[Federal Register Volume 75, Number 87 (Thursday, May 6, 2010)]
[Notices]
[Pages 24906-24926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-10715]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XW09


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Operation and Maintenance of a 
Liquefied Natural Gas Facility off Massachusetts

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

ACTION:  Notice; proposed incidental harassment authorization; receipt 
of application for letter of authorization; request for comments.

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SUMMARY: NMFS has received an application from Neptune LNG LLC 
(Neptune) for an Incidental Harassment Authorization (IHA) to take 
marine mammals, by harassment, incidental to port commissioning and 
operations, including maintenance and repair activities, at its Neptune 
Deepwater Port. Pursuant to the Marine Mammal Protection Act (MMPA), 
NMFS is requesting comments on its proposal to issue an IHA to Neptune 
to take, by Level B harassment only, several species of marine mammals 
during the specified activity. NMFS is also requesting comments on its 
intent to promulgate regulations governing the take of marine mammals 
over a 5-year period incidental to the same activities described 
herein.

DATES:  Comments and information must be received no later than June 7, 
2010.

ADDRESSES:  Comments on the application should be addressed to Michael 
Payne, Chief, Permits, Conservation and Education Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East West 
Highway, Silver Spring, MD 20910. The mailbox address for providing 
email comments is <a href="/cdn-cgi/l/email-protection#550507647b6563616d780d02656c153b3a34347b323a23"><span class="__cf_email__" data-cfemail="57070566796761636f7a0f00676e173938363679303821">[email protected]</span></a>. NMFS is not responsible for e 
mail comments sent to addresses other than the one provided here. 
Comments sent via e mail, including all attachments, must not exceed a 
10 megabyte file size.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm without change. All Personal Identifying Information 
(for example, name, address, etc.) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    A copy of the application used in this document may be obtained by 
writing to the address specified above, telephoning the contact listed 
below (see FOR FURTHER INFORMATION CONTACT), or visiting the internet 
at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited 
in this notice may also be viewed, by appointment, during regular 
business hours, at the aforementioned address.
    The Maritime Administration (MARAD) and U.S. Coast Guard (USCG) 
Final Environmental Impact Statement (Final EIS) on the Neptune LNG 
Deepwater Port License Application is available for viewing at http://www.regulations.gov by entering the search words ``Neptune LNG.''

FOR FURTHER INFORMATION CONTACT: Candace Nachman, Office of Protected 
Resources, NMFS, (301) 713 2289, ext 156.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.

[[Page 24907]]

    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ''...an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the U.S. can apply for an authorization to 
incidentally take small numbers of marine mammals by 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 the authorization.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as:
    any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild [``Level A harassment'']; or (ii) has the potential to disturb 
a marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering 
[``Level B harassment''].

Summary of Request

    NMFS received an application on December 14, 2009, from Neptune for 
the taking, by harassment, of marine mammals incidental to port 
commissioning and operations, including maintenance and repair 
activities, at its Neptune Deepwater Port (Port) facility in 
Massachusetts Bay. NMFS reviewed Neptune's application and identified a 
number of issues requiring further clarification. After addressing 
comments from NMFS, Neptune modified its application and submitted a 
revised application on March 11, 2010. The March 11, 2010, application 
is the one available for public comment (see ADDRESSES) and considered 
by NMFS for this proposed IHA and subsequent promulgation of 
regulations.
    NMFS issued a 1-year IHA to Neptune in June 2008 for the 
construction of the Port (73 FR 33400, June 12, 2008), which expired on 
June 30, 2009. NMFS issued a second 1-year IHA to Neptune for the 
completion of construction and beginning of Port operations on June 26, 
2009 (74 FR 31926, July 6, 2009). This IHA became effective on July 1, 
2009, and expires on June 30, 2010.
    During the period of this third IHA, Neptune intends to commission 
its second shuttle and regasification vessel (SRV) and conduct limited 
port operations. There is also a chance that some maintenance and 
repairs may need to be conducted on the Port facility. The Neptune Port 
is located approximately 22 mi (35 km) northeast of Boston, 
Massachusetts, in Federal waters approximately 260 ft (79 m) in depth. 
The purpose of the Port is the importation of liquefied natural gas 
(LNG) into the New England region. Take of marine mammals may occur 
during port operations from thruster use during maneuvering of the SRVs 
while docking and undocking, occasional weathervaning (turning of a 
vessel at anchor from one direction to another under the influence of 
wind or currents) at the port, and during thruster use of dynamic 
positioning (DP) maintenance vessels should a major repair be 
necessary. Neptune has requested an authorization to take 12 marine 
mammal species by Level B harassment. They are: North Atlantic right 
whale; humpback whale; fin whale; sei whale; minke whale; long-finned 
pilot whale; Atlantic white-sided dolphin; harbor porpoise; common 
dolphin; Risso's dolphin; bottlenose dolphin; and harbor seal. In the 
current IHA, NMFS also authorized take of killer whales and gray seals. 
NMFS has preliminarily determined that it would be appropriate to 
authorize take, by Level B harassment only, of these two species as 
well for port operations and maintenance.

Description of the Specified Activity

    On March 23, 2007, Neptune received a license to own, construct, 
and operate a deepwater port from MARAD. The Port, which will be 
located in Massachusetts Bay, will consist of a submerged buoy system 
to dock specifically designed LNG carriers approximately 22 mi (35 km) 
northeast of Boston, Massachusetts, in Federal waters approximately 260 
ft (79 m) in depth. The two buoys will be separated by a distance of 
approximately 2.1 mi (3.4 km). The locations of the Neptune Port and 
the associated pipeline are shown in Figure 2-1 in Neptune's 
application (see ADDRESSES).
    Neptune anticipates completion of construction and commissioning of 
its first SRV in late April or early May 2010. These activities will be 
completed under the current IHA. Between July 1, 2010, and June 30, 
2011, (the requested time period for this proposed IHA), Neptune plans 
to commission its second SRV and begin limited operations of the Port. 
Upon expiration of this third proposed IHA, Neptune has requested that 
NMFS promulgate regulations and subsequently issue annual Letters of 
Authorization to cover full port operations and any major repairs that 
may be necessary to the Port facility.
    Neptune will be capable of mooring LNG SRVs with a capacity of 
approximately 140,000 cubic meters (m\3\). Up to two SRVs will 
temporarily moor at the Port by means of a submerged unloading buoy 
system. Two separate buoys will allow natural gas to be delivered in a 
continuous flow, without interruption, by having a brief overlap 
between arriving and departing SRVs. The annual average throughput 
capacity will be around 500 million standard cubic feet per day 
(mmscfd) with an initial throughput of 400 mmscfd, and a peak capacity 
of approximately 750 mmscfd.
    The SRVs will be equipped to store, transport, and vaporize LNG and 
to odorize, meter and send out natural gas by means of two 16-in (40.6-
cm) flexible risers and one 24-in (61-cm) subsea flowline. These risers 
and flowline will lead to a 24-in (61-cm) gas transmission pipeline 
connecting the deepwater port to the existing 30-in (76.2-cm) Algonquin 
Hubline\SM\ (Hubline\SM\) located approximately 9 mi (14.5 km) west of 
the Neptune deepwater port location. The Port will have an expected 
operating life of approximately 25 years. Figure 1-1 of Neptune's 
application shows an isometric view of the Port (see ADDRESSES). The 
following subsections describe the operational activities for the Port.

Description of Port Operations

    During Neptune port operations, sound will be generated by the 
regasification of the LNG aboard the SRVs and the use of thrusters by 
vessels maneuvering and maintaining position at the port. Large 
construction-type DP vessels used for major repair of the subsea 
pipeline or unloading facility may be another potential sound source, 
although necessity for such a repair is unlikely. Of these potential 
operations and maintenance/repair sound sources, thruster use for DP is 
the most significant. The following text describes the activities that 
will occur at the port upon its commissioning.

[[Page 24908]]

(1) Vessel Activity
    The SRVs will approach the port using the Boston Harbor Traffic 
Separation Scheme (TSS), entering the TSS within the Great South 
Channel (GSC) and remaining in the TSS until they reach the Boston 
Harbor Precautionary Area. At the Boston Lighted Horn Buoy B (at the 
center of the Boston Harbor Precautionary Area), the SRV will be met by 
a pilot vessel and a support vessel. A pilot will board the SRV, and 
the support vessel will accompany the SRV to the port. SRVs carrying 
LNG typically travel at speeds up to 19.5 knots (36 km/hr); however, 
Neptune SRVs will reduce speed to 10 knots (18.5 km/hr) within the TSS 
year-round in the Off Race Point Seasonal Management Area (SMA) and to 
a maximum of 10 knots (18.5 km/hr) when traveling to and from the buoys 
once exiting the shipping lanes at the Boston Harbor Precautionary 
Area. In addition, Neptune is committed to reducing speed to 10 knots 
in the GSC SMA from April 1 to July 31.
    To supply a continuous flow of natural gas into the pipeline, about 
50 roundtrip SRV transits will take place each year on average (one 
transit every 3.65 days). As an SRV approaches the port, vessel speed 
will gradually be reduced. Upon arrival at the port, one of the 
submerged unloading buoys will be located and retrieved from its 
submerged position by means of a winch and recovery line. The SRV is 
designed for operation in harsh environments and can connect to the 
unloading buoy in up to 11.5 ft (3.5 m) significant wave heights and 
remain operational in up to 36 ft (11 m) significant wave heights 
providing high operational availability.
    The vessel's aft/forward thrusters will be used intermittently. 
Neptune SRVs will use both bow and stern thrusters when approaching the 
unloading buoy and when docking the buoy inside the Submerged Turret 
Loading (STL) compartment, as well as when releasing the buoy after the 
regasifying process is finished. The thrusters will be energized for up 
to 2 hours during the docking process and up to 1 hour during the 
undocking/release process. When energized, the thrusters will rotate at 
a constant RPM with the blades set at zero pitch. There will be little 
cavitation when the thruster propellers idle in this mode. The sound 
levels in this operating mode are expected to be approximately 8 
decibels (dB) less than at 100 percent load, based on measured data 
from other vessels.
    When the thrusters are engaged, the pitch of the blades will be 
adjusted in short bursts for the amount of thrust needed. These short 
bursts will cause cavitation and elevated sound levels. The maximum 
sound level with two thrusters operating at 100 percent load will be 
180 dB re 1 microPa at 1m. This is not the normal operating mode, but a 
worst-case scenario. Typically, thrusters are operated for only seconds 
at a time and not at continuous full loading. These thrusters will be 
engaged for no more than 20 minutes, in total, when docking at the 
buoy. The same applies for the undocking scenario.
    During normal conditions, the vessel will be allowed to weathervane 
on the single-point mooring system. However, aft thrusters may be used 
under certain conditions to maintain the vessel's heading into the wind 
when competing tides operate to push the vessel broadside to the wind. 
Neptune has assumed a total of 200 hr/yr operating under these 
conditions. In these circumstances, the ambient sound will already be 
high because of the wind and associated wave sound.
(2) Regasification System
    Once an SRV is connected to a buoy, the vaporization of LNG and 
send-out of natural gas can begin. Each SRV will be equipped with three 
vaporization units, each with the capacity to vaporize 250 mmscfd. 
Under normal operation, two units will be in service. The third 
vaporization unit will be on standby mode, though all three units could 
operate simultaneously.
(3) Maintenance and Repairs
    Routine maintenance activities typically are short in duration 
(several days or less) and require small vessels (less than 300 gross 
tons) to perform. Activities include attaching and detaching and/or 
cleaning the buoy pick up line to the STL buoy, performing surveys and 
inspections with a remotely operated vehicle, and cleaning or replacing 
parts (e.g., bulbs, batteries, etc.) on the floating navigation buoys. 
Every 7-10 years, Neptune will run an intelligent pig (a gauging/
cleaning device) down the pipeline to assess its condition. This 
particular activity will require several larger, construction-type 
vessels and several weeks to complete.
    Unplanned repairs can be either relatively minor, or in some cases, 
major, requiring several large, construction-type vessels and a 
mitigation program similar to that employed during the construction 
phase of the project. Minor repairs are typically shorter in duration 
and could include fixing flange or valve leaks, replacing faulty 
pressure transducers, or repairing a stuck valve. These kinds of 
repairs require one diver support vessel with three or four anchors to 
hold its position. Minor repairs could take from a few days to 1-2 
weeks depending on the nature of the problem.
    Major repairs are longer in duration and typically require large 
construction vessels similar to those used to install the pipeline and 
set the buoy and anchoring system. These vessels will typically 
mobilize from local ports or the Gulf of Mexico. Major repairs require 
upfront planning, equipment procurement, and mobilization of vessels 
and saturation divers. Examples of major repairs - although unlikely to 
occur - are damage to a riser or umbilical and their possible 
replacement, damage to the pipeline and manifolds, or anchor chain 
replacement. These types of repairs could take 1-4 weeks and possibly 
longer.

Operations Sound

    The acoustic effects of using the thrusters for maneuvering at the 
unloading buoys were modeled by JASCO Research Limited (2005). The 
analysis assumed the use of four thrusters (two bow, two stern) at 100 
percent power during all four seasons. The one-third (1/3)-octave band 
source levels for the thrusters ranged from 148.5 dB re 1 microPa at 1 
m at 2,000 Hertz (Hz) to 174.5 dB re 1 microPa at 1 m at 10 Hz. Figures 
1-2 through 1-5 in Neptune's application show the received sound level 
at 164-ft (50-m) depth at the south unloading buoy during each of the 
four seasons.
    The acoustic effects of operating the regasification system at the 
unloading buoys were also modeled by JASCO Research Limited (2005). In 
addition, supplemental analysis was performed to assess the potential 
underwater acoustic impacts of using the two aft thrusters after 
mooring for maintaining the heading of the vessel in situations when 
competing tides operate to push the vessel broadside to the wind. 
Additionally, Samsung performed an underwater noise study on the newly 
constructed SRV and an evaluation of these data was performed by JASCO 
Applied Sciences. Additional details of all the modeling analyses can 
be found in Appendices B and C of Neptune's application (see 
ADDRESSES). The loudest source of sound during operations at the port 
will be the use of thrusters for dynamic positioning.

Maintenance/Repair Sound

    Acoustic modeling originally performed to predict received levels 
of underwater sound that could result from the construction of Neptune 
also could

[[Page 24909]]

be applicable to major maintenance/repair during operations (see 
Appendices B and C in Neptune's application for a discussion of the 
acoustic modeling methodology employed). Activities considered to be 
potential sound sources during major maintenance/repair activities 
include excavation (jetting) of the flowline or main transmission 
pipeline routes and lowering of materials (pipe, anchors, and chains) 
to the sea floor. These analyses evaluated the potential impacts of 
construction of the flowline and pipeline using surrogate source levels 
for vessels that could be employed during Neptune's construction. One 
surrogate vessel used for modeling purposes was the Castoro II (and 
four accompanying vessels). Figures 1-6 and 1-7 in Neptune's 
application illustrate the worst-case received sound levels that would 
be associated with major maintenance/repair activities along the 
flowline between the two unloading buoys and along the pipeline route 
at the 164-ft (50-m) depth during the spring season if a vessel similar 
to the Castoro II were used.

