53672 Federal Register / Vol. 75, No. 169 / Wednesday, September 1, 2010 / Notices 

Executive Order 13132 (Federalism): 

It has been determined that this notice 

does not contain policies with 

Federalism implications as that term is 

defined in Executive Order 13132. 

Administrative Procedure Act/ 

Regulatory Flexibility Act: Prior notice 

and an opportunity for public comments 

are not required by the Administrative 

Procedure Act or any other law for rules 

concerning grants, benefits, and 

contracts (5 U.S.C. 553(a)(2)). Because 

notice and opportunity for comment are 

not required pursuant to 5 U.S.C. 553 or 

any other law, the analytical 

requirements of the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.) are 

inapplicable. Therefore, a regulatory 

flexibility analysis has not been 

prepared. 

Dated: August 27, 2010. 

Sean Cartwright, 

Chief of Staff. 

[FR Doc. 2010–21905 Filed 8–31–10; 8:45 am] 

BILLING CODE 3510–24–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

RIN 0648–XX27 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to Operations of a 

Liquified Natural Gas Port Facility in 

Massachusetts Bay 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of issuance of an 

incidental harassment authorization. 

SUMMARY: In accordance with the 

regulations implementing the Marine 

Mammal Protection Act (MMPA) as 

amended, notification is hereby given 

that NMFS has issued an Incidental 

Harassment Authorization (IHA) to the 

Northeast Gateway Energy BridgeTM LP 

(Northeast Gateway or NEG) and its 

partner, Algonquin Gas Transmission, 

LLC (Algonquin), to incidentally harass, 

by Level B harassment only, small 

numbers of marine mammals during 

operation of an offshore liquefied 

natural gas (LNG) facility in the 

Massachusetts Bay for a period of 1 

year. 

DATES: This authorization is effective 

from August 31, 2010, until August 30, 

2011. 

ADDRESSES: A copy of the application, 

IHA, and a list of references used in this 

document may be obtained by writing to 

P. Michael Payne, Chief, Permits, 

Conservation and Education Division, 

Office of Protected Resources, National 

Marine Fisheries Service, 1315 EastWest Highway, Silver Spring, MD 

20910. A copy of the application may be 

obtained by writing to this address or by 

telephoning the contact listed here and 

is also available at: http:// 

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

incidental.htm#applications. 

FOR FURTHER INFORMATION CONTACT: 

Shane Guan, Office of Protected 

Resources, NMFS, (301) 713–2289, ext 

137. 

SUPPLEMENTARY INFORMATION: 

Background 

Section 101(a)(5)(D) of the MMPA (16 

U.S.C. 1371 (a)(5)(D)) directs the 

Secretary of Commerce to authorize, 

upon request, the incidental, but not 

intentional, taking by harassment of 

small numbers of marine mammals of a 

species or population stock, for periods 

of not more than one year, by United 

States citizens who engage in a specified 

activity (other than commercial fishing) 

within a specific geographic region if 

certain findings are made and a notice 

of a proposed authorization is provided 

to the public for review. 

Authorization for incidental takings 

shall be granted if NMFS finds that the 

taking will have a negligible impact on 

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

unmitigable adverse impact on the 

availability of the species or stock(s) for 

subsistence uses (where relevant), and if 

the permissible methods of taking and 

requirements pertaining to the 

mitigation, monitoring and reporting of 

such takings are set forth. NMFS has 

defined ‘‘negligible impact’’ in 50 CFR 

216.103 as ‘‘ * * * an impact resulting 

from the specified activity that cannot 

be reasonably expected to, and is not 

reasonably likely to, adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival.’’ 

Section 101(a)(5)(D) of the MMPA 

established an expedited process by 

which citizens of the United States can 

apply for an authorization to 

incidentally take small numbers of 

marine mammals by harassment. 

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 

On June 14, 2010, NMFS received an 

application from Excelerate Energy, LP 

(Excelerate) and Tetra Tech EC, Inc., on 

behalf of Northeast Gateway and 

Algonquin for an authorization to take 

12 species of marine mammals by Level 

B harassment incidental to operations of 

an LNG port facility in Massachusetts 

Bay. Since LNG Port operation and 

maintenance activities have the 

potential to take marine mammals, a 

marine mammal take authorization 

under the MMPA is warranted. NMFS 

has already issued a one-year incidental 

harassment authorization for this 

activity pursuant to section 101(a)(5)(D) 

of the MMPA (74 FR 45613; September 

3, 2009), which expires on August 31, 

2010. In order for Northeast Gateway 

and Algonquin to continue their 

operations of the LNG port facility in 

Massachusetts Bay, both companies are 

seeking a renewal of their IHA. 

Description of the Activity 

The Northeast Gateway Port is located 

in Massachusetts Bay and consists of a 

submerged buoy system to dock 

specially designed LNG carriers 

approximately 13 mi (21 km) offshore of 

Massachusetts in Federal waters 

approximately 270 to 290 ft (82 to 88 m) 

in depth. This facility delivers regasified 

LNG to onshore markets via a 16.06-mi 

(25.8-km) long, 24-in (61-cm) outside 

diameter natural gas pipeline lateral 

(Pipeline Lateral) owned and operated 

by Algonquin and interconnected to 

Algonquin’s existing offshore natural 

gas pipeline system in Massachusetts 

Bay (HubLine). 

