81 FR 71078 - 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
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration Federal Register Volume 81, Issue 199 (October 14, 2016)
National Oceanic and Atmospheric Administration
Federal Register Volume 81, Issue 199 (October 14, 2016)
| Page Range | 71078-71084 | |
| FR Document | 2016-24850 |
[Federal Register Volume 81, Number 199 (Friday, October 14, 2016)] [Notices] [Pages 71078-71084] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-24850] [[Page 71078]] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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] -------------------------------------------------------------------------------------------------------------------------------------------------------- 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. -------------------------------------------------------------------------------------------------------------------------------------------------------- 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 (SEL cum ) 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
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DEPARTMENT OF COMMERCE on the availability of the species or mammals to Neptune. NMFS issued a
stock(s) for subsistence uses (where one-year IHA in June 2008 for the
National Oceanic and Atmospheric relevant), and if the permissible construction of the Port (73 FR 33400;
Administration methods of taking and requirements June 12, 2008). NMFS issued a second
RIN 0648–XE727 pertaining to the mitigation, monitoring one-year IHA to Neptune for the
and reporting of such takings are set completion of construction and
Takes of Marine Mammals Incidental to forth. NMFS has defined ‘‘negligible beginning of Port operations on June 26,
Specified Activities; Taking Marine impact’’ in 50 CFR 216.103 as ‘‘an 2009 (74 FR 31926; July 6, 2009). NMFS
Mammals Incidental to Maintenance, impact resulting from the specified issued a third 1-year IHA (75 FR 41440;
Repair, and Decommissioning of a activity that cannot be reasonably July 16, 2010) for ongoing operations
Liquefied Natural Gas Facility off expected to, and is not reasonably likely followed by a five-year rulemaking and
Massachusetts to, adversely affect the species or stock Letters of Authorization (76 FR 34157;
through effects on annual rates of June 13, 2011) which expired on July
AGENCY: National Marine Fisheries recruitment or survival.’’ 10, 2016. Although Neptune intended to
Service (NMFS), National Oceanic and Except with respect to certain operate the Port for over 25 years,
Atmospheric Administration (NOAA), activities not pertinent here, the MMPA changes in the natural gas market have
Commerce. defines ‘‘harassment’’ as: Any act of resulted in the company halting
ACTION: Notice; issuance of an incidental pursuit, torment, or annoyance which (i) production operations. During the
harassment authorization. has the potential to injure a marine period of this proposed IHA, Neptune
mammal or marine mammal stock in the intends to decommission the Port in its
SUMMARY: NMFS has issued, in response wild (Level A harassment); or (ii) has entirety and conduct any unscheduled
to a request from Neptune LNG LLC the potential to disturb a marine maintenance and repairs, if needed,
(Neptune), an authorization to take mammal or marine mammal stock in the prior to decommissioning.
marine mammals, by harassment, wild by causing disruption of behavioral
incidental to maintenance, repair, and patterns, including, but not limited to, Description of the Specified Activity
decommissioning activities at a migration, breathing, nursing, breeding, Overview
liquefied natural gas (LNG) deepwater feeding, or sheltering (Level B
port (Port) off the coast of harassment). The Port consists of two mooring and
Massachusetts. unloading buoys separated by
Summary of Request approximately 2.1 mi (3.4 km) (also
An electronic copy of the application,
proposed IHA Federal Register notice On May 28, 2016, NMFS received an known as the north and south buoy) and
(81 FR 58478; August 25, 2016), issued application from Neptune for the taking a pipeline that was meant to receive
IHA, and a list of references used in this of marine mammals incidental to natural gas from ‘‘shuttle and
document may be obtained by visiting maintenance, repair, and regasification vessels’’ (SRVs) through a
the internet at: http:// decommissioning of its Port, flexible riser that connects to a 24-inch
www.nmfs.noaa.gov/pr/permits/ Massachusetts Bay. NMFS determined (in) subsea flowline and ultimately into
incidental.htm#applications. the application was adequate and a 24-in gas transmission line. A hot tap/
Documents cited in this notice may be complete on August 11, 2016. transmission manifold valve (herein
viewed, by appointment, during regular Take of marine mammals may occur after ‘‘hot tap’’) unit used to control gas
business hours, at the aforementioned from the use of bow and stern thrusters flow from the Algonquin pipeline to
address. on two types of dynamic positioning Neptune’s gas transmission line is
