Federal Register / Vol. 72, No. 92 / Monday, May 14, 2007 / Notices 27077 

invite comments on the question of 

whether instruments of equivalent 

scientific value, for the purposes for 

which the instruments shown below are 

intended to be used, are being 

manufactured in the United States. 

Comments must comply with 15 CFR 

301.5(a)(3) and (4) of the regulations and 

be postmarked on or before June 4, 

2007. Address written comments to 

Statutory Import Programs Staff, Room 

2104, U.S. Department of Commerce, 

Washington, DC 20230. Applications 

may be examined between 8:30 a.m. and 

5 p.m. at the U.S. Department of 

Commerce in Room 2104. 

Docket Number: 07–023. Applicant: 

University of Miami, Biology 

Department, 1301 Memorial Drive, 

Room 215, Coral Gables, FL 33146. 

Instrument: Electron Microscope, Model 

JEM–1400. Manufacturer: JEOL, USA, 

Inc., Japan. Intended Use: The 

instrument is intended to be used to 

study the ultrastructure of defensive 

glandular structures in the sea hare. 

Aplysia californica is to be studied. 

Structures to be examined include the 

ink gland, opaline gland and white skin 

vesicles. Also, studied will be the 

digestive gland and gill ultrastructure. 

The objectives are to attempt to 

determine if there is a link between food 

sources and the structure of the various 

glands described above. Application 

accepted by Commissioner of Customs: 

April 18, 2007. 

Docket Number: 07–024. Applicant: 

Shriners Hospitals for Children, 3101 

S.W. Sam Jackson Park Road, Portland, 

OR 97239. Instrument: Transmission 

Electron Microscope. Manufacturer: FEI, 

Company, The Netherlands. Intended 

Use: The instrument is intended to be 

used to examine sections from normal 

and diseased tissues, particularly in 

connective tissue, in an effort to 

determine the consequence of disease. 

Molecules and tissues will be analyzed 

in two and three dimensions using 

electron tomography for a better 

understanding of their structure and 

relationships to neighboring tissues and 

molecules. The distribution of 

molecules in normal and diseased 

tissues and the dimensional structure 

within cells and tissues will provide a 

better understanding of how they react 

in a tissue environment with other 

matrix molecules. Application accepted 

by Commissioner of Customs: April 27, 

2007. 

Docket Number: 07–027. Applicant: 

University of Missouri-Columbia, 

Veterinary Medicine Building, Room 

W122, 1600 East Rollins, Columbia, MD 

65211. Instrument: Transmission 

Electron Microscope, Model JEM–1400. 

Manufacturer: JEOL, Japan. Intended 

Use: The instrument is intended to be 

used in a central facility by an average 

of 50 different groups per year including 

faculty, staff and students to study the 

ultrastructure of a wide variety of 

biological and material samples 

including animal and plant tissues, 

microorganisms, and geological and 

engineering samples. The majority of 

use will be for biomedical research, 

agricultural questions and engineering 

problems. Materials developed for 

nanomedicine, pathogenic organisms, 

animal models of human disease, gene 

therapy and new devices and processes 

in engineering will be highlighted by 3D 

tomography. Application accepted by 

Commissioner of Customs: April 27, 

2007. 

Docket Number: 07–028. Applicant: 

Vanderbilt University, Center for 

Structural Biology, 465 21st Avenue 

South, MRB III, Suite 5140, Nashville, 

TN 37232. Instrument: Transmission 

Electron Microscope, Model FP 5005/ 

05. Manufacturer: FEI, Brno, Czech 

Republic. Intended Use: The instrument 

is intended to be used to study purified 

biological macromolecular complexes 

such as the spliceosome and the 

anaphase promoting complex, 

composed of protein and RNA 

components. The objective is to 

determine the three dimensional 

structures of large macromolecular 

complexes. Application accepted by 

Commissioner of Customs: April 27, 

2007. 

Faye Robinson, 

Director, Statutory Import Programs Staff. 

[FR Doc. E7–9214 Filed 5–11–07; 8:45 am] 

BILLING CODE 3510–DS–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[I.D. 041307A] 

Small Takes of Marine Mammals 

Incidental to Specified Activities; 

Taking Marine Mammals Incidental to 

Construction and Operation of an LNG 

Facility Off Massachusetts 

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 provisions 

of 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 construction and operation 

of an offshore liquefied natural gas 

(LNG) facility in the Massachusetts Bay, 

has been issued to Northeast Gateway 

Energy BridgeTM L.L.C. (Northeast 

Gateway) and Algonquin Gas 

Transmission, L.L.C. (Algonquin) for a 

period of 1 year. 

DATES: This authorization is effective 

from May 8, 2007, until May 7, 2008. 

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#iha. The Maritime 

Administration (MARAD) and U.S. 

Coast Guard (USCG) Final 

Environmental Impact Statement (Final 

EIS) on the Northeast Gateway Energy 

Bridge LNG Deepwater Port license 

application is available for viewing at 

http://dms.dot.gov under the docket 

number 22219. 

FOR FURTHER INFORMATION CONTACT: 

Kenneth Hollingshead, Office of 

Protected Resources, NMFS, (301) 

713-2289, ext 128. 

SUPPLEMENTARY INFORMATION: 

Background 

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

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

the Secretary of Commerce to allow, 

upon request, the incidental, but not 

intentional, taking of marine mammals 

by U.S. citizens who engage in a 

specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and either regulations are 

issued or, if the taking is limited to 

harassment, a notice of a proposed 

authorization is provided to the public 

for review. 

An authorization 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 certain 

subsistence uses, and that 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 


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27078 Federal Register / Vol. 72, No. 92 / Monday, May 14, 2007 / Notices 

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. 

Summary of Request 

On October 30, 2006, NMFS received 

an application from Northeast Gateway 

and Algonquin for an IHA to take small 

numbers of several species of marine 

mammals, by Level B (behavioral) 

harassment, for a period of 1 year, 

incidental to construction and operation 

of an offshore LNG facility. 

Description of the Project 

Northeast Gateway is proposing to 

construct, own, and operate the 

Northeast Gateway Deepwater Port (Port 

or Northeast Port) to import LNG into 

the New England region. The Port, 

which will be located in Massachusetts 

Bay, will consist of a submerged buoy 

system to dock specifically 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 will deliver regasified 

LNG to onshore markets via new and 

existing pipeline facilities owned and 

operated by Algonquin. Algonquin will 

build and operate a new, 16.06–mile 

(25.8 km) long, 24–in (61–cm) diameter 

natural gas pipeline (called the 

Northeast Gateway Pipeline Lateral or 

Pipeline Lateral) to connect the Port to 

Algonquin’s existing offshore natural 

gas pipeline system in Massachusetts 

Bay, called the HubLine. 

The Port will consist of two subsea 

Submerged Turret Loading (STLTM) 

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 will utilize vessels from its 

current fleet of specially designed 

Energy-BridgeTM Regasification Vessels 

(EBRVs), each capable of transporting 

approximately 2.9 billion ft3 (Bcf; 82 

million m3) of natural gas condensed to 

4.9 million ft3 (138,000 m3) of LNG. 

Northeast Gateway will add vessels to 

its fleet that will have a cargo capacity 

of approximately 151,000 m3. The 

proposed mooring system to be installed 

at the 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 EBRVs will 

dock to the STLTM buoys which will 

serve as both the single-point mooring 

system for the vessels and the delivery 

conduit for natural gas. Each of the 

STLTM buoys will be secured to the 

seafloor using a series of suction 

anchors and a combination of chain/ 

cable anchor lines. 

The Pipeline Lateral joins the existing 

HubLine pipeline in waters 

approximately 3 mi (4.8 km) to the east 

of Marblehead Neck in Marblehead, 

Massachusetts. From the HubLine 

connection, the Pipeline Lateral route 

extends towards the northeast, crossing 

the outer reaches of territorial waters of 

the Town of Marblehead, the City of 

Salem, the City of Beverly, and the 

Town of Manchester-by-the-Sea for 

approximately 6.3 mi (10.1 km). The 

Pipeline Lateral route curves to the east 

and southeast, exiting Manchester-bythe-Sea territorial waters and entering 

waters regulated by the Commonwealth 

of Massachusetts. The Pipeline Lateral 

route continues to the south/southeast 

for approximately 6.2 mi (10 km), where 

it exits state waters and enters federal 

waters. The Pipeline Lateral route then 

extends to the south for another 

approximately 3.5 mi (5.7 km), 

terminating at the Port. 

On June 13, 2005, Northeast Gateway 

submitted an application to the USCG 

and MARAD seeking a federal license 

under the Deep-Water Port Act to own, 

construct, and operate a deepwater port 

for the import and regasification of LNG 

in Massachusetts Bay, off of the coast of 

Massachusetts. Simultaneous with this 

filing, Algonquin filed a Natural Gas Act 

Section 7(c) application with the 

Federal Energy Regulatory Commission 

for a Certificate of Public Convenience 

and Necessity for the Pipeline Lateral 

that would connect the Northeast 

Gateway Port with the existing HubLine 

natural gas pipeline for transmission 

throughout New England. Because, as 

described later in this document, there 

is a potential for marine mammals to be 

taken, by harassment, incidental to 

construction of the facility and its 

pipeline and by the transport of LNG, 

Northeast Gateway/Algonquin have 

applied for a 1-year IHA for activities 

commencing around May, 2007. 

Detailed information on these activities 

can be found in the MARAD/USCG 

Final EIS on the Northeast Gateway 

Project (see ADDRESSES for 

availability). Detailed information on 

the LNG facility’s pipeline and port 

construction, operation, and 

maintenance activities; and noise 

generated from construction and 

operations was published in the Federal 

Register on March 13, 2007 (72 FR 

11328). No changes have been made to 

these proposed activities. 

Comments and Responses 

A notice of receipt and request for 

public comment on the application and 

proposed authorization was published 

on March 13, 2007 (72 FR 11328). 

During the 30-day public comment 

period, NMFS received the following 

comments from the Marine Mammal 

Commission (Commission), the 

Provincetown Center for Coastal Studies 

(PCCS), the PCCS Aerial Survey Team, 

the Whale Center of New England 

(WCNE), the Humane Society of the 

United States (HSUS), and 18 private 

citizens. 

Comment 1: The Commission states 

that in general, the mitigation, 

monitoring, and reporting measures 

appear appropriate and prudent. The 

Commission recommends that NMFS 

condition the IHA to include all of 

them, including the installation of a 

near-real-time passive acoustic array. 

Response: NMFS agrees with the 

Commission’s recommendation. The 

IHA requires the installation of a 

near-real-time passive acoustic array in 

the vicinity of the proposed project. 

Comment 2: The Commission 

recommends that the IHA explicitly 

identify which construction and 

operation activities (e.g., operation of 

vessel thrusters) would be suspended 

when whales are detected within 

specified distances. The Commission 

states that since the operators may not 

know which activities produce sounds 

that exceed certain specified levels (i.e., 

120 dB re 1 microPa), there is a need to 

specify which construction and 

operation activities would need to be 

suspended in the event that a right 

whale is detected within 457 m (500 yd) 

or another protected species is detected 

within 91 m (100 yd). 


