Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Transco Lower New York Bay Lateral (LNYBL) Natural Gas Pipeline Maintenance in Sandy Hook Channel, NJ, 20170-20182 [2024-05998]

Download as PDF 20170 Federal Register / Vol. 89, No. 56 / Thursday, March 21, 2024 / Notices The SEDAR 92 Atlantic Blueline Tilefish LS–TWG Data Scoping Webinar is scheduled for April 8, 2024, from 10 a.m. until 12 p.m., eastern. The established times may be adjusted as necessary to accommodate the timely completion of discussion relevant to the assessment process. Such adjustments may result in the meeting being extended from or completed prior to the time established by this notice. ADDRESSES: Meeting address: The meeting will be held via webinar. The webinar is open to members of the public. Registration for the webinar is available by contacting the SEDAR coordinator via email at Julie.Neer@safmc.net. SEDAR address: South Atlantic Fishery Management Council, 4055 Faber Place Drive, Suite 201, N Charleston, SC 29405; www.sedarweb.org. 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[FR Doc. 2024–06008 Filed 3–20–24; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [RTID 0648–XD583] Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Transco Lower New York Bay Lateral (LNYBL) Natural Gas Pipeline Maintenance in Sandy Hook Channel, NJ National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; issuance of an incidental harassment authorization. AGENCY: PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to Transcontinental Gas Pipe Line Company LLC (Transco), to incidentally harass marine mammals during construction activities associated with a natural gas pipeline stabilization project in Sandy Hook Channel, New Jersey (NJ). DATES: This authorization is effective from June 15, 2024, through June 14, 2025. ADDRESSES: Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/incidentaltake-authorizations-constructionactivities. In case of problems accessing these documents, please call the contact listed below. FOR FURTHER INFORMATION CONTACT: Kate Fleming, Office of Protected Resources, NMFS, (301) 427–8401. SUPPLEMENTARY INFORMATION: SUMMARY: Background The MMPA prohibits the ‘‘take’’ of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) 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 proposed or, if the taking is limited to harassment, a notice of a proposed IHA is provided to the public for review. Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other ‘‘means of effecting the least practicable adverse impact’’ on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to in shorthand as ‘‘mitigation’’); and requirements E:\FR\FM\21MRN1.SGM 21MRN1 20171 Federal Register / Vol. 89, No. 56 / Thursday, March 21, 2024 / Notices pertaining to the mitigation, monitoring and reporting of the takings are set forth. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below. Summary of Request On April 28, 2023, NMFS received a request from Transco for an IHA to take marine mammals incidental to pile driving activities associated with the LNYBL maintenance project in Sandy Hook Channel, NJ. On September 1, 2023 Transco submitted updates to the planned daily duration of pile driving and on October 27, 2023, Transco notified NMFS of changes to project timing. Following NMFS’ review of the application, discussions between NMFS and Transco, and reanalysis following the aforementioned project changes, the application was deemed adequate and complete on November 2, 2023. Transco’s request is for take of 11 species of marine mammal, by Level B harassment and, for a subset of 3 of these species, Level A harassment. Neither Transco nor NMFS expect serious injury or mortality to result from this activity and, therefore, an IHA is appropriate. There are no changes from the proposed IHA to the final IHA. Description of the Specified Activity Overview Transco plans to stabilize the LNYBL natural gas pipeline that extends 34 miles (mi) [55 kilometers (km)] in Raritan Bay, Lower New York Bay, and the Atlantic Ocean from Morgan, NJ to Long Beach, New York (NY). During routine monitoring of the existing LNYBL, Transco identified seven discrete sections of the gas pipeline with either limited cover or exposure resulting from dynamic conditions. The LNYBL maintenance project involves the maintenance of pipeline sections with seven corresponding ‘‘work areas’’ that encompass all in-water temporary work spaces within NY and NJ where project-related activities may cause sediment disturbance. To stabilize the pipeline, Transco will place rock over the pipeline at seven distinct work areas. At Work Area 3, near Sandy Hook Channel, NJ, Transco plans to install 960 sheet piles to provide additional stability and protection, and to mitigate future seabed lowering and erosion along the north flank of Sandy Hook Channel. Activities included as part of the project with potential to affect marine mammals include vibratory and impact pile driving of steel sheet piles at Work Area 3. The pile driving activities are expected to occur on 80 days between June and September 2024. Other in-water work described above will not cause take of marine mammals. A detailed description of the planned construction project is provided in the Federal Register notice for the proposed IHA (88 FR 84789, December 6, 2023). Since that time, no changes have been made to the planned activities. Therefore, a detailed description is not provided here. Please refer to that Federal Register notice for the description of the specific activity. all of this information, and we refer the reader to these descriptions, instead of reprinting the information. Additional information regarding population trends and threats may be found in NMFS’ Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/ national/marine-mammal-protection/ marine-mammal-stock-assessments) and more general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS’ website (https:// www.fisheries.noaa.gov/find-species). Table 1 lists all species or stocks for which take is expected and authorized for this activity, and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS’ SARs). While no serious injury or mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species or stocks and other threats. Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS’ stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS’ U.S. Atlantic and Gulf of Mexico SARs (Hayes et al., 2022; Hayes et al., 2023). All values presented in table 1 are available online at: https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/marinemammal-stock-assessments. Comments and Responses A notice of NMFS’ proposal to issue an IHA to Transco was published in the Federal Register on December 6, 2023 (88 FR 84789). That notice described, in detail, Transco’s activities, the marine mammal species that may be affected by the activities, and the anticipated effects on marine mammals. In that notice, we requested public input on the request for authorization described therein, our analyses, the proposed authorization, and any other aspect of the notice of proposed IHA, and requested that interested persons submit relevant information, suggestions, and comments. This proposed notice was available for a 30-day public comment period. During the 30-day public comment period, the United States Geological Survey noted that they have ‘‘no comment at this time.’’ NMFS received no other public comments. Description of Marine Mammals in the Area of Specified Activities Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history of the potentially affected species. NMFS fully considered TABLE 1—SPECIES LIKELY IMPACTED BY THE SPECIFIED ACTIVITIES lotter on DSK11XQN23PROD with NOTICES1 Common name Scientific name Stock I ESA/ MMPA status; strategic (Y/N) 1 I Stock abundance (CV, Nmin, most recent abundance survey) 2 Annual M/SI 3 PBR I I Order Artiodactyla—Infraorder Cetacea—Mysticeti (baleen whales) Family Balaenopteridae (rorquals): Fin Whale ......................... Humpback Whale ............. VerDate Sep<11>2014 Balaenoptera physalus ........... Megaptera novaeangliae ........ 16:53 Mar 20, 2024 Jkt 262001 PO 00000 Western N Atlantic ................. Gulf of Maine .......................... Frm 00011 Fmt 4703 Sfmt 4703 E, D, Y -, -, N 6,802 (0.24, 5,573, 2016) ...... 1,396 ...................................... E:\FR\FM\21MRN1.SGM 21MRN1 11 22 1.8 12.15 20172 Federal Register / Vol. 89, No. 56 / Thursday, March 21, 2024 / Notices TABLE 1—SPECIES LIKELY IMPACTED BY THE SPECIFIED ACTIVITIES—Continued Common name Minke Whale .................... ESA/ MMPA status; strategic (Y/N) 1 Scientific name Stock Balaenoptera acutorostrata .... Canadian Eastern Coastal ..... Stock abundance (CV, Nmin, most recent abundance survey) 2 Annual M/SI 3 PBR I-, -, N I21,968 (0.31, 17,002, 2016) .. I 170 I 10.6 Odontoceti (toothed whales, dolphins, and porpoises) Family Delphinidae: Atlantic White-sided Dolphin. Bottlenose Dolphin ........... Common Dolphin ............. Atlantic Spotted Dolphin ... Family Phocoenidae (porpoises): Harbor Porpoise ............... Lagenorhynchus acutus ......... Western N Atlantic ................. -, -, N 93,233 (0.71, 54,443, 2016) .. 544 27 Tursiops truncatus .................. -, -, Y -, -, N 6,639, (0.41, 4,759, 2016) ..... 62,851 (0.23, 51,914, 2016) .. 48 519 12.2–21.5 28 Delphinus delphis ................... Stenella frontalis ..................... Northern Migratory Coastal .... Western North Atlantic Offshore. Western N Atlantic ................. Western N Atlantic ................. -, -, N -, -, N 172,974 (0.21, 145,216, 2016) 39,921 (0.27, 32,032, 2016) .. 1,452 320 390 0 Phocoena phocoena .............. Gulf of Maine/Bay of Fundy ... -, -, N 95,543 (0.31, 74,034, 2016) .. 851 164 -, -, N -, -, N -, -, N 7.6M (UNK, 7.1M, 2019) ........ 61,336 (0.08, 57,637, 2018) .. 27,300 (0.22, 22,785, 2016) .. 426,000 1,729 1,458 178,573 339 4,453 Order Carnivora—Pinnipedia Family Phocidae (earless seals): Harp Seal ......................... Harbor Seal ...................... Gray Seal 4 ....................... Pagophilus groenlandicus ...... Phoca vitulina ......................... Halichoerus grypus ................ Western N Atlantic ................. Western N Atlantic ................. Western N Atlantic ................. I I I I 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessmentreports. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. 3 These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, vessel strike). Annual Mortality and Serious Injury (M/SI) often cannot be determined precisely and is in some cases presented as a minimum value or range. 4 This stock abundance estimate is only for the U.S. portion of this stock. The actual stock abundance, including the Canadian portion of the population, is estimated to be approximately 424,300 animals. The PBR value listed here is only for the U.S. portion of the stock, while M/SI reflects both the Canadian and U.S. portions. A detailed description of the species likely to be affected by the Transco LNYBL Maintenance project, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the Federal Register notice for the proposed IHA (88 FR 84789, December 6, 2023); since that time, we are not aware of any changes in the status of these species and stocks; therefore, detailed descriptions are not provided here. Please refer to that Federal Register notice for these descriptions. Please also refer to NMFS’ website (https:// www.fisheries.noaa.gov/find-species) for generalized species accounts. Marine Mammal Hearing Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Not all marine mammal species have equal hearing capabilities (e.g., Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al., (2007, 2019) recommended that marine mammals be divided into hearing groups based on directly measured (behavioral or auditory evoked potential techniques) or estimated hearing ranges (behavioral response data, anatomical modeling, etc.). Note that no direct measurements of hearing ability have been successfully completed for mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 decibel (dB) threshold from the normalized composite audiograms, with the exception for lower limits for lowfrequency cetaceans where the lower bound was deemed to be biologically implausible and the lower bound from Southall et al., (2007) retained. Marine mammal hearing groups and their associated hearing ranges are provided in table 2. TABLE 2—MARINE MAMMAL HEARING GROUPS [NMFS, 2018] lotter on DSK11XQN23PROD with NOTICES1 Hearing group Generalized hearing range * Low-frequency (LF) cetaceans (baleen whales) ......................................................................................................... Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) .............................. High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, Cephalorhynchid, Lagenorhynchus cruciger & L. australis). Phocid pinnipeds (PW) (underwater) (true seals) ....................................................................................................... VerDate Sep<11>2014 16:53 Mar 20, 2024 Jkt 262001 PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 E:\FR\FM\21MRN1.SGM 21MRN1 7 Hz to 35 kHz. 150 Hz to 160 kHz. 275 Hz to 160 kHz. 50 Hz to 86 kHz. Federal Register / Vol. 89, No. 56 / Thursday, March 21, 2024 / Notices 20173 TABLE 2—MARINE MAMMAL HEARING GROUPS—Continued [NMFS, 2018] Hearing group Generalized hearing range * Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) .................................................................................. 60 Hz to 39 kHz. * Represents the generalized hearing range for the entire group as a composite (i.e., all species within the group), where individual species’ hearing ranges are typically not as broad. Generalized hearing range chosen based on ∼65 dB threshold from normalized composite audiogram, with the exception for lower limits for LF cetaceans (Southall et al., 2007) and PW pinniped (approximation). The pinniped functional hearing group was modified from Southall et al., (2007) on the basis of data indicating that phocid species have consistently demonstrated an extended frequency range of hearing compared to otariids, especially in the higher frequency range (Hemila¨ et al., 2006; Kastelein et al., 2009; Reichmuth et al., 2013). For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. lotter on DSK11XQN23PROD with NOTICES1 Potential Effects of Specified Activities on Marine Mammals and Their Habitat The effects of underwater noise from Transco’s construction activities have the potential to result in behavioral harassment of marine mammals in the vicinity of the project area. The notice of the proposed IHA (88 FR 84789, December 6, 2023) included a discussion of the effects of anthropogenic noise on marine mammals and the potential effects of underwater noise from Transco’s construction on marine mammals and their habitat. That information and analysis is incorporated by reference into this final IHA determination and is not repeated here; please refer to the notice of proposed IHA (88 FR 84789, December 6, 2023). Estimated Take of Marine Mammals This section provides an estimate of the number of incidental takes authorized through the IHA, which will inform both NMFS’ consideration of ‘‘small numbers,’’ and the negligible impact determinations. Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines ‘‘harassment’’ as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment). VerDate Sep<11>2014 16:53 Mar 20, 2024 Jkt 262001 Authorized takes will be by Level B harassment, as use of the acoustic sources (i.e., impact and vibratory pile driving) has the potential to result in disruption of behavioral patterns for individual marine mammals. There is also some potential for auditory injury (Level A harassment) to result for phocids because predicted auditory injury zones are relatively large, and seals are expected to be relatively common and are more difficult to detect at greater distances. The planned mitigation and monitoring measures are expected to minimize the severity of the taking to the extent practicable. As described previously, no serious injury or mortality is anticipated or authorized for this activity. Below we describe how the authorized take numbers are estimated. For acoustic impacts, generally speaking, we estimate take by considering: (1) acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) the number of days of activities. We note that while these factors can contribute to a basic calculation to provide an initial prediction of potential takes, additional information that can qualitatively inform take estimates is also sometimes available (e.g., previous monitoring results or average group size). Below, we describe the factors considered here in more detail and present the take estimates. Acoustic Thresholds NMFS recommends the use of acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals are reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur Permanent Threshold Shift (PTS) of some degree (equated to Level A harassment). Level B Harassment—Though significantly driven by received level, the onset of behavioral disturbance from PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 anthropogenic noise exposure is also informed to varying degrees by other factors related to the source or exposure context (e.g., frequency, predictability, duty cycle, duration of the exposure, signal-to-noise ratio, distance to the source), the environment (e.g., bathymetry, other noises in the area, predators in the area), and the receiving animals (hearing, motivation, experience, demography, life stage, depth) and can be difficult to predict (e.g., Southall et al., 2007, 2021, Ellison et al., 2012). Based on what the available science indicates and the practical need to use a threshold based on a metric that is both predictable and measurable for most activities, NMFS typically uses a generalized acoustic threshold based on received level to estimate the onset of behavioral harassment. NMFS generally predicts that marine mammals are likely to be behaviorally harassed in a manner considered to be Level B harassment when exposed to underwater anthropogenic noise above root-meansquared pressure received levels (RMS SPL) of 120 dB (referenced to 1 micropascal (re 1 mPa)) for continuous (e.g., vibratory pile driving, drilling) and above RMS SPL 160 dB re 1 mPa for nonexplosive impulsive (e.g., seismic airguns) or intermittent (e.g., scientific sonar) sources. Generally speaking, Level B harassment take estimates based on these behavioral harassment thresholds are expected to include any likely takes by Temporary Threshold Shift (TTS) as, in most cases, the likelihood of TTS occurs at distances from the source less than those at which behavioral harassment is likely. TTS of a sufficient degree can manifest as behavioral harassment, as reduced hearing sensitivity and the potential reduced opportunities to detect important signals (conspecific communication, predators, prey) may result in changes in behavior patterns that would not otherwise occur. Transco’s planned activity includes the use of continuous (vibratory pile driving) and impulsive (impact pile driving) sources, and therefore the RMS SPL thresholds of 120 and 160 dB re 1 mPa is/are applicable. E:\FR\FM\21MRN1.SGM 21MRN1 20174 Federal Register / Vol. 89, No. 56 / Thursday, March 21, 2024 / Notices Level A Harassment—NMFS’ Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or nonimpulsive). Transco’s planned activity includes the use of impulsive (impact pile driving) and non-impulsive (vibratory pile driving) sources. These thresholds are provided in the table below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS’ 2018 Technical Guidance, which may be accessed at: https://www.fisheries.noaa.gov/ national/marine-mammal-protection/ marine-mammal-acoustic-technicalguidance. TABLE 3—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT PTS onset acoustic thresholds * (received level) Hearing group Impulsive Low-Frequency (LF) Cetaceans .................................................... Mid-Frequency (MF) Cetaceans ................................................... High-Frequency (HF) Cetaceans .................................................. Phocid Pinnipeds (PW) (Underwater) ........................................... Otariid Pinnipeds (OW) (Underwater) ........................................... Cell Cell Cell Cell Cell 1: 3: 5: 7: 9: Lpk,flat: Lpk,flat: Lpk,flat: Lpk,flat: Lpk,flat: 219 230 202 218 232 dB; dB; dB; dB; dB; Non-impulsive LE,LF,24h: 183 dB ...................................... LE,MF,24h: 185 dB ..................................... LE,HF,24h: 155 dB ...................................... LE,PW,24h: 185 dB ..................................... LE,OW,24h: 203 dB ..................................... Cell Cell Cell Cell Cell 2: LE,LF,24h: 199 dB. 4: LE,MF,24h: 198 dB. 6: LE,HF,24h: 173 dB. 8: LE,PW,24h: 201 dB. 10: LE,OW,24h: 219 dB. * Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be considered. Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s. In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ‘‘flat’’ is being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be exceeded. Ensonified Area Here, we describe operational and environmental parameters of the activity that are used in estimating the area ensonified above the acoustic thresholds, including source levels and transmission loss coefficient. The sound field in the project area is the existing background noise plus additional construction noise from the planned project. Marine mammals are expected to be affected via sound generated by the primary components of the project (i.e., pile driving). The project includes vibratory and impact pile driving. Source levels for these activities are based on reviews of measurements of the same or similar types and dimensions of piles available in the literature. Source levels for each pile size and activity are presented in table 4. Source levels for vibratory installation and removal of piles of the same diameter are assumed to be the same. TABLE 4—ESTIMATES OF MEAN UNDERWATER SOUND LEVELS GENERATED DURING VIBRATORY AND IMPACT PILE INSTALLATION OF 36-INCH STEEL SHEET PILE Hammer type dB rms Vibratory * .............................................................................. Impact * .................................................................................. dB SEL **182 190 dB peak N/A 180 N/A 205 Literature source Quijano et al., 2018. Caltrans, 2015. Note: dB peak = peak sound level; rms = root mean square; SEL = sound exposure level. * Vibratory source levels are referenced at 1 m and the impact source levels are referenced at 10 m. ** Since vibratory pile installation is a continuous, non-impulsive source, it was assumed that the dB rms source levels are the same as the dB SEL source level reported in Quijano et al. (2018). lotter on DSK11XQN23PROD with NOTICES1 Transmission loss (TL) is the decrease in acoustic intensity as an acoustic pressure wave propagates out from a source. TL parameters vary with frequency, temperature, sea conditions, current, source and receiver depth, water depth, water chemistry, and bottom composition and topography. The general formula for underwater TL is: TL = B * Log10 (R1/R2), where TL = transmission loss in dB B = transmission loss coefficient R1 = the distance of the modeled SPL from the driven pile, and R2 = the distance from the driven pile of the initial measurement Absent site-specific acoustical monitoring with differing measured VerDate Sep<11>2014 16:53 Mar 20, 2024 Jkt 262001 transmission loss, a practical spreading value of 15 is used as the transmission loss coefficient in the above formula. Site-specific transmission loss data for the Raritan Bay is not available; therefore, the default coefficient of 15 is used to determine the distances to the harassment thresholds. The ensonified area associated with Level A harassment is more technically challenging to predict due to the need to account for a duration component. Therefore, NMFS developed an optional User Spreadsheet tool to accompany the Technical Guidance that can be used to relatively simply predict an isopleth distance for use in conjunction with marine mammal density or occurrence to help predict potential takes. We note PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 that because of some of the assumptions included in the methods underlying this optional tool, we anticipate that the resulting isopleth estimates are typically going to be overestimates of some degree, which may result in an overestimate of potential take by Level A harassment. However, this optional tool offers the best way to estimate isopleth distances when more sophisticated modeling methods are not available or practical. For stationary sources such as pile driving, the optional User Spreadsheet tool predicts the distance at which, if a marine mammal remained at that distance for the duration of the activity, it will be expected to incur PTS. Inputs used in the optional User Spreadsheet tool, and E:\FR\FM\21MRN1.SGM 21MRN1 Federal Register / Vol. 89, No. 56 / Thursday, March 21, 2024 / Notices the resulting estimated isopleths, are reported below (table 5). The resulting estimated isopleths and the calculated 20175 Level B harassment isopleths are reported in table 6. TABLE 5—USER SPREADSHEET INPUTS Spreadsheet tab used A.1) Vibratory pile driving E.1) Impact pile driving Source level (SPL) 182 RMS 180 SEL 36-inch steel sheet piles Transmission Loss Coefficient ..................................................................................................................... Weighting Factor Adjustment (kHz) ............................................................................................................. Activity Duration per pile (minutes) ............................................................................................................. Number of strikes per pile ........................................................................................................................... Number of piles per day .............................................................................................................................. Distance of sound pressure level measurement ......................................................................................... 15 2.5 10 .............................. 12 1 15 2 N/A 520 12 10 TABLE 6—LEVEL A HARASSMENT AND LEVEL B HARASSMENT ISOPLETHS Level A harassment isopleths (m) | area of harassment zone (km2) * Hammer type LF MF I HF I I PW Level B harassment isopleth (m) | area of harassment zone (km2) * 36-inch Steel Sheet Piles Vibratory Pile Driving .............................................................. Impact Pile Driving .................................................................. 27.2 2,135.6 | 18.99 2.4 76.0 | 0.30 40.3 2,543.9 | 25.23 16.6 1,142.9 | 7.72 13,594 | 426.13 1,000 * Harassment zone areas are clipped by viewshed. Marine Mammal Occurrence In this section we provide information about the occurrence of marine mammals, including density or other relevant information which will inform the take calculations. Transco applied the Duke University Marine Geospatial Ecology Laboratory marine mammal habitat-based density models (https://seamap.env.duke.edu/ models/Duke/EC/) to estimate take from vibratory and impact pile driving (Roberts et al., 2016; Roberts et al., 2023). These density data incorporate aerial and shipboard line-transect data from NMFS and other organizations and incorporate data from 8 physiographic and 16 dynamic oceanographic and biological covariates, and control for the influence of sea state, group size, availability bias, and perception bias on the probability of making a sighting. These density models were originally developed for all cetacean taxa in the U.S. Atlantic (Roberts et al., 2016). Most recently, all models were updated in 2022 based on additional data as well as certain methodological improvements. More information is available online at https://seamap.env.duke.edu/models/ Duke/EC/. Marine mammal density estimates in the project area (animals/ km2) were obtained using the most recent model results for all taxa (Roberts et al., 2023). For each species, the average monthly density (June–September) near work area 3, Sandy Hook Channel, was calculated (table 7). Specifically, in a Geographic Information Systems, density rasters were clipped to polygons representing the zone of influence for Level A harassment zones for each hearing group and the largest Level B harassment zone, which applies to all hearing groups. Densities in Roberts et al., (2023) are provided in individuals per 100 square km, however they were converted to individuals per square km for ease of calculation. The monthly maximum density of individuals per square km for each zone of influence was averaged over the months of June to September near work area 3 to provide a single density estimate for each species or species group. The available density information provides densities for seals as a guild due to difficulty in distinguishing these species at sea. Similarly, density information for bottlenose dolphins does not differentiate between stocks. The resulting density values (table 7) were used to calculate take estimates of marine mammals for sheet pile installation activities. Note that other data sources were evaluated for pinnipeds (e.g., Save Coastal Wildlife reports) but were found unsuitable due to data quality and applicability. TABLE 7—AVERAGE MONTHLY DENSITY OF SPECIES IN THE PROJECT AREA lotter on DSK11XQN23PROD with NOTICES1 [June–September] Average monthly density (individual/km2) used in Level B take calculations at work area 3, Sandy Hook Channel (June–September) Species Fin Whale ............................................................................................................. VerDate Sep<11>2014 17:44 Mar 20, 2024 Jkt 262001 PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 1.41361E–04 E:\FR\FM\21MRN1.SGM 21MRN1 Average monthly density (individual/km2) used in Level A take calculations at work area 3, Sandy Hook Channel (June–September) 4.53952E–06 20176 Federal Register / Vol. 89, No. 56 / Thursday, March 21, 2024 / Notices TABLE 7—AVERAGE MONTHLY DENSITY OF SPECIES IN THE PROJECT AREA—Continued [June–September] Average monthly density (individual/km2) used in Level A take calculations at work area 3, Sandy Hook Channel (June–September) Average monthly density (individual/km2) used in Level B take calculations at work area 3, Sandy Hook Channel (June–September) Species Humpback Whale ................................................................................................ Minke Whale ........................................................................................................ Atlantic white-sided dolphin ................................................................................. Bottlenose dolphin ............................................................................................... Harbor porpoise ................................................................................................... Common dolphin .................................................................................................. Atlantic Spotted Dolphin ...................................................................................... Harp Seals, Gray Seals, Harbor Seals ............................................................... Take Estimation Here we describe how the information provided above is synthesized to produce a quantitative estimate of the take that is reasonably likely to occur and authorized. Take estimates are the product of density, ensonified area, and number of days of pile driving work. Specifically, take estimates are calculated by multiplying the expected densities of marine mammals in the activity area(s) by the area of water likely to be ensonified above the NMFS defined threshold levels in a single day (24-hour period). Transco used the construction method that produced the largest isopleth to estimate exposure of marine mammal noise impacts (i.e., the largest ensonified area estimated for vibratory pile driving was used to estimate potential takes by Level B harassment, and the hearing group-specific ensonified areas estimated for impact pile driving were used to estimate potential Level A harassment). Next, that product is multiplied by the number of days vibratory or impact pile driving is likely to occur. The exposure estimate was rounded to the nearest whole number at the end of the calculation. A summary of this method is illustrated in the following formula: 9.37889E–05 2.34113E–04 4.97340E–05 1.88295E–01 1.64816E–04 5.91282E–04 2.38665E–04 0.11387 Estimated Take = D × ZOI × # of construction days Where: D = density estimate for each species within the ZOI ZOI = maximum daily ensonified area (km2) to relevant thresholds For bottlenose dolphins, the density data presented by Roberts et al., (2023) does not differentiate between bottlenose dolphin stocks. Thus, the take estimate for bottlenose dolphins calculated by the method described above resulted in an estimate of the total number of bottlenose dolphins expected to be taken, from all stocks (for a total of 6,419 takes by Level B harassment). However, as described above, both the Western North Atlantic Northern Migratory Coastal stock and the Western North Atlantic Offshore stock have the potential to occur in the project area. Because approximately 95 percent of the project area occurs in waters shallower than 20 m, we assign take to stock accordingly. Thus, we assume that 95 percent of the total authorized bottlenose dolphin takes will accrue to the Western North Atlantic Offshore stock (total 6,098 takes by Level B harassment), and 5 percent to the Western North Atlantic Northern 2.14387E–05 3.12779E–05 6.98975E–07 4.76450E–02 3.27277E–05 1.24663E–05 8.76649E–07 0.11130 Migratory Coastal stock (total 321 takes by Level B harassment) (table 8). Additional data regarding average group sizes from survey effort in the region was considered to ensure adequate take estimates are evaluated. Take estimates for several species were adjusted based upon average groups sizes derived from NOAA Atlantic Marine Assessment Program for Protected Species data from 2010–2019 shipboard distance sampling surveys (Palka et al., 2021). This is particularly true for uncommon or rare species with very low densities in the models. These calculated take estimates were adjusted for these species as follows: • Atlantic white-sided dolphin: Only 1 take by Level B harassment was estimated but takes authorized were increased to the average number of dolphins in a group reported in Palka et al., 2021 (n = 12); • Common dolphin: Only 26 takes were estimated but authorized takes were increased to the average number of dolphins in a group reported in Palka et al., 2021 (n = 30); • Atlantic spotted dolphin: Only 9 takes were estimated but authorized takes were increased to the average number of dolphins in a group reported in Palka et al., 2021 (n = 24); TABLE 8—AUTHORIZED TAKE BY STOCK AND HARASSMENT TYPE AND AS A PERCENTAGE OF STOCK ABUNDANCE lotter on DSK11XQN23PROD with NOTICES1 Authorized take Species Stock Fin Whale ......................................................... Humpback Whale ............................................. Minke Whale .................................................... Atlantic White-sided Dolphin ............................ Bottlenose Dolphin ........................................... Western North Atlantic .................................... Gulf of Maine .................................................. Canadian East Coast ...................................... Western North Atlantic .................................... Northern Migratory Coastal ............................. Western North Atlantic Offshore ..................... Gulf of Maine/Bay of Fundy ............................ Western North Atlantic .................................... Western North Atlantic .................................... Western North Atlantic .................................... Western North Atlantic .................................... Harbor Porpoise ............................................... Common Dolphin ............................................. Atlantic Spotted Dolphin ................................... Harbor Seal ...................................................... Gray Seal ......................................................... VerDate Sep<11>2014 16:53 Mar 20, 2024 Jkt 262001 PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 Level B harassment Level A harassment 5 3 8 12 6,098 321 6 30 24 3,813 0 0 0 0 0 0 0 0 0 69 E:\FR\FM\21MRN1.SGM 21MRN1 Take as a percentage of stock abundance <1 <1 <1 <1 92 <1 <1 <1 <1 6.3 <1 20177 Federal Register / Vol. 89, No. 56 / Thursday, March 21, 2024 / Notices TABLE 8—AUTHORIZED TAKE BY STOCK AND HARASSMENT TYPE AND AS A PERCENTAGE OF STOCK ABUNDANCE— Continued Authorized take Species Stock Harp Seal ......................................................... Western North Atlantic .................................... Mitigation In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, and their habitat (50 CFR 216.104(a)(11)). In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, NMFS considers two primary factors: (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (probability implemented as planned), and; (2) The practicability of the measures for applicant implementation, which may consider such things as cost, and impact on operations. Transco has indicated that pile driving will be conducted between June 15 and September 15, a time of year when North Atlantic Right Whales are unlikely to occur near the project area. Transco will implement the following mitigation requirements: Shutdown Zones—For all pile driving activities, Transco will implement shutdowns within designated zones. The purpose of a shutdown zone is generally to define an area within which shutdown of the activity will occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area). Shutdown zones vary based on the activity type and marine mammal hearing group (table 9). In most cases, the shutdown zones are based on the estimated Level A harassment isopleth distances for each hearing group. However, in cases where it will be challenging to detect marine mammals at the Level A harassment isopleth and frequent shutdowns are expected to create practicability Level B harassment Level A harassment Take as a percentage of stock abundance <1 concerns (e.g., for phocids during impact pile driving), smaller shutdown zones have been established (table 9). Additionally, Transco has agreed to implement a minimum shutdown zone of 60 m during all pile driving activities. Finally, construction supervisors and crews, Protected Species Observers (PSOs), and relevant Transco staff must avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 10 m of such activity, operations must cease and vessels must reduce speed to the minimum level required to maintain steerage and safe working conditions, as necessary to avoid direct physical interaction. If an activity is delayed or halted due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown zone indicated in table 9 or 15 minutes have passed without redetection of the animal. Construction activities must be halted upon observation of a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met entering or within the harassment zone. In the case of North Atlantic right whale, construction activities must be halted upon observation of this species at any distance, regardless of its proximity to a harassment zone. TABLE 9—SHUTDOWN ZONES Shutdown zones (m) Activity Pile type lotter on DSK11XQN23PROD with NOTICES1 North Atlantic right whale Vibratory Installation ............. 36-inch sheet ....................... Any distance ........................ Impact Installation ................ .............................................. .............................................. Protected Species Observers—The number and placement of PSOs during all construction activities (described in the Monitoring and Reporting section) will ensure that the entire shutdown zone is visible. Transco will employ at VerDate Sep<11>2014 16:53 Mar 20, 2024 Jkt 262001 least two PSOs for all pile driving activities. Monitoring for Level A and Level B harassment—PSOs will monitor the shutdown zones and beyond to the extent that PSOs can see. Monitoring beyond the shutdown zones enables PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 Low frequency MidHigh Phocid I frequency I frequency I 60 1,000 I 80 I 200 I 150 observers to be aware of and communicate the presence of marine mammals in the project areas outside the shutdown zones and thus prepare for a potential cessation of activity should the animal enter the shutdown zone. If a marine mammal enters either E:\FR\FM\21MRN1.SGM 21MRN1 lotter on DSK11XQN23PROD with NOTICES1 20178 Federal Register / Vol. 89, No. 56 / Thursday, March 21, 2024 / Notices harassment zone, PSOs will document the marine mammal’s presence and behavior. Pre-Activity Monitoring—Prior to the start of daily in-water construction activity, or whenever a break in pile driving of 30 minutes or longer occurs, PSOs will observe the shutdown, Level A harassment, and Level B harassment zones for a period of 30 minutes. Prestart clearance monitoring must be conducted during periods of visibility sufficient for the lead PSO to determine that the shutdown zones are clear of marine mammals. If the shutdown zone is obscured by fog or poor lighting conditions, in-water construction activity will not be initiated until the entire shutdown zone is visible. Pile driving may commence following 30 minutes of observation when the determination is made that the shutdown zones are clear of marine mammals. If a marine mammal is observed entering or within shutdown zones, pile driving activity must be delayed or halted. If pile driving is delayed or halted due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown zone or 15 minutes have passed without re-detection of the animal. If a marine mammal for which Level B harassment take is authorized is present in the Level B harassment zone, activities may begin. Soft-Start—The use of soft-start procedures are believed to provide additional protection to marine mammals by providing warning and/or giving marine mammals a chance to leave the area prior to the hammer operating at full capacity. For impact pile driving, contractors are be required to provide an initial set of three strikes from the hammer at reduced energy, with each strike followed by a 30second waiting period. This procedure will be conducted a total of three times before impact pile driving begins. Soft start will be implemented at the start of each day’s impact pile driving and at any time following cessation of impact pile driving for a period of 30 minutes or longer. Soft start is not required during vibratory pile driving activities. Based on our evaluation of the applicant’s planned measures, as well as other measures considered by NMFS, NMFS has determined that the listed mitigation measures provide the means of effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. VerDate Sep<11>2014 16:53 Mar 20, 2024 Jkt 262001 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 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 while conducting the activities. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring. Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following: • Occurrence of marine mammal species or stocks in the area in which take is anticipated (e.g., presence, abundance, distribution, density); • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the activity; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas); • Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors; • How anticipated responses to stressors impact either: (1) long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks; • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat); and, • Mitigation and monitoring effectiveness. Visual Monitoring—Marine mammal monitoring during pile driving activities must be conducted by NMFS-approved PSOs in a manner consistent with the following: • PSOs must be independent of the activity contractor (for example, employed by a subcontractor), and have PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 no other assigned tasks during monitoring periods; • At least one PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization; • Other PSOs may substitute other relevant experience, education (degree in biological science or related field) or training for experience performing the duties of a PSO during construction activities pursuant to a NMFS-issued incidental take authorization; • Where a team of three or more PSOs is required, a lead observer or monitoring coordinator will be designated. The lead observer will be required to have prior experience working as a marine mammal observer during construction activity pursuant to a NMFS-issued incidental take authorization; and, • PSOs must be approved by NMFS prior to beginning any activity subject to this IHA. PSOs should also have the following additional qualifications: • Ability to conduct field observations and collect data according to assigned protocols; • Experience or training in the field identification of marine mammals, including identification of behaviors; • Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations; • Writing skills sufficient to prepare a report of observations including, but not limited to, the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior; and, • Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary. Visual monitoring will be conducted by a minimum of two trained PSOs positioned at suitable vantage points on or near the maintenance barge. One PSO will have an unobstructed view of all water within the shutdown zone. Remaining PSOs will observe as much as the Level A and Level B harassment zones as possible. Monitoring will be conducted 30 minutes before, during, and 30 minutes after all inwater construction activities. In addition, PSOs will record all incidents of marine mammal occurrence, regardless of distance from activity, and will document any E:\FR\FM\21MRN1.SGM 21MRN1 Federal Register / Vol. 89, No. 56 / Thursday, March 21, 2024 / Notices lotter on DSK11XQN23PROD with NOTICES1 behavioral reactions in concert with distance from piles being driven or removed. Pile driving activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than 30 minutes. Reporting Transco will submit a draft marine mammal monitoring report to NMFS within 90 days after the completion of pile driving activities, or 60 days prior to a requested date of issuance of any future IHAs for the project, or other projects at the same location, whichever comes first. The marine mammal monitoring report will include an overall description of work completed, a narrative regarding marine mammal sightings, and associated PSO data sheets. Specifically, the report will include: • Dates and times (begin and end) of all marine mammal monitoring; • Construction activities occurring during each daily observation period, including: (1) The number and type of piles that were driven and the method (e.g., impact or vibratory); and, (2) Total duration of driving time for each pile (vibratory driving) and number of strikes for each pile (impact driving); • PSO locations during marine mammal monitoring; • Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance; • Upon observation of a marine mammal, the following information: (1) Name of PSO who sighted the animal(s) and PSO location and activity at time of sighting; (2) Time of sighting; (3) Identification of the animal(s) (e.g., genus/species, lowest possible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species; (4) Distance and location of each observed marine mammal relative to the pile being driven for each sighting; (5) Estimated number of animals (min/max/best estimate); (6) Estimated number of animals by cohort (adults, juveniles, neonates, group composition, etc.); (7) Animal’s closest point of approach and estimated time spent within the harassment zone; (8) Description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses thought to have resulted from VerDate Sep<11>2014 16:53 Mar 20, 2024 Jkt 262001 the activity (e.g., no response or changes in behavioral state such as ceasing feeding, changing direction, flushing, or breaching); • Number of marine mammals detected within the harassment zones, by species; and, • Detailed information about implementation of any mitigation (e.g., shutdowns and delays), a description of specific actions that ensued, and resulting changes in behavior of the animal(s), if any. A final report must be prepared and submitted within 30 calendar days following receipt of any NMFS comments on the draft report. If no comments are received from NMFS within 30 calendar days of receipt of the draft report, the report shall be considered final. All PSO data will be submitted electronically in a format that can be queried such as a spreadsheet or database and will be submitted with the draft marine mammal report. In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Holder must report the incident to the Office of Protected Resources (OPR), NMFS (PR.ITP.MonitoringReports@ noaa.gov and itp.fleming@noaa.gov) and Greater Atlantic Region New England/ Mid-Atlantic Regional Stranding Coordinator (978–282–8478 or 978– 281–9291) as soon as feasible. If the death or injury was clearly caused by the specified activity, the Holder must immediately cease the activities until NMFS OPR is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of this IHA. The Holder must not resume their activities until notified by NMFS. The report must include the following information: • Time, date, and location (latitude/ longitude) of the first discovery (and updated location information if known and applicable); • Species identification (if known) or description of the animal(s) involved; • Condition of the animal(s) (including carcass condition if the animal is dead); • Observed behaviors of the animal(s), if alive; • If available, photographs or video footage of the animal(s); and • General circumstances under which the animal was discovered. Negligible Impact Analysis and Determination NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 20179 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. In addition to considering estimates of the number of marine mammals that might be ‘‘taken’’ through harassment, NMFS considers other factors, such as the likely nature of any impacts or responses (e.g., intensity, duration), the context of any impacts or responses (e.g., critical reproductive time or location, foraging impacts affecting energetics), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS’ implementing regulations (54 FR 40338, September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels). To avoid repetition, the majority of our analysis applies to all the species listed in table 1, given that many of the anticipated effects of this project on different marine mammal stocks are expected to be relatively similar in nature. Where there are meaningful differences between species or stocks, or groups of species, in anticipated individual responses to activities, impact of expected take on the population due to differences in population status, or impacts on habitat, they are described independently in the analysis below. Pile driving associated with the Transco LNYBL maintenance project, as outlined previously, has the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level B harassment and, for some species, Level A harassment, from underwater sounds generated by pile driving. No serious injury or mortality is expected, even in the absence of required mitigation measures, given the nature of the activities. Further, no take by Level A harassment is anticipated for low-frequency, mid-frequency, or highfrequency cetaceans. The potential for E:\FR\FM\21MRN1.SGM 21MRN1 lotter on DSK11XQN23PROD with NOTICES1 20180 Federal Register / Vol. 89, No. 56 / Thursday, March 21, 2024 / Notices harassment will be minimized through the implementation of planned mitigation measures (see Mitigation section). Take by Level A harassment is expected for pinnipeds (harbor seal, harp seal, and gray seal). Any take by Level A harassment is expected to arise from, at most, a small degree of PTS (i.e., minor degradation of hearing capabilities within regions of hearing that align most completely with the energy produced by impact pile driving such as the low-frequency region below 2 kilohertz (kHz), not severe hearing impairment or impairment within the ranges of greatest hearing sensitivity. Animals would need to be exposed to higher levels and/or longer duration than are expected to occur here in order to incur any more than a small degree of PTS. Further, the amount of take authorized by Level A harassment is very low for all marine mammal stocks and species. For 8 species, NMFS anticipates no Level A harassment take over the duration of Transco’s planned activities; for pinnipeds, NMFS expects no more than 69 takes by Level A harassment across all 3 pinniped species (harbor seal, gray seal, harp seal). If hearing impairment occurs, it is most likely that the affected animal would lose only a few decibels in its hearing sensitivity. Due to the small degree anticipated, any PTS potential incurred would not be expected to affect the reproductive success or survival of any individuals, much