[Federal Register Volume 81, Number 199 (Friday, October 14, 2016)]
[Notices]
[Pages 71078-71084]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24850]



[[Page 71078]]

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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; issuance of an incidental harassment authorization.

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SUMMARY: NMFS has issued, in response to a request from Neptune LNG LLC 
(Neptune), an authorization to take marine mammals, by harassment, 
incidental to maintenance, repair, and decommissioning activities at a 
liquefied natural gas (LNG) deepwater port (Port) off the coast of 
Massachusetts.
    An electronic copy of the application, proposed IHA Federal 
Register notice (81 FR 58478; August 25, 2016), issued IHA, and a list 
of references used in this document may be obtained by visiting the 
internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Documents cited in this notice may be 
viewed, by appointment, during regular business hours, at the 
aforementioned address.

DATES: Effective October 7, 2016 through October 6, 2017.

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.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ``an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: Any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).

Summary of Request

    On May 28, 2016, NMFS received an application from Neptune for the 
taking of marine mammals incidental to maintenance, repair, and 
decommissioning of its Port, Massachusetts Bay. NMFS determined the 
application was adequate and complete on August 11, 2016.
    Take of marine mammals may occur from the use of bow and stern 
thrusters on two types of dynamic positioning (DP) vessels while 
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. 
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. To facilitate 
maintenance, repair, and decommissioning work, DP vessels will operate 
bow and stern thrusters at Neptune's north and south buoy and hot tap. 
Take, by Level B harassment only, of individuals of fourteen species of 
marine mammals is anticipated from this specific activity (Table 1). 
Take of marine mammals from actual maintenance, repair and 
decommissioning work (e.g., pipeline removal, valve repair or cut off, 
removal of seafloor position transponders) is not anticipated nor 
authorized.
    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 
Port (73 FR 33400; June 12, 2008). 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 Letters of Authorization (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 and 
repairs, if needed, prior to decommissioning.

Description of the Specified Activity

Overview

    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 was meant to receive 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. A hot tap/transmission manifold 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. 
Neptune ceased operations of the Port prior to any commercial natural 
gas deliveries to the New England region and has decided to 
decommission the Port; therefore, equipment must be removed or safely 
abandoned in place. To conduct this work (and any maintenance or repair 
that may be required prior to decommissioning), DP vessels would 
transit to and maintain position at the north and south buoys and hot 
tap.

Specified Geographic Region

    The Port is located within Massachusetts Bay approximately 22 miles 
(mi) (35 kilometers [km]) northeast of Boston, Massachusetts. It is 
located west (i.e., inshore) of the Stellwagen Bank National Marine 
Sanctuary (NMS). The DP-vessel would be operating north and south buoy 
are located 1.23 nautical miles (nm) (2.28 km) and 1.47 nm (2.72 km), 
respectively, from the western edge of the Sanctuary in Federal waters 
approximately 260 ft (79 m) in depth.

[[Page 71079]]

The hot tap is well inshore of the buoys in water approximately 122 ft 
(37 m) in depth.

Dates and Duration

    Any unscheduled maintenance and repair that may be required would 
occur prior to decommissioning and last up to two weeks. No maintenance 
or repair work is currently planned. Decommissioning will commence no 
earlier than May 1, 2017, and will take up to 70 days.

Detailed Description of Activities

    The notice of proposed IHA (81 FR 58478; August 25, 2016) contains 
a detailed description of the proposed activities, including the type 
of DP vessels planned for use and associated thruster operation 
procedures. That information has not changed and is not repeated here.

