Federal Register, Volume 76 Issue 140 (Thursday, July 21, 2011)

[Federal Register Volume 76, Number 140 (Thursday, July 21, 2011)]
[Proposed Rules]
[Pages 43639-43648]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18320]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

RIN 0648-XA480

Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Operation of the Northeast Gateway
Liquefied Natural Gas Port Facility in Massachusetts Bay

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

ACTION: Proposed incidental harassment authorization; request for
comments.

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SUMMARY: NMFS has received an application from Tetra Tech EC, Inc., on
behalf of the Northeast Gateway[supreg] Energy Bridge ^TM
L.P. (Northeast Gateway or NEG), for authorization to take marine
mammals, by harassment, incidental to operating a liquefied natural gas
(LNG) port facility by NEG, in Massachusetts Bay for the period of
August 2011 through August 2012. Pursuant to the Marine Mammal
Protection Act (MMPA), NMFS is requesting comments on its proposal to
issue an authorization to Northeast Gateway to incidentally take, by
harassment, small numbers of marine mammals for a period of 1 year.

DATES: Comments and information must be received no later than August
22, 2011.

ADDRESSES: Comments should be addressed 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. The mailbox address for providing e-mail
comments on this action is ITP.Guan@noaa.gov. Comments sent via e-mail,
including all attachments, must not exceed a 10-megabyte file size. A
copy of the application and a list of references used in this document
may be obtained by writing to this address, by telephoning the contact
listed here (see FOR FURTHER INFORMATION CONTACT) and is also available
at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
Instructions: All comments received are a part of the public record
and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm without change. All Personal Identifying Information
(for example, name, address, etc.) voluntarily submitted by the
commenter may be publicly accessible. Do not submit Confidential
Business Information or otherwise sensitive or protected information.
The Maritime Administration (MARAD) and U.S. Coast Guard (USCG)
Final Environmental Impact Statement (Final EIS) on the Northeast
Gateway Energy Bridge LNG Deepwater Port license application is
available for viewing at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

Sections 101(a)(5)(A)-(D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce (Secretary) to allow, upon request,
the incidental, but not intentional taking of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) within a specified geographical region if certain findings are
made and regulations are issued or, if the taking is limited to
harassment, a notice of a proposed authorization is provided to the
public for review.
Authorization shall be granted if NMFS finds that the taking will
have a negligible impact on the species or stock(s), will not have an
unmitigable adverse impact on the availability of the species or
stock(s) for subsistence uses (where relevant), and if the permissible
methods of taking and requirements pertaining to the mitigation,
monitoring and reporting of such taking are set forth.
NMFS has defined ``negligible impact'' in 50 CFR 216.103 as:

an impact resulting from the specified activity that cannot be
reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.

Section 101(a)(5)(D) of the MMPA established an expedited process
by which citizens of the U.S. can apply for an authorization to
incidentally take small numbers of marine mammals by harassment. Except
with respect to certain activities not pertinent here, the MMPA defines
``harassment'' as:

any act of pursuit, torment, or annoyance which (i) has the
potential to injure a marine mammal or marine mammal stock in the
wild [Level A harassment]; or (ii) has the potential to disturb a
marine mammal or marine mammal stock in the wild by causing
disruption of behavioral patterns, including, but not limited to,
migration, breathing, nursing, breeding, feeding, or sheltering
[Level B harassment].