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Response: NMFS does not agree with 

the Commission’s recommendation of 

setting specified shut down criteria for 

each construction and operation activity 

for a specified received level. Due to the 

complexity of oceanographical and 

ocean bottom topographical features, as 

well as a wide range of construction and 

operation equipment being used for the 

proposed project, it is virtually 

impossible to set specified shut down 

criteria for each construction and 

operation activity. For example, the 

ensonified area where intermittent noise 

received levels reach 120 dB re 1 

microPa or above from the same bow 

thruster use associated with dynamic 

positioning of vessels during either 

construction or operation (docking) 

could range between 15 km2 (5.8 mi2) 

and 34 km2 (13.1 mi2), or 2.18 km (1.35 

mi) and 3.31 km (2.06 mi) radii, 

respectively, depending on water depth 

between 120 m (394 ft) or deeper and 40 

m (131 ft) or shallower. 

Nonetheless, the Northeast Gateway 

proposed to adopt the most conservative 

estimates of ‘‘take’’ by using the largest 

zone of influence (ZOI; 34 km2, or 13.1 

mi2) for 120 dB re 1 microPa in shallow 

water (40 m, or 131 ft) in their 

calculation, regardless of the type of 

construction and operation activities. 

The type of construction activity that 

would produce the highest noise level 

would be from the construction vessel 

movements, with source levels reaching 

up to 180 dBL re 1 microPa at 1 m for 

vessel thrusters used for dynamic 

positioning. In addition, as detailed in 

the Federal Register notice (72 FR 

11328, March 13, 2007), during 

construction and operations, a 0.8 km 

(0.5 mi) radius zone will be monitored 

by marine mammal observers (MMOs). 

If any marine mammals are visually 

detected within the 0.8 km (0.5 mi) 

radius zone, the vessel supervisor 

would be notified immediately. The 

vessel’s crew would be put on a 

heightened state of alert. The marine 

mammal would be monitored constantly 

to determine if it is moving toward the 

construction or operation area. 

Construction or operational vessel(s) in 

the vicinity would be directed to cease 

any movement and/or stop noise 

emitting activities that exceed a 

received level of 120 dB re 1 microPa at 

100 yd (91 m) (approximately 139 dB re 

1 microPa at the source) if a marine 

mammal other than a right whale comes 

to within such a range. For right whales, 

the cut-off distance would be 

established at 500 yd (457 m) when the 

received level reaches 120 dB re 1 

microPa at 100 yd (91). NMFS considers 

this measure conservative. 

Comment 3: The Commission, the 

PCCS, and the HSUS note that 

construction and operation activities 

producing loud noise would occur at 

night and under poor sighting 

conditions (e.g., foggy weather) when 

visual detection of animals would not 

be possible. The Commission 

recommends that NMFS require the use 

of passive acoustic monitoring (PAM) at 

all times during the construction period 

and develop criteria and procedures for 

suspending and resuming activities that 

generate sounds above specified levels 

when protected species are detected 

near the construction site. The HSUS 

recommends that during low-light 

hours, Northeast Gateway should cease 

all construction activities until adequate 

sighting conditions prevail. 

Response: NFMS agrees with the 

Commission that PAM will be used at 

all times during the construction period. 

A detailed description of how PAM will 

be used to assist visual monitoring is 

provided in the draft Marine Mammal 

Detection, Monitoring, and Response 

Plan for the Construction and Operation 

of the Northeast Gateway Energy 

BridgeTM Deepwater Port and Pipeline 

Lateral (NEG, 2007). The PAM primarily 

serves as an early warning and 

supplemental measure for marine 

mammal visual monitoring provided by 

two MMOs on each construction vessel. 

The Northeast Gateway will equip 

MMOs with night vision devices for 

marine mammal monitoring during 

low-light hours. 

Comment 4: The Commission and the 

HSUS note that the Federal Register 

notice (72 FR 11328, March 13, 2007) 

identifies several measures intended to 

mitigate collision risks, including 

commitments by the port operator to 

require that vessels using the port: 

• use the Boston Traffic Separation 

Scheme (TSS); 

• travel at 10 knots or slower when 

outside those lanes approaching or 

leaving the port; 

• travel at 10 to 12 knots when in the 

vicinity of the port; and 

• reduce their transit speeds to 10 to 

14 knots between March 1 and April 30, 

or if required by NMFS, throughout the 

entire year in the proposed Race Point 

ship strike management area. 

The Commission and the HSUS 

request NMFS to describe specifically 

what is ‘‘in the vicinity of the port,’’ and 

provide an explanation as to why 

speeds of up to 12 knots would be 

allowed under this condition when, 

appropriately, the speeds of vessels 

approaching from or departing for the 

traffic lanes would be limited to 10 

knots. In addition, the Commission and 

the HSUS believe that 14 knots is too 

fast and requests NMFS to set an upper 

speed limit. The Commission and the 

HSUS are concerned that a high 

proportion of vessel strikes causing 

serious or lethal injuries to whales 

occurred at 14 knots, as supported by 

ship collision data compiled by the 

Commission and NMFS. The 

Commission recommends that, 

consistent with navigational safety, 10 

knots be required as a maximum speed 

for all vessels at all times of year within 

the Stellwagen Bank National Marine 

Sanctuary (SBNMS), and between 

March 1 and April 30 outside the 

SBNMS but still within the Race Point 

ship strike management area. The HSUS 

recommends that NMFS impose a speed 

limit of 10 knots to be consistent with 

what NMFS currently advises on its 

notices to mariners on the Ship 

Advisory System (SAS) in the 

Northeast. 

Response: NMFS agrees with the 

Commission’s comments and requires in 

the IHA a maximum speed of 10 knots 

for all vessels at all times of year within 

the SBNMS, and between March 1 and 

April 30 outside the SBNMS but still 

within the Race Point ship strike 

management area. To be consistent with 

NMFS Biological Opinion, the IHA 

requires that for construction activities, 

all construction vessels 300 gross tons 

or greater maintain a speed of 10 knots 

or less, and vessels transiting through 

the Cape Cod Canal and Cape Cod Bay 

between January 1 and May 15 reduce 

speed to 10 knots or less, follow the 

recommended routes charted by NOAA 

to reduce interactions between right 

whales and shipping traffic and avoid 

identified aggregations of right whales 

in the eastern portion of Cape Cod Bay. 

In response to active right whale 

sightings (detected acoustically or 

reported through other means such as 

the MSR (Mandatory Ship Reporting) or 

SAS), and taking into account safety and 

weather conditions, EBRVs 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. 

For operational activities, IHA 

requires that the Energy Bridge 

Regasification Vessels (EBRVs) maintain 

speeds of 12 knots or less while in the 

Boston 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 

3 km (1.86 mi) from the Northeast 

Gateway Port, speed will be reduced to 

3 knots, and to less than 1 knot at 500 

m (1,640 ft) from the Port. 


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27080 Federal Register / Vol. 72, No. 92 / Monday, May 14, 2007 / Notices 

EBRVs will reduce transit speed to 10 

knots or less (unless hydrographic, 

meteorological, or traffic conditions 

dictate an alternative speed to maintain 

the safety or maneuverability of the 

vessel) from March 1 - April 30 in all 

waters Off Race Point Seasonal 

Management Area (SMA). Please refer to 

the Monitoring, Mitigation, and 

Reporting section below for a detailed 

description. 

Comment 5: The Commission 

recommends that vessels of less than 

300 gross tons carrying supplies or crew 

between the shore and the construction 

site contact the appropriate authority 

before leaving shore or the construction 

site for reports of recent right whale 

sightings and, consistent with 

navigational safety, restrict speeds to 10 

knots or less within five miles of any 

recent sighting locations. The 

Commission states that vessels smaller 

than 300 gross tons pose a risk of ship 

strikes to right whales and other large 

cetaceans. 

Response: NMFS agrees with the 

Commission recommendation that 

vessels of less than 300 gross tons 

carrying supplies or crew between the 

shore and the construction site contact 

the appropriate authority before leaving 

shore or the construction site for reports 

of recent right whale sightings and, 

consistent with navigational safety, 

restrict speeds to 10 knots or less within 

five miles of any recent sighting 

locations. NMFS has adopted this 

recommendation and made it a 

requirement in the IHA issued to the 

Northeast Gateway. 

Comment 6: The HSUS points out that 

in the Federal Register notice (72 FR 

11328, March 13, 2007), it states that 

‘‘Northeast Gateway has voluntarily 

agreed to follow any speed restrictions 

that may become mandatory for all 

vessel traffic.’’ The HSUS requests 

NMFS to clarify the statement. 

Response: The Northeast Gateway 

voluntarily agreed to keep its EBGVs 

maximum speed at 12 knots within the 

Boston TSS (except during specified 

seasons and areas when speed will be 

limited to 10 knots or less, please refer 

to Monitoring, Mitigation, and 

Reporting section below for a detailed 

description), which is not a mandatory 

maximum speed for all vessel traffic. 

Comment 7: The HSUS requests that 

the applicant be required to halt 

activities in the event of the death or 

serious injury of an endangered species 

(e.g., right, fin or humpback whale) in 

or around the project area. 

Response: NMFS agrees with the 

HSUS’ comment. The applicant is 

required to suspend all 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 activity. 

Comment 8: The WCNE, the PCCS, 

and the HSUS point out that the 

numbers of marine mammals that would 

be harassed incidentally from May 

through November were grossly 

underestimated by NMFS in the Federal 

Register notice (72 FR 11328, March 13, 

2007). The WCNE states that the use of 

large whale survey data provided by the 

PCCS in Cape Cod Bay to extrapolate 

the number of animals that would be 

exposed to sound levels of over 120 dB 

re 1 microPa is flawed. The WCNE, the 

PCCS, the PCCS Aerial Survey Team, 

and the HSUS state that the PCCS 

surveys were conducted to asses the use 

of the Cape Cod Bay habitat for North 

Atlantic right whales, however, other 

species such as humpback, fin, and 

minke whales which are likely to occur 

in the proposed project area are seasonal 

migrants known to spend most of the 

survey months outside of the study area. 

The PCCS and the HSUS point out that 

the applicant should use better data, 

such as data published from a recent 

NOAA report (NCCOS, 2006), research 

conducted by Weinrich and Sardi 

(2005), and even non-systematic 

cetacean data, such as long-term 

photo-identification data sets held by 

PCCS. 

Response: NMFS recognizes that 

baleen whale species other than North 

Atlantic right whales have been sighted 

in the proposed project area from May 

to November. However, the occurrence 

and abundance of fin (Balaenoptera 

physalus), humpback (Megaptera 

novaeangliae), and minke (B. 

acutorostrata) is not well documented 

within the project area. Nonetheless, 

NMFS agrees with the PCCS that better 

data on cetacean distribution within 

Massachusetts Bay, such as those 

published by the National Centers for 

Coastal Ocean Science (NCCOS, 2006) 

should be used to estimate takes of 

marine mammals in the vicinity of 

project area. Based on the revised 

calculation, the updated estimated 

annual take numbers for North Atlantic 

right, fin, humpback, minke, and pilot 

whales, and Atlantic white-sided 

dolphins are 3, 13, 24, 2, 15, and 49, 

respectively. Please refer to the Estimate 

Takes by Harassment section below for 

a detailed description on the calculation 

of these numbers. 

