80260 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 0808041026–9015–01] 

RIN 0648–AX09 

Taking and Importing Marine 

Mammals; Taking Marine Mammals 

Incidental to Operation and 

Maintenance of a Liquefied Natural 

Gas Facility Off Massachusetts 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS has received a request 

from Neptune LNG LLC (Neptune) for 

authorization for the take of marine 

mammals, by harassment, incidental to 

port commissioning and operations, 

including maintenance and repair 

activities, at its Neptune Deepwater Port 

(the Port) in Massachusetts Bay for the 

period of July 2011 through July 2016. 

Pursuant to the Marine Mammal 

Protection Act (MMPA), NMFS is 

proposing regulations to govern that 

take and requests information, 

suggestions, and comments on these 

proposed regulations. 

DATES: Comments and information must 

be received no later than February 4, 

2011. 

ADDRESSES: You may submit comments, 

identified by 0648–AX09, by any one of 

the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal: http:// 

www.regulations.gov. 

• Hand delivery or mailing of paper, 

disk, or CD–ROM comments should be 

addressed to Michael Payne, Chief, 

Permits, Conservation and Education 

Division, Office of Protected Resources, 

National Marine Fisheries Service, 1315 

East-West Highway, Silver Spring, MD 

20910. 

Comments regarding any aspect of the 

collection of information requirement 

contained in this proposed rule should 

be sent to NMFS via one of the means 

stated here and to the Office of 

Information and Regulatory Affairs, 

NEOB–10202, Office of Management 

and Budget (OMB), Attn: Desk Office, 

Washington, DC 20503, 

OIRA@omb.eop.gov. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

PDF file formats only. 

FOR FURTHER INFORMATION CONTACT: 

Candace Nachman, Office of Protected 

Resources, NMFS, (301) 713–2289, ext 

156. 

SUPPLEMENTARY INFORMATION: 

Availability 

A copy of Neptune’s application may 

be obtained by writing to the address 

specified above (see ADDRESSES), calling 

the contact listed above (see FOR

FURTHER INFORMATION CONTACT), or 

visiting the Internet at: http:// 

www.nmfs.noaa.gov/pr/permits/ 

incidental.htm. To help NMFS process 

and review comments more efficiently, 

please use only one method to submit 

comments. 

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.’’ 

Background 

Sections 101(a)(5)(A) and (D) of the 

MMPA (16 U.S.C. 1361 et seq.) direct 

the Secretary of Commerce to allow, 

upon request, the incidental, but not 

intentional, taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and either regulations are 

issued or, if the taking is limited to 

harassment, a notice of a proposed 

authorization is provided to the public 

for review. 

Authorization for incidental takings 

shall be granted if NMFS finds that the 

taking will have a negligible impact on 

the species or stock(s), will not have an 

unmitigable adverse impact on the 

availability of the species or stock(s) for 

subsistence uses (where relevant), and if 

the permissible methods of taking and 

requirements pertaining to the 

mitigation, monitoring and reporting of 

such takings are set forth. NMFS has 

defined ‘‘negligible impact’’ in 50 CFR 

216.103 as ‘‘* * * an impact resulting 

from the specified activity that cannot 

be reasonably expected to, and is not 

reasonably likely to, adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival.’’ 

Except with respect to certain 

activities not pertinent here, the MMPA 

defines ‘‘harassment’’ as: 

Any act of pursuit, torment, or annoyance 

which (i) has the potential to injure a marine 

mammal or marine mammal stock in the wild 

[‘‘Level A harassment’’]; or (ii) has the 

potential to disturb a marine mammal or 

marine mammal stock in the wild by causing 

disruption of behavioral patterns, including, 

but not limited to, migration, breathing, 

nursing, breeding, feeding, or sheltering 

[‘‘Level B harassment’’]. 

Summary of Request 

On 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 is the one available for 

public comment (see ADDRESSES) and 

which was considered by NMFS for 

these proposed 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 intends to 

commission its second shuttle and 

regasification vessel (SRV) and conduct 

limited port operations. There is also a 


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chance that some maintenance and 

repairs may be conducted on the Port 

facility. 

During the period of these proposed 

regulations (July 2011–July 2016), 

Neptune intends to continue port 

operations 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 has requested an 

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 preliminarily 

determined that it would be appropriate 

in this proposed rule to authorize take, 

by Level B harassment only, incidental 

to operations and maintenance activities 

of these two species as well. 

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. Commissioning 

of the second SRV is scheduled to occur 

in early 2011 and so would occur under 

the current IHA. Between July 2011 and 

July 2016, (the requested time period for 

these proposed regulations), Neptune 

plans to continue Port operations 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 (yd3; 

140,000 cubic meters (m3)). 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. 

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 HublineSM (HublineSM) 

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). The following subsections 

describe the operational activities for 

the Port. 

Description of Port Operations 

During Neptune Port operations, 

sound will be generated by the 

regasification of the LNG aboard the 

SRVs and the use of thrusters by vessels 

maneuvering and maintaining position 

at the port. Large construction-type DP 

vessels used for major repairs of the 

subsea pipeline or unloading facility 

may be another potential sound source, 

although these types of repairs are 

unlikely to occur. Of these potential 

operations and maintenance/repair 

sound sources, thruster use for DP is the 

most significant. The following text 

describes the activities that will occur at 

the port upon its commissioning. 

(1) Vessel Activity 

The SRVs will approach the Port 

using the Boston Harbor Traffic 

Separation Scheme (TSS), entering the 

TSS within the Great South Channel 

(GSC) and remaining in the TSS until 

they reach the Boston Harbor 

Precautionary Area. At the Boston 

Lighted Horn Buoy B (at the center of 

the Boston Harbor Precautionary Area), 

the SRV will be met by a pilot vessel 

and a support vessel. A pilot will board 

the SRV, and the support vessel will 

accompany the SRV to the port. SRVs 

carrying LNG typically travel at speeds 

up to 19.5 knots (36 km/hr); however, 

Neptune SRVs will reduce speed to 10 

knots (18.5 km/hr) within the TSS yearround in the Off Race Point Seasonal 

Management Area (SMA) and will 

maintain a maximum of 10 knots (18.5 

km/hr) when traveling to and from the 

buoys once exiting the shipping lanes at 

the Boston Harbor Precautionary Area. 

In addition, Neptune is committed to 

reducing speed to 10 knots (18.5 km/hr) 

in the GSC SMA from April 1 to July 31 

each year. 

To supply a continuous flow of 

natural gas into the pipeline, an average 

of about 50 roundtrip SRV transits will 

take place annually (one transit every 

3.65 days). As an SRV approaches the 

Port, vessel speed will gradually be 

reduced. Upon arrival at the Port, one of 

the submerged unloading buoys will be 

located and retrieved from its 

submerged position by means of a 

winch and recovery line. The SRV is 

designed for operation in harsh 

environments and can connect to the 

unloading buoy in up to 11.5 ft (3.5 m) 

significant wave heights and remain 

operational in up to 36 ft (11 m) 

significant wave heights, providing high 

operational availability. 

The vessel’s aft/forward thrusters will 

be used intermittently. Neptune SRVs 

will use both bow and stern thrusters 

when approaching the unloading buoy 

and when docking the buoy inside the 

Submerged Turret Loading (STL) 

compartment, as well as when releasing 

the buoy after the regasifying process is 

finished. The thrusters will be energized 

for up to 2 hours during the docking 

process and up to 1 hour during the 

undocking/release process. When 

energized, the thrusters will rotate at a 

constant RPM with the blades set at zero 

pitch. There will be little cavitation 

when the thruster propellers idle in this 

mode. The sound levels in this 

operating mode are expected to be 

approximately 8 decibels (dB) less than 

at 100 percent load, based on measured 

data from other vessels. 

When the thrusters are engaged, the 

pitch of the blades will be adjusted in 

short bursts for the amount of thrust 

needed. These short bursts will cause 

cavitation and elevated sound levels. 

The maximum sound level with two 

thrusters operating at 100 percent load 

will be 180 dB re 1 μPa at 1m. This is 

not the normal operating mode, but a 

worst-case scenario. Typically, thrusters 

are operated for only seconds at a time 

and not at continuous full loading. 

These thrusters will be engaged for no 


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more than 20 minutes, in total, when 

docking at the buoy. The same applies 

for the undocking scenario. 

During normal conditions, the vessel 

will be allowed to weathervane on the 

single-point mooring system. However, 

aft thrusters may be used under certain 

conditions to maintain the vessel’s 

heading into the wind when competing 

tides operate to push the vessel 

broadside to the wind. Neptune has 

assumed a total of 200 hr/yr operating 

under these conditions. In these 

circumstances, the ambient sound will 

already be high because of the wind and 

associated wave sound. 

(2) Regasification System 

Once an SRV is connected to a buoy, 

the vaporization of LNG and send-out of 

natural gas can begin. Each SRV will be 

equipped with three vaporization units, 

each with the capacity to vaporize 250 

mmscfd. Under normal operation, two 

units will be in service simultaneously. 

The third vaporization unit will be on 

standby mode, although all three units 

could operate simultaneously. 

(3) Maintenance and Repairs 

Routine maintenance activities 

typically are short in duration (several 

days or less) and require small vessels 

(less than 300 gross tons) to perform. 

Activities include attaching and 

detaching and/or cleaning the buoy pick 

up line to the STL buoy, performing 

surveys and inspections with a remotely 

operated vehicle, and cleaning or 

replacing parts (e.g., bulbs, batteries, 

etc.) on the floating navigation buoys. 

Every 7–10 years, Neptune will run an 

intelligent pig (a gauging/cleaning 

device) down the pipeline to assess its 

condition. This particular activity will 

require several larger, construction-type 

vessels and several weeks to complete. 

Unplanned repairs can be either 

relatively minor, or in some cases, 

major, requiring several large, 

construction-type vessels and a 

mitigation program similar to that 

employed during the construction phase 

of the project. Minor repairs are 

typically shorter in duration and could 

include fixing flange or valve leaks, 

replacing faulty pressure transducers, or 

repairing a stuck valve. These kinds of 

repairs require one diver support vessel 

with three or four anchors to hold its 

position. Minor repairs could take from 

a few days to 1–2 weeks depending on 

the nature of the problem. 

Major repairs are longer in duration 

and typically require large construction 

vessels similar to those used to install 

the pipeline and set the buoy and 

anchoring system. These vessels will 

typically mobilize from local ports or 

the Gulf of Mexico. Major repairs 

require upfront planning, equipment 

procurement, and mobilization of 

vessels and saturation divers. Examples 

of major repairs—although unlikely to 

occur—include damage to a riser or 

umbilical and their possible 

replacement, damage to the pipeline 

and manifolds, or anchor chain 

replacement. These types of repairs 

could take 1–4 weeks and possibly 

longer. 

Operations Sound 

The acoustic effects of using the 

thrusters for maneuvering at the 

unloading buoys were modeled by 

JASCO Research Limited (2005). The 

analysis assumed the use of four 

thrusters (two bow, two stern) at 100 

percent power during all four seasons. 

The one-third (1⁄3)-octave band source 

levels for the thrusters ranged from 

148.5 dB re 1 μPa at 1 m at 2,000 Hertz 

(Hz) to 174.5 dB re 1 μPa at 1 m at 10 

Hz. Figures 1–2 through 1–5 in 

Neptune’s application show the 

received sound level at 164-ft (50-m) 

depth at the south unloading buoy 

during each of the four seasons. 

The acoustic effects of operating the 

regasification system at the unloading 

buoys were also modeled by JASCO 

Research Limited (2005). In addition, 

supplemental analysis was performed to 

assess the potential underwater acoustic 

impacts of using the two aft thrusters 

after mooring for maintaining the 

heading of the vessel in situations when 

competing tides operate to push the 

vessel broadside to the wind. 

Additionally, Samsung performed an 

underwater noise study on the newly 

constructed SRV, and an evaluation of 

these data was performed by JASCO 

Applied Sciences. Additional details of 

all the modeling analyses can be found 

in Appendices B and C of Neptune’s 

application (see ADDRESSES). The 

loudest source of sound during 

operations at the port will be the use of 

thrusters for dynamic positioning. 

Maintenance/Repair Sound 

Acoustic modeling originally 

performed to predict received levels of 

underwater sound that could result from 

the construction of Neptune also could 

be applicable to major maintenance/ 

repair during operations (see 

Appendices B and C in Neptune’s 

application for a discussion of the 

acoustic modeling methodology 

employed). Activities considered to be 

potential sound sources during major 

maintenance/repair activities include 

excavation (jetting) of the flowline or 

main transmission pipeline routes and 

lowering of materials (pipe, anchors, 

and chains) to the sea floor. These 

analyses evaluated the potential impacts 

of construction of the flowline and 

pipeline using surrogate source levels 

for vessels that could be employed 

during Neptune’s construction. One 

surrogate vessel used for modeling 

purposes was the Castoro II (and four 

accompanying vessels). Figures 1–6 and 

1–7 in Neptune’s application illustrate 

the worst-case received sound levels 

that would be associated with major 

maintenance/repair activities along the 

flowline between the two unloading 

buoys and along the pipeline route at 

the 164-ft (50-m) depth during the 

spring season if a vessel similar to the 

Castoro II were used. 

