[Federal Register Volume 81, Number 165 (Thursday, August 25, 2016)]
[Notices]
[Pages 58478-58494]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20407]



[[Page 58478]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XE727


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Maintenance, Repair, and 
Decommissioning of a Liquefied Natural Gas Facility off Massachusetts

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

ACTION: Notice; proposed incidental harassment authorization; request 
for comments.

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SUMMARY: NMFS has received an application from Neptune LNG LLC 
(Neptune) for an Incidental Harassment Authorization (IHA) to take 
marine mammals, by harassment, incidental to maintenance, repair, and 
decommissioning activities at its liquefied natural gas (LNG) deepwater 
port (Port) off the coast of Massachusetts. Pursuant to the Marine 
Mammal Protection Act (MMPA), NMFS is requesting comments on its 
proposal to issue an IHA to Neptune to take, by Level B harassment 
only, fourteen species of marine mammals during the specified activity.

DATES: Comments and information must be received no later than 
September 26, 2016.

ADDRESSES: Comments on the application should be addressed to Jolie 
Harrison, Chief, Permits, Conservation and Education Division, Office 
of Protected Resources, National Marine Fisheries Service, 1315 East 
West Highway, Silver Spring, MD 20910. The mailbox address for 
providing email comments is [email protected]. NMFS is not responsible 
for email comments sent to addresses other than the one provided here. 
Comments sent via email, including all attachments, must not exceed a 
25 megabyte file size.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm without change. All personally identifiable information 
(for example, name, address, etc.) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.
    An electronic copy of the application may be obtained by writing to 
the address specified above, telephoning the contact listed below (see 
FOR FURTHER INFORMATION CONTACT), or visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. The following associated 
documents are also available at the same Internet address: Biological 
Opinion on the Effects of the Maritime Administration's (MARAD) 
issuance of a license to Neptune to own and operate a LNG deepwater 
port off the coast of Massachusetts on Threatened and Endangered 
Species (NMFS, 2010) and a list of references used in this document. 
The MARAD and U.S. Coast Guard (USCG) Final Environmental Impact 
Statement (EIS) is available for viewing at http://www.regulations.gov 
by entering the search words ``Neptune LNG.''

FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, 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.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS' review 
of an application followed by a 30-day public notice and comment period 
on any proposed authorizations for the incidental harassment of marine 
mammals. Within 45 days of the close of the comment period, NMFS must 
either issue or deny the authorization.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as:

any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild (``Level A harassment''); or (ii) has the potential to disturb 
a marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering 
(``Level B harassment'').

Summary of Request

    NMFS received an application on May 28, 2016, from Neptune for the 
taking, by harassment, of marine mammals incidental to maintenance, 
repair, and decommissioning activities, at its Port facility in 
Massachusetts Bay off the coast of Massachusetts. NMFS reviewed 
Neptune's application and requested clarification on some portions. 
After addressing comments from NMFS, Neptune modified its application 
and submitted a revised application on August 11, 2016. The August 11, 
2016, application is the one available for public comment (see 
ADDRESSES) and considered by NMFS for this proposed IHA.
    NMFS has issued several incidental harassment authorizations for 
the take, by Level B harassment only, of marine mammals to Neptune. 
NMFS issued a one-year IHA in June 2008, for the construction of the 
DWP (73 FR 33400 [June 12, 2008), which expired on June 30, 2009. NMFS 
issued a second one-year IHA to Neptune for the completion of 
construction and beginning of Port operations on June 26, 2009 (74 FR 
31926 [July 6, 2009]). NMFS issued a third 1-year IHA (75 FR 41440 
[July 16, 2010]) for ongoing operations followed by a five-year 
rulemaking and Letter of Authorization (LOA) 76 FR 34157 [June 13, 
2011]), which expired on July 10, 2016. Although Neptune intended to 
operate the port for over 25 years, changes in the natural gas market 
have resulted in the company halting production operations. During the 
period of this proposed IHA, Neptune intends to decommission the port 
in its entirety and conduct any unscheduled maintenance activities, if 
needed, prior to decommissioning.
    The Neptune Port is located approximately 22 miles (mi) (35 
kilometers (km)) northeast of Boston, Massachusetts, in Federal waters 
approximately 260 feet (ft) (79 meters

[[Page 58479]]

(m)) in depth. Take of marine mammals may occur from dynamic 
positioning (DP) vessel thruster use, including dive support vessels 
(DSVs) and potentially one heavy lift vessel (HLV), while maneuvering 
(e.g., docking, undocking, and occasional weathervaning (turning of a 
vessel at anchor from one direction to another under the influence of 
wind or currents) during port maintenance, repair, and decommissioning. 
Neptune has requested authorization to take the following 14 marine 
mammal species by Level B harassment: North Atlantic right whale 
(Eubalaena glacialis), fin whale (Balaenoptera physalus), humpback 
whale (Megaptera novaeangliae), minke whale (Balaenoptera 
acutorostrata), sei whale (Balaenoptera boreali), Atlantic white-sided 
dolphin (Lagenorhynchus acutus), long-finned pilot whale (Globicephala 
melas), harbor porpoise (Phocoena phocoena), bottlenose dolphin 
(Tursiops truncatus), short beaked common dolphin (Delphinus delphis), 
Risso's dolphin (Grampus griseus), killer whale (Orcinus orcus), harbor 
seal (Phoca vitulina), and grey seal (Halichoerus grypus). NMFS has 
preliminarily determined to authorize take, by Level B harassment only, 
of these species incidental to DP vessel thruster use during 
maintenance, repair, and decommissioning activities.

Description of the Specified Activity

Overview

    The Neptune Port began operations in 2009-2010, with the intention 
to import LNG into the New England region. The Port consists of a 
submerged buoy system to dock specifically designed LNG carriers 
approximately 22 mi (35 km) northeast of Boston, Massachusetts, in 
Federal waters approximately 125-250 ft (38-76 m) in depth. It is 
located west (i.e., inshore) of and adjacent to the Stellwagen Bank 
National Marine Sanctuary (NMS). The Port consists of two mooring and 
unloading buoys separated by approximately 2.1 mi (3.4 km) (also known 
as the north and south buoy) and a pipeline that receives natural gas 
from ``shuttle and regasification vessels'' (SRVs), through a flexible 
riser that connects to a 24-inch (in) subsea flowline and ultimately 
into a 24-in gas transmission line. This gas transmission line connects 
to the existing 30-in Algonquin HubLine gas pipeline. A hot tap valve 
(herein after ``hot tap'') unit used to control gas flow from the 
Algonquin pipeline to Neptune's gas transmission line is located 
inshore of the buoys in water approximately 122 ft (37 m). The 
locations of the Neptune port facilities, including the north buoy, 
south buoy and hot tap are shown in Figure 2-1 in Neptune's application 
(see ADDRESSES). All decommissioning and unscheduled maintenance and 
repair work will take place at the north and south buoys and at the hot 
tap in succession with limited transit between locations.

Dates and Duration

    Decommissioning will occur for up to 70 days between May 1 and 
November 30, 2017. Unscheduled maintenance and repair work may occur 
prior to decommissioning, if needed, and last up to 14 days.

Detailed Description of Activities

    Maintenance, repair, and decommissioning of the Port will require 
docking, undocking, and occasional weathervaning of DP vessels at the 
north buoy, south buoy, and hot tap via the use of bow and stern 
thrusters. Operation and specifications of DP vessels is provided in 
the ``Vessel Activity'' section below. For purposes of this IHA, the 
activity that may result in the take, by Level B harassment, of marine 
mammals is limited to use of these thrusters. A summary of the type of 
work performed during maintenance, repair, and decommissioning 
requiring vessel operations is also summarized below; however, NMFS 
does not anticipate incidental take of marine mammals as a result of 
the actual underwater work (see Neptune's application for a more 
detailed description of this work).
Maintenance and Repair
    At this time, Neptune does not anticipate maintenance or repair of 
Port equipment will be necessary (the Port is not currently operating); 
however, they are requesting authorization of take incidental to 
thruster use during maintenance and repair should an unanticipated 
issue arise with port equipment prior to decommissioning. Unscheduled 
maintenance and repair activities requiring limited excavation to 
access the pipeline, or cathodic protection maintenance, are authorized 
by the Federal Energy Regulatory Commission (FERC). Unplanned 
maintenance and repair would be relatively minor and of short duration. 
Example unscheduled maintenance activities may include repair of flange 
or valve leaks, replacing faulty pressure transducers, or unscheduled 
maintenance on valves. Neptune may use a remotely operated underwater 
vehicle (ROV) to perform these tasks. These minor unscheduled 
maintenance and repair activities will be completed within a few days 
to two weeks, depending on the nature of the problem.
    Should any unplanned maintenance be required, a DSV would be the 
primary vessel used to complete the activities in the timeliest manner. 
The category of DSV and corresponding support vessels would be dictated 
by the type of work required, the water depth at the work location, 
vessel availability, and expected duration of the maintenance or 
repair.
Decommissioning
    Neptune intends to decommission the Port in its entirety. 
Decommissioning involves seven major steps: Isolation and closure of 
hot tap and removal of tie-in spool; pipeline decommissioning and 
abandonment; disconnection and removal of risers and umbilicals, and 
submerged turret loading (STL) buoys; covering suction piles used as 
anchoring/mooring with trawl protector; removal of mooring lines 
(anchor chain and wire rope); removal of pipeline end maninfolds 
(PLEMs) and hot tap; and removal of two seafloor position transponders 
(one at each buoy). All recovery of decommissioned equipment would be 
done using a crane aboard the DSV and parts staged on the anchored 
barge to be taken to shore via a tug. Neptune's application provides 
more detail regarding these activities. NMFS has preliminarily 
determined only the use of thrusters from vessels necessary to perform 
the work has the potential to result in the take of marine mammals, by 
Level B harassment.
Vessel Activity
    The planned scenario for the duration of all proposed activities 
would include the mobilization of a DSV, tug, an anchored barge, and 
intermittent use of a crew vessel with the DSV being a DP vessel. Two 
types of DP vessels may be used to support Port maintenance, repair, 
and decommissioning: A DSV and a HLV. Only one DSV or HLV vessel is 
expected to be working at any one time. However, in the unlikely event 
that two DSVs (or one DSV and one HLV) are necessary at the same time, 
they would remain at least 1000 m from each another. The specifications 
of the HLV are similar to that of the DSV and would be performing the 
same duties as a DSV. The DP vessel would likely be 120 m in length and 
equipped with two 1,500 kW forward thrusters and one 1,500 kilowatt 
(kW) aft thruster (total 4,500 kW). Neptune would operate the thrusters 
for up 24 hours per day at 50 percent load or less for a maximum 10 
weeks. Proxy DSV and HLV vessels used in Neptune's acoustic modeling, 
as described in Table 1-4 of Neptune's application, were 107 m and 144 
m, respectively, with corresponding total

[[Page 58480]]

thruster power of 3,752 kW and 4,600 kW. For comparison, previous 
incidental take authorizations included take of marine mammals based on 
sound source verification measurements from thrusters on a shuttle 
regasification vessel (SVRs) planned for use during Port operation. The 
SVR was 280 m in length and equipped with two 2,000-kW bow thrusters 
and two 1,200-kW stern thrusters (total 6,400 kW). During the 
measurements, the SRV operated thrusters at 100 percent load as this 
was the predicted scenario during Port operation.
    In general, the DSV will transit to either the STL buoy or PLEM and 
complete all work at the site prior to moving to the next location. The 
DSV would operate in dynamic positioning mode and would support all 
diving and ROV operations required to perform the work. The support tug 
will anchor the barge and would occasionally be required for barge 
handling activities when equipment transport and/or staging are 
required. The crew/supply vessel would be used intermittently for 
personnel and supply transfers. A survey vessel would be used for a 
brief period of time (no more than five days) at the end of the project 
to perform an ``as-left'' survey.

