[Federal Register Volume 76, Number 113 (Monday, June 13, 2011)]
[Rules and Regulations]
[Pages 34157-34176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-14614]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 0808041026-1295-02]
RIN 0648-AX09
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Operation and Maintenance of the Neptune Liquefied
Natural Gas Facility off Massachusetts
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS, upon application from Neptune LNG LLC (Neptune), is
issuing regulations pursuant to the Marine Mammal Protection Act (MMPA)
to govern the unintentional taking of marine mammals, by harassment,
incidental to port commissioning and operations, including maintenance
and repair activities, at the Neptune Deepwater Port (the Port) in
Massachusetts Bay for the period of July 2011 through July 2016. These
regulations, which allow for the issuance of Letters of Authorization
(LOAs) for the incidental take of marine mammals during the described
activities and specified timeframes, prescribe the permissible methods
of taking and other means of effecting the least practicable adverse
impact on marine mammal species or stocks and their habitat, as well as
requirements pertaining to the monitoring and reporting of such taking.
DATES: Effective from July 11, 2011, through August 10, 2016.
ADDRESSES: A copy of Neptune's application may be obtained by writing
to Michael Payne, Chief, Permits, Conservation and Education Division,
Office of Protected Resources, NMFS, 1315 East West Highway, Silver
Spring, MD 20910, calling the contact listed under FOR FURTHER
INFORMATION CONTACT, or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this
final rule may also be viewed, by appointment, during regular business
hours at the above address.
The Final Environmental Impact Statement (Final EIS) on the Neptune
Deepwater Port License Application authored by the Maritime
Administration (MARAD) and U.S. Coast Guard (USCG) is available for
viewing at http://www.regulations.gov by entering the search words
``Neptune LNG.''
FOR FURTHER INFORMATION CONTACT: Candace Nachman, Office of Protected
Resources, NMFS, (301) 713-2289, ext 156.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce to allow, upon request, the
incidental, but not intentional, taking of small numbers of marine
mammals by U.S. citizens who engage in a specified activity (other than
commercial fishing) within a specified geographical region if certain
findings are made and either regulations are issued or, if the taking
is limited to harassment, a notice of a proposed authorization is
provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, monitoring and reporting of such takings
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103
as ``* * * an impact resulting from the specified activity that cannot
be reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.''
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as:
any act of pursuit, torment, or annoyance which (i) has the
potential to injure a marine mammal or marine mammal stock in the
wild [``Level A harassment'']; or (ii) has the potential to disturb
a marine mammal or marine mammal stock in the wild by causing
disruption of behavioral patterns, including, but not limited to,
migration, breathing, nursing, breeding, feeding, or sheltering
[``Level B harassment''].
[[Page 34158]]
Summary of Request
On December 14, 2009, NMFS received an application from Neptune for
the taking, by harassment, of marine mammals incidental to port
commissioning and operations, including maintenance and repair
activities, at its Neptune Deepwater Port (Port) facility in
Massachusetts Bay. NMFS reviewed Neptune's application and identified a
number of issues requiring further clarification. After addressing
comments from NMFS, Neptune modified its application and submitted a
revised application on March 11, 2010. The March 11, 2010, application
was the one made available for public comment and considered by NMFS
for these regulations.
Neptune submitted its first complete application to NMFS on
December 27, 2007, for the take of small numbers of marine mammals, by
harassment, incidental to the construction phase of the Neptune LNG
Port Facility. In June 2008, NMFS issued a 1-year Incidental Harassment
Authorization (IHA) to Neptune for the construction of the Port (73 FR
33400, June 12, 2008). This authorization expired on June 30, 2009.
NMFS issued a second 1-year IHA to Neptune for the completion of
construction and beginning of Port operations on June 26, 2009 (74 FR
31926, July 6, 2009), which expired on June 30, 2010.
On July 12, 2010, NMFS issued a third IHA to Neptune based on the
request in its March 11, 2010, application (75 FR 41440, July 16,
2010). This latest IHA is effective through July 11, 2011. During the
period of this third IHA, Neptune conducted limited port operations.
During the effective period of this final rule (July 2011-July
2016), Neptune intends to continue port operations (including
commissioning of its second shuttle regasification vessel [SRV]) and
conduct maintenance and repairs, as needed. The Neptune Port is located
approximately 22 mi (35 km) northeast of Boston, Massachusetts, in
Federal waters approximately 260 ft (79 m) in depth. The purpose of the
Port is to import liquefied natural gas (LNG) into the New England
region. Take of marine mammals may occur during port operations from
thruster use during maneuvering of the SRVs while docking and
undocking, occasional weathervaning (turning of a vessel at anchor from
one direction to another under the influence of wind or currents) at
the Port, and during thruster use of dynamic positioning (DP)
maintenance vessels should a major repair be necessary. Neptune
requested authorization to take 12 marine mammal species by Level B
harassment. The species are: North Atlantic right whale; humpback
whale; fin whale; sei whale; minke whale; long-finned pilot whale;
Atlantic white-sided dolphin; harbor porpoise; common dolphin; Risso's
dolphin; bottlenose dolphin; and harbor seal. In the 2009 and 2010
IHAs, NMFS also authorized take of killer whales and gray seals. NMFS
has determined that it would be appropriate in this final rule to
authorize take, by Level B harassment only, incidental to operations
and maintenance activities of these two species as well. In this final
rule, NMFS has authorized the take, by Level B harassment, of all 14
marine mammal species listed here.
Description of the Specified Activity
On March 23, 2007, Neptune received a license from MARAD to own,
construct, and operate a deepwater port. The Port, which is located in
Massachusetts Bay, consists of a submerged buoy system to dock
specifically designed LNG carriers approximately 22 mi (35 km)
northeast of Boston, Massachusetts, in Federal waters approximately 260
ft (79 m) in depth. The two buoys are separated from one another by a
distance of approximately 2.1 mi (3.4 km). The locations of the Neptune
Port and the associated pipeline are shown in Figure 2-1 in Neptune's
application (see ADDRESSES).
All construction of the Neptune Port was completed in November
2009. The first SRV was commissioned in February-March 2010. Between
July 2011 and July 2016, (the time period for these regulations),
Neptune plans to continue Port operations (including commissioning of
its second SRV) and also plans to conduct any necessary maintenance and
repairs of the Port facility.
Neptune will be capable of mooring LNG SRVs with a capacity of
approximately 183,113 cubic yards (yd\3\; 140,000 cubic meters (m\3\))
of LNG. Up to two SRVs will temporarily moor at the Port by means of a
submerged unloading buoy system. Two separate buoys will allow natural
gas to be delivered in a continuous flow, without interruption, by
having a brief overlap between arriving and departing SRVs. The annual
average throughput capacity will be around 500 million standard cubic
feet per day (mmscfd) with an initial throughput of 400 mmscfd and a
peak capacity of approximately 750 mmscfd of LNG.
The SRVs will be equipped to store, transport, and vaporize LNG and
to odorize, meter and send out natural gas by means of two 16-in (40.6-
cm) flexible risers and one 24-in (61-cm) subsea flowline. These risers
and flowline will lead to a 24-in (61-cm) gas transmission pipeline
connecting the deepwater port to the existing 30-in (76.2-cm) Algonquin
Hubline\SM\ (Hubline\SM\) located approximately 9 mi (14.5 km) west of
the Neptune deepwater port location. The Port will have an expected
operating life of approximately 25 years. Figure 1-1 of Neptune's
application shows an isometric view of the Port (see ADDRESSES). A
detailed overview of Port operations and maintenance and repair
activities, as well as the types of sounds those activities produce,
was provided in the proposed rule (75 FR 80260, December 21, 2010). No
changes have been made to the proposed operations or maintenance and
repair activities.
Description of Marine Mammals in the Area of the Specified Activity
Massachusetts Bay (as well as the entire Atlantic Ocean) hosts a
diverse assemblage of marine mammals, including: The North Atlantic
right whale; blue whale; fin whale; sei whale; minke whale; humpback
whale; killer whale; long-finned pilot whale; sperm whale; Atlantic
white-beaked dolphin; Atlantic white-sided dolphin; bottlenose dolphin;
common dolphin; harbor porpoise; Risso's dolphin; striped dolphin; gray
seal; harbor seal; harp seal; and hooded seal. Table 3-1 in Neptune's
application outlines the marine mammal species that occur in
Massachusetts Bay and the likelihood of occurrence of each species. Of
the species listed here, the North Atlantic right, blue, fin, sei,
humpback, and sperm whales are all listed as endangered under the
Endangered Species Act (ESA) and as depleted under the MMPA. The
northern coastal stock of bottlenose dolphins is considered depleted
under the MMPA. Certain stocks or populations of killer whales are
listed as endangered under the ESA or depleted under the MMPA; however,
none of those stocks or populations occurs in the activity area.
Of these species, 14 are expected to occur in the area of Neptune's
operations. These species include: The North Atlantic right, humpback,
fin, sei, minke, killer, and long-finned pilot whales; Atlantic white-
sided, common, Risso's, and bottlenose dolphins; harbor porpoise; and
harbor and gray seals. Neptune used information from the Cetacean and
Turtle Assessment Program (CETAP; 1982) and the U.S. Navy's Marine
Resource Assessment (MRA) for the Northeast Operating Areas (DoN, 2005;
available on the Internet at: https://
[[Page 34159]]
portal.navfac.navy.mil/portal/page/portal/navfac/navfac--ww--pp/
navfac--hq--pp/navfac--environmental/mra) to estimate densities of the
species in the area. Nonetheless, NMFS used the data on cetacean
distribution within Massachusetts Bay, such as those published by
NOAA's National Centers for Coastal Ocean Science (NCCOS; 2006), to
determine density estimates of several species of marine mammals in the
vicinity of the project area. The explanation for those derivations and
the actual density estimates are described later in this document (see
the ``Estimated Take by Incidental Harassment'' section).
The proposed rule contains a discussion of 17 marine mammal species
that are not considered further in the analysis because of their rarity
in the Massachusetts Bay area (blue whale, sperm whale, harp seal,
hooded seal, ringed seal, northern bottlenose whale, Cuvier's beaked
whale, Sowerby's beaked whale, Blainville's beaked whale, Gervais'
beaked whale, True's beaked whale, beluga whale, pantropical spotted
dolphin, false killer whale, pygmy sperm whale, striped dolphin, and
Atlantic white-beaked dolphin). The proposed rule also contains brief
summaries on several commonly sighted marine mammal species
distribution and abundance in the vicinity of the action area. The
``Description of Marine Mammals in the Area of the Specified Activity''
has not changed from the proposed rule. Please refer to the proposed
rule (75 FR 80260, December 21, 2010) for the complete discussion.
Additionally, information on those species that may be impacted by
this activity is provided in Neptune's application and sections 3.2.3
and 3.2.5 in the MARAD/USCG Final EIS on the Neptune LNG proposal (see
ADDRESSES). Please refer to those documents for more information on
these species. Also, general information on these marine mammal species
can also be found in the 2009 NMFS U.S. Atlantic and Gulf of Mexico
Marine Mammal Stock Assessment Report (SAR; Waring et al., 2009) and
the 2010 Draft NMFS Atlantic and Gulf of Mexico Marine Mammal SAR
(Waring et al., in prep.), which are available on the Internet at:
http://www.nefsc.noaa.gov/publications/tm/tm213/ and http://www.nmfs.noaa.gov/pr/sars/draft.htm, respectively.
Brief Background on Marine Mammal Hearing
When considering the influence of various kinds of sound on the
marine environment, it is necessary to understand that different kinds
of marine life are sensitive to different frequencies of sound. Based
on available behavioral data, audiograms derived using auditory evoked
potential techniques, anatomical modeling, and other data, Southall et
al. (2007) designate ``functional hearing groups'' for marine mammals
and estimate the lower and upper frequencies of functional hearing of
the groups. The functional groups and the associated frequencies are
indicated below (though animals are less sensitive to sounds at the
outer edge of their functional range and most sensitive to sounds of
frequencies within a smaller range somewhere in the middle of their
functional hearing range):
Low frequency cetaceans (13 species of mysticetes):
Functional hearing is estimated to occur between approximately 7 Hz and
22 kHz (however, a study by Au et al. (2006) of humpback whale songs
indicate that the range may extend to at least 24 kHz);
Mid-frequency cetaceans (32 species of dolphins, six
species of larger toothed whales, and 19 species of beaked and
bottlenose whales): functional hearing is estimated to occur between
approximately 150 Hz and 160 kHz;
High frequency cetaceans (eight species of true porpoises,
six species of river dolphins, Kogia, the franciscana, and four species
of cephalorhynchids): functional hearing is estimated to occur between
approximately 200 Hz and 180 kHz; and
Pinnipeds in Water: functional hearing is estimated to
occur between approximately 75 Hz and 75 kHz, with the greatest
sensitivity between approximately 700 Hz and 20 kHz.
As mentioned previously in this document, 14 marine mammal species
(12 cetacean and two pinniped species) are likely to occur in the
Neptune Port area. Of the 12 cetacean species likely to occur in
Neptune's project area, five are classified as low frequency cetaceans
(i.e., North Atlantic right, humpback, fin, minke, and sei whales), six
are classified as mid-frequency cetaceans (i.e., killer and pilot
whales and bottlenose, common, Risso's, and Atlantic white-sided
dolphins), and one is classified as a high-frequency cetacean (i.e.,
harbor porpoise) (Southall et al., 2007).
Potential Effects of the Specified Activity on Marine Mammals
With respect to the MMPA, NMFS' effects assessment serves four
primary purposes: (1) To prescribe the permissible methods of taking
(i.e., Level B Harassment, including an identification of the number
and types of take that could occur by Level B harassment) and to
prescribe other means of effecting the least practicable adverse impact
on such species or stock and its habitat (i.e., mitigation); (2) to
determine whether the specified activity will have a negligible impact
on the affected species or stocks of marine mammals (based on the
likelihood that the activity will adversely affect the species or stock
through effects on annual rates of recruitment or survival); (3) to
determine whether the specified activity will have an unmitigable
adverse impact on the availability of the species or stock(s) for
subsistence uses (however, there are no subsistence communities that
would be affected in the Massachusetts Bay area, so this determination
is inapplicable for this rulemaking); and (4) to prescribe requirements
pertaining to monitoring and reporting.