Comments and Responses 

On May 6, 2010, NMFS published a 

notice of a proposed IHA and a notice 

of receipt of an application for a Letter 

of Authorization (LOA) in the Federal 

Register (75 FR 24906) and requested 

comments and information from the 

public for 30 days. NMFS received only 

one comment letter from the Marine 

Mammal Commission (MMC). The 

MMC’s comments noted the need for 

monitoring and mitigation and for the 

reinitiation of section 7 consultation 

under the Endangered Species Act 

(ESA). NMFS included the proposed 

monitoring and mitigation measures in 

the 2010 IHA and completed the 

required ESA section 7 consultation 

prior to issuance of the 2010 IHA. To 

see the full comments and responses, 

please refer to the IHA Federal Register 

notice of issuance (75 FR 41440, July 16, 

2010). 

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 ESA and as 

depleted under the MMPA. The 

northern coastal stock of bottlenose 

dolphins is considered depleted under 


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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 proposed activity area. 

Of these species, 14 are expected to 

occur in the area of Neptune’s proposed 

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:// 

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). 

Blue and sperm whales are not 

commonly found in Massachusetts Bay. 

The sperm whale is generally a 

deepwater animal, and its distribution 

off the northeastern U.S. is concentrated 

around the 13,280-ft (4,048-m) depth 

contour, with sightings extending 

offshore beyond the 6,560-ft (2,000-m) 

depth contour. Sperm whales also can 

be seen in shallow water south of Cape 

Cod from May to November (CETAP, 

1982). In the North Atlantic, blue 

whales are most commonly sighted in 

the waters off eastern Canada. Although 

they are rare in the shelf waters of the 

eastern U.S., occasional sightings of 

blue whales have been made off Cape 

Cod. Harp and hooded seals are 

seasonal visitors from much further 

north, seen mostly in the winter and 

early spring. Prior to 1990, harp and 

hooded seals were sighted only very 

occasionally in the Gulf of Maine, but 

recent sightings suggest increasing 

numbers of these species now visit these 

waters (Harris et al., 2001, 2002). 

However, these harp seal sightings are 

considered extralimital (Waring et al., 

2009). While there have been some 

increased sightings of hooded seals off 

the east coast of the U.S., the 

southernmost portion of their spring 

migration is considered the Gulf of St. 

Lawrence (Waring et al., 2009). 

Therefore, their sightings in U.S. east 

coast waters are considered extralimital. 

Juveniles of a third seal species, the 

ringed seal, are seen on occasion as far 

south as Cape Cod in the winter, but 

this species is considered to be quite 

rare in these waters (Provincetown 

Center for Coastal Studies, 2005). Due to 

the rarity of these species in the 

proposed project area and the remote 

chance they would be affected by 

Neptune’s proposed port operations, 

these species are not considered further 

in these proposed regulations. 

In addition to the 16 cetacean species 

listed in Table 3–1 in Neptune’s 

application, 10 other cetacean species 

have been recorded for Massachusetts as 

rare vagrants or from strandings 

(Cardoza et al., 1999). The following six 

species of beaked whale are all pelagic 

and recorded mostly as strandings: the 

northern bottlenose whale; Cuvier’s 

beaked whale; Sowerby’s beaked whale; 

Blainville’s beaked whale; Gervais’ 

beaked whale; and True’s beaked whale. 

Vagrants include the beluga whale, a 

northern species with rare vagrants 

reported as far south as Long Island 

(Katona et al., 1993); the pantropical 

spotted dolphin and false killer whale, 

which are primarily tropical species 

with rare sightings in Massachusetts 

waters (Cardoza et al., 1999); and the 

pygmy sperm whale, which is generally 

an offshore species that occasionally 

wanders inshore. There have been 

occasional sightings of striped dolphins 

in the waters of the northeastern U.S. 

However, the majority of these sightings 

occurred in waters deeper than those of 

the Neptune Port project area (Waring et 

al., 2009). While some Atlantic whitebeaked dolphins have been sighted in 

the western Gulf of Maine and off Cape 

Cod, their distribution in the area has 

been considered limited, mostly a factor 

of opportunistic feeding (Waring et al., 

2009). Due to the rarity of these species 

in the proposed project area and the 

remote chance they would be affected 

by Neptune’s proposed port operations, 

these species are not considered further 

in these proposed regulations. 

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. In addition, 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. A brief 

summary on several commonly sighted 

marine mammal species distribution 

and abundance in the vicinity of the 

action area is provided next. 

Humpback Whale 

The highest abundance for humpback 

whales is distributed primarily along a 

relatively narrow corridor following the 

328-ft (100-m) isobath across the 

southern Gulf of Maine from the 

northwestern slope of Georges Bank, 

south to the GSC, and northward 

alongside Cape Cod to Stellwagen Bank 

and Jeffreys Ledge. The relative 

abundance of whales increases in the 

spring with the highest occurrence 

along the slope waters (between the 131- 

and 459-ft, 40- and 140-m, isobaths) off 

Cape Cod and Davis Bank, Stellwagen 

Basin and Tillies Basin and between the 

164- and 656-ft (50- and 200-m) isobaths 

along the inner slope of Georges Bank. 

High abundance was also estimated for 

the waters around Platts Bank. In the 

summer months, abundance increases 

markedly over the shallow waters (< 164 

ft, or < 50 m) of Stellwagen Bank, the 

waters (328–656 ft, 100–200 m) between 

Platts Bank and Jeffreys Ledge, the steep 

slopes (between the 98- and 525-ft 

isobaths, 30- and 160-m isobaths) of 

Phelps and Davis Bank north of the GSC 

towards Cape Cod, and between the 

164- and 328-ft (50- and 100-m) isobath 

for almost the entire length of the 

steeply sloping northern edge of Georges 

Bank. This general distribution pattern 

persists in all seasons except winter 

when humpbacks remain at high 

abundance in only a few locations, 

including Porpoise and Neddick Basins 

adjacent to Jeffreys Ledge, northern 

Stellwagen Bank and Tillies Basin, and 

the GSC. The best estimate of 

abundance for Gulf of Maine, formerly 

western North Atlantic, humpback 

whales is 847 animals (Waring et al., 

2009). Current data suggest that the Gulf 

of Maine humpback whale stock is 

steadily increasing in size, which is 

consistent with an estimated average 

trend of 3.1 percent in the North 

Atlantic population overall for the 

period 1979–1993 (Stevick et al., 2003, 

cited in Waring et al., 2009). 

Fin Whale 

Spatial patterns of habitat utilization 

by fin whales are very similar to those 

of humpback whales. Spring and 


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summer high-use areas follow the 328- 

ft (100-m) isobath along the northern 

edge of Georges Bank (between the 164- 

and 656-ft, 50- and 200-m, isobaths), 

and northward from the GSC (between 

the 164- and 525-ft, 50- and 160-m, 

isobaths). Waters around Cashes Ledge, 

Platts Bank, and Jeffreys Ledge are all 

high-use areas in the summer months. 

Stellwagen Bank is a high-use area for 

fin whales in all seasons, with highest 

abundance occurring over the southern 

Stellwagen Bank in the summer months. 

In fact, the southern portion of 

Stellwagen Bank National Marine 

Sanctuary (SBNMS) is used more 

frequently than the northern portion in 

all months except winter, when high 

abundance is recorded over the northern 

tip of Stellwagen Bank. In addition to 

Stellwagen Bank, high abundance in 

winter is estimated for Jeffreys Ledge 

and the adjacent Porpoise Basin (328- to 

525-ft, isobaths), as well as Georges 

Basin and northern Georges Bank. The 

best estimate of abundance for the 

western North Atlantic stock of fin 

whales is 3,985, which is the sum of the 

estimate derived from an August 2006 

Gulf of Maine survey and the sum of the 

estimate derived from a July–August 

2007 northern Labrador to Scotian Shelf 

survey (Waring et al., in prep.). 

Currently, there are insufficient data to 

determine population trends for this 

species. 

Minke Whale 

Like other piscivorus baleen whales, 

the highest abundance for minke whale 

is strongly associated with regions 

between the 164- and 328-ft (50- and 

100-m) isobaths, but with a slightly 

stronger preference for the shallower 

waters along the slopes of Davis Bank, 

Phelps Bank, GSC, and Georges Shoals 

on Georges Bank. Minke whales are 

sighted in SBNMS in all seasons, with 

highest abundance estimated for the 

shallow waters (approximately 131 ft, 

40 m) over southern Stellwagen Bank in 

the summer and fall months. Platts 

Bank, Cashes Ledge, Jeffreys Ledge, and 

the adjacent basins (Neddick, Porpoise, 

and Scantium) also support high 

relative abundance. Very low densities 

of minke whales remain throughout 

most of the southern Gulf of Maine in 

winter. The best estimate of abundance 

for the Canadian East Coast stock of 

minke whales, which occurs from the 

western half of the Davis Strait to the 

Gulf of Mexico, is 8,987 animals, which 

is the sum of the estimate derived from 

an August 2006 Gulf of Maine survey 

and the sum of the estimate derived 

from a July–August 2007 northern 

Labrador to Scotian Shelf survey 

(Waring et al., in prep.). A population 

trend analysis for this species has not 

been conducted (Waring et al., in prep.). 

North Atlantic Right Whale 

North Atlantic right whales are 

generally distributed widely across the 

southern Gulf of Maine in spring with 

highest abundance located over the 

deeper waters (328- to 525-ft, 100- to 

160-m, isobaths) on the northern edge of 

the GSC and deep waters (328–984 ft 

100–300 m) parallel to the 328-ft (100- 

m) isobath of northern Georges Bank 

and Georges Basin. High abundance was 

also found in the shallowest waters 

(< 98 ft, <30 m) of Cape Cod Bay (CCB), 

over Platts Bank and around Cashes 

Ledge. Lower relative abundance is 

estimated over deep-water basins 

including Wilkinson Basin, Rodgers 

Basin, and Franklin Basin. In the 

summer months, right whales move 

almost entirely away from the coast to 

deep waters over basins in the central 

Gulf of Maine (Wilkinson Basin, Cashes 

Basin between the 525- and 656-ft, 160- 

and 200-m, isobaths) and north of 

Georges Bank (Rogers, Crowell, and 

Georges Basins). Highest abundance is 

found north of the 328-ft (100-m isobath 

at the GSC and over the deep slope 

waters and basins along the northern 

edge of Georges Bank. The waters 

between Fippennies Ledge and Cashes 

Ledge are also estimated as high-use 

areas. In the fall months, right whales 

are sighted infrequently in the Gulf of 

Maine, with highest densities over 

Jeffreys Ledge and over deeper waters 

near Cashes Ledge and Wilkinson Basin. 

In winter, CCB, Scantum Basin, Jeffreys 

Ledge, and Cashes Ledge are the main 

high-use areas. Although SBNMS does 

not appear to support the highest 

abundance of right whales, sightings 

within SBNMS are reported for all four 

seasons, albeit at low relative 

abundance. The highest rate of sighting 

within SBNMS occurs along the 

southern edge of the Bank. 

The western North Atlantic 

population size was estimated to be at 

least 361 individuals in 2005 based on 

a census of individual whales identified 

using photo-identification techniques 

(Waring et al., in prep.). This value is a 

minimum and does not include animals 

that were alive prior to 2005 but not 

recorded in the individual sightings 

database as seen from December 1, 2004, 

to June 24, 2009. It also does not include 

some calves known to be born during 

2005 or any other individual whale seen 

during 2005 but not yet entered into the 

catalog (Waring et al., in prep.). 

Examination of the minimum number 

alive population index calculated from 

the individual sightings database, as it 

existed on June 24, 2009, for the years 

1990–2005 suggests a positive trend in 

population size. These data reveal a 

significant increase in the number of 

catalogued whales alive during this 

period but with significant variation due 

to apparent losses exceeding gains 

during 1998–1999. Mean growth rate for 

the period 1990–2005 was 2.1 percent 

(Waring et al., in prep.). 

Long-finned Pilot Whale 

The long-finned pilot whale is more 

generally found along the edge of the 

continental shelf (a depth of 328 to 

3,280 ft, or 100 to 1,000 m), choosing 

areas of high relief or submerged banks 

in cold or temperate shoreline waters. 

This species is split into two subspecies: 

the Northern and Southern subspecies. 

The Southern subspecies is circumpolar 

with northern limits of Brazil and South 

Africa. The Northern subspecies, which 

could be encountered during operation 

of the Neptune Port facility, ranges from 

North Carolina to Greenland (Reeves et 

al., 2002; Wilson and Ruff, 1999). In the 

western North Atlantic, long-finned 

pilot whales are pelagic, occurring in 

especially high densities in winter and 

spring over the continental slope, then 

moving inshore and onto the shelf in 

summer and autumn following squid 

and mackerel populations (Reeves et al., 

2002). They frequently travel into the 

central and northern Georges Bank, 

GSC, and Gulf of Maine areas during the 

summer and early fall (May and 

October; NOAA, 1993). The best 

population estimate for the western 

North Atlantic stock of long-finned pilot 

whale is 12,619 individuals (Waring et 

al., in prep.). Currently, there are 

insufficient data to determine 

population trends for the long-finned 

pilot whale. 