Description of Marine Mammals in the Area of the Specified Activity

    Massachusetts Bay (as well as the entire Atlantic Ocean) hosts a 
diverse assemblage of marine mammals. Table 3-1 in Neptune's 
application outlines 20 marine mammal species with distributions or 
sighting records within the general activity region. However, six are 
very rare or unlikely to inhabit the geographic range which many 
ensonified by the proposed activity area and therefore are not expected 
to be affected at any level by the proposed activities. These species 
include: Blue whale (Balaenoptera musculus), striped dolphin (Stenella 
coeruleoalba), Atlantic white-sided dolphin (Lagenorhynchus acutus), 
sperm whale (Physeter macrocaphalus), hooded seal (Cystophora 
cristata), and harp seal (Phoca groenlandica). Blue and sperm whales 
are not commonly found in Massachusetts Bay with blue whale most 
commonly seen off the Canada coast. The sperm whale is generally a 
deepwater animal, and its distribution off the Northeastern United 
States is concentrated around the 13,280 ft (4,048 m) depth contour, 
with sightings extending offshore beyond the 6,560 ft (2,000 m) depth 
contour. Sperm whales can also be seen in shallow water south of Cape 
Cod from May to November. Harp and hooded seals are seasonal visitors 
from much further north, seen mostly in the winter and early spring. 
Prior to 1990, harp and hooded seals were sighted only very 
occasionally in the Gulf of Maine, but recent sightings suggest 
increasing numbers of these species now visit these waters. Juveniles 
of a third seal species, the ringed seal, are seen on occasion as far 
south as Cape Cod in the winter, but this species is considered to be 
quite rare in these waters. Due to the rarity of these species in the 
project area, NMFS is not proposing to authorize take, by harassment, 
of these species or stocks and; therefore, they are not discussed 
further in this proposed IHA notice. The bottlenose dolphin and killer 
whale are also unlikely to occur within the proposed activity area. 
However, given their wide distribution and transient behavior, they 
remain in the group of species potentially affected by proposed 
activities.
    Therefore, NMFS proposes to issue an IHA for Level B harassment for 
the following 14 species: North Atlantic right whale; fin whale; 
humpback whale; minke whale; sei whale; harbor porpoise; bottlenose 
dolphin; killer whale; long-finned pilot whale; Atlantic white-sided 
dolphin; short beaked common dolphin; Risso's dolphin; grey seal; and 
harbor seal (Table 1).

                            Table 1--Species Likely To Occur Within the Project Area
                [E = endangered, D = depleted, NL = not listed, ND = not depleted, unk = unknown]
----------------------------------------------------------------------------------------------------------------
                                                                                     Estimated
                                                                                     population
         Common name            Scientific name        Stock            Status       (Waring et     Occurrence
                                                                                     al., 2015)
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale...  Eubalaena         Western Atlantic  E, D...........          476  occasional.
                                glacialis.
Fin whale....................  Balaenoptera      Western North     E,D............        1,618  occasional.
                                physalus.         Atlantic.
Humpback whale...............  Megaptera         Gulf of Maine...  E,D............          823  occasional.
                                novaeangliae.
Minke whale..................  Balaenoptera      Canadian East     NL, ND.........       20,741  occasional.
                                acutorostrata.    Coast.
Sei whale....................  Balaenoptera      Novia Scotia....  E,D............          357  occasional.
                                borealis.
Atlantic white-sided dolphin.  Lagenorhynchus    Western North     NL, ND.........       48,819  occasional.
                                acutus.           Atlantic.
Long-finned pilot whale......  Globicephala      Western North     NL, ND.........       26,535  occasional.
                                melas.            Atlantic.
Harbor porpoise..............  Phocoena          Gulf of Maine/    NL, ND.........       79,883  not common.
                                phocoena.         Bay of Fundy.
Bottlenose dolphin...........  Tursiops          Western North     NL, ND.........       77,532  not common.
                                truncatus.        Offshore
                                                  Atlantic.
Short beaked common dolphin..  Delphinus         Western North     NL, ND.........      173,486  occasional.
                                delphis.          Atlantic.
Risso's dolphin..............  Grampus griseus.  Western North     NL, ND.........       18,250  not common.
                                                  Atlantic.
Killer whale.................  Orcinus orca....  Western North     NL, ND.........          unk  not common.
                                                  Atlantic.
Harbor seal..................  Phoca vitulina..  Western North     NL, ND.........       75,834  occasional.
                                                  Atlantic.
Grey seal....................  Halichoerus       Western North     NL, ND.........          unk  occasional.
                                grypus.           Atlantic.
----------------------------------------------------------------------------------------------------------------

    The North Atlantic right, fin, humpback, and sei, whales are listed 
as endangered under the Endangered Species Act (ESA) and as depleted 
under the MMPA. Certain stocks or populations of killer whales are 
listed as endangered under the ESA or depleted under the MMPA; however, 
none of those stocks or populations occurs in the project area. All 
other species are not listed under the ESA nor considered depleted 
under the MMPA. A brief description of distribution and abundance of 
species potentially taken by the specified activity is provided below. 
Information within these summaries is taken from NMFS stock assessment 
reports, as reviewed in Waring et al. (2015).

North Atlantic Right Whale

    North Atlantic right whales are distributed widely across the 
southern Gulf of Maine in spring with highest abundance located over 
the deeper waters (100 to 160 m, or 328 to 525 ft,

[[Page 58481]]

isobaths) on the northern edge of the Great South Channel (GSC) and 
deep waters (100-300 m, 328-984 ft) parallel to the 100 m (328 ft) 
isobath of northern Georges Bank and Georges Basin. High abundance was 
also found in the shallowest waters (<30 m, <98 ft) of Cape Cod Bay 
(CCB), over Platts Bank and around Cashes Ledge. Lower relative 
abundance is estimated over deep-water basins including Wilkinson 
Basin, Rodgers Basin, and Franklin Basin. In the summer months, right 
whales move almost entirely away from the coast to deep waters over 
basins in the central Gulf of Maine (Wilkinson Basin, Cashes Basin 
between the 160 and 200 m (525 and 656 ft) isobaths and north of 
Georges Bank (Rogers, Crowell, and Georges Basins). Highest abundance 
is found north of the 100 m (328 ft) isobath at the GSC and over the 
deep slope waters and basins along the northern edge of Georges Bank. 
The waters between Fippennies Ledge and Cashes Ledge are also estimated 
as high-use areas. In the fall months, right whales are sighted 
infrequently in the Gulf of Maine, with highest densities over Jeffreys 
Ledge and over deeper waters near Cashes Ledge and Wilkinson Basin. In 
winter, CCB, Scantum Basin, Jeffreys Ledge, and Cashes Ledge are the 
main high-use areas. The Stellwagen Bank NMS, located just east of the 
Port, does not appear to support a high abundance of right whales; 
sightings are reported for all four seasons, albeit at low relative 
abundance. The highest sighting rate within Stellwagen Bank NMS occurs 
along the southern edge of the Bank.
    Right whales frequent Massachusetts and CCB from December through 
July (NMFS, 2010). Neptune acoustically detected right whales in 
greatest abundance near the Port in March and April since beginning 
their long-term acoustic monitoring plan developed during issuance of 
previous incidental take authorizations. As such, NMFS set forth 
conditions in previous incidental take authorizations and its 2010 
Biological Opinion to Neptune to conduct all work from May 1 to 
November 30, annually, to the greatest extent practicable, to avoid 
times when right whales are most abundant.
    As reviewed in Waring et al. (2015), a review of the North Atlantic 
right whale photo-ID recapture database as it existed on October 20, 
2014, indicated that 476 individually-recognized whales in the catalog 
were known to be alive during 2011. This number represents a minimum 
population size. The minimum number alive population index calculated 
from the individual sightings database for the years 1990-2011 suggests 
a positive and slowly accelerating trend in population size. These data 
reveal a significant increase in the number of catalogued whales with a 
geometric mean growth rate for the period of 2.8 percent.
    For the period 2009 through 2013, the minimum rate of annual human-
caused mortality and serious injury to right whales averaged 4.3 per 
year. This is derived from two components: (1) Incidental fishery 
entanglement records at 3.4 per year, and (2) ship strike records at 
0.9 per year. The stock assessment report for this stock (Waring et 
al., 2015) sets the potential biological removal (PBR) level at 0.9; 
therefore, any mortality or serious injury for this stock can be 
considered significant. The Western North Atlantic stock is considered 
strategic by NOAA because the average annual human-related mortality 
and serious injury exceeds PBR, and because the North Atlantic right 
whale is an endangered species.

Humpback Whale

    The highest abundance for humpback whales is distributed primarily 
along a relatively narrow corridor following the 100 m (328 ft) isobath 
across the southern Gulf of Maine from the northwestern slope of 
Georges Bank, south to the GSC, and northward alongside Cape Cod to 
Stellwagen Bank and Jeffreys Ledge. The relative abundance of whales 
increases in the spring with the highest occurrence along the slope 
waters (between the 40 and 140 m (131 and 459 ft) isobaths) off Cape 
Cod and Davis Bank, Stellwagen Basin and Tillies Basin and between the 
50 and 200 m (164 and 656 ft) isobaths along the inner slope of Georges 
Bank. High abundance was also estimated for the waters around Platts 
Bank. In the summer months, abundance increases markedly over the 
shallow waters (<50 m, or <164 ft) of Stellwagen Bank, the waters (100-
200 m, 328-656 ft) between Platts Bank and Jeffreys Ledge, the steep 
slopes (between the 30 and 160 m isobaths, 98 and 525 ft isobaths) of 
Phelps and Davis Bank north of the GSC towards Cape Cod, and between 
the 50 and 100 m (164 and 328 ft) isobath for almost the entire length 
of the steeply sloping northern edge of Georges Bank. This general 
distribution pattern persists in all seasons except winter when 
humpbacks remain at high abundance in only a few locations including 
Porpoise and Neddick Basins adjacent to Jeffreys Ledge, northern 
Stellwagen Bank and Tillies Basin, and the GSC. The minimum population 
estimate of Gulf of Maine, formerly western North Atlantic, humpback 
whales is 823 animals (Waring et al., 2015). Current data suggest that 
the Gulf of Maine humpback whale stock is steadily increasing in size, 
which is consistent with an estimated average trend of 3.1% in the 
North Atlantic population overall for the period 1979-1993.

Fin Whale

    Spatial patterns of habitat utilization by fin whales are very 
similar to those of humpback whales. Spring and summer high-use areas 
follow the 100 m (328 ft) isobath along the northern edge of Georges 
Bank (between the 50 and 200 m, 164 and 656 ft, isobaths), and 
northward from the GSC (between the 50 and 160 m, 164 and 525 ft, 
isobaths). Waters around Cashes Ledge, Platts Bank, and Jeffreys Ledge 
are all high-use areas in the summer months. Stellwagen Bank is a high-
use area for fin whales in all seasons, with highest abundance 
occurring over the southern Stellwagen Bank in the summer months. In 
fact, the southern portion of Stellwagen Bank NMS is used more 
frequently than the northern portion in all months except winter, when 
high abundance is recorded over the northern tip of Stellwagen Bank. In 
addition to Stellwagen Bank, high abundance in winter is estimated for 
Jeffreys Ledge and the adjacent Porpoise Basin (100 to 160 m, 328 to 
525 ft isobaths), as well as Georges Basin and northern Georges Bank. 
The best abundance estimate available for the western North Atlantic 
fin whale stock is 1,618 and is based on 2011 NOAA shipboard surveys 
(Waring et al., 2015). The minimum population estimate for the western 
North Atlantic fin whale is 1,234. A trend analysis has not been 
conducted for this stock.

Minke Whale

    Like other piscivorus baleen whales, highest abundance for minke 
whale is strongly associated with regions between the 50 and 100 m (164 
and 328 ft) isobath, but with a slightly stronger preference for the 
shallower waters along the slopes of Davis Bank, Phelps Bank, GSC, and 
Georges Shoals on Georges Bank. Minke whales are sighted in Stellwagen 
Bank NMS in all seasons, with highest abundance estimated for the 
shallow waters (approximately 40 m, 131 ft) over southern Stellwagen 
Bank in the summer and fall months. Platts Bank, Cashes Ledge, Jeffreys 
Ledge, and the adjacent basins (Neddick, Porpoise, and Scantium) also 
support high relative abundance. Very low densities of minke whales 
remain throughout most of the southern Gulf of Maine in winter. The 
best estimate of abundance for the Canadian East Coast stock of minke 
whales, which occurs

[[Page 58482]]

from the western half of the Davis Strait to the Gulf of Mexico, is 
20,741 animals with a minimum estimate of 16,199 individuals (Waring et 
al., 2015). A trend analysis has not been conducted for this stock.