Comments and Responses

    A notice of Proposed IHA was published in the Federal Register on 
August 25, 2016 (81 FR 58478) for public comment. During the 30-day 
public comment period, NMFS received three comment letters from the 
following: Marine Mammal Commission (MMC), U.S. Fish and Wildlife 
Service (USFWS), and one private citizen.
    All of the public comment letters received are available on the 
internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. 
Following is a summary of the public comments and NMFS' responses.
    Comment 1: The MMC believes the method NMFS used to estimate the 
numbers of takes during the proposed activities, which summed fractions 
of takes for each species across days, does not account for and negates 
the intent of NMFS's 24-hour reset policy. As a solution, the MMC 
recommended NMFS (1) apply a 24-hour reset policy for enumerating the 
number of each species that could be taken during proposed activities, 
(2) apply standard rounding rules before summing the numbers of 
estimated takes across days, and (3) for species that have the 
potential to be taken but model-estimated or calculated takes round to 
zero, use group size to inform the take estimates.
    Response: Calculating predicted take is not an exact science, and 
there are arguments for taking different mathematical approaches in 
different situations and for making qualitative adjustments in other 
situations. NMFS is currently engaged in developing a protocol to guide 
more consistent take calculation given certain circumstances. The 
method for estimating take incidental to this action considered 
duration of activities, marine mammal group size, and previous 
monitoring reports. Therefore, we consider it appropriate. We do note 
there was a mathematical error when calculating gray seal take numbers 
and have decreased the authorized take number accordingly.
    Comment 2: The USFWS service submitted comments indicating heavy 
workload precluded the agency from reviewing the subject project and 
providing comments; however, they recommended NMFS determine if the 
action may affect any ESA-listed species or critical habitat under 
USFWS jurisdiction.
    Response: We searched the USFWS' Information for Planning and 
Conservation Web site (https://ecos.fws.gov/ipac/) and determined that 
no ESA-listed species under USFWS jurisdiction would be affected by the 
proposed action. Therefore, no further action was necessary.
    Comment 3: One private citizen submitted a comment that no work 
should be permitted prior to May 1 and not after October 15.
    Response: In accordance with the mitigation measures as a means of 
effecting the least practicable adverse impact on marine mammals, all 
planned work must occur between May 1 and November 1. This work window 
was developed through intense investigation into marine mammal 
abundance data and coordination with marine mammal experts in the 
region such as the Stellwagen Bank NMS and NMFS Greater Atlantic 
Regional Fisheries Office (GARFO). Unplanned maintenance and repair may 
occur any time of the year; however, this is to allow immediate 
response to emergency situations only.

Description of Marine Mammals in the Area of the Specified Activity

    A description of marine mammal species authorized to be taken 
incidental to DP vessel thruster use, including brief introductions to 
the species, relevant stock status, distribution and local occurrence, 
and population trends and threats, was provided in the Federal Register 
notice for the proposed IHA (81 FR 58478; August 25, 2016). We are not 
aware of any changes to this information; therefore, those descriptions 
are not repeated here. In addition to the Federal Register notice, 
general species accounts can also be found on NMFS' Office of Protected 
Resources Web site (www.nmfs.noaa.gov/pr/species/mammals/). For 
convenience, Table 1 provides an overview of marine mammals NMFS 
authorized to be taken in the IHA, by Level B harassment only, during 
the specific activities.

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

[[Page 71080]]

 
Grey seal...........................  Halichoerus grypus.....  Western North Atlantic.  NL, ND.................             unk  occasional.
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Potential Effects of the Specified Activity on Marine Mammals

    The Federal Register notice of proposed authorization (81 FR 58478; 
August 25, 2016) provides a background on sound characteristics 
generated from the specified activity, a description of marine mammal 
hearing, and the potential effects of the specified activity on marine 
mammals. In summary, no Level A (injury) is anticipated due to Port 
maintenance, repair and decommissioning nor are Level A takes 
authorized in the IHA. Marine mammals may experience Level B harassment 
in the form of masking or behavioral modifications (e.g., avoidance, 
change in dive profiles); however, NMFS anticipates these impacts would 
be limited in duration and not result in impact to annual rates of 
recruitment or survival.