Sei Whale 

The sei whale is the least likely of all 

the baleen whale species to occur near 

the Neptune Port. However, there were 

a couple of sightings in the general 

vicinity of the port facility during the 

construction phase (Neptune Marine 

Mammal Monitoring Weekly Reports, 

2008). The Nova Scotia stock of sei 

whales ranges from the continental shelf 

waters of the northeastern U.S. and 

extends northeastward to south of 

Newfoundland. The southern portion of 

the species range during spring and 

summer includes the northern portions 

of the U.S. Atlantic Exclusive Economic 

Zone (i.e., the Gulf of Maine and 

Georges Bank). Sei whales are most 

abundant in U.S. waters during the 

spring, with sightings concentrated 

along the eastern margin of Georges 

Bank and into the Northeast Channel 

area and along the southwestern edge of 


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Georges Bank in the area of 

Hydrographer Canyon (CETAP, 1982). 

The best estimate of abundance for this 

stock is 386 animals (Waring et al., 

2009). A population trend analysis has 

not been done for this species. 

Atlantic White-Sided Dolphin 

In spring, summer and fall, Atlantic 

white-sided dolphins are widespread 

throughout the southern Gulf of Maine, 

with the high-use areas widely located 

on either side of the 328-ft (100-m) 

isobath along the northern edge of 

Georges Bank, and north from the GSC 

to Stellwagen Bank, Jeffreys Ledge, 

Platts Bank, and Cashes Ledge. In 

spring, high-use areas exist in the GSC, 

northern Georges Bank, the steeply 

sloping edge of Davis Bank, Cape Cod, 

southern Stellwagen Bank, and the 

waters between Jeffreys Ledge and Platts 

Bank. In summer, there is a shift and 

expansion of habitat toward the east and 

northeast. High-use areas occur along 

most of the northern edge of Georges 

Bank between the 164- and 656-ft (50- 

and 200-m) isobaths and northward 

from the GSC along the slopes of Davis 

Bank and Cape Cod. High sightings are 

also recorded over Truxton Swell, 

Wilkinson Basin, Cashes Ledge and the 

bathymetrically complex area northeast 

of Platts Bank. High numbers of 

sightings of white-sided dolphin are 

recorded within SBNMS in all seasons, 

with highest density in summer, and the 

most widespread distribution in spring 

is located mainly over the southern end 

of Stellwagen Bank. In winter, high 

sightings were recorded at the northern 

tip of Stellwagen Bank and Tillies 

Basin. 

A comparison of spatial distribution 

patterns for all baleen whales and all 

porpoises and dolphins combined 

showed that both groups have very 

similar spatial patterns of high- and 

low-use areas. The baleen whales, 

whether piscivorus or planktivorous, are 

more concentrated than the dolphins 

and porpoises. They utilize a corridor 

that extends broadly along the most 

linear and steeply sloping edges in the 

southern Gulf of Maine indicated 

broadly by the 328-ft (100-m) isobath. 

Stellwagen Bank and Jeffreys Ledge 

support a high abundance of baleen 

whales throughout the year. Species 

richness maps indicate that high-use 

areas for individual whales and dolphin 

species co-occurred, resulting in similar 

patterns of species richness primarily 

along the southern portion of the 328- 

ft (100-m) isobath extending northeast 

and northwest from the GSC. The 

southern edge of Stellwagen Bank and 

the waters around the northern tip of 

Cape Cod are also highlighted as 

supporting high cetacean species 

richness. Intermediate to high numbers 

of species are also calculated for the 

waters surrounding Jeffreys Ledge, the 

entire Stellwagen Bank, Platts Bank, 

Fippennies Ledge, and Cashes Ledge. 

The best estimate of abundance for the 

western North Atlantic stock of whitesided dolphins is 63,368 (Waring et al., 

2009). A trend analysis has not been 

conducted for this species. 

Killer Whale, Common Dolphin, 

Bottlenose Dolphin, Risso’s Dolphin, 

and Harbor Porpoise 

Although these five species are some 

of the most widely distributed small 

cetacean species in the world (Jefferson 

et al., 1993), they are not commonly 

seen in the vicinity of the project area 

in Massachusetts Bay (Wiley et al., 

1994; NCCOS, 2006; Northeast Gateway 

Marine Mammal Monitoring Weekly 

Reports, 2007; Neptune Marine Mammal 

Monitoring Weekly Reports, 2008). The 

total number of killer whales off the 

eastern U.S. coast is unknown, and 

present data are insufficient to calculate 

a minimum population estimate or to 

determine the population trends for this 

stock (Blaylock et al., 1995). The best 

estimate of abundance for the western 

North Atlantic stock of common 

dolphins is 120,743 animals, and a 

trend analysis has not been conducted 

for this species (Waring et al., 2007). 

There are several stocks of bottlenose 

dolphins found along the eastern U.S. 

from Maine to Florida. The stock that 

may occur in the area of the Neptune 

Port is the western North Atlantic 

coastal northern migratory stock of 

bottlenose dolphins. The best estimate 

of abundance for this stock is 9,604 

animals (Waring et al., in prep.). There 

are insufficient data to determine the 

population trend for this stock. The best 

estimate of abundance for the western 

North Atlantic stock of Risso’s dolphins 

is 20,479 animals (Waring et al., 2009). 

There are insufficient data to determine 

the population trend for this stock. The 

best estimate of abundance for the Gulf 

of Maine/Bay of Fundy stock of harbor 

porpoise is 89,054 animals (Waring et 

al., 2009). A trend analysis has not been 

conducted for this species. 

Harbor and Gray Seals 

In the U.S. western North Atlantic, 

both harbor and gray seals are usually 

found from the coast of Maine south to 

southern New England and New York 

(Waring et al., 2007). 

Along the southern New England and 

New York coasts, harbor seals occur 

seasonally from September through late 

May (Schneider and Payne, 1983). In 

recent years, their seasonal interval 

along the southern New England to New 

Jersey coasts has increased (deHart, 

2002). In U.S. waters, harbor seal 

breeding and pupping normally occur in 

waters north of the New Hampshire/ 

Maine border, although breeding has 

occurred as far south as Cape Cod in the 

early part of the 20th century (Temte et 

al., 1991; Katona et al., 1993). Between 

1981 and 2001, the uncorrected counts 

of seals increased from 10,543 to 38,014, 

an annual rate of 6.6 percent (Gilbert et 

al., 2005, cited in Waring et al., 2009). 

However, present data are insufficient to 

calculate a minimum population 

estimate for this stock or to determine 

a population trend for this stock 

(Waring et al., in prep.). 

Although gray seals are often seen off 

the coast from New England to 

Labrador, within U.S. waters, only small 

numbers of gray seals have been 

observed pupping on several isolated 

islands along the Maine coast and in 

Nantucket-Vineyard Sound, 

Massachusetts (Katona et al., 1993; 

Rough, 1995). In the late 1990s, a yearround breeding population of 

approximately 400 gray seals was 

documented on outer Cape Cod and 

Muskeget Island (Waring et al., 2007). 

Depending on the model used, the 

minimum estimate for the Canadian 

gray seal population ranged between 

125,541 and 169,064 animals (Trzcinski 

et al., 2005, cited in Waring et al., 2009); 

however, present data are insufficient to 

calculate the minimum population 

estimate for U.S. waters. Waring et al. 

(2009) note that gray seal abundance in 

the U.S. Atlantic is likely increasing, but 

the rate of increase is unknown. 

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 


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hearing is estimated to occur between 

approximately 7 Hz and 22 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 

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 

proposed 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 

later in this document, it is unlikely that 

there would be any cases of temporary, 

or especially permanent, hearing 

impairment resulting from these 

activities. As outlined in previous 

NMFS documents, the effects of noise 

on marine mammals are highly variable, 

and can be categorized as follows (based 

on Richardson et al., 1995): 

(1) The noise may be too weak to be 

heard at the location of the animal (i.e., 

lower than the prevailing ambient noise 

level, the hearing threshold of the 

animal at relevant frequencies, or both); 

(2) The noise may be audible but not 

strong enough to elicit any overt 

behavioral response; 

(3) The noise may elicit reactions of 

variable conspicuousness and variable 

relevance to the well being of the 

marine mammal; these can range from 

temporary alert responses to active 

avoidance reactions such as vacating an 

area at least until the noise event ceases 

but potentially for longer periods of 

time; 

(4) Upon repeated exposure, a marine 

mammal may exhibit diminishing 

responsiveness (habituation), or 

disturbance effects may persist; the 

latter is most likely with sounds that are 

highly variable in characteristics, 

infrequent, and unpredictable in 

occurrence, and associated with 

situations that a marine mammal 

perceives as a threat; 

(5) Any anthropogenic noise that is 

strong enough to be heard has the 

potential to reduce (mask) the ability of 

a marine mammal to hear natural 

sounds at similar frequencies, including 

calls from conspecifics, and underwater 

environmental sounds such as surf 

noise; 

(6) If mammals remain in an area 

because it is important for feeding, 

breeding, or some other biologically 

important purpose even though there is 

chronic exposure to noise, it is possible 

that there could be noise-induced 

physiological stress; this might in turn 

have negative effects on the well-being 

or reproduction of the animals involved; 

and 

(7) Very strong sounds have the 

potential to cause a temporary or 

permanent reduction in hearing 

sensitivity. In terrestrial mammals, and 

presumably marine mammals, received 

sound levels must far exceed the 

animal’s hearing threshold for there to 

be any temporary threshold shift (TTS) 

in its hearing ability. For transient 

sounds, the sound level necessary to 

cause TTS is inversely related to the 

duration of the sound. Received sound 

levels must be even higher for there to 

be risk of permanent hearing 

impairment. In addition, intense 

acoustic or explosive events may cause 

trauma to tissues associated with organs 

vital for hearing, sound production, 

respiration and other functions. This 

trauma may include minor to severe 

hemorrhage. 

Tolerance 

Numerous studies have shown that 

underwater sounds from industry 

activities are often readily detectable by 

marine mammals in the water at 

distances of many kilometers. 

Numerous studies have also shown that 

marine mammals at distances more than 

a few kilometers away often show no 

apparent response to industry activities 

of various types (Miller et al., 2005). 

This is often true even in cases when 

the sounds must be readily audible to 

the animals based on measured received 

levels and the hearing sensitivity of that 

mammal group. Although various 

baleen whales, toothed whales, and (less 

frequently) pinnipeds have been shown 

to react behaviorally to underwater 

sound such as airgun pulses or vessels 

under some conditions, at other times, 

mammals of all three types have shown 

no overt reactions (e.g., Malme et al., 

1986; Richardson et al., 1995; Madsen 

and Mohl, 2000; Croll et al., 2001; 

Jacobs and Terhune, 2002; Madsen et 

al., 2002; Miller et al., 2005). In general, 

pinnipeds and small odontocetes seem 

to be more tolerant of exposure to some 

types of underwater sound than are 

baleen whales. Richardson et al. (1995) 

found that vessel noise does not seem to 

strongly affect pinnipeds that are 

already in the water. Richardson et al. 

(1995) went on to explain that seals on 

haul-outs sometimes respond strongly to 

the presence of vessels and at other 

times appear to show considerable 

tolerance of vessels, and Brueggeman et 

al. (1992; cited in Richardson et al., 

1995) observed ringed seals hauled out 

on ice pans displaying short-term 

escape reactions when a ship 

approached within 0.16–0.31 mi (0.25– 

0.5 km). 

Masking 

Masking is the obscuring of sounds of 

interest by other sounds, often at similar 

frequencies. Marine mammals are 

highly dependent on sound, and their 

ability to recognize sound signals amid 

other noise is important in 

communication, predator and prey 

detection, and, in the case of toothed 

whales, echolocation. Even in the 

absence of manmade sounds, the sea is 

usually noisy. Background ambient 

noise often interferes with or masks the 

ability of an animal to detect a sound 

signal even when that signal is above its 

absolute hearing threshold. Natural 

ambient noise includes contributions 

from wind, waves, precipitation, other 

animals, and (at frequencies above 30 

kHz) thermal noise resulting from 

molecular agitation (Richardson et al., 

1995). Background noise also can 


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include sounds from human activities. 

Masking of natural sounds can result 

when human activities produce high 

levels of background noise. Conversely, 

if the background level of underwater 

noise is high (e.g., on a day with strong 

wind and high waves), an 

anthropogenic noise source will not be 

detectable as far away as would be 

possible under quieter conditions and 

will itself be masked. Ambient noise is 

highly variable on continental shelves 

(Thompson, 1965; Myrberg, 1978; 

Chapman et al., 1998; Desharnais et al., 

1999). This inevitably results in a high 

degree of variability in the range at 

which marine mammals can detect 

anthropogenic sounds. 

Although masking is a natural 

phenomenon to which marine mammals 

must adapt, the introduction of strong 

sounds into the sea at frequencies 

important to marine mammals increases 

the severity and frequency of occurrence 

of masking. For example, if a baleen 

whale is exposed to continuous lowfrequency noise from an industrial 

source, this will reduce the size of the 

area around that whale within which it 

can hear the calls of another whale. In 

general, little is known about the 

importance to marine mammals of 

detecting sounds from conspecifics, 

predators, prey, or other natural sources. 

In the absence of much information 

about the importance of detecting these 

natural sounds, it is not possible to 

predict the impacts if marine mammals 

are unable to hear these sounds as often, 

or from as far away, because of masking 

by industrial noise (Richardson et al., 

1995). In general, masking effects are 

expected to be less severe when sounds 

are transient than when they are 

continuous. 