Long-finned Pilot Whale

    The long-finned pilot whale is generally found along the edge of 
the continental shelf at a depth of 100-1,000 m (328-3,280 ft), 
choosing areas of high relief or submerged banks in cold or temperate 
shoreline waters. This species is split into two subspecies: The 
Northern and Southern subspecies. The Southern subspecies is 
circumpolar with northern limits of Brazil and South Africa. The 
Northern subspecies, which could be encountered during operation of the 
Port facility, ranges from North Carolina to Greenland. In the western 
North Atlantic, long-finned pilot whales are pelagic, occurring in 
especially high densities in winter and spring over the continental 
slope, then moving inshore and onto the shelf in summer and autumn 
following squid and mackerel populations. They frequently travel into 
the central and northern Georges Bank, GSC, and Gulf of Maine areas 
during the summer and early fall (May and October). Based on summer 
2011 surveys covering waters from central Virginia to the lower Bay of 
Fundy, the best available estimate for long-finned pilot whales in the 
western North Atlantic is 5,636 with a minimum population estimate of 
3,464 individuals (Waring et al., 2015). Currently, there are 
insufficient data to determine population trends for the long-finned 
pilot whale.

Sei Whale

    The sei whale is the least likely of all the baleen whale species 
to occur near the Port. However, four sei whales were sighted by 
Neptune's protected species observers (PSOs) during the construction 
phase (ECOES 2010). The Nova Scotia stock of sei whales ranges from the 
continental shelf waters of the Northeastern United States and extends 
northeastward to south of Newfoundland. The southern portion of the 
species range during spring and summer includes the northern portions 
of the U.S. Atlantic Exclusive Economic Zone (EEZ): The Gulf of Maine 
and Georges Bank. Spring is the period of greatest abundance in U.S. 
waters, with sightings concentrated along the eastern margin of Georges 
Bank and into the Northeast Channel area and along the southwestern 
edge of Georges Bank in the area of Hydrographer Canyon. The best 
estimate of abundance for the Nova Scotia stock is 357 with a minimum 
of 236 individuals. However, this estimate is considered low and 
limited given the known range of the sei whale (Waring et al., 2015). 
There are insufficient data to determine population trends for this 
species.

Atlantic White-Sided Dolphin

    In spring, summer and fall, Atlantic white-sided dolphins are 
widespread throughout the southern Gulf of Maine, with the high-use 
areas widely located on either side of the 100 m (328 ft) isobath along 
the northern edge of Georges Bank, and north from the GSC to Stellwagen 
Bank, Jeffreys Ledge, Platts Bank, and Cashes Ledge. In spring, high-
use areas exist in the GSC, northern Georges Bank, the steeply sloping 
edge of Davis Bank, and Cape Cod, southern Stellwagen Bank, and the 
waters between Jeffreys Ledge and Platts Bank. In summer, there is a 
shift and expansion of habitat toward the east and northeast. High-use 
areas occur along most of the northern edge of Georges Bank between the 
50 and 200 m (164 and 656 ft) isobaths and northward from the GSC along 
the slopes of Davis Bank and Cape Cod. High sightings are also recorded 
over Truxton Swell, Wilkinson Basin, Cashes Ledge and the 
bathymetrically complex area northeast of Platts Bank. High sightings 
of white-sided dolphin are recorded within Stellwagen Bank NMS in all 
seasons, with highest density in summer and most widespread 
distributions in spring located mainly over the southern end of 
Stellwagen Bank. In winter, high sightings were recorded at the 
northern tip of Stellwagen Bank and Tillies Basin. The best available 
current abundance estimate for white-sided dolphins in the western 
North Atlantic stock is 48,819, resulting from a June-August 2011 
survey with a minimum population of 30,403 individuals (Waring et al., 
2015). A trend analysis has not been conducted for this species.

Killer Whale, Common Dolphin, Bottlenose Dolphin, Risso's Dolphin, and 
Harbor Porpoise

    Although these five species are some of the most widely distributed 
small cetacean species in the world, they are not commonly seen in the 
vicinity of the project area in Massachusetts Bay. The total number of 
killer whales off the eastern U.S. coast is unknown, and present data 
are insufficient to calculate a minimum population estimate or to 
determine the population trends for this stock. The best estimate of 
abundance for the western North Atlantic stock of short-beaked common 
dolphin is 173,486 with a minimum of 112,531 individuals; a trend 
analysis has not been conducted for this species (Waring et al., 2015). 
There are several stocks of bottlenose dolphins found along the eastern 
U.S. coast from Maine to Florida. The stock that may occur in the area 
of the Port is the western North Atlantic offshore stock of bottlenose 
dolphins. The best population estimate of bottlenose dolphins for the 
stock is 77,532 individuals with a minimum of 56,053 individuals 
(Waring et al., 2015). There are insufficient data to determine the 
population trend for this stock. The best estimate of abundance for the 
western North Atlantic stock of Risso's dolphins is 18,250 with a 
minimum of 12,619 individuals generated from shipboard and aerial 
survey conducted between central Florida and the lower Bay of Fundy 
during June-August 2011 (Waring et al., 2015). There are insufficient 
data to determine the population trend for this stock. The best 
estimate of abundance for the Gulf of Maine/Bay of Fundy stock of 
harbor porpoise is 79,883 with a minimum of 61,415 individuals (Waring 
et al., 2015). A trend analysis has not been conducted for this 
species.

Harbor and Gray Seals

    In the U.S. western North Atlantic, both harbor and gray seals are 
usually found from the coast of Maine south to southern New England and 
New York. Along the southern New England and New York coasts, harbor 
seals occur seasonally from September through late May. In recent 
years, their seasonal interval along the southern New England to New 
Jersey coasts has increased. In U.S. waters, harbor seal breeding and 
pupping normally occur in waters north of the New Hampshire/Maine 
border, although breeding has occurred as far south as Cape Cod in the 
early part of the 20th century. The best estimate of abundance for the 
western North Atlantic stock of harbor seals is 75,834 with a minimum 
of 66,884 individuals (Waring et al., 2015). A trend analysis has not 
been conducted for this stock (Waring et al., 2015).
    Although gray seals are often seen off the coast from New England 
to Labrador, within U.S. waters, only small numbers of gray seals have 
been observed pupping on several isolated islands along the Maine coast 
and in Nantucket-Vineyard Sound, Massachusetts. Present data are 
insufficient to calculate the minimum population estimate for U.S. 
waters; however, in March 2011, a maximum count of 15,756 was obtained 
in southeastern Massachusetts coastal waters (Waring et al., 2015). 
Gray seal abundance is likely increasing in the U.S. Atlantic EEZ, but 
the rate of

[[Page 58483]]

increase is unknown (Waring et al., 2015).

Potential Effects of the Specified Activity on Marine Mammals

    This section includes a summary and discussion of the ways that 
components (i.e., thruster use) of the specified activity, including 
mitigation, may impact marine mammals and their habitat. The 
``Estimated Take by Incidental Harassment'' section later in this 
document will include a quantitative analysis of the number of 
individuals that are expected to be taken by this activity. The 
``Negligible Impact Analysis'' section will include the analysis of how 
this specific activity will impact marine mammals and will consider the 
content of this section, the ``Estimated Take by Incidental 
Harassment'' section and the ``Proposed Mitigation'' section to draw 
conclusions regarding the likely impacts of this activity on the 
reproductive success or survivorship of individuals and from that on 
the affected marine mammal populations or stocks.
    When considering the influence of various kinds of sound on the 
marine environment, it is necessary to understand that different kinds 
of marine life are sensitive to different frequencies of sound. Based 
on available behavioral data, audiograms derived using auditory evoked 
potential techniques, anatomical modeling, and other data, NOAA's 
Acoustic Guidance for Assessing the Effects of Anthropogenic Sound on 
Marine Mammal Hearing (NMFS, 2016) designate ``marine mammal hearing 
groups'' for marine mammals and estimate the lower and upper 
frequencies of hearing. The groups and the associated frequencies are 
indicated below, but it is important to note animals are less sensitive 
to sounds at the outer edge of their functional range and most 
sensitive to sounds of frequencies within a smaller range somewhere in 
the middle of their functional hearing range:
     Low frequency cetaceans (13 species of mysticetes): 
Generalized hearing range is 7 hertz (Hz) to 35 kilohertz (kHz);
     Mid-frequency cetaceans (32 species of dolphins, six 
species of larger toothed whales, and 19 species of beaked and 
bottlenose whales): Generalized hearing range is 150 Hz to 160 kHz;
     High frequency cetaceans (eight species of true porpoises, 
six species of river dolphins, Kogia, the franciscana, and four species 
of cephalorhynchids): Generalized hearing range is 275 Hz to 160 kHz; 
and
     Phocid pinnipeds in water: Generalized hearing range is 50 
Hz to 86 kHz; and
     Otariid pinnipeds in water: Functional hearing is 
estimated to occur between approximately 60 Hz and 39 kHz.
    As mentioned previously in this document, 14 marine mammal species 
(12 cetacean and two pinniped species) are likely to occur near the 
Port. Of the 12 cetacean species likely to occur in Neptune's project 
area, five are classified as low frequency cetaceans (i.e., North 
Atlantic right, humpback, fin, minke, and sei whales), six are 
classified as mid-frequency cetaceans (i.e., killer and pilot whales 
and bottlenose, common, Risso's, and Atlantic white-sided dolphins), 
and one is classified as a high-frequency cetacean (i.e., harbor 
porpoise) (Southall et al., 2007). Both seal species potentially taken, 
by harassment, are phocids. The potential effects of the specified 
activity on marine mammals has been reviewed in the previous incidental 
take authorizations to Neptune (e.g., 75 FR 80260 [December 21, 2010]) 
as well as those proposed for the nearby Northeast Gateway LNG Port 
(e.g., 80 FR 72688 [November 20, 2015]).
    When analyzing the auditory effects of noise exposure, it is often 
helpful to broadly categorize noise as either impulse or non-impulsive. 
Impulsive sound is typically transient, brief (less than 1 second), 
broadband, and consists of high peak sound pressure with rapid rise 
time and rapid decay. Impulsive sounds can occur in repetition or as a 
single event. Non-impulsive sound is characterized as broadband, 
narrowband, or tonal, brief or prolonged, continuous or intermittent, 
and does not have high peak sound pressure with rapid rise times (NMFS, 
2016). Further, continuous noise is defined as a sound whose sound 
pressure level remains above ambient sound during the observation 
period (ANSI, 2005). DP vessel thrusters produce a non-impulsive, 
continuous noise. Marine mammals may undergo behavioral modifications 
rising to the level of take when exposed to elevated sound levels 
produced by thrusters during maneuvering of the DSV or HLV while 
docking and undocking and occasional weathervaning during maintenance, 
repair, and decommissioning activities. The potential effects of sound 
from thruster use include, but are not limited to, one or more of the 
following: No effect; masking; behavioral disturbance; non-auditory 
physical effects; and, temporary hearing impairment (Richardson et al., 
1995; Southall et al., 2007). For reasons discussed later in this 
document, it is unlikely that there would be any cases of temporary or 
permanent hearing impairment resulting from these activities. As 
outlined in previous NMFS documents, the effects of noise on marine 
mammals are highly variable and can be categorized as follows (based on 
Richardson et al., 1995):
    (1) The noise may be too weak to be heard at the location of the 
animal (i.e., lower than the prevailing ambient noise level, the 
hearing threshold of the animal at relevant frequencies, or both);
    (2) The noise may be audible but not strong enough to elicit any 
overt behavioral response;
    (3) The noise may elicit reactions of variable conspicuousness and 
variable relevance to the well being of the marine mammal; these can 
range from temporary alert responses to active avoidance reactions such 
as vacating an area at least until the noise event ceases but 
potentially for longer periods of time;
    (4) Upon repeated exposure, a marine mammal may exhibit diminishing 
responsiveness (habituation), or disturbance effects may persist; the 
latter is most likely with sounds that are highly variable in 
characteristics, infrequent, and unpredictable in occurrence, and 
associated with situations that a marine mammal perceives as a threat;
    (5) Any anthropogenic noise that is strong enough to be heard has 
the potential to reduce (mask) the ability of a marine mammal to hear 
natural sounds at similar frequencies, including calls from 
conspecifics, and underwater environmental sounds such as surf noise;
    (6) If mammals remain in an area because it is important for 
feeding, breeding, or some other biologically important purpose even 
though there is chronic exposure to noise, it is possible that there 
could be noise-induced physiological stress; this might in turn have 
negative effects on the well-being or reproduction of the animals 
involved; and
    (7) Very strong sounds have the potential to cause a temporary or 
permanent reduction in hearing sensitivity. In terrestrial mammals, and 
presumably marine mammals, received sound levels must far exceed the 
animal's hearing threshold for there to be any temporary threshold 
shift (TTS) in its hearing ability. For transient sounds, the sound 
level necessary to cause TTS is inversely related to the duration of 
the sound. Received sound levels must be even higher for there to be 
risk of permanent hearing

[[Page 58484]]

impairment. In addition, intense acoustic or explosive events may cause 
trauma to tissues associated with organs vital for hearing, sound 
production, respiration and other functions. This trauma may include 
minor to severe hemorrhage.

