[Federal Register Volume 75, Number 244 (Tuesday, December 21, 2010)]
[Proposed Rules]
[Pages 80260-80286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31769]



[[Page 80259]]

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Part V





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 217



Taking and Importing Marine Mammals; Taking Marine Mammals Incidental 
to Operation and Maintenance of a Liquefied Natural Gas Facility Off 
Massachusetts; Proposed Rule

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

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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.

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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:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: http://www.regulations.gov.
    <bullet> 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, <a href="/cdn-cgi/l/email-protection#ffb0b6adbebf90929dd19a908fd1989089"><span class="__cf_email__" data-cfemail="450a0c1704052a28276b202a356b222a33">[email protected]</span></a>.
    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

[[Page 80261]]

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 (yd\3\; 140,000 cubic meters (m\3\)). 
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 
Hubline\SM\ (Hubline\SM\) located approximately 9 mi (14.5 km) west of 
the Neptune deepwater port location. The Port will have an expected 
operating life of approximately 25 years. Figure 1-1 of Neptune's 
application shows an isometric view of the Port (see ADDRESSES). 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 
year-round 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 [mu]Pa 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

[[Page 80262]]

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 [mu]Pa 
at 1 m at 2,000 Hertz (Hz) to 174.5 dB re 1 [micro]Pa 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

[[Page 80263]]

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 
white-beaked 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

[[Page 80264]]

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 white-sided 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 year-round 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):
    <bullet> Low frequency cetaceans (13 species of mysticetes): 
functional

[[Page 80266]]

hearing is estimated to occur between approximately 7 Hz and 22 kHz;
    <bullet> 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;
    <bullet> 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
    <bullet> 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

[[Page 80267]]

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 low-frequency 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 signal-to-noise ratio. In the cases of high-frequency 
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 [micro]Pa (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 [micro]Pa (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

[[Page 80268]]

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 low-frequency 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 ``M-sequence'' (sine wave with multiple-phase 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 [mu]Pa (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

[[Page 80269]]

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 semi-submersible 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 non-pulse 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 [mu]Pa 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 [mu]Pa 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

[[Page 80270]]

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 x 98 ft (25 x 30 m) enclosure to non-pulse 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 [<plus-
minus> 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 [mu]Pa 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 haul-out 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 [mu]Pa\2\[middot]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 [mu]Pa (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 [mu]Pa and in duration to 55 minutes (Nachtigall et al., 2003). No 
threshold shifts were measured at SPLs of 165 or 171 dB re 1 [mu]Pa. 
However, at 179 dB re 1 [mu]Pa, TTSs greater than 10 dB were measured 
during different trials with exposures ranging from 47 to 54 minutes. 
Hearing sensitivity apparently recovered within 45 minutes after noise 
exposure.
    For baleen whales, there are no data, 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

[[Page 80271]]

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 [mu]Pa\2\[middot]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 [mu]Pa (rms). The established 180- 
and 190-dB re 1 [mu]Pa (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 [mu]Pa 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 [mu]Pa 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 [mu]Pa 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

[[Page 80272]]

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 
km\2\) 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 km\2\) 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 km\2\) 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 km\2\) 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 km\2\) 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 low-frequency 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 
vibration-based 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

[[Page 80273]]

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 back-calculated source level, based on the most 
conservative cylindrical model of acoustic energy spreading, is 
estimated to be 139 dB re 1 [mu]Pa.

