[Federal Register Volume 78, Number 67 (Monday, April 8, 2013)]
[Rules and Regulations]
[Pages 20800-20819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-08124]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 110801452-3176-04]
RIN 0648-BB00


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Construction and Operation of a Liquefied Natural Gas 
Deepwater Port in the Gulf of Mexico

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

ACTION: Final rule.

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

SUMMARY: NMFS, upon request of Port Dolphin Energy LLC (Port Dolphin), 
hereby issues regulations pursuant to the Marine Mammal Protection Act 
(MMPA) to govern the unintentional taking of marine mammals, by 
harassment, incidental to port construction and operations at its Port 
Dolphin Deepwater Port in the Gulf of Mexico, over the course of five 
years; approximately June 2013 through May 2018. These regulations, 
which allow for the issuance of Letters of Authorization for the 
incidental take of marine mammals during the described activities and 
specified timeframes, prescribe the permissible methods of taking and 
other means of effecting the least practicable adverse impact on marine 
mammal species or stocks and their habitat, as well as requirements 
pertaining to the monitoring and reporting of such taking.

DATES: Effective from June 1, 2013 through May 31, 2018.

ADDRESSES: A copy of Port Dolphin's application may be obtained by 
writing to Michael Payne, Chief, Permits and Conservation Division, 
Office of Protected Resources, NMFS, 1315 East-West Highway, Silver 
Spring, MD 20910, or visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this 
final rule may also be viewed, by appointment, during regular business 
hours at the above address.

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

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ``* * * an impact resulting from the specified activity that cannot 
be reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: ``any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [`Level A harassment']; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [`Level B harassment'].''

Summary of Request

    On February 1, 2011, we received a complete application from Port 
Dolphin for the taking of marine mammals incidental to port 
construction and operations at its Port Dolphin Deepwater Port (DWP) 
facility in the Gulf of Mexico (GOM). During the effective period of 
this final rule (June 2013-May 2018), Port Dolphin plans to construct 
the DWP and related infrastructure, expected to occur over an 
approximately 11-month period, and will subsequently begin operations. 
The DWP will be an offshore liquefied natural gas (LNG) facility, 
located in the GOM approximately 45 km (28 mi) off the western coast of 
Florida, and approximately 68 km (42 mi) from Port Manatee, located in 
Manatee County, Florida, within Tampa Bay (see Figure S-1 in Port 
Dolphin's application). The DWP will be in waters of the U.S. Exclusive 
Economic Zone (EEZ) approximately 31 m (100 ft) in depth and will 
consist principally of a permanently moored buoy system, designed for 
offloading of natural gas, leading to a single new natural gas 
transmission pipeline that will come ashore at Port Manatee and connect 
to existing infrastructure.
    Take of marine mammals is expected to occur as a result of the 
introduction of sound into the marine environment during construction 
of the DWP and pipeline and during DWP operations, which will involve 
shuttle regasification vessel (SRV) maneuvering, docking, and 
debarkation, as well as regasification activity. Because the specified 
activities have the potential to take marine mammals present within the 
action area, Port Dolphin may be authorized to incidentally take, by 
Level B harassment only, small numbers of bottlenose dolphin (Tursiops 
truncatus) and Atlantic spotted dolphin (Stenella frontalis).

Description of the Specified Activity

    Port Dolphin's proposed activities were described in detail in the 
Federal Register notice announcing the proposed rule (77 FR 55646; 
September 10, 2012); please see that document for more information. 
Port Dolphin plans to construct and operate a DWP in the U.S. EEZ of 
the GOM Outer Continental Shelf (OCS) approximately 45 km (28 mi) off 
the western coast of Florida to the southwest of Tampa Bay, in a water 
depth of approximately 31 m (100 ft). On March 29, 2007, Port Dolphin 
submitted an application to the U.S. Coast Guard (USCG) and the U.S. 
Maritime Administration (MARAD) for all federal authorizations required 
for a

[[Page 20801]]

DWP license under the Deepwater Port Act of 1974 (DWPA). Port Dolphin 
received that license in October 2009. The Port will consist of a 
permanently moored unloading buoy system with two submersible buoys 
separated by a distance of approximately 5 km (3 mi). The buoys are 
designed to moor a specialized type of LNG carrier vessel (i.e., SRVs) 
and remain submerged when vessels are not present. Regasified natural 
gas is sent out through the unloading buoy to a 36-in (0.9 m) pipeline 
that will connect onshore at Port Manatee with the existing Gulfstream 
Natural Gas System and Tampa Electric Company (TECO) Bayside pipeline. 
The DWP will only serve SRVs. Construction of the DWP is expected to 
take 11 months. Port Dolphin DWP will be designed, constructed, and 
operated in accordance with applicable codes and standards and will 
have an expected operating life of approximately 25 years. The 
locations of the DWP and associated pipeline are shown in Figure S-1 in 
Port Dolphin's application; Figure 1-1 of the same document depicts a 
conceptual site plan for the DWP.
    Construction activities, expected to last a total of approximately 
11 months, will include construction and installation of offshore 
buoys, mooring lines, and anchors (i.e., the DWP facilities) and laying 
the marine pipeline. Construction is expected to be continuous from 
mobilization to demobilization with no work stoppages due to weather or 
other issues. Please see Table 2-1 of Port Dolphin's application for a 
graphical depiction of the complete timeline of proposed construction 
activities. The two unloading buoys, also known as submerged turret 
loading (STL) buoys, will each have eight mooring lines connected to 
impact-driven anchor points. When not connected to a SRV, STL buoys 
will be submerged 60 to 70 ft (18 to 21 m) below the sea surface. 
Offshore installation activities at the DWP will begin with 
installation of pipeline end manifolds (PLEMs) at both STL buoy 
locations (north and south), followed by placement of the buoy anchors, 
mooring lines, buoys, and risers. Installation activities at both STL 
buoy locations will require a cargo barge, supported by 
anchor[hyphen]handling support vessels, a supply boat, a crew transfer 
boat, and a tug. Buoy anchors will be installed via impact pile 
driving.
    The installation of the pipeline from the DWP to shore will include 
burial of the pipeline, selective placement of protective cover (either 
rock armoring or concrete mattresses) over the pipeline at several 
locations along the pipeline route where full burial is not possible, 
and the horizontal directional drilling (HDD) of three segments of the 
pipeline. The pipeline will be laid on the seafloor by a pipelaying 
barge and then buried, typically using a plowing technique. Other 
techniques, such as dredging and HDD, are planned to be used in certain 
areas depending on the final geotechnical survey, engineering 
considerations, and equipment selection. At the western (seaward) end, 
the pipeline will consist of two 36-in (0.9-m) flowlines connected to 
the north and south PLEMs, which will connect at a Y-connection 
approximately 3.2 km (2 mi) away (see Figure 1-1 in Port Dolphin's 
application). From the Y-connection a 36-in (0.9-m) gas transmission 
line will travel approximately 74 km (46 mi) to interconnections with 
the Gulfstream and TECO pipeline systems.
    Pipeline trenching and burial requirements are governed by 
Department of the Interior regulations at 30 CFR part 250 subpart J, 
which requires pipelines and all related appurtenances to be protected 
by 3 ft (0.9 m) of cover for all portions in water depths less than 200 
ft (61 m). Portions of the pipeline that travel through hard-bottom 
areas may not be able to be buried to the full 3 ft depth. In these 
areas, flexible concrete mattresses or other cover will be used to 
cover the pipeline. In places where the pipeline crosses shipping 
lanes, it will be buried 10 ft (3 m) deep if the sea floor permits 
plowing. Under the plowing method, the pipeline is lowered below seabed 
level by shearing a V[hyphen]shaped ditch underneath it. The plow is 
towed along and underneath the pipeline by the burial barge. As the 
ditch is cut, sediment is removed and passively pushed to the side by 
specially shaped moldboards that are fitted to the main plowshare. The 
trench is then backfilled with a subsequent pass of the plow (see 
Figure 1-2 in Port Dolphin's application for a conceptual diagram of 
this process).
    In areas that cannot be plowed (e.g., due to hard/live bottom) or 
complete burial cannot be achieved, the pipeline will be covered with 
an external cover (e.g., concrete mattresses or rock armoring). 
Although plowing is the preferred methodology for pipeline burial, 
other techniques such as dredging and HDD would be used where required. 
Figure 1-3 of Port Dolphin's application uses color coding of the 
pipeline route to show where these various methodologies may be used, 
based on bottom structure and other barriers. The total length of the 
pipeline route is 74 km.
    HDD will be employed for installation of the pipeline at three 
locations along the inshore portion of the route. The planned HDD 
locations include drilling from land to water at the Port Manatee shore 
approach and from water-to-water at two crossings of the existing 
Gulfstream pipeline. The eastern HDD crossing is 898 m (2,947 ft) in 
length, and the western HDD crossing is 407 m (1,335 ft) in length. 
Port Dolphin plans to install ``goal post'' support structures for pipe 
materials at the two water-to-water HDD locations; this is likely to 
require vibratory pile driving. At the shore-to-water transition HDD, 
Port Dolphin will need to install sheet piling to form a coffer dam, 
designed to contain the HDD exit pit so as to not impact nearby aquatic 
vegetation. Sheet pile segments will also be installed by vibratory 
means. Clamshell dredging may be required in certain areas, shown in 
Figure 1-3 of Port Dolphin's application. Various barges, tugs, and the 
clamshell dredge will be mobilized for offshore pipe-laying activities. 
This equipment would be used where conventional installation methods 
are anticipated. An HDD spread, including multiple barges and tugs, 
would be used for the three planned HDD segments.
    SRVs are specialized LNG carriers designed to regasify the LNG 
prior to off-loading for transport to shore. Each STL buoy will moor 
one SRV on location throughout the unloading cycle. An SRV will 
typically moor at the deepwater port for between 4 and 8 days, 
depending on vessel size and send-out rate. Unloading of natural gas 
(i.e., vaporization or regasification) will occur through a flexible 
riser connected to the STL buoy and into the PLEM for transportation to 
shore via the subsea pipeline. With two separate STL buoys, Port 
Dolphin may schedule an overlap between arriving and departing SRVs, 
thus allowing natural gas to be delivered in a continuous flow. For the 
duration of this rule, Port Dolphin is planning for an initial natural 
gas throughput of 400 million standard cubic feet per day (MMscfd). 
Based on a regasification cycle of approximately 8 days and initial 
throughput of 400 MMscfd, maximum vessel traffic during operations over 
the lifetime of this final rule is projected to consist of 46 SRV 
unloadings per year.
    DWP operations will include SRV maneuvering/docking, regasification 
of LNG cargo, and debarkation. In the open ocean, the SRVs typically 
travel at speeds of up to 19.5 kn (36.1 km/hr), reducing to less than 
14 kn (25.9 km/hr) while maintaining full maneuvering speed. However, 
once approaching the vicinity of the DWP--within

[[Page 20802]]

approximately 16 to 25 km (10-16 mi) of the DWP--the SRVs will begin 
approach by slowing to about half speed, and then to slow ahead. Inside 
of 5 km (3.1 km) from the DWP, the SRVs' main engines will be placed in 
dead slow ahead and decreased upon approach to dead slow, with final 
positioning and docking to occur using thrusters. Expected SRV transit, 
approach, and maneuvering/docking characteristics are outlined in Table 
1. Only the maneuvering/docking activities and their associated sound 
sources (i.e., thrusters) were considered in the proposed rulemaking; 
transit and approach maneuvers are considered part of routine vessel 
transit and are not included in this final rule.

   Table 1--SRV Speeds and Thruster Use During Transit, Approach, and
                Maneuvering/Docking Operations at the DWP
------------------------------------------------------------------------
              Zone                    Speed limit      Thrusters in use?
------------------------------------------------------------------------
> 33 km from DWP................  Full service speed  No.
                                   (19.5 kn).
25-33 km from DWP...............  Full maneuvering    No.
                                   speed (<14 kn).
16-25 km from DWP...............  Half ahead (<10     No.
                                   kn).
5-16 km from DWP................  Slow ahead (<6 kn)  No.
Inside 5 km from DWP............  Dead slow ahead     Bow and stern
                                   (<4.5 kn,           thrusters.
                                   decreasing to <3
                                   kn).
Docking.........................  Dead slow.........  Two bow thrusters;
                                                       possibly one or
                                                       two stern
                                                       thrusters.
------------------------------------------------------------------------

Method of Incidental Taking

    Incidental take is anticipated to result from elevated levels of 
sound introduced into the marine environment by the construction and 
operation of the DWP, as described in preceding sections. Specifically, 
sound from pile driving, drilling, pipe laying and burial, and vessel 
operations during the construction and installation phase, and sound 
from SRV maneuvering, docking, and regasification during operations may 
result in the behavioral harassment of marine mammals present in the 
vicinity. Certain described activities (e.g., pipeline laying and 
burial) involve a suite of sound sources considered as a single modeled 
scenario, including vessel noise from tugboats as well as barges with 
equipment operating on them. The vessel noise component of these 
activities is not considered routine vessel transit here and so is 
analyzed in this rule as a component of the overall activity scenario. 
The vessels considered as elements of these scenarios are in some cases 
engaged in non-transit activities, such as anchoring operations. 
However, we agreed with Port Dolphin's overall approach to analyzing 
the effects of these proposed activities, which included modeling all 
sound-producing components. Table 2 shows these proposed activities by 
the time of year they are anticipated to occur.