Description of Marine Mammals in the Area of the Specified Activity

    Massachusetts Bay (as well as the entire Atlantic Ocean) hosts a 
diverse assemblage of marine mammals, including: North Atlantic right 
whale; blue whale; fin whale; sei whale; minke whale; humpback whale; 
killer whale; long-finned pilot whale; sperm whale; Atlantic white-
beaked dolphin; Atlantic white-sided dolphin; bottlenose dolphin; 
common dolphin; harbor porpoise; Risso's dolphin; striped dolphin; gray 
seal; harbor seal; harp seal; and hooded seal. Table 3-1 in Neptune's 
application outlines the marine mammal species that occur in 
Massachusetts Bay and the likelihood of occurrence of each species. Of 
the species listed here, the North Atlantic right, blue, fin, sei, 
humpback, and sperm whales are all listed as endangered under the 
Endangered Species Act (ESA) and as depleted under the MMPA. The 
northern coastal stock of bottlenose dolphins is considered depleted 
under the MMPA. Certain stocks or populations of killer whales are 
listed as endangered under the ESA or depleted under the MMPA; however, 
none of those stocks or populations occurs in the proposed activity 
area.
    Of these species, 14 are expected to occur in the area of Neptune's 
proposed operations. These species include: the North Atlantic right, 
humpback, fin, sei, minke, killer, and long-finned pilot whale; 
Atlantic white-sided, common, Risso's, and bottlenose dolphins; harbor 
porpoise; and harbor and gray seals. Neptune used information from the 
Cetacean and Turtle Assessment Program (CETAP; 1982) and the U.S. 
Navy's Marine Resource Assessment (MRA) for the Northeast Operating 
Areas (DoN, 2005) to estimate densities for the species in the area. 
Nonetheless, NMFS used the data on cetacean distribution within 
Massachusetts Bay, such as those published by the NCCOS (2006), to 
determine density estimates of several species of marine mammals in the 
vicinity of the project area. The explanation for those derivations and 
the actual density estimates are described later in this document (see 
the ``Estimated Take by Incidental Harassment'' section).
    Blue and sperm whales are not commonly found in Massachusetts Bay. 
The sperm whale is generally a deepwater animal, and its distribution 
off the northeastern U.S. is concentrated around the 13,280-ft (4,048-
m) depth contour, with sightings extending offshore beyond the 6,560-ft 
(2,000-m) depth contour. Sperm whales also can be seen in shallow water 
south of Cape Cod from May to November (Cetacean and Turtle Assessment 
Program, 1982). In the North Atlantic, blue whales are most commonly 
sighted in the waters off eastern Canada. Although they are rare in the 
shelf waters of the eastern U.S., occasional sightings of blue whales 
have been made off Cape Cod. Harp and hooded seals are seasonal 
visitors from much further north, seen mostly in the winter and early 
spring. Prior to 1990, harp and hooded seals were sighted only very 
occasionally in the Gulf of Maine, but recent sightings suggest 
increasing numbers of these species now visit these waters (Harris et 
al., 2001, 2002). Juveniles of a third seal species, the ringed seal, 
are seen on occasion as far south as Cape Cod in the winter, but this 
species is considered to be quite rare in these waters (Provincetown 
Center for Coastal Studies, 2005). Due to the rarity of these species 
in the proposed project area and the remote chance they would be 
affected by Neptune's proposed port operations, these species are not 
discussed further in this proposed IHA notice.
    In addition to the 16 cetacean species listed in Table 3-1 in 
Neptune's application, 10 other cetacean species have been recorded for 
Massachusetts as rare vagrants or from strandings (Cardoza et al., 
1999). The following six species of beaked whale are all pelagic and 
recorded mostly as strandings: the northern bottlenose whale; Cuvier's 
beaked whale; Sowerby's beaked whale; Blainville's beaked whale; 
Gervais' beaked whale; and True's beaked whale. Vagrants include the 
beluga whale, a northern species with rare vagrants reported as far 
south as Long Island (Katona et al., 1993); the pantropical spotted 
dolphin and false killer whale, which are primarily tropical species 
with rare sightings in Massachusetts waters (Cardoza et al., 1999); and 
the pygmy sperm whale, which is generally an offshore species that 
occasionally wanders inshore. Due to the rarity of these species in the 
proposed project area and the remote chance they would be affected by 
Neptune's proposed port operations, these species are not discussed 
further in this proposed IHA notice.
    Information on those species that may be impacted by this activity 
is provided in Neptune's application and sections 3.2.3 and 3.2.5 in 
the MARAD/USCG Final EIS on the Neptune LNG proposal (see ADDRESSES). 
Please refer to those documents for more information on these species. 
In addition, general information on these marine mammal species can 
also be found in the NMFS U.S. Atlantic and Gulf of Mexico Marine 
Mammal Stock Report (Waring et al., 2009), which is available at: 
http://www.nefsc.noaa.gov/publications/tm/tm213/. A brief summary on 
several commonly sighted marine mammal species distribution and 
abundance in the vicinity of the action area is provided below.

Humpback Whale

    The highest abundance for humpback whales is 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 GSC, and northward alongside Cape Cod to 
Stellwagen Bank and Jeffreys Ledge. The relative abundance of whales 
increases in the spring with the highest occurrence along the slope 
waters (between the 40- and 140-m, 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 increases markedly over 
the shallow waters (<50 m, or <164 ft) of Stellwagen Bank, the waters 
(100-200 m, 328-656 ft) between Platts Bank and Jeffreys Ledge, the 
steep slopes (between the 30- and 160-m isobaths, 98- and 525-ft 
isobaths) of Phelps and Davis Bank north of the GSC towards Cape Cod, 
and between the 50- and 100-m

[[Page 24910]]

(164- and 328-ft) isobath for almost the entire length of the steeply 
sloping northern edge of Georges Bank. This general distribution 
pattern persists in all seasons except winter when humpbacks remain at 
high abundance in only a few locations including Porpoise and Neddick 
Basins adjacent to Jeffreys Ledge, northern Stellwagen Bank and Tillies 
Basin, and the GSC. The best estimate of abundance for Gulf of Maine, 
formerly western North Atlantic, humpback whales is 847 animals (Waring 
et al., 2009). Current data suggest that the Gulf of Maine humpback 
whale stock is steadily increasing in size, which is consistent with an 
estimated average trend of 3.1 percent in the North Atlantic population 
overall for the period 1979-1993 (Stevick et al., 2003, cited in Waring 
et al., 2009).

Fin Whale

    Spatial patterns of habitat utilization by fin whales are very 
similar to those of humpback whales. Spring and summer high-use areas 
follow 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 GSC (between the 50- and 160-m, 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 is a high-
use area for fin whales in all seasons, with highest abundance 
occurring over the southern Stellwagen Bank in the summer months. In 
fact, the southern portion of Stellwagen Bank National Marine Sanctuary 
(SBNMS) is used more frequently than the northern portion in all months 
except winter, when high abundance is recorded over the northern tip of 
Stellwagen Bank. In addition to Stellwagen Bank, high abundance in 
winter is estimated for Jeffreys Ledge and the adjacent Porpoise Basin 
(100- to 160-m, 328- to 525-ft, isobaths), as well as Georges Basin and 
northern Georges Bank. The best estimate of abundance for the western 
North Atlantic stock of fin whales is 2,269 (Waring et al., 2009). 
Currently, there are insufficient data to determine population trends 
for this species.

Minke Whale

    Like other piscivorus baleen whales, highest abundance for minke 
whale is 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, GSC, 
and Georges Shoals on Georges Bank. Minke whales are sighted in SBNMS 
in all seasons, with highest abundance estimated for the shallow waters 
(approximately 40 m, 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 support high 
relative abundance. Very low densities of minke whales remain 
throughout most of the southern Gulf of Maine in winter. The best 
estimate of abundance for the Canadian East Coast stock, which occurs 
from the western half of the Davis Strait to the Gulf of Mexico, of 
minke whales is 3,312 animals (Waring et al., 2009). Currently, there 
are insufficient data to determine population trends for this species.

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, or 328- to 525-ft, isobaths) on 
the northern edge of the GSC 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 (CCB), over Platts Bank and around 
Cashes Ledge. Lower relative abundance is estimated over deep-water 
basins including Wilkinson Basin, Rodgers Basin, and Franklin Basin. In 
the summer months, right whales move almost entirely away from the 
coast to deep waters over basins in the central Gulf of Maine 
(Wilkinson Basin, Cashes Basin between the 160- and 200-m, 525- and 
656-ft, isobaths) and north of Georges Bank (Rogers, Crowell, and 
Georges Basins). Highest abundance is found north of the 100-m (328-ft) 
isobath at the GSC and over the deep slope waters and basins along the 
northern edge of Georges Bank. The waters between Fippennies Ledge and 
Cashes Ledge are also estimated as high-use areas. In the fall months, 
right whales are sighted infrequently in the Gulf of Maine, with 
highest densities over Jeffreys Ledge and over deeper waters near 
Cashes Ledge and Wilkinson Basin. In winter, CCB, Scantum Basin, 
Jeffreys Ledge, and Cashes Ledge 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 occurs along the 
southern edge of the Bank.
    The western North Atlantic population size was estimated to be at 
least 345 individuals in 2005 based on a census of individual whales 
identified using photo-identification techniques (Waring et al., 2009). 
This value is a minimum and does not include animals that were alive 
prior to 2003 but not recorded in the individual sightings database as 
seen from December 1, 2003, to October 10, 2008. It also does not 
include calves known to be born during 2005 or any other individual 
whale seen during 2005 but not yet entered into the catalog (Waring et 
al., 2009). Examination of the minimum alive population index 
calculated from the individual sightings database, as it existed on 
October 10, 2008, for the years 1990-2005 suggests a positive trend in 
numbers. These data reveal a significant increase in the number of 
catalogued whales alive during this period but with significant 
variation due to apparent losses exceeding gains during 1998-1999. Mean 
growth rate for the period 1990-2005 was 1.8 percent (Waring et al., 
2009).

Long-finned Pilot Whale

    The long-finned pilot whale is more generally found along the edge 
of the continental shelf (a depth of 100 to 1,000 m, or 328 to 3,280 
ft), choosing areas of high relief or submerged banks in cold or 
temperate shoreline waters. This species is split into two subspecies: 
the Northern and Southern subspecies. The Southern subspecies is 
circumpolar with northern limits of Brazil and South Africa. The 
Northern subspecies, which could be encountered during operation of the 
Neptune Port facility, ranges from North Carolina to Greenland (Reeves 
et al., 2002; Wilson and Ruff, 1999). In the western North Atlantic, 
long-finned pilot whales are pelagic, occurring in especially high 
densities in winter and spring over the continental slope, then moving 
inshore and onto the shelf in summer and autumn following squid and 
mackerel populations (Reeves et al., 2002). They frequently travel into 
the central and northern Georges Bank, GSC, and Gulf of Maine areas 
during the summer and early fall (May and October; NOAA, 1993). 
According to the SAR, the best population estimate for the western 
North Atlantic stock of long-finned pilot whale is 31,139 individuals 
(Waring et al., 2009). Currently, there are insufficient data to 
determine population trends for the long-finned pilot whale.

Sei Whale

    The sei whale is the least likely of all the baleen whale species 
to occur near the Neptune Port. However, there were a couple of 
sightings in the general vicinity of the port facility during the 
construction phase (Neptune Marine

[[Page 24911]]

Mammal Monitoring Weekly Reports, 2008). The Nova Scotia stock of sei 
whales ranges from the continental shelf waters of the northeastern 
U.S. and extends northeastward to south of Newfoundland. The southern 
portion of the species range during spring and summer includes the 
northern portions of the U.S. Atlantic Exclusive Economic Zone: the 
Gulf of Maine and Georges Bank. Spring is the period of greatest 
abundance in U.S. waters, with sightings concentrated along the eastern 
margin of Georges Bank and into the Northeast Channel area and along 
the southwestern edge of Georges Bank in the area of Hydrographer 
Canyon (CETAP, 1982). The best estimate of abundance for this stock is 
386 animals (Waring et al., 2009). There are insufficient data to 
determine population trends for this species.

Atlantic White-sided Dolphin

    In spring, summer and fall, Atlantic white-sided dolphins are 
widespread throughout the southern Gulf of Maine, with the high-use 
areas widely located on either side of the 100-m (328-ft) isobath along 
the northern edge of Georges Bank, and north from the GSC to Stellwagen 
Bank, Jeffreys Ledge, Platts Bank, and Cashes Ledge. In spring, high-
use areas exist in the GSC, northern Georges Bank, the steeply sloping 
edge of Davis Bank, 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 occur along most of the northern edge of Georges Bank between the 
50- and 200-m (164- and 656-ft) isobaths and northward from the GSC 
along the slopes of Davis Bank and Cape Cod. High sightings are also 
recorded over Truxton Swell, Wilkinson Basin, Cashes Ledge and the 
bathymetrically complex area northeast of Platts Bank. High sightings 
of white-sided dolphin are 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 
and all porpoises and dolphins combined showed that both groups have 
very similar spatial patterns of high- and low-use areas. The baleen 
whales, whether piscivorus or planktivorous, are more concentrated than 
the dolphins and porpoises. They utilize a corridor that extends 
broadly along the most linear and steeply sloping edges in the southern 
Gulf of Maine indicated broadly by the 100 m (328 ft) isobath. 
Stellwagen Bank and Jeffreys Ledge support a high abundance of baleen 
whales throughout the year. Species richness maps indicate that high-
use areas for individual whales and dolphin species co-occurred, 
resulting in similar patterns of species richness primarily along the 
southern portion of the 100-m (328-ft) isobath extending northeast and 
northwest from the GSC. The southern edge of Stellwagen Bank and the 
waters around the northern tip of Cape Cod are also highlighted as 
supporting high cetacean species richness. Intermediate to high numbers 
of species are also calculated for the waters surrounding Jeffreys 
Ledge, the entire Stellwagen Bank, Platts Bank, Fippennies Ledge, and 
Cashes Ledge. The best estimate of abundance for the western North 
Atlantic stock of white-sided dolphins is 63,368 (Waring et al., 2009). 
A trend analysis has not been conducted for this species.

Killer Whale, Common Dolphin, Bottlenose Dolphin, Risso's Dolphin, and 
Harbor Porpoise

    Although these five species are some of the most widely distributed 
small cetacean species in the world (Jefferson et al., 1993), they are 
not commonly seen in the vicinity of the project area in Massachusetts 
Bay (Wiley et al., 1994; NCCOS, 2006; Northeast Gateway Marine Mammal 
Monitoring Weekly Reports, 2007; Neptune Marine Mammal Monitoring 
Weekly Reports, 2008). The total number of killer whales off the 
eastern U.S. coast is unknown, and present data are insufficient to 
calculate a minimum population estimate or to determine the population 
trends for this stock (Blaylock et al., 1995). The best estimate of 
abundance for the western North Atlantic stock of common dolphins is 
120,743 animals, and a trend analysis has not been conducted for this 
species (Waring et al., 2007). There are several stocks of bottlenose 
dolphins found along the eastern U.S. from Maine to Florida. The stock 
that may occur in the area of the Neptune Port is the western North 
Atlantic coastal northern migratory stock of bottlenose dolphins. The 
best estimate of abundance for this stock is 7,489 animals (Waring et 
al., 2009). There are insufficient data to determine the population 
trend for this stock. The best estimate of abundance for the western 
North Atlantic stock of Risso's dolphins is 20,479 animals (Waring et 
al., 2009). There are insufficient data to determine the population 
trend for this stock. The best estimate of abundance for the Gulf of 
Maine/Bay of Fundy stock of harbor porpoise is 89,054 animals (Waring 
et al., 2009). A trend analysis has not been conducted for this 
species.