[[Page 80274]]

    (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:
    <bullet> CCB SMA from January 1 through May 15, which includes all 
waters in CCB, extending to all shorelines of the Bay, with a northern 
boundary of 42[deg]12' N. latitude;
    <bullet> Off Race Point SMA year round, which is bounded by 
straight lines connecting the following coordinates in the order 
stated: 42[deg]30' N. 69[deg]45' W.; thence to 42[deg]30' N. 70[deg]30' 
W.; thence to 42[deg]12' N. 70[deg]30' W.; thence to 42[deg]12' N. 
70[deg]12' W.; thence to 42[deg]04'56.5''; N. 70[deg]12' W.; thence 
along mean high water line and inshore limits of COLREGS limit to a 
latitude of 41[deg]40' N.; thence due east to 41[deg]41' N. 69[deg]45' 
W.; thence back to starting point; and
    <bullet> GSC SMA from April 1 through July 31, which is bounded by 
straight lines connecting the following coordinates in the order 
stated:

42[deg]30' N. 69[deg]45' W.
41[deg]40' N. 69[deg]45' W.
41[deg]00' N. 69[deg]05' W.
42[deg]09' N. 67[deg]08'24'' W.
42[deg]30' N. 67[deg]27' W.
42[deg]30' N. 69[deg]45' W.
(4) Additional Mitigation Measures
    (A) 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

[[Page 80275]]

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:
    <bullet> The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
    <bullet> The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
    <bullet> 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 near-real-time information about vocalizing whales. 
Rather, archival noise data collected from the ARU array were used for 
the purpose of understanding the seasonal occurrences and overall 
distributions of whales (primarily North Atlantic right whales) within 
approximately 11.5 mi (18.5 km) of the Neptune Port. Neptune LNG will 
maintain these ARUs in the same configuration for a period of 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

[[Page 80276]]

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 repair-related 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:
    <bullet> The location, time, and nature of the pipeline lateral 
repair activities;
    <bullet> Whether the DP system was operated and, if so, the number 
of thrusters used and the time and duration of DP operation;
    <bullet> Marine mammals observed in the area (number, species, age 
group, and initial behavior);
    <bullet> The distance of observed marine mammals from the repair 
activities;
    <bullet> Observed marine mammal behaviors during the sighting;
    <bullet> Whether any mitigation measures were implemented;
    <bullet> Weather conditions (sea state, wind speed, wind direction, 
ambient temperature, precipitation, and percent cloud cover, etc.);
    <bullet> Condition of the marine mammal observation (visibility and 
glare); and
    <bullet> 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:
    <bullet> All vessel crew members will be trained in marine mammal 
identification and avoidance procedures;
    <bullet> 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;

[[Page 80277]]

    <bullet> Vessel crews will record/document any marine mammal 
sighting(s) during the work period; and
    <bullet> 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 4\1/2\ 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:
    <bullet> Results from Neptune's monitoring from the previous year;
    <bullet> Results from general marine mammal and sound research; or
    <bullet> 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

[[Page 80278]]