     Table 2--Summary of Construction, Installation, and Operations
                          Activities, by Season
------------------------------------------------------------------------
                Activity                              Season
------------------------------------------------------------------------
                      Construction and installation
------------------------------------------------------------------------
Buoy installation......................  Summer 2013.
Offshore impact hammering..............  Summer 2013.
Pipelaying offshore....................  Late Summer 2013 through early
                                          Winter 2013-14.
Pipelaying inshore.....................  Late Summer 2013 through early
                                          Winter 2013-14.
Offshore pipeline burial...............  Fall 2013 through Winter 2013-
                                          14.
Inshore pipeline burial................  Fall 2013 through Winter 2013-
                                          14.
HDD....................................  Summer 2013.
HDD vibratory driving..................  Summer 2013.
------------------------------------------------------------------------
                               Operations
------------------------------------------------------------------------
SRV maneuvering/docking................  Year-round; maximum 46 visits
                                          per year.
Regasification.........................  Year-round; 8 days estimated
                                          per visit.
------------------------------------------------------------------------

    During construction, underwater sound will be produced by machinery 
(e.g., pile driving and pipe laying equipment, trenching equipment, and 
goal post installation equipment at the HDD locations) and construction 
vessels (in certain scenarios, e.g., barges and tugboats used for pipe 
laying) operating either intermittently or continuously throughout the 
area during the construction period. Vessel sound considered under 
certain scenarios will be created by propulsion machinery, thrusters, 
generators, and hull vibrations and will vary with vessel and engine 
size. Machinery sound from underwater construction will be transmitted 
through water and will vary in duration and intensity. Port 
construction (i.e., field construction and installation operations) is 
expected to require approximately 11 months. While the main sound 
source during SRV transit and approach to the DWP will originate from 
the SRV main engines (i.e., predominantly in low frequencies), the 
primary sound source during maneuvering and docking will be the SRV 
thrusters.

Description of Sound Sources

    An in-depth description of sound sources in general was provided in 
the FR notice (77 FR 55646; September 10, 2012). Significant sound-
producing activities are described in the preceding sections. Known 
sound levels and frequency ranges associated with anthropogenic sources 
similar to those

[[Page 20803]]

that would be used for this project are summarized in Table 3. Details 
of each of the sources are described in the following text.

     Table 3--Anticipated Source Levels for Construction/Installation and Operations at the Port Dolphin DWP
----------------------------------------------------------------------------------------------------------------
                                                                                             Maximum  broadband
              Source                         Activity                    Location           source level  (re: 1
                                                                                                 [micro]Pa)
----------------------------------------------------------------------------------------------------------------
Barge.............................  Anchor installation         STL buoys (DWP)..........  177 dB.
                                     operations.
Tug...............................  Anchor installation         STL buoys (DWP)..........  205 dB.
                                     operations.
Impact hammer \1\.................  Pile driving..............  STL buoys (DWP)..........  217 dB.
Barge.............................  Pipe laying...............  Pipeline corridor, DWP to  174 dB.
                                                                 shore.
Tug...............................  Transit...................  Offshore/Inshore.........  191 dB.
Dredge............................  Dredging..................  Likely inshore, offshore   188 dB.
                                                                 if necessary.
HDD...............................  Drilling..................  Two locations in Tampa     157 dB.
                                                                 Bay.
Vibratory driving.................  Sheet pile installation...  Two locations in Tampa     186 dB.
                                                                 Bay.
SRV...............................  Maneuvering/docking, with   DWP......................  183 dB.
                                     thrusters.
SRV...............................  Regasification............  DWP......................  165 dB.
----------------------------------------------------------------------------------------------------------------
Source: JASCO, 2008, 2010.
\1\ Source level for impact hammer estimated assuming pulse length of 100 ms.

    The sounds produced by these activities fall into one of two sound 
types: Pulsed and non-pulsed. Examples of non-pulse sounds include 
those produced by vessels, aircraft, machinery operations such as 
drilling or dredging, and vibratory pile driving. Many of the sounds 
produced by the project will be transient in nature (i.e., the source 
moves), such as during vessel docking. Regasification sounds are 
continuous (while the SRV is docked) and stationary. The positioning 
(maneuvering and docking) of SRVs using thrusters is intermittent 
(i.e., every 8 days) and of short duration (i.e., 10 to 30 minutes). 
For this project, the only pulsive sounds are associated with pile 
driving activities at the offshore Port location (i.e., associated with 
anchor installation activities). Sound levels can be greatly reduced 
during impact pile driving using sound attenuation devices. The 
information available suggests that bubble curtains, cushion blocks and 
caps, and temporary sound attenuation piles offer comparable levels of 
sound attenuation for pile driving. Port Dolphin plans to implement one 
or more of these techniques during the pile driving activities needed 
to install components of the STL buoys and will make a final decision 
with regard to the technology to be used prior to beginning work.

Sound Thresholds

    Since 1997, NMFS has used generic sound exposure thresholds to 
determine when an activity in the ocean that produces sound might 
result in impacts to a marine mammal such that a take by harassment or 
injury might occur. Current NMFS practice regarding exposure of marine 
mammals to high level sounds is that cetaceans exposed to impulsive 
sounds of 180 dB rms or above are considered to have been taken by 
Level A (i.e., injurious) harassment. Behavioral harassment (Level B) 
is considered to have occurred when marine mammals are exposed to 
sounds at or above 160 dB rms for impulse sounds (e.g., impact pile 
driving) and 120 dB rms for continuous sound (e.g., vessel sound, 
vibratory pile driving) but below injurious thresholds.

Distance to Sound Thresholds

    Sound source modeling produced under contract by the applicant 
(JASCO, 2008, 2010) details the predicted distances to relevant 
regulatory sound thresholds for the specified activities, and was 
described in detail in the Federal Register notice announcing the 
proposed rule (77 FR 55646; September 10, 2012). We have determined 
that this information represents the best information available for 
project sound sources and used the information to develop mitigation 
measures and to estimate potential incidental take. The modeling 
scenarios considered all sound sources associated with the project and 
were developed to thoroughly characterize the various construction/
installation and operation activities expected. The relevant 
information is summarized in Table 4. For each piece of equipment 
specified, proxy vessels were selected from JASCO Research's database 
of underwater sound measurements. The sound propagation model used 
several parameters, including expected water column sound speeds, 
bathymetry (water depth and shape of the ocean bottom), and bottom 
geoacoustic properties (which indicate how much sound is reflected off 
of the ocean bottom), to estimate the radii of sound impacts (JASCO, 
2008). Modeling scenario locations are depicted in Figure 1-4 of Port 
Dolphin's application. Please see Appendices C and D in Port Dolphin's 
application for a detailed description of this sound source modeling.

                Table 4--Representative Scenarios Modeled During the Port Dolphin Sound Source Analysis and Radial Distance to Thresholds
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                          Approximate area  encompassed
             Activity                         Source               Modeled location        Distance to threshold 1 2            by  threshold \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Buoy installation.................  Crane vessel, cargo barge,  North STL buoy;        180 dB: <0.2 km.................  180 dB: <0.13 km \2\
                                     support vessel.             offshore DWP site.    120 dB: 3.9 km..................  120 dB: 48 km \2\
Impact hammering..................  Impact hammer.............  Y-connector; offshore  180 dB: 0.18 km.................  180 dB: 0.10 km \2\
                                                                 DWP site.             160 dB: 4.5 km..................  160 dB: 64 km \2\

[[Page 20804]]

 
Pipelaying, offshore..............  Barge, two anchor handling  15-m isobath.........  180 dB: <0.2 km.................  180 dB: <0.13 km \2\
                                     tugs, support tug.                                120 dB: 7.5 km..................  120 dB: 177 km \2\
Pipelaying, inshore...............  Barge, two anchor handling  Tampa Bay............  180 dB: <0.2 km.................  180 dB: <0.13 km \2\
                                     tugs, support tug.                                120 dB: 6.0 km..................  120 dB: 113 km \2\
Pipeline burial, offshore.........  Plow system, two anchor     15-m isobath.........  180 dB: <0.2 km.................  180 dB: <0.13 km \2\
                                     handling tugs.                                    120 dB: 8.4 km..................  120 dB: 222 km \2\
Pipeline burial, inshore..........  Plow system, two anchor     Tampa Bay............  180 dB: <0.2 km.................  180 dB: <0.13 km \2\
                                     handling tugs.                                    120 dB: 6.7 km..................  120 dB: 141 km \2\
HDD...............................  Floating spud barge, crane  Tampa Bay............  180 dB: <0.01 km................  180 dB: <0.00 km \2\
                                     mounted drill, welding                            120 dB: 0.24 km.................  120 dB: 0.2 km \2\
                                     equipment, air
                                     compressor, generator.
HDD vibratory driving.............  Floating spud barge,        Tampa Bay............  180 dB: <0.01 km................  180 dB: <0.00 km \2\
                                     vibrator, welding                                 120 dB: 12.6 km.................  120 dB: 499 km \2\
                                     equipment, air
                                     compressor, generator.
Docking at buoy, dead slow, two     SRV.......................  STL buoy; offshore     180 dB: <0.01 km................  180 dB: <0.00 km \2\
 bow thrusters and one stern                                     DWP site.             120 dB: 3.6 km..................  120 dB: 41 km \2\
 thruster.
Regasification....................  SRV.......................  STL buoy; offshore     180 dB: 0.00 km.................  180 dB: <0.00 km \2\
                                                                 DWP site.             120 dB: 0.17 km.................  120 dB: 0.09 km \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: JASCO, 2008, 2010.
\1\ All distances are unweighted, 95th percentile radial distances.
\2\ For distances not given precisely (e.g., <0.2 km) area of ensonification was modeled using a radial distance of 200 m. Although the distance to
  threshold would be less than 200 m, it is not possible to specifically calculate the distance because the scenarios involve multiple vessel
  components.

    In many cases the scenarios listed in Table 4 involve multiple 
pieces of equipment. Although equipment spacing may vary during the 
course of operations, a single layout must be assumed for modeling 
purposes. As such, where multiple vessels were involved in the 
scenarios, it was assumed that the layout, or ``spread,'' would include 
the primary operational barge set in the middle of the group of 
vessels, with support vessels spaced at a range of 100 m (328 ft) from 
the center of the barge.
    Although sounds created by construction equipment and vessels will 
be continuous during pipeline installation, activities will progress 
slowly along the pipeline route as the pipeline is laid and buried and 
the trench backfilled. Any one area will be subject to the maximum 
sound levels for only 1 to 2 days at a time as the construction 
activities pass that area. Sound modeling indicates that, overall, 
operational sound associated with the project is consistent with other 
man[hyphen]made underwater sound sources in the area (e.g., commercial 
shipping and dredging). Appendix E of Port Dolphin's application 
presents Level B harassment sound field graphics for construction 
activities.

Comments and Responses

    On September 10, 2012, we published a proposed rulemaking in the 
Federal Register (77 FR 55646) and requested comments and information 
from the public for 45 days. We received three sets of substantive 
comments, from the Marine Mammal Commission (Commission) and two 
private citizens. In addition, the U.S. Department of the Interior 
notified us that they reviewed the proposed rulemaking and did not have 
any comments. The comments, and our responses, are provided here. The 
Commission's comments are addressed first.
    The Commission stated that, with some exceptions, our proposed 
suite of mitigation and monitoring measures is thorough and appropriate 
for the activities being considered. However, the Commission also 
recommended that we require implementation of several additional 
measures, all of which are similar to requirements NMFS has imposed on 
other applicants in significantly different contexts. Important 
differences exist between those projects and the action considered 
here, and we have determined that some of the Commission's 
recommendations are not appropriate for the Port Dolphin project. In 
addition, the MMPA requires that we weigh practicability of a measure, 
as well as conservation benefit, when considering what measures are 
warranted. Additional recommendations indicate some need for 
clarification, which we will provide below.
    The Commission recommends that we require Port Dolphin to submit 
the preliminary results of its in-situ sound source measurements and 
adjust the size of the Level A and B harassment zones, as necessary, 
within 5 days after it initiates construction activities. The 
Commission's recommendations are similar to requirements we have 
imposed on the oil and gas industry for seismic exploration in the 
Arctic waters of Alaska. We agree that quickly making any necessary 
adjustments to mitigation zones following in-situ verification of 
modeled sound sources is appropriate for high-impact activities 
conducted in sensitive environments and affecting vulnerable species 
(e.g., Arctic seismic surveys and impacts to endangered bowhead whales 
[Balaena mysticetus]). In addition, this measure has been required in 
the Arctic to address concerns related to the availability of marine 
mammals for subsistence hunting. However, we do not believe such a 
measure is warranted or necessary for Port Dolphin's relatively low-
impact activities, which will not affect sensitive species, and do not 
have the potential to affect subsistence users as none are present in 
the Gulf of Mexico.
    The Commission also recommends that we require Port Dolphin to 
monitor the full extent of the Level A and B harassment zones to detect 
the presence and characterize the behavior of marine mammals during all 
construction activities. We agree with the Commission that the full 
extent of any

[[Page 20805]]

