[Federal Register Volume 74, Number 170 (Thursday, September 3, 2009)]
[Notices]
[Pages 45613-45622]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21328]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XN24


Taking and Importing Marine Mammals; Operations of a Liquified 
Natural Gas Port Facility in Massachusetts Bay

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of issuance of an incidental harassment authorization.

-----------------------------------------------------------------------

SUMMARY: In accordance with regulations implementing the Marine Mammal 
Protection Act (MMPA) as amended, notification is hereby given that an 
Incidental Harassment Authorization (IHA) to take marine mammals, by 
harassment, incidental to operation of an offshore liquefied natural 
gas (LNG) facility in the Massachusetts Bay, has been issued to 
Northeast Gateway Energy Bridge<SUP>TM</SUP> LLC (Northeast Gateway or 
NEG) for a period of 1 year.

DATES: This authorization is effective from August 31, 2009, until 
August 30, 2010. NMFS has also made the required findings to support 
future modification of the IHA to include take of marine mammals by 
Northeast Gateway's partner, Algonquin Gas Transmission, LLC, 
incidental to operations and maintenance of the Algonquin Pipeline 
Lateral upon completion of consultation under section 7 of the 
Endangered Species Act.

ADDRESSES: A copy of the application, IHA, and a list of references 
used in this document may be obtained by writing to P. Michael Payne, 
Chief, Permits, Conservation and Education Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3225. A copy of the application may be 
obtained by writing to this address or by telephoning the contact 
listed here and is also available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected 
Resources, NMFS, (301) 713-2289, ext 137.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and 101(a)(5)(D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (Secretary) to allow, upon 
request, the incidental, but not intentional taking 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 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 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, and if the permissible methods of taking 
and requirements pertaining to the mitigation, monitoring and reporting 
of such taking 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.

    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to incidentally take small numbers of marine mammals by 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].

    Section 101(a)(5)(D) establishes a 45-day time limit for NMFS 
review of an application followed by a 30-day public notice and comment 
period on any proposed authorizations for the incidental harassment of 
marine mammals. Within 45 days of the close of the comment period, NMFS 
must either issue or deny issuance of the authorization.

[[Page 45614]]

Summary of Request

    On August 15, 2008, NMFS received an application from Tetra Tech 
EC, Inc., on behalf of Northeast Gateway and Algonquin Gas 
Transmission, LLC (Algonquin) for an authorization to take 12 species 
of marine mammals by Level B harassment incidental to operation and 
maintenance of an LNG port facility in Massachusetts Bay. Since LNG 
Port operation and maintenance activities have the potential to take 
marine mammals, a marine mammal take authorization under the MMPA is 
warranted. NMFS has previously issued one-year incidental harassment 
authorizations for the LNG Port pursuant to section 101(a)(5)(D) of the 
MMPA, the most recent of which expired on May 14, 2009 (see 73 FR 
29485, May 21, 2008). On January 26, 2009, Northeast Gateway and 
Algonquin submitted a revised MMPA permit application that added 
certain Algonquin Pipeline Lateral operation and maintenance (O&M) 
activities for a limited time. NMFS' notice of proposed IHA included 
analysis of these additional activities (see 74 FR 9801, March 6, 
2009), and reinitiation of consultation under section 7 of the 
Endangered Species Act (ESA) began to analyze the effects of the O&M 
activities on ESA-listed species, which had not been analyzed in the 
existing biological opinion.
    As of August 14, 2009, ESA consultation was not complete; 
therefore, NMFS could not issue an IHA for the Deepwater Port 
operations/maintenance and Pipeline Lateral O&M activities. On August 
14, 2009, Northeast Gateway requested NMFS to issue an IHA just 
covering the operational portion of the Deepwater Port (for which there 
is a biological opinion). Northeast Gateway further requested that a 
modified IHA be issued to both Northeast Gateway and Algonquin adding 
operations and maintenance (including repair) of the Pipeline Lateral 
once the section 7 consultation is concluded and a non-jeopardy 
determination for listed species is made. Because the LNG Port facility 
and Algonquin Pipeline Lateral operation and maintenance activities 
will be ongoing in the foreseeable future, NMFS will propose 
regulations pursuant to section 101(a)(5)(A) of the MMPA, which would 
govern these incidental takes under a Letter of Authorization for up to 
five years. Under section 101(a)(5)(A), NMFS also must prescribe 
mitigation, monitoring, and reporting requirements in its regulations.

Description of the Activity

    The Northeast Gateway Port is located in Massachusetts Bay and 
consists of a submerged buoy system to dock specially designed LNG 
carriers approximately 13 mi (21 km) offshore of Massachusetts in 
federal waters approximately 270 to 290 ft (82 to 88 m) in depth. This 
facility delivers regasified LNG to onshore markets via a 16.06-mi 
(25.8-km) long, 24-in (61-cm) outside diameter natural gas pipeline 
lateral (Pipeline Lateral) owned and operated by Algonquin and 
interconnected to Algonquin's existing offshore natural gas pipeline 
system in Massachusetts Bay (HubLine).
    The Northeast Gateway Port consists of two subsea Submerged Turret 
Loading\TM\ (STL) buoys, each with a flexible riser assembly and a 
manifold connecting the riser assembly, via a steel flowline, to the 
subsea Pipeline Lateral. Northeast Gateway utilizes vessels from its 
current fleet of specially designed Liquefied Natural Gas 
Regasification Vessels (LNGRVs), each capable of transporting 
approximately 2.9 billion ft\3\ (82 million m\3\) of natural gas 
condensed to 4.9 million ft\3\ (138,000 m\3\) of LNG. Northeast Gateway 
would also be adding vessels to its fleet that will have a cargo 
capacity of approximately 151,000 cubic m\3\. The mooring system 
installed at the Northeast Gateway Port is designed to handle both the 
existing vessels and any of the larger capacity vessels that may come 
into service in the future. The LNGRVs would dock to the STL buoys, 
which would serve as both the single-point mooring system for the 
vessels and the delivery conduit for natural gas. Each of the STL buoys 
is secured to the seafloor using a series of suction anchors and a 
combination of chain/cable anchor lines.
    The proposed activity includes Northeast Gateway LNG Port operation 
and maintenance.