NMFS also reviewed Weinrich and 

Sardi’s (2005) report on baleen whale 

distribution in the proposed project 

area. While NMFS considers it an 

excellent report in describing large 

whale distribution in the Massachusetts 

Bay and the SBNMS, with sighting data 

covering 1995 to 2004, NMFS could not 

use it to come up with take estimates 

because it did not provide density 

estimate in a quantitative analysis, 

which would be based on survey efforts, 

trackline, and strip width. Many of the 

non-systematic cetacean survey data, 

such as long-term photo-identification 

data sets held by the PCCS, are included 

in the NCCOS report. 

Comment 9: The WCNE states that in 

their research efforts on northern 

Stellwagen Bank in 2006, they 

identified over 250 individual 

humpback whales, including 33 

mother-calf pairs using standard 

photo-identification techniques, and 

even that number is considered an 

underestimate by the WCNE. Given the 

proximity of the project to Stellwagen 

Bank, the WCNE states that it is possible 

for any of these animals on any given 

day to be exposed to project noise of 

over 120 dB. 

Response: NMFS believes a small 

number of humpback whales might be 

incidentally taken by Level B 

harassment if they happen to occur in 

the ZOI where noise from construction 

activities reach over 120 dB. However, 

the maximum size of the ZOI is 

calculated to be 34 km2 (13 mi2) with a 

vessel’s dynamic positioning thrusters 

being operated in waters less than 40 m 

(131 ft) deep. As indicated in the 

Northeast Gateway’s application, even 

this maximum ZOI would occur outside 

the SBNMS boundary, and there would 

be at least 5 nm (9.3 km) from the outer 

boundary of the maximum ZOI to the 

edge of Stellwagen Bank, where 

humpback whales and other large whale 

species are likely to occur (NCCOS, 

2006). In addition, between the 

proposed project and the Stellwagen 

Bank, there is a deep drop off from the 

50-m isobath where construction noise 

would not propagate as far when 

compared to areas of water depth less 

than 40 m (131 ft), where the maximum 

ZOI could occur. Therefore, the 

identification of 250 individual 

humpback whales in the northern 

Stellwagen Bank does not mean that 

those whales in that vicinity would be 

harassed. To the contrary, the fact that 

the majority of whales occur within the 

SBNMS, especially gathering around the 

Stellwagen Bank, means that fewer 

whales would be taken by Level B 

harassment in the vicinity of the project 

area, which is outside the SBNMS. 

Comment 10: Citing the WCNE’s own 

research on humpback whales in the 

SBNMS and other studies (cited as Seipt 

et al., 1989), the WCNE states that a 

more realistic upper bound of the 

number of animals that may be taken 

during any given year by the project is 


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more likely to be up to 500 individuals 

each of humpback, fin, and minke 

whales, each of which may be taken 

multiple times on multiple days (no 

calculation provided). 

Response: NMFS does not believe the 

WCNE’s estimated take numbers are 

scientifically supported, especially 

given that the WCNE did not provide 

any valid calculation indicating how 

these numbers were assessed. The 

photo-identification of 250 humpback 

whales (including 33 mother-calf pairs) 

in the northern Stellwagen Bank, as 

mentioned in the previous Comment, 

does not support the WCNE’s take 

estimate. The research conducted by 

Seipt et al. (1990), titled ‘‘Population 

Characteristics of Individual Fin 

Whales, Balaenoptera physalus, in 

Massachusetts Bay, 1980-1987,’’ was 

actually published in the Fishery 

Bulletin in 1990, not 1989 as cited by 

the WCNE. While the study described 

the use of photo-identification 

technology on fin whale population 

studies in Massachusetts Bay and 

presented fin whale sighting and 

resighting data between 1980 and 1987, 

it did not provide any population 

estimate or density assessment of the 

species in the study area. Therefore, 

NMFS does not believe these data can 

be used for fin whale take estimates in 

the proposed project area. 

In addition, NMFS’ own population 

assessment of the Gulf of Maine 

humpback stock is 902 whales (Warring 

et al., 2005). The WCNE’s estimated 

annual take of 500 humpback whales 

(55 percent of the population) within an 

maximum 120 dB re 1 microPa ZOI of 

34 km2 (13 mi2) outside their normal 

habitat is not scientifically supportable. 

Likewise, the WCNE’s estimated annual 

take numbers of 500 fin whales, which 

accounts for 18 percent of the Western 

North Atlantic population of 2,814 

whales; and 500 minke whales, which is 

14 percent of the Canadian East Coast 

population of 3,618 whales (which are 

most sighted off Nova Scotia and New 

Brunswick, Canada); are not good 

estimates. 

Comment 11: The WCNE points out 

that right whales are not evenly 

distributed along a trackline, but clump 

in areas where a prey resource, usually 

copepods, is aggregated in high 

densities (Mayo and Marx, 1990; 

Baumgartner et al., 2003), and citing its 

work on right whales, the WCNE states 

that the right whale use of the proposed 

project area may be similar to that of 

Cape Cod Bay where up to 100 

individual whales are seen per year 

(Hamilton and Mayo, 1990; Brown et 

al., 2004; Mayo et al., 2005; Jaquet et al., 

2006). Hence, the WCNE states that an 

appropriate estimate of North Atlantic 

right whales to be harassed by the 

proposed project would be 

approximately 100 individuals 

annually, each of which may be taken 

multiple times on multiple days. 

Response: NMFS agrees that right 

whales clump in areas where prey 

species are most abundant. However, a 

good survey design would compensate 

for such a bias by adequate and repeated 

sampling of the study area. This is 

certainly the case for datasets used by 

the NCCOS (2006) which include survey 

efforts and sightings data from ship and 

aerial surveys and opportunistic sources 

between 1970 and 2005 from a wide 

range of sources. These studies clearly 

show that right whales spend most of 

their time across the southern Gulf of 

Maine in Cape Cod Bay in spring, with 

highest abundance located over the 

deeper waters on the northern edge of 

the Great South Channel and deep 

waters parallel to the 100-m (328-ft) 

isobath of northern Georges Bank and 

Georges Basin. The references the 

WCNE cited focused most of the survey 

efforts in Cape Cod Bay, which is 30 - 

40 mi (48 - 64 km) southeast of the 

proposed project area and has different 

oceanographic features and ecological 

characteristics, and a more important 

habitat for right whales. In addition, 

Weinrich and Sardi (2005) in their 

report on the distribution of baleen 

whales in the Northeast Gateway 

proposed LNG project area states: 

North Atlantic right whales are sporadic 

visitors to the study area [Northeast Gateway 

project area] during the April to November 

period. Right whales typically aggregate in 

Cape Cod Bay during the late winter and 

early spring (Mayo and Marx 1990), then 

move east to the Great South Channel during 

the spring (Kenney and Wishner 1995). They 

then move east along the northern edge of 

Georges Bank, and into the Bay of Fundy and 

Nova Scotian shelf during the summer and 

early fall (Kraus et al. 1988; Winn et al. 1986; 

Baumgartner et al. 2003). Once they leave the 

Bay of Fundy, pregnant females migrate to 

the coastal waters of the southern U.S. to 

calve, while the distribution of much of the 

rest of the population remains unknown 

(Winn et al. 1986). 

Right whale sighting plots presented 

in this report support this statement, 

and it is consistent with the survey data 

published in the NCCOS (2006) report, 

which indicates that right whales do not 

use the proposed project area regularly. 

Therefore, NMFS does not believe that 

the WCNE’s estimated annual take of 

100 North Atlantic right whales by the 

proposed project is scientifically 

supported, especially given that the 

WCNE did not provide the calculation 

regarding how this take number was 

assessed. 

Comment 12: The WCNE states that 

although it has no way of addressing the 

numbers of other species [marine 

mammal species other than large 

whales] requested to be taken by 

harassment, in most cases the numbers 

requested seem to be unrealistic to the 

WCNE (no references provided). 

Response: Given that the WCNE has 

no way of addressing the numbers of 

other species requested, the WCNE’s 

opinion that the numbers are unrealistic 

has no scientific basis. 

Comment 13: The WCNE points out 

that the deepwater port installation 

during the months of August through 

November is a particularly sensitive 

time for endangered humpback and fin 

whales within the proposed project 

area, as supported by the studies 

conducted by Weinrich and Sardi 

(2005). The WCNE states that heavy 

industrial activity during these months 

would result in either take levels of 

these species at far greater levels than 

during any other month or in habitat 

displacement altogether. 

Response: While NMFS reviewed the 

Weinrich and Sardi (2005) report on the 

distribution of baleen whales in the 

waters surrounding the Northeast 

Gateway’s proposed LNG project, NMFS 

did not find the report contains any 

quantitative analysis of the cetacean 

density data showing that there is a 

statistical significance of baleen whales’

use of the proposed project area on a 

seasonal or monthly basis. The cetacean 

sighting data, plotted in an area that 

includes most of the SBNMS, part of the 

Massachusetts Bay, the west terminal 

portion of the Boston TSS, and the 

proposed project area, clearly show that 

most humpback, fin, and minke whales 

were sighted within the SBNMS 

(Weinrich and Sardi, 2005). NMFS 

recognizes that there would be potential 

take of a small number of marine 

mammals by Level B harassment as a 

result of this project, however, NMFS 

does not agree with the WCNE that there 

would be takes at far greater levels 

during the months of August and 

November for humpback and fin whales 

as strict monitoring and mitigation 

measures, described in the Monitoring, 

Mitigation, and Reporting section, 

would be implemented to keep the 

impact levels as low as practicable. 

Comment 14: The WCNE points out 

that the permit application never refers 

to any of the project’s vessel operations 

except that of the thrusters. The WCNE 

states that staff at the SBNMS have 

shown that LNG tankers under 

operation produce acoustic sources that 

can radiate well over 0.25 mi (400 m) 

from the ship (no reference provided). 

The WCNE further points out that many 


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of the ships are large, relatively 

un-maneuverable vessels that would not 

be able to maintain legal approach 

distances, including the 500-yd 

minimum approach distance to right 

whales. 

Response: Staff at the SBNMS has not 

had the opportunity to do acoustic 

testing of the EBRVs that will be using 

the Port. However, acoustic testing of 

the EBRVs has been conducted and was 

referenced in the proposed project as 

published in the Federal Register (72 

FR 11328, March 13, 2007). While 

‘‘acoustic sources’’ may ‘‘radiate,’’ at 

0.25 mi (400 m) the received level 

would be below 120 dB re 1 microPa, 

which is the threshold for Level B 

behavioral harassment for marine 

mammals. 