Level A harassment zone should be monitored. The Level A mitigation 
zone for impact pile driving, for example, extends to 250 m from the 
source and can be confidently monitored to detect the presence of 
marine mammals and implement any necessary shutdown. Beyond this 
distance, monitoring is conducted for the purpose of gathering 
information about the level of taking or impacts to the population. 
However, we have concluded that it is not necessary to monitor the full 
extent of the Level B harassment zones (which range up to 500 km\2\). 
These zones will be observed as far as line of sight (e.g., up to 
approximately 1,000 m, depending on weather and sea state conditions). 
The presence of and observable effects to marine mammals within this 
portion of the zone will be recorded, and these observations are 
expected to provide sufficient information. Underwater noise generated 
by the activity attenuates with distance from the source; therefore, it 
is unlikely that animals at greater distance would display adverse 
reactions unlike, or of greater magnitude, than those within the 
observed zone. Moreover, our modeling and analyses have already 
predicted the anticipated level of take in the Level B zone, and we 
have assessed, through our negligible impact determination, the 
potential impacts on the affected species. Finally, we do not believe a 
more extensive and costlier monitoring program, e.g., vessel-based or 
aerial-based observers, will yield added conservation value or produce 
any greater information about the potential effects on delphinids.
    The Commission recommends that we require Port Dolphin to install 
and maintain a long-term passive acoustic monitoring array at the 
proposed port to (1) determine ambient (pre-construction), 
construction, and operational (post-construction) sound levels and (2) 
monitor the occurrence of marine mammals in the vicinity of the port. 
We agree with the Commission that acoustic monitoring can improve our 
understanding of ambient sound levels and marine mammal presence in the 
vicinity of the port and, as described in the proposed rule and carried 
forward here, we are requiring Port Dolphin to make such measurements. 
In addition, trained marine mammal observers will be required during 
the construction phase of the project and should be able to collect 
additional information as recommended by the Commission.
    We have determined that longer-term monitoring of occurrence and 
habitat use of marine mammals during port operations is not warranted 
in this case. This type of monitoring would be most beneficial during 
operation of the port. However, we have determined that port operation 
is a low-impact activity, consisting of ocean-going cargo vessels 
calling on the deepwater port every eight days and producing relatively 
low levels of non-pulsed noise (see our Negligible Impact 
Determination, later in this document). This level of activity is small 
(estimated at 46 vessels calling on the port per year) relative to 
existing vessel traffic in the eastern Gulf of Mexico and is unlikely 
to appreciably impact marine mammals' fitness. In addition, the long-
term maintenance of a larger array would require different technical 
specifications and configuration than what is necessary for the focused 
task of measuring sound associated with the project. Such an array was 
developed in Massachusetts waters, in collaboration with Stellwagen 
Bank National Marine Sanctuary and Cornell University, in order to 
characterize vessel noise and monitor the presence of large, endangered 
whales (including the North Atlantic right whale [Eubalaena 
glacialis]). The array was used in a regulatory context in order to 
alert large vessels to the presence of whales and avoid ship strikes. 
The need for such an undertaking is lacking here, as there are no large 
whales or other sensitive species or habitat present in the vicinity of 
the port, and there is no partnership necessary to successfully deploy, 
maintain, and analyze data from such an array.
    The Commission also recommends we require that any data collected 
by Port Dolphin should be shared with the Gulf of Mexico Coastal Ocean 
Observing System for integration with other oceanographic data. We 
agree with this recommendation and may, as appropriate, share any non-
privileged data with the network.
    Additional Commission recommendations require some clarification. 
The Commission recommends that we base our negligible impact 
determinations on (1) the estimated mean number of individuals of each 
species in the area that may be taken plus some measure of uncertainty 
for each species or (2) the estimated maximum number of each species in 
the project area that may be taken. The best available scientific 
information does not allow us to pursue the Commission's analytical 
approach. Instead, we are confident that the information presently 
available is sufficient to support our negligible impact determination. 
The density information we used is from a U.S. Navy review of available 
marine mammal survey data for the eastern Gulf of Mexico (USDON, 2003). 
Those analyses do not quantify a single measure of variability for the 
density estimates provided. The Navy did, however, qualitatively assess 
certainty related to the derived density estimates using a decision-
tree process, and the information used for our current assessment had 
the highest degree of certainty (i.e., was derived directly from line-
transect survey data). See USDON, 2003 for more information.
    The Commission also recommended that we require Port Dolphin to 
expand the size of the Level A harassment zone for buoy installation, 
pipeline burial, and pipe laying activities to at least 200 m. The 
Commission notes a 91-m Level A harassment zone in their rationale for 
this recommendation, but no shutdown zone related to underwater noise 
is planned for these activities. The 100-yd (91-m) shutdown zone 
referenced by the Commission is not a mitigation zone for sound, but 
relates to ship strike avoidance measures recommended for all vessels. 
These activity scenarios involve a modeled configuration of multiple 
working vessels, and it was not feasible to define fixed zones of 
ensonification within 200 m of the assumed scenario. Regardless, these 
activities produce relatively low levels of non-pulsed noise, and the 
risk of injury from these sounds is considered minimal, thereby 
allowing us to conclude that a shutdown zone for these types of 
activities is unnecessary. Further, a true shutdown zone is not 
practicable, as it is unlikely that these activities--involving 
multiple tugs and barges moving slowly while either laying or burying 
pipeline or anchoring the buoys, and thus essentially tethered to the 
bottom--could be quickly shut down in a way that would provide any 
benefit to marine mammals, who can move away from a potentially 
injurious sound source much more quickly than these activities could 
safely be shut down. See descriptions of these scenarios under Sound 
Thresholds, earlier in this document, and an analysis of potential 
impacts associated with these activities in the Negligible Impact and 
Small Numbers Analysis and Determination, later in this document.

Additional Comments and Responses

    Comment 1: One commenter encourages us to consider including 
temporal restrictions (both seasonal and diurnal) in the mitigation 
strategy to further ensure that the activity results in negligible 
impact on the affected marine mammal stocks and populations.
    Response: We agree that considerations of the temporal

[[Page 20806]]

distribution of animals and activities important to their life history 
are helpful in informing a mitigation strategy. As the commenter notes, 
Port Dolphin has already set up their construction timeline in part to 
avoid seasons when more animals will be present. However, we do not 
plan to restrict Port Dolphin's specific activities through binding 
measures, as the commenter suggests. As with any construction project, 
there is the possibility of delays beyond the control of the action 
proponent. While a shift in seasonality of certain activities could 
potentially result in higher levels of incidental take than 
anticipated, we prescribe monitoring so that we are aware of how much 
take is occurring and can thereby adaptively manage the action 
accordingly.
    Comment 2: Another commenter states that incidental take should be 
estimated separately for the bay, sound, and estuarine stocks of 
bottlenose dolphins (hereafter referred to as ``bay dolphins'') due to 
increased vulnerability and unique characteristics found in these 
stocks compared to the coastal stocks.
    Response: While we agree that this would be preferred, we do not 
believe that we have sufficient information to separately estimate 
incidental take for bay dolphin communities and for the coastal stock. 
Instead, we described what we know about the degree to which the 
specified activities might affect bay dolphins versus coastal dolphins, 
as well as discussing reasons why the anticipated effects would be 
expected to result in a negligible impact on bay dolphins in 
particular. That discussion is found on pages 55674-55675 of the 
proposed rulemaking.
    The commenter feels that because we presented an abundance estimate 
for bay dolphins we should be able to specify how many of the 
anticipated incidences of incidental take might accrue to those 
particular dolphins. This abundance estimate was presented for 
reference only, as it cannot be considered current and is an aggregate 
estimate for the Tampa Bay and Sarasota Bay dolphin communities (which 
are considered separate). However, the primary problem is not in the 
lack of a current abundance estimate but in the fact that there is no 
dividing line beyond which we can say specifically which dolphins would 
be affected. Mixing is known to occur amongst bay dolphin communities 
(St. Joseph Sound-Clearwater Harbor, Tampa Bay, and Sarasota Bay-Little 
Sarasota Bay in this case, at minimum) and between those communities 
and coastal dolphins. Therefore, while we can say with certainty that 
the offshore activities will not affect bay dolphins, we have no 
information for inshore activities to indicate how many incidences of 
take may accrue to bay dolphins (and from which population) versus 
coastal dolphins.
    The commenter appears to dispute that mixing occurs, noting that 
various bay dolphin populations have been demonstrated to be 
genetically distinct from each other and from coastal dolphins and that 
there are differences in reproductive seasonality between the various 
stocks. These points are valid but do not imply that mixing does not 
occur, as mixing does not imply interbreeding. Interactions of dolphins 
between neighboring areas are not uncommon, yet these groups are 
genetically distinct, as described in Sellas et al. (2005). Group 
sightings of resident Sarasota Bay dolphins have included non-resident 
dolphins, while the reverse is also true (i.e., group sightings of 
coastal dolphins have included Sarasota Bay dolphins). Mixed groups 
containing Sarasota Bay and Tampa Bay dolphins, and mixed groups 
containing Tampa Bay and coastal dolphins, are also commonly observed 
(Weigle, 1990; Wells, 1991).
    The commenter takes further issue with our statement that 
bottlenose dolphins occurring in Tampa Bay are somewhat acclimated to 
disturbance and would not be expected to experience significant 
disruption to behavioral patterns on the basis of short-term and low-
intensity disturbance. We agree that it is possible for animals in an 
environment with heavy human use to nevertheless be disturbed by 
industrial activity. However, in an environment where ambient sound 
levels may already be relatively high and significant industrial and 
recreational vessel traffic occurs (which produce continuous, non-
pulsed sound), additional non-pulsed sound at relatively low levels and 
over short durations is unlikely to result in behavioral disturbance 
sufficient to negatively impact functions important to dolphins' life 
history. Behavioral disturbance is often related to context, and if 
there is some overriding contextual element (e.g., foraging 
opportunity) it is likely that dolphins will either avoid the area over 
only short durations or will simply continue feeding, for example. Also 
of concern was our statement that any takes are likely to represent 
repeated takes of individuals using the area where the activity is 
occurring, rather than each take being of a new individual. We do feel 
that this is an important factor to consider when making a negligible 
impact determination, as the activity is limited in both spatial extent 
and duration. A more pervasive activity, when resulting in behavioral 
disturbance only, could be of greater concern to the population as a 
whole. The commenter quotes a document from NMFS' Southeast Regional 
Office, which states that ``* * * human and/or natural impacts are 
often localized in certain areas creating more potential impacts on the 
health of that particular stock or smaller community rather than on the 
larger population.'' However, this quote (taken out of context) refers 
to dolphin mortalities, which are not expected to occur as a result of 
the specified activity and which are not authorized.
    Comment 3: The commenter offers comment and requests clarification 
regarding certain monitoring and shutdown protocols.
    Response: First, the commenter believes that in-water operations 
should be halted in conditions of inclement weather, when the observer 
would have sole responsibility for determining whether observations 
could continue, or at night, correctly noting that the measure cannot 
be implemented if the animal cannot be observed. In poor visibility, 
either the effectiveness of the measure is compromised or the 
applicant's ability to conduct the activity is restricted, requiring us 
to weigh the nature of the activity and its likely impact against the 
cost of the measure. For Port Dolphin, we have stipulated that impact 
pile driving, which we consider a potentially higher-impact activity, 
cannot occur at night and may not be initiated during other periods 
when visibility is poor (but may continue if already initiated). For 
the other activities, there are no such restrictions. We believe that 
these activities, which produce non-pulsed sound at lower levels, have 
little to no risk of injury and consequently nighttime shutdowns, which 
carry a significant cost for the applicant, are not warranted. 
Additional considerations include (1) That these sound sources are 
effectively continuous, meaning that marine mammals in the vicinity 
cannot be caught unawares by the advent of loud sound and would have 
full opportunity to avoid the sound, (2) that we would expect an animal 
to stay away from a sound-producing activity if the sound is negatively 
affecting the animal, and (3) nighttime shutdowns would significantly 
extend the overall temporal footprint of the project. As a result the 
commenter's approach could reduce incidences of take, but it would 
likely increase the overall number of individuals taken.

[[Page 20807]]

    The commenter was also confused by our description of shutdowns for 
activities involving ``spreads'' of vessels. Please refer to our 
response under Comment 2 for an explanation. Finally, the commenter 
expressed concern over the shutdown exception for animals that 
voluntarily approach vessels. We believe that delphinids are 
sufficiently mobile to avoid strike by extremely slow-moving 
construction barges and support tugs and that the animals have the 
opportunity to avoid the area if the sound is disturbing.

Description of Marine Mammals in the Area of the Specified Activity

    Twenty-nine marine mammals (28 cetaceans and the Florida manatee 
[Trichechus manatus]) have documented occurrences in the GOM (Wursig et 
al., 2000). The manatee is under the jurisdiction of the U.S. Fish and 
Wildlife Service. Of the 28 cetaceans, the majority do not regularly 
occur in the nearshore depth stratum (0 to 37 m) where the specified 
activities are planned to occur. Only Atlantic spotted dolphins and 
bottlenose dolphins commonly occur in these areas and are expected to 
be affected by the specified activities. Detailed accounts for these 
species were provided in the Federal Register notice announcing the 
proposed rule (77 FR 55646; September 10, 2012); please see that 
document for more information.
    The area of actual construction and operations for Port Dolphin is 
entirely contained within the nearshore depth stratum. Maximum depth at 
the DWP is approximately 31 m, while the pipeline route transits 
increasingly shallower waters until entering Tampa Bay and subsequently 
making landfall. However, while the actual construction activities will 
be entirely contained within the nearshore stratum, the sound field 
produced by offshore pipelaying activity, which would occur only from 
late summer 2013 through early winter 2013-14, extends into the mid-
shelf depth stratum (37 to 91 m). The Level B sound field for this 
activity would be 99.9 percent contained within the nearshore stratum, 
with 0.1 percent potentially entering the mid-shelf stratum. Dwarf and 
pygmy sperm whales and rough[hyphen]toothed dolphins may be expected to 
occur in the mid[hyphen]shelf stratum on a seasonal basis but are not 
expected to experience incidental harassment from project activities 
based on the small amount of the sound field expected to overlap the 
stratum and the low seasonal densities in that stratum for these 
species.