(DP) vessels while docking, undocking, located inshore of the buoys. Neptune
DATES: Effective October 7, 2016 and occasional weathervaning (turning ceased operations of the Port prior to
through October 6, 2017. of a vessel at anchor from one direction any commercial natural gas deliveries to
FOR FURTHER INFORMATION CONTACT: to another under the influence of wind the New England region and has
Jaclyn Daly, Office of Protected or currents) during Port maintenance, decided to decommission the Port;
Resources, NMFS, (301) 427–8401. repair, and decommissioning. therefore, equipment must be removed
SUPPLEMENTARY INFORMATION: Decommissioning will occur for up to or safely abandoned in place. To
70 days between May 1 and November conduct this work (and any
Background 30, 2017. Unscheduled maintenance maintenance or repair that may be
Sections 101(a)(5)(A) and (D) of the and repair work may occur prior to required prior to decommissioning), DP
MMPA (16 U.S.C. 1361 et seq.) direct decommissioning, if needed, and last up vessels would transit to and maintain
the Secretary of Commerce to allow, to 14 days. To facilitate maintenance, position at the north and south buoys
upon request, the incidental, but not repair, and decommissioning work, DP and hot tap.
intentional, taking of small numbers of vessels will operate bow and stern
marine mammals by U.S. citizens who thrusters at Neptune’s north and south Specified Geographic Region
engage in a specified activity (other than buoy and hot tap. Take, by Level B The Port is located within
commercial fishing) within a specified harassment only, of individuals of Massachusetts Bay approximately 22
geographical region if certain findings fourteen species of marine mammals is miles (mi) (35 kilometers [km])
are made and either regulations are anticipated from this specific activity northeast of Boston, Massachusetts. It is
issued or, if the taking is limited to (Table 1). Take of marine mammals from located west (i.e., inshore) of the
harassment, a notice of a proposed actual maintenance, repair and Stellwagen Bank National Marine
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authorization is provided to the public decommissioning work (e.g., pipeline Sanctuary (NMS). The DP-vessel would
for review. removal, valve repair or cut off, removal be operating north and south buoy are
An authorization for incidental of seafloor position transponders) is not located 1.23 nautical miles (nm) (2.28
takings shall be granted if NMFS finds anticipated nor authorized. km) and 1.47 nm (2.72 km),
that the taking will have a negligible NMFS has issued several incidental respectively, from the western edge of
impact on the species or stock(s), will harassment authorizations for the take, the Sanctuary in Federal waters
not have an unmitigable adverse impact by Level B harassment only, of marine approximately 260 ft (79 m) in depth.
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The hot tap is well inshore of the buoys solution, the MMC recommended NMFS Comment 3: One private citizen
in water approximately 122 ft (37 m) in (1) apply a 24-hour reset policy for submitted a comment that no work
depth. enumerating the number of each species should be permitted prior to May 1 and
that could be taken during proposed not after October 15.
Dates and Duration
activities, (2) apply standard rounding Response: In accordance with the
Any unscheduled maintenance and rules before summing the numbers of mitigation measures as a means of
repair that may be required would occur estimated takes across days, and (3) for effecting the least practicable adverse
prior to decommissioning and last up to species that have the potential to be impact on marine mammals, all planned
two weeks. No maintenance or repair taken but model-estimated or calculated work must occur between May 1 and
work is currently planned. takes round to zero, use group size to November 1. This work window was
Decommissioning will commence no inform the take estimates. developed through intense investigation
earlier than May 1, 2017, and will take Response: Calculating predicted take
into marine mammal abundance data
up to 70 days. is not an exact science, and there are
and coordination with marine mammal
arguments for taking different
Detailed Description of Activities experts in the region such as the
mathematical approaches in different
The notice of proposed IHA (81 FR Stellwagen Bank NMS and NMFS
situations and for making qualitative
58478; August 25, 2016) contains a Greater Atlantic Regional Fisheries
adjustments in other situations. NMFS
detailed description of the proposed is currently engaged in developing a Office (GARFO). Unplanned
activities, including the type of DP protocol to guide more consistent take maintenance and repair may occur any
vessels planned for use and associated calculation given certain circumstances. time of the year; however, this is to
thruster operation procedures. That The method for estimating take allow immediate response to emergency
information has not changed and is not incidental to this action considered situations only.