Although some degree of masking is 

inevitable when high levels of manmade 

broadband sounds are introduced into 

the sea, marine mammals have evolved 

systems and behavior that function to 

reduce the impacts of masking. 

Structured signals, such as the 

echolocation click sequences of small 

toothed whales, may be readily detected 

even in the presence of strong 

background noise because their 

frequency content and temporal features 

usually differ strongly from those of the 

background noise (Au and Moore, 1988, 

1990). The components of background 

noise that are similar in frequency to the 

sound signal in question primarily 

determine the degree of masking of that 

signal. Low-frequency industrial noise, 

such as shipping, has little or no 

masking effect on high frequency 

echolocation sounds. 

Redundancy and context can also 

facilitate detection of weak signals. 

These phenomena may help marine 

mammals detect weak sounds in the 

presence of natural or manmade noise. 

Most masking studies in marine 

mammals present the test signal and the 

masking noise from the same direction. 

The sound localization abilities of 

marine mammals suggest that, if signal 

and noise come from different 

directions, masking would not be as 

severe as the usual types of masking 

studies might suggest (Richardson et al., 

1995). The dominant background noise 

may be highly directional if it comes 

from a particular anthropogenic source 

such as a ship or industrial site. 

Directional hearing may significantly 

reduce the masking effects of these 

noises by improving the effective signalto-noise ratio. In the cases of highfrequency hearing by the bottlenose 

dolphin, beluga whale, and killer whale, 

empirical evidence confirms that 

masking depends strongly on the 

relative directions of arrival of sound 

signals and the masking noise (Penner et 

al., 1986; Dubrovskiy, 1990; Bain et al., 

1993; Bain and Dahlheim, 1994). 

Toothed whales, and probably other 

marine mammals as well, have 

additional capabilities besides 

directional hearing that can facilitate 

detection of sounds in the presence of 

background noise. There is evidence 

that some toothed whales can shift the 

dominant frequencies of their 

echolocation signals from a frequency 

range with a lot of ambient noise toward 

frequencies with less noise (Au et al., 

1974, 1985; Moore and Pawloski, 1990; 

Thomas and Turl, 1990; Romanenko 

and Kitain, 1992; Lesage et al., 1999). A 

few marine mammal species are known 

to increase the source levels of their 

calls in the presence of elevated sound 

levels (Dahlheim, 1987; Au, 1993; 

Lesage et al., 1999; Terhune, 1999). 

These data demonstrating adaptations 

for reduced masking pertain mainly to 

the very high frequency echolocation 

signals of toothed whales. There is less 

information about the existence of 

corresponding mechanisms at moderate 

or low frequencies or in other types of 

marine mammals. For example, Zaitseva 

et al. (1980) found that, for the 

bottlenose dolphin, the angular 

separation between a sound source and 

a masking noise source had little effect 

on the degree of masking when the 

sound frequency was 18 kHz, in contrast 

to the pronounced effect at higher 

frequencies. Directional hearing has 

been demonstrated at frequencies as low 

as 0.5–2 kHz in several marine 

mammals, including killer whales 

(Richardson et al., 1995). This ability 

may be useful in reducing masking at 

these frequencies. In summary, high 

levels of noise generated by 

anthropogenic activities may act to 

mask the detection of weaker 

biologically important sounds by some 

marine mammals. This masking may be 

more prominent for lower frequencies. 

For higher frequencies, such as that 

used in echolocation by toothed whales, 

several mechanisms are available that 

may allow them to reduce the effects of 

such masking. 

Disturbance 

Disturbance can induce a variety of 

effects, such as subtle changes in 

behavior, more conspicuous dramatic 

changes in activities, and displacement. 

Disturbance is one of the main concerns 

of the potential impacts of manmade 

noise on marine mammals. For many 

species and situations, there is no 

detailed information about reactions to 

noise. While there are no specific 

studies available on the reactions of 

marine mammals to sounds produced 

by a LNG facility, information from 

studies of marine mammal reactions to 

other types of continuous and transient 

anthropogenic sound (e.g., drillships) 

are described here as a proxy. 

Behavioral reactions of marine 

mammals to sound are difficult to 

predict because they are dependent on 

numerous factors, including species, 

state of maturity, experience, current 

activity, reproductive state, time of day, 

and weather. If a marine mammal does 

react to an underwater sound by 

changing its behavior or moving a small 

distance, the impacts of that change may 

not be important to the individual, the 

stock, or the species as a whole. 

However, if a sound source displaces 

marine mammals from an important 

feeding or breeding area for a prolonged 

period, impacts on the animals could be 

important. Based on the literature 

reviewed in Richardson et al. (1995), it 

is apparent that most small and 

medium-sized toothed whales exposed 

to prolonged or repeated underwater 

sounds are unlikely to be displaced 

unless the overall received level is at 

least 140 dB re 1 μPa (rms). The limited 

available data indicate that the sperm 

whale is sometimes, though not always, 

more responsive to underwater sounds 

than other toothed whales. Baleen 

whales probably have better hearing 

sensitivities at lower sound frequencies, 

and in several studies have been shown 

to react to continuous sounds at 

received sound levels of approximately 

120 dB re 1 μPa (rms). Toothed whales 

appear to exhibit a greater variety of 

reactions to manmade underwater noise 

than do baleen whales. Toothed whale 

reactions can vary from approaching 


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vessels (e.g., to bow ride) to strong 

avoidance, while baleen whale reactions 

range from neutral (little or no change 

in behavior) to strong avoidance. In 

general, pinnipeds seem more tolerant 

of, or at least habituate more quickly to, 

potentially disturbing underwater noise 

than do cetaceans. 

Baleen Whales—Baleen whales 

sometimes show behavioral changes in 

response to received broadband 

drillship noises of 120 dB (rms) or 

greater. On their summer range in the 

Beaufort Sea, bowhead whales (a 

species closely related to the right 

whale) were observed reacting to 

drillship noises within 2.5–5 mi (4–8 

km) of the drillship at received levels 20 

dB above ambient, or about 118 dB 

(Richardson et al., 1990). Reactions 

were stronger at the onset of the sound 

(Richardson et al., 1995). Migrating 

bowhead whales avoided an area with a 

radius of 6.2–12.4 mi (10–20 km around 

drillships and their associated support 

vessels, corresponding to a received 

noise level around 115 dB (Greene, 

1987; Koski and Johnson, 1987; Hall et 

al., 1994; Davies, 1997; Schick and 

Urban, 2000). For gray whales off 

California, the predicted reaction zone 

around a semi-submersible drill rig was 

less than 0.62 mi (1 km), at received 

levels of approximately 120 dB (Malme 

et al., 1983, 1984). Humpback whales 

showed no obvious avoidance response 

to broadband drillship noises at a 

received level of 116 dB (Malme et al., 

1985). 

Reactions of baleen whales to boat 

noises include changes in swimming 

direction and speed, blow rate, and the 

frequency and kinds of vocalizations 

(Richardson et al., 1995). Baleen whales, 

especially minke whales, occasionally 

approach stationary or slow-moving 

boats, but more commonly avoid boats. 

Avoidance is strongest when boats 

approach directly or when vessel noise 

changes abruptly (Watkins, 1986; Beach 

and Weinrich, 1989). Humpback whales 

responded to boats at distances of at 

least 0.31–0.62 mi (0.5–1 km), and 

avoidance and other reactions have been 

noted in several areas at distances of 

several kilometers (Jurasz and Jurasz, 

1979; Dean et al., 1985; Bauer, 1986; 

Bauer and Herman, 1986). 

During some activities and at some 

locations, humpbacks exhibit little or no 

reaction to boats (Watkins, 1986). Some 

baleen whales seem to show habituation 

to frequent boat traffic. Over 25 years of 

observations in Cape Cod waters, minke 

whales’ reactions to boats changed from 

frequent positive interactions (i.e., 

reactions of apparent curiosity or 

reactions that appeared to provide some 

reward to the animal) to a general lack 

of interest (i.e., ignored the stimuli), 

while humpback whales’ reactions 

changed from being often negative to 

being often positive, and fin whales’ 

reactions changed from being mostly 

negative (i.e., sudden changes from 

activity to inactivity or a display of 

agonistic responses) to being mostly 

uninterested (Watkins, 1986). 

North Atlantic right whales also 

display variable responses to boats. 

There may be an initial orientation away 

from a boat, followed by a lack of 

observable reaction (Atkins and Swartz, 

1989). A slowly moving boat can 

approach a right whale, but an abrupt 

change in course or engine speed 

usually elicits a reaction (Goodyear, 

1989; Mayo and Marx, 1990; Gaskin, 

1991). When approached by a boat, right 

whale mothers will interpose 

themselves between the vessel and calf 

and will maintain a low profile 

(Richardson et al., 1995). In a long-term 

study of baleen whale reactions to boats, 

while other baleen whale species 

appeared to habituate to boat presence 

over the 25-year period, right whales 

continued to show either uninterested 

or negative reactions to boats with no 

change over time (Watkins, 1986). 

Biassoni et al. (2000) and Miller et al. 

(2000) reported behavioral observations 

for humpback whales exposed to a lowfrequency sonar stimulus (160- to 330- 

Hz frequency band; 42-s tonal signal 

repeated every 6 min; source levels 170 

to 200 dB) during playback experiments. 

Exposure to measured received levels 

ranging from 120 to 150 dB resulted in 

variability in humpback singing 

behavior. Croll et al. (2001) investigated 

responses of foraging fin and blue 

whales to the same low frequency active 

sonar stimulus off southern California. 

Playbacks and control intervals with no 

transmission were used to investigate 

behavior and distribution on time scales 

of several weeks and spatial scales of 

tens of kilometers. The general 

conclusion was that whales remained 

feeding within a region for which 12 to 

30 percent of exposures exceeded 140 

dB. 

Frankel and Clark (1998) conducted 

playback experiments with wintering 

humpback whales using a single speaker 

producing a low-frequency ‘‘Msequence’’ (sine wave with multiplephase reversals) signal in the 60 to 90 

Hz band with output of 172 dB at 1 m. 

For 11 playbacks, exposures were 

between 120 and 130 dB re 1 μPa (rms) 

and included sufficient information 

regarding individual responses. During 

eight of the trials, there were no 

measurable differences in tracks or 

bearings relative to control conditions, 

whereas on three occasions, whales 

either moved slightly away from (n = 1) 

or towards (n = 2) the playback speaker 

during exposure. The presence of the 

source vessel itself had a greater effect 

than did the M-sequence playback. 

Finally, Nowacek et al. (2004) used 

controlled exposures to demonstrate 

behavioral reactions of North Atlantic 

right whales to various non-pulse 

sounds. Playback stimuli included ship 

noise, social sounds of conspecifics, and 

a complex, 18-min ‘‘alert’’ sound 

consisting of repetitions of three 

different artificial signals. Ten whales 

were tagged with calibrated instruments 

that measured received sound 

characteristics and concurrent animal 

movements in three dimensions. Five 

out of six exposed whales reacted 

strongly to alert signals at measured 

received levels between 130 and 150 dB 

(i.e., ceased foraging and swam rapidly 

to the surface). Two of these individuals 

were not exposed to ship noise, and the 

other four were exposed to both stimuli. 

These whales reacted mildly to 

conspecific signals. Seven whales, 

including the four exposed to the alert 

stimulus, had no measurable response 

to either ship sounds or actual vessel 

noise. 

Odontocetes—In reviewing responses 

of cetaceans with best hearing (lowest 

auditory thresholds) in mid-frequency 

ranges, which includes toothed whales, 

Southall et al. (2007) reported that 

combined field and laboratory data for 

mid-frequency cetaceans exposed to 

non-pulse sounds did not lead to a clear 

conclusion about received levels 

coincident with various behavioral 

responses. In some settings, individuals 

in the field showed profound 

(significant) behavioral responses to 

exposures from 90 to 120 dB, while 

others failed to exhibit such responses 

for exposure to received levels from 120 

to 150 dB. Contextual variables other 

than exposure received level, and 

probable species differences, are the 

likely reasons for this variability. 

Context, including the fact that captive 

subjects were often directly reinforced 

with food for tolerating noise exposure, 

may also explain why there was great 

disparity in results from field and 

laboratory conditions—exposures in 

captive settings generally exceeded 170 

dB before inducing behavioral 

responses. 

Dolphins and other toothed whales 

may show considerable tolerance of 

floating and bottom-founded drill rigs 

and their support vessels. Kapel (1979) 

reported many pilot whales within 

visual range of drillships and their 

support vessels off West Greenland. 

Beluga whales have been observed 

swimming within 328–492 ft (100–150 


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m) of an artificial island while drilling 

was underway (Fraker and Fraker, 1979, 

1981) and within 1 mi (1.6 km) of the 

drillship Explorer I while the vessel was 

engaged in active drilling (Fraker and 

Fraker, 1981). Some belugas in Bristol 

Bay and Beaufort Sea, Alaska, when 

exposed to playbacks of drilling sounds, 

altered course to swim around the 

source, increased swimming speed, or 

reversed direction of travel (Stewart et 

al., 1982; Richardson et al., 1995). 