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

Summary of Request

On April 8, 2011, NMFS received an application from Excelerate
Energy, L.P. (Excelerate) and Tetra Tech EC, Inc., on behalf of
Northeast Gateway for an authorization to take 13 species of marine
mammals by Level B harassment incidental to operations of an LNG port
facility in Massachusetts Bay. They are: North Atlantic right whale,
humpback whale, fin whale, minke whale, long-finned pilot whale,
Atlantic white-sided dolphin, bottlenose dolphin, common dolphin,
killer whale, Risso's dolphin, harbor porpoise, harbor seal, and gray
seal. Since LNG Port operation activities have the potential to take
marine mammals, a marine mammal take authorization under the MMPA is
warranted. On May 7, 2007, NMFS issued an IHA to Northeast Gateway and
Algonquin Gas Transmission, L.L.C. (Algonquin) to allow for the
incidental harassment of small numbers of marine mammals resulting from
the construction and operation of the NEG Port and the Algonquin
Pipeline Lateral (72 FR 27077; May 14, 2007). Subsequently, NMFS issued
three one-year IHAs for the take of marine mammals incidental to the
operation of the NEG Port activity pursuant to section 101(a)(5)(D) of
the MMPA (73 FR 29485; May 21, 2008; 74 FR 45613; September 3, 2009,
and 75 FR 53672; September 1, 2010). The current IHA expires on August
30, 2011. Therefore, the company is seeking a new IHA, because it is
believed that marine mammals could be affected by noise generated by
operating the dynamic positioning system during the docking of LNG
vessels at the NEG Port.

[[Page 43640]]

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 the Algonquin
Pipeline Lateral (Pipeline Lateral). The Pipeline Lateral consists of a
16.1-mile (25.8-kilometer) long, 24-inch (61-centimeter) outside
diameter natural gas pipeline which interconnects the Port to an
offshore natural gas pipeline known as the HubLine.
The Northeast Gateway Port consists of two subsea Submerged Turret
Loading^TM (STL) buoys, each with a flexible riser assembly
and a manifold connecting the riser assembly, via a steel Flowline, to
the subsea Pipeline Lateral. Northeast Gateway utilizes vessels from
its current fleet of specially designed Energy Bridge^TM
Regasification Vessels (EBRVs), each capable of transporting
approximately 2.9 billion ft\3\ (82 million m\3\) of natural gas
condensed to 4.9 million ft\3\ (138,000 m\3\) of LNG. Northeast Gateway
has recently added two vessels to its fleet that have a cargo capacity
of approximately 151,000 m\3\ (5.3 million ft\3\). The mooring system
installed at the Northeast Gateway Port is designed to handle each
class of vessel. 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 of operation of the Northeast Gateway LNG
Port is described next.

NEG Port Operations

During NEG Port operations, EBRVs servicing the Northeast Gateway
Port will utilize the newly configured and International Maritime
Organization (IMO)-approved Boston Traffic Separation Scheme (TSS) on
their approach to and departure from the Northeast Gateway Port at the
earliest practicable point of transit. EBRVs will maintain speeds of 12
knots or less while in the TSS, unless transiting the Off Race Point
Seasonal Management Area (SMA) between the dates of March 1 and April
30, or the Great South Channel SMA between the dates of April 1 and
July 31, or when there have been active right whale sightings, active
acoustic detections, or both, within 24 hours of each scheduled data
review period, in the vicinity of the transiting EBRV in the TSS or at
the NEG Port whereby the vessels must slow their speeds to 10 knots or
less. Appendix A of the IHA application contains the Marine Mammal
Detection, Monitoring, and Response Plan for Operation of the Northeast
Gateway Energy Bridge Deepwater Port and Algonquin Pipeline Lateral,
which describes in detail the measures required for EBRVs transiting in
the TSS or within the NEG Port area.
As an EBRV makes its final approach to the Northeast Gateway Port,
vessel speed will gradually be reduced to 3 knots when the vessel is
within 1.86 mi (3 km) out of the Northeast Gateway Port to less than 1
knot at a distance of 1,640 ft (500 m) from the Northeast Gateway Port.
When an EBRV arrives at the Northeast Gateway Port, it would retrieve
one of the two permanently anchored submerged STL buoys and make final
connection to the buoy through a series of engine and bow thruster
actions. The EBRV would require the use of thrusters for dynamic
positioning during docking procedure. Typically, the docking procedure
is completed over a 10- to 30-minute period, with the thrusters
activated as necessary for short periods of time in bursts, not a
continuous sound source. Once connected to the buoy, the EBRV will
begin vaporizing the LNG into its natural gas state using the onboard
regasification system. As the LNG is regasified, natural gas will be
transferred at pipeline pressures off the EBRV through the STL buoy and
flexible riser via a steel flowline leading to the connecting Pipeline
Lateral. When the LNG vessel is on the buoy, the vessel would be
allowed to ``weathervane'' by wind and currents on the single-point
mooring system; therefore, thrusters will not be used to maintain a
stationary position.
It is estimated that the NEG Port could receive approximately 65
cargo deliveries a year. During this time period, thrusters would be
engaged in use for docking at the NEG Port approximately 10 to 30
minutes for each vessel arrival and departure.
Detailed information on the operation activities can be found in
the MARAD/USCG Final EIS on the Northeast Gateway Project (see
ADDRESSES for availability). Detailed information on the LNG facility's
operation and noise generated from operations was also published in the
Federal Register for the proposed IHA for Northeast Gateway's LNG Port
construction and operations on March 13, 2007 (72 FR 11328).