The Northeast Gateway Port consists 

of two subsea Submerged Turret 

Loading TM (STLJ TM) buoys, each with a 

flexible riser assembly and a manifold 

connecting the riser assembly, via a 

steel flowline, to the subsea Pipeline 

Lateral. Northeast Gateway utilizes 

vessels from its current fleet of specially 

designed Energy Bridge Regasification 

Vessels TM (EBRVs TM), each capable of 

transporting approximately 2.9 billion 

ft3 (82 million m 3) of natural gas 

condensed to 4.9 million feet3 (138,000 

m3) of LNG. Northeast Gateway would 

also be adding vessels to its fleet that 

will have a cargo capacity of 

approximately 151,000 cubic m 3. The 


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mooring system installed at the 

Northeast Gateway Port is designed to 

handle both the existing vessels and any 

of the larger capacity vessels that may 

come into service in the future. The 

EBRVs would dock to the STL buoys, 

which would serve as both the singlepoint mooring system for the vessels 

and the delivery conduit for natural gas. 

Each of the STL buoys is secured to the 

seafloor using a series of suction 

anchors and a combination of chain/ 

cable anchor lines. 

The proposed activity includes 

Northeast Gateway LNG Port operations 

and maintenance. A detailed 

description of these activities is 

provided in the Federal Register notice 

for the proposed IHA (75 FR 42071; July 

20, 2010), and is not repeated here. 

Comments and Responses 

A notice of receipt and request for 

public comment on the application and 

proposed authorization was published 

on July 20, 2010 (75 FR 42071). During 

the 30-day public comment period, 

NMFS received comments from the 

Marine Mammal Commission 

(Commission). 

Comment 1: The Commission 

recommends that NMFS include in the 

authorization and in any proposed 

regulations issued by NMFS to govern 

the activities during the subsequent 

five-year period all marine mammal 

mitigation, monitoring, and reporting 

measures identified in NMFS Federal 

Register notice (75 FR 42071; July 20, 

2010). 

Response: NMFS concurs with the 

Commission’s recommendation and will 

include in the authorization and in any 

proposed regulations issued in the 

future that govern activities during the 

subsequent five-year period all marine 

mammal mitigation, monitoring, and 

reporting measures identified in the 

Federal Register notice for the proposed 

IHA (75 FR 42071; July 20, 2010). 

Furthermore, additional mitigation and 

monitoring measures may be proposed 

if any proposed regulation issued in the 

future covers LNG port repair activities 

that are not addressed in this document. 

Comment 2: The Commission 

recommends that NMFS issue the IHA 

provided that NMFS requires the 

applicants to halt activities and consult 

with NMFS regarding any seriously 

injured or dead marine mammals when 

the injury or death may have resulted 

from those activities and allow 

resumption of those activities only after 

steps to avoid additional serious injuries 

or deaths have been implemented or 

such takings have been authorized 

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

MMPA. 

Response: NMFS concurs with the 

Commission’s recommendation raised 

in the above comment, and extends the 

suspension requirement to any type of 

injury, not just serious injury, if it could 

be attributable to LNG activities. 

Description of Marine Mammals in the 

Area of the Specified Activities 

Marine mammal species that 

potentially occur in the vicinity of the 

Northeast Gateway facility include 

several species of cetaceans and 

pinnipeds: 

• North Atlantic right whale 

(Eubalaena glacialis), 

• Humpback whale (Megaptera 

novaeangliae), 

• Fin whale (Balaenoptera physalus), 

• Minke whale (B. acutorostrata), 

• Long-finned pilot whale 

(Globicephala melas), 

• Atlantic white-sided dolphin 

(Lagenorhynchus acutus), 

• Bottlenose dolphin (Tursiops 

truncatus), 

• Common dolphin (Delphinus 

delphis), 

• Killer whale (Orcinus orca), 

• Harbor porpoise (Phocoena 

phocoena), 

• Harbor seal (Phoca vitulina), and 

• Gray seal (Halichoerus grypus). 

General information on these marine 

mammal species can also be found in 

Wursig et al. (2000) and in the NMFS 

Stock Assessment Reports (Waring et 

al., 2010). This latter document is 

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

publications/tm/tm213/. An updated 

summary on several commonly sighted 

marine mammal species distribution 

and abundance in the vicinity of the 

proposed action area is provided below. 

Additional information on those species 

that may be affected by this activity is 

provided in detail in the Federal 

Register published on July 20, 2010 (75 

FR 42071). 

Potential Effects of Noise on Marine 

Mammals 

Underwater noise from the LNG port 

operations is the only likely impact to 

marine mammals in the vicinity of the 

proposed activity area. 

The effects of noise on marine 

mammals are highly variable, and can 

be categorized as follows (based on 

Richardson et al., 1995): (1) The noise 

may be too weak to be heard at the 

location of the animal (i.e., lower than 

the prevailing ambient noise level, the 

hearing threshold of the animal at 

relevant frequencies, or both); (2) the 

noise may be audible but not strong 

enough to elicit any overt behavioral 

response; (3) the noise may elicit 

reactions of variable conspicuousness 

and variable relevance to the well being 

of the marine mammal; these can range 

from temporary alert responses to active 

avoidance reactions such as vacating an 

area at least until the noise event ceases; 