Harbor and Gray Seals

    In the U.S. western North Atlantic, both harbor and gray seals are 
usually found from the coast of Maine south to southern New England and 
New York (Waring et al., 2007).
    Along the southern New England and New York coasts, harbor seals 
occur seasonally from September through late May (Schneider and Payne, 
1983). In recent years, their seasonal interval along the southern New 
England to New Jersey coasts has increased (deHart, 2002). In U.S. 
waters, harbor seal breeding and pupping normally occur in waters north 
of the New Hampshire/Maine border, although breeding has occurred as 
far south as Cape Cod in the early part of the 20th century (Temte et 
al., 1991; Katona et al., 1993). The best estimate of abundance for the 
western North Atlantic stock of harbor seals is 99,340 animals (Waring 
et al., 2009). Between 1981 and 2001, the uncorrected counts of seals 
increased from 10,543 to 38,014, an annual rate of 6.6 percent (Gilbert 
et al., 2005, cited in Waring et al., 2009).
    Although gray seals are often seen off the coast from New England 
to Labrador, within U.S. waters, only small numbers of gray seals have 
been observed pupping on several isolated islands along the Maine coast 
and in Nantucket-Vineyard Sound, Massachusetts (Katona et al., 1993; 
Rough, 1995). In the late 1990s, a year-round breeding population of 
approximately 400 gray seals was documented on outer Cape Cod and 
Muskeget Island (Waring et al., 2007). Depending on the model used, the 
minimum estimate for the Canadian gray seal population was estimated to 
range between 125,541 and 169,064 animals (Trzcinski et al., 2005, 
cited in Waring et al., 2009); however, present data are insufficient 
to calculate the minimum population estimate for U.S. waters. Waring et 
al. (2009) note that gray seal abundance in the U.S. Atlantic is likely 
increasing, but the rate of increase is unknown.

Brief Background on Marine Mammal Hearing

    When considering the influence of various kinds of sound on the 
marine environment, it is necessary to understand that different kinds 
of marine life are sensitive to different frequencies of sound. Based 
on available behavioral data, audiograms derived using auditory evoked 
potential

[[Page 24912]]

techniques, anatomical modeling, and other data, Southall et al. (2007) 
designate ``functional hearing groups'' for marine mammals and estimate 
the lower and upper frequencies of functional hearing of the groups. 
The functional groups and the associated frequencies are indicated 
below (though animals are less sensitive to sounds at the outer edge of 
their functional range and most sensitive to sounds of frequencies 
within a smaller range somewhere in the middle of their functional 
hearing range):
    <bullet> Low frequency cetaceans (13 species of mysticetes): 
functional hearing is estimated to occur between approximately 7 Hz and 
22 kHz;
    <bullet> Mid-frequency cetaceans (32 species of dolphins, six 
species of larger toothed whales, and 19 species of beaked and 
bottlenose whales): functional hearing is estimated to occur between 
approximately 150 Hz and 160 kHz;
    <bullet> High frequency cetaceans (eight species of true porpoises, 
six species of river dolphins, Kogia, the franciscana, and four species 
of cephalorhynchids): functional hearing is estimated to occur between 
approximately 200 Hz and 180 kHz; and
    <bullet> Pinnipeds in Water: functional hearing is estimated to 
occur between approximately 75 Hz and 75 kHz, with the greatest 
sensitivity between approximately 700 Hz and 20 kHz.
    As mentioned previously in this document, 14 marine mammal species 
(12 cetacean and two pinniped species) are likely to occur in the 
Neptune Port area. Of the 12 cetacean species likely to occur in 
Neptune's project area, five are classified as low frequency cetaceans 
(i.e., North Atlantic right, humpback, fin, minke, and sei whales), six 
are classified as mid-frequency cetaceans (i.e., killer and pilot 
whales and bottlenose, common, Risso's, and Atlantic white-sided 
dolphins), and one is classified as a high-frequency cetacean (i.e., 
harbor porpoise) (Southall et al., 2007).

Potential Effects of the Specified Activity on Marine Mammals

    Potential effects of Neptune's proposed port operations and 
maintenance/repair activities would most likely be acoustic in nature. 
LNG port operations and maintenance/repair activities introduce sound 
into the marine environment. Potential acoustic effects on marine 
mammals relate to sound produced by thrusters during maneuvering of the 
SRVs while docking and undocking, occasional weathervaning at the port, 
and during thruster use of DP maintenance vessels should a major repair 
be necessary. The potential effects of sound from the proposed 
activities associated with the Neptune Port might include one or more 
of the following: tolerance; masking of natural sounds; behavioral 
disturbance; non-auditory physical effects; and, at least in theory, 
temporary or permanent hearing impairment (Richardson et al., 1995). 
However, for reasons discussed later in this document, it is unlikely 
that there would be any cases of temporary, or especially permanent, 
hearing impairment resulting from these activities. As outlined in 
previous NMFS documents, the effects of noise on marine mammals are 
highly variable, and can be categorized as follows (based on Richardson 
et al., 1995):
    (1) The noise may be too weak to be heard at the location of the 
animal (i.e., lower than the prevailing ambient noise level, the 
hearing threshold of the animal at relevant frequencies, or both);
    (2) The noise may be audible but not strong enough to elicit any 
overt behavioral response;
    (3) The noise may elicit reactions of variable conspicuousness and 
variable relevance to the well being of the marine mammal; these can 
range from temporary alert responses to active avoidance reactions such 
as vacating an area at least until the noise event ceases but 
potentially for longer periods of time;
    (4) Upon repeated exposure, a marine mammal may exhibit diminishing 
responsiveness (habituation), or disturbance effects may persist; the 
latter is most likely with sounds that are highly variable in 
characteristics, infrequent, and unpredictable in occurrence, and 
associated with situations that a marine mammal perceives as a threat;
    (5) Any anthropogenic noise that is strong enough to be heard has 
the potential to reduce (mask) the ability of a marine mammal to hear 
natural sounds at similar frequencies, including calls from 
conspecifics, and underwater environmental sounds such as surf noise;
    (6) If mammals remain in an area because it is important for 
feeding, breeding, or some other biologically important purpose even 
though there is chronic exposure to noise, it is possible that there 
could be noise-induced physiological stress; this might in turn have 
negative effects on the well-being or reproduction of the animals 
involved; and
    (7) Very strong sounds have the potential to cause a temporary or 
permanent reduction in hearing sensitivity. In terrestrial mammals, and 
presumably marine mammals, received sound levels must far exceed the 
animal's hearing threshold for there to be any temporary threshold 
shift (TTS) in its hearing ability. For transient sounds, the sound 
level necessary to cause TTS is inversely related to the duration of 
the sound. Received sound levels must be even higher for there to be 
risk of permanent hearing impairment. In addition, intense acoustic or 
explosive events may cause trauma to tissues associated with organs 
vital for hearing, sound production, respiration and other functions. 
This trauma may include minor to severe hemorrhage.

Tolerance

    Numerous studies have shown that underwater sounds from industry 
activities are often readily detectable by marine mammals in the water 
at distances of many kilometers. Numerous studies have also shown that 
marine mammals at distances more than a few kilometers away often show 
no apparent response to industry activities of various types (Miller et 
al., 2005). This is often true even in cases when the sounds must be 
readily audible to the animals based on measured received levels and 
the hearing sensitivity of that mammal group. Although various baleen 
whales, toothed whales, and (less frequently) pinnipeds have been shown 
to react behaviorally to underwater sound such as airgun pulses or 
vessels under some conditions, at other times mammals of all three 
types have shown no overt reactions (e.g., Malme et al., 1986; 
Richardson et al., 1995; Madsen and Mohl, 2000; Croll et al., 2001; 
Jacobs and Terhune, 2002; Madsen et al., 2002; Miller et al., 2005). In 
general, pinnipeds and small odontocetes seem to be more tolerant of 
exposure to some types of underwater sound than are baleen whales. 
Richardson et al. (1995) found that vessel noise does not seem to 
strongly affect pinnipeds that are already in the water. Richardson et 
al. (1995) went on to explain that seals on haul-outs sometimes respond 
strongly to the presence of vessels and at other times appear to show 
considerable tolerance of vessels, and (Brueggeman et al., 1992; cited 
in Richardson et al., 1995) observed ringed seals hauled out on ice 
pans displaying short-term escape reactions when a ship approached 
within 0.25-0.5 mi (0.4-0.8 km).

Masking

    Masking is the obscuring of sounds of interest by other sounds, 
often at similar frequencies. Marine mammals are highly dependent on 
sound, and their ability to recognize sound signals amid

[[Page 24913]]

noise is important in communication, predator and prey detection, and, 
in the case of toothed whales, echolocation. Even in the absence of 
manmade sounds, the sea is usually noisy. Background ambient noise 
often interferes with or masks the ability of an animal to detect a 
sound signal even when that signal is above its absolute hearing 
threshold. Natural ambient noise includes contributions from wind, 
waves, precipitation, other animals, and (at frequencies above 30 kHz) 
thermal noise resulting from molecular agitation (Richardson et al., 
1995). Background noise also can include sounds from human activities. 
Masking of natural sounds can result when human activities produce high 
levels of background noise. Conversely, if the background level of 
underwater noise is high (e.g., on a day with strong wind and high 
waves), an anthropogenic noise source will not be detectable as far 
away as would be possible under quieter conditions and will itself be 
masked. Ambient noise is highly variable on continental shelves 
(Thompson, 1965; Myrberg, 1978; Chapman et al., 1998; Desharnais et 
al., 1999). This inevitably results in a high degree of variability in 
the range at which marine mammals can detect anthropogenic sounds.
    Although masking is a natural phenomenon to which marine mammals 
must adapt, the introduction of strong sounds into the sea at 
frequencies important to marine mammals increases the severity and 
frequency of occurrence of masking. For example, if a baleen whale is 
exposed to continuous low-frequency noise from an industrial source, 
this will reduce the size of the area around that whale within which it 
can hear the calls of another whale. In general, little is known about 
the importance to marine mammals of detecting sounds from conspecifics, 
predators, prey, or other natural sources. In the absence of much 
information about the importance of detecting these natural sounds, it 
is not possible to predict the impacts if mammals are unable to hear 
these sounds as often, or from as far away, because of masking by 
industrial noise (Richardson et al., 1995). In general, masking effects 
are expected to be less severe when sounds are transient than when they 
are continuous.
    Although some degree of masking is inevitable when high levels of 
manmade broadband sounds are introduced into the sea, marine mammals 
have evolved systems and behavior that function to reduce the impacts 
of masking. Structured signals, such as the echolocation click 
sequences of small toothed whales, may be readily detected even in the 
presence of strong background noise because their frequency content and 
temporal features usually differ strongly from those of the background 
noise (Au and Moore, 1988, 1990). The components of background noise 
that are similar in frequency to the sound signal in question primarily 
determine the degree of masking of that signal. Low-frequency 
industrial noise, such as shipping, has little or no masking effect on 
high frequency echolocation sounds. Redundancy and context can also 
facilitate detection of weak signals. These phenomena may help marine 
mammals detect weak sounds in the presence of natural or manmade noise. 
Most masking studies in marine mammals present the test signal and the 
masking noise from the same direction. The sound localization abilities 
of marine mammals suggest that, if signal and noise come from different 
directions, masking would not be as severe as the usual types of 
masking studies might suggest (Richardson et al., 1995). The dominant 
background noise may be highly directional if it comes from a 
particular anthropogenic source such as a ship or industrial site. 
Directional hearing may significantly reduce the masking effects of 
these noises by improving the effective signal-to-noise ratio. In the 
cases of high-frequency hearing by the bottlenose dolphin, beluga 
whale, and killer whale, empirical evidence confirms that masking 
depends strongly on the relative directions of arrival of sound signals 
and the masking noise (Penner et al., 1986; Dubrovskiy, 1990; Bain et 
al., 1993; Bain and Dahlheim, 1994). Toothed whales, and probably other 
marine mammals as well, have additional capabilities besides 
directional hearing that can facilitate detection of sounds in the 
presence of background noise. There is evidence that some toothed 
whales can shift the dominant frequencies of their echolocation signals 
from a frequency range with a lot of ambient noise toward frequencies 
with less noise (Au et al., 1974, 1985; Moore and Pawloski, 1990; 
Thomas and Turl, 1990; Romanenko and Kitain, 1992; Lesage et al., 
1999). A few marine mammal species are known to increase the source 
levels of their calls in the presence of elevated sound levels 
(Dahlheim, 1987; Au, 1993; Lesage et al., 1999; Terhune, 1999).
    These data demonstrating adaptations for reduced masking pertain 
mainly to the very high frequency echolocation signals of toothed 
whales. There is less information about the existence of corresponding 
mechanisms at moderate or low frequencies or in other types of marine 
mammals. For example, Zaitseva et al. (1980) found that, for the 
bottlenose dolphin, the angular separation between a sound source and a 
masking noise source had little effect on the degree of masking when 
the sound frequency was 18 kHz, in contrast to the pronounced effect at 
higher frequencies. Directional hearing has been demonstrated at 
frequencies as low as 0.5-2 kHz in several marine mammals, including 
killer whales (Richardson et al., 1995). This ability may be useful in 
reducing masking at these frequencies. In summary, high levels of noise 
generated by anthropogenic activities may act to mask the detection of 
weaker biologically important sounds by some marine mammals. This 
masking may be more prominent for lower frequencies. For higher 
frequencies, such as used in echolocation by toothed whales, several 
mechanisms are available that may allow them to reduce the effects of 
such masking.