Potential effects of Neptune's proposed port operations and
maintenance/repair activities would most likely be acoustic in nature.
LNG port operations and maintenance/repair activities introduce sound
into the marine environment. Potential acoustic effects on marine
mammals relate to sound produced by thrusters during maneuvering of the
SRVs while docking and undocking, occasional weathervaning at the port,
and during thruster use of DP maintenance vessels should a major repair
be necessary. The potential effects of sound from the activities
associated with the Neptune Port might include one or more of the
following: tolerance; masking of natural sounds; behavioral
disturbance; non-auditory physical effects; and, at least in theory,
temporary or permanent hearing impairment (Richardson et al., 1995).
However, for reasons discussed in the proposed rule, it is unlikely
that there would be any cases of temporary, or especially permanent,
hearing impairment resulting from these activities.
In the ``Potential Effects of Specified Activities on Marine
Mammals'' section of the proposed rule, NMFS included a qualitative
discussion of the different ways that port operations and repair and
maintenance activities may potentially affect marine mammals. Marine
mammals may experience masking and behavioral disturbance. The
information contained in the ``Potential Effects of Specified
Activities on Marine Mammals'' section from the proposed rule has not
changed. Please refer to the proposed rule for the full discussion (75
FR 80260, December 21, 2010).
[[Page 34160]]
Anticipated Effects on Habitat
The primary potential impacts to marine mammals and other marine
species are associated with elevated sound levels produced by the Port
operations and maintenance/repair activities. However, other potential
impacts from physical disturbance are also possible. Major repairs to
the Neptune port and pipeline may affect marine mammal habitat in
several ways: cause disturbance of the seafloor; increase turbidity
slightly; and generate additional underwater sound in the area. These
underwater sound levels will cause some species to temporarily disperse
from or avoid repair areas, but they are expected to return shortly
after the repair is completed. Operation of the Port will result in
long-term, continued disturbance of the seafloor, regular withdrawal of
seawater, and generation of underwater sound. The proposed rule
contained a full discussion of the potential impacts to marine mammal
habitat and prey species in the project area. No changes have been made
to that discussion. Please refer to the proposed rule for the full
discussion of potential impacts to marine mammal habitat (75 FR 80260,
December 21, 2010). NMFS has determined that Neptune's proposed port
operations and maintenance/repair activities are not expected to have
any habitat-related effects that could cause significant or long-term
consequences for individual marine mammals or on the food sources that
they utilize.
Mitigation
In order to issue an incidental take authorization (ITA) under
section 101(a)(5)(A) of the MMPA, NMFS must, where applicable, set
forth the permissible methods of taking pursuant to such activity, and
other means of effecting the least practicable 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).
Neptune proposed several mitigation measures in the application
(see ADDRESSES). After a review of these measures, NMFS determined that
some additional measures should also be implemented in order to effect
the least practicable adverse impact on the species or stock and its
habitat. Both sets of measures are discussed next.
Mitigation Measures in Neptune's Application
Neptune submitted a ``Marine Mammal Detection, Monitoring, and
Response Plan for the Operations Phase'' (the Plan) as part of its MMPA
application (Appendix D of the application; see ADDRESSES). The
measures, which include safety zones and vessel speed reductions, are
fully described in the Plan and summarized here. Some slight changes
have been made in this final rule (from what appears in the Plan) based
on public comments or for clarification purposes. An explanation of the
changes is contained in the ``Comments and Responses'' section found
later in this document.
The 500-yd (457 m) safety zone for North Atlantic right whales is
based on the approach regulation found at 50 CFR 224.103. The 100 yd
(91 m) safety zone for other marine mammal species was taken from
measures included in the 2007 Biological Opinion completed by NMFS'
Northeast Regional Office. Any maintenance and/or repairs needed shall
be scheduled in advance during the May 1 to November 30 seasonal
window, whenever possible, so that disturbance to North Atlantic right
whales will be largely avoided. If the repair cannot be scheduled
during this time frame, additional mitigation measures are required in
these regulations and described in part (2) of this section.
(1) Mitigation Measures for Major Repairs (May 1 to November 30)
(A) During repairs, if a marine mammal is detected within 0.6 mi (1
km) of the repair vessel (or acoustically), the vessel superintendent
or on-deck supervisor will be notified immediately. The vessel's crew
will be put on a heightened state of alert. The marine mammal will be
monitored constantly to determine if it is moving toward the repair
area.
(B) Repair vessels will cease any movement in the area if a marine
mammal other than a right whale is sighted within or approaching to a
distance of 100 yd (91 m) from the operating repair vessel. Repair
vessels will cease any movement in the area if a right whale is sighted
within or approaching to a distance of 500 yd (457 m) from the
operating vessel. Vessels transiting the repair area, such as pipe haul
barge tugs, will also be required to maintain these separation
distances.
(C) Repair vessels will cease all sound emitting activities if a
marine mammal other than a right whale is sighted within or approaching
to a distance of 100 yd (91 m) or if a right whale is sighted within or
approaching to a distance of 500 yd (457 m), from the operating repair
vessel. The back-calculated source level, based on the most
conservative cylindrical model of acoustic energy spreading, is
estimated to be 139 dB re 1 [mu]Pa.
(D) Repair activities may resume after the marine mammal is
positively reconfirmed outside the established zones (either 500 yd
(457 m) or 100 yd (91 m), depending upon species) or if the marine
mammal has not been re-sighted in the established zones for 30 minutes.
(E) While under way, all repair vessels will remain 500 yd (457 m)
away from right whales and 100 yd (91 m) away from all other marine
mammals, unless constrained by human safety concerns or navigational
constraints.
(F) All repair vessels 300 gross tons or greater will maintain a
speed of 10 knots (18.5 km/hr) or less. Vessels less than 300 gross
tons carrying supplies or crew between the shore and the repair site
will contact the Mandatory Ship Reporting System, the USCG, or the
protected species observers (PSOs) at the repair site before leaving
shore for reports of recent right whale sightings or active Dynamic
Management Areas (DMAs) and, consistent with navigation safety,
restrict speeds to 10 knots (18.5 km/hr) or less within 5 mi (8 km) of
any recent sighting location and within any existing DMA.
(G) Vessels transiting through the Cape Cod Canal and Cape Cod Bay
(CCB) between January 1 and May 15 will reduce speeds to 10 knots (18.5
km/hr) or less, follow the recommended routes charted by NOAA to reduce
interactions between right whales and shipping traffic, and avoid
aggregations of right whales in the eastern portion of CCB.
(2) Additional Port and Pipeline Major Repair Measures (December 1 to
April 30)
If unplanned/emergency repair activities cannot be conducted
between May 1 and November 30, Neptune is required to implement the
following additional mitigation measures:
(A) If on-board PSOs do not have at least 0.6-mi (1-km) visibility,
they shall call for a shutdown of repair activities. If dive operations
are in progress, then they shall be halted and divers brought on board
until visibility is adequate to see a 0.6-mi (1-km) range. At the time
of shutdown, the use of thrusters must be minimized to the lowest level
needed to maintain personnel safety. If there are potential safety
problems due to the shutdown, the captain will decide what operations
can safely be shut down and will document such activities in the data
log.
(B) Prior to leaving the dock to begin transit, the barge will
contact one of the
[[Page 34161]]
PSOs on watch to receive an update of sightings within the visual
observation area (within 0.6 mi (1 km) of the Port). If the PSO has
observed a North Atlantic right whale within 30 minutes of the transit
start, the vessel will hold for 30 minutes and again seek clearance to
leave from the PSOs on board. PSOs will assess whale activity and
visual observation ability at the time of the transit request to clear
the barge for release and will grant clearance if no North Atlantic
right whales have been sighted in the last 30 minutes in the visual
observation area. [Similar requirements from the acoustic monitoring
system is required and discussed part (4) of this subsection.]
(C) Neptune or its contractor shall provide a half-day training
course to designated crew members assigned to the transit barges and
other support vessels who will have responsibilities for watching for
marine mammals. This course shall cover topics including, but not
limited to, descriptions of the marine mammals found in the area,
mitigation and monitoring requirements contained in the LOA, sighting
log requirements, and procedures for reporting injured or dead marine
mammals. These designated crew members will be required to keep watch
on the bridge and immediately notify the navigator of any whale
sightings. All watch crew members will sign into a bridge log book upon
the start and end of watch. Transit route, destination, sea conditions,
and any protected species sightings/mitigation actions during watch
will be recorded in the log book. Any whale sightings within 3,281 ft
(1,000 m) of the vessel will result in a high alert and slow speed of 4
knots (7.4 km/hr) or less. A sighting within 2,461 ft (750 m) will
result in idle speed and/or ceasing all movement.
(D) The material barges and tugs used for repair work shall transit
from the operations dock to the work sites during daylight hours, when
possible, provided the safety of the vessels is not compromised. Should
transit at night be required, the maximum speed of the tug will be 5
knots (9.3 km/hr).
(E) Consistent with navigation safety, all repair vessels must
maintain a speed of 10 knots (18.5 km/hr) or less during daylight
hours. All vessels will operate at 5 knots (9.3 km/hr) or less at all
times within 3.1 mi (5 km) of the repair area.
(3) Speed Restrictions in Seasonal Management Areas (SMAs)
Repair vessels and SRVs will transit at 10 knots (18.5 km/hr) or
less in the following seasons and areas, which either correspond to or
are more restrictive than the times and areas in NMFS' regulations at
50 CFR 224.105 that implement speed restrictions to reduce the
likelihood and severity of ship strikes of right whales:
CCB SMA from January 1 through May 15, which includes all
waters in CCB, extending to all shorelines of the Bay, with a northern
boundary of 42[deg] 12' N. latitude;
Off Race Point SMA year round, which is bounded by
straight lines connecting the following coordinates in the order
stated: 42[deg]30' N. 69[deg]45' W.; thence to 42[deg]30' N. 70[deg]30'
W.; thence to 42[deg]12' N. 70[deg]30' W.; thence to 42[deg]12' N.
70[deg]12' W.; thence to 42[deg]04'56.5'' N. 70[deg]12' W.; thence
along mean high water line and inshore limits of COLREGS limit to a
latitude of 41[deg]40' N.; thence due east to 41[deg]41' N. 69[deg]45'
W.; thence back to starting point; and
Great South Channel (GSC) SMA from April 1 through July
31, which is bounded by straight lines connecting the following
coordinates in the order stated:
42[deg]30' N. 69[deg]45' W.
41[deg]40' N. 69[deg]45' W.
41[deg]00' N. 69[deg]05' W.
42[deg]09' N. 67[deg]08'24'' W.
42[deg]30' N. 67[deg]27' W.
42[deg]30' N. 69[deg]45' W.
(4) Additional Mitigation Measures
(A) When approaching and departing from the Neptune Port, SRVs
shall use the Boston Traffic Separation Scheme (TSS) starting and
ending at the entrance to the GSC. Upon entering the TSS, the SRV shall
go into a ``heightened awareness'' mode of operation, which is outlined
in great detail in the Plan (see Neptune's application).
(B) In the event that a whale is visually observed within 0.6 mi (1
km) of the Port or a confirmed acoustic detection is reported on either
of the two auto-detection buoys (ABs; more information on the acoustic
devices is contained in the ``Monitoring and Reporting'' section later
in this document) closest to the Port, departing SRVs shall delay their
departure from the Port, unless extraordinary circumstances, defined in
the Plan, require that the departure is not delayed. The departure
delay shall continue until either the observed whale has been visually
(during daylight hours) confirmed as more than 0.6 mi (1 km) from the
Port or 30 minutes have passed without another confirmed detection
either acoustically within the acoustic detection range of the two ABs
closest to the Port or visually within 0.6 mi (1 km) from Neptune.
(C) SRVs that are approaching or departing from the Port and are
within the Area to be Avoided (ATBA) surrounding Neptune shall remain
at least 0.6 mi (1 km) away from any visually detected right whales and
at least 100 yd (91 m) away from all other visually detected whales
unless extraordinary circumstances, as defined in Section 1.2 of the
Plan in Neptune's application, require that the vessel stay its course.
The ATBA is defined in 33 CFR 150.940. It is the largest area of the
Port marked on nautical charts, and it is enforceable by the USCG in
accordance with the 33 CFR 150.900 regulations. The Vessel Master shall
designate at least one lookout to be exclusively and continuously
monitoring for the presence of marine mammals at all times while the
SRV is approaching or departing Neptune.
(D) Neptune will ensure that other vessels providing support to
Neptune operations during regasification activities that are
approaching or departing from the Port and are within the ATBA shall be
operated so as to remain at least 0.6 mi (1 km) away from any visually
detected right whales and at least 100 yd (91 m) from all other
visually detected whales.
Additional Mitigation Measures Required by NMFS
In addition to the mitigation measures in Neptune's application,
NMFS has required the following measures in these regulations in order
to ensure the least practicable adverse impact on the affected species
or stocks:
(1) Neptune must immediately suspend any repair and maintenance or
operations activities if a dead or injured marine mammal is found in
the vicinity of the project area, and the death or injury of the animal
could be attributable to the LNG facility activities. Upon finding a
dead or injured marine mammal, Neptune must contact NMFS, the Northeast
Stranding and Disentanglement Program, and the USCG. NMFS will review
the documentation submitted by the PSO and attempt to attribute a cause
of death. Activities will not resume until review and approval has been
given by NMFS.
(2) PSOs will direct a moving vessel to slow to idle if a baleen
whale is seen less than 0.6 mi (1 km) from the vessel.
(3) Use of lights during repair or maintenance activities shall be
limited to areas where work is actually occurring, and all other lights
must be extinguished. Lights must be downshielded to illuminate the
deck and shall not intentionally illuminate surrounding waters, so as
not to attract whales or their prey to the area.
[[Page 34162]]
Mitigation Conclusions
NMFS has carefully evaluated the applicant's proposed mitigation
measures and considered a range of other measures in the context of
ensuring that NMFS prescribes the means of effecting the least
practicable adverse impact on the affected marine mammal species and
stocks and their habitat. Our evaluation of potential measures included
consideration of the following factors in relation to one another:
The manner in which, and the degree to which, the
successful implementation of the measure is expected to minimize
adverse impacts to marine mammals;
The proven or likely efficacy of the specific measure to
minimize adverse impacts as planned; and
The practicability of the measure for applicant
implementation.