(4) upon repeated exposure, a marine 

mammal may exhibit diminishing 

responsiveness (habituation), or 

disturbance effects may persist; the 

latter is most likely with sounds that are 

highly variable in characteristics, 

infrequent and unpredictable in 

occurrence, and associated with 

situations that a marine mammal 

perceives as a threat; (5) any 

anthropogenic noise that is strong 

enough to be heard has the potential to 

reduce (mask) the ability of a marine 

mammal to hear natural sounds at 

similar frequencies, including calls from 

conspecifics, and underwater 

environmental sounds such as surf 

noise; (6) if mammals remain in an area 

because it is important for feeding, 

breeding or some other biologically 

important purpose even though there is 

chronic exposure to noise, it is possible 

that there could be noise-induced 

physiological stress; this might in turn 

have negative effects on the well-being 

or reproduction of the animals involved; 

and (7) very strong sounds have the 

potential to cause temporary or 

permanent reduction in hearing 

sensitivity. In terrestrial mammals, and 

presumably marine mammals, received 

sound levels must far exceed the 

animal’s hearing threshold for there to 

be any temporary threshold shift (TTS) 

in its hearing ability. For transient 

sounds, the sound level necessary to 

cause TTS is inversely related to the 

duration of the sound. Received sound 

levels must be even higher for there to 

be risk of permanent hearing 

impairment. In addition, intense 

acoustic (or explosive events) may cause 

trauma to tissues associated with organs 

vital for hearing, sound production, 

respiration and other functions. This 

trauma may include minor to severe 

hemorrhage. 

There are three general categories of 

sounds recognized by NMFS: 

Continuous (such as shipping sounds), 

intermittent (such as vibratory pile 

driving sounds), and impulse. No 

impulse noise activities, such as 

blasting or standard pile driving, are 

associated with this project. The noise 

sources of potential concern are 

regasification/offloading (which is a 

continuous sound) and dynamic 

positioning of vessels using thrusters 

(an intermittent sound) from EBRVs 

during docking at the NEG port facility. 

Based on research by Malme et al. 

(1983; 1984), for both continuous and 


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intermittent sound sources, Level B 

harassment is presumed to begin at 

received levels of 120-dB. A detailed 

description of the noise that would 

result from the proposed LNG Port 

operations is provided in the Federal 

Register notice for the final IHA 

authorizing take incidental to the initial 

construction and operations of the NEG 

LNG Port facility and Pipeline Lateral in 

2007 (72 FR 27077; May 14, 2007). 

NEG Port Activities 

Underwater noise generated at the 

NEG Port has the potential to result 

from two distinct actions, including 

closed-loop regasification of LNG and/or 

EBRV maneuvering during coupling and 

decoupling with STL buoys. To evaluate 

the potential for these activities to result 

in underwater noise that could harass 

marine mammals, Excelerate conducted 

field sound survey studies during 

periods of March 21 to 25, 2005 and 

August 6 to 9, 2006 while the EBRV 

Excelsior was both maneuvering and 

moored at the operational Gulf Gateway 

Port located 116 mi (187 km) offshore in 

the Gulf of Mexico (the Gulf) (see 

Appendices B and C of the NEG and 

Algonquin application). EBRV 

maneuvering conditions included the 

use of both stern and bow thrusters 

required for dynamic positioning during 

coupling. These data were used to 

model underwater sound propagation at 

the NEG Port. The pertinent results of 

the field survey are provided as 

underwater sound source pressure 

levels as follows: 

• Sound levels during closed-loop 

regasification ranged from 104 to 110 

decibel linear (dBL). Maximum levels 

during steady state operations were 108 

dBL. 

• Sound levels during coupling 

operations were dominated by the 

periodic use of the bow and stern 

thrusters and ranged from 160 to 170 

dBL. 

Figures 1–1 and 1–2 of the NEG and 

Algonquin’s revised MMPA permit 

application present the net acoustic 

impact of one EBRV operating at the 

NEG Port. Thrusters are operated 

intermittently and only for relatively 

short durations of time. The resulting 

area within the 120 dB isopleth is less 

than 1 km 2 with the linear distance to 

the isopleths extending 430 m (1,411 ft). 

The area within the 180 dB isopleths 

safety zone is very localized and will 

not extend beyond the immediate area 

where EBRV coupling operations are 

occurring. 

The potential impacts to marine 

mammals associated with sound 

propagation from vessel movements, 

anchors, chains and LNG regasification/ 

offloading could be the temporary and 

short-term displacement of seals and 

whales from within the 120-dB zones 

ensonified by these noise sources. 

Animals would be expected to reoccupy the area once the noise ceases. 

Although accidental oil spill/leaks 

from EBRVs or a ship strike could 

potentially occur as a result of the 

specified activity, NMFS considers 

these events unlikely. Regarding ship 

strikes, there are mitigation and 

monitoring measures (see Mitigation 

Measures section below) required by the 

IHA that should further reduce the 

already low probability of a ship strike. 

Regarding the likelihood of spills or 

leaks, the waterway within the 

Massachusetts Bay has few hazards for 

vessels transiting the area compared to 

less navigated waters; an accident that 

might result in a spill or leak is 

unlikely. Additionally, each vessel 

maintains an adequate supply of oil 

spill containment equipment for 

onboard oil spills. The vessel is 

contracted to and drills with a certified 

Oil Spill Response Organization by the 

International Maritime Organization to 

respond in the unlikely event of an oil 

spill that cannot be contained on board 

the vessel. At this time, there has never 

been a spill from an LNG port facility. 

NMFS does not think that take of 

marine mammals is likely to result from 

accidental oil spils, leaks or ship strikes 

as a result of this activity. Therefore, 

these potential impacts are not 

addressed further, and take from these 

impacts will not be authorized. 