NEG Port Operations

    During NEG Port operations, LNGRVs servicing the Northeast Gateway 
Port will utilize the newly configured and International Maritime 
Organization-approved Boston Traffic Separation Scheme (TSS) on their 
approach to and departure from the Northeast Gateway Port at the 
earliest practicable point of transit. LNGRVs will maintain speeds of 
12 knots or less while in the TSS, unless transiting the Off Race Point 
Seasonal Management Area between the dates of March 1 and April 30, or 
the Great South Channel Seasonal Management Area between the dates of 
April 1 and July 31, when they will not exceed 10-knots or when there 
have been active right whale sightings, active acoustic detections, or 
both, in the vicinity of the transiting LNGRV in the TSS or at the 
Northeast Gateway Port, in which case the vessels also will slow their 
speeds to 10 knots or less.
    As an LNGRV makes its final approach to the Northeast Gateway Port, 
vessel speed will gradually be reduced to 3 knots at 1.86 mi (3 km) out 
to less than 1 knot at a distance of 1,640 ft (500 m) from the 
Northeast Gateway Port. When an LNGRV arrives at the Northeast Gateway 
Port, it would retrieve one of the two permanently anchored submerged 
STL buoys. It would make final connection to the buoy through a series 
of engine and bow thruster actions. The LNGRV would require the use of 
thrusters for dynamic positioning during docking procedure. Typically, 
the docking procedure is completed over a 10- to 30-minute period, with 
the thrusters activated as necessary for short periods of time in 
second bursts, not a continuous sound source. Once connected to the 
buoy, the LNGRV will begin vaporizing the LNG into its natural gas 
state using the onboard regasification system. As the LNG is 
regasified, natural gas will be transferred at pipeline pressures off 
the LNGRV through the STL buoy and flexible riser via a steel flowline 
leading to the connecting Pipeline Lateral. When the LNG vessel is on 
the buoy, wind and current effects on the vessel would be allowed to 
``weathervane'' on the single-point mooring system; therefore, 
thrusters will not be used to maintain a stationary position.
    It is estimated that the NEG Port could receive approximately 65 
cargo deliveries a year. During this time period thrusters would be 
engaged in use for docking at the NEG Port approximately 10 to 30 
minutes for each vessel arrival and departure.

NEG Port Maintenance

    The specified design life of the NEG Port is about 40 years, with 
the exception of the anchors, mooring chain/rope, and riser/umbilical 
assemblies, which are based on a maintenance-free design life of 20 
years. The buoy pick-up system components are considered consumable and 
would be inspected following each buoy connection, and replaced (from 
inside the STL compartment during the normal cargo discharge period) as 
deemed necessary. The underwater components of the NEG Port would be 
inspected once yearly in accordance with Classification Society Rules 
(American Bureau of Shipping) using either divers or remotely operated 
vehicles (ROVs) to

[[Page 45615]]

inspect and record the condition of the various STL system components. 
These activities would be conducted using the NEG Port's normal support 
vessel (125-foot, 99 gross ton, 2,700 horsepower, aluminum mono-hull 
vessel), and to the extent possible would coincide with planned weekly 
visits to the NEG Port. Helicopters would not be used for marker line 
maintenance inspections.
    Detailed information on the LNG facility's operation and 
maintenance activities, and noise generated from operations was also 
published in the Federal Register for the proposed IHA for Northeast 
Gateway's LNG Port construction and operations on March 13, 2007 (72 FR 
11328).
    Based on the description of maintenance, we don't anticipate take 
from maintenance and do not further analyze/discuss facility 
maintenance in this Federal Register notice.

Algonquin Pipeline Lateral Operation and Maintenance (O&M)

    The O&M activities associated with the Algonquin Pipeline Lateral 
can be subdivided into two categories, Routine O&M Activities and 
Unplanned Repair Work.

A. Routine O&M Activities

    The planned activities required for the O&M of the Algonquin 
Pipeline Lateral and Flowlines over a one year period are limited. 
Similar to the inspection of the NEG Port underwater components, the 
only planned O&M activity is the annual inspection of the cathodic 
protection monitors by a ROV. The monitors are located at the ends of 
the Algonquin Pipeline Lateral and the adjacent Flowlines. Each 
inspection activity will take approximately three days and will utilize 
a ROV launched from a vessel of opportunity. The most likely vessel 
will be similar to the NEG Port's normal support vessel referenced in 
NEG Port Maintenance section. This vessel is self-positioning and 
requires no anchors or use of thrusters. It will mobilize from Salem, 
Massachusetts, and will inspect the monitors in the vicinity of the NEG 
Port and at the point where the Algonquin Pipeline Lateral 
interconnects with Algonquin's HubLine. These activities will be 
performed during daylight hours and during periods of good weather.

B. Unplanned Pipeline Repair Activities

    Unplanned O&M activities may be required from time to time at a 
location along the Algonquin Pipeline Lateral or along one of the 
Flowlines should the line become damaged or malfunction.
    Should repair work be required, it is likely a dive vessel would be 
the main vessel used to support the repair work. The type of diving 
spread and the corresponding vessel needed to support the spread would 
be dictated by the type of repair work required and the water depth at 
the work location. In addition, the type of vessel used may vary 
depending upon availability. The duration of an unplanned activity 
would also vary depending upon the repair work involved (e.g., 
repairing or replacing a section of the pipeline, connection, or valve) 
but can generally be assumed to take less than 40 work days to complete 
based on industry experience with underwater pipeline repairs.
    A diving spread required to execute an unplanned activity might 
necessitate several vessels. Most likely the dive vessel would support 
a saturation diving spread and be moored at the work location using 
four anchors. This vessel would likely be accompanied by an attendant 
tug to assist with anchor placement. Once secured at the work location, 
the dive vessel would remain on site through the completion of the 
work, weather permitting. A crew/supply boat would be utilized to 
intermittently provide labor and supply transfers. Once or twice during 
the work, a tug may be required to bring a material barge to and from 
the location. While unlikely, there is a small possibility that a 
second dive vessel would be required to support the main dive vessel, 
depending upon the work activity. The second dive vessel would be on-
site for a shorter work duration. These vessels would be supported from 
an onshore base located between Quincy, Massachusetts and Gloucester, 
Massachusetts.
    The selection of a dive vessel will be driven by the technical 
requirements of the work. In addition, the degree of urgency required 
to address the work and the availability of vessels will also enter 
into the decision process for securing a dive vessel. It may be that a 
four point moored dive vessel either is not available or doesn't meet 
the technical capabilities required by the work. It then becomes 
possible that a dynamically positioned (DP) dive vessel may have to be 
utilized. The use of a DP dive vessel removes the need for an attendant 
tug to support the vessel since no anchors will be deployed. However, 
potential impacts related to noise are increased when a DP dive vessel 
is used. The noise generated by a DP dive vessel varies, and results 
from the use of the thrusters at various levels to maintain the 
vessel's position during the work depending upon currents, winds, waves 
and other forces acting on the vessel at the time of the work.