Masking

    Underwater noise, whether of natural or anthropogenic origin, has 
the ability to interfere with the way in which marine mammals receive 
acoustic signals used for communication, social interaction, foraging, 
navigation, etc. (Erbe et al., 2016). When communication signals occur 
near the noise band of the source (in this case, a low frequency source 
like thrusters), communication space of marine mammals can be reduced 
(e.g., Clark et al., 2009) and those animals may exhibit increased 
stress levels (e.g., Foote et al., 2004; Holt et al., 2009). Background 
ambient noise often interferes with or masks the ability of an animal 
to detect a sound signal even when that signal is above its absolute 
hearing threshold.
    Natural ambient noise includes contributions from wind, waves, 
precipitation, other animals, and (at frequencies above 30 kHz) thermal 
noise resulting from molecular agitation (Richardson et al., 1995) 
making the sea usually noisy, even in the absence of manmade sounds. As 
such, marine mammals have evolved systems and behavior that function to 
reduce the impacts of masking. Structured signals, such as the 
echolocation click sequences of small toothed whales, may be readily 
detected even in the presence of strong background noise because their 
frequency content and temporal features usually differ strongly from 
those of the background noise (Au and Moore, 1988, 1990). There is 
evidence some toothed whales can increase amplitude and shift dominant 
frequencies of their echolocation and communication signals to 
compensate for increased ocean noise (Au et al., 1985; Holt et al., 
2011; Scheifele et al., 2005). In addition, the sound localization 
abilities of marine mammals suggest that, if signal and noise come from 
different directions, masking would not be as severe as the usual types 
of masking studies might suggest (Richardson et al., 1995).
    The introduction of strong sounds into the sea at frequencies 
important to marine mammals increases the severity and frequency of 
occurrence of masking. Recent science suggests that low frequency 
ambient sound levels have increased by as much as 20 decibels (dB) 
(more than three times in terms of sound pressure level [SPL]) in the 
world's ocean from pre-industrial periods, and most of these increases 
are from distant shipping (Hildebrand, 2009).
    Unlike threshold shift, masking can potentially affect the species 
at population, community, or even ecosystem levels, as well as 
individual levels. Masking affects both senders and receivers of the 
signals and could have long-term chronic effects on marine mammal 
species and populations; however, quantitative data supporting this is 
lacking. Regardless, Neptune's use of DP thrusters would contribute 
elevated noise levels, thus increasing severity of masking by nearby 
animals.

Disturbance

    Exposure of marine mammals to certain sounds could lead to 
behavioral disturbance (Richardson et al., 1995), such as: Changing 
durations of surfacing and dives, number of blows per surfacing, or 
moving direction and/or speed; reduced/increased vocal activities; 
changing/cessation of certain behavioral activities (such as 
socializing or feeding); visible startle response or aggressive 
behavior (such as tail/fluke slapping or jaw clapping); avoidance of 
areas where noise sources are located; and/or flight responses (e.g., 
pinnipeds flushing into water from haulouts or rookeries).
    The onset of behavioral disturbance from anthropogenic noise 
depends on both external factors (characteristics of noise sources and 
their paths) and the receiving animals (hearing, motivation, 
experience, demography) and is also difficult to predict (Southall et 
al., 2007). Similarly, the biological significance of many of these 
behavioral disturbances, especially short-term, mild reactions, are not 
well documented. The consequences of behavioral modification are 
expected to be biologically significant if the change affects growth, 
survival, and/or reproduction.
    Currently NMFS uses a received level of 160 dB re 1 micro Pascal 
([mu]Pa) root mean square (rms) for impulse noises, which are 
characterized by rapid rise times (e.g., impact pile driving), as the 
onset of marine mammal behavioral harassment, and 120 dB re 1 [mu]Pa 
(rms) for non-impulse noise sources (e.g., DP vessel thrusters). No 
impulse noise is expected from activities under this IHA. For Neptune's 
maintenance, repair and decommissioning activities, only the 120 dB re 
1 [mu]Pa (rms) threshold is considered because only non-impulse noise 
sources would be generated.

Hearing Impairment and Other Physiological Effects

    Marine mammals exposed to high intensity sound repeatedly or for 
prolonged periods can experience hearing threshold shift (TS), which is 
the loss of hearing sensitivity at certain frequency ranges (Kastak et 
al., 1999; Schlundt et al., 2000; Finneran et al., 2002; 2005). TS can 
be permanent (PTS), in which case the loss of hearing sensitivity is 
unrecoverable, or temporary (TTS), in which case the animal's hearing 
threshold will recover over time (Southall et al., 2007). Since marine 
mammals depend on acoustic cues for vital biological functions, such as 
orientation, communication, finding prey, and avoiding predators, 
marine mammals that suffer from PTS or TTS could have reduced fitness, 
survival, and reproduction, either permanently or temporarily.
    TTS is the mildest form of hearing impairment that can occur during 
exposure to a strong sound (Kryter, 1985). While experiencing TTS, the 
hearing threshold rises and a sound must be stronger in order to be 
heard. At least in terrestrial mammals, TTS can last from minutes or 
hours to (in cases of strong TTS) days. For sound exposures at or 
somewhat above the TTS threshold, hearing sensitivity in both 
terrestrial and marine mammals recovers rapidly after exposure to the 
noise ends.
    Human non-impulsive noise exposure guidelines are based on 
exposures of equal energy (the same sound exposure level [SEL]) 
producing equal amounts of hearing impairment regardless of how the 
sound energy is distributed in time (NIOSH, 1998). Until recently, 
previous marine mammal TTS studies have also generally supported this 
equal energy relationship (Southall et al., 2007). Three newer studies, 
two by Mooney et al. (2009a,b) on a single bottlenose dolphin either 
exposed to playbacks of U.S. Navy mid-frequency active sonar or octave-
band noise (4-8 kHz) and one by Kastak et al. (2009) on a single 
California sea lion exposed to airborne octave-band noise (centered at 
2.5 kHz), concluded that for all noise exposure situations, the equal 
energy relationship may not be the best indicator to predict TTS onset 
levels.
    TTS was measured in a single, captive bottlenose dolphin after 
exposure to a continuous tone with maximum SPLs at frequencies ranging 
from 4 to 11 kHz that were gradually increased in intensity to 179 dB 
re 1 [micro]Pa and in duration to 55 minutes (Nachtigall et al., 2003). 
No threshold shifts were measured at SPLs of 165 or 171 dB re

[[Page 58485]]

1 [micro]Pa. However, at 179 dB re 1 [micro]Pa, TTSs greater than 10 dB 
were measured during different trials with exposures ranging from 47 to 
54 minutes. Hearing sensitivity apparently recovered within 45 minutes 
after noise exposure.
    For baleen whales, there are no data on levels or properties of 
sound that are required to induce TTS. The frequencies to which baleen 
whales are most sensitive are lower than those to which odontocetes are 
most sensitive, and natural background noise levels at those low 
frequencies tend to be higher. Sounds that are produced in the 
frequency range at which an animal hears the best do not need to be as 
loud as sounds in less functional frequencies to be detected by the 
animal. As a result, auditory thresholds of baleen whales within their 
frequency band of best hearing are believed to be higher (less 
sensitive) than are those of odontocetes at their best frequencies 
(Clark and Ellison, 2004). Therefore, for a sound to be audible, baleen 
whales require sounds to be louder (i.e., higher dB levels) than 
odontocetes in the frequency ranges at which each group hears the best. 
Based on this information, it is suspected that received levels causing 
TTS onset may also be higher in baleen whales. Since current NMFS 
practice assumes the same thresholds for the onset of hearing 
impairment in both odontocetes and mysticetes, NMFS' onset of TTS 
threshold is likely conservative for mysticetes.
    In free-ranging pinnipeds, TTS thresholds associated with exposure 
to underwater sound have not been measured; however, systematic TTS 
studies on captive pinnipeds have been conducted (Kastak et al., 1999, 
2005; Schusterman et al., 2000; Southall et al., 2007). Kastak et al. 
(1999) reported TTS of approximately 4-5 dB in three species of 
pinnipeds (harbor seal, Californian sea lion, and northern elephant 
seal) after underwater exposure for approximately 20 minutes to noise 
with frequencies ranging from 100-2,000 Hz at received levels 60-75 dB 
above hearing threshold. This approach allowed similar effective 
exposure conditions to each of the subjects but resulted in variable 
absolute exposure values depending on subject and test frequency. 
Recovery to near baseline levels was reported within 24 hours of noise 
exposure (Kastak et al., 1999). Kastak et al. (2005) followed up on 
their previous work using higher sensitivity levels and longer exposure 
times (up to 50 minutes) and corroborated their previous findings. The 
sound exposures necessary to cause slight threshold shifts were also 
determined for two California sea lions and a juvenile elephant seal 
exposed to underwater sound for similar duration. The sound level 
necessary to cause TTS in pinnipeds depends on exposure duration, as in 
other mammals; with longer exposure, the level necessary to elicit TTS 
is reduced (Schusterman et al., 2000; Kastak et al., 2005). For very 
short exposures (e.g., to a single sound pulse), the level necessary to 
cause TTS is very high (Finneran et al., 2002).

Vessel Strikes

    Vessel strikes pose a substantial risk to large whales, with North 
Atlantic right whales being particularly susceptible due to its 
congregations and movements in and around shipping lanes, near-shore 
behaviors, and time spent at the surface (Nowacek et al., 2004). Ship 
strikes of cetaceans can cause major wounds, which may lead to the 
death of the animal. An animal at the surface could be struck directly 
by a vessel, a surfacing animal could hit the bottom of a vessel, or an 
animal just below the surface could be cut by a vessel's propeller. The 
severity of injuries typically depends on the size and speed of the 
vessel (Knowlton and Kraus, 2001; Laist et al., 2001; Vanderlaan and 
Taggart, 2007). The most vulnerable marine mammals are those that spend 
extended periods of time at the surface in order to restore oxygen 
levels within their tissues after deep dives (e.g., the sperm whale). 
In addition, some baleen whales, such as the North Atlantic right 
whale, seem generally unresponsive to vessel sound, making them more 
susceptible to vessel collisions (Nowacek et al., 2004). These species 
are primarily large, slow moving whales. Smaller marine mammals (e.g., 
bottlenose dolphin) move quickly through the water column and are often 
seen riding the bow wave of large ships. Marine mammal responses to 
vessels may include avoidance and changes in dive pattern (NRC, 2003).
    In an effort to reduce right whale strikes, NMFS issued a Final 
Rule to reduce the severity and likelihood of vessel strikes to North 
Atlantic right whales, which went into effect on December 9, 2008 (73 
FR 60173 [October 10, 2008]). The U.S. Northeast Great South Channel 
Mandatory Speed Restriction Seasonal Management Area is active April 1 
through July 31, annually. All Neptune vessels would abide by the 
speed, monitoring, and reporting restrictions contained within the 
Rule, including reducing vessel speed to 10 knots while in a seasonal 
management area and traffic scheme restrictions.

Potential Effects on Marine Mammal Habitat

    The proposed action area is inhabited by North Atlantic right, fin, 
humpback, and minke whales during part of the seasons, and is adjacent 
to the Stellwagen Bank NMS. In January 2016, NMFS issued a final rule 
modifying North Atlantic right whale critical habitat. As a result of 
that modification, the Port is now located within right whale critical 
habitat.
    Loss or modification of marine mammal habitat could arise from 
maintenance, repair, and decommissioning activities by altering benthic 
habitat, degrading water quality, and introduction of noise. Short-term 
impacts on benthic communities will occur during the decommissioning 
and removal or abandonment of Neptune DWP components at the north and 
south buoys and hot tap. Proposed activities will temporarily disturb 
small localized areas around each installed component slated for 
removal. Activities will produce suspension of fine sediments and 
resettlement of suspended sediments is the area immediately adjacent to 
ongoing operations. Resettlement of suspended sediments will produce 
localized reductions in benthic growth, reproduction, and survival 
rates of indigenous fauna; if the sediment resettlement is significant, 
smothering of benthic flora and fauna may occur.
    Maintenance, repair, and decommissioning is also likely to cause 
disturbance of the seafloor and increase turbidity. Sediment transport 
modeling conducted by Neptune on construction procedures indicated that 
initial turbidity from installation of the pipeline could reach 100 
milligrams per liter (mg/L), but will subside to 20 mg/L after 4 hours. 
Turbidity associated with the flowline and hot-tap will be considerably 
less and also will settle within hours of the work being completed. 
Marine mammals could be indirectly affected if benthic prey species 
were displaced or destroyed by repair activities; however, these 
impacts would be brief and rebound when decommissioning is complete. 
Therefore, NMFS has preliminarily determined any impacts from Neptune's 
maintenance, repair, and decommissioning activities to marine mammal 
habitat are not expected to cause significant or long-term consequences 
for individual marine mammals or populations.