less result in adverse impacts on the species or stock. Additionally, some subset of the individuals that are behaviorally harassed could also simultaneously incur some small degree of TTS for a short duration of time. However, since the hearing sensitivity of individuals that incur TTS is expected to recover completely within minutes to hours, it is unlikely that the brief hearing impairment would affect the individual’s long-term ability to forage and communicate with conspecifics, and would therefore not likely impact reproduction or survival of any individual marine mammal, let alone adversely affect rates of recruitment or survival of the species or stock. As described above, NMFS expects that marine mammals will likely move away from an aversive stimulus, especially at levels that would be expected to result in PTS, given sufficient notice through use of soft start. Transco would also shut down pile driving activities if marine mammals enter the shutdown zones (table 9) further minimizing the degree of PTS that would be incurred. VerDate Sep<11>2014 16:53 Mar 20, 2024 Jkt 262001 Effects on individuals that are taken by Level B harassment in the form of behavioral disruption, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as avoidance, increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (e.g., Thorson and Reyff, 2006). Most likely, individuals will simply move away from the sound source and temporarily avoid the area where pile driving is occurring. If sound produced by project activities is sufficiently disturbing, animals are likely to simply avoid the area while the activities are occurring. We expect that any avoidance of the project areas by marine mammals will be temporary in nature and that any marine mammals that avoid the project areas during construction will not be permanently displaced. Short-term avoidance of the project areas and energetic impacts of interrupted foraging or other important behaviors is unlikely to affect the reproduction or survival of individual marine mammals, and the effects of behavioral disturbance on individuals is not likely to accrue in a manner that will affect the rates of recruitment or survival of any affected stock. As described above, humpback whales, and gray, harbor and harp seals are experiencing ongoing Unusual Mortality Events (UMEs). With regard to humpback whales, the UME does not yet provide cause for concern regarding population-level impacts. Despite the UME, the relevant population of humpback whales (the West Indies breeding population, or Distinct Population Segment (DPS) remains healthy. The West Indies DPS, which consists of the whales whose breeding range includes the Atlantic margin of the Antilles from Cuba to northern Venezuela, and whose feeding range primarily includes the Gulf of Maine, eastern Canada, and western Greenland, was delisted. The status review identified harmful algal blooms, vessel collisions, and fishing gear entanglements as relevant threats for this DPS, but noted that all other threats are considered likely to have no or minor impact on population size or the growth rate of this DPS (Bettridge et al., 2015). As described in Bettridge et al., (2015), the West Indies DPS has a substantial population size (i.e., approximately 10,000; Stevick et al., 2003; Smith et al., 1999; Bettridge et al., 2015), and appears to be experiencing consistent growth. In regards to pinnipeds (harbor seals, gray seals and harp seals), we do not expect takes that may be authorized PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 under this IHA to exacerbate or compound upon ongoing UMEs. Between July 2018 and March 2020, elevated seal mortalities occurred across ME, NH and MA, and as far south as VA due to phocine distemper virus (the UME is still active but pending closure). Since June 2022, a UME has been declared for Northeast pinnipeds in which elevated numbers of sick and dead harbor seals, gray seals, and harp seals have been documented along the southern and central coast of ME (NOAA Fisheries, 2022). Between June 1, 2022 and July 16, 2023, 65 grays seals, 379 harbor seals, and 6 harp seals have stranded. As noted previously, no injury, serious injury, or mortality is expected or will be authorized, and takes of harbor seal, gray seal, and harp seal will be minimized through the incorporation of the required mitigation measures. The population abundance for these species is 61,336, 27,300, and 7.6 million, respectively (Hayes et al., 2022). The 3,882 takes that may be authorized across these species represent a small proportion of each population and as such we do not expect this authorization to exacerbate or compound upon these UMEs. The project is also not expected to have significant adverse effects on affected marine mammals’ habitats. No ESA-designated critical habitat or recognized Biologically Important Areas are located within the project area. The project activities are not expected to modify existing marine mammal habitat for a significant amount of time. The activities may cause a low level of turbidity in the water column and some fish may leave the area of disturbance, thus temporarily impacting marine mammals’ foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected (with no known particular importance to marine mammals), the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences. The closest pinniped haulout is located 2.9 km from the work area but does not intersect with the harassment zones. For all species and stocks, take is expected to occur within a limited, relatively confined area (primarily Raritan Bay) of the stock’s range, which is not of particular importance for marine mammals that may occur there. Given the availability of suitable habitat nearby, any displacement of marine mammals from the project areas is not expected to affect marine mammals’ fitness, survival, and reproduction due to the limited geographic area that will E:\FR\FM\21MRN1.SGM 21MRN1 lotter on DSK11XQN23PROD with NOTICES1 Federal Register / Vol. 89, No. 56 / Thursday, March 21, 2024 / Notices be affected in comparison to the much larger habitat for marine mammals outside the bay along the NJ and NY coasts. Additionally, NMFS anticipates that the prescribed mitigation will minimize the duration and intensity of expected harassment events. Some individual marine mammals in the project area, such as harbor seals or bottlenose dolphins, may be present and be subject to repeated exposure to sound from pile driving activities on multiple days. However, pile driving and extraction is not expected to occur on every day, and these individuals will likely return to normal behavior during gaps in pile driving activity within each day of construction and in between work days. As discussed above, individuals could temporarily relocate during construction activities to reduce exposure to elevated sound levels from the project. Additionally, haulout habitat available for pinnipeds does not intersect with the harassment zones. Therefore, any behavioral effects of repeated or long duration exposures are not expected to negatively affect survival or reproductive success of any individuals. Thus, even repeated Level B harassment of some small subset of an overall stock is unlikely to result in any effects on rates of reproduction and survival of the stock. In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect any of the species or stocks through effects on annual rates of recruitment or survival: • No serious injury or mortality is anticipated or authorized; • The anticipated impacts of the planned activity on marine mammals will be temporary behavioral changes due to avoidance of the project area and limited instances of Level A harassment in the form of a slight PTS for pinnipeds. Potential instances of exposure above the Level A harassment threshold are expected to be relatively low for most species; • The availability of alternate areas of similar habitat value nearby; • Effects on species that serve as prey species for marine mammals from the planned project are expected to be short-term and are not expected to result in significant or long-term consequences for individual marine mammals, or to contribute to adverse impacts on their populations; • There are no known important feeding, breeding, or calving areas in the project area; and, • The established mitigation measures, including visual monitoring, shutdown zones, and soft start, are VerDate Sep<11>2014 16:53 Mar 20, 2024 Jkt 262001 expected to minimize potential impacts to marine mammals. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the required monitoring and mitigation measures, NMFS finds that the total marine mammal take from the planned activity will have a negligible impact on all affected marine mammal species or stocks. Small Numbers As noted previously, only take of small numbers of marine mammals may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted number of individuals to be taken is fewer than one-third of the species or stock abundance, the take is considered to be of small numbers. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities. We authorize incidental take of 12 marine mammal stocks. The total amount of taking authorized is well below one-third of the estimated stock abundance for all species except for the western north Atlantic northern coastal migratory stock of bottlenose dolphins (table 8). The total number of authorized takes for bottlenose dolphins, if assumed to accrue solely to new individuals of the northern migratory coastal stock, is >90 percent of the total stock abundance, which is currently estimated as 6,639. However, these numbers represent the estimated incidents of take, not the number of individuals taken. That is, it is highly likely that a relatively small subset of these bottlenose dolphins will be harassed by project activities. Western North Atlantic Northern Migratory Coastal bottlenose dolphins make broad scale, seasonal migrations in coastal waters of the Western north Atlantic. During the warm months, when the project is planned, their range extends from the shoreline to the 20 m isobaths between Assateague, VA to Long Island, NY (Garrison et al., 2017b), an area spanning approximately 300 linear km of coastline. It is likely that PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 20181 the majority of the Western North Atlantic Northern Migratory Coastal bottlenose dolphins will not occur within waters ensonified by project activities. In summary, the Western North Atlantic Northern Migratory Coastal bottlenose dolphins are not expected to occur in a significant portion of the larger ZOI. Given that the specified activity will be stationary within an area not recognized as any special significance that would serve to attract or aggregate dolphins, we therefore believe that the estimated numbers of takes, were they to occur, likely represent repeated exposures of a much smaller number of bottlenose dolphins and that these estimated incidents of take represent small numbers of bottlenose dolphins. Based on the analysis contained herein of the planned activity (including the required mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks. Unmitigable Adverse Impact Analysis and Determination There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks will not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes. Endangered Species Act Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults internally whenever we propose to authorize take for endangered or threatened species, in this case with the NMFS Greater Atlantic Regional Fisheries Office (GARFO). OPR requested initiation of consultation with GARFO under section 7 of the ESA on the issuance of the IHA to Transco under section 10(a)(5)(D) of the MMPA. On March 6, 2024, GARFO concluded consultation with OPR and the U.S. Army Corps of Engineers concerning the conduct of the specified activities which concluded that the E:\FR\FM\21MRN1.SGM 21MRN1 20182 Federal Register / Vol. 89, No. 56 / Thursday, March 21, 2024 / Notices issuance of the authorization is not likely to adversely affect any listed marine mammal species. National Environmental Policy Act To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216–6A, NMFS must evaluate our proposed action (i.e., the issuance of an IHA) and alternatives with respect to potential impacts on the human environment. This action is consistent with categories of activities identified in Categorical Exclusion B4 (IHAs with no anticipated serious injury or mortality) of the Companion Manual for NAO 216– 6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that precludes this categorical exclusion. Accordingly, NMFS has determined that the issuance of this IHA qualifies to be categorically excluded from further NEPA review. Authorization NMFS has issued an IHA to Transco for the potential harassment of small numbers of 11 marine mammal species incidental to the LNYBL Maintenance project in Sandy Hook Channel, NJ, that includes the previously explained mitigation, monitoring and reporting requirements. Dated: March 14, 2024. Kimberly Damon-Randall, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2024–05998 Filed 3–20–24; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [RTID 0648–XD819] Marine Mammals; File No. 27342 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; receipt of application. AGENCY: Notice is hereby given that Heidi Pearson, Ph.D., University of Alaska Southeast, 11066 Auke Lake Way, Juneau, AK 99801, has applied in due form for a permit to conduct research on marine mammals. DATES: Written comments must be received on or before April 22, 2024. lotter on DSK11XQN23PROD with NOTICES1 SUMMARY: VerDate Sep<11>2014 16:53 Mar 20, 2024 Jkt 262001 The application and related documents are available for review by selecting ‘‘Records Open for Public Comment’’ from the ‘‘Features’’ box on the Applications and Permits for Protected Species home page, https:// apps.nmfs.noaa.gov, and then selecting File No. 27342 from the list of available applications. These documents are also available upon written request via email to NMFS.Pr1Comments@noaa.gov. Written comments on this application should be submitted via email to NMFS.Pr1Comments@noaa.gov. Please include File No. 27342 in the subject line of the email comment. Those individuals requesting a public hearing should submit a written request via email to NMFS.Pr1Comments@ noaa.gov. The request should set forth the specific reasons why a hearing on this application would be appropriate. FOR FURTHER INFORMATION CONTACT: Shasta McClenahan, Ph.D., or Courtney Smith, Ph.D., (301) 427–8401. SUPPLEMENTARY INFORMATION: The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361 et seq.), the regulations governing the taking and importing of marine mammals (50 CFR part 216), the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.), and the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR parts 222–226). The applicant requests a 5-year research permit to study marine mammal behavior, ecology, health, and movement patterns. Up to 11 species of marine mammals may be harassed including the following ESA-listed species: fin (Balaenoptera physalus), gray (Eschrichtius robustus; Western North Pacific distinct population segment [DPS]), humpback (Megaptera novaeangliae; Mexico DPS), and sperm (Physeter macrocephalus) whales, and Steller sea lions (Eumetopias jubatus, Western DPS). Research may occur yearround in waters off Southeast Alaska. Research may be conducted from a vessel or unmanned aircraft system for counts, photography and video recording (above and underwater), photogrammetry, passive acoustics, tracking, suction-cup tagging, and biological sampling (skin and blubber biopsy, skin swabs, sloughed skin, exhaled air, feces, and eDNA). See the application for complete numbers of animals requested by species, age-class, and procedure. In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), an initial ADDRESSES: PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 determination has been made that the activity proposed is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement. Concurrent with the publication of this notice in the Federal Register, NMFS is forwarding copies of the application to the Marine Mammal Commission and its Committee of Scientific Advisors. Dated: March 18, 2024. Julia M. Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2024–06000 Filed 3–20–24; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF DEFENSE Office of the Secretary Department of Defense Military Family Readiness Council; Notice of Federal Advisory Committee Meeting Under Secretary of Defense for Personnel and Readiness (USD(P&R)), Department of Defense (DoD). ACTION: Notice of Federal Advisory Committee meeting. AGENCY: The DoD is publishing this notice to announce the following Federal Advisory Committee meeting of the DoD Military Family Readiness Council (MFRC) will take place. DATES: Open to the public, Wednesday, March 27, 2024, from 1 p.m. to 3:30 p.m. ADDRESSES: The meeting will be held by videoconference. Participant access information will be provided after registering. (Pre-meeting registration is required. See guidance in SUPPLEMENTARY INFORMATION, ‘‘Meeting Accessibility’’). FOR FURTHER INFORMATION CONTACT: Vesen L. Thompson, (703) 571–2360 (voice), OSD Pentagon OUSD P&R Mailbox Family Readiness Council, osd.pentagon.ousd-p-r.mbx.familyreadiness-council@mail.mil (Email). Mailing address: Office of the Deputy Assistant Secretary of Defense (Military Community & Family Policy), 1500 Defense Pentagon, Washington DC 20301–1500, Room 5A726. Website: https://www.militaryonesource.mil/ those-who-support-mfrc. SUPPLEMENTARY INFORMATION: This meeting is being held under the provisions of chapter 10 of title 5, United States Code (U.S.C) (commonly known as the ‘‘Federal Advisory Committee Act’’ or ‘‘FACA’’), title 5, SUMMARY: E:\FR\FM\21MRN1.SGM 21MRN1