Comments and Responses

    A notice of receipt and request for public comment on the 
application and proposed authorization was published on March 6, 2009 
(74 FR 9801). During the 30-day public comment period, NMFS received 
comments from the Marine Mammal Commission (Commission).
    Comment 1: The Commission recommends that NMFS issue the IHA 
provided that (a) all marine mammal mitigation, monitoring, and 
reporting measures identified in the Federal Register notice are 
included in the authorization; and (b) operations be suspended 
immediately if a dead or seriously injured right whale or other marine 
mammal is found in the vicinity of the operations and the death or 
injury could be attributable to the applicant's activities. Any 
suspension should remain in place until NMFS (1) has reviewed the 
situation and determined that further deaths or serious injuries are 
unlikely or (2) has issued regulations authorizing such takes under 
section 101(a)(5)(A) of the MMPA.
    Response: NMFS concurs with the Commission's recommendation raised 
in the above comment, and extends the suspension requirement to any 
type of injury, not just serious injury, if it could be attributable to 
LNG activities.

Description of Marine Mammals in the Area of the Specified Activities

    Marine mammal species that potentially occur in the vicinity of the 
Northeast Gateway facility include several species of cetaceans and 
pinnipeds: North Atlantic right whale (Eubalaena glacialis), humpback 
whale (Megaptera novaeangliae), fin whale (Balaenoptera physalus), 
minke whale (B. acutorostrata), long-finned pilot whale (Globicephala 
melas), Atlantic white-sided dolphin (Lagenorhynchus acutus), 
bottlenose dolphin (Tursiops truncatus), common dolphin (Delphinus 
delphis), killer whale (Orcinus orca), harbor porpoise (Phocoena 
phocoena), harbor seal (Phoca vitulina), and gray seal (Halichoerus 
grypus).
    General information on these marine mammal species can also be 
found in Wursig et al. (2000) and in the NMFS Stock Assessment Reports 
(Waring et al., 2008). This latter document is available at: http://www.nefsc.noaa.gov/nefsc/publications/tm/tm205/. An updated summary on 
several commonly sighted marine mammal species distribution and 
abundance in the vicinity of the proposed action area is provided 
below. Additional information on those species that may be affected by 
this activity is provided in detail in the

[[Page 45616]]

Federal Register published on March 6, 2009 (74 FR 9801).

Potential Effects of Noise on Marine Mammals

    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; (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 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.
    There are three general categories of sounds recognized by NMFS: 
continuous (such as shipping sounds), intermittent (such as vibratory 
pile driving sounds), and impulse. No impulse noise activities, such as 
blasting or standard pile driving, are associated with this project. 
The noise sources of potential concern are regasification/offloading 
(which is a continuous sound) and dynamic positioning of vessels using 
thrusters (an intermittent sound) from LNGRVs during docking at the NEG 
port facility and from repair vessels during Algonquin Pipeline Lateral 
repair and maintenance for diving support. Based on research by Malme 
et al. (1983; 1984), for both continuous and intermittent sound 
sources, Level B harassment is presumed to begin at received levels of 
120-dB. The detailed description of the noise that would result from 
the proposed LNG Port operations and Pipeline Lateral O&M activities is 
provided in the Federal Register for the initial construction and 
operations of the NEG LNG Port facility and Pipeline Lateral in 2007 
(72 FR 27077; May 14, 2007).

NEG Port Activities

    Underwater noise generated at the NEG Port has the potential to 
result from two distinct actions, including closed-loop regasification 
of LNG and/or LNGRV maneuvering during coupling and decoupling with STL 
buoys. To evaluate the potential for these activities to result in 
underwater noise that could harass marine mammals, Excelerate Energy, 
LLC (Excelerate) conducted field sound survey studies during periods of 
March 21 to 25, 2005 and August 6 to 9, 2006 while the LNGRV Excelsior 
was both maneuvering and moored at the operational Gulf Gateway Port 
located 116 mi (187 km) offshore in the Gulf of Mexico (the Gulf) (see 
Appendices B and C of the NEG and Algonquin application). LNGRV 
maneuvering conditions included the use of both stern and bow thrusters 
required for dynamic positioning during coupling. These data were used 
to model underwater sound propagation at the NEG Port. The pertinent 
results of the field survey are provided as underwater sound source 
pressure levels as follows:
    <bullet> Sound levels during closed-loop regasification ranged from 
104 to 110 decibel linear (dBL). Maximum levels during steady state 
operations were 108 dBL.
    <bullet> Sound levels during coupling operations were dominated by 
the periodic use of the bow and stern thrusters and ranged from 160 to 
170 dBL.
    Figures 1-1 and 1-2 of the NEG and Algonquin's revised MMPA permit 
application present the net acoustic impact of one LNGRV operating at 
the NEG Port. Thrusters are operated intermittently and only for 
relatively short durations of time. The resulting area within the 120 
dB isopleth is less than 1 km\2\ with the linear distance to the 
isopleths extending 430 m (1,411 ft). The area within the 180 dB 
isopleth is very localized and will not extend beyond the immediate 
area where LNGRV coupling operations are occurring.
    The potential impacts to marine mammals associated with sound 
propagation from vessel movements, anchors, chains and LNG 
regasification/offloading could be the temporary and short-term 
displacement of seals and whales from within the 120-dB zones 
ensonified by these noise sources. Animals would be expected to re-
occupy the area once the noise ceases.