Proposed Mitigation

    In order to issue an incidental take authorization (ITA) under 
sections

[[Page 58486]]

101(a)(5)(A) and (D) of the MMPA, NMFS must, where applicable, set 
forth the permissible methods of taking pursuant to such activity, and 
other means of effecting the least practicable impact on such species 
or stock and its habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance, and on the 
availability of such species or stock for taking for certain 
subsistence uses (where relevant).
    Neptune submitted a ``Monitoring and Mitigation Plan for Neptune 
Deepwater LNG Port Maintenance, Repair, and Decommissioning (MMDMP)'' 
as part of its MMPA application (Appendix A of the application; see 
ADDRESSES). The MMDMP will provide the framework for mitigation and 
monitoring during the proposed activities. These measures include the 
following components: (1) Visual and acoustic monitoring program; (2) 
safety/shutdown zones; (3) recording and reporting; and (4) vessel 
speed/area restrictions.
    The mitigation protocols have been designed to provide both 
protection to marine mammals from exposure to the highest noise levels 
and contributions to noise characterization and species for the region. 
The mitigation measures will reduce the impact to marine mammals by 
minimizing exposure to potentially disruptive noise levels. The 
mitigation measures will further reduce any potential ship strikes to 
large whales in the area. The measures, which include use of protected 
species observers on all DP vessels, mitigation zones, and vessel speed 
reductions, are described below. If Neptune has to take action (e.g., 
cease vessel movement, power down thrusters), the activity may resume 
after the marine mammal is positively reconfirmed outside the 
established zones or if the marine mammal has not been re-sighted in 
the established zones for 30 minutes.
Mitigation Measures
    1. Any whale visually sighted or otherwise detected (e.g., on the 
Navigational Telex (NAVTEX), NOAA Weather Radio, NOAA Right Whale 
Sighting Advisory System (SAS)) within 1,000 m of a vessel shall result 
in a heightened alert status which will require all project vessels to 
operate at slow speeds of 4-knots or less and any non-critical 
departure plans to be delayed.
    2. If a right whale call is confirmed on the two closest passive 
acoustic monitoring (PAM) buoys or on any three PAM buoys, all vessels 
will go into heightened alert status requiring all project vessels to 
operate at slow speeds of 4 knots or less and any non-critical 
departure plans to be delayed.
    3. Any whale sighted within or approaching 500 m of a vessel shall 
result in that vessel using idle speed and/or ceasing all movement. If 
the vessel is operating DP thrusters, the thrusters will be shut down 
or reduced to minimal safe operating power. The speed and activity 
restrictions shall continue until either the observed whale has been 
confirmed outside of and on a path away from 500m from the vessel or 30 
minutes have passed without another confirmed detection.
    4. Any non-whale marine mammal species detected within or 
approaching 100 m of a vessel shall result in that vessel using idle 
speed and/or ceasing all movement. If the vessel is operating DP 
thrusters, the thrusters will be shut down or reduced to minimal safe 
operating power. The speed and activity restrictions shall continue 
until either the observed marine mammal has been confirmed outside and 
on a path away from 100 m from the activity or 30 minutes have passed 
without another confirmed detection.
    5. All project vessels will remain at least 500 m away from any 
North Atlantic right whale and at least 100 m away from all other 
marine mammals. If a marine mammal approaches a stationary vessel, that 
vessel will sit idle or turn off engines until the marine mammal has 
left the designated zone or 30 minutes have passed without another 
confirmed detection.
    6. All vessels shall utilize the International Maritime 
Organization (IMO)-approved Boston Traffic Separation Scheme (TSS) on 
their approach to and departure from the Neptune DWP and/or the 
unscheduled maintenance/maintenance area at the earliest practicable 
point of transit in order to avoid the risk of whale strikes.
    7. Repair vessels, DSVs, and HLVs, will transit at 10 knots (18.5 
km/hr) or less in the following seasons and areas, which either 
correspond to or are more restrictive than the times and areas in NMFS' 
final rule (73 FR 60173 [October 10, 2008]) to implement speed 
restrictions to reduce the likelihood and severity of ship strikes of 
right whales:
     CCB Seasonal Management Area (SMA) from January 1 through 
May 15, which includes all waters in CCB, extending to all shorelines 
of the Bay, with a northern boundary of 42[deg]12' N. latitude;
     Off Race Point SMA year round, which is bounded by 
straight lines connecting the following coordinates in the order 
stated: 42[deg]30' N. 69[deg]45' W.; thence to 42[deg]30' N. 70[deg]30' 
W.; thence to 42[deg]12' N. 70[deg]30' W.; thence to 42[deg]12' N. 
70[deg]12' W.; thence to 42[deg]04'56.5'' N. 70[deg]12' W.; thence 
along mean high water line and inshore limits of COLREGS \1\ limit to a 
latitude of 41[deg]40' N.; thence due east to 41[deg]41' N. 69[deg]45' 
W.; thence back to starting point; and
---------------------------------------------------------------------------

    \1\ The International Regulations for Preventing Collisions at 
Sea 1972 (COLREGS) are published by the International Maritime 
Organization (IMO) and set out, among other things, the ``rules of 
the road'' or navigation rules to be followed by ships and other 
vessels at sea to prevent collisions between two or more vessels.
---------------------------------------------------------------------------

     Great South Channel (GSC) SMA from April 1 through July 
31, which is bounded by straight lines connecting the following 
coordinates in the order stated:
    42[deg]30' N. 69[deg]45' W.
    41[deg]40' N. 69[deg]45' W.
    41[deg]00' N. 69[deg]05' W.
    42[deg]09' N. 67[deg]08'24'' W.
    42[deg]30' N. 67[deg]27' W.
    42[deg]30' N. 69[deg]45' W.
    8. All vessels transiting to and from the project area shall report 
their activities to the mandatory reporting Section of the USCG to 
remain apprised of North Atlantic right whale movements within the 
area. All vessels entering and exiting the Mandatory Ship Reporting 
Area (MSRA) shall report their activities to WHALESNORTH. Vessel 
operators shall contact the USCG by standard procedures promulgated 
through the Notice to Mariner system. Information regarding the 
geographical boundaries and reporting details can be found at: http://www.fisheries.noaa.gov/pr/shipstrike/msr.htm.
    9. Prior to leaving the dock to begin transit, the project vessel 
must contact one of the PSOs on watch to receive an update of sightings 
within the visual observation area. If the PSO has observed a North 
Atlantic right whale within 30 minutes of the transit start, the vessel 
will hold for 30 minutes and again get a clearance to leave from the 
PSOs on board. PSOs will assess whale activity and visual observation 
ability at the time of the transit request to clear the barge for 
release.
    10. No vessels will transit from shore to the project site during 
nighttime or when visibility is reduced below 1,000 m, unless an 
emergency situation requires the vessel to transit during those times. 
Should transit at night be required, the maximum speed will be 5 knots 
(9.3 km/hr).
    11. All vessels will consult NAVTEX, NOAA Weather Radio, the NOAA 
Right Whale SAS or other means to obtain current large whale sighting 
information.
    12. If member of the crew visually detects a marine mammal within 
the ZOI (3.45 km), they will alert the lead

[[Page 58487]]

PSO on watch who shall then relay the sighting information to the other 
vessels to document take, determine if mitigation actions are 
necessary, as required by this IHA, and ensure action(s) can be taken 
to avoid physical contact with marine mammals.
    13. In response to any whale sightings or acoustic detections, and 
taking into account exceptional circumstances, all vessels shall 
actively communicate with the PSO(s) on watch and will take appropriate 
actions to minimize the risk of striking whales.
    14. Neptune must immediately suspend any repair, maintenance, or 
decommissioning activities if a dead or injured marine mammal is found 
in the vicinity of the project area, and the death or injury of the 
animal could be attributable to the LNG facility activities. Neptune 
must contact NMFS and the Greater Atlantic Regional Office (GARFO) 
Marine Mammal Stranding and Disentanglement Program. Activities will 
not resume until review and approval has been given by NMFS.
    15. Use of lights during repair or maintenance activities shall be 
limited to areas where work is actually occurring, and all other lights 
must be extinguished. Lights must be downshielded to illuminate the 
deck and shall not intentionally illuminate surrounding waters, so as 
not to attract whales or their prey to the area.
    16. Transit route, destination, sea conditions and any marine 
mammal sightings/mitigation actions during watch shall be recorded in 
the log book.
    17. The material barges and tugs used in repair and maintenance 
shall transit from the operations dock to the work sites during 
daylight hours when possible provided the safety of the vessels is not 
compromised. Should transit at night be required, the maximum speed of 
the tug shall be five knots.
    18. All repair vessels must maintain a speed of 10 knots or less 
during daylight hours. All vessels shall operate at five knots or less 
at all times within five km of the maintenance, repair, or 
decommissioning area.
    19. All decommissioning work will occur during the May 1 to 
November 30 seasonal window so that disturbance to North Atlantic right 
whales will be largely avoided.

Mitigation Conclusions

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

Proposed Monitoring and Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth, ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 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. 
Neptune submitted a marine mammal monitoring plan as part of the IHA 
application (see Appendix A of the application). The plan may be 
modified or supplemented based on comments or new information received 
from the public during the public comment period.

Summary of Marine Mammal Monitoring Reports

    NMFS reviewed Neptune's marine mammal monitoring report submitted 
as a requirement of their LOA covering July 2011 to July 2016. During 
the five-year period, the Port was operational between April 2010, and 
July 12, 2011; however, no SRVs visited the Port. As such, no marine 
mammal monitoring occurred. Between July 6-17, 2011, Neptune performed 
repair activities at the north buoy. During the repair work, four PSOs 
kept 24-hour watch for marine mammals and sea turtles. There were 24 
marine mammal sightings comprising four species: Minke whales (n = 9), 
fin whales (n = 2), humpback whales (n = 5), short-beaked common 
dolphins (n = 2), and harbor porpoise (n = 1). In addition, three 
sightings of an unidentified cetacean and one sighting of an 
unidentified seal occurred. In total, 171 individuals were sighted with 
the majority (n = 135) being common dolphins. Two fin whales traveling 
together and approximately 130 common dolphins entered the 100 yard 
mitigation zone while thrusters were in use. On both occasions, divers 
were in the water and changes to thruster activity or power would 
endanger those divers or property. NMFS notes that the 100 yard 
mitigation zone did not constitute a Level A take area (due to source 
power at 1 meter being equal or less than the 180 dB re 1 [mu]Pa (rms) 
Level A threshold criterion that was in place during the authorization 
period) but was enacted to decrease elevated noise exposure. Therefore, 
Neptune did not take a marine mammal in a manner not authorized by 
their LOA. After July 17,

[[Page 58488]]

2011, there were no port activities; therefore, no marine mammal 
monitoring was conducted.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    1. An increase in the probability of detecting marine mammals, both 
within the mitigation zone (thus allowing for more effective 
implementation of the mitigation) and in general to generate more data 
to contribute to the analyses mentioned below;
    2. An increase in our understanding of how many marine mammals are 
likely to be exposed to levels of thruster noise we associate with 
specific adverse effects, such as behavioral harassment, TTS, or PTS;
    3. An increase in our understanding of how marine mammals respond 
to stimuli expected to result in take and how anticipated adverse 
effects on individuals (in different ways and to varying degrees) may 
impact the population, species, or stock (specifically through effects 
on annual rates of recruitment or survival) through any of the 
following methods:
     Behavioral observations in the presence of stimuli 
compared to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
     Physiological measurements in the presence of stimuli 
compared to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
     Distribution and/or abundance comparisons in times or 
areas with concentrated stimuli versus times or areas without stimuli;
    4. An increased knowledge of the affected species; and
    5. An increase in our understanding of the effectiveness of certain 
mitigation and monitoring measures.
    The following describes Neptune's proposed monitoring plan 
components. The monitoring efforts would support the proposed 
mitigation actions described above.