The Northeast Gateway states that the 

maneuverability of the EBRVs at this 

low speed (maximum 12 knots within 

the Boston TSS and maximum 10 knots 

within the SBNMS, please refer to 

Monitoring, Mitigation, and Reporting 

section below for a detailed description) 

would enable the vessels to maintain 

legal approach distance, including the 

500-yd (457-m) minimum approach 

distance to right whales. 

Comment 15: The WCNE points out 

that the applicant plans to use a remote 

acoustic detection system for whale 

monitoring. However, the WCNE states, 

that PAM can only be effective if a 

whale vocalizes while it is within 

detectable range of the array. Citing Park 

et al. (2006, unpublished data), the 

WCNE states that whales are often silent 

for prolonged periods in the WCNE’s 

study area. The PCCS also points out 

that marine mammals may not vocalize 

continuously and work is still underway 

to estimate the probability of detecting 

a whale that is present by passive 

acoustic techniques. 

Response: NMFS acknowledges these 

limitations. The requirement of PAM for 

marine mammal detection is intended to 

provide additional monitoring to the 

standard visual monitoring by qualified 

marine mammal observers (MMOs). 

PAM is not to be solely used for marine 

mammal monitoring and detection for 

the proposed project and certainly will 

not replace visual monitoring. However, 

passive acoustic buoys provide an early 

warning to contractor managers and 

vessel operators when a vocalizing 

whale is detected within 3 - 5 mi (4.8 

- 8.0 km) from the project, which 

triggers the MMOs to heighten visual 

observation in the direction of a 

vocalizing whale (NEG, 2007). 

While NMFS agrees that at times 

whales do not vocalize continuously, 

nonetheless, acoustic detection has been 

demonstrated to augment visual 

detection of marine mammal in 

population estimates and habitat 

selection selection indices in a number 

of studies (e.g., Moore et al., 1999; 

Swartz et al., 2002). 

Comment 16: The PCCS is concerned 

that PAM would be entirely ineffective 

for monitoring marine turtles which also 

are least likely to be detected by visual 

techniques. 

Response: NMFS agrees with the 

PCCS’ comment that PAM is not an 

effective way to monitor marine turtles. 

As stated in the Federal Register notice 

(72 FR 11328, March 13, 2007), the PAM 

would be used as a supplemental 

monitoring measure for detecting 

marine mammals. 

Comment 17: The WCNE and the 

PCCS Aerial Survey Team are 

concerned that vessel strikes have not 

been identified as a potential type of 

take, and that the applicants have made 

no commitments to take any actions to 

avoid disturbance or collision even 

though they know a whale is present in 

their path or in the disturbance 

‘‘swath.’’

Response: NMFS does not agree with 

the WCNE and PCCS’ comment. In 

assessing the potential impact from 

vessel strikes, NMFS proposed strict 

vessel speed limits in the vicinity of the 

project area, including within the 

SBNMS, the Boston TSS, and right 

whale seasonal management areas. 

The IHA issued to the Northeast 

Gateway provides detailed monitoring 

and mitigation measures to avoid any 

disturbance or collision, including 

passive acoustic monitoring, reducing 

vessel speed to 12 knots within the 

Boston TSS, and further reducing vessel 

speed to 10 knots within the SBNMS 

and within seasonal management areas 

during certain months. These 

mandatory monitoring and mitigation 

measures are detailed in the Monitoring, 

Mitigation, and Reporting section of this 

document. 

Comment 18: The WCNE states that 

whales would be harassed not just by 

exposure to sound sources of over 120 

dB re 1 microPa, they may also be 

disturbed by multiple boats in a limited 

area. The WCNE cites that studies 

conducted by Borgaard et al. (1999) and 

Stone and Tasker (2006) on whales 

affected by continuous activity from 

dredging coupled with vessel traffic and 

seismic activities. The WCNE 

recommends that if in the first year [of 

the project] abundance of any of the key 

species are notably lower than that of 

previous years, the IHA should stipulate 

that project operations should cease 

until it can be determined if that change 

was related to project activities or other 

ecological factors. 

Response: It is true that marine 

mammals maybe disturbed by multiple 

boats in a limited area, especially within 

the Boston TSS. However, this concern 

is not related to the issuance of this IHA 

since the operation of a deepwater LNG 

facility would only increase vessel 

traffic by a very small amount, about 1.5 

percent (NMFS, 2007). The study by 

Borgaard et al. (1999) cited by the 

WCNE was focused on the effects of 

large scale industrial activity, which 

involved dredging and blasting, on large 

cetaceans in Bull Arm, Trinity Bay, 

Newfoundland from 1992 through 1995. 

The research indicates that humpback 

whales were more affected by 

continuous activity from dredging, 

coupled with vessel traffic, but 

appeared tolerant of transient blasting 

and frequent vessel traffic. 

Individually-identified minke whales 

were resighted in the industrialized 

area, and appeared tolerant of vessel 

traffic. Stone and Tasker (2006) in their 

research analyzed the effects of airgun 

seismic surveys on marine mammals in 

UK waters. The airgun used in seismic 

surveys produces impulse sounds, 

which is fundamentally different sound 

in acoustic characteristics from the 

intermittent noises produced during the 

proposed deepwater LNG port 

construction. 

The IHA is issued for a duration of 

one year. NMFS will evaluate any new 

scientific information that may surface 

during the project period and assess any 

impacts that may result due to the 

deepwater port construction and 

operation. Based on the new 

information and monitoring reports, 

NMFS will determine whether any 

additional monitoring or mitigation 

measures are warranted for future IHAs. 

Comment 19: The WCNE states that 

the range over which individual marine 

mammals would be considered harassed 

by exposure to vessel noise of over 120 

dB re 1 microPa is also underestimated 

in the permit application. The WCNE 

points out that the Northeast Gateway 

FEIS provides relatively little concrete 

data on how far the sounds of various 

project activities are likely to propagate, 

except for a small number of studies 

conducted on stationary vessels in the 

Gulf of Mexico (GOM). The WCNE 

points out that the differences in the 

acoustic properties between the GOM 

and the Massachusetts Bay project site 

are so great that data from the former are 

of little relevance (no reference 

provided). Citing the Neptune LNG 

project, the WCNE states that the area 

around the ship that would reach areas 

of 120 dB re 1 microPa would be within 

approximately 1 nm in any direction 

when it is transiting at 10 knots at 


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depths of both 50 m and at the bottom 

(less at the surface, where the sound is 

masked by the Lloyd mirror effect), and 

to approximately 3 nm in any direction 

when thrusters are used. 

Response: NMFS does not agree with 

the WCNE comment. The propagation of 

sound underwater follows basic 

geometric spreading models that are 

generally predictable (Urick, 1983). 

Therefore, studies on acoustic energy 

propagation conducted in the GOM are 

directly relevant to operations of 

identical vessels in the Massachusetts 

Bay unless substantial data are provided 

that would indicate otherwise. 

Regarding the size of the 120 dB re 1 

microPa isopleth cited by the WCNE for 

the Neptune LNG project, there are a 

number of reasons why the isopleth 

areas differ from the one for this project. 

One reason is that the source level may 

be higher. 

Comment 20: The WCNE points out 

that there is no mention in the 

applicant’s application about 

harassment from blasting during the 

construction phase of the project, 

however, the proponents continue to 

include in many of their documents the 

possibility that it may occur. The WCNE 

states that baleen whales, including 

those species in the project area, have 

been shown to be very sensitive to 

blasting; in some cases, it has been 

known to be fatal to humpback whales 

(Todd et al., 1996). 

Response: Northeast Gateway stated 

that the pipeline route was intensively 

studied, and those studies were 

submitted to the USCG/MARAD and 

made part of their application. When 

the shortest, least expensive pipeline 

route was studied and it became clear 

that it would cross rocky substrate, 

another route, longer and more 

expensive was designated, selected in 

large part because it entirely avoids 

rocky substrate and the need for blasting 

or extensive alteration of the substrate. 

Northeast Gateway stated in its IHA 

application that no blasting would be 

required for the construction of the LNG 

deepwater port. Therefore, the IHA does 

not authorize blasting to be used for port 

construction. If, during the course of the 

construction, an unexpected need for 

blasting arises, the blasting cannot take 

place until a blasting plan is submission 

to the Federal Energy Regulatory 

Commission (FERC) and a Blasting 

Mitigation Plan prepared in 

consultation with NOAA for submittal 

to, and approval by, the FERC, which 

would certainly include a 

reconsideration of an amendment of the 

IHA. 

Comment 21: The WCNE states that 

unless otherwise specifically granted an 

authorization by the NMFS permit 

office, Northeast Gateway must also 

move away from a right whale until they 

have once again established the 500 yd 

buffer. The application does not contain 

a request for an authorization to 

approach right whales within 500 yd. 

This contradicts their statement that, 

regarding the DSV (which maintains its 

position with thrusters, and is therefore 

well above 120 dB re 1 microPa to 

several miles) ‘‘the importance of 

maintaining the position of the vessel is 

a demand which cannot be 

compromised’’ (in other words, 

regardless of where any marine mammal 

appears). 

Response: The mitigation measures 

for approach regulate the approach 

distance of a vessel to a marine 

mammal. They do not apply to 

stationary vessels. The construction 

vessels in question include anchored 

construction barges and Diver Support 

Vessels (DSV). 

The DSV uses dynamic positioning to 

hold position over one or more divers 

deployed on the bottom with lifelines 

into the vessel. It is, for all intents and 

purposes, stationary at the time. It is 

extremely unlikely that a marine 

mammal would approach such a noise 

source and swim within the specified 

‘‘harassment’’ distance of the vessel. 

However, if that occurred, the vessel 

would not be able to abandon its 

position; if the vessel did so, the safety 

and even the survival of the divers 

below would be in jeopardy. This is 

made clear in the proposed IHA Federal 

Register notice (72 FR 11328, March 13, 

2007). Since the maximum noise level 

produced by deploying the dynamic 

positioning thrusters is under 180 dB re 

microPa, which is below the sound level 

that may cause permanent or temporary 

hearing threshold shift, NMFS does not 

believe that any Level A harassment 

(including injury) or mortality would 

occur to any marine mammals in the 

project vicinity. 

Comment 22: The PCCS questions the 

500-yd rule to determine when activities 

might become disruptive for right 

whales, and 100-yd rule for other 

marine mammals. The 500-yd rule for 

right whales was not formulated to 

prevent disruption from construction 

activities and it is unclear what the 

100-yd threshold is based on. Both 

distances appear to be smaller than the 

anticipated ZOI for 120 dB re 1 microPa 

sound. The smallest anticipated ZOI 

radius according to the application is 

2.18-km or 2,384-yd, far greater than 

both sighting distance thresholds. 

Finally, it is not clear why 120 dB re 1 

microPa activities should cease at 

different distances for right whales 

compared to other species. 

Response: Those distances are based 

on applicant’s proposed action as 

described in their IHA application, as 

well as the EIS and Biological Opinion. 

Given the status of right whales, it is 

appropriate to have a more conservative 

shut-down zone for right whales. 