repeated here. duration of activities, marine mammal Description of Marine Mammals in the
group size, and previous monitoring Area of the Specified Activity
Comments and Responses
reports. Therefore, we consider it
A notice of Proposed IHA was appropriate. We do note there was a A description of marine mammal
published in the Federal Register on mathematical error when calculating species authorized to be taken
August 25, 2016 (81 FR 58478) for gray seal take numbers and have incidental to DP vessel thruster use,
public comment. During the 30-day decreased the authorized take number including brief introductions to the
public comment period, NMFS received accordingly. species, relevant stock status,
three comment letters from the Comment 2: The USFWS service distribution and local occurrence, and
following: Marine Mammal Commission submitted comments indicating heavy population trends and threats, was
(MMC), U.S. Fish and Wildlife Service workload precluded the agency from provided in the Federal Register notice
(USFWS), and one private citizen. reviewing the subject project and for the proposed IHA (81 FR 58478;
All of the public comment letters providing comments; however, they August 25, 2016). We are not aware of
received are available on the internet at: recommended NMFS determine if the any changes to this information;
http://www.nmfs.noaa.gov/pr/permits/ action may affect any ESA-listed species therefore, those descriptions are not
incidental.htm. Following is a summary or critical habitat under USFWS repeated here. In addition to the Federal
of the public comments and NMFS’ jurisdiction. Register notice, general species
responses. Response: We searched the USFWS’ accounts can also be found on NMFS’
Comment 1: The MMC believes the Information for Planning and Office of Protected Resources Web site
method NMFS used to estimate the Conservation Web site (https:// (www.nmfs.noaa.gov/pr/species/
numbers of takes during the proposed ecos.fws.gov/ipac/) and determined that mammals/). For convenience, Table 1
activities, which summed fractions of no ESA-listed species under USFWS provides an overview of marine
takes for each species across days, does jurisdiction would be affected by the mammals NMFS authorized to be taken
not account for and negates the intent of proposed action. Therefore, no further in the IHA, by Level B harassment only,
NMFS’s 24-hour reset policy. As a action was necessary. 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]
Estimated
population
Common name Scientific name Stock Status Occurrence
(Waring et 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 acutorostrata ... Canadian East Coast ............ NL, ND ......... 20,741 occasional.
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.
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Harbor porpoise ...................... Phocoena phocoena ............. Gulf of Maine/Bay of Fundy .. NL, ND ......... 79,883 not common.
Bottlenose dolphin .................. Tursiops truncatus ................. Western North Offshore At- NL, ND ......... 77,532 not common.
lantic.
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.
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TABLE 1—SPECIES AUTHORIZED TO BE TAKEN IN THE IHA—Continued
[E = endangered, D = depleted, NL = not listed, ND = not depleted, unk = unknown]
Estimated
population
Common name Scientific name Stock Status Occurrence
(Waring et al.,
2015)
Grey seal ................................ Halichoerus grypus ................ Western North Atlantic .......... NL, ND ......... unk occasional.