Reactions of beluga whales to semisubmersible drillship noise were less 

pronounced than were their reactions to 

motorboats with outboard engines. 

Captive belugas exposed to playbacks of 

recorded semi-submersible noise 

seemed quite tolerant of that sound 

(Thomas et al., 1990). 

Morton and Symonds (2002) used 

census data on killer whales in British 

Columbia to evaluate avoidance of nonpulse acoustic harassment devices 

(AHDs). Avoidance ranges around the 

AHDs were about 2.5 mi (4 km). Also, 

there was a dramatic reduction in the 

number of days ‘‘resident’’ killer whales 

were sighted during AHD-active periods 

compared to pre- and post-exposure 

periods and a nearby control site. 

Harbor porpoises off Vancouver 

Island, British Columbia, were found to 

be sensitive to the simulated sound of 

a 2-megawatt offshore wind turbine 

(Koschinski et al., 2003). The porpoises 

remained significantly further away 

from the sound source when it was 

active, and this effect was seen out to a 

distance of 197 ft (60 m). The device 

used in that study produced sounds in 

the frequency range of 30 to 800 Hz, 

with peak source levels of 128 dB re 1 

μPa at 1 m at the 80- and 160-Hz 

frequencies. 

Some species of small toothed 

cetaceans avoid boats when they are 

approached to within 0.31–0.93 mi (0.5– 

1.5 km), with occasional reports of 

avoidance at greater distances 

(Richardson et al., 1995). Some toothed 

whale species appear to be more 

responsive than others. Beaked whales 

and beluga whales seem especially 

responsive to boats. Dolphins may 

tolerate boats of all sizes, often 

approaching and riding the bow and 

stern waves (Shane et al., 1986). At 

other times, dolphin species that are 

known to be attracted to boats will 

avoid them. Such avoidance is often 

linked to previous boat-based 

harassment of the animals (Richardson 

et al., 1995). Coastal bottlenose dolphins 

that are the object of whale-watching 

activities have been observed to swim 

erratically (Acevedo, 1991), remain 

submerged for longer periods of time 

(Janik and Thompson, 1996; Nowacek et 

al., 2001), display less cohesiveness 

among group members (Cope et al., 

1999), whistle more frequently (Scarpaci 

et al., 2000), and rest less often 

(Constantine et al., 2004) when boats 

were nearby. Pantropical spotted 

dolphins and spinner dolphins in the 

eastern Tropical Pacific, where they 

have been targeted by the tuna fishing 

industry because of their association 

with these fish, display avoidance of 

survey vessels up to 11.1 km (6.9 mi; Au 

and Perryman, 1982; Hewitt, 1985), 

whereas spinner dolphins in the Gulf of 

Mexico were observed bow riding the 

survey vessel in all 14 sightings of this 

species during one survey (Wursig et al., 

1998). 

Harbor porpoises tend to avoid boats. 

In the Bay of Fundy, Polacheck and 

Thorpe (1990) found harbor porpoises to 

be more likely to swim away from the 

transect line of their survey vessel than 

to swim toward it and more likely to 

head away from the vessel when they 

were within 1,312 ft (400 m). Similarly, 

off the west coast of North America, 

Barlow (1988) observed harbor 

porpoises avoiding a survey vessel by 

moving rapidly out of its path within 

0.62 mi (1 km) of that vessel. Beluga 

whales are generally quite responsive to 

vessels. Belugas in Lancaster Sound in 

the Canadian Arctic showed dramatic 

reactions in response to icebreaking 

ships, with received levels of sound 

ranging from 101 dB to 136 dB re 1 μPa 

in the 20 to 1,000–Hz band at a depth 

of 66ft (20 m; Finley et al., 1990). 

Responses included emitting distinctive 

pulsive calls that were suggestive of 

excitement or alarm and rapid 

movement in what seemed to be a flight 

response. Reactions occurred out to 50 

mi (80 km) from the ship. Another study 

found belugas to use higher-frequency 

calls, a greater redundancy in their calls 

(more calls emitted in a series), and a 

lower calling rate in the presence of 

vessels (Lesage et al., 1999). The level of 

response of belugas to vessels is thought 

to be partly a function of habituation. 

Sperm whales generally show no overt 

reactions to vessels unless approached 

within several hundred meters (Watkins 

and Schevill, 1975; Wursig et al., 1998; 

Magalhaes et al., 2002). Observed 

reactions include spending more 

(Richter et al., 2003) or less (Watkins 

and Schevill, 1975) time at the surface, 

increasing swimming speed, or 

changing heading (Papastavrou et al., 

1989; Richter et al., 2003) and diving 

abruptly (Wursig et al., 1998). 

Pinnipeds—Pinnipeds generally seem 

to be less responsive to exposure to 

industrial sound than most cetaceans. 

Pinniped responses to underwater 

sound from some types of industrial 

activities such as seismic exploration 

appear to be temporary and localized 

(Harris et al., 2001; Reiser et al., 2009). 

Responses of pinnipeds to drilling 

noise have not been well studied. 

Richardson et al. (1995) summarizes the 

few available studies, which show 

ringed and bearded seals in the Arctic 

to be rather tolerant of drilling noise. 

Seals were often seen near active 

drillships and approached, to within 

164 ft (50 m), a sound projector 

broadcasting low-frequency drilling 

sound. 

Southall et al. (2007) reviewed 

literature describing responses of 

pinnipeds to non-pulsed sound and 

reported that the limited data suggest 

exposures between approximately 90 

and 140 dB generally do not appear to 

induce strong behavioral responses in 

pinnipeds exposed to non-pulse sounds 

in water; no data exist regarding 

exposures at higher levels. It is 

important to note that among these 

studies, there are some apparent 

differences in responses between field 

and laboratory conditions. In contrast to 

the mid-frequency odontocetes, captive 

pinnipeds responded more strongly at 

lower levels than did animals in the 

field. Again, contextual issues are the 

likely cause of this difference. 

Jacobs and Terhune (2002) observed 

harbor seal reactions to AHDs (source 

level in this study was 172 dB) 

deployed around aquaculture sites. 

Seals were generally unresponsive to 

sounds from the AHDs. During two 

specific events, individuals came within 

141 and 144 ft (43 and 44 m) of active 

AHDs and failed to demonstrate any 

measurable behavioral response; 

estimated received levels based on the 

measures given were approximately 120 

to 130 dB. 

Costa et al. (2003) measured received 

noise levels from an Acoustic 

Thermometry of Ocean Climate (ATOC) 

program sound source off northern 

California using acoustic data loggers 

placed on translocated elephant seals. 

Subjects were captured on land, 

transported to sea, instrumented with 

archival acoustic tags, and released such 

that their transit would lead them near 

an active ATOC source (at 0.6 mi depth 

[939 m]; 75-Hz signal with 37.5-Hz 

bandwidth; 195 dB maximum source 

level, ramped up from 165 dB over 20 

min) on their return to a haul-out site. 

Received exposure levels of the ATOC 

source for experimental subjects 

averaged 128 dB (range 118 to 137) in 

the 60- to 90-Hz band. None of the 

instrumented animals terminated dives 

or radically altered behavior upon 

exposure, but some statistically 

significant changes in diving parameters 


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were documented in nine individuals. 

Translocated northern elephant seals 

exposed to this particular non-pulse 

source began to demonstrate subtle 

behavioral changes at exposure to 

received levels of approximately 120 to 

140 dB. 

Kastelein et al. (2006) exposed nine 

captive harbor seals in an approximately 

82 × 98 ft (25 × 30 m) enclosure to nonpulse sounds used in underwater data 

communication systems (similar to 

acoustic modems). Test signals were 

frequency modulated tones, sweeps, and 

bands of noise with fundamental 

frequencies between 8 and 16 kHz; 128 

to 130 [± 3] dB source levels; 1- to 2-s 

duration [60–80 percent duty cycle]; or 

100 percent duty cycle. They recorded 

seal positions and the mean number of 

individual surfacing behaviors during 

control periods (no exposure), before 

exposure, and in 15-min experimental 

sessions (n = 7 exposures for each sound 

type). Seals generally swam away from 

each source at received levels of 

approximately 107 dB, avoiding it by 

approximately 16 ft (5 m), although they 

did not haul out of the water or change 

surfacing behavior. Seal reactions did 

not appear to wane over repeated 

exposure (i.e., there was no obvious 

habituation), and the colony of seals 

generally returned to baseline 

conditions following exposure. The 

seals were not reinforced with food for 

remaining in the sound field. 

Reactions of harbor seals to the 

simulated noise of a 2-megawatt wind 

power generator were measured by 

Koschinski et al. (2003). Harbor seals 

surfaced significantly further away from 

the sound source when it was active and 

did not approach the sound source as 

closely. The device used in that study 

produced sounds in the frequency range 

of 30 to 800 Hz, with peak source levels 

of 128 dB re 1 μPa at 1 m at the 80- and 

160-Hz frequencies. 

Ship and boat noise do not seem to 

have strong effects on seals in the water, 

but the data are limited. When in the 

water, seals appear to be much less 

apprehensive about approaching 

vessels. Some will approach a vessel out 

of apparent curiosity, including noisy 

vessels such as those operating seismic 

airgun arrays (Moulton and Lawson, 

2002). Gray seals have been known to 

approach and follow fishing vessels in 

an effort to steal catch or the bait from 

traps. In contrast, seals hauled out on 

land often are quite responsive to 

nearby vessels. Terhune (1985) reported 

that northwest Atlantic harbor seals 

were extremely vigilant when hauled 

out and were wary of approaching (but 

less so passing) boats. Suryan and 

Harvey (1999) reported that Pacific 

harbor seals commonly left the shore 

when powerboat operators approached 

to observe the seals. Those seals 

detected a powerboat at a mean distance 

of 866 ft (264 m), and seals left the haulout site when boats approached to 

within 472 ft (144 m). 

Hearing Impairment and Other 

Physiological Effects 

Temporary or permanent hearing 

impairment is a possibility when marine 

mammals are exposed to very strong 

sounds. Non-auditory physiological 

effects might also occur in marine 

mammals exposed to strong underwater 

sound. Possible types of non-auditory 

physiological effects or injuries that 

theoretically might occur in mammals 

close to a strong sound source include 

stress, neurological effects, bubble 

formation, and other types of organ or 

tissue damage. It is possible that some 

marine mammal species (i.e., beaked 

whales) may be especially susceptible to 

injury and/or stranding when exposed 

to strong pulsed sounds, particularly at 

higher frequencies. Non-auditory 

physiological effects are not anticipated 

to occur as a result of Port operations or 

maintenance, as none of the activities 

associated with the Neptune Port will 

generate sounds loud enough to cause 

such effects. The following subsections 

discuss in somewhat more detail the 

possibilities of TTS and permanent 

threshold shift (PTS). 

TTS—TTS is the mildest form of 

hearing impairment that can occur 

during exposure to a strong sound 

(Kryter, 1985). While experiencing TTS, 

the hearing threshold rises and a sound 

must be stronger in order to be heard. 

At least in terrestrial mammals, TTS can 

last from minutes or hours to (in cases 

of strong TTS) days. For sound 

exposures at or somewhat above the 

TTS threshold, hearing sensitivity in 

both terrestrial and marine mammals 

recovers rapidly after exposure to the 

noise ends. Few data on sound levels 

and durations necessary to elicit mild 

TTS have been obtained for marine 

mammals, and none of the published 

data concern TTS elicited by exposure 

to multiple pulses of sound. 

Human non-impulsive noise exposure 

guidelines are based on exposures of 

equal energy (the same sound exposure 

level [SEL]) producing equal amounts of 

hearing impairment regardless of how 

the sound energy is distributed in time 

(NIOSH, 1998). Until recently, previous 

marine mammal TTS studies have also 

generally supported this equal energy 

relationship (Southall et al., 2007). 

Three newer studies, two by Mooney et 

al. (2009a, b) on a single bottlenose 

dolphin either exposed to playbacks of 

U.S. Navy mid-frequency active sonar or 

octave-band noise (4–8 kHz) and one by 

Kastak et al. (2007) on a single 

California sea lion exposed to airborne 

octave-band noise (centered at 2.5 kHz), 

concluded that for all noise exposure 

situations, the equal energy relationship 

may not be the best indicator to predict 

TTS onset levels. Generally, with sound 

exposures of equal energy, those that 

were quieter (lower sound pressure 

level [SPL]) with longer duration were 

found to induce TTS onset more than 

those of louder (higher SPL) and shorter 

duration. Given the available data, the 

received level of a single seismic pulse 

(with no frequency weighting) might 

need to be approximately 186 dB re 1 

μPa2·s (i.e., 186 dB SEL) in order to 

produce brief, mild TTS. NMFS 

considers TTS to be a form of Level B 

harassment, which temporarily causes a 

shift in an animal’s hearing, and the 

animal is able to recover. Data on TTS 

from continuous sound (such as that 

produced by Neptune’s proposed Port 

activities) are limited, so the available 

data from seismic activities are used as 

a proxy. Exposure to several strong 

seismic pulses that each have received 

levels near 175–180 dB SEL might result 

in slight TTS in a small odontocete, 

assuming the TTS threshold is (to a first 

approximation) a function of the total 

received pulse energy. Given that the 

SPL is approximately 10–15 dB higher 

than the SEL value for the same pulse, 

an odontocete would need to be 

exposed to a sound level of 190 dB re 

1 μPa (rms) in order to incur TTS. 