Anticipated Effects on Marine Mammal Habitat

    NMFS concluded any impacts from Neptune's maintenance, repair, and 
decommissioning activities to marine mammal habitat are expected to be 
minor and not cause significant or long-term consequences for 
individual marine mammals or populations. A description of effects on 
marine mammal habitat from the specific activity is described in detail 
in the Federal Register notice for the proposed IHA (81 FR 58478; 
August 25, 2016). In summary, the benthic community and turbidity 
levels at the buoys and hot tap during maintenance, repair, and 
decommissioning work may be impacted. However, the impacts are expected 
to be short-term, minor, and localized. No public comments were 
received regarding impacts to marine mammal habitat from Port 
maintenance, repair, and decommissioning. More specifically, because 
the Port is now located in North Atlantic right whale critical habitat 
(81 FR 4838; January 27, 2016), NMFS Office of Protected Resources 
(OPR) consulted with NMFS Greater Atlantic Regional Office (GARFO) on 
the effects of the specified activity on critical habitat under Section 
7 of the Endangered Species Act (ESA). NMFS OPR made a ``no effect'' 
determination on North Atlantic right whale critical habitat. GARFO did 
not object to this determination and issued an incidental take 
statement (ITS) for the taking of marine mammals incidental to 
Neptune's Port maintenance, repair, and decommissioning (see Endangered 
Species Act section below). Finally, the Port is located within a 
biologically important area (BIA) for North Atlantic right whale 
foraging habitat from February through April, annually. Foraging BIAs 
are defined as areas and months within which a particular species or 
population selectively feeds. These may either be found consistently in 
space and time, or may be associated with ephemeral features that are 
less predictable but can be delineated and are generally located within 
a larger identifiable area. However, because decommissioning would be 
restricted from May-November, the timing of the activity would not 
overlap in time with this BIA designation. While maintenance and repair 
activities may overlap temporally, the impact on foraging habitat is 
expected to be minor due to the short duration of the activity (no more 
than 14 days), nature of the continuous sound produced at relatively 
low received levels, and implementation of mitigation measures (e.g., 
reduce thruster power if whales are observed within 500 m of a DP 
vessel).

Mitigation

    In order to issue an incidental take authorization under section 
101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods 
of taking pursuant to such activity, and other means of effecting the 
least practicable adverse impact on such species or stock and its 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance, and on the availability of such species 
or stock for taking for certain subsistence uses (where relevant).

Mitigation Measures

    The IHA contains a number of mitigation measures designed to 
minimize the risk of marine mammal vessel interaction and exposure to 
elevated noise levels. These measures resulted from extensive 
coordination between Neptune, NMFS OPR, and the Stellwagen Bank NMS 
during issuance of previous incidental take authorizations. The 
mitigation measures include, but are not limited to, reducing vessel 
speed to four knots and delaying departures from the buoys or hot tap 
when a whale is visibly observed within 1,000 m or acoustically 
detected on the two closest passive acoustic monitoring buoys; ceasing 
vessel movement or idling and reducing thruster power to minimal safe 
operating power when a whale is observed within 500 m of the vessel; 
ceasing vessel movement or idling and reducing thruster power to 
minimal safe operating power when a non-whale species is observed 
within 100 m of the vessel; not transiting from shore to the project 
site during nighttime or when visibility is reduced below 1,000 m; and 
abiding by all reporting and vessel operation requirements contained 
with the North Atlantic right whale ship strike rule (73 FR 60173; 
October 10, 2008). A complete list of the mitigation measures can be 
found within the IHA posted on NMFS Web site http://www.nmfs.noaa.gov/pr/permits/incidental.htm.

Mitigation Conclusions

    NMFS has carefully evaluated the applicant's 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.
    Based on our evaluation of the applicant's proposed measures, as 
well

[[Page 71081]]

as other measures considered by NMFS, NMFS has determined the 
mitigation measures included in the IHA provide the means of effecting 
the least practicable impact on marine mammals species or stocks and 
their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an 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 action area.
    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 continuous noise from use of a DP 
vessel thruster that 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.

Monitoring Measures

    The proposed Federal Register notice (81 FR 58478; August 25, 2016) 
includes a number of visual and acoustic monitoring measured designed 
to effectively detect marine mammals within the Level B harassment zone 
and determine if the required mitigation measures are triggered. The 
final measures included in the IHA have not been altered from the 
proposed IHA and are not repeated here. In summary, three protected 
species observers (PSO) will be stationed aboard all DP vessels and an 
acoustic array consisting of four autonomous recording units (ARUs) 
will be deployed around the north and south buoys to assist in the 
detection of marine mammals outside of visual sighting range; the ARUs 
are capable of detecting North Atlantic right whale calls to 
approximately 6-8 kms. These monitoring measures will ensure the 
specific activity has the least practicable adverse impact on marine 
mammals through visual and acoustic monitoring.

Reporting Measures

    As part of the IHA, Neptune is required to submit an annual report 
to NMFS containing information on marine mammal takes and behavior and 
any mitigation actions taken. Neptune must 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. 
The information required in the report is provided in the Federal 
Register notice (81 FR 58478; August 25, 2016) for the proposed IHA and 
is not repeated here.