Disturbance

    Disturbance can induce a variety of effects, such as subtle changes 
in behavior, more conspicuous dramatic changes in activities, and 
displacement. Disturbance is one of the main concerns of the potential 
impacts of manmade noise on marine mammals. For many species and 
situations, there is no detailed information about reactions to noise. 
While there are no specific studies available on the reactions of 
marine mammals to sounds produced by a LNG facility, information from 
studies of marine mammal reactions to other types of continuous and 
transient anthropogenic sound (e.g., drillships) are described here as 
a proxy.
    Behavioral reactions of marine mammals to sound are difficult to 
predict because they are dependent on numerous factors, including 
species, state of maturity, experience, current activity, reproductive 
state, time of day, and weather. If a marine mammal does react to an 
underwater sound by changing its behavior or moving a small distance, 
the impacts of that change may not be important to the individual, the 
stock, or the species as a whole. However, if a sound source displaces 
marine mammals from an important feeding or breeding area for a 
prolonged period, impacts on the animals could be important. Based on 
the literature reviewed in Richardson et al. (1995), it is apparent 
that most small and medium-sized toothed whales exposed to prolonged or 
repeated underwater sounds are unlikely to be displaced unless the 
overall received level is at

[[Page 24914]]

least 140 dB re 1 microPa (rms). The limited available data indicate 
that the sperm whale is sometimes, though not always, more responsive 
than other toothed whales. Baleen whales probably have better hearing 
sensitivities at lower sound frequencies, and in several studies have 
been shown to react to continuous sounds at received sound levels of 
approximately 120 dB re 1 microPa (rms). Toothed whales appear to 
exhibit a greater variety of reactions to manmade underwater noise than 
do baleen whales. Toothed whale reactions can vary from approaching 
vessels (e.g., to bow ride) to strong avoidance, while baleen whale 
reactions range from neutral (little or no change in behavior) to 
strong avoidance. In general, pinnipeds seem more tolerant of, or at 
least habituate more quickly to, potentially disturbing underwater 
noise than do cetaceans.
    Baleen Whales - Baleen whales sometimes show behavioral changes in 
response to received broadband drillship noises of 120 dB (rms) or 
greater. On their summer range in the Beaufort Sea, bowhead whales (a 
species closely related to the right whale) reacted to drillship noises 
within 4-8 km (2.5-5 mi) of the drillship at received levels 20 dB 
above ambient, or about 118 dB (Richardson et al., 1990). Reactions 
were stronger at the onset of the sound (Richardson et al., 1995). 
Migrating bowhead whales avoided an area with a radius of 10-20 km 
(6.2-12.4 mi) around drillships and their associated support vessels, 
corresponding to a received noise level around 115 dB (Greene, 1987; 
Koski and Johnson, 1987; Hall et al., 1994; Davies, 1997; Schick and 
Urban, 2000). For gray whales off California, the predicted reaction 
zone around a semi-submersible drill rig was less than 1 km (0.62 mi), 
at received levels of approximately 120 dB (Malme et al., 1983, 1984). 
Humpback whales showed no obvious avoidance response to broadband 
drillship noises at a received level of 116 dB (Malme et al., 1985).
    Reactions of baleen whales to boat noises include changes in 
swimming direction and speed, blow rate, and the frequency and kinds of 
vocalizations (Richardson et al., 1995). Baleen whales, especially 
minke whales, occasionally approach stationary or slow-moving boats, 
but more commonly avoid boats. Avoidance is strongest when boats 
approach directly or when vessel noise changes abruptly (Watkins, 1986; 
Beach and Weinrich, 1989). Humpback whales responded to boats at 
distances of at least 0.5-1 km (0.31-0.62 mi), and avoidance and other 
reactions have been noted in several areas at distances of several 
kilometers (Jurasz and Jurasz, 1979; Dean et al., 1985; Bauer, 1986; 
Bauer and Herman, 1986).
    During some activities and at some locations, humpbacks exhibit 
little or no reaction to boats (Watkins, 1986). Some baleen whales seem 
to show habituation to frequent boat traffic. Over 25 years of 
observations in Cape Cod waters, minke whales' reactions to boats 
changed from frequent positive interactions (i.e., reactions of 
apparent curiosity or reactions that appeared to provide some reward to 
the animal) to a general lack of interest (i.e., ignored the stimuli), 
while humpback whales reactions changed from being often negative to 
being often positive, and fin whales reactions changed from being 
mostly negative (i.e., sudden changes from activity to inactivity or a 
display of agonistic responses) to being mostly uninterested (Watkins, 
1986).
    North Atlantic right whales also display variable responses to 
boats. There may be an initial orientation away from a boat, followed 
by a lack of observable reaction (Atkins and Swartz, 1989). A slowly 
moving boat can approach a right whale, but an abrupt change in course 
or engine speed usually elicits a reaction (Goodyear, 1989; Mayo and 
Marx, 1990; Gaskin, 1991). When approached by a boat, right whale 
mothers will interpose themselves between the vessel and calf and will 
maintain a low profile (Richardson et al., 1995). In a long-term study 
of baleen whale reactions to boats, while other baleen whale species 
appeared to habituate to boat presence over the 25-year period, right 
whales continued to show either uninterested or negative reactions to 
boats with no change over time (Watkins, 1986).
    Biassoni et al. (2000) and Miller et al. (2000) reported behavioral 
observations for humpback whales exposed to a low-frequency sonar 
stimulus (160- to 330-Hz frequency band; 42-s tonal signal repeated 
every 6 min; source levels 170 to 200 dB) during playback experiments. 
Exposure to measured received levels ranging from 120 to 150 dB 
resulted in variability in humpback singing behavior. Croll et al. 
(2001) investigated responses of foraging fin and blue whales to the 
same low frequency active sonar stimulus off southern California. 
Playbacks and control intervals with no transmission were used to 
investigate behavior and distribution on time scales of several weeks 
and spatial scales of tens of kilometers. The general conclusion was 
that whales remained feeding within a region for which 12 to 30 percent 
of exposures exceeded 140 dB.
    Frankel and Clark (1998) conducted playback experiments with 
wintering humpback whales using a single speaker producing a low-
frequency ``M-sequence'' (sine wave with multiple-phase reversals) 
signal in the 60 to 90 Hz band with output of 172 dB at 1 m. For 11 
playbacks, exposures were between 120 and 130 dB re 1 microPa (rms) and 
included sufficient information regarding individual responses. During 
eight of the trials, there were no measurable differences in tracks or 
bearings relative to control conditions, whereas on three occasions, 
whales either moved slightly away from (n = 1) or towards (n = 2) the 
playback speaker during exposure. The presence of the source vessel 
itself had a greater effect than did the M-sequence playback.
    Finally, Nowacek et al. (2004) used controlled exposures to 
demonstrate behavioral reactions of northern right whales to various 
non-pulse sounds. Playback stimuli included ship noise, social sounds 
of conspecifics, and a complex, 18-min ``alert'' sound consisting of 
repetitions of three different artificial signals. Ten whales were 
tagged with calibrated instruments that measured received sound 
characteristics and concurrent animal movements in three dimensions. 
Five out of six exposed whales reacted strongly to alert signals at 
measured received levels between 130 and 150 dB (i.e., ceased foraging 
and swam rapidly to the surface). Two of these individuals were not 
exposed to ship noise, and the other four were exposed to both stimuli. 
These whales reacted mildly to conspecific signals. Seven whales, 
including the four exposed to the alert stimulus, had no measurable 
response to either ship sounds or actual vessel noise.
    Odontocetes - In reviewing responses of cetaceans with best hearing 
in mid-frequency ranges, which includes toothed whales, Southall et al. 
(2007) reported that combined field and laboratory data for mid-
frequency cetaceans exposed to non-pulse sounds did not lead to a clear 
conclusion about received levels coincident with various behavioral 
responses. In some settings, individuals in the field showed profound 
(significant) behavioral responses to exposures from 90 to 120 dB, 
while others failed to exhibit such responses for exposure to received 
levels from 120 to 150 dB. Contextual variables other than exposure 
received level, and probable species differences, are the likely 
reasons for this variability. Context, including the fact that captive 
subjects were often directly reinforced with food for tolerating noise 
exposure, may also explain why there was great

[[Page 24915]]

disparity in results from field and laboratory conditions-exposures in 
captive settings generally exceeded 170 dB before inducing behavioral 
responses.
    Dolphins and other toothed whales may show considerable tolerance 
of floating and bottom-founded drill rigs and their support vessels. 
Kapel (1979) reported many pilot whales within visual range of 
drillships and their support vessels off West Greenland. Beluga whales 
have been observed swimming within 100-150 m (328-492 ft) of an 
artificial island while drilling was underway (Fraker and Fraker, 1979, 
1981), and within 1,600 m (1 mi) of the drillship Explorer I while the 
vessel was engaged in active drilling (Fraker and Fraker, 1981). Some 
belugas in Bristol Bay and Beaufort Sea, Alaska, when exposed to 
playbacks of drilling sounds, altered course to swim around the source, 
increased swimming speed, or reversed direction of travel (Stewart et 
al., 1982; Richardson et al., 1995). Reactions of beluga whales to 
semi-submersible drillship noise were less pronounced than were 
reactions to motorboats with outboard engines. Captive belugas exposed 
to playbacks of recorded semi-submersible noise seemed quite tolerant 
of that sound (Thomas et al., 1990).
    Morton and Symonds (2002) used census data on killer whales in 
British Columbia to evaluate avoidance of non-pulse acoustic harassment 
devices (AHDs). Avoidance ranges were about 4 km (2.5 mi). Also, there 
was a dramatic reduction in the number of days ``resident'' killer 
whales were sighted during AHD-active periods compared to pre- and 
post-exposure periods and a nearby control site.
    Harbor porpoise off Vancouver Island, British Columbia, were found 
to be sensitive to the simulated sound of a 2-megawatt offshore wind 
turbine (Koschinski et al., 2003). The porpoises remained significantly 
further away from the sound source when it was active, and this effect 
was seen out to a distance of 60 m (197 ft). The device used in that 
study produced sounds in the frequency range of 30 to 800 Hz, with peak 
source levels of 128 dB re 1 microPa at 1 m at the 80- and 160-Hz 
frequencies.
    Some species of small toothed cetaceans avoid boats when they are 
approached to within 0.5-1.5 km (0.31-0.93 mi), with occasional reports 
of avoidance at greater distances (Richardson et al., 1995). Some 
toothed whale species appear to be more responsive than others. Beaked 
whales and beluga whales seem especially responsive to boats. Dolphins 
may tolerate boats of all sizes, often approaching and riding the bow 
and stern waves (Shane et al., 1986). At other times, dolphin species 
that are known to be attracted to boats will avoid them. Such avoidance 
is often linked to previous boat-based harassment of the animals 
(Richardson et al., 1995). Coastal bottlenose dolphins that are the 
object of whale-watching activities have been observed to swim 
erratically (Acevedo, 1991), remain submerged for longer periods of 
time (Janik and Thompson, 1996; Nowacek et al., 2001), display less 
cohesiveness among group members (Cope et al., 1999), whistle more 
frequently (Scarpaci et al., 2000), and rest less often (Constantine et 
al., 2004) when boats were nearby. Pantropical spotted dolphins and 
spinner dolphins in the eastern Tropical Pacific, where they have been 
targeted by the tuna fishing industry because of their association with 
these fish, display avoidance of survey vessels up to 11.1 km (6.9 mi; 
Au and Perryman, 1982; Hewitt, 1985), whereas spinner dolphins in the 
Gulf of Mexico were observed bow riding the survey vessel in all 14 
sightings of this species during one survey (Wursig et al., 1998).
    Harbor porpoises tend to avoid boats. In the Bay of Fundy, 
Polacheck and Thorpe (1990) found harbor porpoises to be more likely to 
be swimming away from the transect line of their survey vessel than 
swimming toward it and more likely to be heading away from the vessel 
when they were within 400 m (1,312 ft). Similarly, off the west coast 
of North America, Barlow (1988) observed harbor porpoises avoiding a 
survey vessel by moving rapidly out of its path within 1 km (0.62 mi) 
of that vessel. Beluga whales are generally quite responsive to 
vessels. Belugas in Lancaster Sound in the Canadian Arctic showed 
dramatic reactions in response to icebreaking ships, with received 
levels of sound ranging from 101 dB to 136 dB re 1 ?Pa in the 20 to 
1,000-Hz band at a depth of 20 m (66 ft; Finley et al., 1990). 
Responses included emitting distinctive pulsive calls that were 
suggestive of excitement or alarm and rapid movement in what seemed to 
be a flight response. Reactions occurred out to 80 km (50 mi) from the 
ship. Another study found belugas to use higher-frequency calls, a 
greater redundancy in their calls (more calls emitted in a series), and 
a lower calling rate in the presence of vessels (Lesage et al., 1999). 
The level of response of belugas to vessels is partly a function of 
habituation. Sperm whales generally show no overt reactions to vessels 
unless approached within several hundred meters (Watkins and Schevill, 
1975; Wursig et al., 1998; Magalhaes et al., 2002). Observed reactions 
include spending more (Richter et al., 2003) or less (Watkins and 
Schevill, 1975) time at the surface, increasing swimming speed, or 
changing heading (Papastavrou et al., 1989; Richter et al., 2003) and 
diving abruptly (Wursig et al., 1998).
    Pinnipeds - Pinnipeds generally seem to be less responsive to 
exposure to industrial sound than most cetaceans. Pinniped responses to 
underwater sound from some types of industrial activities such as 
seismic exploration appear to be temporary and localized (Harris et 
al., 2001; Reiser et al., 2009).
    Responses of pinnipeds to drilling noise have not been well 
studied. Richardson et al. (1995) summarizes the few available studies, 
which showed ringed and bearded seals in the Arctic to be rather 
tolerant of drilling noise. Seals were often seen near active 
drillships and approached, to within 50 m (164 ft), a sound projector 
broadcasting low-frequency drilling sound.
    Southall et al. (2007) reviewed literature describing responses of 
pinnipeds to non-pulsed sound and reported that the limited data 
suggest exposures between approximately 90 and 140 dB generally do not 
appear to induce strong behavioral responses in pinnipeds exposed to 
non-pulse sounds in water; no data exist regarding exposures at higher 
levels. It is important to note that among these studies, there are 
some apparent differences in responses between field and laboratory 
conditions. In contrast to the mid-frequency odontocetes, captive 
pinnipeds responded more strongly at lower levels than did animals in 
the field. Again, contextual issues are the likely cause of this 
difference.
    Jacobs and Terhune (2002) observed harbor seal reactions to AHDs 
(source level in this study was 172 dB) deployed around aquaculture 
sites. Seals were generally unresponsive to sounds from the AHDs. 
During two specific events, individuals came within 43 and 44 m (141 
and 144 ft) of active AHDs and failed to demonstrate any measurable 
behavioral response; estimated received levels based on the measures 
given were approximately 120 to 130 dB.
    Costa et al. (2003) measured received noise levels from an Acoustic 
Thermometry of Ocean Climate (ATOC) program sound source off northern 
California using acoustic data loggers placed on translocated elephant 
seals. Subjects were captured on land,

[[Page 24916]]

transported to sea, instrumented with archival acoustic tags, and 
released such that their transit would lead them near an active ATOC 
source (at 939-m depth [0.6 mi]; 75-Hz signal with 37.5- Hz bandwidth; 
195 dB maximum source level, ramped up from 165 dB over 20 min) on 
their return to a haul-out site. Received exposure levels of the ATOC 
source for experimental subjects averaged 128 dB (range 118 to 137) in 
the 60- to 90-Hz band. None of the instrumented animals terminated 
dives or radically altered behavior upon exposure, but some 
statistically significant changes in diving parameters were documented 
in nine individuals. Translocated northern elephant seals exposed to 
this particular non-pulse source began to demonstrate subtle behavioral 
changes at exposure to received levels of approximately 120 to 140 dB.
    Kastelein et al. (2006) exposed nine captive harbor seals in an 
approximately 25 30 m (82 98 ft) enclosure to non-pulse sounds used in 
underwater data communication systems (similar to acoustic modems). 
Test signals were frequency modulated tones, sweeps, and bands of noise 
with fundamental frequencies between 8 and 16 kHz; 128 to 130 [3] dB 
source levels; 1- to 2-s duration [60-80 percent duty cycle]; or 100 
percent duty cycle. They recorded seal positions and the mean number of 
individual surfacing behaviors during control periods (no exposure), 
before exposure, and in 15-min experimental sessions (n = 7 exposures 
for each sound type). Seals generally swam away from each source at 
received levels of approximately 107 dB, avoiding it by approximately 5 
m (16 ft), although they did not haul out of the water or change 
surfacing behavior. Seal reactions did not appear to wane over repeated 
exposure (i.e., there was no obvious habituation), and the colony of 
seals generally returned to baseline conditions following exposure. The 
seals were not reinforced with food for remaining in the sound field.
    Reactions of harbor seals to the simulated noise of a 2-megawatt 
wind power generator were measured by Koschinski et al. (2003). Harbor 
seals surfaced significantly further away from the sound source when it 
was active and did not approach the sound source as closely. The device 
used in that study produced sounds in the frequency range of 30 to 800 
Hz, with peak source levels of 128 dB re 1 microPa at 1 m at the 80- 
and 160-Hz frequencies.
    Ship and boat noise do not seem to have strong effects on seals in 
the water, but the data are limited. When in the water, seals appear to 
be much less apprehensive about approaching vessels. Some will approach 
a vessel out of apparent curiosity, including noisy vessels such as 
those operating seismic airgun arrays (Moulton and Lawson, 2002). Gray 
seals have been known to approach and follow fishing vessels in an 
effort to steal catch or the bait from traps. In contrast, seals hauled 
out on land often are quite responsive to nearby vessels. Terhune 
(1985) reported that northwest Atlantic harbor seals were extremely 
vigilant when hauled out and were wary of approaching (but less so 
passing) boats. Suryan and Harvey (1999) reported that Pacific harbor 
seals commonly left the shore when powerboat operators approached to 
observe the seals. Those seals detected a powerboat at a mean distance 
of 264 m (866 ft), and seals left the haul-out site when boats 
approached to within 144 m (472 ft).