Agencies

[Federal Register Volume 89, Number 56 (Thursday, March 21, 2024)]
[Notices]
[Pages 20170-20182]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-05998]

-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD583]

Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Transco Lower New York Bay Lateral
(LNYBL) Natural Gas Pipeline Maintenance in Sandy Hook Channel, NJ

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

ACTION: Notice; issuance of an incidental harassment authorization.

-----------------------------------------------------------------------

SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
Transcontinental Gas Pipe Line Company LLC (Transco), to incidentally
harass marine mammals during construction activities associated with a
natural gas pipeline stabilization project in Sandy Hook Channel, New
Jersey (NJ).

DATES: This authorization is effective from June 15, 2024, through June
14, 2025.

ADDRESSES: Electronic copies of the application and supporting
documents, as well as a list of the references cited in this document,
may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. In case of problems accessing these documents, please call
the contact listed below.

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

SUPPLEMENTARY INFORMATION:

Background

The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) 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 proposed or, if the taking is limited to harassment, a notice of a
proposed IHA is provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements

[[Page 20171]]

pertaining to the mitigation, monitoring and reporting of the takings
are set forth. The definitions of all applicable MMPA statutory terms
cited above are included in the relevant sections below.

Summary of Request

On April 28, 2023, NMFS received a request from Transco for an IHA
to take marine mammals incidental to pile driving activities associated
with the LNYBL maintenance project in Sandy Hook Channel, NJ. On
September 1, 2023 Transco submitted updates to the planned daily
duration of pile driving and on October 27, 2023, Transco notified NMFS
of changes to project timing. Following NMFS' review of the
application, discussions between NMFS and Transco, and reanalysis
following the aforementioned project changes, the application was
deemed adequate and complete on November 2, 2023. Transco's request is
for take of 11 species of marine mammal, by Level B harassment and, for
a subset of 3 of these species, Level A harassment. Neither Transco nor
NMFS expect serious injury or mortality to result from this activity
and, therefore, an IHA is appropriate. There are no changes from the
proposed IHA to the final IHA.

Description of the Specified Activity

Overview

Transco plans to stabilize the LNYBL natural gas pipeline that
extends 34 miles (mi) [55 kilometers (km)] in Raritan Bay, Lower New
York Bay, and the Atlantic Ocean from Morgan, NJ to Long Beach, New
York (NY). During routine monitoring of the existing LNYBL, Transco
identified seven discrete sections of the gas pipeline with either
limited cover or exposure resulting from dynamic conditions. The LNYBL
maintenance project involves the maintenance of pipeline sections with
seven corresponding ``work areas'' that encompass all in-water
temporary work spaces within NY and NJ where project-related activities
may cause sediment disturbance. To stabilize the pipeline, Transco will
place rock over the pipeline at seven distinct work areas. At Work Area
3, near Sandy Hook Channel, NJ, Transco plans to install 960 sheet
piles to provide additional stability and protection, and to mitigate
future seabed lowering and erosion along the north flank of Sandy Hook
Channel. Activities included as part of the project with potential to
affect marine mammals include vibratory and impact pile driving of
steel sheet piles at Work Area 3. The pile driving activities are
expected to occur on 80 days between June and September 2024. Other in-
water work described above will not cause take of marine mammals.
A detailed description of the planned construction project is
provided in the Federal Register notice for the proposed IHA (88 FR
84789, December 6, 2023). Since that time, no changes have been made to
the planned activities. Therefore, a detailed description is not
provided here. Please refer to that Federal Register notice for the
description of the specific activity.

Comments and Responses

A notice of NMFS' proposal to issue an IHA to Transco was published
in the Federal Register on December 6, 2023 (88 FR 84789). That notice
described, in detail, Transco's activities, the marine mammal species
that may be affected by the activities, and the anticipated effects on
marine mammals. In that notice, we requested public input on the
request for authorization described therein, our analyses, the proposed
authorization, and any other aspect of the notice of proposed IHA, and
requested that interested persons submit relevant information,
suggestions, and comments. This proposed notice was available for a 30-
day public comment period. During the 30-day public comment period, the
United States Geological Survey noted that they have ``no comment at
this time.'' NMFS received no other public comments.

Description of Marine Mammals in the Area of Specified Activities

Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history of the potentially affected species. NMFS
fully considered all of this information, and we refer the reader to
these descriptions, instead of reprinting the information. Additional
information regarding population trends and threats may be found in
NMFS' Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and
more general information about these species (e.g., physical and
behavioral descriptions) may be found on NMFS' website (https://www.fisheries.noaa.gov/find-species).
Table 1 lists all species or stocks for which take is expected and
authorized for this activity, and summarizes information related to the
population or stock, including regulatory status under the MMPA and
Endangered Species Act (ESA) and potential biological removal (PBR),
where known. PBR is defined by the MMPA as the maximum number of
animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its
optimum sustainable population (as described in NMFS' SARs). While no
serious injury or mortality is anticipated or authorized here, PBR and
annual serious injury and mortality from anthropogenic sources are
included here as gross indicators of the status of the species or
stocks and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS' stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS' U.S. Atlantic and Gulf of Mexico SARs (Hayes et al., 2022; Hayes
et al., 2023). All values presented in table 1 are available online at:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

Table 1--Species Likely Impacted by the Specified Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\1\ abundance survey) \2\ SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Artiodactyla--Infraorder Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenopteridae (rorquals):
Fin Whale....................... Balaenoptera physalus.. Western N Atlantic..... E, D, Y 6,802 (0.24, 5,573, 11 1.8
2016).
Humpback Whale.................. Megaptera novaeangliae. Gulf of Maine.......... -, -, N 1,396................. 22 12.15

[[Page 20172]]

Minke Whale..................... Balaenoptera Canadian Eastern -, -, N 21,968 (0.31, 17,002, 170 10.6
acutorostrata. Coastal. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
Atlantic White-sided Dolphin.... Lagenorhynchus acutus.. Western N Atlantic..... -, -, N 93,233 (0.71, 54,443, 544 27
2016).
Bottlenose Dolphin.............. Tursiops truncatus..... Northern Migratory -, -, Y 6,639, (0.41, 4,759, 48 12.2-21.5
Coastal. 2016).
Western North Atlantic -, -, N 62,851 (0.23, 51,914, 519 28
Offshore. 2016).
Common Dolphin.................. Delphinus delphis...... Western N Atlantic..... -, -, N 172,974 (0.21, 1,452 390
145,216, 2016).
Atlantic Spotted Dolphin........ Stenella frontalis..... Western N Atlantic..... -, -, N 39,921 (0.27, 32,032, 320 0
2016).
Family Phocoenidae (porpoises):
Harbor Porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -, -, N 95,543 (0.31, 74,034, 851 164
Fundy. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Harp Seal....................... Pagophilus Western N Atlantic..... -, -, N 7.6M (UNK, 7.1M, 2019) 426,000 178,573
groenlandicus.
Harbor Seal..................... Phoca vitulina......... Western N Atlantic..... -, -, N 61,336 (0.08, 57,637, 1,729 339
2018).
Gray Seal \4\................... Halichoerus grypus..... Western N Atlantic..... -, -, N 27,300 (0.22, 22,785, 1,458 4,453
2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, vessel strike). Annual Mortality and Serious Injury (M/SI) often cannot be determined precisely and is in some cases presented
as a minimum value or range.
\4\ This stock abundance estimate is only for the U.S. portion of this stock. The actual stock abundance, including the Canadian portion of the
population, is estimated to be approximately 424,300 animals. The PBR value listed here is only for the U.S. portion of the stock, while M/SI reflects
both the Canadian and U.S. portions.

A detailed description of the species likely to be affected by the
Transco LNYBL Maintenance project, including brief introductions to the
species and relevant stocks as well as available information regarding
population trends and threats, and information regarding local
occurrence, were provided in the Federal Register notice for the
proposed IHA (88 FR 84789, December 6, 2023); since that time, we are
not aware of any changes in the status of these species and stocks;
therefore, detailed descriptions are not provided here. Please refer to
that Federal Register notice for these descriptions. Please also refer
to NMFS' website (https://www.fisheries.noaa.gov/find-species) for
generalized species accounts.

Marine Mammal Hearing

Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Not all marine mammal species have equal
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al.,
(2007, 2019) recommended that marine mammals be divided into hearing
groups based on directly measured (behavioral or auditory evoked
potential techniques) or estimated hearing ranges (behavioral response
data, anatomical modeling, etc.). Note that no direct measurements of
hearing ability have been successfully completed for mysticetes (i.e.,
low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65
decibel (dB) threshold from the normalized composite audiograms, with
the exception for lower limits for low-frequency cetaceans where the
lower bound was deemed to be biologically implausible and the lower
bound from Southall et al., (2007) retained. Marine mammal hearing
groups and their associated hearing ranges are provided in table 2.

Table 2--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans (dolphins, 150 Hz to 160 kHz.
toothed whales, beaked whales, bottlenose
whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
Cephalorhynchid, Lagenorhynchus cruciger &
L. australis).
Phocid pinnipeds (PW) (underwater) (true 50 Hz to 86 kHz.
seals).

[[Page 20173]]

Otariid pinnipeds (OW) (underwater) (sea 60 Hz to 39 kHz.
lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al., 2007) and PW pinniped (approximation).

The pinniped functional hearing group was modified from Southall et
al., (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth et al.,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.

Potential Effects of Specified Activities on Marine Mammals and Their
Habitat

The effects of underwater noise from Transco's construction
activities have the potential to result in behavioral harassment of
marine mammals in the vicinity of the project area. The notice of the
proposed IHA (88 FR 84789, December 6, 2023) included a discussion of
the effects of anthropogenic noise on marine mammals and the potential
effects of underwater noise from Transco's construction on marine
mammals and their habitat. That information and analysis is
incorporated by reference into this final IHA determination and is not
repeated here; please refer to the notice of proposed IHA (88 FR 84789,
December 6, 2023).