Potential Effects of the Specified determination on North Atlantic right elevated noise levels. These measures
Activity on Marine Mammals whale critical habitat. GARFO did not resulted from extensive coordination
object to this determination and issued between Neptune, NMFS OPR, and the
The Federal Register notice of an incidental take statement (ITS) for Stellwagen Bank NMS during issuance
proposed authorization (81 FR 58478; the taking of marine mammals of previous incidental take
August 25, 2016) provides a background incidental to Neptune’s Port authorizations. The mitigation measures
on sound characteristics generated from maintenance, repair, and include, but are not limited to, reducing
the specified activity, a description of decommissioning (see Endangered vessel speed to four knots and delaying
marine mammal hearing, and the Species Act section below). Finally, the departures from the buoys or hot tap
potential effects of the specified activity Port is located within a biologically when a whale is visibly observed within
on marine mammals. In summary, no important area (BIA) for North Atlantic 1,000 m or acoustically detected on the
Level A (injury) is anticipated due to right whale foraging habitat from two closest passive acoustic monitoring
Port maintenance, repair and February through April, annually. buoys; ceasing vessel movement or
decommissioning nor are Level A takes Foraging BIAs are defined as areas and idling and reducing thruster power to
authorized in the IHA. Marine mammals months within which a particular minimal safe operating power when a
may experience Level B harassment in species or population selectively feeds. whale is observed within 500 m of the
the form of masking or behavioral These may either be found consistently vessel; ceasing vessel movement or
modifications (e.g., avoidance, change in space and time, or may be associated idling and reducing thruster power to
in dive profiles); however, NMFS with ephemeral features that are less minimal safe operating power when a
anticipates these impacts would be predictable but can be delineated and non-whale species is observed within
limited in duration and not result in are generally located within a larger 100 m of the vessel; not transiting from
impact to annual rates of recruitment or identifiable area. However, because shore to the project site during
survival. decommissioning would be restricted nighttime or when visibility is reduced
Anticipated Effects on Marine Mammal from May–November, the timing of the below 1,000 m; and abiding by all
Habitat activity would not overlap in time with reporting and vessel operation
this BIA designation. While requirements contained with the North
NMFS concluded any impacts from maintenance and repair activities may Atlantic right whale ship strike rule (73
Neptune’s maintenance, repair, and overlap temporally, the impact on FR 60173; October 10, 2008). A
decommissioning activities to marine foraging habitat is expected to be minor complete list of the mitigation measures
mammal habitat are expected to be due to the short duration of the activity can be found within the IHA posted on
minor and not cause significant or long- (no more than 14 days), nature of the NMFS Web site http://
term consequences for individual continuous sound produced at relatively www.nmfs.noaa.gov/pr/permits/
marine mammals or populations. A low received levels, and incidental.htm.
description of effects on marine implementation of mitigation measures
mammal habitat from the specific Mitigation Conclusions
(e.g., reduce thruster power if whales
activity is described in detail in the are observed within 500 m of a DP NMFS has carefully evaluated the
Federal Register notice for the proposed vessel). applicant’s mitigation measures and
IHA (81 FR 58478; August 25, 2016). In considered a range of other measures in
summary, the benthic community and Mitigation the context of ensuring that NMFS
turbidity levels at the buoys and hot tap In order to issue an incidental take prescribes the means of effecting the
during maintenance, repair, and authorization under section 101(a)(5)(D) least practicable impact on the affected
decommissioning work may be of the MMPA, NMFS must set forth the marine mammal species and stocks and
impacted. However, the impacts are permissible methods of taking pursuant their habitat. Our evaluation of potential
expected to be short-term, minor, and to such activity, and other means of measures included consideration of the
localized. No public comments were effecting the least practicable adverse following factors in relation to one
received regarding impacts to marine impact on such species or stock and its another:
mammal habitat from Port maintenance, habitat, paying particular attention to • The manner in which, and the
repair, and decommissioning. More rookeries, mating grounds, and areas of degree to which, the successful
specifically, because the Port is now similar significance, and on the implementation of the measure is
located in North Atlantic right whale availability of such species or stock for expected to minimize adverse impacts
critical habitat (81 FR 4838; January 27, taking for certain subsistence uses to marine mammals;
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2016), NMFS Office of Protected (where relevant). • The proven or likely efficacy of the
Resources (OPR) consulted with NMFS specific measure to minimize adverse
Greater Atlantic Regional Office Mitigation Measures impacts as planned; and
(GARFO) on the effects of the specified The IHA contains a number of • The practicability of the measure
activity on critical habitat under Section mitigation measures designed to for applicant implementation.