Unplanned Pipeline Lateral Repair Activities

    As discussed previously, pipeline repairs may be required from time 
to time should the pipeline become damaged or malfunction. While the 
need for repairs to underwater pipelines is typically infrequent, in 
the event that a pipeline repair is required, it is most likely that 
anchor-moored vessels will be used. If so, underwater noise will not be 
generated at the level of concern for marine mammals.
    However, there is the potential that underwater noise will be 
generated within the 120 dB threshold for level B harassment for marine 
mammals if DP vessels are used to perform the work. Given the limited 
availability of DP dive support vessels, it is most likely that an 
anchor-moored dive vessel will be used, though the possibility that a 
DP vessel would be used cannot be ruled out. Depending on the nature of 
the repair, the work could last for up to 40 work days. The possibility 
that a DP vessel would be used to perform a pipeline repair is the only 
instance in which underwater noise will be generated that rises to or 
exceeds the 120-dB threshold for level B harassment in connection with 
Algonquin's ownership or operation of the Algonquin Pipeline Lateral.
    In general, DP vessels are fitted with six thrusters of three main 
types: main propellers, tunnel thrusters and azimuth thrusters. Two or 
three tunnel thrusters are usually fitted in the bow. Stern tunnel 
thrusters are also common,

[[Page 45617]]

operating together but controlled individually, as are azimuth or 
compass thrusters placed in the rear. Azimuth thrusters are located 
beneath the bottom of the vessel and can be rotated to provide thrust 
in any direction. During vessel operation, the thrusters engage in 
varying numbers and at varying intensity levels, as needed to control 
and maintain vessel location based on sea and weather conditions. While 
at least one thruster is always engaged in at least partial capacity, 
higher noise levels are generated periodically when greater numbers of 
thrusters need to engage, and when thrusters are at closer to their 
full capacity. Thruster underwater noise levels are principally caused 
by cavitation, which is a combination of broadband noise and tonal 
sounds at discrete frequencies.
    In August 2007, during construction of the NEG Port and Algonquin 
Pipeline Lateral, Northeast Gateway collected sound measurements of 
vessels used to support construction including crew boats, support 
tugs, and diver support vessels which required the steady use of 
thrusters as well as unassociated boat movements routinely occurring 
outside the immediate construction zone. These vessels are similar to 
those which may be employed during pipeline repair.
    Based upon the measurement data collected, results showed no 
exceedance of the 180-dB level for potential Level A harassment during 
any of the monitoring periods in the acoustic far field ranging from 
605 to 1,050 m (1,985 to 3,445 ft) (see Figure 1-3 of the NEG and 
Algonquin MMPA permit application). However, construction activities 
involving the use of DP vessels did exceed the 120-dB Level B 
behavioral harassment threshold for this sound type, principally at low 
and mid-range frequencies.
    It is important to note, however, that even though measurements 
showed construction activities periodically resulted in the exceedances 
of the Level B behavioral harassment threshold, such received sound 
pressure levels may not in every instance be perceptible to marine 
life, as hearing thresholds are largely frequency-dependent and vary 
considerably from species to species. In addition, though ambient noise 
in shallow waters such as the Gulf of Maine tends to be highly variable 
in both time and location, existing elevated ambient conditions 
inherent within the Massachusetts Bay environment may effectively mask 
noise generated by future offshore repair work at short to moderate 
distances from where the work is occurring. This is particularly true 
during elevated wind and sea state conditions when the use of thrusters 
is more predominant. At the same time, the ambient underwater noise 
intensity levels will be higher during these periods as well.

Estimates of Take by Harassment

    Northeast Gateway stated that the size of the ensonified 120-dB 
isopleth by LNGRV's decoupling would be less than 1 km\2\ as measured 
in the Gulf of Mexico in 2005. However, due to the lack of more recent 
sound source verification and source measurement in Massachusetts Bay, 
NMFS used a more conservative spreading model to calculate the 120-dB 
isopleth. (This model was also used to establish 120-dB zone of 
influence (ZOI) for the previous IHAs issued to Northeast Gateway.) In 
the vicinity of the LNG Port, where the water depth is about 80 m (262 
ft), the 120-dB radius is estimated to be 2.56 km (1.6 mi) maximum from 
the sound source during dynamic positioning for the container ship, 
making a maximum ZOI of 21 km\2\ (8.1 mi\2\). For shallow water depth 
(40 m or 131 ft) representative of the northern segment of the 
Algonquin Pipeline Lateral, the 120-dB radius is estimated to be 3.31 
km (2.06 mi), and the associated ZOI is 34 km\2\ (13.1 mi\2\).
    The basis for Northeast Gateway and Algonquin's ``take'' estimate 
is the number of marine mammals that would be exposed to sound levels 
in excess of 120 dB. For the NEG port facility operations, the take 
estimates are determined by multiplying the area of the LNGRV's ZOI (21 
km\2\) by local marine mammal density estimates, corrected to account 
for 50 percent more marine mammals that may be underwater, and then 
multiplying by the estimated LNG container ship visits per year. For 
the Algonquin Pipeline Lateral O&M activities, the take estimates are 
determined by multiplying the area of ZOI (34 km\2\) resulting from the 
DP vessel used in repair by local marine mammal density estimates, 
corrected to account for 50 percent more marine mammals that may be 
underwater, and then multiplying by the number of dates O&M activities 
are conducted per year. In the case of data gaps, a conservative 
approach was used to ensure the potential number of takes is not 
underestimated, as described next.
    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 uses the data on cetacean distribution within 
Massachusetts Bay, such as those published by the National Centers for 
Coastal Ocean Science (NCCOS, 2006), to estimate potential takes of 
marine mammals species in the vicinity of project area.
    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: Cetacean 
and Turtles Assessment Program (CETAP), Canadian Department of 
Fisheries and Oceans, PCCS, International Fund for Animal Welfare, 
NOAA's NEFSC, New England Aquarium, Woods Hole Oceanographic 
Institution, and the University of Rhode Island. A total of 653,725 km 
(406,293 mi) 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 NMFS NEFSC to provide an assessment of 
the relative abundance and distribution of cetaceans, seabirds, and 
marine turtles in the shelf waters of the northeastern United States 
(MBO, 1987). The CSAP program was designed to be completely compatible 
with NMFS 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 5,210 km (8,383 mi) 
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 567,955 km (913,840 mi) of survey track for 
small cetaceans (dolphins and porpoises) and 658,935 km (1,060,226 mi) 
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