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 mi\2\ (29 km\2\). 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 mi\2\ (52 km\2\).
    NMFS recognizes that baleen whale species other than North Atlantic 
right whales have been sighted in the project area from May to 
November. However, the occurrence and abundance of fin, humpback, and 
minke whales is not well documented within the project area. 
Nonetheless, NMFS used the data on cetacean distribution within 
Massachusetts Bay, such as those published by the NCCOS (2006), to 
determine potential takes of marine mammals in the vicinity of the 
project area. Neptune presented density estimates using the CETAP 
(1982) and U.S. Navy MRA (2005) data. The NCCOS (2006) report uses 
information from these sources; however, it also includes information 
from some other studies. Therefore, NMFS used density information for 
the species that are included in the NCCOS (2006) report. These species 
include: North Atlantic right, fin, humpback, minke, pilot, and sei 
whales and Atlantic white-sided dolphins.
    The NCCOS study used cetacean sightings from two sources: (1) the 
North Atlantic Right Whale Consortium (NARWC) sightings database held 
at the University of Rhode Island (Kenney, 2001); and (2) the Manomet 
Bird Observatory (MBO) database, held at NMFS' Northeast Fisheries 
Science Center (NEFSC). The NARWC data contained survey efforts and 
sightings data from ship and aerial surveys and opportunistic sources 
between 1970 and 2005. The main data contributors included: the CETAP, 
the Canadian Department of Fisheries and Oceans, the Provincetown 
Center for Coastal Studies, International Fund for Animal Welfare, 
NEFSC, New England Aquarium, WHOI, and the University of Rhode Island. 
A total of 406,293 mi (653,725 km) of survey track and 34,589 cetacean 
observations were provisionally selected for the NCCOS study in order 
to minimize bias from uneven allocation of survey effort in both time 
and space. The sightings-per-unit-effort (SPUE) was calculated for all 
cetacean species by month covering the southern Gulf of Maine study 
area, which also includes the project area (NCCOS, 2006).
    The MBO's Cetacean and Seabird Assessment Program (CSAP) was 
contracted from 1980 to 1988 by NEFSC to provide an assessment of the 
relative abundance and distribution of cetaceans, seabirds, and marine 
turtles in the shelf waters of the northeastern U.S. (MBO, 1987). The 
CSAP program was designed to be completely compatible with NEFSC 
databases so that marine mammal data could be compared directly with 
fisheries data throughout the time series during which both types of 
information were gathered. A total of 8,383 mi (5,210 km) of survey 
distance and 636 cetacean observations from the MBO data were included 
in the NCCOS analysis. Combined valid survey effort for the NCCOS 
studies included 913,840 mi (567,955 km) of survey track for small 
cetaceans (dolphins and porpoises) and 1,060,226 mi (658,935 km) for 
large cetaceans (whales) in the southern Gulf of Maine. The NCCOS study 
then combined these two data sets by extracting cetacean sighting 
records, updating database field names to match the NARWC database, 
creating geometry to represent survey tracklines and applying a set of 
data selection criteria designed to minimize uncertainty and bias in 
the data used.
    Based on the comprehensiveness and total coverage of the NCCOS 
cetacean distribution and abundance study, NMFS calculated the 
estimated take number of marine mammals based on the most recent NCCOS 
report published in December, 2006. A summary of seasonal cetacean 
distribution and abundance in the project area is provided previously 
in this document, in the ``Description of

[[Page 80279]]

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 
mi\2\ (29 km\2\) 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 mi\2\ (52 
km\2\)), the estimated take numbers by Level B harassment on an annual 
basis for North Atlantic right, fin, humpback, minke, sei, and pilot 
whales and Atlantic white-sided dolphins incidental to Port maintenance 
and repair activities, corrected for 50 percent underwater, are 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 long-finned 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 [mu]Pa 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
----------------------------------------------------------------------------------------------------------------
                                                                                                   Percentage of
             Species                SPUE (n/km)    Abundance \1\   Abundance \2\   Total annual      stock or
                                                                                   proposed take    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

[[Page 80280]]

 
Gray seal.......................              NA  125,541-169,06  125,541-169,06              15            0.01
                                                               4               4
----------------------------------------------------------------------------------------------------------------
\1\ Abundance estimates in 2009 NMFS Atlantic and Gulf of Mexico SAR; \2\ Abundance estimates in 2010 Draft NMFS
  Atlantic and Gulf of Mexico SAR; NA = Not Available

Negligible Impact and Small Numbers Analysis and 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 [micro]Pa

[[Page 80281]]