7 of the Endangered Species Act (ESA). minimize the risk of marine mammal Based on our evaluation of the
NMFS OPR made a ‘‘no effect’’ vessel interaction and exposure to applicant’s proposed measures, as well
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as other measures considered by NMFS, (need to be able to accurately predict for this project, whichever comes first.
NMFS has determined the mitigation received level, distance from source, A final report shall be prepared and
measures included in the IHA provide and other pertinent information); submitted within thirty days following
the means of effecting the least • Physiological measurements in the resolution of comments on the draft
practicable impact on marine mammals presence of stimuli compared to report from NMFS. The information
species or stocks and their habitat, observations in the absence of stimuli required in the report is provided in the
paying particular attention to rookeries, (need to be able to accurately predict Federal Register notice (81 FR 58478;
mating grounds, and areas of similar received level, distance from source, August 25, 2016) for the proposed IHA
significance. and other pertinent information); and is not repeated here.
• Distribution and/or abundance
Monitoring and Reporting comparisons in times or areas with Estimated Take by Incidental
In order to issue an ITA for an concentrated stimuli versus times or Harassment
activity, Section 101(a)(5)(D) of the areas without stimuli;
4. An increased knowledge of the Except with respect to certain
MMPA states that NMFS must set forth, activities not pertinent here, the MMPA
‘‘requirements pertaining to the affected species; and
5. An increase in our understanding defines ‘‘harassment’’ as: Any act of
monitoring and reporting of such pursuit, torment, or annoyance which (i)
taking.’’ The MMPA implementing of the effectiveness of certain mitigation
and monitoring measures. has the potential to injure a marine
regulations at 50 CFR 216.104 (a)(13) mammal or marine mammal stock in the
indicate that requests for ITAs must Monitoring Measures wild (Level A harassment); or (ii) has
include the suggested means of the potential to disturb a marine
The proposed Federal Register notice
accomplishing the necessary monitoring mammal or marine mammal stock in the
(81 FR 58478; August 25, 2016) includes
and reporting that will result in a number of visual and acoustic wild by causing disruption of behavioral
increased knowledge of the species and monitoring measured designed to patterns, including, but not limited to,
of the level of taking or impacts on effectively detect marine mammals migration, breathing, nursing, breeding,
populations of marine mammals that are within the Level B harassment zone and feeding, or sheltering (Level B
expected to be present in the action determine if the required mitigation harassment).
area. measures are triggered. The final
Monitoring measures prescribed by When Neptune’s mitigation is
measures included in the IHA have not considered in combination with the fact
NMFS should accomplish one or more been altered from the proposed IHA and
of the following general goals: that marine mammals would not be
are not repeated here. In summary, three expected to remain around the
1. An increase in the probability of protected species observers (PSO) will
detecting marine mammals, both within stationary DP vessel for the duration
be stationed aboard all DP vessels and needed to be exposed to sound levels
the mitigation zone (thus allowing for an acoustic array consisting of four
more effective implementation of the that reach or exceed Level A harassment
autonomous recording units (ARUs) will thresholds, NMFS believes that injury is
mitigation) and in general to generate be deployed around the north and south
more data to contribute to the analyses unlikely.
buoys to assist in the detection of
mentioned below; marine mammals outside of visual Amount of Take Authorized
2. An increase in our understanding sighting range; the ARUs are capable of
of how many marine mammals are detecting North Atlantic right whale As described in the proposed IHA
likely to be exposed to levels of calls to approximately 6–8 kms. These Federal Register notice (81 FR 58478;
continuous noise from use of a DP monitoring measures will ensure the August 25, 2016), Neptune proposed,
vessel thruster that we associate with specific activity has the least practicable and NMFS issued, take, by Level B
specific adverse effects, such as adverse impact on marine mammals harassment, of marine mammals based
behavioral harassment, TTS, or PTS; through visual and acoustic monitoring. on marine mammals stock density, the
3. An increase in our understanding extent of the largest ZOI (37.4 km2), and
of how marine mammals respond to Reporting Measures the maximum number of days Neptune
stimuli expected to result in take and As part of the IHA, Neptune is would operate DP vessel thrusters to
how anticipated adverse effects on required to submit an annual report to facilitate maintenance and repair (14
individuals (in different ways and to NMFS containing information on days) and decommissioning (70 days).