[[Page 45618]]

designed to minimize uncertainty and bias in the data used.
    Owing to 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 in the 
Federal Register notice for the proposed IHA (74 FR 9801; March 6, 
2009), in the Marine Mammals Affected by the Activity section. For a 
detailed description and calculation of the cetacean abundance data and 
sighting per unit effort (SPUE), please refer to the NCCOS study 
(NCCOS, 2006). These data show that the relative abundance of North 
Atlantic right, fin, humpback, minke, and pilot whales, and Atlantic 
white-sided dolphins for all seasons, as calculated by SPUE in number 
of animals per square kilometer, is 0.0082, 0.0097, 0.0265, 0.0059, 
0.0407, and 0.1314 n/km, respectively.
    In calculating the area density of these species from these linear 
density data, NMFS used 0.4 km (0.25 mi), which is a quarter the 
distance of the radius for visual monitoring (see Proposed Monitoring, 
Mitigation, and Reporting section below), 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 this calculation method, the estimated take numbers per 
year for North Atlantic right, fin, humpback, minke, and pilot whales, 
and Atlantic white-sided dolphins by the NEG Port facility operations, 
which is an average of 65 visits by LNG container ships to the project 
area per year (or approximately 1.25 visits per week), operating the 
vessels' thrusters for dynamic positioning before offloading natural 
gas, corrected for 50 percent underwater, are 21, 25, 68, 15, 104, and 
336, respectively.
    The estimated take number per year for North Atlantic right, fin, 
humpback, minke, and pilot whales, and Atlantic white-side dolphin by 
the Algonquin Pipeline Lateral O&M activities, based on a maximum of 40 
days by the operation of DP vessels for diver support, corrected for 50 
percent underwater, are 21, 25, 68, 15, 104, and 335, respectively.
    The total estimated take numbers of these species per year are: 42 
North Atlantic right, 50 fin, 136 humpback, 30 minke, 208 pilot whales, 
and 671 Atlantic white-sided dolphins. These numbers represent a 
maximum of 12.9, 2.2, 15.0, 0.9, 0.7, and 1.1 percent of the affected 
species/stocks, respectively. Since it is very likely that individual 
animals could be ``taken'' by harassment multiple times, these 
percentages are the upper boundary because the actual number of 
individual animals being exposed or taken would be far less. There is 
no danger of injury, death, or hearing impairment from the exposure to 
these noise levels.
    In addition, bottlenose dolphins, common dolphins, killer whales, 
harbor porpoises, harbor seals, and gray seals could also be taken by 
Level B harassment as a result of deepwater LNG port operations and 
Pipeline Lateral O&M activities. The numbers of estimated take of these 
species are not available because they are rare in the project area. 
The population estimates of these marine mammal species and stock in 
the west North Atlantic basin are 81,588; 120,743; 89,054; 99,340; and 
195,000 for bottlenose dolphins, common dolphins, harbor porpoises, 
harbor seals, and gray seals, respectively (Waring et al., 2008). No 
population estimate is available for the North Atlantic stock of killer 
whales, however, their occurrence within the proposed project area is 
rare. Since the Massachusetts Bay represents only a small fraction of 
the west North Atlantic basin where these animals occur, and these 
animals do not congregate in the vicinity of the project area, NMFS 
believes that only relatively small numbers of these marine mammal 
species would be potentially affected by the Northeast Gateway LNG 
deepwater project. From the most conservative estimates of both marine 
mammal densities in the project area and the size of the 120-dB zone of 
(noise) influence, the calculated number of individual marine mammals 
for each species that could potentially be harassed annually is small 
relative to the overall population size.

Potential Impact on Habitat

    Operation of the NEG Port and Algonquin Pipeline Lateral will 
result in long-term effects on the marine environment, including 
alteration of seafloor conditions, continued disturbance of the 
seafloor, regular withdrawal of sea water, and regular generation of 
underwater noise. A small area (0.14 acre) along the Pipeline Lateral 
will be permanently altered (armored) at two cable crossings. In 
addition, the structures associated with the Port will occupy 4.8 acres 
of seafloor. An additional area of the seafloor of up to 38 acres will 
be subject to disturbance due to chain sweep while the buoys are 
occupied. The benthic community in the up-to 38 acres of soft bottom 
that may be swept by the anchor chains while EBRVs are docked will have 
limited opportunity to recover, so this area will experience a long-
term reduction in benthic productivity.
    Each LNGRV will require the withdrawal of an average of 4.97 
million gallons per day of sea water for general ship operations during 
its 8-day stay at the Port. Plankton associated with the sea water will 
not likely survive this activity. Based on densities of plankton in 
Massachusetts Bay, it is estimated that sea water use during operations 
will consume, on a daily basis, about three 200 x 1,010 phytoplankton 
cells (about several hundred grams of biomass), 6.5 x 108 zooplankters 
(equivalent to about 1.2 kg of copepods), and on the order of 30,000 
fish eggs and 5,000 fish larvae. Also, the daily removal of sea water 
will reduce the food resources available for planktivorous organisms. 
However, the removal of these species is minor relative to the overall 
area they occupy and unlikely to measurably affect the food sources 
available to marine mammals.

Monitoring and Mitigation Measures

    For the proposed NEG LNG port operations and Algonquin Pipeline 
Lateral O&M activities, NMFS requires the following monitoring and 
mitigation measures.

Marine Mammal Observers and Training

    For activities related to the NEG LNG port operations, all 
individuals onboard the LNGRVs responsible for the navigation and 
lookout duties on the vessel must receive training prior to assuming 
navigation and lookout duties, a component of which will be training on 
marine mammal sighting/reporting and vessel strike avoidance measures. 
Crew training of LNGRV personnel will stress individual responsibility 
for marine mammal awareness and reporting.
    If a marine mammal is sighted by a crew member, an immediate 
notification will be made to the Person-in-Charge on board the vessel 
and the Northeast Port Manager, who will ensure that the required 
vessel strike avoidance measures and reporting procedures are followed.
    For activities related to the Algonquin Pipeline Lateral O&M, two 
qualified Maine Mammal Observers (MMOs) will be assigned to each DP 
vessel (each operating individually in designated shifts to accommodate 
adequate rest