Based on our evaluation of the applicant's proposed measures, as
well as other measures considered by NMFS or recommended by the public,
NMFS has determined that the mitigation measures described above,
including the adaptive management component (see the ``Adaptive
Management'' section later in this document), provide the means of
effecting the least practicable adverse impact on marine mammal species
or stocks and their habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance.
Monitoring and Reporting
In order to issue an ITA for an activity, section 101(a)(5)(A) of
the MMPA states that NMFS must, where applicable, set forth
``requirements pertaining to the monitoring and reporting of such
taking.'' The MMPA implementing regulations at 50 CFR 216.104(a)(13)
indicate that requests for ITAs must include the suggested means of
accomplishing the necessary monitoring and reporting that will result
in increased knowledge of the species and of the level of taking or
impacts on populations of marine mammals that are expected to be
present in the action area.
Neptune proposed both visual and acoustic monitoring programs in
the Plan contained in the application. Summaries of those plans, as
well as the proposed reporting, are contained here.
Passive Acoustic Monitoring
Neptune LNG will deploy and maintain a passive acoustic detection
network along a portion of the TSS and in the vicinity of Neptune. This
network will consist of autonomous recording units (ARUs) and near-
real-time ABs. To develop, implement, collect, and analyze the acoustic
data obtained from deployment of the ARUs and ABs, as well as to
prepare reports and maintain the passive acoustic detection network,
Neptune LNG has engaged the Cornell University Bioacoustic Research
Program (BRP) in Ithaca, New York, and the Woods Hole Oceanographic
Institution (WHOI) in Woods Hole, Massachusetts.
During June 2008, an array of 19 passive seafloor ARUs was deployed
by BRP for Neptune. The layout of the array centered on the terminal
site and was used to monitor the noise environment in Massachusetts Bay
in the vicinity of Neptune during construction of the Port and
associated pipeline lateral. The ARUs were not designed to provide
real-time or near-real-time information about vocalizing whales.
Rather, archival noise data collected from the ARU array were used for
the purpose of understanding the seasonal occurrences and overall
distributions of whales (primarily North Atlantic right whales) within
approximately 11.5 mi (18.5 km) of the Neptune Port. Neptune LNG will
maintain these ARUs in the same configuration for a period of 5 years
during operation of the Neptune Port in order to monitor the actual
acoustic output of port operations and to alert NOAA to any
unanticipated effects of port operations, such as large scale
abandonment by marine mammals of the area. To further assist in
evaluations of Neptune's acoustic output, source levels associated with
DP of SRVs at the buoys will be estimated using empirical measurements
collected from the passive detection network. If it is determined that
this network is insufficient to collect the data, then source levels
shall be collected from a platform as close as practicable to thrusters
while in use.
In addition to the ARUs, Neptune LNG has deployed 10 ABs within the
Separation Zone of the TSS for the operational life of the Port. The
purpose of the AB array is to detect the presence of vocalizing North
Atlantic right whales. Each AB has an average detection range of 5.8 mi
(9.3 km) from the AB, although detection ranges will vary based on
ambient underwater conditions. The AB system will be the primary
detection mechanism that alerts the SRV Master to the occurrence of
right whales in the TSS and triggers heightened SRV awareness. The
configurations of the ARU array and AB network (see Figure 3 in the
Plan in Neptune's application) were based upon configurations developed
and recommended by NOAA personnel.
Each AB deployed in the TSS will continuously screen the low-
frequency acoustic environment (less than 1,000 Hz) for right whale
contact calls occurring within an approximately 5.8-mi (9.3-km) radius
from each buoy (the ABs' detection range) and rank detections on a
scale from 1 to 10. Each AB shall transmit up to 10 clips with ratings
6-10 in near-real-time via Iridium satellite link to the BRP server Web
site every 20 minutes during periods of heightened awareness (otherwise
AB detections are transmitted at a rate of 5 clips per 6 hours). This
20-minute transmission schedule was determined by consideration of a
combination of factors including the tendency of right whale calls to
occur in clusters (leading to a sampling logic of listening for other
calls rather than transmitting immediately upon detection of a possible
call) and the amount of battery power required to complete a satellite
transmission. Additional details on the protocol can be found in
Neptune's application.
Additional passive acoustic monitoring shall be required, on a
case-by-case basis, during both planned and emergency repair activities
in order to better detect right whales in the area of repair work and
to collect additional data on the noise levels produced during repair
and maintenance activities. Neptune shall work with NOAA (NMFS and
SBNMS) to evaluate when to install real-time passive acoustic detection
buoys to provide early warnings for potential occurrence of right
whales in the vicinity of the repair area. The number of passive
acoustic detection buoys installed around the activity site, if deemed
necessary, shall be commensurate with the type and spatial extent of
maintenance/repair work required but must be sufficient to detect
vocalizing right whales within the 120-dB impact zone. In addition,
Neptune shall provide NMFS with empirically measured source level data
for all sources of noise associated with LNG port maintenance and
repair activities. Measurements shall be carefully planned and
coordinated with noise-producing activities and shall be collected from
the passive detection network.
Visual Monitoring
(1) Maintenance and Repair Activities
During maintenance- and repair-related activities, Neptune LNG
shall employ qualified PSOs on each vessel that has a DP system. All
PSOs must
[[Page 34163]]
receive training and be approved in advance by NOAA after a review of
their qualifications. Qualifications for these PSOs shall include
direct field experience on a marine mammal observation vessel and/or
aerial surveys in the Atlantic Ocean/Gulf of Mexico. Two PSOs are on-
duty at all times. Each vessel typically has four PSOs on-board at all
times. The PSOs (one primary and one secondary) are responsible for
visually locating marine mammals at the ocean's surface and, to the
extent possible, identifying the species. The primary PSO shall act as
the identification specialist, and the secondary PSO will serve as data
recorder and will assist with identification. Both PSOs shall have
responsibility for monitoring for the presence of marine mammals.
The PSOs shall monitor the area where maintenance and repair work
is conducted using the naked eye, hand-held binoculars, and/or power
binoculars (e.g, Big Eyes). Two PSOs are on-duty 24 hours/day and
switch between primary and secondary duties (as described in the
previous paragraph) about every 40-60 minutes. During nighttime
watches, PSOs are equipped with night vision devices. All sightings
must be recorded on marine mammal field sighting logs.
(2) Operations
While an SRV is navigating within the designated TSS, three people
have lookout duties on or near the bridge of the ship including the SRV
Master, the Officer-of-the-Watch, and the Helmsman on watch. In
addition to standard watch procedures, while the SRV is within the ATBA
and/or while actively engaging in the use of thrusters, an additional
lookout shall be designated to exclusively and continuously monitor for
marine mammals. Once the SRV is moored and regasification activities
have begun, the vessel is no longer considered to be in ``heightened
awareness'' status. However, when regasification activities conclude
and the SRV prepares to depart from Neptune, the Master shall once
again ensure that the responsibilities as defined in the Plan are
carried out. All sightings of marine mammals by the designated lookout,
individuals posted to navigational lookout duties, and/or any other
crew member while the SRV is within the TSS, in transit to the ATBA,
within the ATBA, and/or when actively engaging in the use of thrusters
shall be immediately reported to the Officer-of-the-Watch who shall
then alert the Master.
Reporting Measures
Since the Neptune Port is within the Mandatory Ship Reporting Area
(MSRA), all SRVs transiting to and from Neptune shall report their
activities to the mandatory reporting section of the USCG to remain
apprised of North Atlantic right whale movements within the area. All
vessels entering and exiting the MSRA shall report their activities to
WHALESNORTH. Vessel operators shall contact the USCG by standard
procedures promulgated through the Notice to Mariner system.
For major repair work associated with the pipeline lateral or other
port components, Neptune LNG shall notify the appropriate NOAA
personnel as soon as practicable after it is determined that repair
work must be conducted. During maintenance and repair of the pipeline
lateral or other port components, weekly status reports must be
provided to NOAA. The weekly report must include data collected for
each distinct marine mammal species observed in the project area during
the period of the repair activity. The weekly reports shall include the
following:
The location, time, and nature of the pipeline lateral
repair activities;
Whether the DP system was operated and, if so, the number
of thrusters used and the time and duration of DP operation;
Marine mammals observed in the area (number, species, age
group, and initial behavior);
The distance of observed marine mammals from the repair
activities;
Observed marine mammal behaviors during the sighting;
Whether any mitigation measures were implemented;
Weather conditions (sea state, wind speed, wind direction,
ambient temperature, precipitation, and percent cloud cover, etc.);
Condition of the marine mammal observation (visibility and
glare); and
Details of passive acoustic detections and any action
taken in response to those detections.
For minor repairs and maintenance activities, the following
protocols will be followed:
All vessel crew members will be trained in marine mammal
identification and avoidance procedures;
Repair vessels will notify designated NOAA personnel when
and where the repair/maintenance work is to take place along with a
tentative schedule and description of the work, as soon as practicable
after it is determined that repair work must be conducted;
Vessel crews will record/document any marine mammal
sighting(s) during the work period; and
At the conclusion of the repair/maintenance work, a report
will be delivered to designated NOAA personnel describing any marine
mammal sightings, the type of work taking place when the sighting
occurred, and any avoidance actions taken during the repair/maintenance
work.
During all phases of project repair/maintenance activities and
operation, sightings of any injured or dead marine mammals will be
reported immediately to the USCG, NMFS, and the Northeast Stranding and
Disentanglement Program, regardless of whether the injury or death is
caused by project activities. Sightings of injured or dead marine
mammals not associated with project activities can be reported to the
USCG on VHF Channel 16 or to NMFS Stranding and Entanglement Hotline.
In addition, if the injury or death was caused by a project vessel
(e.g., SRV, support vessel, or repair/maintenance vessel), USCG must be
notified immediately, and a full report must be provided to NMFS,
Northeast Regional Office, and NMFS, Office of Protected Resources. The
report must include the following information: (1) The time, date, and
location (latitude/longitude) of the incident; (2) the name and type of
vessel involved; (3) the vessel's speed during the incident; (4) a
description of the incident; (5) water depth; (6) environmental
conditions (e.g., wind speed and direction, sea state, cloud cover, and
visibility); (7) the species identification or description of the
animal; (8) the fate of the animal; and (9) photographs or video
footage of the animal (if equipment is available). Activities will not
resume until review and approval has been given by NMFS.
An annual report on marine mammal monitoring and mitigation will be
submitted to NMFS, Office of Protected Resources, and NMFS, Northeast
Regional Office, on August 1 of each year. The annual report shall
cover the time period of January 1 through December 31 of the previous
year for each year of activity. The weekly and annual reports shall
include data collected for each distinct marine mammal species observed
in the project area in Massachusetts Bay during the period of LNG
facility operations and repair/maintenance activities. The annual
report shall also include a description of marine mammal behavior,
overall numbers of individuals observed, frequency of observation, and
any behavioral changes and the context of the changes relative to
operation and repair/maintenance
[[Page 34164]]
activities. Additional information that will be recorded by Neptune or
its contractors during operation and repair/maintenance activities and
contained in the reports include: results of empirical source level
estimation for thrusters while in use and activities associated with
maintenance and repair events, date and time of marine mammal
detections (visually or acoustically), weather conditions, species
identification, approximate distance from the source, activity of the
vessel or at the repair site when a marine mammal is sighted, and
whether thrusters were in use and, if so, how many at the time of the
sighting.
In addition to annual reports, Neptune must submit a draft
comprehensive final report to NMFS, Office of Protected Resources, and
NMFS, Northeast Regional Office, 180 days prior to the expiration of
these regulations. This comprehensive technical report shall provide
full documentation of methods, results, and interpretation of all
monitoring during the first 4.5 years of the LOA. A revised final
comprehensive technical report, including all monitoring results during
the entire period of the LOAs will be due 90 days after the end of the
period of effectiveness of the regulations.
General Conclusions Drawn From Previous Monitoring Reports
Throughout the construction period (July 2008-November 2009 with
work stoppages during peak right whale season), Neptune submitted
weekly reports on marine mammal sightings in the area. While it is
difficult to draw biological conclusions from these reports, NMFS can
make some general conclusions. Data gathered by PSOs is generally
useful to indicate the presence or absence of marine mammals (often to
a species level) within the safety zones (and sometimes without) and to
document the implementation of mitigation measures. Though it is by no
means conclusory, it is worth noting that no instances of obvious
behavioral disturbance as a result of Neptune's activities were
observed by the PSOs. Of course, these observations only cover the
animals that were at the surface and within the distance that the PSOs
could see. Neptune has not yet conducted any repair or maintenance
activities at the Port.
As described previously in this document, Neptune was required to
maintain an acoustic array to monitor calling North Atlantic right
whales (humpback and fin whale calls were also able to be detected).
The ARUs log continuous acoustic data for up to 110 days per each
deployment. At the end of each ARU recording cycle, the 19 units are
recovered by BRP personnel. The data are analyzed based on seven
objectives, which are as follows: (1) Determine daily presence of fin
whale sounds; (2) determine daily presence of humpback whale sounds;
(3) determine hourly presence of right whale sounds; (4) estimate
locations and numbers of vocalizing right whales in the monitoring area
each day; (5) estimate sound exposure for each locatable vocalizing
whale; (6) assess noise conditions; and (7) improve analysis software
applications.
Cornell BRP analyzed the data and submitted a report covering the
initial construction phase of the project, which occurred in 2008.
While acoustic data can only be collected if the animals are actively
calling, the report indicates that humpback and fin whales were heard
calling on at least some of the ARUs on all construction days, and
right whale calls were heard only 28 percent of the time during active
construction days. Background noise analysis revealed definite
increases in acoustic noise in association with the different types of
construction activities with increases highest in the right whale band
and next highest in the humpback band. The report asserted that the
influence of construction activities on the acoustic habitat that was
monitored could not be adequately evaluated by simply counting the
number of detected whales exposed to a received noise level above 120
dB.
The September 2010 ARU quarterly passive acoustic monitoring status
report indicates that only a small portion of the 2010 data have been
analyzed to date. The final Marine Mammal Acoustic Monitoring and
Analysis for the Operation of the Neptune Liquefied Natural Gas
Terminal: 1 January-31 December 2010 will be submitted to NOAA, USGC,
and MARAD by July 31, 2011.