varying degrees) may impact the marine mammal takes and behavior and For continuous sounds, such as those
population, species, or stock any mitigation actions taken. Neptune produced by DP vessel thrusters, NMFS
(specifically through effects on annual must submit a draft report on all used a received level of 120 dB re 1 mPa
rates of recruitment or survival) through monitoring conducted under the IHA (rms) to indicate the onset of potential
any of the following methods: within ninety calendar days of the for Level B harassment. Table 2 includes
• Behavioral observations in the completion of marine mammal and the authorized amount of take of marine
presence of stimuli compared to acoustic monitoring or sixty days prior mammals, by species, incidental to the
observations in the absence of stimuli to the issuance of any subsequent IHA specified activity.
TABLE 2—AUTHORIZED TAKE OF MARINE MAMMALS, BY SPECIES, INCIDENTAL TO THE SPECIFIED ACTIVITY
[Unk = unknown]
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Estimated
population Estimated
Species Density % population
(Waring et al., takes
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
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TABLE 2—AUTHORIZED TAKE OF MARINE MAMMALS, BY SPECIES, INCIDENTAL TO THE SPECIFIED ACTIVITY—Continued
[Unk = unknown]
Estimated
population Estimated
Species Density % population
(Waring et al., takes
2015)
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 acutus) ................................... 48,819 0.039 124 0.043
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 re-
ports (i.e., 135 × 2).
Technical Guidance for Assessing the (low-frequency, mid-frequency, and and nature of estimated Level A
Effects of Anthropogenic Sound on high-frequency cetaceans and phocid harassment takes, the number of
Marine Mammal Hearing pinnipeds), the Guidance incorporates estimated mortalities, effects on habitat,
In August 2016, NMFS released its auditory weighting functions. NMFS and the status of the species.
Technical Guidance for Assessing the considered the DP vessel sound source To avoid repetition, except where
Effects of Anthropogenic Sound on level (177dB rms), frequency, and otherwise identified, the discussion of
Marine Mammal Hearing, which potential exposure duration to assess our analyses applies to all the species
established new thresholds for potential for Level A take. When listed in Table 2 given that the
predicting auditory injury, which Neptune’s mitigation is considered in anticipated effects of this project on
equates to Level A harassment under the combination with the fact that many marine mammals are expected to be
MMPA. In the August 4, 2016, Federal marine mammals would be expected to relatively similar in nature. Where there
Register notice announcing the avoid making close approaches to the is information about specific impacts to,
Guidance (81 FR 51694), NMFS DP vessel (a stationary acoustic source), or about the size, status, or structure of,
explained the approach it would take we believe that injury is unlikely. In any species or stock that would lead to
during a transition period, wherein we summary, we have considered the new a different analysis for this activity,
balance the need to consider this new Guidance and believe that the species-specific factors are identified
best available science with the fact that likelihood of injury is adequately and analyzed.
addressed in the analysis and In making a negligible impact
some applicants have already
appropriate protective measures are in determination, NMFS considers:
committed time and resources to the • The number of anticipated injuries,
development of acoustic analyses based place in the IHA.