[[Page 45619]]

schedules). Their responsibility is to watch for marine mammals and to 
alert the construction crew supervisor if marine mammals are visually 
detected within the most conservatively estimated ZOI, within 2 mi 
(3.31 km) of the DP vessel, to allow for mitigating responses. MMOs 
will maintain logs at all times while on watch. All personnel will have 
experience in marine mammal detection and observation during marine 
construction. MMOs will maintain in situ records while on watch and 
therefore visual observation will not be affected. Additional MMOs may 
be assigned to additional vessels if auto-detection buoy (AB) data show 
sound levels from additional vessels in excess of 120 dB re 1 microPa, 
further than 100 m (328 ft) from the vessel.
    Each MMO will scan the area surrounding the construction vessels 
for visual signs of non-vocalizing whales that may enter the 
construction area. Observations will take place from the highest 
available vantage point on the vessels. General 360[deg] scanning will 
occur during the monitoring periods, and target scanning by the 
observer will occur when alerted of a whale presence.
    Searching will take place at all hours of the day. Night-time 
observations will be conducted with the aid of a night-vision scope 
where practical. Observers, using binoculars, will estimate distances 
to marine mammals either visually or by using reticled binoculars. If 
higher vantage points (> 25 ft or 7.6 m) are available, distances can 
be measured using inclinometers. Position data will be recorded using 
hand-held or vessel global positioning system (GPS) units for each 
sighting, vessel position change, and any environmental change.
    Environmental data to be collected will include Beaufort sea state, 
wind speed, wind direction, ambient temperature, precipitation, glare, 
and percent cloud cover. Wind and temperature data will be extracted 
from onboard meteorological stations (when available). Animal data to 
be collected include numbers of individuals, species, position, 
distance, behavior, direction of movement, and apparent reaction to 
construction activity. All data will be entered at the time of 
observation. Notes of activities will be kept and a daily report will 
be prepared and attached to the daily field form.
    In addition, Northeast Gateway and Algonquin must ensure that 
vessel captains understand that noise generated from thrusters during 
DP is the most likely source of a ``take'' to North Atlantic right 
whale, therefore, DP vessel captains shall focus on reducing thruster 
power to the maximum extent practicable, taking into account diver 
safety. Likewise, vessel captains shall shut down thrusters whenever 
they are not needed.
    In addition to visual monitoring, the Northeast Gateway and 
Algonquin shall work with NMFS, the Stellwagen Bank National Marine 
Sanctuary (SBNMS), and other scientists to install a passive acoustic 
detection system for detecting marine mammals within the project area, 
and provide early warnings for potential occurrence of right whales and 
other marine mammals in the vicinity of the project 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. The holder of this authorization 
shall provide empirically measured source level data from the acoustic 
recording units deployed in the LNG Port maintenance and repair area in 
a reasonable time to NMFS.

Distance and Noise Level for Cut-Off

    For all whales near DP vessels, the MMO observation will be the 
principal detection tool available. If a North Atlantic right whale or 
other marine mammal is seen within the 2 mi (3.31 km) ZOI of a DP 
vessel or other construction vessel that has been shown to emit noises 
in excess of 120 dB re 1 microPa, then the MMO will alert the 
construction crew to minimize the use of thrusters until the animal has 
moved away unless there are divers in the water or an ROV is deployed.
    During Algonquin Pipeline Lateral O&M, the following procedures 
would be followed upon detection of a marine mammal within 0.5 mi (0.8 
km) of the repair vessels:
    (1) 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 Pipeline Lateral repair area. The 
observer is required to report all North Atlantic right whale sightings 
to NMFS, as soon as possible.
    (2) If a marine mammal other than a right whale is sighted within 
or approaching at 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 construction vessel and the nature of the repair activity at 
the time would not compromise either the health and safety of divers on 
the bottom or the integrity of the pipeline, construction vessel(s) 
will cease any movement and cease all activities that emit sounds 
reaching a received level of 120 dB re 1 microPa or higher as soon as 
practicable. The back-calculated source level, based on the most 
conservative cylindrical model of acoustic energy spreading, is 
estimated to be 139 dB re 1 microPa. Vessels transiting the repair area 
will also be required to maintain these separation distances.
    (3) Repair work 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).

Vessel Strike Avoidance

    (1) All LNGRVs approaching or departing the port will comply with 
the Mandatory Ship Reporting (MSR) system to keep apprised of Dynamic 
Management Areas (DMAs) in the vicinity. Vessel operators will also 
receive active detections from an existing passive acoustic array prior 
to and during transit through the northern portion of the Boston TSS 
where the buoys are installed.
    (2) In response to active right whale sightings or DMAs (detected 
acoustically or reported through other means such as the MSR or 
Sighting Advisory System (SAS)), and taking into account safety and 
weather conditions, LNGRVs will take appropriate actions to minimize 
the risk of striking whales, including reducing speed to 10 knots or 
less and alerting personnel responsible for navigation and lookout 
duties to concentrate their efforts.
    (3) LNGRVs will maintain speeds of 12 knots or less while in the 
TSS until reaching the vicinity of the buoys (except during the seasons 
and areas defined below, when speed will be limited to 10 knots or 
less). At 1.86 mi (3 km) from the NEG port, speed will be reduced to 3 
knots, and to less than 1 knot at 1,640 ft (500 m) from the buoy.
    (4) LNGRVs will reduce transit speed to 10 knots or less over 
ground year-round in all waters bounded by straight lines connecting 
the following points in the order stated below. This area is known as 
the Off Race Point Seasonal Management Area (SMA) and tracks NMFS 
regulations at 50 CFR 224.105:
    42[deg]30'00.0'' N-069[deg]45'00.0'' W; thence to 42[deg]30'00.0'' 
N-070[deg]30'00.0'' W; thence to 42[deg]12'00.0'' N-070[deg]30'00.0'' 
W; thence to 42[deg]12'00.0'' N-070[deg]12'00.0'' W; thence to 
42[deg]04'56.5'' N-070[deg]12'00.0'' W; thence along charted mean high 
water line and inshore limits of COLREGS limit to a latitude of 
41[deg]40'00.0'' N; thence due east to 41[deg]41'00.0'' N-
069[deg]45'00.0'' W; thence back to starting point.
    (5) LNGRVs will reduce transit speed to 10 knots or less over 
ground from April 1-July 31 in all waters bounded

[[Page 45620]]

by straight lines connecting the following points in the order stated 
below. This area is also known as the Great South Channel SMA and 
tracks NMFS regulations at 50 CFR 224.105:

    42[deg]30'00.0'' N-69[deg]45'00.0'' W
    41[deg]40'00.0'' N- 69[deg]45'00.0'' W
    41[deg]00'00.0'' N- 69[deg]05'00.0'' W
    42[deg]09'00.0'' N- 67[deg]08'24.0'' W
    42[deg]30'00.0'' N- 67[deg]27'00.0'' W
    42[deg]30'00.0'' N- 69[deg]45'00.0'' W