The 2.18-km (2,384-yd) 120-dB 

isopleth is based on the conservative 

calculation using the high-intensity 

source level of 180 dB from the dynamic 

positioning thrusters. These levels of 

high-intensity sounds are rarely emitted, 

therefore, the chance of a marine 

mammal being exposed to received 

levels above 120 dB outside the 100-yd 

safety zone (500-yd safety zone for a 

right whale) is very low. 

Please also note that the MMOs are 

able to monitor a much larger area (0.8 

km, or 0.5 mi, radius) in any direction 

from the construction site, which is way 

beyond 500-yard limit. In the Arctic, 

mammal observers routinely report 

whales at 1 to 3 mi (1.6 to 4.8 km) 

distance from the ship from observation 

platforms that are 12 to 15 m (40 to 50 

ft) above the surface of the sea, as would 

be the case for the DSVs or the 

construction barges. 

Comment 23: The PCCS Aerial Survey 

Team points out that there may be other 

species found in the Massachusetts Bay 

in addition to those observed in Cape 

Cod Bay by the PCCS. Therefore, more 

marine mammal studies should be 

conducted in the Massachusetts Bay. 

Response: NMFS agrees with the 

PCCS there may be other species of 

marine mammals present in the 

Massachusetts Bay that were not 

included in the estimated take, such as 

sei whales (B. borealis). However, these 

species are rarely sighted in the vicinity 

of the project area. Therefore, NMFS 

considers it unlikely that there would be 

a take of sei whales as a result of the 

proposed activity. NMFS agrees with 

the PCCS that more marine mammal 

studies should be conducted in the 

Massachusetts Bay. However, this is 

irrelevant to the issuance of this IHA 

since NMFS already has the necessary 

information to assess the level of 

potential impacts on marine mammals 

in the project area and to make the 

determination on the issuance of the 

IHA. 

Comment 24: The PCCS Aerial Survey 

Team states that their PCCS line transect 

data area specifically designed to 

maximize right whale sightings, and 

other marine mammals are recorded 

secondarily. The PCCS points out that 

different survey methods are 

appropriate for different species and 

that density estimates for small 


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cetaceans in particular are largely 

influenced by sea state (Palka, 1996). 

The PCCS further points out that in 

calculating the estimated take of marine 

mammals, Northeast Gateway used 1.5 

km as strip width, in fact, the strip 

width should be 1.5 nm, and that the 

1.5-km strip width would not be 

appropriate for many of the smaller 

marine mammals (for example, a strip 

width of a few hundred meters would 

be more appropriate for harbor 

porpoises). 

Response: NMFS recalculated the 

cetacean density data and estimated 

take number based on the compilation 

of a large number of databases 

published by the NCCOS (2006). Please 

refer to Estimated Take by Harassment 

section below for a detailed description. 

In their density estimate, the NCCOS 

eliminated all survey data collected for 

small marine mammals when sea state 

is 3 or above. 

In making its final determination, 

NMFS revised its calculation for 

estimated take of marine mammals due 

to the proposed project, and a more 

conservative hypothetical ‘‘strip width’’

of 0.4 km (0.25 mi) was used to 

calculate the estimated take number 

from the NCCOS report. Please refer to 

Estimated Take by Harassment section 

below for a detailed analysis of the 

calculation. 

Comment 25: The PCCS Aerial Survey 

Team points out that a correction factor 

of 30 percent in calculating marine 

mammal take numbers cannot be 

applied to all species. 

Response: While the length of the 

dive varies widely among marine 

mammal species, correction factors have 

not been developed for all species. 

Nonetheless, NMFS has used a more 

conservative 50 percent correction 

factor to compensate for marine 

mammals that were underwater and 

thus not sighted. Therefore, NMFS 

believes that this correction factor, 

while general, provides a conservative 

estimate of possible take. 

Comment 26: The PCCS Aerial Survey 

Team points out that human error (often 

known as perception error) should also 

be factored into the equation, but has 

not been included in calculations by the 

applicant. 

Response: Since such a factor has not 

been calculated in any datasets the 

NCCOS used for its density estimate, 

there is no way of knowing whether a 

meaningful correcting factor for 

perception error exists, and if so, the 

magnitude of the factor. Nonetheless, in 

selecting data for cetacean density 

estimate, only records from dedicated 

aerial and platform-of-opportunity 

surveys that met certain selection 

criteria were used by the NCCOS in 

their calculation. Please refer to the 

NCCOS (2006) report for a detailed 

description. 

Comment 27: The PCCS Aerial Survey 

Team points out that any harassment 

contributing to the stress of a right 

whale could potentially affect this 

vulnerable population. 

Response: NMFS agrees with the 

PCCS Aerial Survey Team’s assessment. 

NMFS endangered species scientists in 

the Northeast Region have conducted a 

thorough review of 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 

proposed project and cumulative effects 

in the action area. A Biological Opinion 

on the proposed action was published 

on February 5, 2007 (NMFS, 2007), 

which stated that the construction and 

operation of the Northeast Gateway LNG 

deepwater port is likely to adversely 

affect, but is not likely to jeopardize the 

continued existence of Northern right 

whales. 

In addition, NMFS has reviewed and 

adopted the FEIS prepared by the USCG 

and the MARAD, and has made its 

determination that the issuance of the 

IHA to the Northeast Gateway for taking 

up to 3 North Atlantic right whales by 

Level B harassment incidental to an 

LNG deepwater construction would 

have a negligible impact on the species. 

Comment 28: The Commission 

assumes that NMFS chose 120-dB re 1 

microPa source level, rather than the 

received level, as a cut-off threshold to 

avoid the need for a small-take 

authorization, and that the source level 

was used rather than the received level 

simply to avoid uncertainty pertaining 

to estimation of the received level. The 

Commission requests a clarification if 

its assumption is incorrect. 

Response: The Northeast Gateway in 

its Marine Mammal and Turtle 

Monitoring and Mitigation Plan of the 

IHA application (Appendix C) stated: 

Construction vessel(s) in the vicinity of the 

sighting will be directed to cease any 

movement and/or stop noise emitting 

activities that exceed 120 decibels (dB) in the 

event that a right whale comes to within 500 

yards of any operating construction vessel. 

For other whales and sea turtles this distance 

will be established at 100 yards. Vessels 

transiting the construction area such as pipe 

haul barge tugs will also be required to 

maintain these separation distances. 

This proposed mitigation measure 

was later published in the Federal 

Register notice (72 FR 11328, March 13, 

2007). However, after consulting experts 

on ocean acoustics, NMFS realized that 

setting the 120 dB source level as a 

cut-off is unrealistic and untenable. 

Given the fact that almost anything 

occurring on a vessel or barge would 

have to be stopped—including 

generators for basis functions, flushing 

toilets, and tug boats in neutral, etc.—

if 120 dB source level was set as a 

cut-off threshold, NMFS has amended 

the cut-off threshold to be 120 dB re 1 

microPa received level at 100 yd (91 m) 

for all marine mammals except right 

whales when they approach to this 

distance. The cut-off threshold for right 

whales would also be 120 dB re 1 

microPa at 100 yd (91 m), however, the 

source shut-down distance would be 

500 yd (457 m) from the source. The 

back calculated cut-off source level 

based on the most conservative model 

for underwater acoustic propagation 

(i.e., cylindrical spreading in shallow 

water) is 139 dB re 1 microPa. Please see 

Monitoring, Mitigation, and Reporting 

section below for a detailed description. 

Comment 29: Fourteen private 

citizens request a public hearing to 

consider the IHA application submitted 

by the Northeast Gateway to take marine 

mammals off the Massachusetts 

coastline. These citizens also state that 

the dangers to marine mammals are 

grossly understated and misrepresented 

in the permit application. 

Response: In view of the number of 

public meetings and hearings held by 

the USCG and others on this matter and 

the expedited statutory timeline for 

issuing this IHA, NMFS does not believe 

that a public hearing is warranted. 

A thorough analysis of the potential 

impact to marine mammals as a result 

of the proposed project is presented in 

the Federal Register notice (72 FR 

11328) published on March 13, 2007, 

and in the NMFS Biological Opinion on 

this action, the USCG and MARAD 

Final EIS, as well as in this document. 

Please refer to these documents for the 

issue. 

Comment 30: Fourteen private 

citizens point out that the proposed 

LNG terminal would be almost on top 

of an old toxic, chemical, and 

radioactive dump site that is 

surrounded by three marine sanctuaries, 

including the SBNMS, the South Essex 

Ocean Sanctuary, and the North Shore 

Ocean Sanctuary. These citizens also 

expressed concerns that LNG tankers 

would constantly scour the bottom, 

dredging up and breaking up many of 

the thousands of waste drums 

documented to have been dumped in 

the vicinity that would pollute the 

ocean ecosystem, endanger 6 species of 

ESA-listed whales and 4 species of 

ESA-listed sea turtles, contaminate fish 

and lobsters, and threaten the livelihood 

and safety of fishermen who may pull 


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up toxic materials in their nets and 

traps. 

Response: Algonquin has used the 

coordinates listed in the permits 

authorizing the dumping of radioactive 

waste to map the locations of the dump 

areas. The project does not involve any 

work in the radioactive dump locations, 

and therefore there will be no sediment/ 

bottom disturbing activities resulting 

from the project construction or 

operation that would necessitate the 

need to clean up the wastes. One dump 

location is located about 6 mi (9.7 km) 

almost due east of Scituate and 

approximately 8 mi (12.9) south of the 

Northeast Gateway deepwater port. The 

second dump site is located just east of 

the eastern edge of the pipeline anchor 

corridor, approximately between 

Mileposts 14 and 15. While this area is 

more proximate to the proposed project 

area, geophysical surveys were 

performed, using sidescan sonar, 

subbottom profiling and magnetometer 

methodologies. These survey 

methodologies have a high probability 

of identifying items such as 30- or 

50-gallon (113.6- or 189.3-l) steel drums, 

either because they create a surface 

image on the sidescan sonar, such as a 

3- or 4-ft (0.9- or 1.2-m) diameter rock 

might, or because the magnetometer 

registers the presence of ferrous metal 

objects, potentially as small as a 

cannonball, and even if encased in 

concrete. Benthic community and 

sediment characterization surveys were 

also conducted using grab samplers; 

therefore results reflect the near-surface 

conditions. Benthic samples were 

collected throughout the area that was 

examined during the siting process, 

while sediment collections were made 

only in the areas finally selected for the 

buoys and flowlines. Because of the 

historical reports of radioactive wastes 

being disposed in eastern Massachusetts 

Bay, field technicians tested each 

benthic and sediment sample from that 

area with a Geiger counter. No ‘‘hot’’

samples were found. Sediment samples 

were tested for the chemical 

contaminants required for assessing 

dredged material proposed for disposal 

at the Massachusetts Bay Disposal Site 

(MBDS). All constituents tested fell 

within the Category 1 (‘‘cleanest’’) 

criteria, considered acceptable for 

disposal at the MBDS. 