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),
Risso's dolphin (Grampus griseus),
harbor porpoise (Phocoena phocoena),
harbor seal (Phoca vitulina), and
gray seal (Halichoerus grypus).
Information on those species that may be affected by this activity
is discussed in detail in the USCG Final EIS on the Northeast Gateway
LNG proposal. Please refer to that document for more information on
these species and potential impacts from construction and operation of
this LNG facility. In addition, general information on these marine
mammal species can also be found in W[uuml]rsig et al. (2000) and in
the NMFS Stock Assessment Reports (Waring et al., 2011). This latter
document is available at: http://www.nefsc.noaa.gov/publications/tm/tm219/. An updated summary on several commonly sighted marine mammal
species distribution and abundance in the vicinity of the proposed
action area is provided below.

Humpback Whale

The highest abundance for humpback whales is distributed primarily
along a relatively narrow corridor following the 100-m (328 ft) isobath
across the southern Gulf of Maine from the northwestern slope of
Georges Bank, south to the Great South Channel, and northward alongside
Cape Cod to Stellwagen Bank and Jeffreys Ledge. The relative abundance
of whales increases in the spring with the highest occurrence along the
slope waters (between the 40- and 140-m, or 131- and 459-ft, isobaths)
off Cape Cod and Davis Bank, Stellwagen Basin and Tillies Basin and
between the 50- and 200-m (164- and 656-ft) isobaths along the inner
slope of Georges Bank. High abundance is also estimated for the waters
around Platts Bank. In the

[[Page 43641]]

summer months, abundance increases markedly over the shallow waters
(<50 m, or <164 ft) of Stellwagen Bank, the waters (100--200 m, or
328--656 ft) between Platts Bank and Jeffreys Ledge, the steep slopes
(between the 30- and 160-m isobaths) of Phelps and Davis Bank north of
the Great South Channel towards Cape Cod, and between the 50- and 100-m
(164- and 328-ft) isobath for almost the entire length of the steeply
sloping northern edge of Georges Bank. This general distribution
pattern persists in all seasons except winter, when humpbacks remain at
high abundance in only a few locations including Porpoise and Neddick
Basins adjacent to Jeffreys Ledge, northern Stellwagen Bank and Tillies
Basin, and the Great South Channel. The best estimate of abundance for
Gulf of Maine, formerly western North Atlantic, humpback whales is 847
animals (Waring et al., 2009). Current data suggest that the Gulf of
Maine humpback whale stock is steadily increasing in size, which is
consistent with an estimated average trend of 3.1 percent in the North
Atlantic population overall for the period 1979-1993 (Stevick et al.,
2003, cited in Waring et al., 2009).

Fin Whale

Spatial patterns of habitat utilization by fin whales are very
similar to those of humpback whales. Spring and summer high-use areas
follow the 100-m (328 ft) isobath along the northern edge of Georges
Bank (between the 50- and 200-m (164- and 656-ft) isobaths), and
northward from the Great South Channel (between the 50- and 160-m, or
164- and 525-ft, isobaths). Waters around Cashes Ledge, Platts Bank,
and Jeffreys Ledge are all high-use areas in the summer months.
Stellwagen Bank is a high-use area for fin whales in all seasons, with
highest abundance occurring over the southern Stellwagen Bank in the
summer months. In fact, the southern portion of the Stellwagen Bank
National Marine Sanctuary (SBNMS) is used more frequently than the
northern portion in all months except winter, when high abundance is
recorded over the northern tip of Stellwagen Bank. In addition to
Stellwagen Bank, high abundance in winter is estimated for Jeffreys
Ledge and the adjacent Porpoise Basin (100- to 160-m, 328- to 656-ft,
isobaths), as well as Georges Basin and northern Georges Bank. The best
estimate of abundance for the western North Atlantic stock of fin
whales is 2,269 (Waring et al., 2009). Currently, there are
insufficient data to determine population trends for this species.