Visual Monitoring

    1. All vessel crew members will undergo environmental training. 
Crew members who will act as designated watch personnel during 
heightened awareness conditions (whale within 1,000 m) will receive 
specialized observer training.
    2. All vessel operation requirements, guidelines and mitigation 
requirements will be clearly posted on the bridge of all project 
vessels.
    3. Neptune or its contractor shall provide a half-day training 
course to designated crew members assigned to the transit barges and 
other support vessels. 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 this Authorization, 
sighting log requirements, and procedures for reporting injured or dead 
marine mammals. These designated crew members shall be required to keep 
watch on the bridge and immediately notify the navigator of any whale 
sightings. All watch crew shall sign into a bridge log book upon start 
and end of watch. Transit route, destination, sea conditions, and any 
protected species sightings/mitigation actions during watch shall be 
recorded in the log book.
    4. Each DP vessel will employ three professional PSOs. Two PSOs 
will conduct continual visual watches on a shift basis during all 
daylight hours. The third PSO will stand night watch. Daytime PSOs will 
monitor the acoustic alert program when not on active visual watch. 
During the night, one PSO will monitor the acoustic alert program and 
will scan the area around the vessel using a thermal imaging or similar 
enhancement device for 15 minutes each hour.
    5. All professional PSOs will be approved by NMFS prior to the 
start of the project, will have at least one full year of marine mammal 
observation experience in the U.S. Atlantic, Pacific or Gulf of Mexico, 
and will have experience in acoustic monitoring and baleen whale 
detection.
    6. Each non-DP vessel will designate one trained crew member to 
stand a dedicated watch during all vessel movement and during times of 
heightened awareness. All designated crew watch personnel will undergo 
a full day of project-specific mitigation and monitoring training 
alongside the professional PSOs.
    7. PSOs will be responsible for advising vessel crew members on the 
required operating procedures and mitigation measures that are defined 
in the IHA. PSOs will be responsible for providing the required 
observation and detection data during the decommissioning activities.

Acoustic Monitoring

    As a requirement of previous incidental take authorizations issued 
to Neptune, a passive acoustic monitoring array was installed around 
the project area and Boston Traffic Separation Scheme (TSS) to 
supplement visual monitoring and provide additional information 
regarding use of the area by marine mammals. This network consists of 
19 autonomous recording units (ARUs) and near-real-time acoustic buoys. 
Neptune shall maintain a passive acoustic monitoring array consisting 
of four near real-time ARUs strategically placed around the north and 
south buoys for the life of the IHA to monitor for whale calls and 
record and analyze background and project-related noise levels. The 
location of the buoys is strategic to cover part of the Boston TSS, and 
the Neptune project area. Because no vessels will be coming from 
offshore, the remaining offshore buoys have been removed.
    The PAM buoys continuously record and analyze underwater sounds, 
including calling whales, throughout the entirety of the deployment 
period. The buoys can be operated in real time when bandwidth allows 
periodic transfer of data, or buoys can operate using auto-detection 
capabilities. When the onboard software detects a whale call, the buoy 
sends the spectral data for the detected signal via radio link to a 
computer display or handheld device that is monitored by the PSO on 
duty. If a detection alert is received, the PSO will review the data 
and confirm that the signal is a whale call. Upon verification, the PSO 
will monitor the other buoys for call detections. If the PSO verifies 
detections from the next closest buoy or two other buoys, then vessels 
will go into ``heightened awareness'' mode. Mitigation measures for 
acoustic detection of whales will be the same as those for visual 
detection described in the ``Proposed Mitigation'' section above. 
Additionally, upon acoustic confirmation of a North Atlantic right 
whale within 1000 m of the project site, all vessel captains will be 
immediately notified, crew PSOs will stand watch, vessel speeds will be 
reduced, transits will be delayed unless crew safety is compromised, 
and the area will be visually and acoustically monitored until the PSO 
determines that normal operating procedures can be resumed. Acoustic 
monitoring will be conducted at night to substitute visual monitoring 
not allowed for by thermal imaging or similar enhancement device.

Reporting Measures

    Since the Port is within the MSRA, all vessels transiting to and 
from Neptune shall report their activities to the mandatory reporting 
section of the USCG to remain apprised of North Atlantic right whale 
movements within the area. All vessels entering and exiting the MSRA 
shall report their activities to USCG's northeast whale reporting 
system (WHALESNORTH). Vessel

[[Page 58489]]

operators shall contact the USCG by standard procedures promulgated 
through the Notice to Mariner system.
    During all phases of project construction, sightings of any injured 
or dead marine mammals will be reported immediately to the USCG and 
NMFS, regardless of whether the injury or death is caused by project 
activities. Sightings of injured or dead marine mammals not associated 
with project activities can be reported to the USCG on VHF Channel 16 
or to NMFS GARFO Marine Mammal Stranding and Disentanglement Program. 
In addition, if the injury or death was caused by a project vessel 
(e.g., DSV, HLV, tug, support vessel, etc.), the USCG must be notified 
immediately, and a full incident report must be provided to NMFS, 
Greater Atlantic Regional Fisheries Office (GARFO). 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; (3) the vessel's speed during the incident; (4) a description 
of the incident; (5) water depth; (6) environmental conditions (e.g., 
wind speed and direction, sea state, cloud cover, and visibility); (7) 
the species identification or description of the animal; (8) the fate 
of the animal; and (9) photographs or video footage of the animal (if 
equipment is available).
    Neptune must submit an annual report on marine mammal monitoring 
and mitigation actions taken or not taken to the NMFS Office of 
Protected Resources and GARFO within 90 days after the expiration of 
the IHA. The annual report should include data collected for each 
distinct marine mammal species observed in the project area in the 
Massachusetts Bay during the period of LNG facility construction and 
operations. Description of marine mammal behavior, numbers of 
individuals observed, frequency of observation, and any behavioral 
changes and the context of the changes relative to construction and 
operation activities shall also be included in the annual report. 
Additional information that will be recorded during construction and 
contained in the reports include: date and time of marine mammal 
detections (visually or acoustically), weather conditions, species 
identification, approximate distance from the source, activity of the 
vessel or at the construction site when a marine mammal is sighted, and 
whether thrusters were in use and, if so, how many at the time of the 
sighting and energy level.
    In the event that Neptune 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 (if the IHA is 
issued) (e.g., previously wounded animal, carcass with moderate to 
advanced decomposition, or scavenger damage), Neptune shall report the 
incident to the Chief, Permits and Conservation Division, Office of 
Protected Resources, NMFS, and the NMFS Northeast Marine Mammal 
Stranding Coordinators within 24 hours of the discovery. Neptune shall 
provide photographs or video footage (if available) or other 
documentation of the stranded animal sighting to NMFS and the GARFO 
Marine Mammal Stranding and Disentanglement Program. Neptune can 
continue its operations under such a case.

General Conclusions Drawn From Previous Monitoring Reports

    Neptune has submitted numerous reports, including weekly reports 
during port construction, to NMFS as required by previous IHAs and the 
2011-2016 LOA. While it is difficult to draw biological conclusions 
from these reports, NMFS can make some general conclusions. Data 
gathered by PSOs is generally useful to indicate the presence or 
absence of marine mammals (often to a species level) within the safety 
zones (and sometimes without) and to document the implementation of 
mitigation measures. Though it is by no means conclusory, it is worth 
noting that no instances of obvious behavioral disturbance as a result 
of Neptune's activities were documented by PSOs.

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). Only take by Level B harassment is 
anticipated as a result of Neptune's use of DP vessel thrusters during 
maintenance, repair, and decommissioning activities. Additionally, 
vessel strikes are not anticipated because of the monitoring and 
mitigation measures described earlier in this document.

Decommissioning and Maintenance Sound

    Acoustic modeling and in situ measurements using a version of the 
Range Dependent Acoustic Model (RAM) were conducted for issuance of 
Neptune's previous IHAs and LOA. The noise fields utilized to assess 
construction (pipelaying) scenarios used a surrogate, multi-vessel 
activity scenario which included the Castoro II lay barge, two tugs, 
one DP survey vessel working on the flowline between the North and 
South buoys, and SRVs to access the DWP (Laurinolli et al., 2005). DP 
vessels similar to the DSV or HLV used for maintenance and 
decommissiong were not included in this model. Because the SRVs used 
for construction and operation are larger and employ greater horsepower 
than the vessels to be used during maintenance, repair and 
decommissioning, thruster noise from DP vessels used under this IHA is 
less than that generated from SRVs. Modeling results showed broadband 
source level for an SRV is 180 dB re 1 [mu]Pa (rms) while modeled 
broadband source level for a proxy DSV and HLV is 177.9 dB re 1 [mu]Pa 
(rms). Neptune used this 177.9 dB re 1 [mu]Pa (rms) source level to 
determine distances to the 120 dB re 1 [mu]Pa (rms) isopleth and 
calculate associated ZOI.
    Neptune calculated the ensonified area in which a marine mammal 
anywhere in the water column could potentially be exposed to a 120 dB 
re 1 [mu]Pa (rms) sound pressure level. Thruster use would occur at 
three locations: The north buoy, south buoy and hot tap. The north and 
south buoys are located in areas with similar characteristics (e.g., 
water depth, substrate type) which should result in similar 
transmission loss rates while the hot tap is located in shallower 
waters. Therefore, Neptune modeled transmission loss at the south buoy 
and hot tap which resulted in a 3.45 km and 3.12 km distance to the 120 
dB re 1 [mu]Pa (rms) isopleth, respectively. Calculating for area, this 
equals a ZOI of 37.4 km\2\ and 31 km\2\ at the south buoy and hot tap, 
respectively. Because the number of days working at the hot tap is 
unknown, Neptune conservatively calculated the amount of take of marine 
mammals based on transmission loss rates at the south buoy (ZOI = 37.4 
km\2\) for the full 70 days of decommissioning work and allowed for two 
weeks of unscheduled maintenance and repair.
    For continuous sounds, such as those produced by Neptune's 
specified activity (i.e., thrusters), NMFS uses a received level of 120 
dB re 1 [mu]Pa (rms) to indicate the onset of potential for Level B 
harassment. Neptune's take

[[Page 58490]]

estimates were derived by applying the modeled zone of influence (ZOI; 
e.g., the area ensonified by the 120 dB re 1 [mu]Pa (rms) contour) at 
the south buoy to the highest seasonal use (density) of the area by 
marine mammals and estimated duration of maintenance, repair, and 
decommissioning activities. The take estimates provided in Neptune's 
application are likely an overestimate of actual take for the following 
reasons: Neptune is applying the larger ZOI for all activities despite 
that some maintenance, repair, and decommissioning activities will 
occur at the hot tap/transfer manifold which is located in shallower 
water and is modeled to have a smaller zone of influence than the south 
buoy (3.12 km vs 3.45 km), summer marine mammal densities are used to 
calculate take; however, some activities may occur outside of the 
summer months when densities are lower, maintenance activities are not 
currently planned but two weeks of work is included here as a 
precaution for unexpected equipment malfunction prior to 
decommissioning, and the take estimates do not take into consideration 
the mitigation and monitoring measures that are proposed for inclusion 
in the IHA, if issued. Because some components of the project are 
unknown (e.g., days at hot tap vs days at south buoy; number of work 
days outside of peak summer abundance), NMFS is preliminarily accepting 
of these conservative estimates and is proposing to issue the requested 
amount of take.
    Acoustic propagation modeling for the proposed activity was 
completed using a version of the RAM. This model considers range and 
depth along with seasonal sound velocity and geoacoustic properties of 
the seafloor. Frequency dependence of the sound propagation 
characteristics was treated by computing acoustic transmission loss at 
the center frequencies of all \1/3\ octave bands between 10 Hz and 2 
kHz. Received sound pressure levels in each band were computed by 
applying frequency-dependent transmission losses to the corresponding 
\1/3\ octave band source levels. The highest \1/3\ octave band level at 
each interval was used as the received level at that range. In order to 
extrapolate ZOI spatial extent, the range to each threshold was also 
analyzed to determine the 95th percentile radius for each noise 
threshold level. More information on the modeling methodology can be 
found in Neptune's application (see ADDRESSES). Neptune concluded 
distance to the 120 dB re 1 [mu]Pa (rms) isopleth at the south buoy 
extends 1.9 nautical miles (3.45 km) resulting in a ZOI of 37.4 km\2\.
    The density calculation methodology applied to take estimates for 
this application is derived from the model results produced by Roberts 
et al. (2016) for the east coast region. These files are available as 
raster files from the NOAA Web site: http://seamap.env.duke.edu/models/Duke-EC-GOM-2015/. In order to determine cetacean densities for take 
estimates, the grid cells that included the ZOI for the hot tap, north, 
and south buoys were selected for months 5 through 10 (May-October). 
The estimated mean monthly abundance for each species for each month 
was an average of May to October grid cells. Monthly values were not 
available for some species (e.g., killer whale, blue whale); therefore, 
only the single value available is presented here. Estimates provided 
by the models are based on a grid cell size of 100 km\2\; therefore, 
model grid cell values were divided by 100 to determine animals 
km-\2\. Gray seal and harbor seal densities are not provided 
in the Roberts et al. (2016) models. Seal densities were derived from 
the Strategic Environmental Research and Development Program (SERDP) 
using the Navy Oparea Density Estimate (NODE) model for the Northeast 
Opareas (Best et al., 2102). Densities for those species potentially 
taken by the specified activity are provided in Table 2 below.
    Take estimates were derived using the following calculation: T = D 
x ZOI x 84 days where T is equal to take and D is equal to density. As 
a review, the ZOI is 37.4 km\2\ based on distance to the 120 dB re 1 
[mu]Pa (rms) at the south buoy while 84 days constitutes 70 days of 
decommissioning work and 14 days of unscheduled maintenance. Proposed 
take numbers, by species, is provided in Table 2.

