[Federal Register Volume 75, Number 169 (Wednesday, September 1, 2010)]
[Notices]
[Pages 53672-53678]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-21822]


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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.

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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 Bridge<SUP>TM</SUP> 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 East-West 
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 <SUP>TM</SUP> (STLJ <SUP>TM</SUP>) 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 <SUP>TM</SUP> (EBRVs <SUP>TM</SUP>), each 
capable of transporting approximately 2.9 billion ft\3\ (82 million m 
\3\) of natural gas condensed to 4.9 million feet\3\ (138,000 m\3\) of 
LNG. Northeast Gateway would also be adding vessels to its fleet that 
will have a cargo capacity of approximately 151,000 cubic m \3\. The

[[Page 53673]]

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 single-point mooring system 
for the vessels and the delivery conduit for natural gas. Each of the 
STL buoys is secured to the seafloor using a series of suction anchors 
and a combination of chain/cable anchor lines.
    The proposed activity includes Northeast Gateway LNG Port 
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:
    <bullet> North Atlantic right whale (Eubalaena glacialis),
    <bullet> Humpback whale (Megaptera novaeangliae),
    <bullet> Fin whale (Balaenoptera physalus),
    <bullet> Minke whale (B. acutorostrata),
    <bullet> Long-finned pilot whale (Globicephala melas),
    <bullet> Atlantic white-sided dolphin (Lagenorhynchus acutus),
    <bullet> Bottlenose dolphin (Tursiops truncatus),
    <bullet> Common dolphin (Delphinus delphis),
    <bullet> Killer whale (Orcinus orca),
    <bullet> Harbor porpoise (Phocoena phocoena),
    <bullet> Harbor seal (Phoca vitulina), and
    <bullet> 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

[[Page 53674]]

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:
    <bullet> Sound levels during closed-loop regasification ranged from 
104 to 110 decibel linear (dBL). Maximum levels during steady state 
operations were 108 dBL.
    <bullet> Sound levels during coupling operations were dominated by 
the periodic use of the bow and stern thrusters and ranged from 160 to 
170 dBL.
    Figures 1-1 and 1-2 of the NEG and Algonquin's revised MMPA permit 
application present the net acoustic impact of one 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 re-
occupy 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 
km\2\) by local marine mammal density estimates, corrected to account 
for 50 percent more marine mammals that may be underwater, and then 
multiplying by the estimated LNG container ship visits per year. 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-per-unit-effort (SPUE) was calculated for all 
cetacean species by month covering the southern Gulf of Maine study 
area, which also includes the project area (NCCOS, 2006).
    The MBO's Cetacean and Seabird Assessment Program (CSAP) was 
contracted from 1980 to 1988 by NMFS NEFSC to provide an assessment of 
the relative abundance and distribution of cetaceans, seabirds, and 
marine turtles in the shelf waters of the northeastern United States 
(MBO, 1987). The CSAP program was designed to be completely compatible 
with NMFS NEFSC databases so that marine mammal data could be compared 
directly with fisheries data throughout the time series

[[Page 53675]]

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 soft-bottom 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

[[Page 53676]]

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[deg]30[min]00.0[sec] N--069[deg]45[min]00.0[sec] W; thence to 
42[deg]30[min]00.0[sec] N--070[deg]30[min]00.0[sec] W; thence to 
42[deg]12[min]00.0[sec] N--070[deg]30[min]00.0[sec] W; thence to 
42[deg]12[min]00.0[sec] N--070[deg]12[min]00.0[sec] W; thence to 
42[deg]04[min]56.5[sec] N--070[deg]12[min]00.0[sec] W; thence along 
charted mean high water line and inshore limits of COLREGS limit to a 
latitude of 41[deg]40[min]00.0[sec] N; thence due east to 
41[deg]41[min]00.0[sec] N--069[deg]45[min]00.0[sec] 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[deg]30[min]00.0[sec] N--69[deg]45[min]00.0[sec] W; 
41[deg]40[min]00.0[sec] N--69[deg]45[min]00.0[sec] W; 
41[deg]00[min]00.0[sec] N--69[deg]05[min]00.0[sec] W; 
42[deg]09[min]00.0[sec] N--67[deg]08[min]24.0[sec] W; 
42[deg]30[min]00.0[sec] N--67[deg]27[min]00.0[sec] W; and 
42[deg]30[min]00.0[sec] N--69[deg]45[min]00.0[sec] 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[deg]12[min]00.0[sec] 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

[[Page 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

[[Page 53678]]

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 short-term 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