serious injuries, or mortalities;
on our previous thresholds and have Analysis and Determinations • The number, nature, and intensity,
constraints that preclude the and duration of Level B harassment; and
recalculation of take estimates, as well Negligible Impact
• The context in which the takes
as consideration of where the agency is Negligible impact is ‘‘an impact occur (e.g., impacts to areas of
in the decision-making pipeline. In the resulting from the specified activity that significance, impacts to local
Federal Register notice, we also cannot be reasonably expected to, and is populations, and cumulative impacts
included a non-exhaustive list of factors not reasonably likely to, adversely affect when taking into account successive/
that would inform the most appropriate the species or stock through effects on contemporaneous actions when added
approach for considering the Guidance, annual rates of recruitment or survival’’ to baseline data);
including: How far in the MMPA (50 CFR 216.103). The lack of likely • The status of stock or species of
process the applicant has progressed; adverse effects on annual rates of marine mammals (i.e., depleted, not
the scope of the effects; when the recruitment or survival (i.e., population depleted, decreasing, increasing, stable,
authorization is needed; the cost and level effects) forms the basis of a impact relative to the size of the
complexity of the analysis; and the negligible impact finding. Thus, an population);
degree to which the Guidance is estimate of the number of takes, alone, • Impacts on habitat affecting rates of
expected to affect our analysis. is not enough information on which to recruitment/survival; and
In the Guidance, acoustic thresholds base an impact determination. In • The effectiveness of monitoring and
are presented as cumulative sound addition to considering estimates of the mitigation measures to reduce the
exposure levels (SELcum) for non- number of marine mammals that might number or severity of incidental take.
rmajette on DSK2TPTVN1PROD with NOTICES
impulsive sound such as that from DP be ‘‘taken’’ through behavioral The following provides a summary of
vessel thrusters. This metric considers harassment, NMFS must consider other NMFS’ assessment of these items.
both the received level (dB) and factors, such as the likely nature of any NMFS does not anticipate, nor does the
duration of exposure. To account for the responses (their intensity, duration, IHA authorize, injury, serious injury or
fact that marine mammals potentially etc.), the context of any responses mortality of marine mammals incidental
taken by the specified activity fall into (critical reproductive time or location, to the specified activity. For reasons
one of four hearing group categories migration, etc.), as well as the number detailed in the Federal Register notice
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![71084 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Notices
MMPA for the construction and FOR FURTHER INFORMATION CONTACT: be brought to the full Council for formal
operation of the Neptune LNG Port Thomas A. Nies, Executive Director, consideration and action, if appropriate.
facility. For the subject IHA, NMFS New England Fishery Management DATES: This meeting will be held on
reviewed the FEIS to ensure that the Council; telephone: (978) 465–0492. Wednesday, November 2, 2016 at 9:30
analysis contained in that document SUPPLEMENTARY INFORMATION: a.m.
accurately describes and analyzes the
Agenda ADDRESSES:
impacts to the human environment of Meeting address: The meeting will be
NMFS’ action of issuing an MMPA The Groundfish Advisory Panel will held at the Radisson Airport Hotel, 2081
authorization for the maintenance, discuss Framework Adjustment 56 (FW Post Road, Warwick, RI 02886; phone:
repair, and decommissioning of the 56) Specifications and Management (401) 739–3000.
Neptune Port. NMFS has determined Measures. They also plan to discuss Council address: New England
that the FEIS sufficiently covers the draft measures and draft impact analysis Fishery Management Council, 50 Water
activities considered in the subject IHA. for FW 56 and make recommendations Street, Mill 2, Newburyport, MA 01950.
NMFS issued an amended Record of to the Groundfish Committee. Other FOR FURTHER INFORMATION CONTACT:
Decision for issuance of authorizations business will be discussed as necessary.
pursuant to sections 101(a)(5)(D) of the Thomas A. Nies, Executive Director,
Although non-emergency issues not New England Fishery Management
MMPA specific to maintenance, repair, contained in this agenda may come
and decommissioning. Council; telephone: (978) 465–0492.
before this group for discussion, those
SUPPLEMENTARY INFORMATION:
Authorization issues may not be the subject of formal
action during this meeting. Action will Agenda
NMFS has issued an IHA to Neptune be restricted to those issues specifically
for the potential harassment of small The Scallop Advisory Panel will
listed in this notice and any issues review Framework 28 (FW 28)
numbers of 14 marine mammal species arising after publication of this notice
incidental to maintenance, repair, and alternatives and analyses and make final
that require emergency action under recommendations. FW 28 will set
decommissioning of their Port in section 305(c) of the Magnuson-Stevens
Massachusetts Bay], which includes specifications including ABC/ACLs,
Act, provided the public has been DAS, access area allocations for LA and
required mitigation, monitoring and
notified of the Council’s intent to take LAGC, hard-TAC for NGOM
reporting measures.
final action to address the emergency. management area, target-TAC for LAGC
Dated: October 7, 2016.