Estimates of Take by Harassment 

Although Northeast Gateway stated 

that the ensonified area of 120-dB 

isopleths by EBRV’s decoupling would 

be less than 1 km 2 as measured in the 

Gulf of Mexico in 2005, due to the lack 

of more recent sound source verification 

and the lack of source measurement in 

Massachusetts Bay, NMFS uses a more 

conservative spreading model to 

calculate the 120 dB isopleth received 

sound level. This model was also used 

to establish the 120-dB zone of 

influence (ZOI) for the previous IHAs 

issued to Northeast Gateway. In the 

vicinity of the LNG Port, where the 

water depth is about 80 m (262 ft), the 

120-dB radius is estimated to be 2.56 km 

(1.6 mi) maximum from the sound 

source during dynamic positioning for 

the container ship, making a maximum 

ZOI of 21 km 2 (8.1 mi 2). For a shallow 

water depth (40 m or 131 ft) 

representative of the northern segment 

of the Algonquin Pipeline Lateral, the 

120-dB radius is estimated to be 3.31 km 

(2.06 mi); the associated ZOI is 34 km 2

(13.1 mi 2). 

The basis for Northeast Gateway and 

Algonquin’s ‘‘take’’ estimate is the 

number of marine mammals that would 

be exposed to sound levels in excess of 

120 dB. For the NEG port facility 

operations, the take estimates are 

determined by multiplying the area of 

the EBRV’s ZOI (21 km2) by local 

marine mammal density estimates, 

corrected to account for 50 percent more 

marine mammals that may be 

underwater, and then multiplying by 

the estimated LNG container ship visits 

per year. In the case of data gaps, a 

conservative approach was used to 

ensure the potential number of takes is 

not underestimated, as described next. 

NMFS used data on cetacean 

distribution within Massachusetts Bay, 

such as those published by the National 

Centers for Coastal Ocean Science 

(NCCOS, 2006), to estimate potential 

takes of marine mammals species in the 

vicinity of project area. The NCCOS 

study used cetacean sightings from two 

sources: (1) The North Atlantic Right 

Whale Consortium (NARWC) sightings 

database held at the University of Rhode 

Island (Kenney, 2001); and (2) the 

Manomet Bird Observatory (MBO) 

database, held at NMFS Northeast 

Fisheries Science Center (NEFSC). The 

NARWC data contained survey efforts 

and sightings data from ship and aerial 

surveys and opportunistic sources 

between 1970 and 2005. The main data 

contributors included: Cetacean and 

Turtles Assessment Program (CETAP), 

Canadian Department of Fisheries and 

Oceans, Provincetown Center for 

Coastal Studies (PCCS), International 

Fund for Animal Welfare, NOAA’s 

NEFSC, New England Aquarium, Woods 

Hole Oceanographic Institution, and the 

University of Rhode Island. A total of 

653,725 km (406,293 mi) of survey track 

and 34,589 cetacean observations were 

provisionally selected for the NCCOS 

study in order to minimize bias from 

uneven allocation of survey effort in 

both time and space. The sightings-perunit-effort (SPUE) was calculated for all 

cetacean species by month covering the 

southern Gulf of Maine study area, 

which also includes the project area 

(NCCOS, 2006). 

The MBO’s Cetacean and Seabird 

Assessment Program (CSAP) was 

contracted from 1980 to 1988 by NMFS 

NEFSC to provide an assessment of the 

relative abundance and distribution of 

cetaceans, seabirds, and marine turtles 

in the shelf waters of the northeastern 

United States (MBO, 1987). The CSAP 

program was designed to be completely 

compatible with NMFS NEFSC 

databases so that marine mammal data 

could be compared directly with 

fisheries data throughout the time series 


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during which both types of information 

were gathered. A total of 5,210 km 

(8,383 mi) of survey distance and 636 

cetacean observations from the MBO 

data were included in the NCCOS 

analysis. Combined valid survey effort 

for the NCCOS studies included 567,955 

km (913,840 mi) of survey track for 

small cetaceans (dolphins and 

porpoises) and 658,935 km (1,060,226 

mi) for large cetaceans (whales) in the 

southern Gulf of Maine. The NCCOS 

study then combined these two data sets 

by extracting cetacean sighting records, 

updating database field names to match 

the NARWC database, creating geometry 

to represent survey tracklines and 

applying a set of data selection criteria 

designed to minimize uncertainty and 

bias in the data used. 

Owing to the comprehensiveness and 

total coverage of the NCCOS cetacean 

distribution and abundance study, 

NMFS calculated the estimated take of 

marine mammals based on the most 

recent NCCOS report published in 

December 2006. For a detailed 

description and calculation of the 

cetacean abundance data and sighting 

per unit effort (SPUE), please refer to the 

NCCOS study (NCCOS, 2006). These 

data show that the relative abundance of 

North Atlantic right, fin, humpback, 

minke, and pilot whales, and Atlantic 

white-sided dolphins for all seasons, as 

calculated by SPUE in number of 

animals per square kilometer, is 0.0082, 

0.0097, 0.0265, 0.0059, 0.0407, and 

0.1314 n/km, respectively. 

In calculating the area density of these 

species from these linear density data, 

NMFS used 0.4 km (0.25 mi), which is 

a quarter the distance of the radius for 

visual monitoring (see Monitoring and 

Mitigation section below), as a 

conservative hypothetical strip width 

(W). Thus the area density (D) of these 

species in the project area can be 

obtained by the following formula: 

D = SPUE/2W. 

Based on this calculation method, the 

estimated take numbers per year for 

North Atlantic right, fin, humpback, 

minke, sei, and pilot whales, and 

Atlantic white-sided dolphins by the 

NEG Port facility operations, which is 

an average of 65 visits by LNG container 

ships to the project area per year (or 

approximately 1.25 visits per week), 

operating the vessels’ thrusters for 

dynamic positioning before offloading 

natural gas, corrected for 50 percent 

underwater, are 21, 25, 68, 15, 11, 104, 

and 336, respectively. These numbers 

represent a maximum of 6.08, 1.09, 8.01, 

0.46, 2.78, 0.39, and 0.53 percent of the 

populations for these species, 

respectively. Since it is very likely that 

individual animals could be ‘‘taken’’ by 

harassment multiple times, these 

percentages are the upper boundary of 

the animal population that could be 

affected. Therefore, the actual number of 

individual animals being exposed or 

taken would be far less. There is no 

danger of injury, death, or hearing 

impairment from exposure to these 

noise levels. 