Potential Effects of the Specified Activity on Marine Mammals

    We have determined that the specified activities, as outlined in 
the project description, have the potential to result in behavioral 
harassment of marine mammals that may be present in the project 
vicinity while the activities are being conducted. The September 10, 
2012, Proposed Rule (77 FR 55646) provided a detailed description of 
marine mammal hearing and of the potential effects of these activities 
on marine mammals.

Anticipated Effects on Habitat

    The specified activities could have some impacts on marine mammal 
habitat, primarily by producing temporary disturbances through elevated 
levels of underwater sound, and to a lesser extent, temporarily reduced 
water quality and temporary and permanent physical habitat alteration. 
These impacts are not expected to have tangible direct effects to 
marine mammals, but could result in minor effects to fish or other 
elements of the marine mammal prey base. Elevated levels of sound may 
be considered to affect the habitat of marine mammals through impacts 
to acoustic space or via impacts to prey species. The direct loss of 
habitat available during construction due to sound impacts is expected 
to be minimal. The FR notice (77 FR 55646; September 10, 2012) 
describes these potential impacts in greater detail.

Mitigation

    In order to issue an incidental take authorization under section 
101(a)(5)(A) of the MMPA, we must, where applicable, set forth the 
permissible methods of taking pursuant to such activity, and other 
means of effecting the least practicable adverse impact on such species 
or stock and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance, and on the 
availability of such species or stock for taking for certain 
subsistence uses (where relevant). NMFS and Port Dolphin worked to 
devise a number of mitigation measures designed to minimize impacts to 
marine mammals to the level of least practicable adverse impact, 
described in the following and in Port Dolphin's Marine Protected 
Species Management Plan; please see Appendix B of Port Dolphin's 
application to review that plan in detail.
    In addition to the measures described later, Port Dolphin will 
employ the following standard mitigation measures:
     All work will be performed according to the requirements 
and conditions of the regulatory permits issued by federal, state, and 
local governments.
     Briefings will be conducted between the Port Dolphin 
project construction supervisors and the crew, protected species 
observer(s) (PSO), and acoustical monitoring team (when present) prior 
to the start of all discrete construction activities, and when new 
personnel join the work, to explain responsibilities, communication 
procedures, marine mammal monitoring protocol, and operational 
procedures.
     Port Dolphin will comply with all applicable equipment 
sound standards and ensure that all construction equipment has sound 
control devices no less effective than those provided on the original 
equipment. In addition, vessel crew and contractors will be required to 
minimize sound to the extent possible. Equipment and/or procedures used 
may include the use of enclosures and mufflers on equipment, minimizing 
the use of thrusters, and turning off engines and equipment when not in 
use.
    Best Management Practices developed by NMFS and other agencies to 
reduce the potential for impacts related to line and cable entanglement 
and marine debris, as well as to reduce potential impacts to habitat, 
were discussed in detail in the preamble to the proposed rulemaking and 
are not discussed here. Additional mitigation measures, which are 
discussed in greater detail below, include a visual monitoring program 
(marine mammal watch) and vessel strike avoidance measures.

Monitoring and Shutdown

    The modeling results for acoustic zones of influence (ZOIs; 
described in following sections) were used to develop mitigation 
measures for the proposed activities. Those zones will initially be set 
at the distances derived through modeling (or be larger than those 
distances), but may be adjusted as necessary on the basis of acoustic 
monitoring conducted by Port Dolphin in order to verify source levels 
and local acoustic propagation characteristics (see Monitoring and 
Reporting, later in this document). The ZOIs effectively represent the 
mitigation zone that will be established around each activity to 
prevent Level A harassment and to monitor authorized Level B harassment 
of marine mammals.
    Shutdown zones (to include areas where SPLs equal or exceed 180 dB 
rms) and disturbance zones (defined as where SPLs equal or exceed 120 
dB or 160 dB rms for non-pulsed or pulsed sound sources, respectively) 
were described in detail in the Federal Register notice announcing the

[[Page 20808]]

proposed rule (77 FR 55646; September 10, 2012). Such zones will be 
established for each specified activity, with certain exceptions. In 
response to comments, the exceptions are clarified. Certain activities 
are not discrete, but rather involve the combination of multiple 
vessels and pieces of equipment modeled in concert and spread over 
variable distances as the activity moves along the pipeline route, for 
example. These activities, including buoy installation (which does not 
include impact pile diving of buoy anchors) and pipeline laying and 
burial, do not have an associated shutdown zone for Level A harassment 
resulting from sound. These activities must adhere to ship strike 
avoidance measures, but the Level A harassment shutdown zone is not 
practicable, for reasons described in our response to Comment 2, above. 
In addition, no shutdown zone for Level A harassment will be required 
for port operations (i.e., SRV maneuvering at the DWP). Similar to the 
construction activities described above, SRV maneuvering is expected to 
produce continuous, non-pulsed sound that does not carry the 
significant potential for Level A harassment and which allows marine 
mammals ample time to move away from the stimulus. Implementation of 
this shutdown zones for operations is not practicable for a variety of 
reasons, nor does it carry meaningful conservation value.
    Level B harassment zones for all construction activities and Level 
A harassment zones for discrete construction activities (impact and 
vibratory pile driving, HDD) will initially conform to those distances 
specified in Table 4, with the exception that the shutdown zone for 
impact pile driving shall be 250 m. Radial distances to shutdown zones 
for HDD activities were predicted to be less than 10 m. In most cases, 
the disturbance zone is of sufficient size to make comprehensive 
monitoring impracticable (the largest radial distance of 12.6 km), 
although PSOs will be aware of the size and location of the modeled 
zone and will record any observations made within the zone as takes.

Monitoring Protocols

    The established zones will be monitored by qualified PSOs for 
mitigation purposes, as described here. Port Dolphin's marine mammal 
monitoring plan (see Appendix B of Port Dolphin's application) will be 
implemented, requiring collection of sighting data for each marine 
mammal observed during the specified construction activities described 
in this document.
    At least two PSOs will conduct monitoring of shutdown and 
disturbance zones for all concurrent specified construction activities 
during daylight hours (civil dawn to civil dusk). PSOs will have no 
other duties for the duration of the watch. Shutdown and disturbance 
zones will be monitored from an appropriate vantage point that affords 
the PSOs an optimal view of the sea surface while not interfering with 
operation of the vessel or in[hyphen]water activities. Full observation 
of the shutdown zone will occur for the duration of the activity.
    Monitoring will occur before, during, and after the activity, 
beginning 30 minutes prior to initiation and concluding 30 minutes 
after the activity ends. If marine mammals are present within the 
shutdown zone prior to initiation, the start will be delayed until the 
animals leave the shutdown zone of their own volition, or until 30 
minutes elapse without resighting the animal(s). PSOs will be on watch 
at all times during daylight hours when in[hyphen]water operations are 
being conducted, unless conditions (e.g., fog, rain, darkness) make 
observations impossible (as determined by the lead PSO). If conditions 
deteriorate during daylight hours such that the sea surface 
observations are halted, visual observations must resume as soon as 
conditions permit. While activities will be permitted during low-
visibility conditions, they (1) must have been initiated following 
proper clearance of the ZOI under acceptable observation conditions; 
and (2) must be restarted, if halted for any reason, using the 
appropriate ZOI clearance procedures.
    If a marine mammal is observed approaching or entering the shutdown 
zone, the PSO will call for the immediate shutdown of in[hyphen]water 
operations. The equipment operator must comply with the shutdown order 
unless human safety is at risk. Any disagreement must be resolved after 
the shutdown takes place. Construction operations will be discontinued 
until the animal has moved outside of the shutdown zone. The animal 
will be determined to have moved outside the shutdown zone through 
visual confirmation by a qualified PSO or after 15 minutes have elapsed 
since the last sighting of the animal within the shutdown zone. The 
following additional measures will apply to visual monitoring:
     Monitoring will be conducted using binoculars and the 
unaided eye. The limits of the designated ZOI will be determined using 
binocular reticle or other equipment (e.g., electronic rangefinder, 
range stick). A GPS unit or range finder will be used for determining 
the observation location and distance to marine mammals and sound 
sources.
     Each PSO will have a dedicated two-way radio for contact 
with the other PSO or field operations manager.
    Whenever a marine mammal species is observed, the PSO will note and 
monitor the position (including relative bearing and estimated distance 
to the animal) until the animal dives or moves out of visual range of 
the PSO. The PSO will continue to observe for additional animals that 
may surface in the area. Often, there are numerous animals that may 
surface at varying time intervals. Records will be maintained of all 
marine mammal species sightings in the area, including date and time, 
weather conditions, species identification, approximate distance from 
the activity, direction and heading in relation to the activity, and 
behavioral correlation to the activity. For animals observed in the 
shutdown zone, additional information regarding actions taken, such as 
duration of the shutdown, behavior of the animal, and time spent in the 
shutdown zone will be recorded. During pile driving activities, data 
regarding the type of pile driven (e.g., material construction and pile 
dimensions), type and power of the hammer used, number of cold starts, 
strikes per minute, and duration of the pile driving activities will be 
recorded.
    Monitoring will be conducted by qualified PSOs. In order to be 
considered qualified, PSOs must meet the following criteria:
     Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance; use of binoculars 
may be necessary to correctly identify the target.
     Advanced education in biological science, wildlife 
management, mammalogy, or related fields (bachelor's degree or higher 
is required).
     Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience).
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors.
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations.
     Writing skills sufficient to prepare a report of 
observations, including, but not limited to, the number and species of 
marine mammals observed; dates and times when in-water construction

[[Page 20809]]

activities were conducted; dates and times when in-water construction 
activities were suspended to avoid potential incidental injury from 
construction sound of marine mammals observed within a defined shutdown 
zone; and marine mammal behavior.
     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.

Pile Driving

    Mitigation measures specific to pile driving will include use of 
(1) a sound attenuation device and (2) ramp-up procedures. In addition, 
the power of impact hammers will be reduced to minimum energy levels 
required to drive a pile, thus reducing the amount of sound produced in 
the marine environment. As for other construction activities, vibratory 
pile driving may continue into nighttime hours/low-visibility 
conditions only if ramp[hyphen]up protocols have been conducted under 
acceptable observation conditions. Impact pile driving may occur only 
during daylight hours of good visibility (such that the full shutdown 
zone is visible). In the event of a shutdown during low-visibility 
conditions, the pile driving cannot resume until visual monitoring 
activities are resumed under acceptable observation conditions. The 
minimum shutdown zone for impact pile driving will be established 
conservatively at 250 m.
    One or more sound attenuation device(s) will be utilized during all 
impact pile driving activities needed to install components of the STL 
buoys at the deepwater port. The sound attenuation device(s) will be 
selected and designed by the marine construction and design 
contractor(s), but will likely be either a bubble curtain or a 
temporary sound attenuation pile (TNAP), potentially used in 
conjunction with cushion block.
    The objective of a ramp-up is to alert any animals close to the 
activity and allow them time to move away, which is expected to expose 
fewer animals to loud sounds. This procedure also ensures that any 
marine mammals missed during shutdown zone monitoring will move away 
from the activity and not be injured. The following ramp-up procedures 
will be used for in-water pile installation:
     To allow any marine mammals that may be in the immediate 
area to leave before pile driving reaches full energy, a ramp-up 
technique will be used at the beginning of each day's in-water pile 
driving activities or if pile driving has ceased for more than 1 hour.
     If a vibratory driver is used, contractors will be 
required to initiate sound from vibratory hammers for 15 seconds at 
reduced energy followed by a 1-minute waiting period. The procedure 
will be repeated two additional times before full energy may be 
achieved.
     If a non-diesel impact hammer is used, contractors will be 
required to provide an initial set of strikes from the impact hammer at 
reduced energy, followed by a 1-minute waiting period, then two 
subsequent sets.
     If a diesel impact hammer is used, contractors will be 
required to turn on the sound attenuation device (e.g., bubble curtain 
or other approved sound attenuation device) for 15 seconds prior to 
initiating pile driving to flush marine mammals from the area.