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).
    When Neptune's mitigation is considered in combination with the 
fact that marine mammals would not be expected to remain around the 
stationary DP vessel for the duration needed to be exposed to sound 
levels that reach or exceed Level A harassment thresholds, NMFS 
believes that injury is unlikely.

Amount of Take Authorized

    As described in the proposed IHA Federal Register notice (81 FR 
58478; August 25, 2016), Neptune proposed, and NMFS issued, take, by 
Level B harassment, of marine mammals based on marine mammals stock 
density, the extent of the largest ZOI (37.4 km\2\), and the maximum 
number of days Neptune would operate DP vessel thrusters to facilitate 
maintenance and repair (14 days) and decommissioning (70 days). For 
continuous sounds, such as those produced by DP vessel thrusters, NMFS 
used a received level of 120 dB re 1 [mu]Pa (rms) to indicate the onset 
of potential for Level B harassment. Table 2 includes the authorized 
amount of take of marine mammals, by species, incidental to the 
specified activity.

          Table 2--Authorized Take of Marine Mammals, by Species, Incidental to the Specified Activity
                                                 [Unk = unknown]
----------------------------------------------------------------------------------------------------------------
                                                     Estimated
                                                    population                       Estimated
                     Species                        (Waring et        Density          takes       % population
                                                    al., 2015)
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale (Eubalaena glacialis)             476        0.000017               2            0.21
Fin whale (Balaenoptera physalus)...............           1,618          0.0034              12            0.12
Humpback whale (Megaptera novaeangliae).........             823          0.0032              10            0.22

[[Page 71082]]

 
Minke whale (Balaenoptera acutorostrata)........          20,741          0.0033              11           0.009
Sei whale (Balaenoptera borealis)...............             357        0.000036               2            0.28
Atlantic white-sided dolphin (Lagenorhynchus              48,819           0.039             124           0.043
 acutus)........................................
Long-finned pilot whale (Globicephala melas)....          26,535          0.0019               8           0.035
Harbor porpoise (Phocoena phocoena).............          79,883           0.104             328           0.068
Bottlenose dolphin (Tursiops truncatus).........          77,532           0.003              10           0.002
Short beaked common dolphin (Delphinus delphis).         173,486          0.0071           * 270           0.002
Risso's dolphin (Grampus griseus)...............          18,250        0.000044               2           0.005
Killer whale (Orcinus orca).....................             unk       0.0000089               2             unk
Harbor seal (Phoca vitulina)....................          75,834           0.097             305           0.067
Gray sea (Halichoerus grypus)...................             unk           0.027              86             unk
----------------------------------------------------------------------------------------------------------------
* Although the method used to calculate take 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).

Technical Guidance for Assessing the Effects of Anthropogenic Sound on 
Marine Mammal Hearing

    In August 2016, NMFS released its Technical Guidance for Assessing 
the Effects of Anthropogenic Sound on Marine Mammal Hearing, which 
established new thresholds for predicting auditory injury, which 
equates to Level A harassment under the MMPA. In the August 4, 2016, 
Federal Register notice announcing the Guidance (81 FR 51694), NMFS 
explained the approach it would take during a transition period, 
wherein we balance the need to consider this new best available science 
with the fact that some applicants have already committed time and 
resources to the development of acoustic analyses based on our previous 
thresholds and have constraints that preclude the recalculation of take 
estimates, as well as consideration of where the agency is in the 
decision-making pipeline. In the Federal Register notice, we also 
included a non-exhaustive list of factors that would inform the most 
appropriate approach for considering the Guidance, including: How far 
in the MMPA process the applicant has progressed; the scope of the 
effects; when the authorization is needed; the cost and complexity of 
the analysis; and the degree to which the Guidance is expected to 
affect our analysis.
    In the Guidance, acoustic thresholds are presented as cumulative 
sound exposure levels (SELcum) for non-impulsive sound such 
as that from DP vessel thrusters. This metric considers both the 
received level (dB) and duration of exposure. To account for the fact 
that marine mammals potentially taken by the specified activity fall 
into one of four hearing group categories (low-frequency, mid-
frequency, and high-frequency cetaceans and phocid pinnipeds), the 
Guidance incorporates auditory weighting functions. NMFS considered the 
DP vessel sound source level (177dB rms), frequency, and potential 
exposure duration to assess potential for Level A take. When Neptune's 
mitigation is considered in combination with the fact that many marine 
mammals would be expected to avoid making close approaches to the DP 
vessel (a stationary acoustic source), we believe that injury is 
unlikely. In summary, we have considered the new Guidance and believe 
that the likelihood of injury is adequately addressed in the analysis 
and appropriate protective measures are in place in the IHA.