Hearing Impairment and Other Physiological Effects

    Temporary or permanent hearing impairment is a possibility when 
marine mammals are exposed to very strong sounds. Non-auditory 
physiological effects might also occur in marine mammals exposed to 
strong underwater sound. Possible types of non-auditory physiological 
effects or injuries that theoretically might occur in mammals close to 
a strong sound source include stress, neurological effects, bubble 
formation, and other types of organ or tissue damage. It is possible 
that some marine mammal species (i.e., beaked whales) may be especially 
susceptible to injury and/or stranding when exposed to strong pulsed 
sounds, particularly at higher frequencies. Non-auditory physiological 
effects are not anticipated to occur as a result of port operations or 
maintenance, as none of the activities associated with the Neptune Port 
will generate sounds loud enough to cause such effects. The following 
subsections discuss in somewhat more detail the possibilities of TTS 
and permanent threshold shift (PTS).
    TTS - TTS is the mildest form of hearing impairment that can occur 
during exposure to a strong sound (Kryter, 1985). While experiencing 
TTS, the hearing threshold rises and a sound must be stronger in order 
to be heard. At least in terrestrial mammals, TTS can last from minutes 
or hours to (in cases of strong TTS) days. For sound exposures at or 
somewhat above the TTS threshold, hearing sensitivity in both 
terrestrial and marine mammals recovers rapidly after exposure to the 
noise ends. Few data on sound levels and durations necessary to elicit 
mild TTS have been obtained for marine mammals, and none of the 
published data concern TTS elicited by exposure to multiple pulses of 
sound.
    Human non-impulsive noise exposure guidelines are based on 
exposures of equal energy (the same sound exposure level [SEL]) 
producing equal amounts of hearing impairment regardless of how the 
sound energy is distributed in time (NIOSH, 1998). Until recently, 
previous marine mammal TTS studies have also generally supported this 
equal energy relationship (Southall et al., 2007). Three newer studies, 
two by Mooney et al. (2009a,b) on a single bottlenose dolphin either 
exposed to playbacks of U.S. Navy mid-frequency active sonar or octave-
band noise (4-8 kHz) and one by Kastak et al. (2007) on a single 
California sea lion exposed to airborne octave-band noise (centered at 
2.5 kHz), concluded that for all noise exposure situations the equal 
energy relationship may not be the best indicator to predict TTS onset 
levels. Generally, with sound exposures of equal energy, those that 
were quieter (lower sound pressure level [SPL]) with longer duration 
were found to induce TTS onset more than those of louder (higher SPL) 
and shorter duration. Given the available data, the received level of a 
single seismic pulse (with no frequency weighting) might need to be 
approximately 186 dB re 1 microPa\2\.s (i.e., 186 dB sound exposure 
level [SEL]) in order to produce brief, mild TTS. NMFS considers TTS to 
be a form of Level B harassment, which temporarily causes a shift in an 
animal's hearing, and the animal is able to recover. Data on TTS from 
continuous sound (such as that produced by Neptune's proposed Port 
activities) are limited, so the available data from seismic activities 
are used as a proxy. Exposure to several strong seismic pulses that 
each have received levels near 175-180 dB SEL might result in slight 
TTS in a small odontocete, assuming the TTS threshold is (to a first 
approximation) a function of the total received pulse energy. Given 
that the SPL is approximately 10-15 dB higher than the SEL value for 
the same pulse, an odontocete would need to be exposed to a sound level 
of 190 dB re 1 microPa (rms) in order to incur TTS.
    TTS was measured in a single, captive bottlenose dolphin after 
exposure to a continuous tone with maximum SPLs at frequencies ranging 
from 4 to 11 kHz that were gradually increased in intensity to 179 dB 
re 1 microPa and in duration to 55 minutes (Nachtigall et al., 2003). 
No threshold shifts were measured at SPLs of 165 or 171 dB re 1 
microPa. However, at 179 dB re 1 microPa, TTSs greater than 10 dB were 
measured during different trials with exposures

[[Page 24917]]

ranging from 47 to 54 minutes. Hearing sensitivity apparently recovered 
within 45 minutes after noise exposure.
    For baleen whales, there are no data, direct or indirect, on levels 
or properties of sound that are required to induce TTS. The frequencies 
to which baleen whales are most sensitive are lower than those to which 
odontocetes are most sensitive, and natural background noise levels at 
those low frequencies tend to be higher. Marine mammals can hear sounds 
at varying frequency levels. However, sounds that are produced in the 
frequency range at which an animal hears the best do not need to be as 
loud as sounds in less functional frequencies to be detected by the 
animal. As a result, auditory thresholds of baleen whales within their 
frequency band of best hearing are believed to be higher (less 
sensitive) than are those of odontocetes at their best frequencies 
(Clark and Ellison, 2004), meaning that baleen whales require sounds to 
be louder (i.e., higher dB levels) than odontocetes in the frequency 
ranges at which each group hears the best. From this, it is suspected 
that received levels causing TTS onset may also be higher in baleen 
whales. Since current NMFS practice assumes the same thresholds for the 
onset of hearing impairment in both odontocetes and mysticetes, the 
threshold is likely conservative for mysticetes.
    In free-ranging pinnipeds, TTS thresholds associated with exposure 
to brief pulses (single or multiple) of underwater sound have not been 
measured. However, systematic TTS studies on captive pinnipeds have 
been conducted (Bowles et al., 1999; Kastak et al., 1999, 2005, 2007; 
Schusterman et al., 2000; Finneran et al., 2003; Southall et al., 
2007). Kastak et al. (1999) reported TTS of approximately 4-5 dB in 
three species of pinnipeds (harbor seal, Californian sea lion, and 
northern elephant seal) after underwater exposure for approximately 20 
minutes to noise with frequencies ranging from 100 Hz to 2,000 Hz at 
received levels 60-75 dB above hearing threshold. This approach allowed 
similar effective exposure conditions to each of the subjects, but 
resulted in variable absolute exposure values depending on subject and 
test frequency. Recovery to near baseline levels was reported within 24 
hours of noise exposure (Kastak et al., 1999). Kastak et al. (2005) 
followed up on their previous work using higher sensitive levels and 
longer exposure times (up to 50-min) and corroborated their previous 
findings. The sound exposures necessary to cause slight threshold 
shifts were also determined for two California sea lions and a juvenile 
elephant seal exposed to underwater sound for similar duration. The 
sound level necessary to cause TTS in pinnipeds depends on exposure 
duration, as in other mammals; with longer exposure, the level 
necessary to elicit TTS is reduced (Schusterman et al., 2000; Kastak et 
al., 2005, 2007). For very short exposures (e.g., to a single sound 
pulse), the level necessary to cause TTS is very high (Finneran et al., 
2003). For pinnipeds exposed to in-air sounds, auditory fatigue has 
been measured in response to single pulses and to non-pulse noise 
(Southall et al., 2007), although high exposure levels were required to 
induce TTS-onset (SEL: 129 dB re: 20 microPa2.s; Bowles et al., unpub. 
data).
    NMFS (1995, 2000) concluded that cetaceans and pinnipeds should not 
be exposed to pulsed underwater noise at received levels exceeding, 
respectively, 180 and 190 dB re 1 microPa (rms). The established 180- 
and 190-dB re 1 microPa (rms) criteria are not considered to be the 
levels above which TTS might occur. Rather, they are the received 
levels above which, in the view of a panel of bioacoustics specialists 
convened by NMFS before TTS measurements for marine mammals started to 
become available, one could not be certain that there would be no 
injurious effects, auditory or otherwise, to marine mammals. Since the 
modeled broadband source level for 100 percent thruster use during port 
operations is 180 dB re 1 microPa at 1 m (rms), it is highly unlikely 
that marine mammals would be exposed to sound levels at the 180- or 
190-dB thresholds.
    PTS - When PTS occurs, there is physical damage to the sound 
receptors in the ear. In some cases, there can be total or partial 
deafness, whereas in other cases, the animal has an impaired ability to 
hear sounds in specific frequency ranges.
    There is no specific evidence that exposure to underwater 
industrial sound can cause PTS in any marine mammal (see Southall et 
al., 2007). However, given the possibility that mammals might incur 
TTS, there has been further speculation about the possibility that some 
individuals occurring very close to such activities might incur PTS. 
Richardson et al. (1995) hypothesized that PTS caused by prolonged 
exposure to continuous anthropogenic sound is unlikely to occur in 
marine mammals, at least for sounds with source levels up to 
approximately 200 dB re 1 microPa at 1 m (rms). Single or occasional 
occurrences of mild TTS are not indicative of permanent auditory damage 
in terrestrial mammals. Relationships between TTS and PTS thresholds 
have not been studied in marine mammals but are assumed to be similar 
to those in humans and other terrestrial mammals. PTS might occur at a 
received sound level at least several decibels above that inducing mild 
TTS.
    It is highly unlikely that marine mammals could receive sounds 
strong enough (and over a sufficient duration) to cause PTS (or even 
TTS) during the proposed port operations and maintenance/repair 
activities. The modeled broadband source level for 100 percent thruster 
use during port operations is 180 dB re 1 microPa at 1 m (rms). This 
does not reach the threshold of 190 dB currently used for pinnipeds. 
The threshold for cetaceans is 180 dB; therefore, cetaceans would have 
to be immediately adjacent to the vessel for even the possibility of 
hearing impairment to occur. Based on this and mitigation measures 
proposed for inclusion in the IHA (described later in this document in 
the ``Proposed Mitigation'' section), it is highly unlikely that any 
type of hearing impairment would occur as a result of Neptune's 
proposed activities.
    Additionally, the potential effects to marine mammals described in 
this section of the document do not take into consideration the 
proposed monitoring and mitigation measures described later in this 
document (see the ``Proposed Mitigation'' and ``Proposed Monitoring and 
Reporting'' sections).

Anticipated Effects on Habitat

    The primary potential impacts to marine mammals and other marine 
species are associated with elevated sound levels produced by the Port 
operations and maintenance/repair activities. However, other potential 
impacts from physical disturbance are also possible.

Potential Impacts from Repairs

    Major repairs to the Neptune port and pipeline may affect marine 
mammal habitat in several ways: cause disturbance of the seafloor; 
increase turbidity slightly; and generate additional underwater sound 
in the area. Sediment transport modeling conducted by Neptune on 
construction procedures indicated that initial turbidity from 
installation of the pipeline could reach 100 milligrams per liter (mg/
L), but will subside to 20 mg/L after 4 hours. Turbidity associated 
with the flowline and hot-tap will be considerably less and also will 
settle within hours of the work being completed. Therefore, any 
increase in turbidity from a major repair during operations is 
anticipated to be

[[Page 24918]]

insignificant. Repair activities will not create long-term habitat 
changes, and marine mammals displaced by the disturbance to the 
seafloor are expected to return soon after the repair is completed.
    During repair of the Neptune port and the pipeline, underwater 
sound levels will be temporarily elevated. These underwater sound 
levels will cause some species to temporarily disperse from or avoid 
repair areas, but they are expected to return shortly after the repair 
is completed.
    Based on the foregoing, repair activities will not create long-term 
habitat changes, and marine mammals displaced by the disturbance to the 
seafloor are expected to return soon after repair activities cease. 
Marine mammals also could be indirectly affected if benthic prey 
species were displaced or destroyed by repair activities. However, 
affected species are expected to recover soon after the completion of 
repairs and will represent only a small portion of food available to 
marine mammals in the area.

Potential Impacts from Operation

    Operation of the Port will result in long-term, continued 
disturbance of the seafloor, regular withdrawal of seawater, and 
generation of underwater sound.
    Seafloor Disturbance: The structures associated with the Port 
(flowline and pipeline, unloading buoys and chains, suction anchors) 
will be permanent modifications to the seafloor. Up to 63.7 acres (0.25 
km2) of additional seafloor will be subject to disturbance due to chain 
and flexible riser sweep while the buoys are occupied by SRVs.
    Ballast and Cooling Water Withdrawal: Withdrawal of ballast and 
cooling water at the Port as the SRV unloads cargo (approximately 2.39 
million gallons per day) could potentially entrain zooplankton and 
ichthyoplankton that serve as prey for whale species. This estimate 
includes the combined seawater intake while two SRVs are moored at the 
Port (approximately 9 hr every 6 days). The estimated zooplankton 
abundance in the vicinity of the seawater intake ranges from 25.6-105 
individuals per gallon (Libby et al., 2004). This means that the daily 
intake will remove approximately 61.2-251 million individual 
zooplankton per day, the equivalent of approximately 3.47-14.2 kg 
(7.65-31.4 lbs). Since zooplankton are short-lived species (e.g., most 
copepods live from 1 wk to several months), these amounts will be 
indistinguishable from natural variability.
    In the long-term, approximately 64.6 acres (0.26 km\2\) of seafloor 
will be permanently disturbed to accommodate the Port (including the 
associated pipeline). The area disturbed because of long-term chain and 
riser sweep includes 63.7 acres (0.25 km2) of soft sediment. This area 
will be similar in calm seas and in hurricane conditions. The chain 
weight will restrict the movement of the buoy or the vessel moored on 
the buoy. An additional 0.9 acre (0.004 km2) of soft sediments will be 
converted to hard substrate. The total affected area will be small 
compared to the soft sediments available in the proposed project area. 
Long-term disturbance from installation of the Port will comprise 
approximately 0.3 percent of the estimated 24,000 acres (97 km\2\) of 
similar bottom habitat surrounding the project area (northeast sector 
of Massachusetts Bay).
    It is likely that displaced organisms will not return to the area 
of continual chain and riser sweep. A shift in benthic faunal community 
is expected in areas where soft sediment is converted to hard substrate 
(Algonquin Gas Transmission LLC, 2005). This impact will be beneficial 
for species that prefer hard-bottom structure and adverse for species 
that prefer soft sediment. Overall, because of the relatively small 
areas that will be affected compared to the overall size of 
Massachusetts Bay, impacts on soft-bottom communities are expected to 
be minimal.
    Daily removal of seawater will reduce the food resources available 
for planktivorous organisms. The marine mammal species in the area have 
fairly broad diets and are not dependent on any single species for 
survival. Because of the relatively low biomass that will be entrained 
by the Port, the broad diet, and broad availability of organisms in the 
proposed project area, indirect impacts on the food web that result 
from entrainment of planktonic fish and shellfish eggs and larvae are 
expected to be minor and therefore should have minimal impact on 
affected marine mammal species or stocks.