Vessel Strike Avoidance

    Several construction and support vessels will be used during 
construction activities. Vessel activities, including transits, may not 
be subject to the shutdown protocols and/or visual monitoring described 
previously in this section. Consequently, there is the possibility for 
vessel strikes of protected species to occur within the project area. 
Port Dolphin will inform all personnel associated with the project of 
the potential presence of protected species. All vessel crew members 
and contractors will participate in training for protected species 
presence and emergency procedures in the unlikely event a protected 
species is struck by a vessel. Construction and support vessels will 
follow the NMFS Vessel Strike Avoidance Measures and Reporting for 
Mariners. Standard measures will be implemented to reduce the risk 
associated with vessel strikes.
    The following vessel strike mitigation measures for cetaceans for 
active construction/installation vessel operations will be implemented 
during project activities:
     Vessel operators and crews must maintain a vigilant watch 
for marine mammals and slow down or stop their vessels, to the extent 
possible as dictated by safety concerns, to avoid striking sighted 
protected species.
     Construction or support vessels, while underway, will 
remain 100 yd (91 m) from all marine mammals to the extent possible.
     If a marine mammal is within 15 m of a construction or 
support vessel underway, all operations will cease until it is > 100 yd 
from the vessel. If the marine mammal is observed within 100 yd of an 
active construction or support vessel underway, the vessel will cease 
power to the propellers as long as sea conditions permit for safety. 
After the marine mammal leaves the area the vessel will proceed with 
caution, following the guidelines below:
    [dec221] Resume vessel at slow speeds while avoiding abrupt changes 
in direction,
    [dec221] Stay on parallel course with the marine mammal, following 
behind or next to at an equal or lesser speed,
    [dec221] Do not cross the path of the animal,
    [dec221] Do not attempt to steer or direct the marine mammal away,
    [dec221] If a marine mammal exhibits evasive or defensive behavior, 
stop the vessel until the marine mammal has left the immediate area, 
and
    [dec221] Do not allow the vessel to come between a mother and her 
calf.
     Cetaceans can surface in unpredictable locations or 
approach slowly moving vessels. When an animal is sighted in the 
vessel's path or in close proximity to a moving vessel, the Master will 
reduce speed and shift the engine to neutral and will not engage the 
engines until the animals are clear of the area.
     If a sighted marine mammal is believed to be a North 
Atlantic right whale, federal regulation requires a minimum distance of 
500 yd (457 m) from the animal be maintained (50 CFR 224.103 (c)).
     Practical speeds will be maintained to the extent 
possible. Guidelines for speeds include the following:
    [dec221] Reduce vessel speed to 10 kn or less when mother/calf 
pairs, pods, or large assemblages of cetaceans are observed near an 
underway vessel, when safety permits. A single cetacean at the surface 
can indicate the presence of submerged animals in the vicinity of the 
vessel; therefore, prudent precautionary measures should always be 
exercised.
    [dec221] No wake/idle speeds where the draft of the vessel provides 
less than a 4[hyphen]ft (1.2[hyphen]m) clearance from the bottom. All 
vessels will follow deep-water routes whenever possible.
    [dec221] All construction vessels transiting to and from the port 
from shore will not exceed 14 kn during regular operations.
    [dec221] Avoid sudden changes in speed and direction.
    [dec221] Speeds approaching and departing the buoys will be reduced 
to 10 kn maximum.
    [dec221] Speeds during installation will be well under 14 kn; 
vessels may be stationary during certain phases of installation.
     If a collision seems likely, emergency collision 
procedures will be followed.
     Members of the vessel crew will be encouraged to undergo 
NMFS training

[[Page 20810]]

prior to activity, including instruction in reporting procedures, 
collision emergency procedures, and marine mammal presence detection 
(surfacing near wake).
     During construction of the facility, an Environmental 
Coordinator will be on site and responsible for communicating with NMFS 
and other relevant agencies, as appropriate.
     During construction/installation, transiting vessels will 
have lookouts required to scan for surfacing marine mammals and report 
sightings to the Master, who will notify the Environmental Coordinator.
     Offshore vessel activities not required to implement 
visual monitoring protocols described previously in this document will 
be temporarily terminated if marine mammals were observed in the area 
and there is the potential for harm of an individual. The Environmental 
Coordinator will be called in to determine the appropriate course of 
action.
    Lighting--Measures will be implemented to minimize the attraction 
of marine mammals to the project area and prevent potential impacts to 
protected species from nighttime lighting. Lighting will be 
down[hyphen]shielded to prevent unnecessary upward illumination while 
illuminating the vessel decks only. To the extent possible, they will 
not illuminate surrounding waters. Lighting used during all activities 
will be regulated according to USCG requirements, without using 
excessive wattage or quality of lights. Once an activity is completed, 
all lights used only for that activity will be extinguished.
Conclusions
    We have carefully evaluated these mitigation measures and 
considered a range of other measures in the context of ensuring that we 
prescribe the means of effecting the least practicable adverse impact 
on the affected marine mammal species and stocks and their habitat. Our 
evaluation of potential measures included consideration of the 
following factors in relation to one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     The practicability of the measure for applicant 
implementation.
    Based on our evaluation of potential measures, we have determined 
that these mitigation measures provide the means of effecting the least 
practicable adverse impact on marine mammal species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance.
Monitoring and Reporting
    Section 101(a)(5)(A) of the MMPA states that in order to issue an 
incidental take authorization (ITA) for an activity, we must, where 
applicable, 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 ITAs must include the 
suggested means of accomplishing the necessary monitoring and reporting 
that will result in increased knowledge of the species and of the level 
of taking or impacts on populations of marine mammals that are expected 
to be present in the proposed action area.
    Port Dolphin provided a protected species monitoring plan in their 
application (see Appendix B of Port Dolphin's application), and all 
monitoring methods identified herein have been developed through 
coordination between NMFS and Port Dolphin. The methods are based on 
the parties' professional judgment supported by their collective 
knowledge of marine mammal behavior, site conditions, and proposed 
project activities. Any modifications to this protocol will be 
coordinated with NMFS. A summary of the plan, as well as the proposed 
reporting requirements, is contained here.
    The intent of the monitoring plan is to:
     Comply with the requirements of the MMPA Letter of 
Authorization as well as the ESA section 7 consultation;
     Avoid injury to marine mammals through visual monitoring 
of identified shutdown zones; and
     To the extent possible, record the number, species, and 
behavior of marine mammals in disturbance zones for the proposed 
activities.
    Monitoring for marine mammals will be conducted in specific zones 
established to avoid or minimize effects of elevated levels of sound 
created by the specified activities. Initial shutdown and disturbance 
zones will largely be based on the applicant's modeled values. Non-
stationary activities will conform to NMFS Vessel Strike Avoidance 
Measures and Reporting for Mariners (i.e., 100 yd)--a distance much 
larger than actual areas ensonified to 180 dB rms or greater. However, 
avoidance requirements will not be triggered upon voluntary approach by 
small marine mammals (i.e., delphinids). The actual zone monitored for 
disturbance will be based upon logistical considerations, as described 
previously in this document, as the full disturbance zones will be so 
large as to make monitoring impracticable. Zones may be modified on the 
basis of actual recorded SPLs from acoustic monitoring.
    In cooperation with NMFS, Port Dolphin has supplemented the visual 
monitoring program with an acoustic monitoring program that will be 
conducted primarily to verify the sound source levels and local 
acoustic propagation characteristics that were assumed in the acoustic 
modeling.

Acoustic Monitoring

    Port Dolphin will implement an acoustic monitoring program during 
construction and operation of the deepwater port and appurtenant marine 
facilities. Please see Port Dolphin's Sound Level Verification Plan 
(see Supplemental Information) for more detail. The objectives of this 
program are to: (1) Empirically measure the sound source levels 
associated with project activities and verify estimated source levels 
used in modelling, and (2) empirically determine ranges to relevant 
threshold levels, verifying the accuracy of the acoustic propagation 
model that was used to predict the size of sound fields generated by 
construction and operation of the port. Ambient sound levels will also 
be measured when no project activities are occurring. The acoustic 
monitoring program was described in detail in the proposed rule (77 FR 
55646; September 10, 2012); please see that document for more 
information.

Visual Monitoring

    Visual monitoring of relevant zones will be conducted as described 
previously (see `Mitigation'). Shutdown or delay of activities will 
occur as appropriate. The monitoring biologists will document all 
marine mammals observed in the monitoring area. Data collection will 
include a count of all marine mammals observed by species, sex, age 
class, their location within the zone, and their reaction (if any) to 
construction activities, including direction of movement, and type of 
construction that is occurring, time that activity begins and ends, any 
acoustic or visual disturbance, and time of the observation. 
Environmental conditions such as wind speed, wind direction, 
visibility, and temperature will also be recorded. No monitoring will 
be conducted during inclement weather that creates potentially 
hazardous

[[Page 20811]]

conditions, as determined by the PSO(s). No monitoring will be 
conducted when visibility is significantly limited, such as during 
heavy rain or fog. During these times of inclement weather, in-water 
work that may produce sound levels in excess of 180 dB rms may 
continue, but may not be started. Impact pile driving shall not occur 
when visibility is significantly limited.
    All monitoring personnel must have appropriate qualifications as 
identified previously. These qualifications include education and 
experience identifying marine mammals and the ability to understand and 
document marine mammal behavior. All monitoring personnel will meet at 
least once for a training session provided by Port Dolphin, and Port 
Dolphin will be responsible for verifying to NMFS that PSOs meet the 
minimum qualifications described previously. Topics will include, at 
minimum, implementation of the monitoring protocol, identification of 
marine mammals, and reporting requirements. All monitoring personnel 
will be provided a copy of the LOA. Monitoring personnel must read and 
understand the contents of the LOA as they relate to coordination, 
communication, and identifying and reporting incidental harassment of 
marine mammals. All sightings must be recorded on approved marine 
mammal field sighting logs.
    Monitoring will occur for construction operations only. There is no 
feasible mechanism for placing qualified observers aboard the SRVs, 
which will be arriving from the high seas and which will not require a 
harbor pilot because the port is in deep water. Therefore, the only 
monitoring and reporting for operations will be for acoustic data and 
for any ship strike reporting.

Reporting

    Reports of data collected during monitoring will be submitted to 
NMFS weekly. In addition, a final report summarizing all marine mammal 
monitoring and construction activities will be submitted to NMFS 
annually. The report will include:
     All data described previously under monitoring, including 
observation dates, times, and conditions; and
     Correlations of observed behavior with activity type and 
received levels of sound, to the extent possible.
    Port Dolphin will also submit a report(s), as necessary, concerning 
the results of all acoustic monitoring. The final report for acoustic 
monitoring of construction activities will be provided at the 
completion of all marine construction activities. Reporting for 
acoustic monitoring of operational activities will be provided at the 
completion of the commissioning period for each new SRV servicing the 
port. Port Dolphin will submit these reports to NMFS within 60 working 
days of the completion of each monitoring event.
    Acoustic monitoring reports will include:
     A detailed description of the monitoring protocol;
     A description of the sound monitoring equipment;
     Documentation of calibration activities;
     The depth of water at the hydrophone locations and the 
depth of the hydrophones;
     The background SPL reported as the 50 percent cumulative 
density function;
     A summary of the data recorded during monitoring; and
     Analysis of the recorded data and conclusions.
    Analysis of the data should include the frequency spectrum, ranges 
and means including the standard deviation/error for the peak and rms 
SPLs, and an estimation of the distance at which rms values reach the 
relevant marine mammal thresholds and background sound levels. 
Vibratory driving results will include the maximum and overall average 
rms calculated from 30-s rms values during driving of the pile. In 
addition, for pile driving, the report will include:
     Size and type of any piles driven, correlated with SPLs;
     A detailed description of any sound attenuation device 
used, including design specifications;
     The impact hammer energy rating used to drive the piles, 
make and model of the hammer(s), and description of the vibratory 
hammer;
     The physical characteristics of the bottom substrate into 
which the piles were driven; and
     The total number of strikes to drive each pile.

    During all phases of construction activities and operation, 
sightings of any injured or dead marine mammals will be reported 
immediately (except as described later in this section) to the NMFS 
Southeast Region Marine Mammal Stranding Network, regardless of whether 
the injury or death is caused by project activities. In addition, if a 
marine mammal is struck by a project vessel (e.g., SRV, support 
vessel), or in the unanticipated event that project activity clearly 
resulted in the injury, serious injury, or death (e.g., gear 
interaction, and/or entanglement) of a marine mammal, USCG and NMFS 
must be notified immediately, and a full report must be provided to 
NMFS, Southeast Regional Office, and NMFS, Office of Protected 
Resources. The report must include the following information: (1) The 
time, date, and location (latitude/longitude) of the incident; (2) the 
name and type of vessel involved, if applicable; (3) the vessel's speed 
during and leading up to the incident, if applicable; (4) a description 
of the incident; (5) water depth; (6) environmental conditions (e.g., 
wind speed and direction, sea state, cloud cover, visibility); (7) the 
species identification or description of the animal(s) involved; (8) 
the fate of the animal(s); and (9) photographs or video footage of the 
animal (if equipment is available). Following such an incident, 
activities must cease until we are able to review the circumstances of 
the incident. We will work with Port Dolphin to determine what is 
necessary to minimize the likelihood of further prohibited take and 
ensure MMPA compliance. Port Dolphin may not resume activity until 
notified to do so by NMFS. If a prohibited take should occur, the NMFS 
Office of Law Enforcement and the Florida Fish and Wildlife 
Conservation Commission law enforcement will be notified.
    In the event that an injured or dead marine mammal is discovered, 
and the lead PSO determines that the cause of the injury or death is 
unknown and the death is relatively recent (i.e., in less than a 
moderate state of decomposition as described in the next paragraph), 
Port Dolphin will immediately report the incident to NMFS, Office of 
Protected Resources. The report must include the same information 
identified in the preceding paragraph. However, activity may continue 
while we review the circumstances of the incident, and we will work 
with Port Dolphin to determine whether modifications to the activities 
are appropriate. If the lead PSO determines that the discovered animal 
is not associated with or related to project activities (e.g., 
previously wounded animal, carcass with moderate to advanced 
decomposition, scavenger damage), Port Dolphin will report the incident 
to NMFS, Office of Protected Resources, within 24 hours of the 
discovery. Port Dolphin should provide photographs or video footage (if 
available) or other documentation of the sighting. Activities may 
continue while we review the circumstances of the incident.
    An annual report on marine mammal monitoring and mitigation will be 
submitted to NMFS, Office of Protected Resources, and NMFS, Southeast 
Regional Office, each year. The weekly

[[Page 20812]]

and annual reports will include data collected for each distinct marine 
mammal species observed in the project area. Description of marine 
mammal behavior, overall numbers of individuals observed, frequency of 
observation, and any behavioral changes and the context of the changes 
relative to activities will also be included in the annual reports. 
Additional information that will be recorded during activities and 
contained in the reports include: date and time of marine mammal 
detections, weather conditions, species identification, approximate 
distance from the source, and activity at the construction site when a 
marine mammal is sighted.
    In addition to annual reports, Port Dolphin will submit a draft 
comprehensive final report to NMFS, Office of Protected Resources, and 
NMFS, Southeast Regional Office, 180 days prior to the expiration of 
the regulations. This comprehensive technical report will provide full 
documentation of methods, results, and interpretation of all monitoring 
during the first 4.5 years of the regulations. A revised final 
comprehensive technical report, including all monitoring results during 
the entire period of the regulations will be due 90 days after the end 
of the period of effectiveness of the regulations.