Special Accommodations incidental catch and set-asides for the
Donna S. Wieting,
observer and research programs for
Director, Office of Protected Resources, This meeting is physically accessible
fishing year 2017 and default
National Marine Fisheries Service. to people with disabilities. Requests for
specifications for fishing year 2018.
[FR Doc. 2016–24850 Filed 10–13–16; 8:45 am] sign language interpretation or other
Management measures in FW 28 may
BILLING CODE 3510–22–P auxiliary aids should be directed to
include but are not limit to: (1)
Thomas A. Nies, Executive Director, at
Measures to restrict the possession of
(978) 465–0492, at least 5 days prior to
shell stock inshore of 42°20′ N.; (2)
DEPARTMENT OF COMMERCE the meeting date.
Measures to apply spatial management
Authority: 16 U.S.C. 1801 et seq. to fishery specifications (ACL
National Oceanic and Atmospheric
Administration Dated: October 11, 2016. flowchart); and (3) Measures to modify
Tracey L. Thompson, the Closed Area I access area boundary,
RIN 0648–XE956 consistent with potential changes to
Acting Deputy Director, Office of Sustainable
Fisheries, National Marine Fisheries Service. habitat and groundfish mortality closed
New England Fishery Management
Council; Public Meeting [FR Doc. 2016–24874 Filed 10–13–16; 8:45 am] areas. They will also review and
BILLING CODE 3510–22–P
potentially provide input on 2017
AGENCY: National Marine Fisheries scallop work priorities. Other business
Service (NMFS), National Oceanic and will be discussed as necessary.
Atmospheric Administration (NOAA), DEPARTMENT OF COMMERCE Although non-emergency issues not
Commerce. contained in this agenda may come
ACTION: Notice; public meeting. National Oceanic and Atmospheric before this group for discussion, those
Administration issues may not be the subject of formal
SUMMARY: The New England Fishery action during this meeting. Action will
Management Council (Council) is RIN 0648–XE952
be restricted to those issues specifically
scheduling a public meeting of its listed in this notice and any issues
Groundfish Advisory Panel to consider New England Fishery Management
Council; Public Meeting arising after publication of this notice
actions affecting New England fisheries that require emergency action under
in the exclusive economic zone (EEZ). AGENCY: National Marine Fisheries section 305(c) of the Magnuson-Stevens
Recommendations from this group will Service (NMFS), National Oceanic and Act, provided the public has been
be brought to the full Council for formal Atmospheric Administration (NOAA), notified of the Council’s intent to take
consideration and action, if appropriate. Commerce. final action to address the emergency.
DATES: This meeting will be held on ACTION: Notice; public meeting.
Tuesday, November 1, 2016 at 10 a.m. Special Accommodations
rmajette on DSK2TPTVN1PROD with NOTICES
ADDRESSES: The meeting will be held at SUMMARY: The New England Fishery This meeting is physically accessible
the Radisson Airport Hotel, 2081 Post Management Council (Council) is to people with disabilities. Requests for
Road, Warwick, RI 02886; phone: (401) scheduling a public meeting of its sign language interpretation or other
739–3000. Scallop Advisory Panel to consider auxiliary aids should be directed to
Council address: New England actions affecting New England fisheries Thomas A. Nies, Executive Director, at
Fishery Management Council, 50 Water in the exclusive economic zone (EEZ). (978) 465–0492, at least 5 days prior to
Street, Mill 2, Newburyport, MA 01950. Recommendations from this group will the meeting date.
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Document Created: 2016-10-14 00:01:01
Document Modified: 2016-10-14 00:01:01
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice; issuance of an incidental harassment authorization. | |
| Dates | Effective October 7, 2016 through October 6, 2017. | |
| Contact | Jaclyn Daly, Office of Protected Resources, NMFS, (301) 427-8401. | |
| FR Citation | 81 FR 71078 | |
| RIN Number | 0648-XE72 |
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