The AB network has been deployed and operational in the Boston TSS
since January 2010. Acoustic data from these buoys are sent to the BRP
Cornell lab in near-real-time for analysis for the presence of North
Atlantic right whales in the monitoring area. Positive North Atlantic
right whale detections are relayed to SRVs during transit through the
shipping lanes. The cycle of data analysis and information submission
is a 24 hrs/day, 7 days/week operation when SRVs are in the monitoring
area. To date, Cornell has prepared and submitted two reports for the
AB system for 2010: January-June time period and July-September time
period.
There are two monitoring conditions that dictate the tasks
performed by analysts at BRP: ``normal'' monitoring conditions and
``heightened watch'' monitoring conditions. During ``normal''
monitoring conditions (i.e., no SRVs are present in the monitoring
area), analysts at BRP monitor and report on North Atlantic right whale
activity twice a day. During ``heightened watch'' monitoring conditions
(i.e., when a SRV is 24 hours from the TSS AB coverage area, traveling
through the Boston Shipping Lanes or transiting to the Neptune Port
from the Boston Shipping Lanes) analysts at BRP monitor and report on
North Atlantic right whale acoustic activity in near-real-time. Table 1
in this document outlines the detections and data that were recorded on
the ABs from January-September 2010. The highest number of detections
was recorded in March and the lowest number recorded in June. During
the period January-September 2010, there were two SRV visits to the
Port. This resulted in ``heightened watch'' monitoring conditions of
the AB array for 2 days in February, 2 days in March, 7 days in April,
1 day in May, 1 day in July, and 7 days in August. The passive acoustic
arrays will remain deployed during the effective period of these
regulations in order to obtain information during the operational phase
of the Port facility.
Table 1--Information on North Atlantic Right Whale Call Data Collected From the AB Array Deployed Near the Neptune Port From January Through September
2010
--------------------------------------------------------------------------------------------------------------------------------------------------------
January February March April May June July August September
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of ABs with a detection.............. 8 10 10 10 10 5 8 8 8
Total number of detections for all ABs...... 328 573 3,874 2,786 1,538 34 64 112 189
Highest number of detections on a single day 58 103 1,059 255 186 8 26 35 43
(Jan. 14) (Feb. 25) (Mar. 25) (Apr. 24) (May 1) (Jun. 15) (Jul. 3) (Aug. 14) (Sep. 18)
Number of days with no recorded detections.. 5 2 0 0 1 14 16 9 11
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 34165]]
Adaptive Management
NMFS has included an adaptive management component in the
regulations governing the take of marine mammals incidental to
operation and repair/maintenance activities at the Neptune Port. In
accordance with 50 CFR 216.105(c), regulations for the proposed
activity must be based on the best available information. As new
information is developed, through monitoring, reporting, or research,
the regulations may be modified, in whole or in part, after notice and
opportunity for public review and comment. The use of adaptive
management will allow NMFS to consider new information from different
sources to determine if mitigation or monitoring measures should be
modified (including additions or deletions) if new data suggest that
such modifications are appropriate for subsequent LOAs.
The following are some of the possible sources of applicable data:
Results from Neptune's monitoring from the previous year;
Results from general marine mammal and sound research; or
Any information which reveals that marine mammals may have
been taken in a manner, extent or number not authorized by these
regulations or subsequent LOAs.
If, during the effective period of the regulations, new information
is presented from monitoring, reporting, or research, these regulations
may be modified, in whole, or in part after notice and opportunity for
public review and comment, as allowed for in 50 CFR 216.105(c). In
addition, LOAs shall be withdrawn or suspended if, after notice and
opportunity for public comment, the Assistant Administrator finds,
among other things, that the regulations are not being substantially
complied with or the taking allowed is having more than a negligible
impact on the species or stock, as allowed for in 50 CFR 216.106(e).
That is, should substantial changes in marine mammal populations in the
project area occur or monitoring and reporting show that the Port
operations are having more than a negligible impact on marine mammals,
then NMFS reserves the right to modify the regulations and/or withdraw
or suspend LOAs after public review and comment.
Comments and Responses
On December 21, 2010 (75 FR 80260), NMFS published a proposed rule
in response to Neptune's request to take marine mammals incidental to
port commissioning and operations, including maintenance and repair
activities, at its Deepwater Port in Massachusetts Bay and requested
comments, information, and suggestions concerning the request. During
the 45-day public comment period, NMFS received comments from two
private individuals and the Marine Mammal Commission (MMC). NMFS has
responded to these comments here.
Comment 1: One of the private citizen letters noted the continual
harassment and stress sustained by marine mammals from human
activities, and, therefore, urged that the regulations be denied.
Response: NMFS considered the potential for harassment from these
activities in its impacts analysis in the proposed rule (75 FR 80260,
December 21, 2010). 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. Based on the assessment in the proposed rule and
contained later in this document, NMFS determined that the level of
harassment from these activities would take only small numbers of
marine mammals and would not have more than a negligible impact on the
affected species or stocks. There are no relevant subsistence uses of
marine mammals implicated by this action. Therefore, NMFS has
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. The permissible
methods of taking and the required mitigation, monitoring, and
reporting measures are laid out in this final rule.
Comment 2: The second private citizen letter expressed
contradicting points of view. It stated on the one hand that NMFS
should not stop LNG operations, as it would force increased prices for
the public. However, the letter also stated that NMFS should take
positive steps to protect marine mammals.
Response: NMFS is not the agency with regulatory authority over
offshore deepwater LNG ports. That authority falls to the USCG and
MARAD. Therefore, those are the agencies that either allow or deny LNG
port construction and operation. NMFS authorizes the take of marine
mammals incidental to a specified activity if certain findings are
made. Those findings are described in the ``Background'' section found
earlier in this document. The final rule and associated LOA contain
mitigation and monitoring measures to ensure the least practicable
adverse impact on marine mammal species and stocks in the Port area.
Comment 3: The MMC expressed three concerns with the information in
the proposed rule as to the derivation of take estimates. First, the
MMC expressed concern about the 120-dB zones that were used as they
were smaller than those derived from in-situ measurements and
incorporated into models in appendices in Neptune's application. This
resulted in an underestimation of the zones of exposure. Second, the
hypothetical strip width that was used by NMFS was much smaller than
the strip width used during the surveys, thus producing overestimates
of marine mammal densities in the area. Lastly, NMFS only estimated
take from repair and maintenance activities and DP but not
weathervaning.
The MMC is concerned that the presence of these errors and
omissions in the proposed rule may have compromised the public's
opportunity to comment meaningfully on the proposed authorization.
Without seeing the new analyses, it is difficult to know whether the
final rule will differ significantly enough from the proposed rule that
an additional opportunity for public review and comment should be
provided. Therefore, the MMC recommends that NMFS allow for an
additional opportunity for public review and comment before publication
of a final rule if the recalculated takes or zones in which takes might
occur are significantly greater than those described in the proposed
rule. If NMFS determines that additional notice and opportunity to
comment are not needed, the MMC recommends that NMFS ensure that the
revised estimates of the zones of exposure and anticipated takes for
each of the three proposed activities are provided in the final rule,
together with the rationale for not providing an additional opportunity
for public review and comment.
Response: NMFS has revised the take estimates in this final rule
from those contained in the proposed rule. A summary of the revisions
is provided here, and more details can be found in the ``Estimated Take
by Incidental Harassment'' section found later in this document.
As noted by the MMC, NMFS inadvertently did not estimate takes from
weathervaning in the proposed rule. Takes from this activity (in
[[Page 34166]]
addition to DP use and repair/maintenance activities) have now been
calculated and added to the total annual take estimate for each
species. NMFS estimated that Neptune would require up to 8 days/year to
conduct weathervaning to maintain position at the Port. This is based
on information contained in their application and associated
appendices. Including this activity only added a very small number of
individuals of each species to the overall take totals for each
species.
In December 2009, LGL Limited completed a Second Supplementary
Biological Effects Report titled Assessment of the Effects of
Underwater Noise from Thrusters to be Used on the Neptune LNG Project
(LGL, 2009). This report incorporated measurements of the SRVs
conducted by Samsung and new transmission loss modeling by JASCO
Applied Sciences. This report presents zones of influence (ZOIs; e.g.,
the area ensonified by the 120-dB contour) for DP during thruster use
for docking and undocking, weathervaning (to maintain position on the
mooring), and repair and maintenance activities. For each of these
three activities that have the potential to result in take of marine
mammals, LGL presented a range for the radius of the 120-dB isopleth.
NMFS took the average (or mean) value for each of these three radii to
determine the ZOIs for each activity and the amount of take for each
species. NMFS used the following radii (and ZOIs) in its take
calculations:
DP during thruster use for docking and undocking: Radius
of 2.33 mi (3.75 km) and an area of 17.06 mi\2\ (44.18 km\2\);
Weathervaning: Radius of 3.2 mi (5.15 km) and an area of
32.17 mi\2\ (83.32 km\2\); and
Repair and maintenance activities: Radius of 4.38 mi (7.05
km) and an area of 60.29 mi\2\ (156.14 km\2\).
The radius for DP increased only slightly between the proposed and
final rules from 1.9 mi (3 km) to 2.33 mi (3.75 km). The increase in
radius (and therefore ZOI) from repair and maintenance activities had a
more dramatic increase between the proposed and final rules: 2.4 mi
(3.9 km) to 4.38 mi (7.05 km). However, the radius for repair and
maintenance activities assumes that all such activities would be
similar to construction activities. Activities during construction were
noisier and required more vessels on site at the same time than what
would be expected for most repair or maintenance type activities.
Therefore, this radius and associated ZOI are likely overestimates, as
many of the activities would not occur on this large of a scale.
As noted by the MMC, NMFS used an extremely conservative
hypothetical strip width in the proposed rule to derive density
estimates. By doing so, the density estimates were severely inflated.
NMFS has reviewed the 2006 NCCOS report from which data were used to
determine species densities. Some of the data used a strip-transect
survey method. The value for this was 2.3 mi (3.7 km). In order to
convert a strip-transect value to a line transect for the strip width,
one must divide the strip transect width by 2. Therefore, in this final
rule, NMFS has used a strip width of 1.15 mi (1.85 km) to derive
density estimates for the seven species discussed in the NCCOS (2006)
report. This value is more realistic of actual field conditions than
the original value used in the proposed rule. By using this larger
strip width, the take estimates dropped dramatically (especially for DP
thruster use), even with the larger ZOIs. The take estimates for DP
thruster use with the lower density estimates and larger ensonified
areas decreased by nearly three times the values in the proposed rule.
NMFS has determined that there does not need to be another
opportunity for public comment on this rule based merely on the fact
that the take estimates have been revised. When all of the recommended
modifications to the take estimates were made (i.e., inclusion of
weathervaning, increasing ZOIs, and increasing strip width), the end
result was that in all cases, the take estimates decreased slightly for
the species described in the 2006 NCCOS report. Additionally, the
public's opportunity to comment meaningfully was not compromised.
Besides the MMC, only two other people submitted comment letters.
Neither of these letters discussed the issue of take estimates or how
the values were calculated in the proposed rule. NMFS has provided
ample explanation for how the estimates were derived in this final rule
and where changes in derivation were made from the proposed rule.
Comment 4: The MMC recommends that NMFS adopt a consistent
requirement that mitigation zones be clear of all species of marine
mammals for 30 minutes before initiation or resumption of activities.
Response: NMFS has changed the requirement that repair and
maintenance activities not resume until the marine mammal has been
positively confirmed to have left the mitigation zone to also state
that if the animal has not been re-sighted for 30 minutes in the
appropriate mitigation zone that activities may resume. This change is
consistent with requirements and conditions contained in other MMPA
ITAs.
Comment 5: The MMC notes that the proposed rule uses a 0.6-mi (1-
km) radius of the area that must be visible for certain activities and
a 0.5-mi (0.8-km) radius for repair and maintenance activities. The
basis for allowing lower visibility for certain activities is not
clear. The MMC recommends that NMFS require that visibility also be at
least 0.6 mi (1 km) before maintenance and repair activities can
proceed or provide a reasoned basis for allowing these activities under
poorer visibility.
Response: NMFS has changed the visibility requirement for repair
and maintenance activities in the final rule to be consistent with that
of other activities for which mitigation is required in the rule. NMFS
agrees with the MMC that there is no reason for the discrepancy in the
visibility distances and therefore has made the requested change. The
mitigation requirements for such activities now state that a zone of
0.6 mi (1 km) must be visible.
Comment 6: The MMC also questions whether the planned visual
monitoring is adequate for mitigation purposes. The proposed rule
specifies that PSOs would conduct visual monitoring for 40 minutes each
hour, beginning at daybreak. With that 20-minute break each hour, if
the Port operates 24 hours/day, then in a season with 12 hours of daily
sunlight, observers would be on watch for a total of 8 hours only--that
is, during one-third of operations. In essence, NMFS' approach implies
that visual monitoring is necessary for mitigation purposes only at
certain times, and the MMC does not see the basis for that conclusion.
To address that concern, the MMC recommends that NMFS (1) require that
PSOs monitor continuously for the presence of marine mammals when
activities occur during daylight hours and (2) either prohibit
nighttime operations or adopt measures that it can demonstrate to be
reliable for detecting all marine mammals within the specified
mitigation zones under nighttime conditions.
Response: The information contained in the proposed rule about the
procedures used by PSOs during repair and maintenance activities at the
Neptune Port was not described clearly. Additional information has been
added to the ``Monitoring and Reporting'' section of this document to
add clarity.
PSOs are on-duty continuously to monitor for the presence of marine
mammals. This includes work done during nighttime hours. Two PSOs are
on-watch at all times and take turns during the shift between being the
[[Page 34167]]
primary observer watching for marine mammals and the secondary observer
who records sightings in the log book and watches for marine mammals
when not entering data. Should repair and maintenance activities occur
during nighttime hours, PSOs are equipped with night vision devices.
These devices have proven to be useful within the small distances that
are encompassed by the mitigation zones for this project.