Adaptive Management

    The final regulations governing the take of marine mammals 
incidental to the specified activities at Port Dolphin contains an 
adaptive management component. In accordance with 50 CFR 216.105(c), 
these regulations are based on the best available information. As new 
information is developed, through monitoring, reporting, or research, 
the regulations may be modified, in whole or in part, after notice and 
opportunity for public review. The use of adaptive management will 
allow us to consider new information from different sources to 
determine if mitigation or monitoring measures should be modified 
(including additions or deletions) if new data suggest that such 
modifications are appropriate for subsequent LOAs.
    The following are some of the possible sources of applicable data:

     Results from Port Dolphin's monitoring from the previous 
year;
     Results from general marine mammal and acoustics research; 
or
     Any information which reveals that marine mammals may have 
been taken in a manner, extent or number not authorized by these 
regulations or subsequent LOAs.

    If, during the effective dates of the regulations, new information 
is presented from monitoring, reporting, or research, these regulations 
may be modified, in whole, or in part after notice and opportunity of 
public review, as allowed for in 50 CFR 216.105(c). In addition, LOAs 
will be withdrawn or suspended if, after notice and opportunity for 
public comment, the NOAA's Assistant Administrator for Fisheries finds, 
among other things, that the regulations are not being substantially 
complied with or that the taking allowed is having more than a 
negligible impact on the species or stock, as allowed for in 50 CFR 
216.106(e). That is, should substantial changes in marine mammal 
populations in the project area occur or monitoring and reporting show 
that Port Dolphin actions are having more than a negligible impact on 
marine mammals, then we reserve the right to modify the regulations 
and/or withdraw or suspend LOAs after public review.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: ``any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment].'' Take by Level B harassment only is 
anticipated as a result of Port Dolphin's specified activities. Take of 
marine mammals is anticipated to occur as a result of elevated levels 
of sound from the previously described activities associated with 
construction and installation of the port and from port operations. No 
take by injury, serious injury, or death is anticipated or authorized. 
Estimation of incidental take was described in greater detail in the 
Federal Register notice announcing the proposed rule (77 FR 55646; 
September 10, 2012); please see that document for more information.
    As described previously in the ``Distance to Sound Thresholds'' 
section of this document, JASCO Research modeled a series of scenarios 
that thoroughly characterize the various construction/installation and 
operation activities expected. JASCO used proxy sound sources selected 
from a database of underwater sound measurements. The selected proxy 
sound sources were input to a sound propagation model with multiple 
parameters, including expected water column sound speeds, bathymetry, 
and bottom geoacoustic properties, to estimate the radii of sound 
impacts (JASCO, 2008, 2010). Note that for some scenarios, 180-dB 
threshold values only occur in the immediate vicinity of individual 
pieces of equipment that combine to form a construction ``spread,'' or 
modeled scenario, with little or no overlap of the sound fields from 
neighboring vessels. These scenarios are for transient activities--for 
example, pipelaying and burial activities require a spread of vessels 
and equipment (e.g., barges, tugs) rather than a single point source of 
sound. These modeled scenarios combine the sound output from multiple 
vessels/pieces of equipment. The overall radius depends primarily on 
the spacing between the vessels, and a single scenario-specific radius 
for the 180-dB threshold cannot accurately be defined. Please see 
Appendices C and D in Port Dolphin's application for a detailed 
description of this sound source modeling and Appendix E for a 
graphical depiction of the sound fields from various activities.
    Density of marine mammals in the project area was derived from a 
U.S. Navy review of available marine mammal survey data for the eastern 
Gulf of Mexico which summarized species presence and distribution on a 
seasonal basis (USDON, 2003). As described previously, marine mammal 
densities are determined on the basis of both seasonality and depth 
stratum. Densities for marine mammals that are expected to be affected 
by the specified activities are presented in Table 5

            Table 5--Density Estimates for Marine Mammals in the Nearshore Depth Stratum, Eastern GOM
----------------------------------------------------------------------------------------------------------------
                                                        Density (Individuals/100 km\2\ (39 mi\2\))
                 Species                 -----------------------------------------------------------------------
                                               Winter            Spring            Summer             Fall
----------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin................             2.243            10.752             2.524        \1\ 10.752

[[Page 20813]]

 
Bottlenose dolphin......................            10.913            21.986             8.241            26.744
----------------------------------------------------------------------------------------------------------------
\1\ No density estimate is available for Atlantic spotted dolphins in fall in the nearshore depth stratum. The
  largest estimate (spring) is conservatively used as a proxy.
Source: USDON, 2003.

    Incidental take estimates are calculated based on: (1) The number 
of marine mammals, using species[hyphen] and season[hyphen]specific 
density estimates; (2) the areal extent of Level A and Level B sound 
fields, by sound source; and (3) the time or distance component of the 
activity. Areas of ensonification, by appropriate threshold, are 
presented in Table 4. With regard to the fourth component (time/
distance), there are two types of construction activities: stationary 
and transient. Stationary activities will occur near specific sites 
(e.g., locations for buoy installation), while transient activities 
will occur while traveling along a pre-determined trackline (i.e., the 
pipeline route). Incidental take associated with stationary activities 
is determined by considering the estimated number of days of effect. 
Buoy installation, impact pile driving, and vibratory pile driving 
activities are expected to take 6, 32, and 8 days, respectively. The 
pre-determined pipeline route along which the pipelaying and burial 
activities will occur is approximately 72 km long (37 km offshore, 35 
km inshore). For these transient activities, the overall area of effect 
(i.e., distance x width of ensonified area) is used in calculating 
estimated incidental take.
    For stationary activities, season-specific estimated take was 
determined by first multiplying the modeled ZOI (i.e., the area 
ensonified using the appropriate thresholds) and the appropriate 
species[hyphen]specific seasonal densities. These results were then 
rounded to the nearest whole number and multiplied by the estimated 
number of days of effect to provide an estimate of take.
    For transient activities, season-specific estimated take was 
determined by multiplying the overall area of effect for offshore and 
inshore portions, respectively, by the appropriate density and, because 
some of these activities are expected to occur during multiple seasons, 
by the proportion of trackline expected to be completed during a given 
season. For offshore pipelaying, approximately 43 percent of effort is 
expected to occur during summer and 57 percent during fall. The inshore 
portion would occur entirely during fall. For offshore pipe burial, 
approximately 12 percent of effort is expected to occur during fall 
with 88 percent occurring during winter. The inshore portion would 
occur entirely during winter. The results of take estimation 
calculations for bottlenose dolphins and spotted dolphins for 
construction activities are shown in Table 6.

                           Table 6--Estimated Incidental Take, Construction Activities
----------------------------------------------------------------------------------------------------------------
                                                                                     Species
                                                               -------------------------------------------------
               Activity                         Season              Atlantic spotted
                                                                        dolphin             Bottlenose dolphin
----------------------------------------------------------------------------------------------------------------
Buoy installation....................  Summer.................                        6                       24
Impact pile driving..................  Summer.................                       64                      160
Pipelaying--Offshore.................  Summer.................                        6                       20
                                       Fall...................                       34                       85
Pipelaying--Inshore..................  Fall...................                       45                      112
Pipeline burial--Offshore............  Fall...................                        8                       20
                                       Winter.................                       12                       60
Pipeline burial--Inshore.............  Winter.................                       11                       51
Vibratory pile driving...............  Summer.................                      104                      328
                                                               -------------------------------------------------
    Total, by species................  .......................                      290                      860
----------------------------------------------------------------------------------------------------------------

    When the Port reaches operational status, an estimated 46 SRV 
visits will occur per year. Visits will be equally distributed across 
seasons, with 12 visits expected during winter and summer seasons and 
11 visits per season during spring and fall. Each visit includes 
arrival and departure of the SRV, so 46 visits would result in 92 
episodes that may result in incidental take. The results of take 
estimation calculations for operational activities, for a given year, 
are shown in Table 7.

                                               Table 7--Estimated Yearly Incidental Take, Port Operations
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Atlantic spotted dolphin           Bottlenose dolphin
                                                                                         ---------------------------------------------------------------
                 Activity                              Season                  Trips       Single visit                    Single visit
                                                                                                \1\          Seasonal           \1\          Seasonal
--------------------------------------------------------------------------------------------------------------------------------------------------------
SRV maneuvering...........................  Summer......................              12               2              24               7              84
                                            Fall........................              11               9              99              22             242
                                            Winter......................              12               2              24               9             108

[[Page 20814]]

 
                                            Spring......................              11               9              99              18             198
                                                                         -------------------------------------------------------------------------------
    Totals \2\............................  ............................              46  ..............             246  ..............             632
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Single-visit take calculated by multiplying appropriate density and appropriate area, then doubling the result to account for arrival and departure
  of the SRV in a single trip.
\2\ Total represents the single visit take multiplied by the total number of trips.

    Given that this rule will be in effect during 1 year of 
construction and 4 years of operations, the total estimated taking, by 
Level B harassment only, is 1,274 Atlantic spotted dolphins and 3,388 
bottlenose dolphins.

Negligible Impact and Small Numbers Analysis and Determination

    NMFS has defined ``negligible impact'' in 50 CFR 216 as `` * * * an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.'' In making a negligible impact determination, we consider a 
variety of factors, including but not limited to: (1) The number of 
anticipated mortalities; (2) the number and nature of anticipated 
injuries; (3) the number, nature, intensity, and duration of Level B 
harassment; and (4) the context in which the takes occur.
    Incidental take, in the form of Level B harassment only, is likely 
to occur primarily as a result of marine mammal exposure to elevated 
levels of sound resulting from the specified activities. No take by 
injury, serious injury, or death is anticipated or authorized. The 
expected impacts from this activity would be Level B harassment in the 
form of behavioral disturbance resulting in, for example, changed 
direction or speed, or temporary avoidance of an area. Anticipated 
behavioral disturbance is likely to be of low intensity due to the 
sound source characteristics--the majority of activities considered 
here would produce low source levels of non-pulsed sound that would be 
either intermittent or transient--and relatively short in duration 
associated with the specified activities. For the same reasons, no 
individual marine mammals are expected to incur any hearing impairment, 
whether temporary or permanent in nature. That is, non-pulsed sound 
does not produce the rapid rise times that are more likely to produce 
hearing impairment in marine mammals, and the low intensity of the 
sources would result in Level A isopleths within a short distance. 
Several activities would produce source levels below those considered 
capable of causing hearing impairment, even in close proximity to 
marine mammals. The shutdown zone monitoring planned as mitigation, and 
the small size of the zones in which injury may occur, further reduces 
the potential for any injury of marine mammals, making the possibility 
of hearing impairment extremely unlikely and therefore discountable.
    For the greater portion of the life of this proposed rule (i.e., 4 
years remaining after the first year of construction), only port 
operations would occur. Each episode of SRV arrival/departure 
(requiring thruster use for a period of several hours) would be 
separated by approximately 8 days of regasification, an activity not 
expected to result in incidental take. The likely effects of behavioral 
disturbance from port operations are minor, as many animals perform 
vital functions, such as feeding, resting, traveling, and socializing, 
on a diel (24-hour) cycle. Behavioral reactions to sound exposure (such 
as disruption of critical life functions, displacement, or avoidance of 
important habitat) are more likely to be significant if they last more 
than one diel cycle or recur on subsequent days (Southall et al., 
2007). Operational activities would occur on a single day (i.e., 
arrival or departure of a SRV), would not recur for a period of 8 days, 
and, as for the majority of construction activities, would produce only 
low levels of non-pulsed sound. NMFS' current criterion for Level B 
harassment from non-pulsed, underwater sound levels (the vast majority 
of sound produced by the proposed activities) is 120 dB rms. However, 
not all marine mammals react to sounds at this low level, and many will 
not show strong reactions (and in some cases any reaction) until sounds 
are much stronger.
    Neither the bottlenose dolphin nor spotted dolphin is listed under 
the ESA. However, we consider each bay, sound, and estuary stock of 
bottlenose dolphins (including those in Tampa Bay/Sarasota Bay) to be 
strategic under the MMPA. NMFS is in the process of writing individual 
stock assessment reports for each of the 32 bay, sound and estuary 
stocks of bottlenose dolphins, but none has been completed for the 
Tampa Bay/Sarasota Bay populations. There is insufficient data to 
determine population trends or status of the relevant stocks relative 
to optimum sustainable population. The specified activities will not 
take place in any known areas of significance for the impacted species 
(i.e., the activities should not have any specific impact on the 
animals' feeding or breeding).
    The maximum estimated take per year of Atlantic spotted dolphins 
(290) would be small relative to the stock size (37,611; 0.1 percent); 
this would decline for subsequent years of operations. As a result, 
only small numbers of Atlantic spotted dolphins would be taken. For 
bottlenose dolphins, the maximum estimated total take per year for all 
bottlenose dolphins (860) is small relative to the coastal stock size 
(7,702; 11 percent); this would decline for subsequent years of 
operations. As a result, only small numbers of bottlenose dolphins from 
the coastal stock could be taken. However, it is difficult to partition 
potential takings between the coastal stock and the smaller bay stocks 
(for which current abundance estimates are not available) because the 
possibility for mixing of the stocks precludes any quantitative 
understanding of how the total estimated taking might be apportioned 
between stocks. An unknown, but possibly large, number of coastal stock 
dolphins may be mixing in inshore waters at any given time. However, we 
can qualitatively assess the estimated incidental take in relative 
terms and have been able to determine that the number is small compared 
to the overall population. Only a portion of the estimated incidental 
takes can potentially accrue to bay dolphins, because much of the 
project will occur in offshore waters and, because individuals from all 
stocks in the area (coastal stock; Tampa Bay, Sarasota Bay-Little 
Sarasota Bay, and Clearwater Harbor-St. Joseph Sound stocks) are