    (6) LNGRVs are not expected to transit Cape Cod Bay. However, in 
the event transit through Cape Cod Bay is required, LNGRVs will reduce 
transit speed to 10 knots or less over ground from January 1-May 15 in 
all waters in Cape Cod Bay, extending to all shorelines of Cape Cod 
Bay, with a northern boundary of 42[deg]12'00.0'' N latitude.
    (7) While under way, all repair/maintenance vessels must remain 500 
yd (457 m) away from right whales and 100 yd (91 m) away from all other 
whales to the extent physically feasible, given navigational 
constraints as required by NMFS.
    (8) All repair/maintenance vessels greater than or equal to 300 
gross tons must maintain a speed of 10 knots or less. Vessels of less 
than 300 gross tons carrying supplies or crew between the shore and the 
construction site shall contact the Mandatory Ship Reporting (MSR) 
system, the USCG, or the construction site before leaving shore for 
reports of recent right whale sightings or active DMAs and, consistent 
with navigation safety, restrict speeds to 10 knots or less within 5 mi 
(8 km) of any sighting location and within any existing DMA.
    (9) Vessels transiting through the Cape Cod Canal and Cape Cod Bay 
between January 1 and May 15 must reduce speed to 10 knots or less, 
follow the recommended routes charted by NMFS to reduce interactions 
between right whales and shipping traffic, and avoid identified 
aggregations of right whales in the eastern portion of Cape Cod Bay.

Research Passive Acoustic Monitoring (PAM) Program

    Northeast Gateway shall monitor the noise environment in 
Massachusetts Bay in the vicinity of the NEG Port and Algonquin 
Pipeline Lateral using an array of 19 Marine Autonomous Recording Units 
(MARUs) that were deployed initially in April 2007 to collect data 
during the preconstruction and active construction phases of the NEG 
Port and Algonquin Pipeline Lateral. A description of the MARUs can be 
found in Appendix A of the NEG application. These 19 MARUs will remain 
in the same configuration during full operation of the NEG Port and 
Algonquin Pipeline Lateral. The MARUs collect archival noise data and 
are not designed to provide real-time or near-real-time information 
about vocalizing whales. Rather, the acoustic data collected by the 
MARUs shall be analyzed to document the seasonal occurrences and 
overall distributions of whales (primarily fin, humpback, and right 
whales) within approximately 10 nautical miles of the NEG Port, and 
shall measure and document the noise ``budget'' of Massachusetts Bay so 
as to eventually assist in determining whether an overall increase in 
noise in the Bay associated with the NEG Port and Algonquin Pipeline 
Lateral might be having a potentially negative impact on marine 
mammals. The overall intent of this system is to provide better 
information for both regulators and the general public regarding the 
acoustic footprint associated with long-term operation of the NEG Port 
and Algonquin Pipeline Lateral in Massachusetts Bay, and the 
distribution of vocalizing marine mammals during NEG Port and Algonquin 
Pipeline Lateral O&M activities (analyzed to assess impacts on marine 
mammals). In addition to the 19 MARUs, Northeast Gateway will deploy 10 
ABs within the TSS for the operational life of the NEG Port and 
Algonquin Pipeline Lateral. A description of the ABs is provided in 
Appendix A of this NEG and Algonquin's application. The purpose of the 
ABs shall be to detect a calling North Atlantic right whale an average 
of 5 nm (9.26 km) from each AB (detection ranges will vary based on 
ambient underwater conditions). The AB system shall be the primary 
detection mechanism that alerts the LNGRV Master and/or Algonquin 
Pipeline support vessel captains to the occurrence of right whales, 
heightens LNGRV or pipeline support vessel awareness, and triggers 
necessary mitigation actions as described in the Marine Mammal 
Detection, Monitoring, and Response Plan included as Appendix A of the 
NEG application.
    Northeast Gateway has engaged representatives from Cornell 
University's Bioacoustics Research Program (BRP) and the Woods Hole 
Oceanographic Institution (WHOI) as the consultants for developing, 
implementing, collecting, and analyzing the acoustic data; reporting; 
and maintaining the acoustic monitoring system.
    Further information detailing the deployment and operation of 
arrays of 19 passive seafloor acoustic recording units (MARUs) centered 
on the terminal site and the 10 ABs that are to be placed at 
approximately 5-m (8.0-km) intervals within the recently modified TSS 
can be found in the Marine Mammal Detection, Monitoring, and Response 
Plan included as Appendix A of the NEG application.

Additional Mitigation Measures for Pipeline Repair During Right Whale 
Season

    All maintenance/repair activities will be scheduled to occur 
between May 1 and November 30; however, in the event of unplanned/
emergency repair work that cannot be scheduled during the preferred 
May-November work window, in addition to the aforementioned mitigation 
measures, the following additional mitigation measures will be 
implemented. This is because the occurrence of the North Atlantic right 
whale in the vicinity of the proposed NEG LNG Port is expected to 
increase between December and April.
    (1) Between December 1 and April 30, if on-board MMOs do not have 
at least 0.5-mile visibility, they shall call for a shutdown. If dive 
operations are in progress, then they shall be halted and brought on 
board until visibility is adequate to see a half mile range. At the 
time of shutdown, the use of thrusters must be minimized. If there are 
potential safety problems due to the shutdown, the captain will decide 
what operations can safely be shut down.
    (2) Prior to leaving the dock to begin transit, the barge will 
contact one of the MMOs on watch to receive an update of sightings 
within the visual observation area. If the MMO has observed a North 
Atlantic right whale within 30 minutes of the transit start, the vessel 
will hold for 30 minutes and again get a clearance to leave from the 
MMOs on board. MMOs will assess whale activity and visual observation 
ability at the time of the transit request to clear the barge for 
release.
    (3) A half-day training course will be provided by the current MMO 
provider to designated crew members assigned to the transit barges and 
other support vessels. 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 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 1,000 m of the 
vessel will result in a high alert and slow speed of 4 knots or less 
and a

[[Page 45621]]

sighting within 750 m will result in idle speed and/or ceasing all 
movement.
    (4) The material barges and tugs used in repair and maintenance 
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.
    (5) Consistent with navigation safety, all repair vessels must 
maintain a speed of 10 knots or less during daylight hours. All vessels 
will operate at 5 knots or less at all times within 5 km of the repair 
area.