Comment 7: The MMC believes that NMFS' determination under the MMPA
that these activities will have a negligible impact on marine mammal
species or stocks needs to take into account possible cumulative
effects, even if cumulative effects analyses have been conducted under
the National Environmental Policy Act (NEPA). Unless such an analysis
is done, NMFS could continue indefinitely to grant ITAs for individual
activities that, by themselves, have a negligible impact even though
the combined total of all impacts might significantly impede a species'
recovery or contribute to its further decline. With that concern in
mind, the MMC recommends that NMFS include in its final rule an
analysis evaluating the impact of the proposed operations together with
the cumulative impacts of all the other pertinent risk factors
affecting right whales and other marine mammals that occur in the Port
area and explain why it believes that the combined impacts would be
negligible.
Response: NMFS considered the cumulative effects analysis contained
in the USCG's and MARAD's 2006 Final EIS and other relevant data to
inform its MMPA determination here. NMFS was a cooperating agency in
the development of both the Draft and Final EISs for this project.
Pursuant to NEPA, those documents contained a cumulative impacts
assessment, as well as an assessment of the impacts of the proposed
Neptune Port construction, operation, and abandonment on marine mammals
and other protected resources.
Section 101(a)(5)(A) of the MMPA and its implementing regulations
require NMFS to consider a request for the taking of marine mammals
incidental to a specified activity within a specified geographical
region and, assuming certain findings can be made, to authorize the
taking of small numbers of marine mammals while engaged in that
activity. NMFS has defined ``specified activity'' in 50 CFR 216.103 as
``any activity, other than commercial fishing, that takes place in a
specified geographical region and potentially involves the taking of
small numbers of marine mammals.'' When making a negligible impact
determination, NMFS considers the total impact during each 5-year
period resulting from the specified activity only and supports its
determination by relying on factors such as: (1) The number of
anticipated mortalities from the activity; (2) the number and nature of
anticipated injuries from the activity; (3) the number, nature,
intensity, and duration of Level B harassment resulting from the
activity; and (4) the context in which the takes occur.
NMFS considered the impacts analyses (i.e., direct, indirect, and
cumulative) contained in the 2006 EIS in reaching its conclusion that
any marine mammals exposed to the low level sounds produced by
operations or repair/maintenance activities at the Neptune Port would
be disturbed for only a short period of time and would not be harmed or
killed. Furthermore, the required mitigation and monitoring measures
are expected to reduce the likelihood or severity of any impacts to
marine mammals over the course of these activities.
Moreover, NMFS gave careful consideration to a number of other
issues and sources of information. In particular, NMFS relied upon a
number of scientific reports, including the 2009 and 2010 U.S. Atlantic
and Gulf of Mexico Marine Mammal SARs to support its findings. The SARs
contain a description of each marine mammal stock, its geographic
range, a minimum population estimate, current population trends,
current and maximum net productivity rates, optimum sustainable
population levels and allowable removal levels, and estimates of annual
human-caused mortality and serious injury through interactions with
commercial fisheries. NMFS also used data from the 2006 NCCOS report to
determine density levels of several of the marine mammal species in the
proposed activity area.
After careful consideration of the proposed activities, the context
in which Neptune's proposed activities would occur, the best available
scientific information, and all effects analyses (including cumulative
effects), NMFS has determined that the taking from the specified
activities: (1) Would not result in more than the behavioral harassment
(i.e., Level B harassment) of small numbers of marine mammal species or
stocks; (2) would not result in more than a negligible impact on
affected species or stocks; and (3) would not have an unmitigable
adverse impact on the availability of such species or stocks for taking
for subsistence uses. Therefore NMFS has decided to issue regulations
and associated LOA(s) to Neptune to take, by no more than Level B
harassment, small numbers of marine mammals incidental to operation and
repair/maintenance activities at the Neptune Port off Massachusetts.
Estimated Take by Incidental Harassment
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as: ``any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild [Level A harassment]; or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering [Level B harassment].'' Only take by Level B harassment is
anticipated as a result of Neptune's operational and repair/maintenance
activities. Anticipated take of marine mammals is associated with
thruster sound during maneuvering of the SRVs while docking and
undocking, occasional weathervaning at the Port, and during thruster
use of DP maintenance vessels should a major repair be necessary. The
regasification process itself is an activity that does not rise to the
level of taking, as the modeled source level for this activity is 110
dB (rms). Certain species may have a behavioral reaction to the sound
emitted during the activities; however, hearing impairment as a result
of these activities is not anticipated. Additionally, vessel strikes
are not anticipated, especially because of the required speed
restriction measures that were described earlier in this document.
For continuous sounds, such as those produced by Neptune's
activities, NMFS uses a received level of 120-dB (rms) to indicate the
onset of Level B harassment. The basis for Neptune's ``take'' estimate
is the number of marine mammals that potentially could be exposed to
sound levels in excess of 120 dB. This has been determined by applying
the modeled ZOI to the seasonal use (density) of the area by marine
mammals and correcting for seasonal duration of sound-generating
activities and estimated duration of individual activities when the
maximum sound-generating activities are intermittent to occasional.
Nearly all of the required information is readily available in the
MARAD/USCG Final EIS, with the exception of marine mammal density
estimates for the project area. In the case of data gaps, a
conservative approach was used to ensure that the potential number of
takes is not underestimated, as described next.
[[Page 34168]]
Based on comments received from the MMC, NMFS has reevaluated the
take estimates. The following factors for developing the take estimates
have been taken into account in this final rule, which were not
considered in the proposed rule:
Takes from weathervaning were also estimated (in addition
to takes from thruster use during DP and repair and maintenance
activities, which were estimated in the proposed rule);
The ZOIs for each of the three activities listed here are
taken from Appendix C3 in Neptune's application, which are taken from
in-situ measurements and incorporated into models in Neptune's
application instead of the ZOIs from earlier reports, which were used
in the proposed rule; and
Density estimates were derived using a strip width of 1.15
mi (1.85 km) instead of the overly conservative strip width of 0.25 mi
(0.4 km) used in the proposed rule.
In December 2009, LGL Limited completed a Second Supplementary
Biological Effects Report titled Assessment of the Effects of
Underwater Noise from Thrusters to be Used on the Neptune LNG Project
(LGL, 2009). This report incorporated measurements of the SRVs
conducted by Samsung and new transmission loss modeling by JASCO
Applied Sciences. This report presents ZOIs for DP during thruster use
for docking and undocking, weathervaning (to maintain position on the
mooring), and repair and maintenance activities. For each of these
three activities that have the potential to result in take of marine
mammals, LGL presented a range for the radius of the 120-dB isopleth
and also for the 120-dB ensonified area. NMFS took the average (or
mean) value for each of these three radii to determine the ZOIs for
each activity and the amount of take for each species from the three
activities. Therefore, NMFS used the following radii (and ZOIs) in its
take calculations:
DP during thruster use for docking and undocking: Radius
of 2.33 mi (3.75 km) and an area of 17.06 mi\2\ (44.18 km\2\);
Weathervaning: Radius of 3.2 mi (5.15 km) and an area of
32.17 mi\2\ (83.32 km\2\); and
Repair and maintenance activities: Radius of 4.38 mi (7.05
km) and an area of 60.29 mi\2\ (156.14 km\2\).
Additionally, in the calculation of take from repair and
maintenance activities, the proposed rule determined that such
activities may only need to occur for 14 days each year. However, after
a reevaluation, NMFS has determined that it would be more appropriate
to assume 28 days per year for repair and maintenance activities. While
some repairs may take 3-4 weeks in any given year, there is also the
possibility that some years may not have any repair or maintenance
activities occur.
NMFS recognizes that baleen whale species other than North Atlantic
right whales have been sighted in the project area from May to
November. However, the occurrence and abundance of fin, humpback, and
minke whales is not well documented within the project area.
Nonetheless, NMFS used the data on cetacean distribution within
Massachusetts Bay, such as those published by the NCCOS (2006), to
determine potential takes of marine mammals in the vicinity of the
project area. Neptune presented density estimates using the CETAP
(1982) and U.S. Navy MRA (2005) data. The NCCOS (2006) report uses
information from these sources; however, it also includes information
from some other studies. Therefore, NMFS used density information for
the species that are included in the NCCOS (2006) report. These species
include: North Atlantic right, fin, humpback, minke, pilot, and sei
whales and Atlantic white-sided dolphins.
The NCCOS study used cetacean sightings from two sources: (1) The
North Atlantic Right Whale Consortium (NARWC) sightings database held
at the University of Rhode Island (Kenney, 2001); and (2) the Manomet
Bird Observatory (MBO) database, held at NMFS' Northeast Fisheries
Science Center (NEFSC). The NARWC data contained survey efforts and
sightings data from ship and aerial surveys and opportunistic sources
between 1970 and 2005. The main data contributors included: The CETAP,
the Canadian Department of Fisheries and Oceans, the Provincetown
Center for Coastal Studies, International Fund for Animal Welfare,
NEFSC, New England Aquarium, WHOI, and the University of Rhode Island.
A total of 406,293 mi (653,725 km) of survey track and 34,589 cetacean
observations were provisionally selected for the NCCOS study in order
to minimize bias from uneven allocation of survey effort in both time
and space. The sightings-per-unit-effort (SPUE) was calculated for all
cetacean species by month covering the southern Gulf of Maine study
area, which also includes the project area (NCCOS, 2006).
The MBO's Cetacean and Seabird Assessment Program (CSAP) was
contracted from 1980 to 1988 by NEFSC to provide an assessment of the
relative abundance and distribution of cetaceans, seabirds, and marine
turtles in the shelf waters of the northeastern U.S. (MBO, 1987). The
CSAP program was designed to be completely compatible with NEFSC
databases so that marine mammal data could be compared directly with
fisheries data throughout the time series during which both types of
information were gathered. A total of 8,383 mi (5,210 km) of survey
distance and 636 cetacean observations from the MBO data were included
in the NCCOS analysis. Combined valid survey effort for the NCCOS
studies included 913,840 mi (567,955 km) of survey track for small
cetaceans (dolphins and porpoises) and 1,060,226 mi (658,935 km) for
large cetaceans (whales) in the southern Gulf of Maine. The NCCOS study
then combined these two data sets by extracting cetacean sighting
records, updating database field names to match the NARWC database,
creating geometry to represent survey tracklines and applying a set of
data selection criteria designed to minimize uncertainty and bias in
the data used.
Based on the comprehensiveness and total coverage of the NCCOS
cetacean distribution and abundance study, NMFS calculated the
estimated take number of marine mammals based on the most recent NCCOS
report published in December, 2006. A summary of seasonal cetacean
distribution and abundance in the project area was provided in the
proposed rule, in the ``Description of Marine Mammals in the Area of
the Specified Activity'' section (75 FR 80260, December 21, 2010). For
a detailed description and calculation of the cetacean abundance data
and SPUE, refer to the NCCOS study (NCCOS, 2006). SPUE for all four
seasons were analyzed, and the highest value SPUE for the season with
the highest abundance of each species was used to determine relative
abundance. Based on the data, the relative abundance of North Atlantic
right, fin, humpback, minke, sei, and pilot whales and Atlantic white-
sided dolphins, as calculated by SPUE in number of animals per square
kilometer, is 0.0082, 0.0097, 0.0265, 0.0059, 0.0084, 0.0407, and
0.1314 n/km, respectively. Table 2 in this document outlines the
density, abundance, take estimates, and percent of population for the
14 species for which NMFS is authorizing Level B harassment.
In calculating the area density of these species from these linear
density data, NMFS used 1.15 mi (1.85 km) as the strip width (W). This
is larger than the extremely conservative hypothetical strip width of
0.25 mi (0.4 km) that was used in the proposed rule. This revised strip
width is based on the distance of
[[Page 34169]]
visibility used in the NARWC data that was part of the NCCOS (2006)
study. However, those surveys used a strip transect instead of a line
transect methodology. Therefore, in order to obtain a strip width, one
must divide the visibility or transect value in half. Since the
visibility value used in the NARWC data was 2.3 mi (3.7 km), it thus
gives a strip width of 1.15 mi (1.85 km). Based on this information,
the area density (D) of these species in the project area can be
obtained by the following formula:
D = SPUE/2W.
Based on the calculation, the estimated take numbers by Level B
harassment on an annual basis for North Atlantic right, fin, humpback,
minke, sei, and pilot whales and Atlantic white-sided dolphins, within
the 120-dB ensonified area during DP of thrusters for docking and
undocking of approximately 17.06 mi\2\ (44.18 km\2\) maximum ZOI,
corrected for 50 percent underwater, are 7, 9, 24, 5, 2, 36, and 118,
respectively. This estimate is based on an estimated 50 SRV trips
annually (for all of these species except for sei whales) that will
produce sounds of 120 dB or greater. This estimate is based on an
estimated 12.5 SRV trips annually that will produce sounds of 120 dB or
greater for sei whales. Sei whales only occur in the area in the
spring. Therefore, shipments during the other three seasons will not
result in the take of sei whales. For this reason, take from shipment
operations has only been calculated at a quarter of the rate of the
other species for sei whales. With the revised strip width and ZOI, the
take estimates for these seven species from DP during thruster use is
about one-third the estimates in the proposed rule (75 FR 80260,
December 21, 2010).
Based on the same calculation method described above for DP
thruster use (but using the 120-dB ZOI of approximately 60.29 mi\2\
(156.14 km\2\)), the estimated take numbers by Level B harassment on an
annual basis for North Atlantic right, fin, humpback, minke, sei, and
pilot whales and Atlantic white-sided dolphins incidental to Port
maintenance and repair activities, corrected for 50 percent underwater,
are 15, 17, 47, 11, 7, 72, and 233, respectively. These numbers are
based on 28 days of repair and maintenance activities occurring
annually (for all of these species except for sei whales). As mentioned
previously, sei whales only occur in the area in spring. Since most
repair work is to be scheduled for the spring and summer seasons, the
take estimate for sei whales was calculated based on 14 days or repair
and maintenance activities annually. It is unlikely that this much
repair and maintenance work would be required each year. With the
revised strip width and ZOI, the take estimates for these seven species
from maintenance and repair activities increased only slightly (i.e.,
no more than 9 individuals for any endangered whale species) from the
proposed rule (75 FR 80260, December 21, 2010).
The third activity that has the potential to take marine mammals is
weathervaning in order to maintain position at the Port. This activity
is not anticipated to occur for more than 8 days in any given year.