TTS was measured in a single, captive 

bottlenose dolphin after exposure to a 

continuous tone with maximum SPLs at 

frequencies ranging from 4 to 11 kHz 

that were gradually increased in 

intensity to 179 dB re 1 μPa and in 

duration to 55 minutes (Nachtigall et al., 

2003). No threshold shifts were 

measured at SPLs of 165 or 171 dB re 

1 μPa. However, at 179 dB re 1 μPa, 

TTSs greater than 10 dB were measured 

during different trials with exposures 

ranging from 47 to 54 minutes. Hearing 

sensitivity apparently recovered within 

45 minutes after noise exposure. 

For baleen whales, there are no data, 

direct or indirect, on levels or properties 

of sound that are required to induce 

TTS. The frequencies to which baleen 

whales are most sensitive are lower than 

those to which odontocetes are most 

sensitive, and natural background noise 

levels at those low frequencies tend to 

be higher. Marine mammals can hear 

sounds at varying frequency levels. 

However, sounds that are produced in 

the frequency range at which an animal 

hears the best do not need to be as loud 

as sounds in less functional frequencies 


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to be detected by the animal. As a result, 

auditory thresholds of baleen whales 

within their frequency band of best 

hearing are believed to be higher (less 

sensitive) than are those of odontocetes 

at their best frequencies (Clark and 

Ellison, 2004). Therefore, for a sound to 

be audible, baleen whales require 

sounds to be louder (i.e., higher dB 

levels) than odontocetes in the 

frequency ranges at which each group 

hears the best. Based on this 

information, it is suspected that 

received levels causing TTS onset may 

also be higher in baleen whales. Since 

current NMFS practice assumes the 

same thresholds for the onset of hearing 

impairment in both odontocetes and 

mysticetes, NMFS’ onset of TTS 

threshold is likely conservative for 

mysticetes. 

In free-ranging pinnipeds, TTS 

thresholds associated with exposure to 

brief pulses (single or multiple) of 

underwater sound have not been 

measured. However, systematic TTS 

studies on captive pinnipeds have been 

conducted (Bowles et al., 1999; Kastak 

et al., 1999, 2005, 2007; Schusterman et 

al., 2000; Finneran et al., 2003; Southall 

et al., 2007). Kastak et al. (1999) 

reported TTS of approximately 4–5 dB 

in three species of pinnipeds (harbor 

seal, Californian sea lion, and northern 

elephant seal) after underwater 

exposure for approximately 20 minutes 

to noise with frequencies ranging from 

100–2,000 Hz at received levels 60–75 

dB above hearing threshold. This 

approach allowed similar effective 

exposure conditions to each of the 

subjects, but resulted in variable 

absolute exposure values depending on 

subject and test frequency. Recovery to 

near baseline levels was reported within 

24 hours of noise exposure (Kastak et 

al., 1999). Kastak et al. (2005) followed 

up on their previous work using higher 

sensitivity levels and longer exposure 

times (up to 50-min) and corroborated 

their previous findings. The sound 

exposures necessary to cause slight 

threshold shifts were also determined 

for two California sea lions and a 

juvenile elephant seal exposed to 

underwater sound for similar duration. 

The sound level necessary to cause TTS 

in pinnipeds depends on exposure 

duration, as in other mammals; with 

longer exposure, the level necessary to 

elicit TTS is reduced (Schusterman et 

al., 2000; Kastak et al., 2005, 2007). For 

very short exposures (e.g., to a single 

sound pulse), the level necessary to 

cause TTS is very high (Finneran et al., 

2003). For pinnipeds exposed to in-air 

sounds, auditory fatigue has been 

measured in response to single pulses 

and to non-pulse noise (Southall et al., 

2007), although high exposure levels 

were required to induce TTS-onset 

(SEL: 129 dB re: 20 μPa2·s; Bowles et al., 

unpub. data). 

NMFS (1995, 2000) concluded that 

cetaceans and pinnipeds should not be 

exposed to pulsed underwater noise at 

received levels exceeding, respectively, 

180 and 190 dB re 1 μPa (rms). The 

established 180- and 190-dB re 1 μPa 

(rms) criteria are not considered to be 

the levels above which TTS might 

occur. Rather, they are the received 

levels above which, in the view of a 

panel of bioacoustics specialists 

convened by NMFS before TTS 

measurements for marine mammals 

started to become available, one could 

not be certain that there would be no 

injurious effects, auditory or otherwise, 

to marine mammals. Since the modeled 

broadband source level for 100 percent 

thruster use during Port operations is 

180 dB re 1 μPa at 1 m (rms), it is highly 

unlikely that marine mammals would be 

exposed to sound levels at the 180- or 

190-dB thresholds, thereby reducing the 

risk of TTS to marine mammals in the 

area. 

PTS—When PTS occurs, there is 

physical damage to the sound receptors 

in the ear. In some cases, there can be 

total or partial deafness, whereas in 

other cases, the animal has an impaired 

ability to hear sounds in specific 

frequency ranges. 

There is no specific evidence that 

exposure to underwater industrial 

sounds can cause PTS in any marine 

mammal (see Southall et al., 2007). 

However, given the possibility that 

marine mammals might incur TTS, 

there has been further speculation about 

the possibility that some individuals 

occurring very close to industrial 

activities might incur PTS. Richardson 

et al. (1995) hypothesized that PTS 

caused by prolonged exposure to 

continuous anthropogenic sound is 

unlikely to occur in marine mammals, at 

least for sounds with source levels up to 

approximately 200 dB re 1 μPa at 1 m 

(rms). Single or occasional occurrences 

of mild TTS are not indicative of 

permanent auditory damage in 

terrestrial mammals. Relationships 

between TTS and PTS thresholds have 

not been studied in marine mammals 

but are assumed to be similar to those 

in humans and other terrestrial 

mammals. PTS might occur at a 

received sound level at least several 

decibels above that inducing mild TTS. 

It is highly unlikely that marine 

mammals could receive sounds strong 

enough (and over a sufficient duration) 

to cause PTS (or even TTS) during the 

proposed Port operations and 

maintenance/repair activities. The 

modeled broadband source level for 100 

percent thruster use during port 

operations is 180 dB re 1 μPa at 1 m 

(rms). This does not reach the threshold 

of 190 dB currently used for pinnipeds. 

The threshold for cetaceans is 180 dB; 

therefore, cetaceans would have to be 

immediately adjacent to the vessel even 

possibly incur hearing impairment. 

Based on this conclusion and the 

mitigation measures proposed for 

inclusion in the regulations (described 

later in this document in the ‘‘Proposed 

Mitigation’’ section), it is highly unlikely 

that any type of hearing impairment 

would occur as a result of Neptune’s 

proposed activities. 

Additionally, the potential effects to 

marine mammals described in this 

section of the document do not take into 

consideration the proposed monitoring 

and mitigation measures described later 

in this document (see the ‘‘Proposed 

Mitigation’’ and ‘‘Proposed Monitoring 

and Reporting’’ sections). 

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. 

Potential Impacts From Repairs 

Major repairs to the Neptune Port and 

pipeline may affect marine mammal 

habitat in several ways: Disturbing the 

seafloor; increasing turbidity slightly; 

and generating additional underwater 

sound in the area. Sediment transport 

modeling conducted by Neptune on 

construction procedures indicated that 

initial turbidity from installation of the 

pipeline could reach 100 milligrams per 

liter (mg/L), but will subside to 20 mg/ 

L after 4 hours. Turbidity associated 

with the flowline and hot-tap will be 

considerably less and also will settle 

within hours of the work being 

completed. Therefore, any increase in 

turbidity from a major repair during 

operations is anticipated to be 

insignificant. Repair activities will not 

create long-term habitat changes, and 

marine mammals displaced by the 

disturbance to the seafloor are expected 

to return soon after the repair is 

completed. 

During repair of the Neptune Port and 

pipeline, underwater sound levels will 

be temporarily elevated. These 

underwater sound levels will cause 

some marine species to temporarily 

disperse from or avoid repair areas, but 


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they are expected to return shortly after 

the repair is completed. 

Based on the foregoing, repair 

activities will not create long-term 

habitat changes, and marine mammals 

displaced by the disturbance to the 

seafloor are expected to return soon 

after repair activities cease. Marine 

mammals also could be indirectly 

affected if benthic prey species are 

displaced or destroyed by repair 

activities. However, affected benthic 

species are expected to recover soon 

after the completion of repairs and will 

represent only a small portion of food 

available to marine mammals in the 

area. 

Potential Impacts From Operation 

Operation of the Port will result in 

long-term, continued disturbance of the 

seafloor, regular withdrawal of seawater, 

and generation of underwater sound. 

Seafloor Disturbance: The structures 

associated with the Port (flowline and 

pipeline, unloading buoys and chains, 

suction anchors) will be permanent 

modifications to the seafloor. Up to 63.7 

acres (0.25 km2) of additional seafloor 

will be subject to disturbance due to 

chain and flexible riser sweep while the 

buoys are occupied by SRVs. 

Ballast and Cooling Water 

Withdrawal: Withdrawal of ballast and 

cooling water at the Port as the SRV 

unloads cargo (approximately 2.39 

million gallons [9 million liters] per 

day) could potentially entrain 

zooplankton and ichthyoplankton that 

serve as prey for some whale species. 

This estimate includes the combined 

seawater intake while two SRVs are 

moored at the Port (approximately 9 hr 

every 6 days). The estimated 

zooplankton abundance in the vicinity 

of the seawater intake ranges from 25.6– 

105 individuals per gallon (Libby et al., 

2004). This means that the daily intake 

will remove approximately 61.2–251 

million individual zooplankton per day, 

the equivalent of approximately 7.65– 

31.4 lbs (3.47–14.2 kg). Since 

zooplankton are short-lived species 

(e.g., most copepods live from 1 wk to 

several months), these amounts will be 

indistinguishable from natural 

variability. 

In the long-term, approximately 64.6 

acres (0.26 km2) of seafloor will be 

permanently disturbed to accommodate 

the Port (including the associated 

pipeline). The area disturbed because of 

long-term chain and riser sweep 

includes 63.7 acres (0.25 km2) of soft 

sediment. The area of disturbance will 

be similar in calm seas and in hurricane 

conditions. The chain weight will 

restrict the movement of the buoy or the 

vessel moored on the buoy. An 

additional 0.9 acre (0.004 km2) of soft 

sediments will be converted to hard 

substrate. The total affected area will be 

small compared to the soft sediments 

available in the proposed project area. 

Long-term disturbance from installation 

of the Port will comprise approximately 

0.3 percent of the estimated 24,000 acres 

(97 km2) of similar bottom habitat 

surrounding the project area (northeast 

sector of Massachusetts Bay). 

It is likely that displaced organisms 

will not return to the area of continual 

chain and riser sweep. A shift in benthic 

faunal community is expected in areas 

where soft sediment is converted to 

hard substrate (Algonquin Gas 

Transmission LLC, 2005). This impact 

will be beneficial for species that prefer 

hard-bottom structure and adverse for 

species that prefer soft sediment. 

Overall, because of the relatively small 

areas that will be affected compared to 

the overall size of Massachusetts Bay, 

impacts on soft-bottom communities are 

expected to be minimal. 

Daily removal of seawater will reduce 

the food resources available for 

planktivorous organisms. The marine 

mammal species in the area have fairly 

broad diets and are not dependent on 

any single species for survival. Because 

of the relatively low biomass that will 

be entrained by the Port, the broad diet 

of the marine mammals in the area, and 

broad availability of organisms in the 

proposed project area, indirect impacts 

on the food web that result from 

entrainment of planktonic fish and 

shellfish eggs and larvae are expected to 

be minor and therefore should have 

minimal impact on affected marine 

mammal species or stocks. 

Potential Impacts From Sound 

Generation 

The groups of important fish, 

including those that constitute prey for 

some of the marine mammals found in 

the project area, that occur in the 

vicinity of the Neptune Port are 

comprised of species showing 

considerable diversity in hearing 

sensitivity, anatomical features related 

to sound detection (e.g., swim bladder, 

connections between swim bladder and 

ear), habitat preference, and life history. 

Neptune’s application contains a 

discussion on sound production, sound 

detection, and variability of fish hearing 

sensitivities. Please refer to the 

application (see ADDRESSES) for the full 

discussion. A few summary paragraphs 

are provided here for reference. 

Fishes produce sounds that are 

associated with behaviors that include 

territoriality, mate search, courtship, 

and aggression. It has also been 

speculated that sound production may 

provide the means for long distance 

communication and communication 

under poor underwater visibility 

conditions (Zelick et al., 1999), although 

the fact that fish communicate at lowfrequency sound levels where the 

masking effects of ambient noise are 

naturally highest suggests that very long 

distance communication would rarely 

be possible. Fishes have evolved a 

diversity of sound generating organs and 

acoustic signals of various temporal and 

spectral contents. Fish sounds vary in 

structure, depending on the mechanism 

used to produce them (Hawkins, 1993). 

Generally, fish sounds are 

predominantly composed of low 

frequencies (less than 3 kHz). 