(rms) received level threshold for underwater continuous sound levels 
to determine whether take by Level B harassment occurs. However, not 
all animals react to sounds at this low level, and many will not show 
strong reactions (and in some cases any reaction) until sounds are much 
stronger. Southall et al. (2007) provide a severity scale for ranking 
observed behavioral responses of both free-ranging marine mammals and 
laboratory subjects to various types of anthropogenic sound (see Table 
4 in Southall et al. (2007)). Tables 15, 17, 19, and 21 in Southall et 
al. (2007) outline the numbers of low-frequency, mid-frequency, and 
high-frequency cetaceans and pinnipeds in water, respectively, reported 
as having behavioral responses to non-pulses in 10-dB received level 
increments. These tables illustrate, especially for cetaceans, that 
more intense observed behavioral responses did not occur until sounds 
were higher than 120 dB (rms). Many of the animals had no observable 
response at all when exposed to anthropogenic sound at levels of 120 dB 
(rms) or even higher.
    The take estimates presented in this document are likely an 
overestimate of the actual number of animals that may be taken by Level 
B harassment in any given year. First, NMFS used the highest value SPUE 
for the season with the highest abundance of each species to determine 
relative abundance from the NCCOS (2006) report. However, the SPUE 
quantiles used in that report had very large ranges. For example, for 
humpback whales, NMFS used the SPUE quantile with a value of 0.1-11.8 
but used 11.8 as the SPUE to determine density. In most cases, the 
highest value SPUE in any given quantile is many magnitudes larger than 
the minimum value in that particular quantile. Second, the estimates 
assume that repairs will be required every year, which may not be the 
case. For the reasons discussed in this section of the document (and 
elsewhere), the 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 sub-sea manifolds), may constitute a modification not 
previously considered in the 2007 Biological Opinion. Construction of 
the Port facility has been completed, and, therefore, is no longer part 
of the proposed action. On July 12, 2010, NMFS' Northeast Regional 
Office issued a Biological Opinion, which concludes that the operation 
of the Neptune LNG deepwater port, including required maintenance and 
repair work, is likely to adversely affect, but is not likely to 
jeopardize the continued existence of the North Atlantic right, 
humpback, fin, and sei whales. NMFS reached this conclusion after 
reviewing the best available information on the status of endangered 
and threatened species under NMFS jurisdiction, the environmental 
baseline for the action area, the effects of the action, and the 
cumulative effects in the action area. Although MARAD served as the 
lead Federal agency for the section 7 consultation, the Biological 
Opinion also considered the effects of permits issued by the Army Corps 
of Engineers, the Federal Energy Regulatory Commission, and the 
Environmental Protection Agency for various portions of the maintenance 
and operation of the Port and associated pipeline, as well as NMFS' 
issuance of authorizations to Neptune under the MMPA for the take of 
marine mammals incidental to Port operations and maintenance/repairs. 
NMFS has 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

[[Page 80282]]

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 collection-of-information requirements subject to the 
provisions of the PRA. These requirements have been approved by OMB 
under control number 0648-0151 and include applications for 
regulations, subsequent LOAs, and reports. 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


Sec.  217.170  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to Neptune LNG LLC 
(Neptune) and those persons it authorizes to conduct activities on its 
behalf for the taking of marine mammals that occurs in the area 
outlined in paragraph (b) of this section and that occur incidental to 
commissioning and operation, including maintenance and repair 
activities, at the Neptune Deepwater Port (Port).
    (b) The taking of marine mammals by Neptune may be authorized in a 
Letter of Authorization only if it occurs at the Neptune Deepwater Port 
within Outer Continental Shelf blocks NK 19-04 6525 and NK 19-04 6575, 
which are located at approximately 42[deg]28'09'' N. lat and 
70[deg]36'22'' W. long.


Sec.  217.171  Effective dates.

    Regulations in this subpart become effective upon issuance of the 
final rule.


Sec.  217.172  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec.  
216.106 and 217.177 of this chapter, the Holder of the Letter of 
Authorization (hereinafter ``Neptune'') may incidentally, but not 
intentionally, take marine mammals within the area described in Sec.  
217.170(b), provided the activity is in compliance with all terms, 
conditions, and requirements of the regulations in this subpart and the 
appropriate Letter of Authorization.
    (b) The incidental take of marine mammals under the activities 
identified in Sec.  217.170(a) is limited to the following species and 
is limited to Level B Harassment:
    (1) Mysticetes:
    (i) North Atlantic right whale (Eubalaena glacialis)--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)


Sec.  217.173  Prohibitions.