Potential Impacts from Sound Generation

    The groups of important fish, which include those that constitute 
prey for some of the marine mammals found in the project area, that 
occur in the vicinity of the Neptune Port are comprised of species 
showing considerable diversity in hearing sensitivity, anatomical 
features related to sound detection (e.g., swim bladder, connections 
between swim bladder and ear), habitat preference, and life history. 
Neptune's application contains a discussion on sound production, sound 
detection, and variability of fish hearing sensitivities. Please refer 
to the application (see ADDRESSES) for the full discussion. A few 
summary paragraphs are provided here for reference.
    Fishes produce sounds that are associated with behaviors that 
include territoriality, mate search, courtship, and aggression. It has 
also been speculated that sound production may provide the means for 
long distance communication and communication under poor underwater 
visibility conditions (Zelick et al., 1999), although the fact that 
fish communicate at low-frequency sound levels where the masking 
effects of ambient noise are naturally highest suggests that very long 
distance communication would rarely be possible. Fishes have evolved a 
diversity of sound generating organs and acoustic signals of various 
temporal and spectral contents. Fish sounds vary in structure, 
depending on the mechanism used to produce them (Hawkins, 1993). 
Generally, fish sounds are predominantly composed of low frequencies 
(less than 3 kHz).
    Since objects in the water scatter sound, fish are able to detect 
these objects through monitoring the ambient noise. Therefore, fish are 
probably able to detect prey, predators, conspecifics, and physical 
features by listening to the environmental sounds (Hawkins, 1981). 
There are two sensory systems that enable fish to monitor the 
vibration-based information of their surroundings. The two sensory 
systems, the inner ear and the lateral line, constitute the acoustico-
lateralis system.
    Although the hearing sensitivities of very few fish species have 
been studied to date, it is becoming obvious that the intra- and inter-
specific variability is considerable (Coombs, 1981). Nedwell et al. 
(2004) compiled and published available fish audiogram information. A 
noninvasive electrophysiological recording method known as auditory 
brainstem response (ABR) is now commonly used in the production of fish 
audiograms (Yan, 2004). Generally, most fish have their best hearing 
(lowest auditory thresholds) in the low-frequency range (i.e., less 
than 1 kHz). Even though some fish are able to detect sounds in the 
ultrasonic frequency range, the thresholds at these higher frequencies 
tend to be considerably higher than those at the lower end of the 
auditory frequency range. This generalization applies to the fish 
species occurring in the Neptune Port area. Table 9-1 in Neptune's 
application (see ADDRESSES) outlines the measured auditory 
sensitivities of fish that are most relevant to the Neptune Port area.
    Literature relating to the impacts of sound on marine fish species 
can be

[[Page 24919]]

divided into the following categories: (1) pathological effects; (2) 
physiological effects; and (3) behavioral effects. Pathological effects 
include lethal and sub-lethal physical damage to fish; physiological 
effects include primary and secondary stress responses; and behavioral 
effects include changes in exhibited behaviors of fish. Behavioral 
changes might be a direct reaction to a detected sound or a result of 
the anthropogenic sound masking natural sounds that the fish normally 
detect and to which they respond. The three types of effects are often 
interrelated in complex ways. For example, some physiological and 
behavioral effects could potentially lead to the ultimate pathological 
effect of mortality. Hastings and Popper (2005) reviewed what is known 
about the effects of sound on fishes and identified studies needed to 
address areas of uncertainty relative to measurement of sound and the 
responses of fishes. Popper et al. (2003/2004) also published a paper 
that reviews the effects of anthropogenic sound on the behavior and 
physiology of fishes.
    The following discussions of the three primary types of potential 
effects on fish from exposure to sound consider continuous sound 
sources since such sounds will be generated by operation and repair 
activities associated with the Neptune Project. Note that most research 
reported in the literature focuses on the effects of seismic airguns 
which produce pulsed sounds. A full discussion is provided in Neptune's 
application (see ADDRESSES), and a summary is provided here.
    Potential effects of exposure to continuous sound on marine fish 
include TTS, physical damage to the ear region, physiological stress 
responses, and behavioral responses such as startle response, alarm 
response, avoidance, and perhaps lack of response due to masking of 
acoustic cues. Most of these effects appear to be either temporary or 
intermittent and therefore probably do not significantly impact the 
fish at a population level. The studies that resulted in physical 
damage to the fish ears used noise exposure levels and durations that 
were far more extreme than would be encountered under conditions 
similar to those expected at the Neptune Port.
    The known effects of underwater noise on fish have been reviewed. 
The noise levels that are necessary to cause temporary hearing loss and 
damage to hearing are higher and last longer than noise that will be 
produced at Neptune. The situation for disturbance responses is less 
clear. Fish do react to underwater noise from vessels and move out of 
the way, move to deeper depths, or change their schooling behavior. The 
received levels at which fish react are not known and apparently are 
somewhat variable depending upon circumstances and species of fish. In 
order to assess the possible effects of underwater project noise, it is 
best to examine project noise in relation to continuous noises 
routinely produced by other projects and activities such as shipping, 
fishing, etc.
    The two long-term sources of continuous noise associated with the 
project are the ship transits between the Boston shipping lanes and the 
unloading buoys and the regasification process at the carriers when 
moored to the unloading buoys. Noise levels associated with these two 
activities are relatively low and unlikely to have any effect on prey 
species in the area. One other activity expected to produce short 
periods of continuous noise is the carrier maneuvering bouts at the 
Port. Although this activity is louder, it is still less than the noise 
levels associated with large ships at cruising speed. The carrier 
maneuvering using the ship's thrusters would produce short periods of 
louder noise for 10 to 30 minutes every 4 to 8 days. On average, these 
thruster noises would be heard about 20 hours per year. Even in the 
unlikely event that these two activities caused disturbance to marine 
fish, the short periods of time involved serve to minimize the effects.
    In conclusion, NMFS has preliminarily determined that Neptune's 
proposed port operations and maintenance/repair activities are not 
expected to have any habitat-related effects that could cause 
significant or long-term consequences for individual marine mammals or 
on the food sources that they utilize.

Proposed Mitigation

    In order to issue an incidental take authorization (ITA) under 
Sections 101(a)(5)(A) and (D) of the MMPA, NMFS must, where applicable, 
set forth the permissible methods of taking pursuant to such activity, 
and other means of effecting the least practicable impact on such 
species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stock for taking for certain 
subsistence uses (where relevant).

Mitigation Measures Proposed in Neptune's IHA Application

    Neptune submitted a ``Marine Mammal Detection, Monitoring, and 
Response Plan for the Operations Phase'' (the Plan) as part of its MMPA 
application (Appendix D of the application; see ADDRESSES). The 
measures, which include safety zones and vessel speed reductions, are 
fully described in the Plan and summarized here. Any maintenance and/or 
repairs needed will be scheduled in advance during the May 1 to 
November 30 seasonal window, whenever possible, so that disturbance to 
North Atlantic right whales will be largely avoided. If the repair 
cannot be scheduled during this time frame, additional mitigation 
measures are proposed.
(1) Mitigation Measures for Major Repairs (May 1 to November 30)
    (A) During repairs, if a marine mammal is detected within 0.5 mi 
(0.8 km) of the repair vessel, the vessel superintendent or on-deck 
supervisor will be notified immediately. The vessel's crew will be put 
on a heightened state of alert. The marine mammal will be monitored 
constantly to determine if it is moving toward the repair area.
    (B) Repair vessels will cease any movement in the area if a marine 
mammal other than a right whale is sighted within or approaching to a 
distance of 100 yd (91 m) from the operating repair vessel. Repair 
vessels will cease any movement in the construction area if a right 
whale is sighted within or approaching to a distance of 500 yd (457 m) 
from the operating vessel. Vessels transiting the repair area, such as 
pipe haul barge tugs, will also be required to maintain these 
separation distances.
    (C) Repair vessels will cease all sound emitting activities if a 
marine mammal other than a right whale is sighted within or approaching 
to a distance of 100 yd (91 m) or if a right whale is sighted within or 
approaching to a distance of 500 yd (457 m), from the operating repair 
vessel. The back-calculated source level, based on the most 
conservative cylindrical model of acoustic energy spreading, is 
estimated to be 139 dB re 1 [mu]Pa.
    (D) Repair activities may resume after the marine mammal is 
positively reconfirmed outside the established zones (either 500 yd 
(457 m) or 100 yd (91 m), depending upon species).
    (E) While under way, all repair vessels will remain 500 yd (457 m) 
away from right whales and 100 yd (91 m) away from all other marine 
mammals to the extent physically feasible given navigational 
constraints.
    (F) All repair vessels 300 gross tons or greater will maintain a 
speed of 10 knots (18.5 km/hr) or less. Vessels less than 300 gross 
tons carrying supplies or crew

[[Page 24920]]

between the shore and the repair site will contact the Mandatory Ship 
Reporting System (MSRS), the USCG, or the marine mammal observers 
(MMOs) at the repair site before leaving shore for reports of recent 
right whale sightings or active Dynamic Management Areas (DMAs) and, 
consistent with navigation safety, restrict speeds to 10 knots (18.5 
km/hr) or less within 5 mi (8 km) of any recent sighting location and 
within any existing DMA.
    (G) Vessels transiting through the Cape Cod Canal and CCB between 
January 1 and May 15 will reduce speeds to 10 knots (18.5 km/hr) or 
less, follow the recommended routes charted by NOAA to reduce 
interactions between right whales and shipping traffic, and avoid 
aggregations of right whales in the eastern portion of CCB.
(2) Additional Port and Pipeline Major Repair Measures (December 1 to 
April 30)
    If unplanned/emergency repair activities cannot be conducted 
between May 1 and November 30, Neptune has proposed to implement the 
following additional mitigation measures:
    (A) If on-board MMOs do not have at least 0.5-mi (0.8-km) 
visibility, they shall call for a shutdown of repair activities. If 
dive operations are in progress, then they shall be halted and brought 
on board until visibility is adequate to see a 0.5-mi (0.8-km) range. 
At the time of shutdown, the use of thrusters must be minimized. If 
there are potential safety problems due to the shutdown, the captain 
will decide what operations can safely be shut down and will document 
such activities.
    (B) Prior to leaving the dock to begin transit, the barge will 
contact one of the MMOs on watch to receive an update of sightings 
within the visual observation area. If the MMO has observed a North 
Atlantic right whale within 30 minutes of the transit start, the vessel 
will hold for 30 minutes and again get a clearance to leave from the 
MMOs on board. MMOs will assess whale activity and visual observation 
ability at the time of the transit request to clear the barge for 
release.
    (C) A half-day training course will be provided to designated crew 
members assigned to the transit barges and other support vessels. These 
designated crew members will be required to keep watch on the bridge 
and immediately notify the navigator of any whale sightings. All watch 
crew will sign into a bridge log book upon start and end of watch. 
Transit route, destination, sea conditions, and any protected species 
sightings/mitigation actions during watch will be recorded in the log 
book. Any whale sightings within 3,281 ft (1,000 m) of the vessel will 
result in a high alert and slow speed of 4 knots (7.4 km/hr) or less. A 
sighting within 2,461 ft (750 m) will result in idle speed and/or 
ceasing all movement.
    (D) The material barges and tugs used for repair work shall transit 
from the operations dock to the work sites during daylight hours, when 
possible, provided the safety of the vessels is not compromised. Should 
transit at night be required, the maximum speed of the tug will be 5 
knots (9.3 km/hr).
    (E) Consistent with navigation safety, all repair vessels must 
maintain a speed of 10 knots (18.5 km/hr) or less during daylight 
hours. All vessels will operate at 5 knots or less at all times within 
3.1 mi (5 km) of the repair area.
(3) Speed Restrictions in Seasonal Management Areas (SMAs)
    Repair vessels and SRVs will transit at 10 knots (18.5 km/hr) or 
less in the following seasons and areas, which either correspond to or 
are more restrictive than the times and areas in NMFS' final rule (73 
FR 60173, October 10, 2008) to implement speed restrictions to reduce 
the likelihood and severity of ship strikes of right whales:
    <bullet> CCB SMA from January 1 through May 15, which includes all 
waters in CCB, extending to all shorelines of the Bay, with a northern 
boundary of 42[deg] 12' N. latitude;
    <bullet> Off Race Point SMA year round, which is bounded by 
straight lines connecting the following coordinates in the order 
stated: 42[deg] 30' N. 69[deg] 45' W.; thence to 42[deg] 30' N. 70[deg] 
30' W.; thence to 42[deg] 12' N. 70[deg] 30' W.; thence to 42[deg] 12' 
N. 70[deg] 12' W.; thence to 42[deg] 04' 56.5'' N. 70[deg] 12' W.; 
thence along mean high water line and inshore limits of COLREGS limit 
to a latitude of 41[deg] 40' N.; thence due east to 41[deg] 41' N. 
69[deg] 45' W.; thence back to starting point; and
    <bullet> GSC SMA from April 1 through July 31, which is bounded by 
straight lines connecting the following coordinates in the order 
stated:
    42[deg] 30' N. 69[deg] 45' W.
    41[deg] 40' N. 69[deg] 45' W.
    41[deg] 00' N. 69[deg] 05' W.
    42[deg] 09' N. 67[deg] 08' 24'' W.
    42[deg] 30' N. 67[deg] 27' W.
    42[deg] 30' N. 69[deg] 45' W.
(4) Additional Mitigation Measures
    (A) In approaching and departing from the Neptune Port, SRVs shall 
use the Boston Traffic Separation Scheme (TSS) starting and ending at 
the entrance to the GSC. Upon entering the TSS, the SRV shall go into a 
``heightened awareness'' mode of operation, which is outlined in great 
detail in the Plan (see Neptune's application).
    (B) In the event that a whale is visually observed within 0.6 mi (1 
km) of the Port or a confirmed acoustic detection is reported on either 
of the two auto-detection buoys (ABs; more information on the acoustic 
devices is contained in the ``Proposed Monitoring and Reporting'' 
section later in this document) closest to the Port, departing SRVs 
shall delay their departure from the Port, unless extraordinary 
circumstances, defined in the Plan, require that the departure is not 
delayed. The departure delay shall continue until either the observed 
whale has been visually (during daylight hours) confirmed as more than 
0.6 mi (1 km) from the Port or 30 minutes have passed without another 
confirmed detection either acoustically within the acoustic detection 
range of the two ABs closest to the Port or visually within 0.6 mi (1 
km) from Neptune.
    (C) SRVs that are approaching or departing from the Port and are 
within the Area to be Avoided (ATBA) surrounding Neptune shall remain 
at least 0.6 mi (1 km) away from any visually detected right whales and 
at least 100 yards (91 meters) away from all other visually detected 
whales unless extraordinary circumstances, as defined in Section 1.2 of 
the Plan in Neptune's application, require that the vessel stay its 
course. The ATBA is defined in 33 CFR 150.940. It is the largest area 
of the Port marked on nautical charts and it is enforceable by the USCG 
in accordance with the 150.900 regulations. The Vessel Master shall 
designate at least one lookout to be exclusively and continuously 
monitoring for the presence of marine mammals at all times while the 
SRV is approaching or departing Neptune.
    (D) Neptune will ensure that other vessels providing support to 
Neptune operations during regasification activities that are 
approaching or departing from the Port and are within the ATBA shall be 
operated so as to remain at least 0.6 mi (1 km) away from any visually 
detected right whales and at least 100 yd (91 m) from all other 
visually detected whales.