Estimated Take of Marine Mammals

This section provides an estimate of the number of incidental takes
authorized through the IHA, which will inform both NMFS' consideration
of ``small numbers,'' and the negligible impact determinations.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes will be by Level B harassment, as use of the
acoustic sources (i.e., impact and vibratory pile driving) has the
potential to result in disruption of behavioral patterns for individual
marine mammals. There is also some potential for auditory injury (Level
A harassment) to result for phocids because predicted auditory injury
zones are relatively large, and seals are expected to be relatively
common and are more difficult to detect at greater distances. The
planned mitigation and monitoring measures are expected to minimize the
severity of the taking to the extent practicable.
As described previously, no serious injury or mortality is
anticipated or authorized for this activity. Below we describe how the
authorized take numbers are estimated.
For acoustic impacts, generally speaking, we estimate take by
considering: (1) acoustic thresholds above which NMFS believes the best
available science indicates marine mammals will be behaviorally
harassed or incur some degree of permanent hearing impairment; (2) the
area or volume of water that will be ensonified above these levels in a
day; (3) the density or occurrence of marine mammals within these
ensonified areas; and, (4) the number of days of activities. We note
that while these factors can contribute to a basic calculation to
provide an initial prediction of potential takes, additional
information that can qualitatively inform take estimates is also
sometimes available (e.g., previous monitoring results or average group
size). Below, we describe the factors considered here in more detail
and present the take estimates.

Acoustic Thresholds

NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
are reasonably expected to be behaviorally harassed (equated to Level B
harassment) or to incur Permanent Threshold Shift (PTS) of some degree
(equated to Level A harassment).
Level B Harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source or exposure context (e.g., frequency, predictability, duty
cycle, duration of the exposure, signal-to-noise ratio, distance to the
source), the environment (e.g., bathymetry, other noises in the area,
predators in the area), and the receiving animals (hearing, motivation,
experience, demography, life stage, depth) and can be difficult to
predict (e.g., Southall et al., 2007, 2021, Ellison et al., 2012).
Based on what the available science indicates and the practical need to
use a threshold based on a metric that is both predictable and
measurable for most activities, NMFS typically uses a generalized
acoustic threshold based on received level to estimate the onset of
behavioral harassment. NMFS generally predicts that marine mammals are
likely to be behaviorally harassed in a manner considered to be Level B
harassment when exposed to underwater anthropogenic noise above root-
mean-squared pressure received levels (RMS SPL) of 120 dB (referenced
to 1 micropascal (re 1 [mu]Pa)) for continuous (e.g., vibratory pile
driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g.,
scientific sonar) sources. Generally speaking, Level B harassment take
estimates based on these behavioral harassment thresholds are expected
to include any likely takes by Temporary Threshold Shift (TTS) as, in
most cases, the likelihood of TTS occurs at distances from the source
less than those at which behavioral harassment is likely. TTS of a
sufficient degree can manifest as behavioral harassment, as reduced
hearing sensitivity and the potential reduced opportunities to detect
important signals (conspecific communication, predators, prey) may
result in changes in behavior patterns that would not otherwise occur.
Transco's planned activity includes the use of continuous
(vibratory pile driving) and impulsive (impact pile driving) sources,
and therefore the RMS SPL thresholds of 120 and 160 dB re 1 [mu]Pa is/
are applicable.

[[Page 20174]]

Level A Harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0)
(Technical Guidance, 2018) identifies dual criteria to assess auditory
injury (Level A harassment) to five different marine mammal groups
(based on hearing sensitivity) as a result of exposure to noise from
two different types of sources (impulsive or non-impulsive). Transco's
planned activity includes the use of impulsive (impact pile driving)
and non-impulsive (vibratory pile driving) sources.
These thresholds are provided in the table below. The references,
analysis, and methodology used in the development of the thresholds are
described in NMFS' 2018 Technical Guidance, which may be accessed at:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

Table 3--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
PTS onset acoustic thresholds * (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Cell 1: Lpk,flat: 219 dB; Cell 2: LE,LF,24h: 199 dB.
LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Cell 3: Lpk,flat: 230 dB; Cell 4: LE,MF,24h: 198 dB.
LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Cell 5: Lpk,flat: 202 dB; Cell 6: LE,HF,24h: 173 dB.
LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: Lpk,flat: 218 dB; Cell 8: LE,PW,24h: 201 dB.
LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater).... Cell 9: Lpk,flat: 232 dB; Cell 10: LE,OW,24h: 219 dB.
LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to reflect American
National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as
incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could
be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible,
it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
exceeded.

Ensonified Area

Here, we describe operational and environmental parameters of the
activity that are used in estimating the area ensonified above the
acoustic thresholds, including source levels and transmission loss
coefficient.
The sound field in the project area is the existing background
noise plus additional construction noise from the planned project.
Marine mammals are expected to be affected via sound generated by the
primary components of the project (i.e., pile driving).
The project includes vibratory and impact pile driving. Source
levels for these activities are based on reviews of measurements of the
same or similar types and dimensions of piles available in the
literature. Source levels for each pile size and activity are presented
in table 4. Source levels for vibratory installation and removal of
piles of the same diameter are assumed to be the same.

Table 4--Estimates of Mean Underwater Sound Levels Generated During Vibratory and Impact Pile Installation of 36-
Inch Steel Sheet Pile
----------------------------------------------------------------------------------------------------------------
Hammer type dB rms dB SEL dB peak Literature source
----------------------------------------------------------------------------------------------------------------
Vibratory *............................. **182 N/A N/A Quijano et al., 2018.
Impact *................................ 190 180 205 Caltrans, 2015.
----------------------------------------------------------------------------------------------------------------
Note: dB peak = peak sound level; rms = root mean square; SEL = sound exposure level.
* Vibratory source levels are referenced at 1 m and the impact source levels are referenced at 10 m.
** Since vibratory pile installation is a continuous, non-impulsive source, it was assumed that the dB rms
source levels are the same as the dB SEL source level reported in Quijano et al. (2018).

Transmission loss (TL) is the decrease in acoustic intensity as an
acoustic pressure wave propagates out from a source. TL parameters vary
with frequency, temperature, sea conditions, current, source and
receiver depth, water depth, water chemistry, and bottom composition
and topography. The general formula for underwater TL is:

TL = B * Log10 (R1/R2), where

TL = transmission loss in dB
B = transmission loss coefficient
R1 = the distance of the modeled SPL from the driven pile, and
R2 = the distance from the driven pile of the initial measurement

Absent site-specific acoustical monitoring with differing measured
transmission loss, a practical spreading value of 15 is used as the
transmission loss coefficient in the above formula. Site-specific
transmission loss data for the Raritan Bay is not available; therefore,
the default coefficient of 15 is used to determine the distances to the
harassment thresholds.
The ensonified area associated with Level A harassment is more
technically challenging to predict due to the need to account for a
duration component. Therefore, NMFS developed an optional User
Spreadsheet tool to accompany the Technical Guidance that can be used
to relatively simply predict an isopleth distance for use in
conjunction with marine mammal density or occurrence to help predict
potential takes. We note that because of some of the assumptions
included in the methods underlying this optional tool, we anticipate
that the resulting isopleth estimates are typically going to be
overestimates of some degree, which may result in an overestimate of
potential take by Level A harassment. However, this optional tool
offers the best way to estimate isopleth distances when more
sophisticated modeling methods are not available or practical. For
stationary sources such as pile driving, the optional User Spreadsheet
tool predicts the distance at which, if a marine mammal remained at
that distance for the duration of the activity, it will be expected to
incur PTS. Inputs used in the optional User Spreadsheet tool, and

[[Page 20175]]

the resulting estimated isopleths, are reported below (table 5). The
resulting estimated isopleths and the calculated Level B harassment
isopleths are reported in table 6.

Table 5--User Spreadsheet Inputs
------------------------------------------------------------------------
Spreadsheet tab used A.1) Vibratory E.1) Impact pile
----------------------------------- pile driving driving
-------------------------------------
Source level (SPL) 182 RMS 180 SEL
------------------------------------------------------------------------
36-inch steel sheet piles
------------------------------------------------------------------------
Transmission Loss Coefficient..... 15 15
Weighting Factor Adjustment (kHz). 2.5 2
Activity Duration per pile 10 N/A
(minutes)........................
Number of strikes per pile........ ................. 520
Number of piles per day........... 12 12
Distance of sound pressure level 1 10
measurement......................
------------------------------------------------------------------------

Table 6--Level A Harassment and Level B Harassment Isopleths
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A harassment isopleths (m) [verbar] area of harassment zone (km\2\) Level B
* harassment
---------------------------------------------------------------------------- isopleth (m)
Hammer type [verbar] area of
LF MF HF PW harassment zone
(km\2\) *
--------------------------------------------------------------------------------------------------------------------------------------------------------
36-inch Steel Sheet Piles
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory Pile Driving................................... 27.2 2.4 40.3 16.6 13,594 [verbar]
426.13
Impact Pile Driving...................................... 2,135.6 [verbar] 76.0 [verbar] 2,543.9 [verbar] 1,142.9 [verbar] 1,000
18.99 0.30 25.23 7.72
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Harassment zone areas are clipped by viewshed.

Marine Mammal Occurrence

In this section we provide information about the occurrence of
marine mammals, including density or other relevant information which
will inform the take calculations.
Transco applied the Duke University Marine Geospatial Ecology
Laboratory marine mammal habitat-based density models (https://seamap.env.duke.edu/models/Duke/EC/) to estimate take from vibratory
and impact pile driving (Roberts et al., 2016; Roberts et al., 2023).
These density data incorporate aerial and shipboard line-transect data
from NMFS and other organizations and incorporate data from 8
physiographic and 16 dynamic oceanographic and biological covariates,
and control for the influence of sea state, group size, availability
bias, and perception bias on the probability of making a sighting.
These density models were originally developed for all cetacean taxa in
the U.S. Atlantic (Roberts et al., 2016). Most recently, all models
were updated in 2022 based on additional data as well as certain
methodological improvements. More information is available online at
https://seamap.env.duke.edu/models/Duke/EC/. Marine mammal density
estimates in the project area (animals/km\2\) were obtained using the
most recent model results for all taxa (Roberts et al., 2023).
For each species, the average monthly density (June-September) near
work area 3, Sandy Hook Channel, was calculated (table 7).
Specifically, in a Geographic Information Systems, density rasters were
clipped to polygons representing the zone of influence for Level A
harassment zones for each hearing group and the largest Level B
harassment zone, which applies to all hearing groups. Densities in
Roberts et al., (2023) are provided in individuals per 100 square km,
however they were converted to individuals per square km for ease of
calculation. The monthly maximum density of individuals per square km
for each zone of influence was averaged over the months of June to
September near work area 3 to provide a single density estimate for
each species or species group. The available density information
provides densities for seals as a guild due to difficulty in
distinguishing these species at sea. Similarly, density information for
bottlenose dolphins does not differentiate between stocks. The
resulting density values (table 7) were used to calculate take
estimates of marine mammals for sheet pile installation activities.
Note that other data sources were evaluated for pinnipeds (e.g., Save
Coastal Wildlife reports) but were found unsuitable due to data quality
and applicability.

Table 7--Average Monthly Density of Species in the Project Area
[June-September]
----------------------------------------------------------------------------------------------------------------
Average monthly density Average monthly density
(individual/km\2\) used in (individual/km\2\) used in
Species Level B take calculations at Level A take calculations at
work area 3, Sandy Hook work area 3, Sandy Hook
Channel (June-September) Channel (June-September)
----------------------------------------------------------------------------------------------------------------
Fin Whale........................................... 1.41361E-04 4.53952E-06

[[Page 20176]]

Humpback Whale...................................... 9.37889E-05 2.14387E-05
Minke Whale......................................... 2.34113E-04 3.12779E-05
Atlantic white-sided dolphin........................ 4.97340E-05 6.98975E-07
Bottlenose dolphin.................................. 1.88295E-01 4.76450E-02
Harbor porpoise..................................... 1.64816E-04 3.27277E-05
Common dolphin...................................... 5.91282E-04 1.24663E-05
Atlantic Spotted Dolphin............................ 2.38665E-04 8.76649E-07
Harp Seals, Gray Seals, Harbor Seals................ 0.11387 0.11130
----------------------------------------------------------------------------------------------------------------

Take Estimation

Here we describe how the information provided above is synthesized
to produce a quantitative estimate of the take that is reasonably
likely to occur and authorized.
Take estimates are the product of density, ensonified area, and
number of days of pile driving work. Specifically, take estimates are
calculated by multiplying the expected densities of marine mammals in
the activity area(s) by the area of water likely to be ensonified above
the NMFS defined threshold levels in a single day (24-hour period).
Transco used the construction method that produced the largest isopleth
to estimate exposure of marine mammal noise impacts (i.e., the largest
ensonified area estimated for vibratory pile driving was used to
estimate potential takes by Level B harassment, and the hearing group-
specific ensonified areas estimated for impact pile driving were used
to estimate potential Level A harassment). Next, that product is
multiplied by the number of days vibratory or impact pile driving is
likely to occur. The exposure estimate was rounded to the nearest whole
number at the end of the calculation. A summary of this method is
illustrated in the following formula:

Estimated Take = D x ZOI x # of construction days

Where:

D = density estimate for each species within the ZOI
ZOI = maximum daily ensonified area (km\2\) to relevant thresholds

For bottlenose dolphins, the density data presented by Roberts et
al., (2023) does not differentiate between bottlenose dolphin stocks.
Thus, the take estimate for bottlenose dolphins calculated by the
method described above resulted in an estimate of the total number of
bottlenose dolphins expected to be taken, from all stocks (for a total
of 6,419 takes by Level B harassment). However, as described above,
both the Western North Atlantic Northern Migratory Coastal stock and
the Western North Atlantic Offshore stock have the potential to occur
in the project area. Because approximately 95 percent of the project
area occurs in waters shallower than 20 m, we assign take to stock
accordingly. Thus, we assume that 95 percent of the total authorized
bottlenose dolphin takes will accrue to the Western North Atlantic
Offshore stock (total 6,098 takes by Level B harassment), and 5 percent
to the Western North Atlantic Northern Migratory Coastal stock (total
321 takes by Level B harassment) (table 8).
Additional data regarding average group sizes from survey effort in
the region was considered to ensure adequate take estimates are
evaluated. Take estimates for several species were adjusted based upon
average groups sizes derived from NOAA Atlantic Marine Assessment
Program for Protected Species data from 2010-2019 shipboard distance
sampling surveys (Palka et al., 2021). This is particularly true for
uncommon or rare species with very low densities in the models. These
calculated take estimates were adjusted for these species as follows:
Atlantic white-sided dolphin: Only 1 take by Level B
harassment was estimated but takes authorized were increased to the
average number of dolphins in a group reported in Palka et al., 2021 (n
= 12);
Common dolphin: Only 26 takes were estimated but
authorized takes were increased to the average number of dolphins in a
group reported in Palka et al., 2021 (n = 30);
Atlantic spotted dolphin: Only 9 takes were estimated but
authorized takes were increased to the average number of dolphins in a
group reported in Palka et al., 2021 (n = 24);

Table 8--Authorized Take by Stock and Harassment Type and as a Percentage of Stock Abundance
----------------------------------------------------------------------------------------------------------------
Authorized take
-------------------------- Take as a
Species Stock Level B Level A percentage of
harassment harassment stock abundance
----------------------------------------------------------------------------------------------------------------
Fin Whale............................ Western North Atlantic...... 5 0 <1
Humpback Whale....................... Gulf of Maine............... 3 0 <1
Minke Whale.......................... Canadian East Coast......... 8 0 <1
Atlantic White-sided Dolphin......... Western North Atlantic...... 12 0 <1
Bottlenose Dolphin................... Northern Migratory Coastal.. 6,098 0 92
Western North Atlantic 321 0 <1
Offshore.
Harbor Porpoise...................... Gulf of Maine/Bay of Fundy.. 6 0 <1
Common Dolphin....................... Western North Atlantic...... 30 0 <1
Atlantic Spotted Dolphin............. Western North Atlantic...... 24 0 <1
Harbor Seal.......................... Western North Atlantic...... 3,813 69 6.3
Gray Seal............................ Western North Atlantic...... <1

[[Page 20177]]

Harp Seal............................ Western North Atlantic...... <1
----------------------------------------------------------------------------------------------------------------

Mitigation

In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks, and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, NMFS
considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, and impact on
operations.
Transco has indicated that pile driving will be conducted between
June 15 and September 15, a time of year when North Atlantic Right
Whales are unlikely to occur near the project area. Transco will
implement the following mitigation requirements:
Shutdown Zones--For all pile driving activities, Transco will
implement shutdowns within designated zones. The purpose of a shutdown
zone is generally to define an area within which shutdown of the
activity will occur upon sighting of a marine mammal (or in
anticipation of an animal entering the defined area). Shutdown zones
vary based on the activity type and marine mammal hearing group (table
9). In most cases, the shutdown zones are based on the estimated Level
A harassment isopleth distances for each hearing group. However, in
cases where it will be challenging to detect marine mammals at the
Level A harassment isopleth and frequent shutdowns are expected to
create practicability concerns (e.g., for phocids during impact pile
driving), smaller shutdown zones have been established (table 9).
Additionally, Transco has agreed to implement a minimum shutdown zone
of 60 m during all pile driving activities.
Finally, construction supervisors and crews, Protected Species
Observers (PSOs), and relevant Transco staff must avoid direct physical
interaction with marine mammals during construction activity. If a
marine mammal comes within 10 m of such activity, operations must cease
and vessels must reduce speed to the minimum level required to maintain
steerage and safe working conditions, as necessary to avoid direct
physical interaction. If an activity is delayed or halted due to the
presence of a marine mammal, the activity may not commence or resume
until either the animal has voluntarily exited and been visually
confirmed beyond the shutdown zone indicated in table 9 or 15 minutes
have passed without re-detection of the animal.
Construction activities must be halted upon observation of a
species for which incidental take is not authorized or a species for
which incidental take has been authorized but the authorized number of
takes has been met entering or within the harassment zone. In the case
of North Atlantic right whale, construction activities must be halted
upon observation of this species at any distance, regardless of its
proximity to a harassment zone.

Table 9--Shutdown Zones
----------------------------------------------------------------------------------------------------------------
Shutdown zones (m)
----------------------------------------------------------------
Activity Pile type North Atlantic Low Mid- High
right whale frequency frequency frequency Phocid
----------------------------------------------------------------------------------------------------------------
Vibratory Installation....... 36-inch sheet... Any distance... 60
-----------------------------------------------
Impact Installation.......... ................ ............... 1,000 80 200 150
----------------------------------------------------------------------------------------------------------------

Protected Species Observers--The number and placement of PSOs
during all construction activities (described in the Monitoring and
Reporting section) will ensure that the entire shutdown zone is
visible. Transco will employ at least two PSOs for all pile driving
activities.
Monitoring for Level A and Level B harassment--PSOs will monitor
the shutdown zones and beyond to the extent that PSOs can see.
Monitoring beyond the shutdown zones enables observers to be aware of
and communicate the presence of marine mammals in the project areas
outside the shutdown zones and thus prepare for a potential cessation
of activity should the animal enter the shutdown zone. If a marine
mammal enters either

[[Page 20178]]

harassment zone, PSOs will document the marine mammal's presence and
behavior.
Pre-Activity Monitoring--Prior to the start of daily in-water
construction activity, or whenever a break in pile driving of 30
minutes or longer occurs, PSOs will observe the shutdown, Level A
harassment, and Level B harassment zones for a period of 30 minutes.
Pre-start clearance monitoring must be conducted during periods of
visibility sufficient for the lead PSO to determine that the shutdown
zones are clear of marine mammals. If the shutdown zone is obscured by
fog or poor lighting conditions, in-water construction activity will
not be initiated until the entire shutdown zone is visible. Pile
driving may commence following 30 minutes of observation when the
determination is made that the shutdown zones are clear of marine
mammals. If a marine mammal is observed entering or within shutdown
zones, pile driving activity must be delayed or halted. If pile driving
is delayed or halted due to the presence of a marine mammal, the
activity may not commence or resume until either the animal has
voluntarily exited and been visually confirmed beyond the shutdown zone
or 15 minutes have passed without re-detection of the animal. If a
marine mammal for which Level B harassment take is authorized is
present in the Level B harassment zone, activities may begin.
Soft-Start--The use of soft-start procedures are believed to
provide additional protection to marine mammals by providing warning
and/or giving marine mammals a chance to leave the area prior to the
hammer operating at full capacity. For impact pile driving, contractors
are be required to provide an initial set of three strikes from the
hammer at reduced energy, with each strike followed by a 30-second
waiting period. This procedure will be conducted a total of three times
before impact pile driving begins. Soft start will be implemented at
the start of each day's impact pile driving and at any time following
cessation of impact pile driving for a period of 30 minutes or longer.
Soft start is not required during vibratory pile driving activities.
Based on our evaluation of the applicant's planned measures, as
well as other measures considered by NMFS, NMFS has determined that the
listed mitigation measures provide the means of effecting the least
practicable impact on the affected 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
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 while
conducting the activities. Effective reporting is critical both to
compliance as well as ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the activity; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
How anticipated responses to stressors impact either: (1)
long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and,
Mitigation and monitoring effectiveness.
Visual Monitoring--Marine mammal monitoring during pile driving
activities must be conducted by NMFS-approved PSOs in a manner
consistent with the following:
PSOs must be independent of the activity contractor (for
example, employed by a subcontractor), and have no other assigned tasks
during monitoring periods;
At least one PSO must have prior experience performing the
duties of a PSO during construction activity pursuant to a NMFS-issued
incidental take authorization;
Other PSOs may substitute other relevant experience,
education (degree in biological science or related field) or training
for experience performing the duties of a PSO during construction
activities pursuant to a NMFS-issued incidental take authorization;
Where a team of three or more PSOs is required, a lead
observer or monitoring coordinator will be designated. The lead
observer will be required to have prior experience working as a marine
mammal observer during construction activity pursuant to a NMFS-issued
incidental take authorization; and,
PSOs must be approved by NMFS prior to beginning any
activity subject to this IHA.
PSOs should also have the following additional qualifications:
Ability to conduct field observations and collect data
according to assigned protocols;
Experience or training in the field identification of
marine mammals, including identification of behaviors;
Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
Writing skills sufficient to prepare a report of
observations including, but not limited to, the number and species of
marine mammals observed; dates and times when in-water construction
activities were conducted; dates, times, and reason for implementation
of mitigation (or why mitigation was not implemented when required);
and marine mammal behavior; and,
Ability to communicate orally, by radio or in person, with
project personnel to provide real-time information on marine mammals
observed in the area as necessary.
Visual monitoring will be conducted by a minimum of two trained
PSOs positioned at suitable vantage points on or near the maintenance
barge. One PSO will have an unobstructed view of all water within the
shutdown zone. Remaining PSOs will observe as much as the Level A and
Level B harassment zones as possible.
Monitoring will be conducted 30 minutes before, during, and 30
minutes after all inwater construction activities. In addition, PSOs
will record all incidents of marine mammal occurrence, regardless of
distance from activity, and will document any

[[Page 20179]]

behavioral reactions in concert with distance from piles being driven
or removed. Pile driving activities include the time to install or
remove a single pile or series of piles, as long as the time elapsed
between uses of the pile driving equipment is no more than 30 minutes.

Reporting

Transco will submit a draft marine mammal monitoring report to NMFS
within 90 days after the completion of pile driving activities, or 60
days prior to a requested date of issuance of any future IHAs for the
project, or other projects at the same location, whichever comes first.
The marine mammal monitoring report will include an overall description
of work completed, a narrative regarding marine mammal sightings, and
associated PSO data sheets. Specifically, the report will include:
Dates and times (begin and end) of all marine mammal
monitoring;
Construction activities occurring during each daily
observation period, including: (1) The number and type of piles that
were driven and the method (e.g., impact or vibratory); and, (2) Total
duration of driving time for each pile (vibratory driving) and number
of strikes for each pile (impact driving);
PSO locations during marine mammal monitoring;
Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), including Beaufort sea state and any other relevant
weather conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance;
Upon observation of a marine mammal, the following
information: (1) Name of PSO who sighted the animal(s) and PSO location
and activity at time of sighting; (2) Time of sighting; (3)
Identification of the animal(s) (e.g., genus/species, lowest possible
taxonomic level, or unidentified), PSO confidence in identification,
and the composition of the group if there is a mix of species; (4)
Distance and location of each observed marine mammal relative to the
pile being driven for each sighting; (5) Estimated number of animals
(min/max/best estimate); (6) Estimated number of animals by cohort
(adults, juveniles, neonates, group composition, etc.); (7) Animal's
closest point of approach and estimated time spent within the
harassment zone; (8) Description of any marine mammal behavioral
observations (e.g., observed behaviors such as feeding or traveling),
including an assessment of behavioral responses thought to have
resulted from the activity (e.g., no response or changes in behavioral
state such as ceasing feeding, changing direction, flushing, or
breaching);
Number of marine mammals detected within the harassment
zones, by species; and,
Detailed information about implementation of any
mitigation (e.g., shutdowns and delays), a description of specific
actions that ensued, and resulting changes in behavior of the
animal(s), if any.
A final report must be prepared and submitted within 30 calendar
days following receipt of any NMFS comments on the draft report. If no
comments are received from NMFS within 30 calendar days of receipt of
the draft report, the report shall be considered final. All PSO data
will be submitted electronically in a format that can be queried such
as a spreadsheet or database and will be submitted with the draft
marine mammal report.
In the event that personnel involved in the construction activities
discover an injured or dead marine mammal, the Holder must report the
incident to the Office of Protected Resources (OPR), NMFS
([email protected] and [email protected]) and
Greater Atlantic Region New England/Mid-Atlantic Regional Stranding
Coordinator (978-282-8478 or 978-281-9291) as soon as feasible. If the
death or injury was clearly caused by the specified activity, the
Holder must immediately cease the activities until NMFS OPR is able to
review the circumstances of the incident and determine what, if any,
additional measures are appropriate to ensure compliance with the terms
of this IHA. The Holder must not resume their activities until notified
by NMFS. The report must include the following information:
Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
Species identification (if known) or description of the
animal(s) involved;
Condition of the animal(s) (including carcass condition if
the animal is dead);
Observed behaviors of the animal(s), if alive;
If available, photographs or video footage of the
animal(s); and
General circumstances under which the animal was
discovered.