Reporting

    For any repair work associated with the Pipeline Lateral or other 
Port components, the holder of this authorization shall notify NMFS 
Headquarters Office of the Protected Resources, NMFS Northeast Regional 
Office, and SBNMS as soon as practicable after it is determined that 
repair work must be conducted. NEG/Algonquin shall continue to keep 
NOAA/NMFS apprised of repair work plans as further details (the time, 
location, and nature of the repair) become available.
    During maintenance and repair of the Pipeline Lateral or other Port 
components, weekly status reports must be provided to NMFS using 
standardized reporting forms. The weekly reports should include data 
collected for each distinct marine mammal species observed in the 
project area in the Massachusetts Bay during the period of Port 
maintenance and repair activities. The weekly reports shall include the 
following information:
    (1) Location, time, and the nature of the Pipeline Lateral 
maintenance and repair activities;
    (2) Whether DP system is operated and, if so, the number of 
thrusters being used and the time and duration of DP operation;
    (3) Marine mammals observed in the area (numbers of individuals, 
species, age group, and initial behavior);
    (4) The distance of observed marine mammals from the maintenance 
and repair activities;
    (5) Whether there are changes of marine mammal behaviors during the 
observation;
    (6) Whether any mitigation measures (power-down, shutdown, etc.) 
are implemented;
    (7) Weather condition (Beaufort sea state, wind speed, wind 
direction, ambient temperature, precipitation, and percent cloud cover 
etc.);
    (8) Condition of the observation; and (Visibility and glare); and
    (9) Details of passive acoustic detections and any action taken in 
response to those detections.
    In addition, the Northeast Port Project area is within the 
Mandatory Ship Reporting Area (MSRA), so all vessels entering and 
exiting the MSRA will report their activities to WHALESNORTH. During 
all phases of the Northeast Gateway LNG Port operations and the 
Algonquin Pipeline Lateral O&M activities, sightings of any injured or 
dead marine mammals will be reported immediately to the USCG or NMFS, 
regardless of whether the injury or death is caused by project 
activities.
    An annual report on marine mammal monitoring and mitigation would 
be submitted to NMFS Office of Protected Resources and NMFS Northeast 
Regional Office within 90 days after the expiration of an LOA. 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 LNG facility operation. 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 activities shall also be included in the annual 
report.

ESA

    On February 5, 2007, NMFS concluded consultation with MARAD and the 
USCG, under section 7 of the ESA, on the proposed construction and 
operation of the Northeast Gateway LNG facility and issued a biological 
opinion concluding that the construction and operation of the Northeast 
Gateway 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 November 15, 2007, Northeast Gateway and Algonquin submitted a 
letter to NMFS requesting a modification to the IHA in effect at the 
time to allow LNG Port construction to extend into December 2007. Upon 
reviewing Northeast Gateway's weekly marine mammal monitoring reports 
submitted under the previous IHA, NMFS recognized that the take of some 
marine mammals resulting from construction of the LNG Port and Pipeline 
Lateral by Level B behavioral harassment likely had exceeded the 
original take estimates in the incidental take statement (ITS). 
Therefore, NMFS Northeast Region (NER) reinitiated consultation with 
MARAD and USCG on the construction and operation of the Northeast 
Gateway LNG facility. On November 30, 2007, NMFS NER issued a revised 
biological opinion, reflecting the revised construction time period and 
including a revised ITS. This revised biological opinion concluded that 
the construction and operation of the Northeast Gateway 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. NMFS has 
concluded that issuance of an IHA for the operations of the LNG port 
facility would not have impacts beyond what was analyzed in the 
November 30, 2007, biological opinion.
    For an IHA that includes Pipeline Lateral maintenance and repair 
activities by Algonquin, NMFS reinitiated consultation with NMFS NER, 
which is still in process. NMFS plans to modify the IHA to include 
maintenance and repair activities once the section 7 consultation is 
completed, provided that a non-jeopardy determination for ESA-listed 
species is reached.

NEPA

    MARAD and the USCG released a Final EIS/Environmental Impact Report 
(EIR) for the proposed Northeast Gateway Port and Pipeline Lateral. A 
notice of availability was published by MARAD on October 26, 2006 (71 
FR 62657). The Final EIS/EIR provides detailed information on the 
proposed project facilities, construction methods and analysis of 
potential impacts on marine mammal.
    NMFS was a cooperating agency (as defined by the Council on 
Environmental Quality (40 CFR 1501.6)) in the preparation of the Draft 
and Final EISs. NMFS has reviewed the Final EIS and has adopted it. 
Therefore, the preparation of another EIS or EA is not warranted.

Determinations

    NMFS has determined that the operation and maintenance and repair 
activities of the Northeast Gateway Port facility and Pipeline Lateral 
may result, at worst, in a temporary modification in behavior of small 
numbers of certain species of marine mammals that may be in close 
proximity to the Northeast Gateway LNG facility and associated 
pipeline. These activities are expected to result in some local short-
term displacement only of the affected species or stocks of marine 
mammals. Taking these two factors together, NMFS

[[Page 45622]]

concludes that the activity will have no more than a negligible impact 
on the affected species or stocks, as there will be no expected effects 
on annual rates of survival and reproduction of these species or 
stocks. This determination is further supported by the required 
mitigation, monitoring, and reporting measures described in this 
document.
    As a result of implementation of the described mitigation and 
monitoring measures, no take by injury or death would be requested, 
anticipated or authorized, and the potential for temporary or permanent 
hearing impairment is very unlikely due to the relatively low noise 
levels (and consequently small zone of impact relative to the size of 
Massachusetts Bay).
    While the number of marine mammals that may be harassed will depend 
on the distribution and abundance of marine mammals in the vicinity of 
the LNG Port facility, the estimated numbers of marine mammals to be 
harassed are small relative to the affected species or stock sizes.
    These determinations also apply to an IHA issued only for take 
incidental to operations of the Deepwater Port facility, which is a 
subset of the activities analyzed in this Federal Register Notice of 
Issuance of an IHA and the related Federal Register Notice of Proposed 
Issuance of an IHA.

Authorization

    NMFS has issued an IHA to Northeast Gateway for conducting LNG Port 
facility operations in Massachusetts Bay, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated. NMFS plans to modify the IHA to include Pipeline Lateral 
operations and maintenance/repair activities by Algonquin once the ESA 
section 7 consultation is completed, provided that a non-jeopardy 
determination for ESA-listed species is reached.

    Dated: August 28, 2009.
Helen M. Golde,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. E9-21328 Filed 9-2-09; 8:45 am]
BILLING CODE 3510-22-P