In addition, this is an area of intense 

ground fishing activity, and it is 

possible that disposed drums of 

radioactive waste that were short 

dumped would have already been 

struck by groundfishing gear, would 

have been picked up in groundfishing 

gear, or are adequately buried, such that 

the anchor cables will not disturb them. 

Comment 31: Five private citizens 

point out that when Algonquin built the 

Hubline it ignored its permit and the 

Order of Conditions set by the Nahant 

Conservation Commission not to build 

during lobster migration seasons. These 

citizens are concerned that, given this 

history, Algonquin may not suspend 

construction activities when whales are 

in the vicinity. 

Response: Algonquin states that 

during the construction of the HubLine 

Pipeline, the company worked closely 

with Federal, state and local regulatory 

agencies to ensure that the intent of the 

permit conditions were complied with. 

Weekly construction status reports were 

prepared and submitted to agency 

personnel. Algonquin states that the 

HubLine Project was complex and 

construction during the winter posed 

some significant unforeseen challenges. 

Throughout the construction phase, 

Algonquin states that it worked closely 

with agency personnel at the Federal 

and state level to overcome these 

challenges. Algonquin further states that 

it takes very seriously environmental 

compliance at all levels and will 

continue to do so during the 

construction of the Pipeline Lateral. 

Comment 32: One private citizen 

states that it would be unreasonable to 

expect construction crews to halt 

construction during whale sighting and 

stop what amounts to noise pollution 

emitted at a dangerous level to whales. 

This citizen further states that it is 

irresponsible to endanger the whales, 

turtles, fish and lobster in this area, and 

that it is unacceptable to disrupt a 

sanctuary. 

Response: The IHA issued to the 

Northeast Gateway and Algonquin, 

under section 101(a)(5)(D) of the 

MMPA, to take marine mammals by 

Level B harassment incidental to the 

construction and operation of an LNG 

facility in the Massachusetts Bay 

provides mitigation and monitoring 

requirements that will protect these 

animals from any injury or mortality. 

The IHA holders are required to comply 

with the IHA’s requirements. 

The proposed project would occur 

outside the SBNMS, and a thorough 

analysis has been conducted based on 

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 proposed project 

and cumulative effects in the action 

area. These reviews have led NMFS to 

conclude that the proposed LNG project 

would have a negligible impact on the 

affected species or stocks of marine 

mammals and is not likely to jeopardize 

the continued existence of any 

ESA-listed species. Please refer to the 

Federal Register notice (72 FR 11328) 

published on March 13, 2007, NMFS 

Biological Opinion on Northeast 

Gateway’s action, the USCG and 

MARAD Final EIS, as well as this 

document for additional information. 

The analyses of the potential impacts on 

the environment and other marine 

species can be found in the Final EIS 

prepared by the USCG and MARAD. 

Comment 33: One private citizen 

states it makes more sense to back 

hydrogen production from purified 

water with a system like the Hopewell 

Project in New Jersey. This citizen asks 

NMFS to take a look into the Hopewell 

Project and help America become 

energy independent. 

Response: Comment noted. However, 

this request is irrelevant to this action. 

Marine Mammals Affected by the 

Activity 

Marine mammal species that 

potentially occur within the NE 

Gateway facility impact area include 

several species of cetaceans and 

pinnipeds: Atlantic white-sided 

dolphin, bottlenose dolphin, shortbeaked common dolphin, harbor 

porpoise, killer whale, long-finned pilot 

whale, Risso’s dolphin, striped dolphin, 

white-beaked dolphin, sperm whale, 

minke whale, blue whale, humpback 

whale, North Atlantic right whale, sei 

whale, gray seal, harbor seal, hooded 

seal, and harp seal. Information on those 

species that may be impacted by this 

activity are discussed in detail in the 

USCG Final EIS on the Northeast 

Gateway LNG proposal. Please refer to 

that document for more information on 

these species and potential impacts 

from construction and operation of this 

LNG facility. In addition, general 

information on these marine mammal 

species can also be found in Wursig et 

al. (2000) and in the NMFS Stock 

Assessment Reports (Waring, 2006). 

This latter document is available at: 

http://www.nefsc.noaa.gov/nefsc/ 

publications/tm/tm194/. An updated 

summary on several cetacean species 

distribution and abundance in the 

proposed action area is provided below. 

Humpback Whale 

The highest abundance for humpback 

whales was distributed primarily along 

a relatively narrow corridor following 

the 100-m (328 ft) isobath across the 

southern Gulf of Maine from the 

northwestern slope of Georges Bank, 

south to the Great South Channel, and 

northward alongside Cape Cod to 

Stellwagen Bank and Jeffreys Ledge. The 

relative abundance of whales increased 

in the spring with the highest 


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occurrence along the slope waters 

(between the 40- and 140-m, or 131- and 

459-ft, isobaths) off Cape Cod and Davis 

Bank, Stellwagen Basin and Tillies 

Basin and between the 50- and 200-m 

(164- and 656-ft) isobaths along the 

inner slope of Georges Bank. High 

abundance was also estimated for the 

waters around Platts Bank. In the 

summer months, abundance increased 

markedly over the shallow waters (<50 

m, or <164 ft) of Stellwagen Bank, the 

waters (100 - 200 m, or 328 - 656 ft) 

between Platts Bank and Jeffreys Ledge, 

the steep slopes (between the 30- and 

160-m isobaths) of Phelps and Davis 

Bank north of the Great South Channel 

towards Cape Cod, and between the 50- 

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

almost the entire length of the steeply 

sloping northern edge of Georges Bank. 

This general distribution pattern 

persisted in all seasons except winter, 

when humpbacks remained 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 Great South Channel. 

Fin Whale 

Spatial patterns of habitat utilization 

by fin whales were very similar to those 

of humpback whales. Spring and 

summer high-use areas followed the 

100-m (328 ft) isobath along the 

northern edge of Georges Bank (between 

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

isobaths), and northward from the Great 

South Channel (between the 50- and 

160-m, or 164- and 525-ft, isobaths). 

Waters around Cashes Ledge, Platts 

Bank, and Jeffreys Ledge are all high-use 

areas in the summer months. Stellwagen 

Bank was 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 the SBNMS was 

used more frequently than the northern 

portion in all months except winter, 

when high abundance was recorded 

over the northern tip of Stellwagen 

Bank. In addition to Stellwagen Bank, 

high abundance in winter was estimated 

for Jeffreys Ledge and the adjacent 

Porpoise Basin (100- to 160-m, 328- to 

656-ft, isobaths), as well as Georges 

Basin and northern Georges Bank. 

Minke Whale 

Like other piscivorous baleen whales, 

highest abundance for minke hale was 

strongly associated with regions 

between the 50- and 100-m, 164- and 

328-ft, isobaths, but with a slightly 

stronger preference for the shallower 

waters along the slopes of Davis Bank, 

Phelps Bank, Great South Channel and 

Georges Shoals on Georges Bank. Minke 

whales were sighted in the SBNMS in 

all seasons, with highest abundance 

estimated for the shallow waters 

(approximately 40 m, or 131 ft) 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 supported high relative 

abundance. Very low densities of minke 

whales remained throughout most of the 

southern Gulf of Maine in winter. 

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 (100- to 160-m, 328- to 

525-ft, isobaths) on the northern edge of 

the Great South Channel and deep 

waters (100 - 300 m, 328 - 984 ft) 

parallel to the 100-m (328-ft) isobath of 

northern Georges Bank and Georges 

Basin. High abundance was also found 

in the shallowest waters (< 30 m, <98 ft) 

of Cape Cod Bay, over Platts Bank and 

around Cashes Ledge. Lower relative 

abundance was estimated over 

deep-water basins including Wilkinson 

Basin, Rodgers Basin and Franklin 

Basin. In the summer months, right 

whales moved almost entirely away 

from the coast to deep waters over 

basins in the central Gulf of Maine 

(Wilkinson Basin, Cashes Basin between 

the 160- and 200-m, 525- and 656-ft, 

isobaths) and north of Georges Bank 

(Rogers, Crowell and Georges Basins). 

Highest abundance was found north of 

the 100-m (328-ft) isobath at the Great 

South Channel and over the deep slope 

waters and basins along the northern 

edge of Georges Bank. The waters 

between Fippennies Ledge and Cashes 

Ledge were also estimated as high-use 

areas. In the fall months, right whales 

were 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, Cape Cod Bay, Scantum 

Basin, Jeffreys Ledge, and Cashes Ledge 

were 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. Highest sighting within 

SBNMS occured along the southern 

edge of the Bank. 

Pilot whale 

Pilot whales arrive in the southern 

Gulf of Maine in spring, with highest 

abundance in the region occurring in 

summer and fall. Summer high-use 

areas included the slopes of northern 

Georges Bank along the 100-m (328-ft) 

isobath and pilot whales made extensive 

use of the shoals of Georges Bank (<60 

m, or <197 ft, depth). Similarly, fall 

distributions were also primarily along 

the slopes of northern Georges Bank, but 

with high-use areas also occurring 

amongst the deep-water basins and 

ledges of the south-central Gulf of 

Maine. Within SBNMS, pilot whales 

were sighted infrequently and were 

most often estimated at low density. 

Cape Cod Bay and southern SBNMS 

were the only locations with pilot whale 

sightings for winter. 

Atlantic White-Sided Dolphin 

In spring, summer and fall, Atlantic 

white-sided dolphins were widespread 

throughout the southern Gulf of Maine, 

with the high-use areas widely located 

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

along the northern edge of Georges 

Bank, and north from the Great South 

Channel to Stellwagen Bank, Jeffreys 

Ledge, Platts Bank and Cashes Ledge. In 

spring, high-use areas exist in the Great 

South Channel, northern Georges Bank, 

the steeply sloping edge of Davis Bank 

and 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 were identified along most of the 

northern edge of Georges Bank between 

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

isobaths and northward from the Great 

South Channel along the slopes of Davis 

Bank and Cape Cod. High sightings were 

also recorded over Truxton Swell, 

Wilkinson Basin, Cashes Ledge and the 

bathymetrically complex area northeast 

of Platts Bank. High sightings of 

white-sided dolphin were recorded 

within SBNMS in all seasons, with 

highest density in summer and most 

widespread distributions in spring 

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 

(Mysticeti) 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 piscivorous or 

planktivorous, were more concentrated 

than the dolphins and porpoise. They 

utilized a corridor that extended broadly 

along the most linear and steeply 

sloping edges in the southern Gulf of 

Maine indicated broadly by the 100 m 

(328 ft) isobath. Stellwagen Bank and 

Jeffreys Ledge supported a high 

abundance of baleen whales throughout 


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the year. Species richness maps 

indicated 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 100-m 

(328-ft) isobath extending northeast and 

northwest from the Great South 

Channel. The southern edge of 

Stellwagen Bank and the waters around 

the northern tip of Cape Cod were 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. 

Potential Effects 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. 