    Notwithstanding takings contemplated in Sec.  217.170 and 
authorized by a Letter of Authorization issued under Sec. Sec.  216.106 
and 217.177, no person in connection with the activities described in 
Sec.  217.170 may:
    (a) Take any marine mammal not specified in Sec.  217.172(b);
    (b) Take any marine mammal specified in Sec.  217.172(b) other than 
by incidental, unintentional Level B Harassment;
    (c) Take a marine mammal specified in Sec.  217.172(b) if such 
taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or

[[Page 80283]]

    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a Letter of Authorization issued under 
Sec. Sec.  216.106 and 217.177.


Sec.  217.174  Mitigation.

    (a) When conducting the activities identified in Sec.  217.170(a), 
the mitigation measures contained in the Letter of Authorization issued 
under Sec. Sec.  216.106 and 217.177 must be implemented. These 
mitigation measures include but are not limited to:
    (1) Major Repairs (May 1-November 30):
    (i) During repairs, if a marine mammal is detected within 0.5 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 back-calculated source level, based on the most 
conservative cylindrical model of acoustic energy spreading, is 
estimated to be 139 dB re 1 [mu]Pa.
    (iv) Repair activities may resume after the marine mammal is 
positively reconfirmed outside the established zones (either 500 yd 
(457 m) or 100 yd (91 m), depending upon species).
    (v) While under way, all repair vessels shall remain 500 yd (457 m) 
away from right whales and 100 yd (91 m) away from all other marine 
mammals, unless constrained by human safety concerns or navigational 
constraints.
    (vi) All repair vessels 300 gross tons or greater must maintain a 
speed of 10 knots (18.5 km/hr) or less. Vessels less than 300 gross 
tons carrying supplies or crew between the shore and the repair site 
must contact the Mandatory Ship Reporting System, the U.S. Coast Guard 
(USCG), or the protected species observers (PSOs) at the repair site 
before leaving shore for reports of recent right whale sightings or 
active Dynamic Management Areas (DMAs) and, consistent with navigation 
safety, restrict speeds to 10 knots (18.5 km/hr) or less within 5 mi (8 
km) of any recent sighting location and within any existing DMA.
    (vii) Vessels transiting through the Cape Cod Canal and Cape Cod 
Bay (CCB) between January 1 and May 15 must reduce speeds to 10 knots 
(18.5 km/hr) or less, follow the recommended routes charted by NOAA to 
reduce interactions between right whales and shipping traffic, and 
avoid aggregations of right whales in the eastern portion of CCB.
    (2) Major Repairs (December 1-April 30): If unplanned/emergency 
repair activities cannot be conducted between May 1 and November 30, 
then Neptune shall implement the following mitigation measures in 
addition to those listed in Sec.  217.174(a)(1)(i)-(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[deg]12' N. latitude;
    (ii) Off Race Point SMA year round, which is bounded by straight 
lines connecting the following coordinates in the order stated: 
42[deg]30' N. 69[deg]45' W.; thence to 42[deg]30' N. 70[deg]30' W.; 
thence to 42[deg]12' N. 70[deg]30' W.; thence to 42[deg]12' N. 
70[deg]12' W.; thence to 42[deg]04'56.5'' N. 70[deg]12' W.; thence 
along mean high water line and inshore limits of COLREGS limit to a 
latitude of 41[deg]40' N.; thence due east to 41[deg]41' N. 69[deg]45' 
W.; thence back to starting point; and
    (iii) Great South Channel (GSC) SMA from April 1 through July 31, 
which is bounded by straight lines connecting the following coordinates 
in the order stated:

42[deg]30' N. 69[deg]45' W.
41[deg]40' N. 69[deg]45' W.
41[deg]00' N. 69[deg]05' W.

[[Page 80284]]

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

    (4) Additional Mitigation Measures:
    (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 Sec. Sec.  216.106 and 217.177.
    (b) [Reserved]


Sec.  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, hand-held 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-of-the-Watch who shall then alert 
the Master.
    (b) Passive Acoustic Monitoring (PAM) Program:
    (1) Neptune shall work with NMFS, Stellwagen Bank National Marine 
Sanctuary (SBNMS), and other scientists 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.