In addition, bottlenose dolphins, 

common dolphins, killer whales, harbor 

porpoises, harbor seals, and gray seals 

could also be taken by Level B 

harassment as a result of deepwater 

LNG port operations. The numbers of 

estimated take of these species are not 

available because they are rare in the 

project area. The population estimates 

of these marine mammal species and 

stock in the west North Atlantic basin 

are 81,588; 120,743; 89,054; 99,340; and 

195,000 for bottlenose dolphins, 

common dolphins, harbor porpoises, 

and harbor seals, respectively (Waring et 

al., 2010). No population estimate is 

available for the North Atlantic stock of 

killer whales and gray seals; however, 

their occurrence within the proposed 

project area is rare. Since the 

Massachusetts Bay represents only a 

small fraction of the west North Atlantic 

basin where these animals occur, and 

these animals do not congregate in the 

vicinity of the project area, NMFS 

believes that only relatively small 

numbers of these marine mammal 

species would be potentially affected by 

the Northeast Gateway LNG deepwater 

project. 

Potential Impact on Habitat 

Approximately 4.8 acres of seafloor 

has been converted from soft substrate 

to artificial hard substrate. The softbottom benthic community may be 

replaced with organisms associated with 

naturally occurring hard substrate, such 

as sponges, hydroids, bryozoans, and 

associated species. The benthic 

community in the up to 43 acres (worst 

case scenario based on severe 100-year 

storm with EBRVs occupying both STL 

buoys) of soft bottom that may be swept 

by the anchor chains while EBRVs are 

docked will have limited opportunity to 

recover, so this area will experience a 

long-term reduction in benthic 

productivity. In addition, disturbance 

from anchor chain movement would 

result in increased turbidity levels in 

the vicinity of the buoys that could 

affect prey species for marine mammals; 

however, as indicated in the Final 

Environmental Impact Statement/ 

Environmental Impact Report (EIS/EIR), 

these impacts are expected to be 

indirect and minor. 

Daily removal of sea water from EBRV 

intakes will reduce the food resources 

available for planktivorous organisms. 

Water usage would be limited to the 

standard requirements of NEG’s normal 

support vessel. As with all vessels 

operating in Massachusetts Bay, sea 

water uptake and discharge is required 

to support engine cooling, typically 

using a once-through system. The rate of 

seawater uptake varies with the ship’s 

horsepower and activity and therefore 

will differ between vessels and activity 

type. For example, the Gateway 

Endeavor is a 90-foot vessel powered 

with a 1,200 horsepower diesel engine 

with a four-pump seawater cooling 

system. This system requires seawater 

intake of about 68 gallons per minute 

(gpm) while idling and up to about 150 

gpm at full power. Use of full power is 

generally required for transit. A 

conservatively high estimate of vessel 

activity for the Gateway Endeavor 

would be operation at idle for 75% of 

the time and full power for 25% of the 

time. During routine activities this 

would equate to approximately 42,480 

gallons of seawater per 8-hour work day. 

When compared to the engine cooling 

requirements of an EBRV over an 8-hour 

period (approximately 17.62 million 

gallons), the Gateway Endeavor uses 

about 0.2% of the EBRV requirement. 

To put this water use into context, the 

Project’s final EIS/EIR concluded that 

the impacts to fish populations and to 

marine mammals that feed on fish or 

plankton resulting from water use by an 

EBRV during port operations 

(approximately 39,780,000 gallons over 

each 8-day regasification period) would 

be minor. Water use by support vessels 

during routine port activities would not 

materially add to the overall impacts 

evaluated in the final EIS/EIR. 

Additionally, discharges associated with 

the Gateway Endeavor and/or other 

support/maintenance vessels that are 79 

feet or greater in length are now 

regulated under the Clean Water Act 

(CWA) and must receive and comply 

with the United States Environmental 

Protection Agency (EPA) Vessel General 

Permit (VGP). The permit incorporates 

the USCG mandatory ballast water 

management and exchange standards, 

and provides technology- and water 

quality-based effluent limits for other 

types of discharges, including deck 

runoff, bilge water, graywater, and other 

pollutants. It also establishes specific 

corrective actions, inspection and 

monitoring requirements, and 

recordkeeping and reporting 

requirements for each vessel. 

Massachusetts Bay circulation will not 

be altered, so plankton will be 


hsrobinson on DSK69SOYB1PROD with NOTICES
53676 Federal Register / Vol. 75, No. 169 / Wednesday, September 1, 2010 / Notices 

continuously transported into the NEG 

Port area. The removal of these species 

is minor and unlikely to affect in a 

measurable way the food sources 

available to marine mammals. 

Monitoring and Mitigation Measures 

During the construction and 

operations of the NEG LNG Port facility 

in prior years, Northeast Gateway 

complied with IHA requirements and 

submitted 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 Northeast 

Gateway’s activities were observed by 

the MMOs. 

In addition, Northeast Gateway was 

required to maintain an array of Marine 

Autonomous Recording Units (MARUs) 

to monitor calling North Atlantic right 

whales (humpback, fin, and minke 

whale calls were also able to be 

detected). The Bioacoustics Research 

Program (BRP) of Cornell University 

analyzed the data and submitted a 

report covering the operations of the 

project between January and December 

2008. During the operations period, 

right whales were acoustically detected 

on only 1,982 of the 136,776 total hours 

sampled (1.45% of recorded hours). 