Northeast Gateway states that the 

potential impacts to marine mammals 

associated with sound propagation from 

vessel movements, pipe laying and 

installation of the Port, anchors, chains 

and PLEMs could be the temporary and 

short-term displacement of seals and 

whales from within the 120-dB zones 

ensonified by these noise sources. From 

the most precautionarily conservative 

estimates of both marine mammal 

densities in the Project area and the size 

of the 120–dB zone of (noise) influence 

(ZOI), the calculated number of 

individual marine mammals for each 

species that could potentially be 

harassed annually is small. Taking these 

two factors together, we conclude that 

there will be no biologically significant 

effects on the survival and reproduction 

of these species or stocks. Please see 

Estimate of Take by Harassment section 

below for the calculation of these take 

numbers. 

Estimates of Take by Harassment 

There are three general kinds 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, thus NMFS’

160-dB threshold criterion for 

estimating Level B harassment from 

impulse sounds is not applicable for 

this activity. The noise sources of 

potential concern are regasification/ 

offloading (which is a continuous 

sound) and dynamic positioning of 

vessels using thrusters (an intermittent 

sound). 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. 

None of the continuous sound sources 

associated with construction or 

operation of the Northeast Gateway 

Project is expected to exceed the 120-dB 

threshold for Level B harassment. 

However, the intermittent noises from 

thruster use associated with dynamic 

positioning of vessels during either 

construction or operation (docking) may 

occasionally exceed this 120-dB 

threshold. Consequently, thruster use 

has the potential for a ‘‘take’’ by Level 

B harassment of any marine mammal 

occurring with a zone of ensonification 

(greater than 120 dB) emanating from 

the sound source. This area, known as 

the ZOI, has a variable maximum radius 

dependent on water depth and 

associated differences in transmission 

loss (see Sections 1.1.3 and 1.2.1 in the 

IHA application for more detail): 

• For shallow-water depths (40 m (131 

ft)) representative of the northern 

segment of the Pipeline Lateral 

construction, the 120-dB radius is 3.31 

km (2 mi) and associated ZOI is 34 km2. 

• For moderate depths (80 m (262 ft)) 

representative of the Deepwater Port 

location and Pipeline Lateral segment 

nearest SBNMS, the 120-dB radius is 

2.56 km (1.6 mi) and associated ZOI is 

21 km2. 

• For deeper depths (120 m (394 ft)) 

representative of the deepest waters of 

the Project analysis area, the radius is 

2.18 km (1.4 mi) and associated ZOI is 

15 km2. 

The basis for Northeast Gateway’s 

‘‘take’’ estimate is the number of marine 

mammals that would be exposed to 

sound levels in excess of 120 dB. 

Typically this is determined by 

multiplying the ZOI by local marine 

mammal density estimates, and then 

correcting for seasonal use by marine 

mammals, seasonal duration of noisegenerating activities, and estimated 

duration of individual activities when 

the maximum noise-generating activities 

are intermittent or occasional. In the 

case of data gaps, a conservative 

approach was 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 

proposed project area from May to 

November. However, the occurrence 

and abundance of fin, humpback, and 

minke is not well documented within 

the project area. Nonetheless, NMFS 

agrees with the PCCS that better data on 

cetacean distribution within 

Massachusetts Bay, such as those 

published by the National Centers for 

Coastal Ocean Science (NCCOS, 2006) 

should be used to determine potential 

takes of marine mammals 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, 


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2001); and (2) the Manomet Bird 

Observatory (MBO) database, held at 

NOAA 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 proposed 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 

designed to minimize uncertainty and 

bias in the data used. 

Owning to the comprehensiveness 

and total coverage of the NCCOS 

cetacean distribution and abundance 

study, consequently, NMFS recalculated 

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 

proposed project area is provided 

below, in the Marine Mammals Affected 

by the Activity section. For a detailed 

description and calculation of the 

cetacean abundance data and SPUE, 

please refer to the NCCOS study 

(NCCOS, 2006). These data show that 

the upper limit of 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. 

Although sound transmission loss, 

and therefore the ZOI, varies with water 

depth, the potential take numbers are 

calculated by using the radius of the 

largest ZOI, which is 3.31 km (2 mi). 

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 Monitoring, 

Mitigation, and Reporting section 

below), as a conservative hypothetical 

strip width (W). Thus the area density 

(D) of these species in the proposed 

project area can be obtained by the 

following formula: 

D = SPUE/2W, 

Based on the calculation, the 

estimated annual take numbers for 

North Atlantic right, fin, humpback, 

minke, and pilot whales (Globicephala 

spp.), and Atlantic white-sided dolphins 

(Lagenorhynchus acutus), within the 

proposed project area of approximately 

200 km2 (77.3 mi2) maximum ZOI, 

corrected for 50 percent underwater, are 

3, 13, 24, 2, 15, and 49, respectively. 

In addition, common dolphins 

(Delphinus delphis), harbor porpoises 

(Phocoena phocoena), harbor seals 

(Phoca vitulina), and gray seals 

(Halichoerus grypus) could also be 

taken by Level B harassment as a result 

of the proposed deepwater LNG port 

project. The numbers of estimated take 

of these species are not available as 

NMFS does not have abundance data of 

these species within the proposed 

project area. The population estimates 

of these marine mammal species and 

stock in the west North Atlantic basin 

are 120,743, 89,700, 99,340, and 195,000 

for common dolphins, harbor porpoises, 

harbor seals, and gray seals, 

respectively. Since the Massachusetts 

Bay represents only a small fraction of 

the west North Atlantic basin where 

these animals occur, and that these 

animals do not congregate in the 

vicinity of the proposed project area, 

NMFS believes that only a relatively 

small number numbers of these marine 

mammal species would be potentially 

affected by the proposed Northeast 

Gateway LNG deepwater project. 

Potential Impact on Habitat 

Construction 

Construction of the Port and Pipeline 

Lateral will alter marine mammal 

habitat in several ways: disturbance of 

the seafloor, removal of sea water for 

hydrostatic testing, and generation of 

additional underwater noise. Although 

approximately 1,042 acres of seafloor 

(43 acres for the Port; 999 acres for the 

Pipeline Lateral) will be disturbed 

during construction, the majority of this 

impact will be temporary. Seafloor 

disturbance will include plowing to 

construct a trench for the pipeline. The 

pipelay and plow vessels will be 

maneuvered using a multi-point anchor 

system. Although the anchor system 

will include mid-line buoys to minimize 

cable sweep of the seafloor, 

approximately 814 acres may be 

temporarily affected. Crossing of two 

existing cables will require armoring, a 

change in substrate conditions in an 

area about 0.14 acres in size. 

Once the lateral and flowlines are 

installed, about 3,100,000 gallons of sea 

water will be withdrawn to be used for 

hydrostatic testing. This volume is small 

compared to the volume of 

Massachusetts Bay. Although the sea 

water will be returned to the 

environment, the associated plankton 

will be unlikely to survive. However, 

because circulation patterns in the Bay 

ensure that plankton will be transported 

into the Project area continuously, this 

hydrostatic test will not affect the 

sustainability of the plankton 

communities in the Bay. 

Construction of the Port and Pipeline 

Lateral will result in a reduction of 

benthic productivity in the Project 

footprint. Once the disturbance ceases, 

the substrate will be available for 

recruitment of benthic organisms. 

Because some of the substrate will be 

converted from soft to artificial hard 

substrate, the soft-bottom benthic 

community may be replaced with 

organisms associated with naturally 

occurring hard substrate, such as 

sponges, hydroids, bryozoans, and 

associated species. In other areas, reestablishment of a benthic community 

similar to that in adjacent areas is 

expected to take a period of weeks to 

several years. 

Operations 

Operation of the Port and Pipeline 

Lateral will result in long-term effects 

on the marine environment, including 

alteration of seafloor conditions, 

continued disturbance of the seafloor, 


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Federal Register / Vol. 72, No. 92 / Monday, May 14, 2007 / Notices 27089 

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 (flowlines, mooring wire 

rope and chain, suction anchors, and 

PLEMs) 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 EBRV 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. As with hydrostatic testing, 

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 3 200 

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 and 

unlikely to measurably affect the food 

sources available to marine mammals. 

Monitoring, Mitigation, and Reporting 

Port Construction Measures 

General 

The construction activities will be 

limited between this May and 

November, 2007 time-frame so that 

acoustic disturbance to the endangered 

North Atlantic right whale can largely 

be avoided. 

Visual Monitoring Program 

The Northeast Gateway Project will 

employ two qualified, NMFS-approved, 

MMOs on each lay barge, bury barge, 

and DSV for visual shipboard surveys 

during construction activities. 

Qualifications for these individuals will 

include direct field experience on a 

marine mammal observation vessel and/ 

or aerial surveys in the Atlantic Ocean/ 

Gulf of Mexico. The observers (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 observer will act 

as the identification specialist and the 

secondary observer will serve as data 

recorder and also assist with 

identification. Both observers will have 

responsibility for monitoring for the 

presence of marine mammals. All 

observers will receive NMFS-approved 

marine mammal observer training and 

be approved in advance by NMFS after 

a review of their resume. 

The shipboard observers will monitor 

the construction area beginning at 

daybreak using 25x power binoculars 

and/or hand-held binoculars, resulting 

in a conservative effective search range 

of 0.5 mile during clear weather 

conditions for the shipboard observers. 

The observer will scan the ocean surface 

by eye for a minimum of 40 minutes 

every hour. All sightings will be 

recorded on marine mammal field 

sighting logs. Observations of marine 

mammals will be identified to species or 

the lowest taxonomic level and their 

relative position will be recorded. Night 

vision devices will be standard 

equipment for monitoring during 

low-light hours and at night. 

Distance and Noise Level for Cut-Off 

During construction, the following 

procedures will be followed upon 

detection of a marine mammal within 

0.5 mi (0.8 km) of the construction 

vessels: 

(1) The vessel superintendent or ondeck 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 construction area. The 

observer is required to report all North 

Atlantic right whale sightings to NMFS, 

as soon as possible. 

(2) 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 

at 100 yd (91 m) if a marine mammal 

other than a right whale is sighted 

within or approaching to this distance, 

or if a right whale is sighted within or 

approaching to a distance of 500 yd (457 

m), from the operating construction 

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 microPa. Vessels transiting the 

construction area such as pipe haul 

barge tugs will also be required to 

maintain these separation distances. 

(3) Construction 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) While under way, all construction 

vessels will 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. 

(2) All construction vessels 300 gross 

tons or greater will maintain a speed of 

10 knots or less. Vessels less than 300 

gross tons carrying supplies or crew 

between the shore and the construction 

site must contact the appropriate 

authority or the construction site before 

leaving shore for reports of recent right 

whale sighting and, consistent with 

navigation safety, restrict speeds to 10 

knots or less within 5 mi (8 km) of any 

recent sighting location. 

(3) Vessels transiting through the 

Cape Cod Canal and Cape Cod Bay 

between January 1 and May 15 will 

reduce speed to 10 knots or less, follow 

the recommended routes charted by 

NOAA to reduce interactions between 

right whales and shipping traffic, and 

avoidaggregations of right whales in the 

eastern portion of Cape Cod Bay. To the 

extent practicable, pipe deliveries will 

be avoided during the January to May 

time frame. In the unlikely event the 

Canal is closed during construction, the 

pipe haul barges will transit around 

Cape Cod following the TSS and all 

measures for the EBRVs when transiting 

to the Port (see Port Operation 

Measures). 

