed, and not of the type or severity that would be 
expected to be additive for the very small portion of the stocks and 
species likely to be exposed. Given the intensity of the activities, 
and the fact that shipping contributes to the ambient sound levels in 
the surrounding waters, NMFS does not anticipate the authorized take 
estimates to impact annual rates of recruitment or survival. Animals 
may temporarily avoid the immediate area, but are not expected to 
permanently abandon the area. Major shifts in habitat use, 
distribution, or foraging success, are not expected
    Based on the analysis contained herein of the likely effects of the

[[Page 42327]]

specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from DWBI's DP 
vessel thruster use during cable installation activities will have a 
negligible impact on the affected marine mammal species or stocks.

Small Numbers

    The takes authorized for the cable installation activities 
utilizing DP vessel thrusters represent 0.22 percent of the Western 
North Atlantic (WNA) stock of North Atlantic right whale, 0.24 percent 
of the Gulf of Maine stock of humpback whale, 1.42 percent of the WNA 
stock of fin whale, 0.02 percent of the Canadian East Coast stock of 
minke whale, 0.07 percent of the WNA stock of short-beaked common 
dolphin, 0.16 percent of the WNA stock of Atlantic white-sided dolphin, 
0.01 percent of the Gulf of Maine/Bay of Fundy stock of harbor 
porpoise, 0.15 percent of the WNA stock of harbor seal, and 0.05 
percent of the North Atlantic stock of gray seal. These take estimates 
represent the percentage of each species or stock that could be taken 
by Level B behavioral harassment and represent extremely small numbers 
(less than 1.5 percent) relative to the affected species or stock 
sizes. Further, the take numbers are the maximum numbers of animals 
that are expected to be harassed during the project; it is possible 
that some of these exposures may occur to the same individual. 
Therefore, NMFS finds that small numbers of marine mammals will be 
taken relative to the populations of the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

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

Endangered Species Act

    Under section 7 of the ESA, the USACE (the federal permitting 
agency for the actual construction) consulted with NMFS' GARFO on the 
proposed BIWF project. NMFS also consulted internally on the issuance 
of an IHA under section 101(a)(5)(D) of the MMPA for this activity. The 
resultant Biological Opinion determined that the proposed action was 
not likely to jeopardize the continued existence of fin, humpback, and 
North Atlantic right whale. NMFS has determined that the 2015 
Biological Opinion remains valid and that the proposed MMPA 
authorization provides no new information about the effects of the 
action, nor does it change the extent of effects of the action, or any 
other basis to require reinitiation of the opinion. Therefore, the 2015 
Biological Opinion meets the requirements of section 7(a)(2) of the ESA 
and implementing regulations at 50 CFR 402 for our issuance of an IHA 
under the MMPA, and no further consultation is required.

National Environmental Policy Act

    NMFS conducted the required analysis under the National 
Environmental Policy Act (NEPA) and prepared an EA for its issuance of 
the original BIWF IHA, issuing a Finding of No Significant Impact 
(FONSI) for the action on August 21, 2014 (reaffirmed on June 9, 2015). 
The potential environmental impacts of issuance of the IHA are within 
the scope of the environmental impacts analyzed in NMFS' EA, which was 
used to support NMFS' FONSI. NMFS has determined that there are no 
substantial changes to the action or significant new circumstances or 
information relevant to environmental concerns which would require a 
supplement to the 2014 EA or preparation of a new NEPA document. 
Therefore, NMFS has determined that a new or supplemental EA or 
Environmental Impact Statement are unnecessary, and we shall rely on 
the existing EA and FONSI for this action.

Authorization

    As a result of these determinations, NMFS has issued an IHA to DWBI 
for cable installation activities that use DP vessel thrusters from May 
31, 2016, through May 30, 2017, provided the previously mentioned 
mitigation, monitoring, and reporting requirements are incorporated.

    Dated: June 24, 2016.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2016-15370 Filed 6-28-16; 8:45 am]
 BILLING CODE 3510-22-P