[[Page 20815]]

present in the action area, only a portion of dolphins affected by 
inshore activities would be expected to be from the Tampa Bay stock. In 
addition, the Tampa Bay stock of dolphins is likely to be comprised of 
five discrete communities (Urian et al., 2009), one of which does not 
occur in the portion of the Bay affected by the specified activities 
thereby further limiting the number of Tampa Bay dolphins that are 
likely to be exposed to project activities.
    Next, we compared the area in which the various bay dolphin stocks 
may occur to the area affected by project activities. The total area in 
which the bay dolphins are likely to occur is approximately 1,638 
km\2\, including waters of the Tampa Bay, Sarasota Bay and St. Joseph 
Sound estuaries, as well as coastal waters out to 2 km from shore. Pipe 
laying/pipe burial would ensonify a maximum of approximately 27 km\2\ 
within the 2 km from shore (inside of Tampa Bay any sound produced by 
these activities would overlap with sound produced by vibratory 
driving). Vibratory driving, which will occur entirely within Tampa 
Bay, is predicted to produce sound that would attenuate to less than 
120 dB rms at 12.6 km from the activity. However, that distance cannot 
be attained in all directions from the planned activity locations due 
to shoreline topography. Therefore, the actual area of ensonification 
would be significantly less than is implied by the modeled distance, a 
maximum of approximately 300 km\2\. The total area that may be affected 
by project activities is thus approximately 20 percent of the area in 
which bay dolphins are known to occur. Using this qualitative approach, 
the proportion of animals taken may then be reasonably considered to be 
small relative to the size of the population.
    Separately, we believe that the potential effects of the specified 
activities represent a negligible impact for bay dolphins. Only a 
subset of the specified activities has the potential to affect bay 
dolphins. Buoy installation and impact pile driving, as well as the 
entire offshore portion of pipelaying and burial, would occur offshore 
and would not have the potential to affect the bay dolphin populations. 
Vibratory pile driving would occur entirely within Tampa Bay, as would 
a portion of inshore pipelaying and burial, and could impact the bay 
populations. Vibratory pile driving would occur for only 8 days (at two 
piles per day), meaning that any harassment experienced by bay dolphins 
from this activity would be of very short duration. In addition, Tampa 
Bay is significantly industrialized and urbanized and is heavily used 
by recreational boaters. Bottlenose dolphins occurring in Tampa Bay are 
somewhat acclimated to disturbance and would not be expected to 
experience significant disruption to behavioral patterns on the basis 
of short-term and low intensity disturbance, such as is expected for 
this project. The specified activities would not take place in areas 
known to be of special significance for feeding or breeding.
    In summary, we believe that potential impacts to bay dolphins 
represent a negligible impact for the following reasons: (1) Only a 
subset of project activities have the potential to affect bay dolphins; 
(2) any takes would be of low intensity (resulting from exposure to low 
levels of non-pulsed sound over a limited duration) and likely would 
not result in significant alteration of dolphin behavior in the heavily 
urbanized/industrialized area where the activity would occur; and (3) 
any takes are likely to represent repeated takes of individuals using 
the area where the activity is occurring, rather than each take being 
of a new individual. Finally, following the initial year of 
construction, all operations would occur offshore, and there would be 
no potential for incidental take of bay dolphins.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, we find that construction and operation of Port Dolphin will 
result in the incidental take of small numbers of marine mammals, by 
Level B harassment only, and that the total taking from Port Dolphin's 
specified activities will have a negligible impact on the affected 
species or stocks.

Impact on Availability of Affected Species or Stock for Taking for 
Subsistence Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action.

Endangered Species Act (ESA)

    On August 4, 2009, NMFS concluded consultation with MARAD and USCG 
under section 7 of the ESA on the proposed construction and operation 
of the Port Dolphin LNG facility. The result of that consultation was 
NMFS' concurrence with Port Dolphin's determination that the proposed 
activities may affect, but are not likely to adversely affect, listed 
species under NMFS' jurisdiction. We are not authorizing incidental 
take of any ESA-listed marine mammal species. No listed species will be 
impacted by the specified activities.

National Environmental Policy Act (NEPA)

    The USCG and the MARAD initiated the public scoping process in July 
2007, with the publication of a Notice of Intent (NOI) to prepare an 
Environmental Impact Statement (EIS) in the Federal Register. The NOI 
included information on public meetings and informational open houses; 
requested public comments on the scope of the EIS; and provided 
information on how the public could submit comments. A Notice of 
Availability for the Draft EIS was published in the Federal Register in 
April 2008. Subsequently, a final EIS was published in July 2009. MarAd 
issued a Record of Decision (ROD) approving, with conditions, the Port 
Dolphin Energy Deepwater Port License application on October 26, 2009.
    Because NMFS was a cooperating agency in the development of the 
Port Dolphin EIS, NMFS has adopted the EIS and issued its own ROD, 
signed on December 4, 2012, for issuance of authorizations pursuant to 
section 101(a)(5)(A) of the MMPA for the activities proposed by Port 
Dolphin.

Classification

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant for purposes of Executive Order 12866.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration at the proposed rule stage that this rule would not have 
a significant economic impact on a substantial number of small 
entities. Port Dolphin is owned by the Norway-based shipping company 
H[ouml]egh LNG AS, which is itself held by Leif H[ouml]egh & Co, a 
global shipping company. Therefore, it is not a small governmental 
jurisdiction, small organization, or small business, as defined by the 
RFA. Port Dolphin Energy LLC is the only entity that is subject to the 
requirements in the regulations. Because this rule impacts only the 
activities of Port Dolphin, which is not considered to be a small 
entity within SBA's definition, the Chief Counsel for Regulation 
certified that this rule will not have a significant economic impact on 
a substantial number of small entities. No comments were received on 
this certification. As a result, a regulatory flexibility analysis is 
not required and none has been prepared.

[[Page 20816]]

    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act (PRA) unless that collection of information 
displays a currently valid OMB control number. This rule contains 
collection-of-information requirements subject to the provisions of the 
PRA. These requirements have been approved by OMB under control number 
0648-0151 and include applications for regulations, subsequent LOAs, 
and reports.

List of Subjects in 50 CFR Part 217

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties, Reporting and recordkeeping requirements, Seafood, 
Transportation.

    Dated: April 2, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For reasons set forth in the preamble, 50 CFR part 217 is amended 
as follows:

PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS 
INCIDENTAL TO SPECIFIED ACTIVITIES

0
1. The authority citation for part 217 continues to read as follows:

    Authority: 16 U.S.C. 1361 et seq.


0
2. Subpart P is added to part 217 to read as follows:
Subpart P--Taking Marine Mammals Incidental to Construction and 
Operation of a Liquefied Natural Gas Deepwater Port in the Gulf of 
Mexico
Sec.
217.151 Specified activity and specified geographical region.
217.152 Effective dates.
217.153 Permissible methods of taking.
217.154 Prohibitions.
217.155 Mitigation.
217.156 Requirements for monitoring and reporting.
217.157 Letters of Authorization.
217.158 Renewals and Modifications of Letters of Authorization.

Subpart P--Taking Marine Mammals Incidental to Construction and 
Operation of a Liquefied Natural Gas Deepwater Port in the Gulf of 
Mexico


Sec.  217.151  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to Port Dolphin Energy 
LLC (Port Dolphin) and those persons it authorizes to conduct 
activities on its behalf for the taking of marine mammals that occurs 
in the area outlined in paragraph (b) of this section and that occur 
incidental to construction and operation of the Port Dolphin Deepwater 
Port (Port).
    (b) The taking of marine mammals by Port Dolphin may be authorized 
in a Letter of Authorization (LOA) only if it occurs in the vicinity of 
the Port Dolphin Deepwater Port in the eastern Gulf of Mexico or along 
the associated pipeline route.


Sec.  217.152  Effective dates.

    Regulations in this subpart are effective from June 1, 2013, 
through May 31, 2018.


Sec.  217.153  Permissible methods of taking.

    (a) Under LOAs issued pursuant to Sec. Sec.  216.106 and 217.157 of 
this chapter, the Holder of the LOA (hereinafter ``Port Dolphin'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  217.151(b) of this chapter, provided the 
activity is in compliance with all terms, conditions, and requirements 
of the regulations in this subpart and the appropriate LOA.
    (b) The incidental take of marine mammals under the activities 
identified in Sec.  217.151(a) of this chapter is limited to the 
following species and is limited to Level B Harassment:
    (1) Bottlenose dolphin (Tursiops truncatus)--3,388 (860 the first 
year and an average of 632 annually thereafter)
    (2) Atlantic spotted dolphin (Stenella frontalis)--1,274 (290 the 
first year and an average of 246 annually thereafter)


Sec.  217.154  Prohibitions.

    Notwithstanding takings contemplated in Sec.  217.151 of this 
chapter and authorized by a LOA issued under Sec. Sec.  216.106 and 
217.157 of this chapter, no person in connection with the activities 
described in Sec.  217.151 of this chapter may:
    (a) Take any marine mammal not specified in Sec.  217.153(b) of 
this chapter;
    (b) Take any marine mammal specified in Sec.  217.153(b) of this 
chapter other than by incidental, unintentional Level B Harassment;
    (c) Take a marine mammal specified in Sec.  217.153(b) of this 
chapter if such taking results in more than a negligible impact on the 
species or stocks of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Sec. Sec.  216.106 
and 217.157 of this chapter.


Sec.  217.155  Mitigation.

    (a) When conducting the activities identified in Sec.  217.151(a) 
of this chapter, the mitigation measures contained in any LOA issued 
under Sec. Sec.  216.106 and 217.157 of this chapter must be 
implemented. These mitigation measures include but are not limited to:
    (1) General Conditions:
    (i) Briefings shall be conducted between the Port Dolphin project 
construction supervisors and the crew, protected species observer(s) 
(PSO), and acoustic monitoring team prior to the start of all 
construction activity, and when new personnel join the work, to explain 
responsibilities, communication procedures, protected species 
monitoring protocol, and operational procedures.
    (ii) Port Dolphin shall comply with all applicable equipment sound 
standards and ensure that all construction equipment has sound control 
devices no less effective than those provided on the original 
equipment. Vessel crew and contractors shall minimize the production of 
underwater sound to the extent possible. Equipment and/or procedures 
used may include the use of enclosures and mufflers on equipment, 
minimizing the use of thrusters, and turning off engines and equipment 
when not in use.
    (iii) All vessels associated with Port Dolphin construction and 
operations shall comply with NMFS Vessel Strike Avoidance Measures and 
Reporting for Mariners and applicable regulations. All vessels 
associated with Port Dolphin construction and operations shall remain 
500 yd (457 m) away from North Atlantic right whales (Eubalaena 
glacialis) and 100 yd (91 m) away from all other marine mammals, except 
in cases where small marine mammals (i.e., delphinids) voluntarily 
approach within 100 yd or unless constrained by human safety concerns 
or navigational constraints.
    (2) Shutdown and Monitoring:
    (i) Shutdown zone: For all stationary activities, shutdown zones 
shall be established. These zones shall include all areas where 
underwater sound pressure levels (SPLs) are anticipated to equal or 
exceed 180 dB re: 1 [micro]Pa rms, as determined by modeled scenarios 
approved by NMFS for each specific activity. The actual size of these 
zones shall be empirically determined and reported by Port Dolphin. For 
all non-stationary activities (e.g., pipeline burial, shuttle 
regasification vessel (SRV) maneuvering), Port Dolphin shall adhere to 
Vessel Strike Avoidance Measures described in Sec.  217.155(a)(1)(iii) 
of this chapter, but shall not otherwise be required to establish 
shutdown zones.
    (ii) Disturbance zone: For all construction activities, disturbance