           Table 2--Estimated Take of Marine Mammals, by Species, Incidental to the Specified Activity
----------------------------------------------------------------------------------------------------------------
                                         Estimated
                                        population                       Estimated
               Species                  (Waring et        Density          takes            Population (%)
                                        al., 2015)
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale                       476        0.000017               2  0.21.
 (Eubalaena glacialis).
Fin whale (Balaenoptera physalus)...           1,618          0.0034              12  0.12.
Humpback whale (Megaptera                        823          0.0032              10  0.22.
 novaeangliae).
Minke whale (Balaenoptera                     20,741          0.0033              11  0.009.
 acutorostrata).
Sei whale (Balaenoptera borealis)...             357        0.000036               2  0.28.
Atlantic white-sided dolphin                  48,819           0.039             124  0.043.
 (Lagenorhynchus acutus).
Long-finned pilot whale                       26,535          0.0019               8  0.035.
 (Globicephala melas).
Harbor porpoise (Phocoena phocoena).          79,883           0.104             328  0.068.
Bottlenose dolphin (Tursiops                  77,532           0.003              10  0.002.
 truncatus).
Short beaked common dolphin                  173,486          0.0071           * 270  0.002.
 (Delphinus delphis).
Risso's dolphin (Grampus griseus)...          18,250        0.000044               2  0.005.
Killer whale (Orcinus orca).........             unk       0.0000089               2  Insufficient data.
Harbor seal (Phoca vitulina)........          75,834           0.097             305  0.067.
Gray sea (Halichoerus grypus).......             unk           0.027            1586  0.002.
----------------------------------------------------------------------------------------------------------------
* Although the take methodology results in an estimated take of 23 common dolphins, this species travels in
  large aggregations. Therefore, NMFS is proposing to authorize take based on two encounters of a group size
  documented within the ZOI in Neptune's monitoring reports (i.e., 135 x 2).


[[Page 58491]]

Analysis and Preliminary Determination

Negligible Impact

    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.'' In making a negligible impact determination, NMFS considers 
a 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.
    No injuries or mortalities are anticipated to occur as a result of 
Neptune's proposed port maintenance, repair, and decommissioning 
activities, and none are proposed to be authorized by NMFS. Animals in 
the area are not anticipated to incur any permanent hearing impairment 
(i.e., PTS) due to low source levels. The IHA would be conditioned to 
minimize the risk of vessel strike (see ``Mitigation Measures'') 
including, but not limited to, reduced vessel speed and delaying 
transit if whales are detected within or visibility is less than 1,000 
m.
    Many animals perform vital functions, such as feeding, resting, 
traveling, and socializing, on a diel cycle (24-hr cycle). Behavioral 
reactions to noise 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). Consequently, a behavioral 
response lasting less than one day and not recurring on subsequent days 
is not considered particularly severe unless it could directly affect 
reproduction or survival (Southall et al., 2007). DP-thrusters may 
operate on consecutive days; however, NMFS does not anticipate a marine 
mammal to remain stationary such that it would be exposed to DP-
thruster noise over multiple days. The intensity and nature of any 
incidental takes occurring from DP vessel thruster use is believed to 
be mild to moderate. The most likely effect from the action is 
localized, short-term behavioral disturbance from animals may avoid the 
area (and therefore avoid exposure) and some masking will likely occur; 
however, the implementation of the mitigation measures are intended to 
decrease these effects.
    As stated previously, NMFS' practice has been to apply the 120 dB 
re 1 [mu]Pa (rms) received level threshold for underwater continuous 
sound levels to determine whether take by Level B harassment occurs; 
however, not all animals 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. Southall et al. (2007) provide a severity 
scale for ranking observed behavioral responses of both freeranging 
marine mammals and laboratory subjects to various types of 
anthropogenic sound (see Table 4 in Southall et al. (2007)). Tables 15, 
17, 19, and 21 in Southall et al. (2007) outline the numbers of low-
frequency, mid-frequency, and high-frequency cetaceans and pinnipeds in 
water, respectively, reported as having behavioral responses to non-
pulses in 10-dB received level increments. These tables illustrate, 
especially for cetaceans, more intense observed behavioral responses 
did not occur until sounds were higher than 120 dB re 1 [mu]Pa (rms). 
Many of the animals had no observable response at all when exposed to 
anthropogenic sound at levels of 120 dB re 1 [mu]Pa (rms) or higher.
    Potential impacts to marine mammal habitat were discussed 
previously in this document (see the ``Anticipated Effects on Habitat'' 
section). Although some disturbance is possible to food sources of 
marine mammals, the impacts are anticipated to be minor enough as to 
not affect annual rates of recruitment or survival of marine mammals in 
the area. Based on available habitat not impacted by the activity where 
feeding by marine mammals occurs versus the localized area of the 
maintenance, repair, and decommissioning activities, any missed feeding 
opportunities in the direct project area would be minor based on the 
fact that other feeding areas exist elsewhere.
    Taking into account the mitigation measures that are planned, 
effects on marine mammals are generally expected to be restricted to 
avoidance of a limited area around the Port and short-term changes in 
behavior, falling within the MMPA definition of ``Level B harassment.'' 
Mitigation measures would include minimizing harassment by powering 
down thrusters under certain conditions and three PSOs would be on-
board each DP vessel to implement these measures. Based on the analysis 
contained herein of the likely effects of the specified activity on 
marine mammals and their habitat, and taking into consideration the 
implementation of the required monitoring and mitigation measures, NMFS 
preliminarily finds that the total take of marine mammals from thruster 
use during Port maintenance, repair, and decommissioning will have a 
negligible impact on the affected marine mammal species or stocks.

Small Numbers Analysis

    As shown in Table 2, the percent of any marine mammal stock 
potentially taken by the specific activity is less than one percent, 
and Massachusetts Bay represents only a small fraction of the western 
North Atlantic basin where these animals occur. In addition, the take 
estimates include two weeks of maintenance and repair work that is 
currently not scheduled and may not occur prior to decommissioning. 
Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and taking into consideration the 
implementation of the mitigation and monitoring measures, we 
preliminarily find that small numbers of marine mammals will be taken 
relative to the populations of the affected species or stocks.

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

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

Endangered Species Act (ESA)

    On January 12, 2007, NMFS concluded consultation with MARAD and 
USCG under section 7 of the ESA on the proposed construction and 
operation of the Port and issued a Biological Opinion. The finding of 
that consultation was that the construction and operation of the Port 
may adversely affect, but is not likely to jeopardize, the continued 
existence of northern right, humpback, and fin whales, and is not 
likely to adversely affect sperm, sei, or blue whales and Kemp's 
ridley, loggerhead, green, or leatherback sea turtles.
    On March 2, 2010, MARAD and USCG sent a letter to NMFS requesting 
reinitiation of the section 7 consultation. MARAD and USCG determined 
that certain routine planned operations and maintenance activities, 
inspections, surveys, and unplanned repair work on the Port pipelines 
and flowlines, as well as any other Port component (including buoys, 
risers/umbilicals, mooring systems, and sub-sea manifolds), may 
constitute a modification not previously considered

[[Page 58492]]

in the 2007 Biological Opinion. Decommissioning is addressed as one of 
the activities in the NOAA Biological Opinion for MARAD's issuance of a 
license for Neptune to own and operate the Port (dated July 12, 2010).
    On January 27, 2016, NMFS published a rule in the Federal Register 
expanding critical habitat for the North Atlantic right whale (81 FR 
4838). This expansion incorporates the Port which was previously not 
within designated critical habitat. As such, NMFS is pursuing informal 
consultation with the Greater Atlantic Regional Office and will 
conclude all ESA consultation requirements prior to issuing the 
proposed IHA.

National Environmental Policy Act (NEPA)

    MARAD and the USCG released a Final EIS/Environmental Impact Report 
(EIR) for the construction, operation, and decommissioning of the Port 
(see ADDRESSES). A notice of availability was published by MARAD on 
November 2, 2006 (71 FR 64606). The Final EIS/EIR provides detailed 
information on the proposed project facilities, construction methods, 
and analysis of potential impacts on marine mammals.
    NMFS was a cooperating agency in the preparation of the Draft and 
Final EIS based on a Memorandum of Understanding related to the 
Licensing of Deepwater Ports entered into by the U.S. Department of 
Commerce along with 10 other government agencies. On June 3, 2008, NMFS 
adopted the USCG and MARAD Final EIS and issued a separate Record of 
Decision for issuance of previous MMPA incidental take authorizations 
pursuant to sections 101(a)(5)(A) and (D) of the MMPA for construction 
and operation of the Port, which includes thruster use. The analysis in 
the Final EIS regarding the impact of noise generated by thrusters 
supports the findings under the MMPA for issuance of this proposed 
authorization. NMFS has preliminarily determined no additional analysis 
under NEPA is needed.
    As a result of these preliminary determinations, we propose to 
issue an IHA to Neptune for taking marine mammals incidental to repair, 
maintenance, and decommissioning of the Port, Massachusetts Bay, 
provided the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated. The proposed IHA language is provided 
next. Neptune LNG LLC (Neptune), is hereby authorized under section 
101(a)(5)(D) of the Marine Mammal Protection Act (MMPA; 16 U.S.C. 
1371(a)(5)(D)), to harass marine mammals incidental to maintenance, 
repair, and decommissioning of a liquefied natural gas (LNG) deepwater 
port in Massachusetts Bay when adhering to the following terms and 
conditions:
    1. This Incidental Harassment Authorization (IHA) is valid for a 
period of one year from the date of issuance.
    2. This IHA is valid only for dynamic positioning vessel thruster 
use associated with the maintenance, repair, and decommissioning of an 
LNG deepwater port in Massachusetts Bay.
3. General Conditions
    (a) A copy of this IHA must be in the possession of the Neptune, 
its designees, and work crew personnel operating under the authority of 
this IHA.
    (b) The species authorized for taking are provided in Table 1 
(attached).
    (c) The taking by injury (Level A harassment), serious injury, or 
death of any of the species listed in condition 3(b) of the 
Authorization or any taking of any other species of marine mammal is 
prohibited and may result in the modification, suspension, or 
revocation of this IHA.
    (d) Neptune shall conduct briefings between construction 
supervisors and crews, marine mammal monitoring team, acoustical 
monitoring team, and Neptune staff or contractors prior to the start of 
maintenance, repair and decommissioning, and when new personnel join 
the work, in order to explain responsibilities, communication 
procedures, marine mammal monitoring protocol, and operational 
procedures.
    (e) The entity may not conduct decommissioning work prior to May 1, 
2017.
4. Mitigation Measures
    The holder of this Authorization is required to implement the 
following mitigation measures:
    (a) Any whale visually sighted or otherwise detected (e.g., on the 
Navigational Telex (NAVTEX), NOAA Weather Radio, and North Atlantic 
right whale Sighting Advisory System (SAS)) within 1,000 m of a vessel 
shall result in a heightened alert status which will require all 
project vessels to operate at slow speeds of four knots or less and any 
non-critical departure plans to be delayed.
    (b) If a right whale call is confirmed on the two closest passive 
acoustic monitoring (PAM) buoys or on any three PAM buoys, all vessels 
will go into heightened alert status requiring all project vessels to 
operate at slow speeds of 4 knots or less and any non-critical 
departure plans to be delayed.
    (c) Any whale sighted within or approaching 500 m of a vessel shall 
result in that vessel using idle speed and/or ceasing all movement. If 
the vessel is operating dynamic positioning (DP) vessel thrusters, the 
thrusters will be shut down or reduced to minimal safe operating power. 
The speed and activity restrictions shall continue until either the 
observed whale has been confirmed outside of and on a path away from 
500 m from the vessel or 30 minutes have passed without another 
confirmed detection.
    (d) Any non-whale marine mammal species detected within or 
approaching 100 m of a vessel shall result in that vessel using idle 
speed and/or ceasing all movement. If the vessel is operating DP 
thrusters, the thrusters will be shut down or reduced to minimal safe 
operating power. The speed and activity restrictions shall continue 
until either the observed marine mammal has been confirmed outside and 
on a path away from 100 m from the activity or 30 minutes have passed 
without another confirmed detection.
    (e) All project vessels will remain at least 500 m away from any 
North Atlantic right whale and at least 100 m away from all other 
marine mammals. If a marine mammal approaches a stationary vessel, that 
vessel will sit idle or turn off engines until the marine mammal has 
left the designated zone or 30 minutes have passed without another 
confirmed detection.
    (f) All vessels shall utilize the International Maritime 
Organization (IMO)-approved Boston Traffic Separation Scheme (TSS) on 
their approach to and departure from the Port and/or the unscheduled 
maintenance/maintenance area at the earliest practicable point of 
transit in order to avoid the risk of whale strikes.
    (g) Repair vessels, dive support vessels (DSVs), and heavy lift 
vessels (HLVs), will transit at 10 knots (18.5 km/hr) or less in the 
following seasons and areas, which either correspond to or are more 
restrictive than the times and areas in NMFS' final rule (73 FR 60173 
[October 10, 2008]) to implement speed restrictions to reduce the 
likelihood and severity of ship strikes of right whales:
     Cape Cod Bay (CCB) Seasonal Management Area (SMA) from 
January 1 through May 15, which includes all waters in CCB, extending 
to all shorelines of Massachusetts Bay, with a northern boundary of 
42[deg]12' N. latitude;
     Off Race Point SMA year round, which is bounded by 
straight lines connecting the following coordinates in the order 
stated: 42[deg]30' N. 69[deg]45' W.; thence to 42[deg]30' N. 70[deg]30' 
W.; thence to 42[deg]12' N. 70[deg]30' W.; thence to 42[deg]12' N.