Negligible Impact Analysis and Determination

NMFS has defined negligible impact 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 (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. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any impacts or responses (e.g., intensity, duration),
the context of any impacts or responses (e.g., critical reproductive
time or location, foraging impacts affecting energetics), as well as
effects on habitat, and the likely effectiveness of the mitigation. We
also assess the number, intensity, and context of estimated takes by
evaluating this information relative to population status. Consistent
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338,
September 29, 1989), the impacts from other past and ongoing
anthropogenic activities are incorporated into this analysis via their
impacts on the baseline (e.g., as reflected in the regulatory status of
the species, population size and growth rate where known, ongoing
sources of human-caused mortality, or ambient noise levels).
To avoid repetition, the majority of our analysis applies to all
the species listed in table 1, given that many of the anticipated
effects of this project on different marine mammal stocks are expected
to be relatively similar in nature. Where there are meaningful
differences between species or stocks, or groups of species, in
anticipated individual responses to activities, impact of expected take
on the population due to differences in population status, or impacts
on habitat, they are described independently in the analysis below.
Pile driving associated with the Transco LNYBL maintenance project,
as outlined previously, has the potential to disturb or displace marine
mammals. Specifically, the specified activities may result in take, in
the form of Level B harassment and, for some species, Level A
harassment, from underwater sounds generated by pile driving.
No serious injury or mortality is expected, even in the absence of
required mitigation measures, given the nature of the activities.
Further, no take by Level A harassment is anticipated for low-
frequency, mid-frequency, or high-frequency cetaceans. The potential
for

[[Page 20180]]

harassment will be minimized through the implementation of planned
mitigation measures (see Mitigation section).
Take by Level A harassment is expected for pinnipeds (harbor seal,
harp seal, and gray seal). Any take by Level A harassment is expected
to arise from, at most, a small degree of PTS (i.e., minor degradation
of hearing capabilities within regions of hearing that align most
completely with the energy produced by impact pile driving such as the
low-frequency region below 2 kilohertz (kHz), not severe hearing
impairment or impairment within the ranges of greatest hearing
sensitivity. Animals would need to be exposed to higher levels and/or
longer duration than are expected to occur here in order to incur any
more than a small degree of PTS.
Further, the amount of take authorized by Level A harassment is
very low for all marine mammal stocks and species. For 8 species, NMFS
anticipates no Level A harassment take over the duration of Transco's
planned activities; for pinnipeds, NMFS expects no more than 69 takes
by Level A harassment across all 3 pinniped species (harbor seal, gray
seal, harp seal). If hearing impairment occurs, it is most likely that
the affected animal would lose only a few decibels in its hearing
sensitivity. Due to the small degree anticipated, any PTS potential
incurred would not be expected to affect the reproductive success or
survival of any individuals, much less result in adverse impacts on the
species or stock.
Additionally, some subset of the individuals that are behaviorally
harassed could also simultaneously incur some small degree of TTS for a
short duration of time. However, since the hearing sensitivity of
individuals that incur TTS is expected to recover completely within
minutes to hours, it is unlikely that the brief hearing impairment
would affect the individual's long-term ability to forage and
communicate with conspecifics, and would therefore not likely impact
reproduction or survival of any individual marine mammal, let alone
adversely affect rates of recruitment or survival of the species or
stock.
As described above, NMFS expects that marine mammals will likely
move away from an aversive stimulus, especially at levels that would be
expected to result in PTS, given sufficient notice through use of soft
start. Transco would also shut down pile driving activities if marine
mammals enter the shutdown zones (table 9) further minimizing the
degree of PTS that would be incurred.
Effects on individuals that are taken by Level B harassment in the
form of behavioral disruption, on the basis of reports in the
literature as well as monitoring from other similar activities, will
likely be limited to reactions such as avoidance, increased swimming
speeds, increased surfacing time, or decreased foraging (if such
activity were occurring) (e.g., Thorson and Reyff, 2006). Most likely,
individuals will simply move away from the sound source and temporarily
avoid the area where pile driving is occurring. If sound produced by
project activities is sufficiently disturbing, animals are likely to
simply avoid the area while the activities are occurring. We expect
that any avoidance of the project areas by marine mammals will be
temporary in nature and that any marine mammals that avoid the project
areas during construction will not be permanently displaced. Short-term
avoidance of the project areas and energetic impacts of interrupted
foraging or other important behaviors is unlikely to affect the
reproduction or survival of individual marine mammals, and the effects
of behavioral disturbance on individuals is not likely to accrue in a
manner that will affect the rates of recruitment or survival of any
affected stock.
As described above, humpback whales, and gray, harbor and harp
seals are experiencing ongoing Unusual Mortality Events (UMEs). With
regard to humpback whales, the UME does not yet provide cause for
concern regarding population-level impacts. Despite the UME, the
relevant population of humpback whales (the West Indies breeding
population, or Distinct Population Segment (DPS) remains healthy. The
West Indies DPS, which consists of the whales whose breeding range
includes the Atlantic margin of the Antilles from Cuba to northern
Venezuela, and whose feeding range primarily includes the Gulf of
Maine, eastern Canada, and western Greenland, was delisted. The status
review identified harmful algal blooms, vessel collisions, and fishing
gear entanglements as relevant threats for this DPS, but noted that all
other threats are considered likely to have no or minor impact on
population size or the growth rate of this DPS (Bettridge et al.,
2015). As described in Bettridge et al., (2015), the West Indies DPS
has a substantial population size (i.e., approximately 10,000; Stevick
et al., 2003; Smith et al., 1999; Bettridge et al., 2015), and appears
to be experiencing consistent growth.
In regards to pinnipeds (harbor seals, gray seals and harp seals),
we do not expect takes that may be authorized under this IHA to
exacerbate or compound upon ongoing UMEs. Between July 2018 and March
2020, elevated seal mortalities occurred across ME, NH and MA, and as
far south as VA due to phocine distemper virus (the UME is still active
but pending closure). Since June 2022, a UME has been declared for
Northeast pinnipeds in which elevated numbers of sick and dead harbor
seals, gray seals, and harp seals have been documented along the
southern and central coast of ME (NOAA Fisheries, 2022). Between June
1, 2022 and July 16, 2023, 65 grays seals, 379 harbor seals, and 6 harp
seals have stranded. As noted previously, no injury, serious injury, or
mortality is expected or will be authorized, and takes of harbor seal,
gray seal, and harp seal will be minimized through the incorporation of
the required mitigation measures. The population abundance for these
species is 61,336, 27,300, and 7.6 million, respectively (Hayes et al.,
2022). The 3,882 takes that may be authorized across these species
represent a small proportion of each population and as such we do not
expect this authorization to exacerbate or compound upon these UMEs.
The project is also not expected to have significant adverse
effects on affected marine mammals' habitats. No ESA-designated
critical habitat or recognized Biologically Important Areas are located
within the project area. The project activities are not expected to
modify existing marine mammal habitat for a significant amount of time.
The activities may cause a low level of turbidity in the water column
and some fish may leave the area of disturbance, thus temporarily
impacting marine mammals' foraging opportunities in a limited portion
of the foraging range; but, because of the short duration of the
activities and the relatively small area of the habitat that may be
affected (with no known particular importance to marine mammals), the
impacts to marine mammal habitat are not expected to cause significant
or long-term negative consequences. The closest pinniped haulout is
located 2.9 km from the work area but does not intersect with the
harassment zones.
For all species and stocks, take is expected to occur within a
limited, relatively confined area (primarily Raritan Bay) of the
stock's range, which is not of particular importance for marine mammals
that may occur there. Given the availability of suitable habitat
nearby, any displacement of marine mammals from the project areas is
not expected to affect marine mammals' fitness, survival, and
reproduction due to the limited geographic area that will

[[Page 20181]]

be affected in comparison to the much larger habitat for marine mammals
outside the bay along the NJ and NY coasts. Additionally, NMFS
anticipates that the prescribed mitigation will minimize the duration
and intensity of expected harassment events.
Some individual marine mammals in the project area, such as harbor
seals or bottlenose dolphins, may be present and be subject to repeated
exposure to sound from pile driving activities on multiple days.
However, pile driving and extraction is not expected to occur on every
day, and these individuals will likely return to normal behavior during
gaps in pile driving activity within each day of construction and in
between work days. As discussed above, individuals could temporarily
relocate during construction activities to reduce exposure to elevated
sound levels from the project. Additionally, haulout habitat available
for pinnipeds does not intersect with the harassment zones. Therefore,
any behavioral effects of repeated or long duration exposures are not
expected to negatively affect survival or reproductive success of any
individuals. Thus, even repeated Level B harassment of some small
subset of an overall stock is unlikely to result in any effects on
rates of reproduction and survival of the stock.
In summary and as described above, the following factors primarily
support our determination that the impacts resulting from this activity
are not expected to adversely affect any of the species or stocks
through effects on annual rates of recruitment or survival:
No serious injury or mortality is anticipated or
authorized;
The anticipated impacts of the planned activity on marine
mammals will be temporary behavioral changes due to avoidance of the
project area and limited instances of Level A harassment in the form of
a slight PTS for pinnipeds. Potential instances of exposure above the
Level A harassment threshold are expected to be relatively low for most
species;
The availability of alternate areas of similar habitat
value nearby;
Effects on species that serve as prey species for marine
mammals from the planned project are expected to be short-term and are
not expected to result in significant or long-term consequences for
individual marine mammals, or to contribute to adverse impacts on their
populations;
There are no known important feeding, breeding, or calving
areas in the project area; and,
The established mitigation measures, including visual
monitoring, shutdown zones, and soft start, are expected to minimize
potential impacts to marine mammals.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the required monitoring and
mitigation measures, NMFS finds that the total marine mammal take from
the planned activity will have a negligible impact on all affected
marine mammal species or stocks.

Small Numbers

As noted previously, only take of small numbers of marine mammals
may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is fewer than one-third of the species or stock
abundance, the take is considered to be of small numbers. Additionally,
other qualitative factors may be considered in the analysis, such as
the temporal or spatial scale of the activities.
We authorize incidental take of 12 marine mammal stocks. The total
amount of taking authorized is well below one-third of the estimated
stock abundance for all species except for the western north Atlantic
northern coastal migratory stock of bottlenose dolphins (table 8).
The total number of authorized takes for bottlenose dolphins, if
assumed to accrue solely to new individuals of the northern migratory
coastal stock, is >90 percent of the total stock abundance, which is
currently estimated as 6,639. However, these numbers represent the
estimated incidents of take, not the number of individuals taken. That
is, it is highly likely that a relatively small subset of these
bottlenose dolphins will be harassed by project activities.
Western North Atlantic Northern Migratory Coastal bottlenose
dolphins make broad scale, seasonal migrations in coastal waters of the
Western north Atlantic. During the warm months, when the project is
planned, their range extends from the shoreline to the 20 m isobaths
between Assateague, VA to Long Island, NY (Garrison et al., 2017b), an
area spanning approximately 300 linear km of coastline. It is likely
that the majority of the Western North Atlantic Northern Migratory
Coastal bottlenose dolphins will not occur within waters ensonified by
project activities.
In summary, the Western North Atlantic Northern Migratory Coastal
bottlenose dolphins are not expected to occur in a significant portion
of the larger ZOI. Given that the specified activity will be stationary
within an area not recognized as any special significance that would
serve to attract or aggregate dolphins, we therefore believe that the
estimated numbers of takes, were they to occur, likely represent
repeated exposures of a much smaller number of bottlenose dolphins and
that these estimated incidents of take represent small numbers of
bottlenose dolphins.
Based on the analysis contained herein of the planned activity
(including the required mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS finds that small numbers of
marine mammals will be taken relative to the population size of the
affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16
U.S.C. 1531 et seq.) requires that each Federal agency insure that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat. To ensure ESA compliance for the issuance of IHAs,
NMFS consults internally whenever we propose to authorize take for
endangered or threatened species, in this case with the NMFS Greater
Atlantic Regional Fisheries Office (GARFO).
OPR requested initiation of consultation with GARFO under section 7
of the ESA on the issuance of the IHA to Transco under section
10(a)(5)(D) of the MMPA. On March 6, 2024, GARFO concluded consultation
with OPR and the U.S. Army Corps of Engineers concerning the conduct of
the specified activities which concluded that the

[[Page 20182]]

issuance of the authorization is not likely to adversely affect any
listed marine mammal species.

National Environmental Policy Act

To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must evaluate our proposed action (i.e., the issuance of an IHA)
and alternatives with respect to potential impacts on the human
environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or
mortality) of the Companion Manual for NAO 216-6A, which do not
individually or cumulatively have the potential for significant impacts
on the quality of the human environment and for which we have not
identified any extraordinary circumstances that precludes this
categorical exclusion. Accordingly, NMFS has determined that the
issuance of this IHA qualifies to be categorically excluded from
further NEPA review.

Authorization

NMFS has issued an IHA to Transco for the potential harassment of
small numbers of 11 marine mammal species incidental to the LNYBL
Maintenance project in Sandy Hook Channel, NJ, that includes the
previously explained mitigation, monitoring and reporting requirements.

Dated: March 14, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-05998 Filed 3-20-24; 8:45 am]
BILLING CODE 3510-22-P

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