[[Page 20817]]

zones shall be established. For impact pile driving, these zones shall 
include all areas where underwater SPLs are anticipated to equal or 
exceed 160 dB re: 1 [micro]Pa rms. For all other activities these zones 
shall include all areas where underwater SPLs are anticipated to equal 
or exceed 120 dB re: 1 [micro]Pa rms. These zones shall be established 
on the basis of modeled scenarios approved by NMFS for each specific 
activity. The actual size of disturbance zones shall be empirically 
determined and reported by Port Dolphin, and on-site PSOs shall be 
aware of the size of these zones. However, because of the large size of 
these zones, monitoring of the zone is required only to maximum line-
of-sight distance from established monitoring locations.
    (iii) Visual monitoring shall occur for all construction 
activities. The following measures shall apply:
    (A) Zones shall be monitored from the appropriate vessel or work 
platform, or other suitable vantage point. Port Dolphin shall at all 
times employ, at minimum, two PSOs in association with each concurrent 
specified construction activity.
    (B) Shutdown zones shall be monitored for the presence of marine 
mammals before, during, and after construction activity. For all 
activities, the shutdown zone shall be monitored for 30 minutes prior 
to initiating the start of activity and for 30 minutes following the 
completion of activity. If marine mammals are present within the 
shutdown zone prior to initiating activity, the start shall be delayed 
until the animals leave the shutdown zone of their own volition or 
until 15 minutes has elapsed without observing the animal. If a marine 
mammal is observed within or approaching the shutdown zone, activity 
shall be halted as soon as it is safe to do so, until the animal is 
observed exiting the shutdown zone or 15 minutes has elapsed. If a 
marine mammal is observed within the disturbance zone, a take shall be 
recorded and behaviors documented.
    (C) PSOs shall be on watch at all times during daylight hours when 
in[hyphen]water operations are being conducted, unless conditions 
(e.g., fog, rain, darkness) make observations impossible. The lead PSO 
on duty shall make this determination. If conditions deteriorate during 
daylight hours such that the sea surface observations are halted, 
visual observations must resume as soon as conditions permit. While 
activities will be permitted to continue during low-visibility 
conditions, they must have been initiated following proper clearance of 
the shutdown zone under acceptable observation conditions and must be 
restarted, if halted for any reason, using the appropriate shutdown 
zone clearance procedures as described in Sec.  217.155(a)(2)(iii)(B) 
of this chapter.
    (3) Pile driving:
    (i) A minimum shutdown zone of 250 m radius shall be established 
around all impact pile driving activity.
    (ii) Contractors shall reduce the power of impact hammers to 
minimum energy levels required to drive a pile.
    (iii) Port Dolphin shall use a sound attenuation measure for impact 
driving of pilings. Prior to beginning construction, Port Dolphin must 
provide information to NMFS about the device to be used, including 
technical specifications. NMFS must approve use of the device before 
construction may begin. If a bubble curtain or similar measure is used, 
it shall distribute small air bubbles around 100 percent of the piling 
perimeter for the full depth of the water column. Any other attenuation 
measure (e.g., temporary sound attenuation pile) must provide 100 
percent coverage in the water column for the full depth of the pile. 
Prior to any impact pile driving, a performance test of the sound 
attenuation device must be conducted in accordance with a NMFS-approved 
acoustic monitoring plan. If a bubble curtain or similar measure is 
utilized, the performance test shall confirm the calculated pressures 
and flow rates at each manifold ring.
    (iv) Ramp-up:
    (A) A ramp-up technique shall be used at the beginning of each 
day's in-water pile driving activities and if pile driving resumes 
after it has ceased for more than 1 hour.
    (B) If a vibratory driver is used, contractors shall be required to 
initiate sound from vibratory hammers for 15 seconds at reduced energy 
followed by a 1-minute waiting period. The procedure shall be repeated 
two additional times before full energy may be achieved.
    (C) If a non-diesel impact hammer is used, contractors shall be 
required to provide an initial set of strikes from the impact hammer at 
reduced energy, followed by a 1-minute waiting period, then two 
subsequent sets.
    (D) If a diesel impact hammer is used, contractors shall be 
required to turn on the sound attenuation device for 15 seconds prior 
to initiating pile driving.
    (v) No impact pile driving shall occur when visibility in the 
shutdown zone is significantly limited, such as during heavy rain or 
fog.
    (4) Additional mitigation measures:
    (i) Use of lights during construction activities shall be limited 
to areas where work is actually occurring, and all other lights must be 
extinguished. Lights must be shielded such that they illuminate the 
deck and do not intentionally illuminate surrounding waters, to the 
extent possible.
    (ii) Additional mitigation measures as contained in a LOA issued 
under Sec. Sec.  216.106 and 217.157 of this chapter.
    (b) [Reserved]


Sec.  217.156  Requirements for monitoring and reporting.

    (a) Visual monitoring program:
    (1) Port Dolphin shall employ, at minimum, two qualified PSOs 
during specified construction-related activities at each site where 
such activities are occurring. All PSOs must be selected in conformance 
with NMFS' minimum qualifications, as described in the preamble to this 
rule, and must receive training sponsored by Port Dolphin, with topics 
to include, at minimum, implementation of the monitoring protocol, 
identification of marine mammals, and reporting requirements. The PSOs 
shall be responsible for visually locating marine mammals in the 
shutdown and disturbance zones and, to the extent possible, identifying 
the species. PSOs shall record, at minimum, the following information:
    (i) A count of all marine mammals observed by species, sex, and age 
class, when possible.
    (ii) Their location within the shutdown or disturbance zone, and 
their reaction (if any) to construction activities, including direction 
of movement.
    (iii) Activity that is occurring at the time of observation, 
including time that activity begins and ends, any acoustic or visual 
disturbance, and time of the observation.
    (iv) Environmental conditions, including wind speed, wind 
direction, visibility, and temperature.
    (2) Port Dolphin shall sponsor a training course to designated crew 
members assigned to vessels associated with construction activities or 
support of operations who will have responsibilities for watching for 
marine mammals. This course shall cover topics including, but not 
limited to, descriptions of the marine mammals found in the area, 
mitigation and monitoring requirements contained in a LOA, sighting log 
requirements, provisions of NMFS Vessel Strike Avoidance Measures and 
Reporting for Mariners, and procedures for reporting injured or dead 
marine mammals.
    (3) Monitoring shall be conducted using appropriate binoculars, 
such as 8x50 marine binoculars. When possible, digital video or still 
cameras shall also be used to document the behavior and response of 
marine mammals to

[[Page 20818]]

construction activities or other disturbances.
    (4) Each PSO shall have two-way communication capability for 
contact with other PSOs or work crews. PSOs shall implement shut-down 
or delay procedures when applicable by calling for the shut-down to the 
equipment/vessel operator.
    (5) A GPS unit and/or appropriate range finding device shall be 
used for determining the observation location and distance to marine 
mammals, vessels, and construction equipment.
    (b) Acoustic monitoring program:
    (1) Acoustic monitoring must be conducted in accordance with the 
NMFS-approved acoustic monitoring plan.
    (2) Port Dolphin shall provide NMFS with empirically measured 
source level data for designated sources of sound associated with Port 
construction and operation activities and shall verify distances to 
relevant sound thresholds. Measurements shall be carefully coordinated 
with sound-producing activities.
    (3) [Reserved]
    (c) Reporting--Port Dolphin must implement the following reporting 
requirements:
    (1) A report of data collected during monitoring shall be submitted 
to NMFS following conclusion of construction activities. Subsequent 
reports concerning Port operations shall be submitted annually. The 
reports shall include:
    (i) All data required to be collected during monitoring, as 
described under Sec.  217.156(a) of this chapter, including observation 
dates, times, and conditions;
    (ii) Correlations of observed behavior with activity type and 
received levels of sound, to the extent possible; and
    (iii) Estimations of total incidental take of marine mammals, 
extrapolated from observed incidental take.
    (2) Port Dolphin shall also submit a report(s) concerning the 
results of all acoustic monitoring. Acoustic monitoring reports shall 
include information as described in a NMFS-approved acoustic monitoring 
plan.
    (3) Reporting injured or dead marine mammals:
    (i) In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by a LOA (if 
issued), such as an injury (Level A harassment), serious injury, or 
mortality, Port Dolphin shall immediately cease the specified 
activities and report the incident to the Chief of the Permits and 
Conservation Division, Office of Protected Resources, NMFS, and the 
Southeast Regional Stranding Coordinator, NMFS. The report must include 
the following information:
    (A) Time and date of the incident;
    (B) Description of the incident;
    (C) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    (D) Description of all marine mammal observations in the 24 hours 
preceding the incident;
    (E) Species identification or description of the animal(s) 
involved;
    (F) Fate of the animal(s); and
    (G) Photographs or video footage of the animal(s).


Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with Port Dolphin 
to determine what measures are necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. Port Dolphin may 
not resume their activities until notified by NMFS.
    (ii) In the event that Port Dolphin discovers an injured or dead 
marine mammal, and the lead PSO determines that the cause of the injury 
or death is unknown and the death is relatively recent (e.g., in less 
than a moderate state of decomposition), Port Dolphin shall immediately 
report the incident to the Chief of the Permits and Conservation 
Division, Office of Protected Resources, NMFS, and the Southeast 
Regional Stranding Coordinator, NMFS. The report must include the same 
information identified in Sec.  217.156(b)(3)(i) of this chapter. 
Activities may continue while NMFS reviews the circumstances of the 
incident. NMFS will work with Port Dolphin to determine whether 
additional mitigation measures or modifications to the activities are 
appropriate.
    (iii) In the event that Port Dolphin discovers an injured or dead 
marine mammal, and the lead PSO determines that the injury or death is 
not associated with or related to the activities authorized in the LOA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), Port Dolphin shall report the 
incident to the Chief of the Permits and Conservation Division, Office 
of Protected Resources, NMFS, and the Southeast Regional Stranding 
Coordinator, NMFS, within 24 hours of the discovery. Port Dolphin shall 
provide photographs or video footage or other documentation of the 
stranded animal sighting to NMFS.
    (4) Annual reports. (i) A report summarizing all marine mammal 
monitoring and construction activities shall be submitted to NMFS, 
Office of Protected Resources, and NMFS, Southeast Regional Office 
(specific contact information to be provided in LOA) following the 
conclusion of construction activities. Thereafter, Port Dolphin shall 
submit annual reports summarizing operations activities.
    (ii) The annual reports shall include data collected for each 
marine mammal species observed in the project area. Description of 
marine mammal behavior, overall numbers of individuals observed, 
frequency of observation, and any behavioral changes and the context of 
the changes relative to activities shall also be included in the 
reports. Additional information that shall be recorded during 
activities and contained in the reports include: date and time of 
marine mammal detections, weather conditions, species identification, 
approximate distance from the source, and activity at the construction 
site when a marine mammal is sighted. Port Dolphin shall extrapolate 
observed incidences of take to provide an estimate of actual incidences 
of take.
    (5) Five-year comprehensive report. (i) Port Dolphin shall submit a 
draft comprehensive final report to NMFS, Office of Protected 
Resources, and NMFS, Southeast Regional Office (specific contact 
information to be provided in LOA) 180 days prior to the expiration of 
the regulations. This comprehensive technical report shall provide full 
documentation of methods, results, and interpretation of all monitoring 
during the first 4.5 years of the activities conducted under the 
regulations in this subpart.
    (ii) Port Dolphin shall submit a revised final comprehensive 
technical report, including all monitoring results during the entire 
period of the LOAs, 90 days after the end of the period of 
effectiveness of the regulations to NMFS, Office of Protected 
Resources, and NMFS, Southeast Regional Office (specific contact 
information to be provided in LOA).


Sec.  217.157  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, Port Dolphin must apply for and obtain a LOA.
    (b) A LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) If an LOA expires prior to the expiration date of these 
regulations, Port Dolphin must apply for and obtain a renewal of the 
LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and

[[Page 20819]]

monitoring measures required by an LOA, Port Dolphin must apply for and 
obtain a modification of the LOA as described in Sec.  217.158 of this 
chapter.
    (e) The LOA shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA shall be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of a LOA shall be published in the 
Federal Register within 30 days of a determination.


Sec.  217.158  Renewals and modifications of Letters of Authorization.

    (a) A LOA issued under Sec. Sec.  216.106 and 217.157 of this 
chapter for the activity identified in Sec.  217.151(a) of this chapter 
shall be renewed or modified upon request by the applicant, provided 
that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision in Sec.  
217.158(c)(1) of this chapter).
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For LOA modification or renewal requests by the applicant that 
include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in Sec.  217.158(c)(1) of this chapter) that do not change 
the findings made for the regulations or result in no more than a minor 
change in the total estimated number of takes (or distribution by 
species or years), NMFS may publish a notice of proposed LOA in the 
Federal Register, including the associated analysis of the change, and 
solicit public comment before issuing the LOA.
    (c) A LOA issued under Sec. Sec.  216.106 and 217.157 of this 
chapter for the activity identified in Sec.  217.151(a) of this chapter 
may be modified by NMFS under the following circumstances:
    (1) Adaptive Management--NMFS may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting with Port Dolphin regarding the practicability of the 
modifications) if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of the mitigation and monitoring 
set forth in the preamble for these regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from Port Dolphin's monitoring from the previous 
year(s).
    (B) Results from other marine mammal and/or sound research or 
studies.
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
will publish a notice of proposed LOA in the Federal Register and 
solicit public comment.
    (2) Emergencies--If NMFS determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in Sec.  217.153(b) of this chapter, an LOA 
may be modified without prior notice or opportunity for public comment. 
Notice would be published in the Federal Register within 30 days of the 
action.
[FR Doc. 2013-08124 Filed 4-5-13; 8:45 am]
BILLING CODE 3510-22-P