Passive Acoustic Monitoring (PAM) 

Program 

In addition to visual monitoring, the 

Northeast Gateway and Algonquin will 

work with NMFS, the SBNMS, the 

Cornell University Bioacoustics 

Laboratory (Cornell), and the Woods 

Hole Oceanographic Institute (WHOI) to 

install several passive acoustic systems 

for monitoring construction noise and 

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 

Northeast Gateway will also work with 

NMFS to utilize passive acoustic 

technology to conduct PAM to enhance 

their monitoring program. These passive 

acoustic systems include a set of near 

real-time auto-detection surface buoys 

(Abs) developed by WHOI with a 

special electronic notification package 

developed by Cornell, attached to the 

buoy. Some of these passive acoustic 

devices are already in place. 

Port Operation Measures 

All individuals onboard the EBRVs 

responsible for the navigation and 


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27090 Federal Register / Vol. 72, No. 92 / Monday, May 14, 2007 / Notices 

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 EBRV 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 reporting procedures are 

followed. 

Vessel Strike Avoidance 

(1) All EBRVs approaching or 

departing the port will comply with the 

MSR system to keep apprised of right 

whale sightings in the vicinity. Vessel 

operators will also receive active 

detections from the passive acoustic 

array prior to and during transit through 

the northern leg of the Boston TSS 

where the buoys are installed. 

(2) In response to active right whale 

sightings (detected acoustically or 

reported through other means such as 

the MSR or SAS), and taking into 

account safety and weather conditions, 

EBRVs 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) EBRVs 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 

miles (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) EBRVs will reduce transit speed to 

10 knots or less (unless hydrographic, 

meteorological, or traffic conditions 

dictate an alternative speed to maintain 

the safety or maneuverability of the 

vessel) from March 1 - April 30 in all 

waters bounded by straight lines 

connecting the following points in the 

order stated below. This area is also 

known as the Off Race Point Seasonal 

Management Area (SMA). 

42°30′N 70°30′W 

42°30′N 69°45′W 

41°40′N 69°45′W 

41°40′N 69°57′W 

42°04.8′N 70°10′W 

42°12′N 70°15′W 

42°12′N 70°30′W 

42°30′N 70°30′W 

(5) EBRVs will reduce transit speed to 

10 knots or less (unless hydrographic, 

meteorological, or traffic conditions 

dictate an alternative speed to maintain 

the safety or maneuverability of the 

vessel) from April 1 - July 31 in all 

waters bounded by straight lines 

connecting the following points in the 

order stated below. This area is also 

known as the Great South Channel 

SMA. 

42°30′N 69°45′W 

42°30′N 67°27′W 

42°09′N 67°08.4′W 

41°00′N 69°05′W 

41°40′N 69°45′W 

42°30′N 69°45′W 

(6) EBRVs are not expected to transit 

Cape Cod Bay. However, in the event 

transit through Cape Cod Bay is 

required, EBRVs will reduce transit 

speed to 10 knots or less (unless 

hydrographic, meteorological, or traffic 

conditions dictate an alternative speed 

to maintain the safety or 

maneuverability of the vessel) 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°12′N latitude. 

(7) In such cases where speeds in 

excess of the ten knot speed maximums 

as described above are required, the 

reasons for the deviation, the speed at 

which the vessel is operated, the area, 

and the time and duration of such 

deviation will be documented in the 

logbook of the vessel and reported to the 

NMFS Northeast Region Ship Strike 

Coordinator. 

PAM Program 

An array of ABs will be installed 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 will provide near real-time 

information on the presence of 

vocalizing whales in the shipping lanes. 

An archival array of acoustic 

recording units (ARUs), or ‘‘pop-ups,’’

will be installed around the port site 

that meets the criteria specified in the 

program developed by NOAA in 

consultation with the USCG under the 

NMSA. The ARUs will be 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. 

Reporting 

During construction, weekly status 

reports will be provided to NMFS 

utilizing standardized reporting forms. 

In addition, the Northeast Port Project 

area is within the Mandatory Ship 

Reporting Area (MSRA), so all 

construction and support vessels will 

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 will 

report their activities to 

WHALESNORTH. During all phases of 

project construction and operation, 

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 will be 

submitted to NMFS Office of Protected 

Resources and NMFS Northeast 

Regional Office within 90 days after the 

expiration of the IHA. The weekly 

reports and the annual report should 

include data collected for each distinct 

marine mammal species observed in the 

project area in the Massachusetts Bay 

during the period of LNG facility 

construction and 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 construction and 

operation activities shall also be 

included in the annual report. 

Endangered Species Act (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. 

The finding of that consultation was 

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. NMFS’ IHA will 

not have impacts beyond what was 

analyzed in the biological opinion. 

Therefore, additional consultation is not 

required. 

National Environmental Policy Act 

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 


pwalker on PROD1PC71 with NOTICES
Federal Register / Vol. 72, No. 92 / Monday, May 14, 2007 / Notices 27091 

1 7 U.S.C. 1 et seq. 

2 7 U.S.C. 6(c). 

3 15 U.S.C. 78q–l. 

4 15 U.S.C. 78f. 

5See Release No. 34–55251, 72 FR 7091 (Feb. 14, 

2007). 

6See SR–CBOE–2007–026. 

7 7 U.S.C. 7a–2(c), 17 CFR 39.4(a), 40.5. 

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 impact 

of construction and operation of the 

Northeast Gateway Port Project 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 

during its construction and subsequent 

operation. These activities are expected 

to result in some local short-term 

displacement and will have no more 

than a negligible impact on the affected 

species or stocks of marine mammals. 

This determination is supported by 

measures described in this document 

under ‘‘Marine Mammal Mitigation, 

Monitoring and Reporting’’ and NMFS’

Biological Opinion on this action. 

As a result of the described mitigation 

measures, no take by injury or death is 

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) and would be avoided through 

the incorporation of the shut-down 

mitigation measures described in this 

document. 

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 port construction and 

operations, the estimated number of 

marine mammals to be harassed is 

small. 

Authorization 

NMFS has issued an IHA to Northeast 

Gateway and Algonquin for the taking 

(by Level B harassment) during 

construction and operation of the 

Northeast Gateway Port, provided the 

previously mentioned mitigation, 

monitoring, and reporting requirements 

are incorporated. 

Dated: May 7, 2007. 

James H. Lecky 

Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. E7–9216 Filed 5–11–07; 8:45 am] 

BILLING CODE 3510–22–S 

COMMODITY FUTURES TRADING 

COMMISSION 

Proposal To Exempt the Trading and 

Clearing of Certain Credit Default 

Products Traded on the Chicago Board 

Options Exchange and Cleared 

Through the Options Clearing 

Corporation Pursuant to the Exemptive 

Authority in § 4(c) of the Commodity 

Exchange Act 

AGENCY: Commodity Futures Trading 

Commission. 

ACTION: Notice of proposed order and 

request for comment. 

SUMMARY: The Commodity Futures 

Trading Commission (‘‘CFTC’’ or the 

‘‘Commission’’) is proposing to exempt 

the trading and clearing of certain credit 

default products that are proposed to be 

traded on the Chicago Board Options 

Exchange (‘‘CBOE’’) and cleared through 

the Options Clearing Corporation 

(‘‘OCC’’) from any applicable provisions 

of the Commodity Exchange Act 

(‘‘CEA’’).1 Authority for this exemption 

is found in Section 4(c) of the CEA.2

DATES: Comments must be received on 

or before May 29, 2007. 

ADDRESSES: Comments may be 

submitted by any of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov/http:// 

frwebgate.access.gpo/cgi-bin/leaving. 

Follow the instructions for submitting 

comments. 

• E-mail: secretary@cftc.gov. Include 

‘‘OCC Clearing Credit Default Options’’

in the subject line of the message. 

• Fax: 202–418–5521. 

• Mail: Send to Eileen A. Donovan, 

Acting Secretary, Commodity Futures 

Trading Commission, Three Lafayette 

Centre, 1155 21st Street, NW., 

Washington, DC 20581. 

• Courier: Same as mail above. 

All comments received will be posted 

without change to http:// 

www.CFTC.gov/. 

FOR FURTHER INFORMATION CONTACT: John 

C. Lawton, Deputy Director and Chief 

Counsel, 202–418–5480, 

jlawton@cftc.gov, and Robert B. 

Wasserman, Associate Director, 202–

418–5092, rwasserman@cftc.gov, 

Division of Clearing and Intermediary 

Oversight, Commodity Futures Trading 

Commission, Three Lafayette Centre, 

1151 21st Street, NW., Washington, DC 

20581. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

The OCC is both a Derivatives 

Clearing Organization (‘‘DCO’’) 

registered pursuant to Section 5b of the 

CEA, 7 U.S.C. 7a–1, and a securities 

clearing agency registered pursuant to 

Section 17A of the Securities Exchange 

Act of 1934 (‘‘1934 Act’’).3 The CBOE is 

a national securities exchange registered 

as such under Section 6 of the 1934 

Act.4

CBOE has filed with the Securities 

and Exchange Commission (‘‘SEC’’) 

proposed rule changes to provide for the 

listing and trading on CBOE of cashsettled, binary call options based on 

credit events in one or more debt 

securities.5 These options are referred to 

as Credit Default Options (‘‘CDOs’’), and 

would pay the holder a specified 

amount upon the occurrence, as 

determined by CBOE, of a ‘‘Credit 

Event,’’ defined to mean an ‘‘Event of 

Default’’ on any debt security issued or 

guaranteed by a specified ‘‘Reference 

Entity.’’

CBOE has also filed with the SEC 

proposed rule changes to provide for the 

listing and trading on CBOE of Credit 

Default Basket Options (‘‘CDBOs’’).6

These are similar in concept to CDOs, 

except that a CDBO covers more than 

one Reference Entity, and for each 

Basket Component (that is, a single 

Reference Entity) a notional value (a 

fraction of the aggregate Notional Face 

Value of the basket) and a recovery rate 

is specified. Upon the occurrence of a 

Credit Event involving a particular 

Reference Entity, the payout to the 

holder is equal to the product of (a) The 

Notional Face Value of that Basket 

Component multiplied by (b) one minus 

the recovery rate specified in advance 

for that Basket Component. CDBOs may 

be of the multiple-payout variety, or of 

the single-payout variety, where a 

payout occurs only the first time a 

Credit Event is confirmed with respect 

to a Reference Entity prior to expiration. 

OCC has filed with the CFTC, 

pursuant to Section 5c(c) of the CEA 

and Commission Regulations 39.4(a) 

and 40.5 thereunder,7 requests for 

approval of rules and rule amendments 

that would enable OCC to clear and 

settle these CDOs and CDBOs in its 

capacity as a registered securities 

clearing agency (and not in its capacity 


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