Therefore, the take estimates are based on the possibility of
weathervaning occurring for up to 8 days for all species except sei
whales. Again, since sei whales only occur in the area in spring, the
estimate for this species was calculated at one-quarter the rate (i.e.,
2 days of weathervaning per year). Using a ZOI of 32.17 mi\2\ (83.32
km\2\), the estimated take numbers by Level B harassment on an annual
basis for North Atlantic right, fin, humpback, minke, sei, and pilot
whales and Atlantic white-sided dolphins incidental to weathervaning,
corrected for 50 percent underwater, are 2, 3, 7, 2, 1, 11, 36,
respectively.
The total estimated annual take of each of these species as a
result of all three activities with the potential to incidentally take
marine mammals (i.e., DP thruster use, repair and maintenance
activities, and weathervaning) at the Neptune Port facility is: 24
North Atlantic right whales; 29 fin whales; 78 humpback whales; 18
minke whales; 12 sei whales; 119 long-finned pilot whales; and 387
Atlantic white-sided dolphins. These numbers represent a maximum of 7,
1.3, 9.2, 0.5, 3.1, 0.9, and 0.6 percent of the populations for these
species or stocks in the western North Atlantic, respectively. The
revised take estimates for these seven species are lower than the take
estimates presented in the proposed rule (75 FR 80260, December 21,
2010). It is likely that individual animals will be ``taken'' by
harassment multiple times (because certain individuals may occur in the
area more than once while other individuals of the population or stock
may not enter the project area). Additionally, the highest value SPUE
for the season with the highest abundance of each species was used to
determine relative abundance. Moreover, it is not expected that Neptune
will have 50 SRV transits and LNG deliveries in the first year or two
of operations. Therefore, these percentages represent the upper
boundary of the animal population that could be affected. Thus, the
actual number of individual animals being exposed or taken is expected
to be far less, especially in the first couple of years of operation.
In addition, bottlenose dolphins, common dolphins, Risso's
dolphins, killer whales, harbor porpoises, harbor seals, and gray seals
could also be taken by Level B harassment as a result of the deepwater
LNG port project. Because these species are less likely to occur in the
area, and there are no density estimates specific to this particular
area, NMFS based the take estimates on one or two encounters with
typical group size. Therefore, NMFS estimates that up to approximately
10 bottlenose dolphins, 20 common dolphins, 20 Risso's dolphins, 20
killer whales, 5 harbor porpoises, 15 harbor seals, and 15 gray seals
could be exposed to continuous noise at or above 120 dB re 1 [mu]Pa rms
incidental to operations (i.e., DP thruster use and weathervaning) and
repair and maintenance activities annually, respectively. The take
estimates for these seven species have not changed from the proposed
rule.
Because Massachusetts Bay represents only a small fraction of the
western North Atlantic basin where these animals occur, NMFS has
determined that only small numbers of the marine mammal species or
stocks in the area would be potentially affected by the Neptune LNG
deepwater project. The take estimates presented in this section of the
document do not take into consideration the mitigation and monitoring
measures required in the regulations.
[[Page 34170]]
Table 2--Density Estimates, Population Abundance Estimates, Total Annual Authorized Take (When Combine Takes
From DP Thruster Use, Maintenance/Repair Activities, and Weathervaning), and Percentage of Population That May
Be Taken for the Potentially Affected Species
----------------------------------------------------------------------------------------------------------------
Total annual Percentage of
Species Density Abundance \1\ Abundance \2\ authorized stock or
take population
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale...... 0.0022 345 361 24 6.6-7
Fin whale....................... 0.0026 2,269 3,985 29 0.7-1.3
Humpback whale.................. 0.0072 847 847 78 9.2
Minke whale..................... 0.0016 3,312 8,987 18 0.2-0.5
Sei whale....................... 0.0023 386 386 12 3.1
Long-finned pilot whale......... 0.011 31,139 12,619 119 0.4-0.9
Atlantic white-sided dolphin.... 0.0355 63,368 63,368 387 0.6
Bottlenose dolphin.............. NA 7,489 9,604 10 0.1
Common dolphin.................. NA 120,743 120,743 20 0.02
Risso's dolphin................. NA 20,479 20,479 20 0.1
Killer whale.................... NA NA NA 20 NA
Harbor porpoise................. NA 89,054 89,054 5 0.01
Harbor seal..................... NA 99,340 NA 15 0.02
Gray seal....................... NA 125,541- 125,541- 15 0.01
169,064 169,064
----------------------------------------------------------------------------------------------------------------
\1\ Abundance estimates in 2009 NMFS Atlantic and Gulf of Mexico SAR;
\2\ Abundance estimates in 2010 Draft NMFS Atlantic and Gulf of Mexico SAR; NA=Not Available.
Negligible Impact and Small Numbers Analysis and Determination
NMFS has defined ``negligible impact'' in 50 CFR 216.103 as `` * *
* an impact resulting from the specified activity that cannot be
reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.'' In making a negligible impact determination,
NMFS considers a variety of factors, including but not limited to: (1)
The number of anticipated mortalities; (2) the number and nature of
anticipated injuries; (3) the number, nature, intensity, and duration
of Level B harassment; and (4) the context in which the takes occur.
No injuries or mortalities are anticipated to occur as a result of
Neptune's port operation and maintenance and repair activities, and
none are authorized by NMFS. Additionally, animals in the area are not
anticipated to incur any hearing impairment (i.e., TTS, a Level B
harassment, or PTS, a Level A [injury] harassment), as the modeling
results for the SRV indicate a source level of 180 dB (rms), which is
below the threshold used by NMFS for acoustic injury to marine mammals.
All takes are anticipated to be by Level B behavioral harassment only.
Certain species may have a behavioral reaction (e.g., increased swim
speed, avoidance of the area, etc.) to the sound emitted during the
operations and maintenance activities. Table 2 in this document
outlines the number of Level B harassment takes that are anticipated as
a result of the activities. These takes are anticipated to be of low
intensity due to the low level of sound emitted by the activities
themselves. The activities could occur year-round. However, operations
are not anticipated to occur on successive days. Should repair or
maintenance work be required, this could occur on successive days but
likely only for 1-2 weeks but no more than 3-4 weeks. The activities do
not occur in any critical habitat for the affected species, although
there is some nearby for North Atlantic right whales. Maintenance and
repair activities will be conducted to avoid times of year when that
species is most likely to be in the area.
While some of the species occur in the project area year-round,
some species only occur in the area during certain seasons. For
example, sei whales are only anticipated in the area during the spring.
Therefore, if shipments and/or maintenance/repair activities occur in
other seasons, the likelihood of sei whales being affected is quite
low. Additionally, any repairs that can be scheduled in advance will be
scheduled to avoid the peak time that North Atlantic right whales occur
in the area, which usually is during the early spring. North Atlantic
right, humpback, and minke whales are not expected in the project area
in the winter. During the winter, a large portion of the North Atlantic
right whale population occurs in the southeastern U.S. calving grounds
(i.e., South Carolina, Georgia, and northern Florida). The fact that
certain activities will occur during times when certain species are not
commonly found in the area will help reduce the amount of Level B
harassment for these species.
Many animals perform vital functions, such as feeding, resting,
traveling, and socializing, on a diel cycle (24-hr cycle). Behavioral
reactions to noise exposure (such as disruption of critical life
functions, displacement, or avoidance of important habitat) are more
likely to be significant if they last more than one diel cycle or recur
on subsequent days (Southall et al., 2007). Consequently, a behavioral
response lasting less than one day and not recurring on subsequent days
is not considered particularly severe unless it could directly affect
reproduction or survival (Southall et al., 2007). Operational
activities (i.e., DP and weathervaning) are not anticipated to occur at
the Port on consecutive days. Once Neptune is at full operations, SRV
shipments would occur every 4-8 days, with thruster use needed for a
couple of hours during each shipment. Weathervaning is anticipated to
be needed during only a small portion of the shipments. Therefore,
Neptune will not be creating increased sound levels in the marine
environment for several days at a time.
Of the 14 marine mammal species likely to occur in the area, four
are listed as endangered under the ESA: North Atlantic right, humpback,
fin, and sei whales. These four species, as well as the northern
coastal stock of bottlenose dolphin, are also considered depleted under
the MMPA. The affected humpback and North Atlantic right whale
populations have been increasing in recent years. However, there is
insufficient data to determine population trends for the other depleted
species in the project area. There are several well known North
Atlantic right
[[Page 34171]]
whale feeding grounds in the CCB and GSC. However, they are outside of
the area of the Port. As mentioned previously, to the greatest extent
practicable, all maintenance/repair work will be scheduled during the
May 1 to November 30 time frame to avoid peak right whale feeding in
these areas, which occur close to the Neptune Port. Additionally, to
protect North Atlantic right whales (and other marine mammals in the
project area), Neptune must cease sound emitting activities and/or
reduce vessel speed if animals enter into the designated zones. No
mortality or injury is expected to occur and due to the nature, degree,
and context of the Level B harassment anticipated, the activity is not
expected to impact rates of recruitment or survival.
The population estimates for the species that may be taken by
harassment from the most recent U.S. Atlantic SARs were provided in
Table 2 in this document. From the most conservative estimates of both
marine mammal densities in the project area and the size of the 120-dB
ZOI, the maximum calculated number of individual marine mammals for
each species that could potentially be harassed annually is small
relative to the overall population sizes (9.2 percent for humpback
whales, 6.6-7 percent for North Atlantic right whales, and no more than
3.1 percent of any other species).
As stated previously, NMFS' practice has been to apply the 120 dB
re 1 [micro]Pa (rms) received level threshold for underwater continuous
sound levels to determine whether take by Level B harassment occurs.
However, not all animals react to sounds at this low level, and many
will not show strong reactions (and in some cases any reaction) until
sounds are much stronger. Southall et al. (2007) provide a severity
scale for ranking observed behavioral responses of both free-ranging
marine mammals and laboratory subjects to various types of
anthropogenic sound (see Table 4 in Southall et al. (2007)). Tables 15,
17, 19, and 21 in Southall et al. (2007) outline the numbers of low-
frequency, mid-frequency, and high-frequency cetaceans and pinnipeds in
water, respectively, reported as having behavioral responses to non-
pulses in 10-dB received level increments. These tables illustrate,
especially for cetaceans, that more intense observed behavioral
responses did not occur until sounds were higher than 120 dB (rms).
Many of the animals had no observable response at all when exposed to
anthropogenic sound at levels of 120 dB (rms) or even higher.
The take estimates presented in this document are likely an
overestimate of the actual number of animals that may be taken by Level
B harassment in any given year. First, NMFS used the highest value SPUE
for the season with the highest abundance of each species to determine
relative abundance from the NCCOS (2006) report. However, the SPUE
quantiles used in that report had very large ranges. For example, for
humpback whales, NMFS used the SPUE quantile with a value of 0.1-11.8
but used 11.8 as the SPUE to determine density. In most cases, the
highest value SPUE in any given quantile is many magnitudes larger than
the minimum value in that particular quantile. Second, the estimates
assume that repairs will be required every year, which may not be the
case. For the reasons discussed in this section of the document (and
elsewhere), the take estimates presented by NMFS are likely an
overestimate.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the mitigation and monitoring
measures, NMFS finds that operation, including repair and maintenance
activities, of the Neptune Port will result in the incidental take of
small numbers of marine mammals, by Level B harassment only, and that
the total taking from Neptune's activities will have a negligible
impact on the affected species or stocks.
Impact on Availability of Affected Species or Stock for Taking for
Subsistence Uses
There are no relevant subsistence uses of marine mammals implicated
by this action. Therefore, NMFS has determined that the total taking of
affected species or stocks would not have an unmitigable adverse impact
on the availability of such species or stocks for taking for
subsistence purposes.
Endangered Species Act (ESA)
On January 12, 2007, NMFS concluded consultation with MARAD and
USCG under section 7 of the ESA on the proposed construction and
operation of the Neptune LNG facility and issued a Biological Opinion.
The finding of that consultation was that the construction and
operation of the Neptune LNG terminal may adversely affect, but is not
likely to jeopardize, the continued existence of northern right,
humpback, and fin whales, and is not likely to adversely affect sperm,
sei, or blue whales and Kemp's ridley, loggerhead, green, or
leatherback sea turtles.
On March 2, 2010, MARAD and USCG sent a letter to NMFS requesting
reinitiation of the ESA section 7 consultation. MARAD and USCG
determined that certain routine planned operations and maintenance
activities, inspections, surveys, and unplanned repair work on the
Neptune Deepwater Port pipelines and flowlines, as well as any other
Neptune Deepwater Port component (including buoys, risers/umbilicals,
mooring systems, and sub-sea manifolds), may constitute a modification
not previously considered in the 2007 Biological Opinion. Construction
of the Port facility has been completed, and, therefore, is no longer
part of the proposed action. On July 12, 2010, NMFS' Northeast Regional
Office issued a Biological Opinion, which concludes that the operation
of the Neptune LNG deepwater port, including required maintenance and
repair work, is likely to adversely affect, but is not likely to
jeopardize the continued existence of the 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. Although MARAD served as the
lead Federal agency for the section 7 consultation, the Biological
Opinion also considered the effects of permits issued by the Army Corps
of Engineers, the Federal Energy Regulatory Commission, and the
Environmental Protection Agency for various portions of the maintenance
and operation of the Port and associated pipeline, as well as NMFS'
issuance of authorizations to Neptune under the MMPA for the take of
marine mammals incidental to Port operations and maintenance/repairs.
NMFS has determined that issuance of these regulations and subsequent
LOAs will not have any impacts beyond those analyzed in the 2010
Biological Opinion. NMFS' Northeast Regional Office will issue an
Incidental Take Statement upon issuance of the LOA.
National Environmental Policy Act (NEPA)
MARAD and the USCG released a Final EIS/Environmental Impact Report
(EIR) for the proposed Neptune LNG Deepwater Port (see ADDRESSES). A
notice of availability of the Final EIS/EIR was published by MARAD on
November 2, 2006 (71 FR 64606). The Final EIS/EIR provides detailed
[[Page 34172]]
information on the proposed project facilities, construction methods,
and analysis of potential impacts on marine mammals.
NMFS was a cooperating agency in the preparation of the Draft and
Final EISs 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 issuance of authorizations pursuant to sections
101(a)(5)(A) and (D) of the MMPA for the construction and operation of
the Neptune LNG Port facility. 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 operation and repair and
maintenance of the Neptune Port. NMFS has determined that the FEIS
sufficiently covers the activities considered in this final rule.