[[Page 80285]]

    (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).

[[Page 80286]]

Sec.  217.176  Applications for Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the U.S. Citizen (as defined by Sec.  216.103) conducting 
the activity identified in Sec.  217.170(a) (i.e., Neptune) must apply 
for and obtain either an initial Letter of Authorization in accordance 
with Sec.  217.177 or a renewal under Sec.  217.178.
    (b) [Reserved]


Sec.  217.177  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, shall 
be valid for a period of time not to exceed the period of validity of 
this subpart.
    (b) The Letter of Authorization shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses (i.e., mitigation); and
    (3) Requirements for mitigation, monitoring and reporting.
    (c) Issuance and renewal of the Letter of Authorization shall be 
based on a determination that the total number of marine mammals taken 
by the activity as a whole will have no more than a negligible impact 
on the affected species or stock of marine mammal(s).


Sec.  217.178  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 and Sec.  
217.177 for the activity identified in Sec.  217.170(a) shall be 
renewed upon request by the applicant or determination by NMFS and the 
applicant that modifications are appropriate pursuant to the adaptive 
management component of these regulations, provided that:
    (1) NMFS is notified that the activity described in the application 
submitted under Sec.  217.176 will be undertaken and that there will 
not be a substantial modification to the described work, mitigation or 
monitoring undertaken during the upcoming 12 months;
    (2) NMFS receives the monitoring reports required under Sec.  
217.175(c)(1)-(4); and
    (3) NMFS determines that the mitigation, monitoring and reporting 
measures required under Sec. Sec.  217.174 and 217.175 and the Letter 
of Authorization issued under Sec. Sec.  216.106 and 217.177 were 
undertaken and will be undertaken during the upcoming annual period of 
validity of a renewed Letter of Authorization.
    (b) If either a request for a renewal of a Letter of Authorization 
issued under Sec. Sec.  216.106 and 217.178 or a determination by NMFS 
and the applicant that modifications are appropriate pursuant to the 
adaptive management component of these regulations indicates that a 
substantial modification, as determined by NMFS, to the described work, 
mitigation or monitoring undertaken during the upcoming season will 
occur, NMFS will provide the public a period of 30 days for review and 
comment on the request. Review and comment on renewals of Letters of 
Authorization are restricted to:
    (1) New cited information and data indicating that the 
determinations made in this document are in need of reconsideration, 
and
    (2) Proposed substantive changes to the mitigation and monitoring 
requirements contained in these regulations or in the current Letter of 
Authorization.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register.
    (d) Adaptive Management--NMFS may modify or augment the existing 
mitigation or monitoring measures (after consulting with Neptune 
regarding the practicability of the modifications) if doing so creates 
a reasonable likelihood of more effectively accomplishing the goals of 
mitigation and monitoring set forth in the preamble of these 
regulations. Below are some of the possible sources of new data that 
could contribute to the decision to modify the mitigation or monitoring 
measures:
    (1) Results from Neptune's monitoring from the previous year;
    (2) Results from general marine mammal and sound research; or
    (3) Any information which reveals that marine mammals may have been 
taken in a manner, extent or number not authorized by these regulations 
or subsequent LOAs.


Sec.  217.179  Modifications of Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization issued by NMFS, pursuant to Sec. Sec.  216.106 
and 217.177 and subject to the provisions of this subpart shall be made 
until after notification and an opportunity for public comment has been 
provided. For purposes of this paragraph, a renewal of a Letter of 
Authorization under Sec.  217.178, without modification (except for the 
period of validity), is not considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species 
or stocks of marine mammals specified in Sec.  217.172(b), a Letter of 
Authorization issued pursuant to Sec. Sec.  216.106 and 217.177 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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