Since objects in the water scatter 

sound, fish are able to detect these 

objects through monitoring the ambient 

noise. Therefore, fish are probably able 

to detect prey, predators, conspecifics, 

and physical features by listening to the 

environmental sounds (Hawkins, 1981). 

There are two sensory systems that 

enable fish to monitor the vibrationbased information of their surroundings. 

The two sensory systems, the inner ear 

and the lateral line, constitute the 

acoustico-lateralis system. 

Although the hearing sensitivities of 

very few fish species have been studied 

to date, it is becoming obvious that the 

intra- and inter-specific variability is 

considerable (Coombs, 1981). Nedwell 

et al. (2004) compiled and published 

available fish audiogram information. A 

noninvasive electrophysiological 

recording method known as auditory 

brainstem response (ABR) is now 

commonly used in the production of 

fish audiograms (Yan, 2004). Generally, 

most fish have their best hearing in the 

low-frequency range (i.e., less than 1 

kHz). Even though some fish are able to 

detect sounds in the ultrasonic 

frequency range, the thresholds at these 

higher frequencies tend to be 

considerably higher than those at the 

lower end of the auditory frequency 

range. This generalization applies to fish 

species occurring in the Neptune Port 

area. Table 9–1 in Neptune’s application 

(see ADDRESSES) outlines the measured 

auditory sensitivities of fish that are 

most relevant to the Neptune Port area. 

Literature relating to the impacts of 

sound on marine fish species can be 

divided into the following categories: 

(1) Pathological effects; (2) physiological 

effects; and (3) behavioral effects. 

Pathological effects include lethal and 

sub-lethal physical damage to fish; 

physiological effects include primary 

and secondary stress responses; and 

behavioral effects include changes in 

exhibited behaviors of fish. Behavioral 

changes might be a direct reaction to a 


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detected sound or a result of the 

anthropogenic sound masking natural 

sounds that the fish normally detect and 

to which they respond. The three types 

of effects are often interrelated in 

complex ways. For example, some 

physiological and behavioral effects 

could potentially lead to the ultimate 

pathological effect of mortality. Hastings 

and Popper (2005) reviewed what is 

known about the effects of sound on 

fishes and identified studies needed to 

address areas of uncertainty relative to 

measurement of sound and the 

responses of fishes. Popper et al. (2003/ 

2004) also published a paper that 

reviews the effects of anthropogenic 

sound on the behavior and physiology 

of fishes. 

The following discussions of the three 

primary types of potential effects on fish 

from exposure to sound consider 

continuous sound sources since, such 

sounds will be generated by the 

proposed activities associated with the 

Neptune Port; however, most research 

reported in the literature focuses on the 

effects of airguns, which produce pulsed 

sounds. A full discussion is provided in 

Neptune’s application (see ADDRESSES), 

and a summary is provided here. 

Potential effects of exposure to 

continuous sound on marine fish 

include TTS, physical damage to the ear 

region, physiological stress responses, 

and behavioral responses such as startle 

response, alarm response, avoidance, 

and perhaps lack of response due to 

masking of acoustic cues. Most of these 

effects appear to be either temporary or 

intermittent and therefore probably do 

not significantly impact the fish at a 

population level. The studies that 

resulted in physical damage to the fish 

ears used noise exposure levels and 

durations that were far more extreme 

than would be encountered under 

conditions similar to those expected at 

the Neptune Port. 

The known effects of underwater 

noise on fish have been reviewed. Noise 

levels needed to cause temporary 

hearing loss and damage to hearing are 

higher and last longer than noise that 

will be produced at Neptune. The 

situation for disturbance responses is 

less clear. Fish do react to underwater 

noise from vessels and move out of the 

way, move to deeper depths, or change 

their schooling behavior. The received 

levels at which fish react are not known 

and in fact are somewhat variable 

depending upon circumstances and 

species. In order to assess the possible 

effects of underwater project noise, it is 

best to examine project noise in relation 

to continuous noises routinely produced 

by other projects and activities such as 

shipping, fishing, etc. 

The two long-term sources of 

continuous noise associated with the 

project are the ship transits between the 

Boston shipping lanes and the 

unloading buoys and the regasification 

process at the carriers when moored to 

the unloading buoys. Noise levels 

associated with these two activities are 

relatively low and are unlikely to have 

any effect on prey species in the area. 

One other activity expected to produce 

short periods of continuous noise is the 

carrier maneuvering bouts at the Port. 

Although this activity is louder, it is 

still less than the noise levels associated 

with large ships at cruising speed. The 

carrier maneuvering using the ship’s 

thrusters would produce short periods 

of louder noise for 10–30 minutes every 

4–8 days. On average, these thruster 

noises would be heard about 20 hr/yr. 

Even in the unlikely event that these 

two activities caused disturbance to 

marine fish, the short periods of time 

involved serve to minimize the effects. 

In conclusion, NMFS has 

preliminarily 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. 

Proposed 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 

proposed in order to effect the least 

practicable adverse impact on the 

species or stock and its habitat. Both 

sets of measures are discussed next. 

These measures are the same ones that 

were proposed in the 2010 IHA Federal 

Register notice (75 FR 24906, May 6, 

2010) and that are currently required to 

be implemented by Neptune in the 2010 

IHA (75 FR 41440, July 16, 2010). 

Mitigation Measures Proposed 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. 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 will 

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 

proposed for inclusion in these 

regulations and described in part (2) of 

this subsection. 

(1) Mitigation Measures for Major 

Repairs (May 1 to November 30) 

(A) During repairs, if a marine 

mammal is detected within 0.5 mi (0.8 

km) of the repair vessel, 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 backcalculated source level, based on the 

most conservative cylindrical model of 

acoustic energy spreading, is estimated 

to be 139 dB re 1 μPa. 


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(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). 

(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 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 has 

proposed to implement the following 

additional mitigation measures: 

(A) If on-board PSOs do not have at 

least 0.5-mi (0.8-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 0.5-mi (0.8-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 

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. 

(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 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’ final rule (73 FR 60173, October 

10, 2008) to implement speed 

restrictions to reduce the likelihood and 

severity of ship strikes of right whales: 

• CCB 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°12′ 

N. latitude; 

• Off Race Point SMA year round, 

which is bounded by straight lines 

connecting the following coordinates in 

the order stated: 42°30′ N. 69°45′ W.; 

thence to 42°30′ N. 70°30′ W.; thence to 

42°12′ N. 70°30′ W.; thence to 42°12′ N. 

70°12′ W.; thence to 42°04′56.5′′; N. 

70°12′ W.; thence along mean high 

water line and inshore limits of 

COLREGS limit to a latitude of 41°40′ 

N.; thence due east to 41°41′ N. 69°45′ 

W.; thence back to starting point; and 

• GSC SMA from April 1 through July 

31, which is bounded by straight lines 

connecting the following coordinates in 

the order stated: 

42°30′ N. 69°45′ W. 

41°40′ N. 69°45′ W. 

41°00′ N. 69°05′ W. 

42°09′ N. 67°08′24′′ W. 

42°30′ N. 67°27′ W. 

42°30′ N. 69°45′ W. 

(4) Additional Mitigation Measures 

(A) In approaching and departing 

from the Neptune Port, SRVs shall use 

the Boston 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 ‘‘Proposed 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 


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Port marked on nautical charts, and it is 

enforceable by the USCG in accordance 

with the 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 

Proposed by NMFS 

In addition to the mitigation measures 

proposed in Neptune’s application, 

NMFS proposes the following measures 

be included in these proposed 

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. 

Proposed 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, 

NMFS has preliminarily determined 

that the mitigation measures proposed 

above from both NMFS and Neptune 

(hereinafter the ‘‘proposed mitigation 

measures’’) provide the means of 

effecting the least practicable adverse 

impact on marine mammal species or 

stocks and their habitat, paying 

particular attention to rookeries, mating 

grounds, and areas of similar 

significance. 

The proposed rule comment period 

will afford the public an opportunity to 

submit recommendations, views, and/or 

concerns regarding this action and the 

proposed mitigation measures. While 

NMFS has determined preliminarily 

that the proposed mitigation measures 

presented in this document will effect 

the least practicable adverse impact on 

the affected species or stocks and their 

habitat, NMFS will consider all public 

comments to help inform our final 

decision. Consequently, the proposed 

mitigation measures may be refined, 

modified, removed, or added to prior to 

the issuance of the final rule based on 

public comments received, and where 

appropriate, further analysis of any 

additional mitigation measures. 

Proposed 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 proposed 

action area. 

Neptune proposed both visual and 

acoustic monitoring programs in the 

Plan contained in the application. The 

Plan may be modified or supplemented 

based on comments or new information 

received from the public during the 

public comment period. Summaries of 

those plans, as well as the proposed 

reporting, are contained next. 

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 nearreal-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 five years 

during full 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. 

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 


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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 

the 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 all detection data in 

near-real-time for detections of rank 

greater than or equal to 6 via Iridium 

satellite link to the BRP server website 

every 20 minutes. 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. 

Some additional passive acoustic 

monitoring is proposed for repair 

activities that occur between May 1 and 

November 30 in any given year 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 install a 

passive acoustic system to detect and 

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 will 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. Neptune shall provide 

NMFS with empirically measured 

source level data for all sources of noise 

associated with LNG port maintenance 

and repair activities. Measurements 

should be carefully coordinated with 

noise-producing activities and should 

be collected from platforms that are as 

close as possible to noise producing 

activities. 

Lastly, to further assist in evaluations 

of the Neptune Port’s operational 

acoustic output, source levels associated 

with dynamic positioning of SRVs at the 

buoys will be estimated using empirical 

measurements collected from a platform 

positioned as close as practicable to 

thrusters while in use. 

Visual Monitoring 

(1) Maintenance and Repair Activities 

During maintenance- and repairrelated activities, Neptune LNG shall 

employ two qualified PSOs on each 

vessel that has a DP system. All PSOs 

must 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. 

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 beginning at daybreak using 

the naked eye, hand-held binoculars, 

and/or power binoculars (e.g, Big Eyes). 

The PSOs shall scan the ocean surface 

by eye for a minimum of 40 minutes 

every hour. 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 any 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; 


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• 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 July 1 through June 30 of 

each year of activity. The weekly and 

annual reports should 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. 

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 shall also be included in the 

annual reports. Additional information 

that will be recorded during operation 

and repair/maintenance activities and 

contained in the reports include: date 

and time of marine mammal detections 

(visually or acoustically), weather 

conditions, species identification, 

approximate distance from the source, 

activity of the vessel or at the 

construction site when a marine 

mammal is sighted, and whether 

thrusters were in use and, if so, how 

many at the time of the sighting. 

In addition to annual reports, NMFS 

proposes to require Neptune to submit 

a draft comprehensive final report to 

NMFS, Office of Protected Resources, 

and NMFS, Northeast Regional Office, 

180 days prior to the expiration of the 

regulations. This comprehensive 

technical report will provide full 

documentation of methods, results, and 

interpretation of all monitoring during 

the first 41⁄2 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, 

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. Based on the number of sightings 

contained in the weekly reports, it 

appears that NMFS’ estimated take 

levels are accurate. No SRVs have yet 

arrived at the Port for regasification; 

therefore, there are no reports describing 

the results of the visual monitoring 

program for this phase of the project. 

However, it is anticipated that visual 

observations will be able to continue as 

they were during construction. 

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). 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. 

The passive acoustic arrays will remain 

deployed during the time frame of these 

proposed regulations in order to obtain 

information during the operational 

phase of the Port facility. 

Adaptive Management 

The final regulations governing the 

take of marine mammals incidental to 

operation and repair/maintenance 

activities at the Neptune Port will 

contain an adaptive management 

component. 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. 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 dates of the 

regulations, new information is 

presented from monitoring, reporting, or 

research, these regulations may be 

modified, in whole, or in part after 

notice and opportunity of public review, 

as allowed for in 50 CFR 216.105(c). In 

addition, LOAs shall be withdrawn or 

suspended if, after notice and 

opportunity for public comment, the 

Assistant Administrator finds, among 

other things, 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 


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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. 

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 

speed restriction measures that are 

proposed that were described earlier in 

this document. 

For continuous sounds, such as those 

produced by Neptune’s proposed 

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 

zone of influence (ZOI; e.g., the area 

ensonified by the 120-dB contour) 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. 

In 2009, Neptune contracted JASCO to 

conduct sound source measurement 

tests on the SRV while using the 

thrusters at full power. The reports are 

contained in Appendix C of Neptune’s 

application (see ADDRESSES). The results 

for the use of both bow thrusters at 100 

percent power indicate that the 120-dB 

radius is estimated to be 1.9 mi (3 km), 

creating a maximum ZOI of 11.2 mi2 (29 

km2). Since thruster use will be 

intermittent during the docking and 

regasification activities, this zone 

presents a realistic representation of the 

amount of area that could potentially be 

ensonified for a short period of time to 

dock the SRV to the Port. 

Other vessels would be required for 

use during maintenance and repair 

activities at the Port facility. Sounds 

generated during those activities would 

be similar to or less than those 

generated during original construction 

of the facility. Therefore, NMFS has 

used the 120-dB contour estimated for 

construction in the previous IHAs (see 

74 FR 21648, May 8, 2009) for repair 

and maintenance activities. Depending 

on water depth, the 120-dB contour 

during repair and maintenance activities 

will extend from the source (the Port) 

out to 2.4 mi (3.9 km) and cover an area 

of 20.1 mi2 (52 km2). 