Right whales were detected hourly 

throughout the year, but were more 

commonly detected in the late February 

through June period. 

The Cornell’s BRP performed acoustic 

analyses on background noise of all 

recordings from the MARUs. A 

comparison of the noise metrics derived 

from these analyses before, during, and 

after operations activities revealed 

increases in noise level during 

operations. A comparison of noise levels 

from areas including and near areas of 

known operations activities with levels 

from other areas showed increased noise 

levels for areas that included or were 

near the known operations activities. 

These increases in noise levels were 

evident for each of the three frequency 

bands utilized by fin, humpback, and 

right whales, with the greatest increase 

in the right whale band and the next 

highest increase in the humpback whale 

band. However, the BRP report did not 

provide an interpretation of this overall 

increase in noise conditions throughout 

the period when operations activities 

occurred. Nevertheless, NMFS does not 

consider that the sporadic exposure of 

marine mammals to continuous sound 

received levels above 120 dB by a single 

EBRV would have acute or chronic 

significant affects on these animals in 

the vicinity of the LNG port facility. 

These MARUs will remain deployed 

during the time frame of this IHA in 

order to obtain information during the 

operational phase of the Port facility 

(see below). 

For the proposed NEG LNG port 

operations, NMFS proposes the 

following monitoring and mitigation 

measures. 

Marine Mammal Observers 

For activities related to the NEG LNG 

port operations, all individuals onboard 

the EBRVs responsible for the 

navigation and lookout duties on the 

vessel must receive training prior to 

assuming navigation and lookout duties, 

a component of which will be training 

on marine mammal sighting/reporting 

and vessel strike avoidance measures. 

Crew training of EBRV personnel will 

stress individual responsibility for 

marine mammal awareness and 

reporting. 

If a marine mammal is sighted by a 

crew member, an immediate notification 

will be made to the Person-in-Charge on 

board the vessel and the Northeast Port 

Manager, who will ensure that the 

required vessel strike avoidance 

measures and reporting procedures are 

followed. 

Vessel Strike Avoidance 

(1) All EBRVs approaching or 

departing the port will comply with the 

Mandatory Ship Reporting (MSR) 

system to keep apprised of right whale 

sightings in the vicinity. Vessel 

operators will also receive active 

detections from an existing passive 

acoustic array prior to and during transit 

through the northern leg of the Boston 

Traffic Separation Scheme (TSS) where 

the buoys are installed. 

(2) In response to active right whale 

sightings (detected acoustically or 

reported through other means such as 

the MSR or Sighting Advisory System 

(SAS)), and taking into account safety 

and weather conditions, EBRVs will 

take appropriate actions to minimize the 

risk of striking whales, including 

reducing speed to 10 knots or less and 

alerting personnel responsible for 

navigation and lookout duties to 

concentrate their efforts. 

(3) EBRVs will maintain speeds of 12 

knots or less while in the TSS until 

reaching the vicinity of the buoys 

(except during the seasons and areas 

defined below, when speed will be 

limited to 10 knots or less). At 1.86 mi 

(3 km) from the NEG port, speed will be 

reduced to 3 knots, and to less than 1 

knot at 1,640 ft (500 m) from the buoy. 

(4) EBRVs will reduce transit speed to 

10 knots or less over ground from March 

1–April 30 in all waters bounded by 

straight lines connecting the following 

points in the order stated below. This 

area is known as the Off Race Point 

Seasonal Management Area (SMA) and 

tracks NMFS regulations at 50 CFR 

224.105: 

42°30′00.0′′ N—069°45′00.0′′ W; 

thence to 42°30′00.0′′ N—070°30′00.0′′ 

W; thence to 42°12′00.0′′ N— 

070°30′00.0′′ W; thence to 42°12′00.0′′ 

N—070°12′00.0′′ W; thence to 

42°04′56.5′′ N—070°12′00.0′′ W; thence 

along charted mean high water line and 

inshore limits of COLREGS limit to a 

latitude of 41°40′00.0′′ N; thence due 

east to 41°41′00.0′′ N—069°45′00.0′′ W; 

thence back to starting point. 

(5) EBRVs will reduce transit speed to 

10 knots or less over ground from April 

1–July 31 in all waters bounded by 

straight lines connecting the following 

points in the order stated below. This 

area is also known as the Great South 

Channel SMA and tracks NMFS 

regulations at 50 CFR 224.105: 

42°30′00.0′′ N—69°45′00.0′′ W; 

41°40′00.0′′ N—69°45′00.0′′ W; 

41°00′00.0′′ N—69°05′00.0′′ W; 

42°09′00.0′′ N—67°08′24.0′′ W; 

42°30′00.0′′ N—67°27′00.0′′ W; and 

42°30′00.0′′ N—69°45′00.0′′ W. 

(6) LNG Regasification Vessels 

(LNGRVs) are not expected to transit 

Cape Cod Bay. However, in the event 

transit through Cape Cod Bay is 

required, LNGRVs will reduce transit 

speed to 10 knots or less over ground 

from January 1–May 15 in all waters in 

Cape Cod Bay, extending to all 

shorelines of Cape Cod Bay, with a 

northern boundary of 42°12′00.0′′ N 

latitude. 