Additional Mitigation Measures Proposed by NMFS

    In addition to the mitigation measures proposed in Neptune's IHA 
application, NMFS proposes the following measures be included in the 
IHA, if issued, in order to ensure the least practicable impact on the 
affected species or stocks:
    (1) Neptune must immediately suspend any repair and maintenance or 
operations activities if a dead or injured marine mammal is found in 
the vicinity of the project area, and the death or

[[Page 24921]]

injury of the animal could be attributable to the LNG facility 
activities. Neptune must contact NMFS and the Northeast Stranding and 
Disentanglement Program. Activities will not resume until review and 
approval has been given by NMFS.
    (2) MMOs will direct a moving vessel to slow to idle if a baleen 
whale is seen less than 0.6 mi (1 km) from the vessel.
    (3) Use of lights during repair or maintenance activities shall be 
limited to areas where work is actually occurring, and all other lights 
must be extinguished. Lights must be downshielded to illuminate the 
deck and shall not intentionally illuminate surrounding waters, so as 
not to attract whales or their prey to the area.

Mitigation Conclusions

    NMFS has carefully evaluated the applicant's proposed mitigation 
measures and considered a range of other measures in the context of 
ensuring that NMFS prescribes the means of effecting the least 
practicable impact on the affected marine mammal species and stocks and 
their habitat. Our evaluation of potential measures included 
consideration of the following factors in relation to one another:
    <bullet> The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
    <bullet> The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
    <bullet> The practicability of the measure for applicant 
implementation.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures provide the means of 
effecting the least practicable impact on marine mammal species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Proposed Monitoring and Reporting

    In order to issue an ITA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must, where applicable, set forth 
``requirements pertaining to the monitoring and reporting of such 
taking''. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) 
indicate that requests for ITAs must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the proposed action area.
    Neptune proposed both visual and acoustic monitoring programs in 
the Plan contained in the IHA application. Summaries of those plans, as 
well as the proposed reporting, are contained next.

Passive Acoustic Monitoring

    Neptune LNG will deploy and maintain a passive acoustic detection 
network along a portion of the TSS and in the vicinity of Neptune. This 
network will consisting of autonomous recording units (ARUs) and near-
real-time ABs. To develop, implement, collect, and analyze the acoustic 
data obtained from deployment of the ARUs and ABs, as well as to 
prepare reports and maintain the passive acoustic detection network, 
Neptune LNG has engaged the Cornell University Bioacoustic Research 
Program (BRP) in Ithaca, New York, and the Woods Hole Oceanographic 
Institution (WHOI) in Woods Hole, Massachusetts.
    During June 2008, an array of 19 passive seafloor ARUs was deployed 
by BRP for Neptune. The layout of the array centered on the terminal 
site and was used to monitor the noise environment in Massachusetts Bay 
in the vicinity of Neptune during construction of the port and 
associated pipeline lateral. The ARUs were not designed to provide 
real-time or near-real-time information about vocalizing whales. Rather 
archival noise data collected from the ARU array were used for the 
purpose of understanding the seasonal occurrences and overall 
distributions of whales (primarily North Atlantic right whales) within 
approximately 10 nm (18.5 km) of the Neptune Port. Neptune LNG will 
maintain these ARUs in the same configuration for a period of five 
years during full operation of Neptune in order to monitor the actual 
acoustic output of port operations and to alert NOAA to any 
unanticipated adverse effects of port operations, such as large scale 
abandonment by marine mammals of the area. To further assist in 
evaluations of the Neptune's acoustic output, source levels associated 
with DP of SRVs at the buoys will be estimated using empirical 
measurements collected from the passive detection network.
    In addition to the ARUs, Neptune LNG has deployed 10 ABs within the 
Separation Zone of the TSS for the operational life of the Port. The 
purpose of the AB array is to detect the presence of vocalizing North 
Atlantic right whales. Each AB has an average detection range of 5 nm 
(9.3 km) of the AB, although detection ranges will vary based on 
ambient underwater conditions. The AB system will be the primary 
detection mechanism that alerts the SRV Master to the occurrence of 
right whales in the TSS and triggers heightened SRV awareness. The 
configurations of the ARU array and AB network (see Figure 3 in the 
Plan in Neptune's application) were based upon the configurations 
developed and recommended by NOAA personnel.
    Each AB deployed in the TSS will continuously screen the low-
frequency acoustic environment (less than 1,000 Hz) for right whale 
contact calls occurring within an approximately
    5-nm (9.3-km) radius from each buoy (the ABs' detection range) and 
rank detections on a scale from 1 to 10. Each AB shall transmit all 
detection data for detections of rank greater than or equal to 6 via 
Iridium satellite link to the BRP server website every 20 minutes. This 
20-minute transmission schedule was determined by consideration of a 
combination of factors including the tendency of right whale calls to 
occur in clusters (leading to a sampling logic of listening for other 
calls rather than transmitting immediately upon detection of a possible 
call) and the amount of battery power required to complete a satellite 
transmission. Additional details on the protocol can be found in 
Neptune's application.
    Additionally, Neptune shall provide empirically measured source 
level data for all sources of noise associated with LNG port 
maintenance and repair activities. Measurements should be carefully 
coordinated with noise-producing activities and should be collected 
from the passive acoustic monitoring network.

Visual Monitoring

    During maintenance- and repair-related activities, Neptune LNG 
shall employ two qualified MMOs on each vessel that has a DP system. 
All MMOs must receive training and be approved in advance by NOAA after 
a review of their qualifications. Qualifications for these MMOs shall 
include direct field experience on a marine mammal observation vessel 
and/or aerial surveys in the Atlantic Ocean/Gulf of Mexico. The MMOs 
(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 MMO shall act as the 
identification specialist, and the secondary MMO will serve as data 
recorder and will assist with identification. Both MMOs shall have 
responsibility for monitoring for the presence of marine mammals.
    The MMOs shall monitor the area where maintenance and repair work 
is

[[Page 24922]]

conducted beginning at daybreak using the naked eye, hand-held 
binoculars, and/or power binoculars (e.g, Big Eyes). The MMOs shall 
scan the ocean surface by eye for a minimum of 40 minutes every hour. 
All sightings must be recorded on marine mammal field sighting logs.
    While an SRV is navigating within the designated TSS, three people 
have lookout duties on or near the bridge of the ship including the SRV 
Master, the Officer-of-the-Watch, and the Helmsman on watch. In 
addition to standard watch procedures, while the SRV is within the ATBA 
and/or while actively engaging in the use of thrusters an additional 
lookout shall be designated to exclusively and continuously monitor for 
marine mammals. Once the SRV is moored and regasification activities 
have begun, the vessel is no longer considered in ``heightened 
awareness'' status. However, when regasification activities conclude 
and the SRV prepares to depart from Neptune, the Master shall once 
again ensure that the responsibilities as defined in the Plan are 
carried out. All sightings of marine mammals by the designated lookout, 
individuals posted to navigational lookout duties, and/or any other 
crew member while the SRV is within the TSS, in transit to the ATBA, 
within the ATBA, and/or when actively engaging in the use of thrusters 
shall be immediately reported to the Officer-of-the-Watch who shall 
then alert the Master.

Reporting Measures

    Since the Neptune Port is within the Mandatory Ship Reporting Area 
(MSRA), all SRVs transiting to and from Neptune shall report their 
activities to the mandatory reporting section of the USCG to remain 
apprised of North Atlantic right whale movements within the area. All 
vessels entering and exiting the MSRA shall report their activities to 
WHALESNORTH. Vessel operators shall contact the USCG by standard 
procedures promulgated through the Notice to Mariner system.
    For any repair work associated with the pipeline lateral or other 
port components, Neptune LNG shall notify the appropriate NOAA 
personnel as soon as practicable after it is determined that repair 
work must be conducted. During maintenance and repair of the pipeline 
lateral or other port components, weekly status reports must be 
provided to NOAA. The weekly report must include data collected for 
each distinct marine mammal species observed in the project area during 
the period of the repair activity. The weekly reports shall include the 
following:
    <bullet> The location, time, and nature of the pipeline lateral 
repair activities;
    <bullet> Whether the DP system was operated and, if so, the number 
of thrusters used and the time and duration of DP operation;
    <bullet> Marine mammals observed in the area (number, species, age 
group, and initial behavior);
    <bullet> The distance of observed marine mammals from the repair 
activities;
    <bullet> Observed marine mammal behaviors during the sighting;
    <bullet> Whether any mitigation measures were implemented;
    <bullet> Weather conditions (sea state, wind speed, wind direction, 
ambient temperature, precipitation, and percent cloud cover, etc.);
    <bullet> Condition of the marine mammal observation (visibility and 
glare); and
    <bullet> Details of passive acoustic detections and any action 
taken in response to those detections.
    For minor repairs and maintenance activities, the following 
protocols will be followed:
    <bullet> All vessel crew members will be trained in marine mammal 
identification and avoidance procedures;
    <bullet> Repair vessels will notify designated NOAA personnel when 
and where the repair/maintenance work is to take place along with a 
tentative schedule and description of the work;
    <bullet> Vessel crews will record/document any marine mammal 
sightings during the work period; and
    <bullet> At the conclusion of the repair/maintenance work, a report 
will be delivered to designated NOAA personnel describing any marine 
mammal sightings, the type of work taking place when the sighting 
occurred, and any avoidance actions taken during the repair/maintenance 
work.
    During all phases of project construction, sightings of any injured 
or dead marine mammals will be reported immediately to the USCG and 
NMFS, regardless of whether the injury or death is caused by project 
activities. Sightings of injured or dead marine mammals not associated 
with project activities can be reported to the USCG on VHF Channel 16 
or to NMFS Stranding and Entanglement Hotline. In addition, if the 
injury or death was caused by a project vessel (e.g., SRV, support 
vessel, or construction vessel), USCG must be notified immediately, and 
a full report must be provided to NMFS, Northeast Regional Office. The 
report must include the following information: (1) the time, date, and 
location (latitude/longitude) of the incident; (2) the name and type of 
vessel involved; (3) the vessel's speed during the incident; (4) a 
description of the incident; (5) water depth; (6) environmental 
conditions (e.g., wind speed and direction, sea state, cloud cover, and 
visibility); (7) the species identification or description of the 
animal; (8) the fate of the animal; and (9) photographs or video 
footage of the animal (if equipment is available).
    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 
operations. 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. 
Additional information that will be recorded during construction and 
contained in the reports include: date and time of marine mammal 
detections (visually or acoustically), weather conditions, species 
identification, approximate distance from the source, activity of the 
vessel or at the construction site when a marine mammal is sighted, and 
whether thrusters were in use and, if so, how many at the time of the 
sighting.

General Conclusions Drawn from Previous Monitoring Reports

    Throughout the construction period, Neptune submitted weekly 
reports on marine mammal sightings in the area. While it is difficult 
to draw biological conclusions from these reports, NMFS can make some 
general conclusions. Data gathered by MMOs is generally useful to 
indicate the presence or absence of marine mammals (often to a species 
level) within the safety zones (and sometimes without) and to document 
the implementation of mitigation measures. Though it is by no means 
conclusory, it is worth noting that no instances of obvious behavioral 
disturbance as a result of Neptune's activities were observed by the 
MMOs. Of course, these observations only cover the animals that were at 
the surface and within the distance that the MMOs could see. Based on 
the number of sightings contained in the weekly reports, it appears 
that NMFS' estimated take levels are accurate. As operation of the Port 
has not yet commenced, there are no reports describing the results of 
the visual monitoring program for this

[[Page 24923]]

phase of the project. However, it is anticipated that visual 
observations will be able to continue as they were during construction.
    As described previously in this document, Neptune was required to 
maintain an acoustic array to monitor calling North Atlantic right 
whales (humpback and fin whale calls were also able to be detected). 
Cornell BRP analyzed the data and submitted a report covering the 
initial construction phase of the project, which occurred in 2008. 
While acoustic data can only be collected if the animals are actively 
calling, the report indicates that humpback and fin whales were heard 
calling on at least some of the ARUs on all construction days, and 
right whale calls were heard only 28 percent of the time during active 
construction days. The passive acoustic arrays will remain deployed 
during the time frame of this proposed IHA in order to obtain 
information during the operational phase of the Port facility.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment]. Only take by Level B harassment is 
anticipated as a result of Neptune's operational and repair/maintenance 
activities. Anticipated take of marine mammals is associated with 
thruster sound during maneuvering of the SRVs while docking and 
undocking, occasional weathervaning at the Port, and during thruster 
use of DP maintenance vessels should a major repair be necessary. The 
regasification process itself is an activity that does not rise to the 
level of taking, as the modeled source level for this activity is 110 
dB (rms). Certain species may have a behavioral reaction to the sound 
emitted during the activities. Hearing impairment is not anticipated. 
Additionally, vessel strikes are not anticipated, especially because of 
the speed restriction measures that are proposed that were described 
earlier in this document.
    For continuous sounds, such as those produced by Neptune's proposed 
activities, NMFS uses a received level of 120-dB (rms) to indicate the 
onset of Level B harassment. The basis for Neptune's ``take'' estimate 
is the number of marine mammals that potentially could be exposed to 
sound levels in excess of 120 dB. This has been determined by applying 
the modeled zone of influence (ZOI; e.g., the area ensonified by the 
120-dB contour) to the seasonal use (density) of the area by marine 
mammals and correcting for seasonal duration of sound-generating 
activities and estimated duration of individual activities when the 
maximum sound-generating activities are intermittent to occasional. 
Nearly all of the required information is readily available in the 
MARAD/USCG Final EIS, with the exception of marine mammal density 
estimates for the project area. In the case of data gaps, a 
conservative approach was used to ensure that the potential number of 
takes is not underestimated, as described next.
    Neptune contractors have conducted modeling of various vessels for 
several years to determine the 120-dB ZOI. Prior to submitting its most 
recent IHA application, Neptune contracted JASCO to conduct new sound 
source measurement tests on the SRV while using the thrusters at full 
power. The reports are contained in Appendix C of Neptune's application 
(see ADDRESSES). The vessels used in the most recent tests conducted in 
2009 use vessels that are closer in similarity to the ones that will be 
used at the Neptune Port facility. The results indicate that the 120-dB 
radius from thruster use is estimated to be 1.6 nm (3 km), creating a 
maximum ZOI of 8.5 nm2 (29 km2). This zone is smaller than the one that 
was used to estimate the level of take in the previous IHA. However, 
the vessels used in the 2009 tests more closely resemble the vessels 
that will be used by Neptune.
    NMFS recognizes that baleen whale species other than North Atlantic 
right whales have been sighted in the project area from May to 
November. However, the occurrence and abundance of fin, humpback, and 
minke whales is not well documented within the project area. 
Nonetheless, NMFS used the data on cetacean distribution within 
Massachusetts Bay, such as those published by the NCCOS (2006), to 
determine potential takes of marine mammals in the vicinity of the 
project area. Neptune presented density estimates using the CETAP 
(1982) and U.S. Navy MRA (2005) data. The NCCOS (2006) uses information 
from these sources; however, it also includes information from some 
other studies. Therefore, NMFS used density information for the species 
that are included in the NCCOS (2006) report. These species include: 
North Atlantic right, fin, humpback, minke, pilot, and sei whales and 
Atlantic white-sided dolphins.
    The NCCOS study used cetacean sightings from two sources: (1) the 
North Atlantic Right Whale Consortium (NARWC) sightings database held 
at the University of Rhode Island (Kenney, 2001); and (2) the Manomet 
Bird Observatory (MBO) database, held at the NMFS Northeast Fisheries 
Science Center (NEFSC). The NARWC data contained survey efforts and 
sightings data from ship and aerial surveys and opportunistic sources 
between 1970 and 2005. The main data contributors included: the CETAP, 
the Canadian Department of Fisheries and Oceans, the Provincetown 
Center for Coastal Studies, International Fund for Animal Welfare, 
NEFSC, New England Aquarium, WHOI, and the University of Rhode Island. 
A total of 406,293 mi (653,725 km) of survey track and 34,589 cetacean 
observations were provisionally selected for the NCCOS study in order 
to minimize bias from uneven allocation of survey effort in both time 
and space. The sightings-per-unit-effort (SPUE) was calculated for all 
cetacean species by month covering the southern Gulf of Maine study 
area, which also includes the project area (NCCOS, 2006).
    The MBO's Cetacean and Seabird Assessment Program (CSAP) was 
contracted from 1980 to 1988 by NEFSC to provide an assessment of the 
relative abundance and distribution of cetaceans, seabirds, and marine 
turtles in the shelf waters of the northeastern U.S. (MBO, 1987). The 
CSAP program was designed to be completely compatible with NEFSC 
databases so that marine mammal data could be compared directly with 
fisheries data throughout the time series during which both types of 
information were gathered. A total of 8,383 mi (5,210 km) of survey 
distance and 636 cetacean observations from the MBO data were included 
in the NCCOS analysis. Combined valid survey effort for the NCCOS 
studies included 913,840 mi (567,955 km) of survey track for small 
cetaceans (dolphins and porpoises) and 1,060,226 mi (658,935 km) for 
large cetaceans (whales) in the southern Gulf of Maine. The NCCOS study 
then combined these two data sets by extracting cetacean sighting 
records, updating database field names to match the NARWC database, 
creating geometry to represent survey tracklines and applying a set of 
data selection criteria designed to minimize uncertainty and bias in 
the data used.
    Based on the comprehensiveness and total coverage of the NCCOS 
cetacean