Classification
The Office of Management and Budget (OMB) has determined that this
final rule is not significant for purposes of Executive Order 12866.
At the proposed rule stage, the Chief Counsel for Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that this rule, if adopted, would not
have a significant economic impact on a substantial number of small
entities. Neptune LNG LLC is the only entity that would be subject to
the requirements in these regulations. Neptune is one of several
companies at GDF SUEZ Energy North America (GSENA), which itself is a
business division of GDF SUEZ Energy Europe & International. GSENA has
more than 2,000 employees in North America alone. Therefore, it is not
a small governmental jurisdiction, small organization, or small
business, as defined by the Regulatory Flexibility Act. Because of this
certification, a regulatory flexibility analysis is not required and
none has been prepared.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act (PRA) unless that collection of information
displays a currently valid OMB control number. This final rule contains
collection-of-information requirements subject to the provisions of the
PRA. These requirements have been approved by OMB under control number
0648-0151 and include applications for regulations, subsequent LOAs,
and reports.
List of Subjects in 50 CFR Part 217
Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and recordkeeping requirements, Seafood,
Transportation.
Dated: June 7, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, 50 CFR part 217 is amended
as follows:
PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS
INCIDENTAL TO SPECIFIED ACTIVITIES
0
1. The authority citation for part 217 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq.
0
2. Subpart R is added to part 217 to read as follows:
Subpart R--Taking of Marine Mammals Incidental to Operation and
Maintenance of the Neptune Liquefied Natural Gas Facility Off
Massachusetts
Sec.
217.170 Specified activity and specified geographical region.
217.171 Effective dates.
217.172 Permissible methods of taking.
217.173 Prohibitions.
217.174 Mitigation.
217.175 Requirements for monitoring and reporting.
217.176 Applications for Letters of Authorization.
217.177 Letters of Authorization.
217.178 Renewal of Letters of Authorization and adaptive management.
217.179 Modifications of Letters of Authorization.
Subpart R--Taking of Marine Mammals Incidental to Operation and
Maintenance of a Liquefied Natural Gas Facility Off Massachusetts
Sec. 217.170 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to Neptune LNG LLC
(Neptune) and those persons it authorizes to conduct activities on its
behalf for the taking of marine mammals that occurs in the area
outlined in paragraph (b) of this section and that occur incidental to
commissioning and operation, including maintenance and repair
activities, at the Neptune Deepwater Port (Port).
(b) The taking of marine mammals by Neptune may be authorized in a
Letter of Authorization only if it occurs at the Neptune Deepwater Port
within Outer Continental Shelf blocks NK 19-04 6525 and NK 19-04 6575,
which are located at approximately 42[deg]28'09'' N. lat and
70[deg]36'22'' W. long.
Sec. 217.171 Effective dates.
Regulations in this subpart are effective from July 11, 2011,
through August 10, 2016.
Sec. 217.172 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Sec. Sec.
216.106 and 217.177 of this chapter, the Holder of the Letter of
Authorization (hereinafter ``Neptune'') may incidentally, but not
intentionally, take marine mammals within the area described in Sec.
217.170(b), provided the activity is in compliance with all terms,
conditions, and requirements of the regulations in this subpart and the
appropriate Letter of Authorization.
(b) The incidental take of marine mammals under the activities
identified in Sec. 217.170(a) is limited to the following species and
is limited to Level B Harassment:
(1) Mysticetes:
(i) North Atlantic right whale (Eubalaena glacialis)--120 (an
average of 24 annually).
(ii) Fin whale (Balaenoptera physalus)--145 (an average of 29
annually).
(iii) Humpback whale (Megaptera novaeangliae)--390 (an average of
78 annually).
(iv) Minke whale (Balaenoptera acutorostrata)--90 (an average of 18
annually).
(v) Sei whale (Balaenoptera borealis)--60 (an average of 12
annually).
(2) Odontocetes:
(i) Long-finned pilot whale (Globicephala melas)--595 (an average
of 119 annually).
(ii) Atlantic white-sided dolphin (Lagenorhynchus acutus)--1,935
(an average of 387 annually).
(iii) Bottlenose dolphin (Tursiops truncatus)--50 (an average of 10
annually).
(iv) Common dolphin (Delphinus delphis)--100 (an average of 20
annually).
(v) Risso's dolphin (Grampus griseus)--100 (an average of 20
annually).
(vi) Killer whale (Orcinus orca)--100 (an average of 20 annually).
(vii) Harbor porpoise (Phocoena phocoena)--25 (an average of 5
annually).
(3) Pinnipeds:
(i) Harbor seal (Phoca vitulina)--75 (an average of 15 annually).
[[Page 34173]]
(ii) Gray seal (Halichoerus grypus)--75 (an average of 15
annually).
Sec. 217.173 Prohibitions.
Notwithstanding takings contemplated in Sec. 217.170 and
authorized by a Letter of Authorization issued under Sec. Sec. 216.106
and 217.177 of this chapter, no person in connection with the
activities described in Sec. 217.170 may:
(a) Take any marine mammal not specified in Sec. 217.172(b);
(b) Take any marine mammal specified in Sec. 217.172(b) other than
by incidental, unintentional Level B Harassment;
(c) Take a marine mammal specified in Sec. 217.172(b) if such
taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a Letter of Authorization issued under
Sec. Sec. 216.106 and 217.177 of this chapter.
Sec. 217.174 Mitigation.
(a) When conducting the activities identified in Sec. 217.170(a),
the mitigation measures contained in the Letter of Authorization issued
under Sec. Sec. 216.106 and 217.177 must be implemented. These
mitigation measures include but are not limited to:
(1) Major Repairs (May 1-November 30):
(i) During repairs, if a marine mammal is detected within 0.6 mi (1
km) of the repair vessel (or acoustically), the vessel superintendent
or on-deck supervisor shall be notified immediately. The vessel's crew
will be put on a heightened state of alert. The marine mammal will be
monitored constantly to determine if it is moving toward the repair
area.
(ii) Repair vessels shall cease any movement in the area if a
marine mammal other than a right whale is sighted within or approaching
to a distance of 100 yd (91 m) from the operating repair vessel. Repair
vessels shall cease any movement in the construction area if a right
whale is sighted within or approaching to a distance of 500 yd (457 m)
from the operating vessel. Vessels transiting the repair area, such as
pipe haul barge tugs, shall also be required to maintain these
separation distances.
(iii) Repair vessels shall cease all sound emitting activities if a
marine mammal other than a right whale is sighted within or approaching
to a distance of 100 yd (91 m) or if a right whale is sighted within or
approaching to a distance of 500 yd (457 m), from the operating repair
vessel. The back-calculated source level, based on the most
conservative cylindrical model of acoustic energy spreading, is
estimated to be 139 dB re 1 [mu]Pa.
(iv) Repair activities may resume after the marine mammal is
positively reconfirmed outside the established zones (either 500 yd
(457 m) or 100 yd (91 m), depending upon species) or if the marine
mammal has not been re-sighted in the established zones for 30 minutes.
(v) While under way, all repair vessels shall remain 500 yd (457 m)
away from right whales and 100 yd (91 m) away from all other marine
mammals, unless constrained by human safety concerns or navigational
constraints.
(vi) All repair vessels 300 gross tons or greater must maintain a
speed of 10 knots (18.5 km/hr) or less. Vessels less than 300 gross
tons carrying supplies or crew between the shore and the repair site
must contact the Mandatory Ship Reporting System, the U.S. Coast Guard
(USCG), or the protected species observers (PSOs) at the repair site
before leaving shore for reports of recent right whale sightings or
active Dynamic Management Areas (DMAs) and, consistent with navigation
safety, restrict speeds to 10 knots (18.5 km/hr) or less within 5 mi (8
km) of any recent sighting location and within any existing DMA.
(vii) Vessels transiting through the Cape Cod Canal and Cape Cod
Bay (CCB) between January 1 and May 15 must reduce speeds to 10 knots
(18.5 km/hr) or less, follow the recommended routes charted by NOAA to
reduce interactions between right whales and shipping traffic, and
avoid aggregations of right whales in the eastern portion of CCB.
(2) Major Repairs (December 1-April 30): If unplanned/emergency
repair activities cannot be conducted between May 1 and November 30,
then Neptune shall implement the following mitigation measures in
addition to those listed in Sec. 217.174(a)(1)(i) through (vii):
(i) If on-board PSOs do not have at least 0.6-mi (1-km) visibility,
they shall call for a shutdown of repair activities. If dive operations
are in progress, then they shall be halted and divers brought on board
until visibility is adequate to see a 0.6-mi (1-km) range. At the time
of shutdown, the use of thrusters must be minimized to the lowest level
needed to maintain personnel safety. If there are potential safety
problems due to the shutdown, the captain must decide what operations
can safely be shut down and shall document such activities in the data
log.
(ii) Prior to leaving the dock to begin transit, the barge must
contact one of the PSOs on watch to receive an update of sightings
within the visual observation area. If the PSO has observed a North
Atlantic right whale within 30 minutes of the transit start, the vessel
shall hold for 30 minutes and again seek clearance to leave from the
PSOs on board. PSOs will assess whale activity and visual observation
ability at the time of the transit request to clear the barge for
release and will grant clearance if no North Atlantic right whales have
been sighted in the last 30 minutes in the visual observation area.
(iii) Neptune or its contractor shall provide a half-day training
course to designated crew members assigned to the transit barges and
other support vessels who will have responsibilities for watching for
marine mammals. This course shall cover topics including, but not
limited to, descriptions of the marine mammals found in the area,
mitigation and monitoring requirements contained in the Letter of
Authorization, sighting log requirements, and procedures for reporting
injured or dead marine mammals. These designated crew members shall be
required to keep watch on the bridge and immediately notify the
navigator of any whale sightings. All watch crew members shall sign
into a bridge log book upon start and end of watch. Transit route,
destination, sea conditions, and any protected species sightings/
mitigation actions during watch shall be recorded in the log book. Any
whale sightings within 3,281 ft (1,000 m) of the vessel shall result in
a high alert and slow speed of 4 knots (7.4 km/hr) or less. A sighting
within 2,461 ft (750 m) shall result in idle speed and/or ceasing all
movement.
(iv) The material barges and tugs used for repair work shall
transit from the operations dock to the work sites during daylight
hours, when possible, provided the safety of the vessels is not
compromised. Should transit at night be required, the maximum speed of
the tug shall be 5 knots (9.3 km/hr).
(v) Consistent with navigation safety, all repair vessels must
maintain a speed of 10 knots (18.5 km/hr) or less during daylight
hours. All vessels shall operate at 5 knots (9.3 km/hr) or less at all
times within 3.1 mi (5 km) of the repair area.
(3) Speed Restrictions in Seasonal Management Areas (SMAs): Repair
vessels and shuttle regasification vessels (SRVs) shall transit at 10
knots (18.5 km/hr) or less in the following seasons and areas, which
either correspond to or are more restrictive than the times and areas
in NMFS' regulations at 50 CFR 224.105 that implement speed
[[Page 34174]]
restrictions to reduce the likelihood and severity of ship strikes of
right whales:
(i) CCB SMA from January 1 through May 15, which includes all
waters in CCB, extending to all shorelines of the Bay, with a northern
boundary of 42[deg] 12' N. latitude;
(ii) Off Race Point SMA year round, which is bounded by straight
lines connecting the following coordinates in the order stated:
42[deg]30' N. 69[deg]45' W.; thence to 42[deg]30' N. 70[deg]30' W.;
thence to 42[deg]12' N. 70[deg]30' W.; thence to 42[deg]12' N.
70[deg]12' W.; thence to 42[deg]04' 56.5'' N. 70[deg]12' W.; thence
along mean high water line and inshore limits of COLREGS limit to a
latitude of 41[deg]40' N.; thence due east to 41[deg]41' N. 69[deg]45'
W.; thence back to starting point; and
(iii) Great South Channel (GSC) SMA from April 1 through July 31,
which is bounded by straight lines connecting the following coordinates
in the order stated:
(A) 42[deg]30' N. 69[deg]45' W.
(B) 41[deg]40' N. 69[deg]45' W.
(C) 41[deg]00' N. 69[deg]05' W.
(D) 42[deg]09' N. 67[deg]08' 24'' W.
(E) 42[deg]30' N. 67[deg]27' W.
(F) 42[deg]30' N. 69[deg]45' W.
(4) Additional Mitigation Measures:
(i) When approaching and departing from the Neptune Port, SRVs
shall use the Boston Traffic Separation Scheme (TSS) starting and
ending at the entrance to the GSC. Upon entering the TSS, the SRV shall
go into a ``heightened awareness'' mode of operation.
(ii) In the event that a whale is visually observed within 0.6 mi
(1 km) of the Port or a confirmed acoustic detection is reported on
either of the two auto-detection buoys (ABs) closest to the Port,
departing SRVs shall delay their departure from the Port, unless
extraordinary circumstances, defined in the Marine Mammal Detection,
Monitoring, and Response Plan (the Plan), require that the departure is
not delayed. The departure delay shall continue until either the
observed whale has been visually (during daylight hours) confirmed as
more than 0.6 mi (1 km) from the Port or 30 minutes have passed without
another confirmed detection either acoustically within the acoustic
detection range of the two ABs closest to the Port or visually within
0.6 mi (1 km) from Neptune.
(iii) SRVs that are approaching or departing from the Port and are
within the Area to be Avoided (ATBA) surrounding Neptune shall remain
at least 0.6 mi (1 km) away from any visually detected right whales and
at least 100 yd (91 m) away from all other visually detected whales
unless extraordinary circumstances, as defined in Section 1.2 of the
Plan, require that the vessel stay its course. The ATBA is defined in
33 CFR 150.940. It is the largest area of the Port marked on nautical
charts, and it is enforceable by the USCG in accordance with the 33 CFR
150.900 regulations. The Vessel Master shall designate at least one
lookout to be exclusively and continuously monitoring for the presence
of marine mammals at all times while the SRV is approaching or
departing Neptune.
(iv) Neptune shall ensure that other vessels providing support to
Port operations during regasification activities that are approaching
or departing from the Port and are within the ATBA shall be operated so
as to remain at least 0.6 mi (1 km) away from any visually detected
right whales and at least 100 yd (91 m) from all other visually
detected whales.