(7) A vessel may operate at a speed 

necessary to maintain safe maneuvering 

speed instead of the required ten knots 

only if justified because the vessel is in 

an area where oceanographic, 

hydrographic and/or meteorological 

conditions severely restrict the 

maneuverability of the vessel and the 

need to operate at such speed is 

confirmed by the pilot on board or, 

when a vessel is not carrying a pilot, the 

master of the vessel. If a deviation from 

the ten-knot speed limit is necessary, 

the reasons for the deviation, the speed 

at which the vessel is operated, the 

latitude and longitude of the area, and 

the time and duration of such deviation 

shall be entered into the logbook of the 

vessel. The master of the vessel shall 


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Federal Register / Vol. 75, No. 169 / Wednesday, September 1, 2010 / Notices 53677 

attest to the accuracy of the logbook 

entry by signing and dating it. 

Research Passive Acoustic Monitoring 

(PAM) Program 

Northeast Gateway shall monitor the 

noise environment in Massachusetts 

Bay in the vicinity of the NEG Port 

using an array of 19 Marine 

Autonomous Recording Units (MARUs) 

that were deployed initially in April 

2007 to collect data during the 

preconstruction and active construction 

phases of the NEG Port and Algonquin 

Pipeline Lateral. A description of the 

MARUs can be found in Appendix A of 

the NEG and Algonquin application. 

These 19 MARUs will remain in the 

same configuration during full operation 

of the NEG Port. The MARUs collect 

archival noise data and are not designed 

to provide real-time or near-real-time 

information about vocalizing whales. 

Rather, the acoustic data collected by 

the MARUs shall be analyzed to 

document the seasonal occurrences and 

overall distributions of whales 

(primarily fin, humpback, and right 

whales) within approximately 10 

nautical miles of the NEG Port, and 

shall measure and document the noise 

‘‘budget’’ of Massachusetts Bay so as to 

eventually assist in determining 

whether an overall increase in noise in 

the Bay associated with the NEG Port 

might be having a potentially negative 

impact on marine mammals. The overall 

intent of this system is to provide better 

information for both regulators and the 

general public regarding the acoustic 

footprint associated with long-term 

operation of the NEG Port in 

Massachusetts Bay, and the distribution 

of vocalizing marine mammals during 

NEG Port activities. In addition to the 19 

MARUs, Northeast Gateway will deploy 

10 Auto-Detection Buoys (Abs) within 

the TSS for the operational life of the 

NEG Port. A description of the ABs is 

provided in Appendix A of NEG and 

Algonquin’s application. The purpose of 

the ABs shall be to detect a calling 

North Atlantic right whale an average of 

5 nm (9.26 km) from each AB (detection 

ranges will vary based on ambient 

underwater conditions). The AB system 

shall be the primary detection 

mechanism that alerts the EBRV 

captains to the occurrence of right 

whales, heightens EBRV awareness, and 

triggers necessary mitigation actions as 

described in the Marine Mammal 

Detection, Monitoring, and Response 

Plan included as Appendix A of the 

NEG application. 

Northeast Gateway has engaged 

representatives from Cornell 

University’s Bioacoustics Research 

Program (BRP) and the Woods Hole 

Oceanographic Institution (WHOI) as 

the consultants for developing, 

implementing, collecting, and analyzing 

the acoustic data; reporting; and 

maintaining the acoustic monitoring 

system. 

Further information detailing the 

deployment and operation of arrays of 

19 passive seafloor acoustic recording 

units (MARUs) centered on the terminal 

site and the 10 ABs that are to be placed 

at approximately 5-m (8.0-km) intervals 

within the recently modified TSS can be 

found in the Marine Mammal Detection, 

Monitoring, and Response Plan 

included as Appendix A of the NEG and 

Algonquin application. 

Reporting 

The Project area is within the 

Mandatory Ship Reporting Area 

(MSRA), so all vessels entering and 

exiting the MSRA will report their 

activities to WHALESNORTH. During 

all phases of the Northeast Gateway 

LNG Port operations, sightings of any 

injured or dead marine mammals will 

be reported immediately to the USCG or 

NMFS, regardless of whether the injury 

or death is caused by project activities. 

An annual report on marine mammal 

monitoring and mitigation will be 

submitted to NMFS Office of Protected 

Resources and NMFS Northeast 

Regional Office within 90 days after the 

expiration of an LOA. The annual report 

shall include data collected for each 

distinct marine mammal species 

observed in the project area in the 

Massachusetts Bay during the period of 

LNG facility operation. Description of 

marine mammal behavior, overall 

numbers of individuals observed, 

frequency of observation, and any 

behavioral changes and the context of 

the changes relative to operation 

activities shall also be included in the 

annual report. 

Negligible Impact and Small Numbers 

Analysis and 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 

Northeast Gateway’s proposed port 

operation and maintenance activities, 

and none are authorized by NMFS. 

Additionally, animals in the area are not 

anticipated to incur any hearing 

impairment (i.e., TTS or PTS), as the 

modeling of source levels indicates 

none of the source received levels 

exceeds 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 activities occur in other 

seasons, the likelihood of sei whales 

being affected is quite low. 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. In 

addition, Northeast Gateway EBRVs are 

expected to make 65 port calls 

throughout the year, with thruster use 

needed for only a few hours. Therefore, 

Northeast Gateway will not be creating 

increased sound levels in the marine 

environment for prolonged periods of 

time. 

Of the 12 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. 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 Cape Cod Bay 


hsrobinson on DSK69SOYB1PROD with NOTICES
53678 Federal Register / Vol. 75, No. 169 / Wednesday, September 1, 2010 / Notices 

and Great South Channel. 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 Stock 

Assessment Reports were provided 

earlier in this document. 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 (8.01 

percent for humpback whales and 6.08 

percent for North Atlantic right whales 

and no more than 2.78 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 

mitigation and monitoring measures, 

NMFS finds that operation, including 

repair and maintenance activities, of the 

Northeast Gateway LNG Port will result 

in the incidental take of small numbers 

of marine mammals, by Level B 

harassment only, and that the total 

taking from Northeast Gateway’s 

proposed activities will have a 

negligible impact on the affected species 

or stocks. 