[[Page 24924]]

distribution and abundance study, NMFS calculated the estimated take 
number of marine mammals based on the most recent NCCOS report 
published in December, 2006. A summary of seasonal cetacean 
distribution and abundance in the project area is provided previously 
in this document, in the ``Description of Marine Mammals in the Area of 
the Specified Activity'' section. For a detailed description and 
calculation of the cetacean abundance data and SPUE, refer to the NCCOS 
study (NCCOS, 2006). SPUE for all four seasons were analyzed, and the 
highest value SPUE for the season with the highest abundance of each 
species was used to determine relative abundance. Based on the data, 
the relative abundance of North Atlantic right, fin, humpback, minke, 
sei, and pilot whales and Atlantic white-sided dolphins, as calculated 
by SPUE in number of animals per square kilometer, is 0.0082, 0.0097, 
0.0265, 0.0059, 0.0084, 0.0407, and 0.1314 n/km, respectively. Table 1 
in this document outlines the density, abundance, take estimates, and 
percent of population for the 14 species for which NMFS is proposing to 
authorize Level B harassment.
    In calculating the area density of these species from these linear 
density data, NMFS used 0.4 km (0.25 mi), which is a quarter the 
distance of the radius for visual monitoring, as a conservative 
hypothetical strip width (W). Thus the area density (D) of these 
species in the project area can be obtained by the following formula:
    D = SPUE/2W.
    Based on the calculation, the estimated take numbers by Level B 
harassment for the 1-year IHA period for North Atlantic right, fin, 
humpback, minke, sei, and pilot whales and Atlantic white-sided 
dolphins, within the 120-dB ZOI of the LNG Port facility area of 
approximately 8.5 nm\2\ (29 km\2\) maximum ZOI, corrected for 50 
percent underwater, are 23, 27, 72, 16, 6, 111, and 357, respectively. 
This estimate is based on an estimated 50 SRV trips for the period July 
1, 2010, through June 30, 2011, that will produce sounds of 120 dB or 
greater.
    Based on the same calculation method described above for Port 
operations, the estimated take numbers by Level B harassment for North 
Atlantic right, fin, humpback, minke, sei, and pilot whales and 
Atlantic white-sided dolphins for the 1-year IHA period incidental to 
Port maintenance and repair activities, corrected for 50 percent 
underwater, are 6, 7, 20, 5, 6, 31, and 100, respectively. These 
numbers are based on 14 days of repair and maintenance activities 
occurring between July 1, 2010, and June 30, 2011. It is unlikely that 
this much repair and maintenance work would be required this soon after 
completion of the construction phase of the facility.
    The total estimated take of these species as a result of both 
operations and repair and maintenance activities of the Neptune Port 
facility between July 1, 2010, and June 30, 2011, is: 29 North Atlantic 
right whales; 34 fin whales; 92 humpback whales; 21 minke whales; 12 
sei whales; 142 long-finned pilot whales; and 457 Atlantic white-sided 
dolphins. These numbers represent a maximum of 8.4, 1.5, 10.9, 0.6, 
3.1, 0.5, and 0.7 percent of the populations for these species or 
stocks in the western North Atlantic, respectively. It is likely that 
individual animals will be ``taken'' by harassment multiple times 
(since certain individuals may occur in the area more than once while 
other individuals of the population or stock may not enter the proposed 
project area). Additionally, the highest value SPUE for the season with 
the highest abundance of each species was used to determine relative 
abundance. Moreover, it is not expected that Neptune will have 50 SRV 
transits and LNG deliveries in the first year of operations. Therefore, 
these percentages are the upper boundary of the animal population that 
could be affected. Thus, the actual number of individual animals being 
exposed or taken is expected to be far less.
    In addition, bottlenose dolphins, common dolphins, Risso's 
dolphins, killer whales, harbor porpoises, harbor seals, and gray seals 
could also be taken by Level B harassment as a result of the deepwater 
LNG port project. Since these species are less likely to occur in the 
area, and there are no density estimates specific to this particular 
area, NMFS based the take estimates on typical group size. Therefore, 
NMFS estimates that up to approximately 10 bottlenose dolphins, 20 
common dolphins, 20 Risso's dolphins, 20 killer whales, 5 harbor 
porpoises, 15 harbor seals, and 15 gray seals could be exposed to 
continuous noise at or above 120 dB re 1 ?Pa rms incidental to 
operations and repair and maintenance activities during the one year 
period of the IHA, respectively.
    Since Massachusetts Bay represents only a small fraction of the 
western North Atlantic basin where these animals occur NMFS has 
preliminarily determined that only small numbers of the affected marine 
mammal species or stocks would be potentially affected by the Neptune 
LNG deepwater project. The take estimates presented in this section of 
the document do not take into consideration the mitigation and 
monitoring measures that are proposed for inclusion in the IHA (if 
issued).

    Table 1. Density estimates, population abundance estimates, total proposed take (when combine takes from
 operation and maintenance/repair activities), and percentage of population that may be taken for the potential
                                                affected species.
----------------------------------------------------------------------------------------------------------------
                                                                              Total Proposed     Percentage of
               Species                Density (n/km\2\)     Abundance\1\    Take (operation &       Stock or
                                                                               maintenance)        Population
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale                      0.0082                345                 29                8.4
----------------------------------------------------------------------------------------------------------------
Fin whale                                       0.0097              2,269                 34                1.5
----------------------------------------------------------------------------------------------------------------
Humpback whale                                  0.0265                847                 92               10.9
----------------------------------------------------------------------------------------------------------------
Minke whale                                     0.0059              3,312                 21                0.6
----------------------------------------------------------------------------------------------------------------
Sei whale                                       0.0084                386                 12                3.1
----------------------------------------------------------------------------------------------------------------
Long-finned pilot whale                         0.0407             31,139                142                0.5
----------------------------------------------------------------------------------------------------------------
Atlantic white-sided dolphin                    0.1314             63,368                457                0.7
----------------------------------------------------------------------------------------------------------------

[[Page 24925]]

 
Bottlenose dolphin                                  NA              7,489                 10                0.1
----------------------------------------------------------------------------------------------------------------
Common dolphin                                      NA            120,743                 20               0.02
----------------------------------------------------------------------------------------------------------------
Risso's dolphin                                     NA             20,479                 20                0.1
----------------------------------------------------------------------------------------------------------------
Killer whale                                        NA                 NA                 20                 NA
----------------------------------------------------------------------------------------------------------------
Harbor porpoise                                     NA             89,054                  5               0.01
----------------------------------------------------------------------------------------------------------------
Harbor seal                                         NA             99,340                 15               0.02
----------------------------------------------------------------------------------------------------------------
Gray seal                                           NA    125,541-169,064                 15               0.01
----------------------------------------------------------------------------------------------------------------
\1\ Abundance estimates taken from NMFS Atlantic and Gulf of Mexico SAR; NA=Not Available

Negligible Impact and Small Numbers Analysis and Preliminary 
Determination

    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ''...an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.'' In making a negligible impact determination, NMFS considers 
a variety of factors, including but not limited to: (1) the number of 
anticipated mortalities; (2) the number and nature of anticipated 
injuries; (3) the number, nature, intensity, and duration of Level B 
harassment; and (4) the context in which the takes occur.
    No injuries or mortalities are anticipated to occur as a result of 
Neptune's proposed port operation and maintenance and repair 
activities, and none are proposed to be authorized by NMFS. 
Additionally, animals in the area are not anticipated to incur any 
hearing impairment (i.e., TTS or PTS), as the modeling results for the 
SRV indicate a source level of 180 dB (rms).
    While some of the species occur in the proposed project area year-
round, some species only occur in the area during certain seasons. Sei 
whales are only anticipated in the area during the spring. Therefore, 
if shipments and/or maintenance/repair activities occur in other 
seasons, the likelihood of sei whales being affected is quite low. 
Additionally, any repairs that can be scheduled in advance will be 
scheduled to avoid the peak time that North Atlantic right whales occur 
in the area, which usually is during the early spring. North Atlantic 
right, humpback, and minke whales are not expected in the project area 
in the winter. During the winter, a large portion of the North Atlantic 
right whale population occurs in the southeastern U.S. calving grounds 
(i.e., South Carolina, Georgia, and northern Florida). The fact that 
certain activities will occur during times when certain species are not 
commonly found in the area will help reduce the amount of Level B 
harassment for these species.
    Many animals perform vital functions, such as feeding, resting, 
traveling, and socializing, on a diel cycle (24-hr cycle). Behavioral 
reactions to noise exposure (such as disruption of critical life 
functions, displacement, or avoidance of important habitat) are more 
likely to be significant if they last more than one diel cycle or recur 
on subsequent days (Southall et al., 2007). Consequently, a behavioral 
response lasting less than one day and not recurring on subsequent days 
is not considered particularly severe unless it could directly affect 
reproduction or survival (Southall et al., 2007). Operational 
activities are not anticipated to occur at the Port on consecutive 
days. Once Neptune is at full operations, SRV shipments would occur 
every 4-8 days, with thruster use needed for a couple of hours. 
Therefore, Neptune will not be creating increased sound levels in the 
marine environment for several days at a time.
    Of the 14 marine mammal species likely to occur in the area, four 
are listed as endangered under the ESA: North Atlantic right, humpback, 
fin, and sei whales. All of these species, as well as the northern 
coastal stock of bottlenose dolphin, are also considered depleted under 
the MMPA. As stated previously in this document, the affected humpback 
and North Atlantic right whale populations have been increasing in 
recent years. However, there is insufficient data to determine 
population trends for the other depleted species in the proposed 
project area. There is currently no designated critical habitat or 
known reproductive areas for any of these species in or near the 
proposed project area. However, there are several well known North 
Atlantic right whale feeding grounds in the CCB and GSC. As mentioned 
previously, to the greatest extent practicable, all maintenance/repair 
work will be scheduled during the May 1 to November 30 time frame to 
avoid peak right whale feeding in these areas, which occur close to the 
Neptune Port. No mortality or injury is expected to occur and due to 
the nature, degree, and context of the Level B harassment anticipated, 
the activity is not expected to impact rates of recruitment or 
survival.
    The population estimates for the species that may be taken by 
harassment from the most recent U.S. Atlantic SAR were provided earlier 
in this document (see the ``Description of Marine Mammals in the Area 
of the Specified Activity'' section). From the most conservative 
estimates of both marine mammal densities in the project area and the 
size of the 120-dB ZOI, the maximum calculated number of individual 
marine mammals for each species that could potentially be harassed 
annually is small relative to the overall population sizes (10.9 
percent for humpback whales and 8.4 percent for North Atlantic right 
whales and no more than 3.1 percent of any other species).
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the

[[Page 24926]]

mitigation and monitoring measures, NMFS preliminarily finds that 
operation, including repair and maintenance activities, of the Neptune 
Port will result in the incidental take of small numbers of marine 
mammals, by Level B harassment only, and that the total taking from 
Neptune's proposed activiites will have a negligible impact on the 
affected species or stocks.

Impact on Availability of Affected Species or Stock for Taking for 
Subsistence Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action.

Endangered Species Act (ESA)

    On January 12, 2007, NMFS concluded consultation with MARAD and 
USCG under section 7 of the ESA on the proposed construction and 
operation of the Neptune LNG facility and issued a Biological Opinion. 
The finding of that consultation was that the construction and 
operation of the Neptune LNG terminal may adversely affect, but is not 
likely to jeopardize, the continued existence of northern right, 
humpback, and fin whales, and is not likely to adversely affect sperm, 
sei, or blue whales and Kemp's ridley, loggerhead, green, or 
leatherback sea turtles.
    On March 2, 2010, MARAD and USCG sent a letter to NMFS requesting 
reinitiation of the section 7 consultation. MARAD and USCG determined 
that certain routine planned operations and maintenance activities, 
inspections, surveys, and unplanned repair work on the Neptune 
Deepwater Port pipelines and flowlines, as well as any other Neptune 
Deepwater Port component (including buoys, risers/umbilicals, mooring 
systems, and sub-sea manifolds), may constitute a modification not 
previously considered in the 2007 Biological Opinion. Construction of 
the Port facility will be completed by summer 2010, and, therefore, is 
no longer part of the proposed action. This consultation will be 
concluded prior to a determination on the issuance of this IHA.

National Environmental Policy Act (NEPA)

    MARAD and the USCG released a Final EIS/Environmental Impact Report 
(EIR) for the proposed Neptune LNG Deepwater Port (see ADDRESSES). A 
notice of availability was published by MARAD on November 2, 2006 (71 
FR 64606). The Final EIS/EIR provides detailed information on the 
proposed project facilities, construction methods, and analysis of 
potential impacts on marine mammals.
    NMFS was a cooperating agency in the preparation of the Draft and 
Final EISs based on a Memorandum of Understanding related to the 
Licensing of Deepwater Ports entered into by the U.S. Department of 
Commerce along with 10 other government agencies. On June 3, 2008, NMFS 
adopted the USCG and MARAD FEIS and issued a separate Record of 
Decision for issuance of authorizations pursuant to sections 
101(a)(5)(A) and (D) of the MMPA for the construction and operation of 
the Neptune LNG Port facility.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
authorize the take of marine mammals incidental to port commissioning 
and operations, including repair and maintenance activities at the 
Neptune Deepwater Port, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated.

    Dated: April 30, 2010.
Helen M. Golde,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2010-10715 Filed 5-5-10; 8:45 am]
BILLING CODE 3510-22-S


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