Analysis and Determinations

Negligible Impact

    Negligible impact is ``an impact resulting from the specified 
activity that cannot be reasonably expected to, and is not reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival'' (50 CFR 216.103). The lack of 
likely adverse effects on annual rates of recruitment or survival 
(i.e., population level effects) forms the basis of a negligible impact 
finding. Thus, an estimate of the number of takes, alone, is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through behavioral harassment, NMFS must consider other 
factors, such as the likely nature of any responses (their intensity, 
duration, etc.), the context of any responses (critical reproductive 
time or location, migration, etc.), as well as the number and nature of 
estimated Level A harassment takes, the number of estimated 
mortalities, effects on habitat, and the status of the species.
    To avoid repetition, except where otherwise identified, the 
discussion of our analyses applies to all the species listed in Table 2 
given that the anticipated effects of this project on marine mammals 
are expected to be relatively similar in nature. Where there is 
information about specific impacts to, or about the size, status, or 
structure of, any species or stock that would lead to a different 
analysis for this activity, species-specific factors are identified and 
analyzed.
    In making a negligible impact determination, NMFS considers:
     The number of anticipated injuries, serious injuries, or 
mortalities;
     The number, nature, and intensity, and duration of Level B 
harassment; and
     The context in which the takes occur (e.g., impacts to 
areas of significance, impacts to local populations, and cumulative 
impacts when taking into account successive/contemporaneous actions 
when added to baseline data);
     The status of stock or species of marine mammals (i.e., 
depleted, not depleted, decreasing, increasing, stable, impact relative 
to the size of the population);
     Impacts on habitat affecting rates of recruitment/
survival; and
     The effectiveness of monitoring and mitigation measures to 
reduce the number or severity of incidental take.
    The following provides a summary of NMFS' assessment of these 
items. NMFS does not anticipate, nor does the IHA authorize, injury, 
serious injury or mortality of marine mammals incidental to the 
specified activity. For reasons detailed in the Federal Register notice

[[Page 71083]]

for the proposed IHA (81 FR 58478; August 25, 2016), NMFS has 
determined the effects of the specified activity on marine mammals will 
be limited to short-term behavioral modifications such as avoidance of 
the area where DP vessels are operating thrusters and changes in swim 
speeds and dive profiles. In addition, some masking could occur. The 
mitigation measures, such as restricting decommissioning work until 
peak North Atlantic right whale season is over and reducing thruster 
power when marine mammals are within 500 m of the vessel, are designed 
to further minimize the intensity of the anticipated effects. With 
respect to stock status, three of the fourteen species authorized to be 
taken are listed under the ESA. On September 8, 2016, humpback whales 
present in the action area (West Indies distinct population segment) 
were delisted under the ESA (81 FR 62260); no MMPA designation 
(depleted or not depleted) has been assigned to this stock. With 
respect to habitat, the Port is within North Atlantic right whale 
critical habitat while Massachusetts Bay, including the Port, is a 
designated biological important area (BIA) for North Atlantic right 
whale foraging from February through April. However, as described in 
the proposed IHA Federal Register notice (81 FR 58478; August 25, 2016) 
and the Impacts to Marine Mammal Habitat section in this document, 
adverse impacts to habitat, including prey availability, is anticipated 
to be short-term and minor, if any, due to temporal restrictions on 
decommissioning activities (limited to May-November), nature of sound 
produced at relatively low received levels, and implementation of 
mitigation measures (e.g., reduce thruster power if whales are observed 
within 500 m of a DP vessel). Finally, the IHA contains a number of 
mitigation measures designed to reduce impacts to marine mammals. 
Monitoring for marine mammals to trigger these mitigation measures is 
greatly improved from the requirements to employ two daylight and one 
nighttime protected marine observers and carry out passive acoustic 
monitoring.
    In summary, the taking of marine mammals is anticipated to produce 
short-term mild behavioral reactions in marine mammals exposed to 
elevated noise levels and is not reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival. Therefore, NMFS has 
determined the specified activity would have a negligible impact on the 
affected marine mammal species and stocks.