Impact on Availability of Affected 

Species or Stock for Taking for 

Subsistence Uses 

There are no relevant subsistence uses 

of marine mammals implicated by this 

action. 

Endangered Species Act 

On February 5, 2007, NMFS 

concluded consultation with MARAD 

and the USCG, under section 7 of the 

Endangered Species Act (ESA), on the 

proposed construction and operation of 

the Northeast Gateway LNG facility and 

issued a biological opinion. The finding 

of that consultation was that the 

construction and operation of the 

Northeast Gateway LNG terminal may 

adversely affect, but is not likely to 

jeopardize, the continued existence of 

northern right, humpback, and fin 

whales, and is not likely to adversely 

affect sperm, sei, or blue whales and 

Kemp’s ridley, loggerhead, green or 

leatherback sea turtles. An incidental 

take statement (ITS) was issued 

following NMFS’ issuance of the IHA. 

On November 15, 2007, Northeast 

Gateway and Algonquin submitted a 

letter to NMFS requesting an extension 

for the LNG Port construction into 

December 2007. Upon reviewing 

Northeast Gateway’s weekly marine 

mammal monitoring reports submitted 

under the previous IHA, NMFS 

recognized that the potential take of 

some marine mammals resulting from 

the LNG Port and Pipeline Lateral by 

Level B behavioral harassment likely 

had exceeded the original take 

estimates. Therefore, NMFS Northeast 

Region (NER) reinitiated consultation 

with MARAD and USCG on the 

construction and operation of the 

Northeast Gateway LNG facility. On 

November 30, 2007, NMFS NER issued 

a revised biological opinion, reflecting 

the revised construction time period 

and including a revised ITS. This 

revised biological opinion concluded 

that the construction and operation of 

the Northeast Gateway LNG terminal 

may adversely affect, but is not likely to 

jeopardize, the continued existence of 

northern right, humpback, and fin 

whales, and is not likely to adversely 

affect sperm, sei, or blue whales. 

National Environmental Policy Act 

MARAD and the USCG released a 

Final EIS/EIR for the proposed 

Northeast Gateway Port and Pipeline 

Lateral. A notice of availability was 

published by MARAD on October 26, 

2006 (71 FR 62657). The Final EIS/EIR 

provides detailed information on the 

proposed project facilities, construction 

methods and analysis of potential 

impacts on marine mammals. 

NMFS was a cooperating agency (as 

defined by the Council on 

Environmental Quality (40 CFR 1501.6)) 

in the preparation of the Draft and Final 

EISs. NMFS has reviewed the Final EIS 

and has adopted it. Therefore, the 

preparation of another EIS or EA is not 

warranted. 

Determinations 

NMFS has determined that the 

operation and maintenance activities of 

the Northeast Gateway Port facility may 

result, at worst, in a temporary 

modification in behavior of small 

numbers of certain species of marine 

mammals that may be in close 

proximity to the Northeast Gateway 

LNG facility. These activities are 

expected to result in some local shortterm displacement only of the affected 

species or stocks of marine mammals. 

Taking these two factors together, NMFS 

concludes that the activity will have no 

more than a negligible impact on the 

affected species or stocks, as there will 

be no expected effects on annual rates 

of survival and reproduction of these 

species or stocks. This determination is 

further supported by the required 

mitigation, monitoring, and reporting 

measures described in this document. 

As a result of implementation of the 

described mitigation and monitoring 

measures, no take by injury or death 

would be requested, anticipated or 

authorized, and the potential for 

temporary or permanent hearing 

impairment is very unlikely due to the 

relatively low noise levels (and 

consequently small zone of impact 

relative to the size of Massachusetts 

Bay). 

While the number of marine 

mammals that may be harassed will 

depend on the distribution and 

abundance of marine mammals in the 

vicinity of the LNG Port facility, the 

estimated numbers of marine mammals 

to be harassed are small relative to the 

affected species or stock sizes. 

Authorization 

NMFS has issued an IHA to Northeast 

Gateway for conducting LNG Port 

facility operations in Massachusetts 

Bay, provided the previously mentioned 

mitigation, monitoring, and reporting 

requirements are incorporated. 

Dated: August 27, 2010. 

James H. Lecky, 

Director,Office of Protected 

Resources,National Marine Fisheries Service. 

[FR Doc. 2010–21822 Filed 8–31–10; 8:45 am] 

BILLING CODE 3510–22–P 

CONSUMER PRODUCT SAFETY 

COMMISSION 

Agency Information Collection 

Activities; Submission for Office of 

Management and Budget Review; 

Comment Request; Safety Standard for 

Multi-Purpose Lighters 

AGENCY: Consumer Product Safety 

Commission. 

ACTION: Notice. 

SUMMARY: The Consumer Product Safety 

Commission (‘‘CPSC’’ or ‘‘Commission’’) 

is announcing that a proposed 

collection of information has been 

submitted to the Office of Management 

and Budget (‘‘OMB’’) for review and 

clearance under the Paperwork 

Reduction Act of 1995 (‘‘PRA’’). 

DATES: Fax written comments on the 

collection of information by October 1, 

2010. 

ADDRESSES: To ensure that comments on 

the information collection are received, 

OMB recommends that written 

comments be faxed to the Office of 

Information and Regulatory Affairs, 

OMB, Attn: CPSC Desk Officer, Fax: 


hsrobinson on DSK69SOYB1PROD with NOTICES