(v) PSOs shall direct a moving vessel to slow to idle if a baleen
whale is seen less than 0.6 mi (1 km) from the vessel.
(vi) Use of lights during repair or maintenance activities shall be
limited to areas where work is actually occurring, and all other lights
must be extinguished. Lights must be downshielded to illuminate the
deck and shall not intentionally illuminate surrounding waters, so as
not to attract whales or their prey to the area.
(vii) Neptune must immediately suspend any repair and maintenance
or operations activities if a dead or injured marine mammal is found in
the vicinity of the project area, and the death or injury of the animal
could be attributable to the Port facility activities. Upon finding a
dead or injured marine mammal, Neptune must contact NMFS, the Northeast
Stranding and Disentanglement Program, and the USCG. NMFS will review
the documentation submitted by the PSO and attempt to attribute a cause
of death. Activities shall not resume until review and approval has
been given by NMFS.
(5) Additional mitigation measures as contained in a Letter of
Authorization issued under Sec. Sec. 216.106 and 217.177 of this
chapter.
(b) [Reserved]
Sec. 217.175 Requirements for monitoring and reporting.
(a) Visual Monitoring Program:
(1) Neptune shall employ PSOs during maintenance- and repair-
related activities on each vessel that has a dynamic positioning
system. Two (2) PSOs shall be on-duty at all times. All PSOs must
receive NMFS-approved PSO training and be approved in advance by NMFS
after a review of their qualifications.
(2) Qualifications for these PSOs shall include direct field
experience on a marine mammal observation vessel and/or aerial surveys
in the Atlantic Ocean/Gulf of Mexico.
(3) The PSOs (one primary and one secondary) are responsible for
visually locating marine mammals at the ocean's surface and, to the
extent possible, identifying the species. The primary PSO shall act as
the identification specialist, and the secondary PSO shall serve as
data recorder and also assist with identification. Both PSOs shall have
responsibility for monitoring for the presence of marine mammals.
(4) The PSOs shall monitor the maintenance/repair area using the
naked eye, hand-held binoculars, and/or power binoculars.
(5) The PSOs shall scan the ocean surface during maintenance- and
repair-related activities and record all sightings in marine mammal
field sighting logs. Observations of marine mammals shall be identified
to the species or the lowest taxonomic level possible, and their
relative position in relation to the vessel shall be recorded.
(6) While a SRV is navigating within the designated TSS, three
people have lookout duties on or near the bridge of the ship including
the SRV Master, the Officer-of-the-Watch, and the Helmsman on watch.
(7) In addition to standard watch procedures, while the SRV is
within the ATBA and/or while actively engaging in the use of thrusters,
an additional lookout shall be designated to exclusively and
continuously monitor for marine mammals. Once the SRV is moored and
regasification activities have begun, the vessel is no longer
considered in ``heightened awareness'' status.
(8) At the conclusion of regasification activities, when the SRV is
prepared to depart from the Port, the Master shall once again ensure
that the responsibilities as defined in the Plan are carried out. All
sightings of marine mammals by the designated lookout, individuals
posted to navigational lookout duties, and/or any other crew member
while the SRV is within the TSS, in transit to the ATBA, within the
ATBA, and/or when actively engaging in the use of thrusters shall be
immediately reported to the Officer-of-the-Watch who shall then alert
the Master.
(b) Passive Acoustic Monitoring (PAM) Program:
(1) Neptune shall work with NMFS, Stellwagen Bank National Marine
Sanctuary (SBNMS), and other scientists
[[Page 34175]]
to install and monitor an array of passive acoustic detection buoys in
the Boston TSS that meets the criteria specified in the recommendations
developed by NOAA through consultation with the USCG under the National
Marine Sanctuary Act (NMSA). The system shall provide near real-time
information on the presence of vocalizing whales in the shipping lanes.
(2) Neptune shall work with NMFS, SBNMS, and other scientists to
monitor the archival array of acoustic recording units (ARUs), or
``pop-ups,'' around the Port that meets the criteria specified in the
program developed by NOAA in consultation with the USCG under the NMSA.
The ARUs shall remain in place for 5 years following initiation of
operations to monitor the actual acoustic output of port operations and
alert NOAA to any unanticipated adverse effects of port operations,
such as large-scale abandonment of the area or greater acoustic impacts
than predicted through modeling.
(3) Passive acoustic devices shall be actively monitored for
detections by a NMFS-approved bioacoustic technician.
(4) Repair Activity PAM Measures: PAM, in addition to that required
in this section of these regulations, shall be required, on a case-by-
case basis, during both planned and emergency repair activities in
order to better detect right whales in the area of repair work and to
collect additional data on the noise levels produced during repair and
maintenance activities.
(i) Neptune shall work with NOAA (NMFS and SBNMS) to evaluate when
to install and maintain an array of real-time passive acoustic
detection buoys to provide early warnings for potential occurrence of
right whales in the vicinity of the repair area. The number of passive
acoustic detection buoys installed around the activity site, if deemed
necessary, shall be commensurate with the type and spatial extent of
maintenance/repair work required, but must be sufficient to detect
vocalizing right whales within the 120-dB impact zone.
(ii) Neptune shall provide NMFS with empirically measured source
level data for all sources of noise associated with Port maintenance
and repair activities. Measurements shall be carefully planned and
coordinated with noise-producing activities and shall be collected from
the passive detection network.
(5) SRV Regasification PAM Measures: Source levels associated with
dynamic positioning of SRVs at the buoys shall be estimated using
empirical measurements collected from a platform positioned as close as
practicable to thrusters while in use.
(c) Neptune must implement the following reporting requirements:
(1) Because the Port is within the Mandatory Ship Reporting Area
(MSRA), all SRVs transiting to and from the Port must report their
activities to the mandatory reporting section of the USCG to remain
apprised of North Atlantic right whale movements within the area. All
vessels entering and exiting the MSRA must report their activities to
WHALESNORTH. Any North Atlantic right whale sightings must be reported
to the NMFS Sighting Advisory System.
(2) Repair Work Reports. (i) For major repair work associated with
the pipeline lateral or other port components, Neptune shall notify the
appropriate NOAA personnel as soon as practicable after it is
determined that repair work must be conducted.
(ii) During maintenance and repair of the pipeline lateral or other
port components, weekly status reports must be provided to NOAA. The
weekly report must include data collected for each distinct marine
mammal species observed in the project area during the period of the
repair activity. The weekly reports shall include the following:
(A) The location, time, and nature of the pipeline lateral
activities;
(B) Whether the dynamic position (DP) system was operated and, if
so, the number of thrusters used and the time and duration of DP
operation;
(C) Marine mammals observed in the area (number, species, age
group, and initial behavior);
(D) The distance of observed marine mammals from the repair
activities;
(E) Observed marine mammal behaviors during the sighting;
(F) Whether any mitigation measures were implemented;
(G) Weather conditions (sea state, wind speed, wind direction,
ambient temperature, precipitation, and percent cloud cover, etc.);
(H) Condition of the marine mammal observation (visibility and
glare); and
(I) Details of passive acoustic detections and any action taken in
response to those detections.
(iii) For all minor repair work, Neptune must notify NOAA regarding
when and where the repair/maintenance work is to take place along with
a tentative schedule and description of the work, as soon as
practicable after it is determined that repair work must be conducted.
Vessel crews shall record/document any marine mammal sightings during
the work period.
(iv) At the conclusion of all minor repair work, Neptune shall
provide NOAA with a report describing any marine mammal sightings, the
type of work taking place when the sighting occurred, and any avoidance
actions taken during the repair/maintenance work.
(3) Incident Reports. During all phases of project repair/
maintenance activities and operation, sightings of any injured or dead
marine mammals must be reported immediately to the Chief, Permits,
Conservation and Education Division or staff member and the Northeast
Stranding and Disentanglement Program, regardless of whether the injury
or death is caused by project activities. If the injury or death was
caused by a project vessel (e.g., SRV, support vessel, or construction
vessel), the USCG must be notified immediately, and a full report must
be provided to NMFS. Activities will not resume until review and
approval has been given by NMFS. The report must include the following
information:
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) The name and type of vessel involved;
(iii) The vessel's speed during the incident;
(iv) Description of the incident;
(v) Water depth;
(vi) Environmental conditions (e.g., wind speed and direction, sea
state, cloud cover, and visibility);
(vii) Species identification or description of the animal;
(viii) The fate of the animal; and
(ix) Photographs or video footage of the animal (if equipment is
available).
(4) Annual Reports. (i) An annual report on marine mammal
monitoring and mitigation shall be submitted to NMFS, Office of
Protected Resources, and NMFS, Northeast Regional Office (specific
contact information to be provided in Letter of Authorization), on
August 1 of each year. The annual report shall cover the time period of
January 1 through December 31 of each year of activity.
(ii) The annual report shall include data collected for each
distinct marine mammal species observed in the project area in the
Massachusetts Bay during the period of Port operations and repair/
maintenance activities. The annual report shall also include a
description of marine mammal behavior, overall numbers of individuals
observed, frequency of observation, and any behavioral changes and the
context of the changes relative to operation and repair/maintenance
activities. Additional information that shall be recorded by Neptune or
its contractor during operations and repair/maintenance activities and
contained in the reports include: results of empirical
[[Page 34176]]
source level estimation for thrusters while in use and activities
associated with maintenance and repair events, date and time of marine
mammal detections (visually or acoustically), weather conditions,
species identification, approximate distance from the source, activity
of the vessel when a marine mammal is sighted, and whether thrusters
were in use and, if so, how many at the time of the sighting.
(5) Five-year Comprehensive Report. (i) Neptune shall submit a
draft comprehensive final report to NMFS, Office of Protected
Resources, and NMFS, Northeast Regional Office (specific contact
information to be provided in Letter of Authorization), 180 days prior
to the expiration of the regulations. This comprehensive technical
report shall provide full documentation of methods, results, and
interpretation of all monitoring during the first four and a half years
of the LOA.
(ii) Neptune shall submit a revised final comprehensive technical
report, including all monitoring results during the entire period of
the LOAs, 90 days after the end of the period of effectiveness of the
regulations to NMFS, Office of Protected Resources, and NMFS, Northeast
Regional Office (specific contact information to be provided in Letter
of Authorization).
Sec. 217.176 Applications for Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, the U.S. Citizen (as defined by Sec. 216.103) conducting
the activity identified in Sec. 217.170(a) (i.e., Neptune) must apply
for and obtain either an initial Letter of Authorization in accordance
with Sec. 217.177 or a renewal under Sec. 217.178.
(b) [Reserved]
Sec. 217.177 Letters of Authorization.
(a) A Letter of Authorization, unless suspended or revoked, shall
be valid for a period of time not to exceed the period of validity of
this subpart.
(b) The Letter of Authorization shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact on the
species, its habitat, and on the availability of the species for
subsistence uses (i.e., mitigation); and
(3) Requirements for mitigation, monitoring and reporting.
(c) Issuance and renewal of the Letter of Authorization shall be
based on a determination that the total number of marine mammals taken
by the activity as a whole will have no more than a negligible impact
on the affected species or stock of marine mammal(s).
Sec. 217.178 Renewal of Letters of Authorization and adaptive
management.
(a) A Letter of Authorization issued under Sec. 216.106 and Sec.
217.177 of this chapter for the activity identified in Sec. 217.170(a)
shall be renewed upon request by the applicant or determination by NMFS
and the applicant that modifications are appropriate pursuant to the
adaptive management component of these regulations, provided that:
(1) NMFS is notified that the activity described in the application
submitted under Sec. 217.176 will be undertaken and that there will
not be a substantial modification to the described work, mitigation or
monitoring undertaken during the upcoming 12 months;
(2) NMFS recieves the monitoring reports required under Sec.
217.175(c)(1)-(4); and
(3) NMFS determines that the mitigation, monitoring and reporting
measures required under Sec. Sec. 217.174 and 217.175 and the Letter
of Authorization issued under Sec. Sec. 216.106 and 217.177 of this
chapter were undertaken and will be undertaken during the upcoming
annual period of validity of a renewed Letter of Authorization.
(b) If either a request for a renewal of a Letter of Authorization
issued under Sec. Sec. 216.106 and 217.178 or a determination by NMFS
and the applicant that modifications are appropriate pursuant to the
adaptive management component of these regulations indicates that a
substantial modification, as determined by NMFS, to the described work,
mitigation or monitoring undertaken during the upcoming season will
occur, NMFS will provide the public a period of 30 days for review and
comment on the request. Review and comment on renewals of Letters of
Authorization are restricted to:
(1) New cited information and data indicating that the
determinations made in this document are in need of reconsideration,
and
(2) Proposed substantive changes to the mitigation and monitoring
requirements contained in these regulations or in the current Letter of
Authorization.
(c) A notice of issuance or denial of a renewal of a Letter of
Authorization will be published in the Federal Register.
(d) Adaptive Management--NMFS may modify or augment the existing
mitigation or monitoring measures (after consulting with Neptune
regarding the practicability of the modifications) if doing so creates
a reasonable likelihood of more effectively accomplishing the goals of
mitigation and monitoring set forth in the preamble of these
regulations. Below are some of the possible sources of new data that
could contribute to the decision to modify the mitigation or monitoring
measures:
(1) Results from Neptune's monitoring from the previous year;
(2) Results from general marine mammal and sound research; or
(3) Any information which reveals that marine mammals may have been
taken in a manner, extent or number not authorized by these regulations
or subsequent LOAs.
Sec. 217.179 Modifications of Letters of Authorization.
(a) Except as provided in paragraph (b) of this section, no
substantive modification (including withdrawal or suspension) to the
Letter of Authorization issued by NMFS, pursuant to Sec. Sec. 216.106
and 217.177 of this chapter and subject to the provisions of this
subpart shall be made until after notification and an opportunity for
public comment has been provided. For purposes of this paragraph, a
renewal of a Letter of Authorization under Sec. 217.178, without
modification (except for the period of validity), is not considered a
substantive modification.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species
or stocks of marine mammals specified in Sec. 217.172(b), a Letter of
Authorization issued pursuant to Sec. Sec. 216.106 and 217.177 of this
chapter may be substantively modified without prior notification and an
opportunity for public comment. Notification will be published in the
Federal Register within 30 days subsequent to the action.
[FR Doc. 2011-14614 Filed 6-10-11; 8:45 am]
BILLING CODE 3510-22-P