Small Numbers Analysis

    The authorized takes represent less than one percent of all 
populations or stocks for which NMFS was able to quantify the estimated 
percentage, and we have determined that a small fraction of affected 
killer whales and grey seal stocks will be taken based on our 
qualitative assessments (see Table 2 in this document). As such, we 
find the numbers of marine mammals estimated to be taken are small 
proportions of the total populations of the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

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

    On January 12, 2007, NMFS concluded consultation with Maritime 
Administration (MARAD) and U.S. Coast Guard (USCG) under section 7 of 
the ESA on the proposed construction and operation of the Neptune LNG 
facility and issued a Biological Opinion. The finding of that 
consultation was the construction and operation of the Neptune LNG 
terminal may adversely affect, but is not likely to jeopardize the 
continued existence of, North Atlantic 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. The 
Biological Opinion concluded decommissioning activities would not 
likely adversely affect marine mammals; however, the analysis was 
limited to actual work (e.g., removing the pipeline). The use of DP 
vessel thrusters was not included in that analysis.
    On March 2, 2010, MARAD and USCG sent a letter to NMFS requesting 
reinitiation of section 7 consultation because 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 in the 2007 
Biological Opinion. On July 12, 2010, NMFS' Northeast Regional Office 
(now GARFO) issued a Biological Opinion, which concludes the operation, 
maintenance, and repair of the Port is likely to adversely affect, but 
is not likely to jeopardize the continued existence of, North Atlantic 
right, humpback, fin, and sei whales. NMFS reached this conclusion 
after reviewing the best available information on the status of 
endangered and threatened species under NMFS jurisdiction, the 
environmental baseline for the action area, the effects of the action, 
and the cumulative effects in the action area. The Biological Opinion 
also considered the effects of incidental take authorizations issued by 
NMFS to Neptune under the MMPA for the take of marine mammals 
incidental to Port operation, maintenance, repairs. Again, the 
Biological Opinion concluded decommissioning activities would not 
likely adversely affect marine mammals; however, the analysis was 
limited to actual work (e.g., removing the pipeline). That is, the use 
of DP vessel thrusters was not included in the decommissioning 
analysis, only for operation, maintenance, and repair. As such, NMFS 
requested consultation under Section 7 of the ESA with GARFO on the 
issuance of an IHA to Neptune for take of marine mammals incidental to 
decommissioning. GARFO concluded there would not be effects beyond 
those previously considered because the take of marine mammal 
incidental to thruster use was fully considered in the 2010 Biological 
Opinion. As a result, GARFO concluded that re-initiation of section 7 
consultation was not necessary and subsequently issued an Incidental 
Take Statement.

National Environmental Policy Act (NEPA)

    MARAD and the USCG released a Final EIS/Environmental Impact Report 
(EIR) for the Port, publishing a notice of availability of the Final 
EIS/EIR on November 2, 2006 (71 FR 64606). The Final EIS/EIR provides 
detailed information on the proposed project facilities, construction, 
operation, and decommissioning activities, 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 FEIS and issued a separate Record of 
Decision for previous issuance of authorizations pursuant to sections 
101(a)(5)(A) and (D) of the

[[Page 71084]]

MMPA for the construction and operation of the Neptune LNG Port 
facility. For the subject IHA, NMFS reviewed the FEIS to ensure that 
the analysis contained in that document accurately describes and 
analyzes the impacts to the human environment of NMFS' action of 
issuing an MMPA authorization for the maintenance, repair, and 
decommissioning of the Neptune Port. NMFS has determined that the FEIS 
sufficiently covers the activities considered in the subject IHA. NMFS 
issued an amended Record of Decision for issuance of authorizations 
pursuant to sections 101(a)(5)(D) of the MMPA specific to maintenance, 
repair, and decommissioning.

Authorization

    NMFS has issued an IHA to Neptune for the potential harassment of 
small numbers of 14 marine mammal species incidental to maintenance, 
repair, and decommissioning of their Port in Massachusetts Bay], which 
includes required mitigation, monitoring and reporting measures.

    Dated: October 7, 2016.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2016-24850 Filed 10-13-16; 8:45 am]
 BILLING CODE 3510-22-P