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-perunit-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 is provided previously in 

this document, in the ‘‘Description of 


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Marine Mammals in the Area of the 

Specified Activity’’ section. 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 1 

in this document outlines the density, 

abundance, take estimates, and percent 

of population for the 14 species for 

which NMFS is proposing to authorize 

Level B harassment. 

In calculating the area density of these 

species from these linear density data, 

NMFS used 0.25 mi (0.4 km) as a 

conservative hypothetical strip width 

(W). Thus 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 ZOI of the LNG Port facility area of 

approximately 11.2 mi2 (29 km2) 

maximum ZOI, corrected for 50 percent 

underwater, are 22, 26, 72, 16, 6, 111, 

and 357, 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 months 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. 

Based on the same calculation method 

described above for Port operations (but 

using the 120-dB ZOI of approximately 

20.1 mi2 (52 km2)), 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 11, 13, 36, 8, 

11, 56, and 179, respectively. These 

numbers are based on 14 days of repair 

and maintenance activities occurring 

annually. It is unlikely that this much 

repair and maintenance work would be 

required each year. 

The total estimated annual take of 

these species as a result of both 

operations and repair and maintenance 

activities of the Neptune Port facility is: 

33 North Atlantic right whales; 39 fin 

whales; 108 humpback whales; 24 

minke whales; 17 sei whales; 166 longfinned pilot whales; and 536 Atlantic 

white-sided dolphins. These numbers 

represent a maximum of 9.9, 1.8, 12.8, 

0.7, 4.4, 0.5, and 0.8 percent of the 

populations for these species or stocks 

in the western North Atlantic, 

respectively. 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 

proposed 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 μPa rms incidental to operations and 

repair and maintenance activities 

annually, respectively. 

Because Massachusetts Bay represents 

only a small fraction of the western 

North Atlantic basin where these 

animals occur NMFS has preliminarily 

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 that are proposed 

for inclusion in the regulations (if 

issued). 

TABLE 1—DENSITY ESTIMATES, POPULATION ABUNDANCE ESTIMATES, TOTAL ANNUAL PROPOSED TAKE (WHEN COMBINE

TAKES FROM OPERATION AND MAINTENANCE/REPAIR ACTIVITIES), AND PERCENTAGE OF POPULATION THAT MAY BE

TAKEN FOR THE POTENTIALLY AFFECTED SPECIES

Species SPUE (n/km) Abundance 1 Abundance 2 Total annual 

proposed take 

Percentage of 

stock or 

population 

North Atlantic right whale ..................................................... 0.0082 345 361 33 9.1–9.6 

Fin whale .............................................................................. 0.0097 2,269 3,985 39 1–1.7 

Humpback whale ................................................................. 0.0265 847 847 108 12.8 

Minke whale ......................................................................... 0.0059 3,312 8,987 24 0.3–0.7 

Sei whale ............................................................................. 0.0084 386 386 17 4.4 

Long-finned pilot whale ........................................................ 0.0407 31,139 12,619 167 0.5–1.3 

Atlantic white-sided dolphin ................................................. 0.1314 63,368 63,368 536 0.8 

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 


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TABLE 1—DENSITY ESTIMATES, POPULATION ABUNDANCE ESTIMATES, TOTAL ANNUAL PROPOSED TAKE (WHEN COMBINE

TAKES FROM OPERATION AND MAINTENANCE/REPAIR ACTIVITIES), AND PERCENTAGE OF POPULATION THAT MAY BE

TAKEN FOR THE POTENTIALLY AFFECTED SPECIES—Continued 

Species SPUE (n/km) Abundance 1 Abundance 2 Total annual 

proposed take 

Percentage of 

stock or 

population 

Gray seal .............................................................................. NA 125,541– 

169,064 

125,541– 

169,064 

15 0.01 

1Abundance estimates in 2009 NMFS Atlantic and Gulf of Mexico SAR; 2Abundance estimates in 2010 Draft NMFS Atlantic and Gulf of Mexico SAR; NA = Not Available 

Negligible Impact and Small Numbers 

Analysis and Preliminary 

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 proposed port operation and 

maintenance and repair activities, and 

none are proposed to be 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 1 in this document 

outlines the number of Level B 

harassment takes that are anticipated as 

a result of the proposed 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. 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 proposed 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 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. 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. As stated previously 

in this document, 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 proposed project area. 

There is currently no designated critical 

habitat or known reproductive areas for 

any of these species in or near the 

proposed project area. However, there 

are several well known North Atlantic 

right whale feeding grounds in the CCB 

and GSC. 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. 

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 earlier in this document 

(see the ‘‘Description of Marine 

Mammals in the Area of the Specified 

Activity’’ section). 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 (12.8 

percent for humpback whales, 9.1–9.6 

percent for North Atlantic right whales, 

and no more than 4.4 percent of any 

other species). 

As stated previously, NMFS’ practice 

has been to apply the 120 dB re 1 μPa 


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(rms) received level threshold for 

underwater continuous sound levels to 

determine whether take by Level B 

harassment occurs. However, not all 

animals react to sounds at this low 

level, and many will not show strong 

reactions (and in some cases any 

reaction) until sounds are much 

stronger. Southall et al. (2007) provide 

a severity scale for ranking observed 

behavioral responses of both freeranging marine mammals and laboratory 

subjects to various types of 

anthropogenic sound (see Table 4 in 

Southall et al. (2007)). Tables 15, 17, 19, 

and 21 in Southall et al. (2007) outline 

the numbers of low-frequency, midfrequency, 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 

proposed 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 preliminarily 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 proposed 

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 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 subsea 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 preliminarily 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 

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 is 

currently reviewing 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. This review will be 

completed prior to the issuance of final 

regulations for this action. 

Information Solicited 

NMFS requests interested persons to 

submit comments, information, and 

suggestions concerning the request and 

the content of the proposed regulations 

to authorize the taking (see ADDRESSES). 

Prior to submitting comments, NMFS 

recommends readers review NMFS’ 

responses to comments made previously 


jlentini on DSKJ8SOYB1PROD with PROPOSALS4
80282 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules 

for this action (see 73 FR 33400, June 

12, 2008; 74 FR 31926, July 6, 2009; 75 

FR 41440, July 16, 2010). 

Classification 

OMB has determined that this 

proposed rule is not significant for 

purposes of Executive Order 12866. 

Pursuant to section 605(b) of the 

Regulatory Flexibility Act (RFA), the 

Chief Counsel for Regulation of the 

Department of Commerce has certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration that this 

proposed 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 proposed 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 RFA. 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 proposed rule contains collectionof-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. Send 

comments regarding any aspect of this 

data collection, including suggestions 

for reducing the burden, to NMFS and 

the OMB Desk Officer (see ADDRESSES). 

List of Subjects in 50 CFR Part 217 

Exports, Fish, Imports, Indians, 

Labeling, Marine mammals, Penalties, 

Reporting and recordkeeping 

requirements, Seafood, Transportation. 

Dated: December 14, 2010. 

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 proposed to be 

amended as follows: 

PART 217—REGULATIONS 

GOVERNING THE TAKE OF MARINE 

MAMMALS INCIDENTAL TO 

SPECIFIED ACTIVITIES 

1. The authority citation for part 217 

continues to read as follows: 

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

2. Subpart R is added to part 217 to 

read as follows: 

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. 

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 

§ 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°28′09′′ N. lat and 

70°36′22′′ W. long. 

§ 217.171 Effective dates. 

Regulations in this subpart become 

effective upon issuance of the final rule. 

§ 217.172 Permissible methods of taking. 

(a) Under Letters of Authorization 

issued pursuant to §§ 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 

§ 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 § 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)—165 (an average 

of 33 annually) 

(ii) Fin whale (Balaenoptera 

physalus)—195 (an average of 39 

annually) 

(iii) Humpback whale (Megaptera 

novaeangliae)—540 (an average of 108 

annually) 

(iv) Minke whale (Balaenoptera 

acutorostrata)—120 (an average of 24 

annually) 

(v) Sei whale (Balaenoptera 

borealis)—85 (an average of 17 

annually) 

(2) Odontocetes: 

(i) Long-finned pilot whale 

(Globicephala melas)—835 (an average 

of 167 annually) 

(ii) Atlantic white-sided dolphin 

(Lagenorhynchus acutus)—2,680 (an 

average of 536 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) 

(ii) Gray seal (Halichoerus grypus)— 

75 (an average of 15 annually) 

§ 217.173 Prohibitions. 

Notwithstanding takings 

contemplated in § 217.170 and 

authorized by a Letter of Authorization 

issued under §§ 216.106 and 217.177, 

no person in connection with the 

activities described in § 217.170 may: 

(a) Take any marine mammal not 

specified in § 217.172(b); 

(b) Take any marine mammal 

specified in § 217.172(b) other than by 

incidental, unintentional Level B 

Harassment; 

(c) Take a marine mammal specified 

in § 217.172(b) if such taking results in 

more than a negligible impact on the 

species or stocks of such marine 

mammal; or 


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(d) Violate, or fail to comply with, the 

terms, conditions, and requirements of 

this subpart or a Letter of Authorization 

issued under §§ 216.106 and 217.177. 

§ 217.174 Mitigation. 

(a) When conducting the activities 

identified in § 217.170(a), the mitigation 

measures contained in the Letter of 

Authorization issued under §§ 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 0.5 mi (0.8 km) of the 

repair vessel, 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 backcalculated source level, based on the 

most conservative cylindrical model of 

acoustic energy spreading, is estimated 

to be 139 dB re 1 μPa. 

(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). 

(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 § 217.174(a)(1)(i)–(vii): 

(i) If on-board PSOs do not have at 

least 0.5-mi (0.8-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 0.5-mi (0.8-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’ final rule (73 FR 60173, 

October 10, 2008) to implement speed 

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°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°30′ N. 69°45′ W.; 

thence to 42°30′ N. 70°30′ W.; thence to 

42°12′ N. 70°30′ W.; thence to 42°12′ N. 

70°12′ W.; thence to 42°04′56.5′′ N. 

70°12′ W.; thence along mean high 

water line and inshore limits of 

COLREGS limit to a latitude of 41°40′ 

N.; thence due east to 41°41′ N. 69°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: 

42°30′ N. 69°45′ W. 

41°40′ N. 69°45′ W. 

41°00′ N. 69°05′ W. 


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42°09′ N. 67°08′24′′ W. 

42°30′ N. 67°27′ W. 

42°30′ N. 69°45′ W. 

(4) Additional Mitigation Measures: 

(i) In 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 

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. 

(vi) 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 §§ 216.106 and 217.177. 

(b) [Reserved] 

§ 217.175 Requirements for monitoring 

and reporting. 

(a) Visual Monitoring Program: 

(1) Neptune shall employ two (2) 

PSOs (who must be approved by NMFS 

after a review of their qualifications) 

during maintenance- and repair-related 

activities on each vessel that has a 

dynamic positioning system. 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 beginning at 

daybreak using the naked eye, handheld binoculars, and/or power 

binoculars. 

(5) The PSOs shall scan the ocean 

surface by eye for a minimum of 40 

minutes every hour. All sightings must 

be recorded 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-ofthe-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 

to monitor an array of passive acoustic 

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. 


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(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, is required 

for repair activities that occur between 

May 1 and November 30 in any given 

year 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 install and 

maintain a passive acoustic system to 

detect and 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 

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 

coordinated with noise-producing 

activities and should be collected from 

platforms that are as close as possible to 

noise producing activities. 

(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 any 

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. 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 July 

1 through June 30 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. 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 shall also 

be included in the annual report. 

Additional information that shall be 

recorded during operations and repair/ 

maintenance activities and contained in 

the reports include: date and time of 

marine mammal detections (visually or 

acoustically), weather conditions, 

species identification, approximate 

distance from the source, activity of the 

vessel 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). 


jlentini on DSKJ8SOYB1PROD with PROPOSALS4
80286 Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Proposed Rules 

§ 217.176 Applications for Letters of 

Authorization. 

(a) To incidentally take marine 

mammals pursuant to these regulations, 

the U.S. Citizen (as defined by 

§ 216.103) conducting the activity 

identified in § 217.170(a) (i.e., Neptune) 

must apply for and obtain either an 

initial Letter of Authorization in 

accordance with § 217.177 or a renewal 

under § 217.178. 

(b) [Reserved] 

§ 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). 

§ 217.178 Renewal of Letters of 

Authorization and adaptive management. 

(a) A Letter of Authorization issued 

under § 216.106 and § 217.177 for the 

activity identified in § 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 § 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 receives the monitoring 

reports required under § 217.175(c)(1)– 

(4); and 

(3) NMFS determines that the 

mitigation, monitoring and reporting 

measures required under §§ 217.174 and 

217.175 and the Letter of Authorization 

issued under §§ 216.106 and 217.177 

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 

§§ 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. 

§ 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 §§ 216.106 and 217.177 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 § 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 wellbeing of the species or stocks of marine 

mammals specified in § 217.172(b), a 

Letter of Authorization issued pursuant 

to §§ 216.106 and 217.177 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. 2010–31769 Filed 12–20–10; 8:45 am] 

BILLING CODE 3510–22–P 


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