[[Page 58493]]

70[deg]12' W.; thence to 42[deg]04'56.5'' N. 70[deg]12' W.; thence 
along mean high water line and inshore limits of collision regulations 
(COLREGS) limit to a latitude of 41[deg]40' N.; thence due east to 
41[deg]41' N. 69[deg]45' W.; thence back to starting point; and
     Great South Channel (GSC) SMA from April 1 through July 
31, which is bounded by straight lines connecting the following 
coordinates in the order stated:

    42[deg]30' N. 69[deg]45' W.
    41[deg]40' N. 69[deg]45' W.
    41[deg]00' N. 69[deg]05' W.
    42[deg]09' N. 67[deg]08' 24'' W.
    42[deg]30' N. 67[deg]27' W.
    42[deg]30' N. 69[deg]45' W.

    (h) All vessels transiting to and from the project area shall 
report their activities to the mandatory reporting Section of the USCG 
to remain apprised of North Atlantic right whale movements within the 
area. All vessels entering and exiting the Mandatory Ship Reporting 
Area (MSRA) shall report their activities to the USCG's northeast whale 
reporting system: WHALESNORTH. Vessel operators shall contact the USCG 
by standard procedures promulgated through the Notice to Mariner 
system. Information regarding the geographical boundaries and reporting 
details can be found at: http://www.fisheries.noaa.gov/pr/shipstrike/msr.htm.
    (i) Prior to leaving the dock to begin transit, the project vessel 
must contact one of the protected species observers (PSOs) on watch to 
receive an update of sightings within the visual observation area. If 
the PSO has observed a North Atlantic right whale within 30 minutes of 
the transit start, the vessel will hold for 30 minutes and again get a 
clearance to leave from the PSOs on board. PSOs will assess whale 
activity and visual observation ability at the time of the transit 
request to clear the barge for release.
    (j) No vessels will transit from shore to the project site during 
nighttime or when visibility is reduced below 1,000 m, unless an 
emergency situation requires the vessel to transit during those times. 
Should transit at night be required, the maximum speed will be 5 knots 
(9.3 km/hr).
    (k) All vessels will consult NAVTEX, NOAA Weather Radio, the NOAA 
Right Whale SAS or other means to obtain current large whale sighting 
information.
    (l) If member of the crew visually detects a marine mammal within 
the zone of influence (ZOI) (3.45 km), they will alert the lead PSO on 
watch who shall then relay the sighting information to the other 
vessels to document take, determine if mitigation actions are 
necessary, as required by this IHA, and ensure action(s) can be taken 
to avoid physical contact with marine mammals.
    (m) In response to any whale sightings or acoustic detections, and 
taking into account exceptional circumstances, all vessels shall 
actively communicate with the lead PSO and will take appropriate 
actions to minimize the risk of striking whales.
    (n) Neptune must immediately suspend any repair, maintenance, or 
decommissioning activities if a dead or injured marine mammal is found 
in the vicinity of the project area, and the death or injury of the 
animal could be attributable to the LNG facility activities. Neptune 
must contact NMFS and the Greater Atlantic Regional Office (GARFO) 
Marine Mammal Stranding and Disentanglement Program. Activities will 
not resume until review and approval has been given by NMFS.
    (o) Use of lights during repair or maintenance activities shall be 
limited to areas where work is actually occurring, and all other lights 
must be extinguished. Lights must be downshielded to illuminate the 
deck and shall not intentionally illuminate surrounding waters, so as 
not to attract whales or their prey to the area.
    (p) Transit route, destination, sea conditions and any marine 
mammal sightings/mitigation actions during watch shall be recorded in 
the log book.
    (q) The material barges and tugs used in Port repair, maintenance, 
and decommissioning shall transit from the operations dock to the work 
sites during daylight hours when possible provided the safety of the 
vessels is not compromised. Should transit at night be required, the 
maximum speed of the tug shall be 5 knots.
    (r) All repair vessels must maintain a speed of 10 knots or less 
during daylight hours. All vessels shall operate at 5 knots or less at 
all times within 5 km of the maintenance, repair, or decommissioning 
area.
5. Monitoring
    The holder of this Authorization is required to conduct marine 
mammal monitoring during port maintenance, repair, and decommissioning. 
Monitoring and reporting shall be conducted in accordance with the 
Monitoring Plan (see Application).
Visual Monitoring
    (a) All vessel crew members will undergo environmental training. 
Crew members who will act as designated watch personnel during 
heightened awareness conditions will receive specialized observer 
training.
    (b) All vessel operation requirements, guidelines and mitigation 
requirements will be clearly posted on the bridge of all project 
vessels.
    (c) Neptune or its contractor shall provide a half-day training 
course to designated crew members assigned to the transit barges and 
other support vessels. 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 this Authorization, 
sighting log requirements, and procedures for reporting injured or dead 
marine mammals. These designated crew members shall be required to keep 
watch on the bridge and immediately notify the navigator of any whale 
sightings. All watch crew shall sign into a bridge log book upon start 
and end of watch. Transit route, destination, sea conditions, and any 
protected species sightings/mitigation actions during watch shall be 
recorded in the log book.
    (d) Each DP vessel will employ three professional PSOs. Two PSOs 
will conduct continual visual watches on a shift basis during all 
daylight hours. Daytime PSOs will monitor the acoustic alert program 
when not on active visual watch. During the night, one PSO will monitor 
the acoustic alert program and will scan the area around the vessel 
using a thermal imaging or similar enhancement device for 15 minutes 
each hour.
    (e) All professional PSOs will be approved by NMFS prior to the 
start of the project, will have at least one full year of marine mammal 
observation experience in the U.S. Atlantic, Pacific, or Gulf of 
Mexico, and will have experience in acoustic monitoring and baleen 
whale detection.
    (f) Each non-DP vessel will designate one trained crew member to 
stand a dedicated watch during all vessel movement and during times of 
heightened awareness. All designated crew watch personnel will undergo 
a full day of project-specific mitigation and monitoring training 
alongside the professional PSOs.
    (g) PSOs will be responsible for advising vessel crew members on 
the required operating procedures and mitigation measures that are 
defined in this IHA. PSOs will be responsible for providing the 
required observation and detection data during the decommissioning 
activities.
    (h) Neptune shall maintain a passive acoustic monitoring array 
consisting of four near real-time autonomous recording units (ARUs) 
strategically

[[Page 58494]]

placed around the north and south buoys.
    (i) If a whale call detection alert is received, the PSO will 
review the data and confirm the signal is a whale call. Upon 
verification, the PSO will monitor the other buoys for call detections. 
If the PSO verifies detections from two other buoys, then it will be 
determined that a whale is within the heightened awareness area. 
Mitigation measures for acoustic detection of whales will be the same 
as those for visual detection described above.
6. Reporting
    The holder of this Authorization is required to:
    (a) Submit a draft report on all monitoring conducted under the IHA 
within ninety calendar days of the completion of marine mammal and 
acoustic monitoring or sixty days prior to the issuance of any 
subsequent IHA for this project, whichever comes first. A final report 
shall be prepared and submitted within thirty days following resolution 
of comments on the draft report from NMFS. This report must contain the 
informational elements described in the Monitoring Plan, at minimum 
(see attached), and shall also include:
    (i) Location (in longitude and latitude coordinates), time, and the 
nature of the maintenance and repair activities;
    (ii) Indication of whether a DP system was operated, and if so, the 
number of thrusters being used and the time and duration of DP vessel 
operation;
    (iii) Marine mammals observed in the within the ZOI (3.45 km in all 
directions) (number, species, age group, and initial behavior);
    (iv) The distance of observed marine mammals from the maintenance, 
repair, or decommissioning activities;
    (v) Changes, if any, in marine mammal behaviors during the 
observation;
    (vi) A description of any mitigation measures (power-down, 
shutdown, etc.) implemented;
    (vii) Weather condition (Beaufort sea state, wind speed, wind 
direction, ambient temperature, precipitation, and percent cloud cover, 
etc.);
    (viii) Condition of the observation (visibility and glare); and
    (ix) Details of passive acoustic detections and any action taken in 
response to those detections.
    (b) 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 this IHA, 
such as an injury (Level A harassment), serious injury, or mortality, 
Neptune shall immediately cease the specified activities and report the 
incident to the Office of Protected Resources (301-427-8401), NMFS, and 
the GARFO Marine Mammal Stranding Coordinator (978-281-9300). The 
report must include the following information:
    1. Time and date of the incident;
    2. Description of the incident;
    3. Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    4. Description of all marine mammal observations and active sound 
source use in the 24 hours preceding the incident;
    5. Species identification or description of the animal(s) involved;
    6. Fate of the animal(s); and
    7. 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 Neptune to 
determine what measures are necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. Neptune may not 
resume their activities until notified by NMFS.
    (ii) In the event that Neptune discovers an injured or dead marine 
mammal, and the lead observer 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), Neptune shall immediately 
report the incident to the Office of Protected Resources, NMFS, and the 
GARFO Stranding Coordinator, NMFS.
    The report must include the same information identified in 6(b)(i) 
of this IHA. Activities may continue while NMFS reviews the 
circumstances of the incident. NMFS will work with Neptune to determine 
whether additional mitigation measures or modifications to the 
activities are appropriate.
    (iii) In the event that Neptune discovers an injured or dead marine 
mammal, and the lead observer determines that the injury or death is 
not associated with or related to the activities authorized in the IHA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), Neptune shall report the incident 
to the Office of Protected Resources, NMFS, and the GARFO Stranding 
Coordinator, NMFS, within 24 hours of the discovery. Neptune shall 
provide photographs or video footage or other documentation of the 
stranded animal sighting to NMFS.
    7. This Authorization may be modified, suspended or withdrawn if 
the holder fails to abide by the conditions prescribed herein, or if 
NMFS determines the authorized taking is having more than a negligible 
impact on the species or stock of affected marine mammals.

    Dated: August 22, 2016.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2016-20407 Filed 8-24-16; 8:45 am]
 BILLING CODE 3510-22-P