Minke Whale

Like other piscivorous baleen whales, highest abundance for minke
whale is strongly associated with regions between the 50- and 100-m
(164- and 328-ft) isobaths, but with a slightly stronger preference for
the shallower waters along the slopes of Davis Bank, Phelps Bank, Great
South Channel and Georges Shoals on Georges Bank. Minke whales are
sighted in the SBNMS in all seasons, with highest abundance estimated
for the shallow waters (approximately 40 m, or 131 ft) over southern
Stellwagen Bank in the summer and fall months. Platts Bank, Cashes
Ledge, Jeffreys Ledge, and the adjacent basins (Neddick, Porpoise and
Scantium) also support high relative abundance. Very low densities of
minke whales remain throughout most of the southern Gulf of Maine in
winter. The best estimate of abundance for the Canadian East Coast
stock, which occurs from the western half of the Davis Strait to the
Gulf of Mexico, of minke whales is 3,312 animals (Waring et al., 2009).
Currently, there are insufficient data to determine population trends
for this species.

North Atlantic Right Whale

North Atlantic right whales are generally distributed widely across
the southern Gulf of Maine in spring with highest abundance located
over the deeper waters (100- to 160-m, or 328- to 525-ft, isobaths) on
the northern edge of the Great South Channel and deep waters (100 B 300
m, 328-984 ft) parallel to the 100-m (328-ft) isobath of northern
Georges Bank and Georges Basin. High abundance is also found in the
shallowest waters (< 30 m, or <98 ft) of Cape Cod Bay, over Platts Bank
and around Cashes Ledge. Lower relative abundance is estimated over
deep-water basins including Wilkinson Basin, Rodgers Basin and Franklin
Basin. In the summer months, right whales move almost entirely away
from the coast to deep waters over basins in the central Gulf of Maine
(Wilkinson Basin, Cashes Basin between the 160- and 200-m, or 525- and
656-ft, isobaths) and north of Georges Bank (Rogers, Crowell and
Georges Basins). Highest abundance is found north of the 100-m (328-ft)
isobath at the Great South Channel and over the deep slope waters and
basins along the northern edge of Georges Bank. The waters between
Fippennies Ledge and Cashes Ledge are also estimated as high-use areas.
In the fall months, right whales are sighted infrequently in the Gulf
of Maine, with highest densities over Jeffreys Ledge and over deeper
waters near Cashes Ledge and Wilkinson Basin. In winter, Cape Cod Bay,
Scantum Basin, Jeffreys Ledge, and Cashes Ledge were the main high-use
areas. Although SBNMS does not appear to support the highest abundance
of right whales, sightings within SBNMS are reported for all four
seasons, albeit at low relative abundance. Highest sighting within
SBNMS occurred along the southern edge of the Bank.
The western North Atlantic population size was estimated to be at
least 345 individuals in 2005 based on a census of individual whales
identified using photo-identification techniques (Waring et al., 2009).
This value is a minimum and does not include animals that were alive
prior to 2003 but not recorded in the individual sightings database as
seen from December 1, 2003, to October 10, 2008. It also does not
include calves known to be born during 2005 or any other individual
whale seen during 2005 but not yet entered into the catalog (Waring et
al., 2009). Examination of the minimum alive population index
calculated from the individual sightings database, as it existed on
October 10, 2008, for the years 1990-2005 suggests a positive trend in
numbers. These data reveal a significant increase in the number of
catalogued whales alive during this period but with significant
variation due to apparent losses exceeding gains during 1998-1999. Mean
growth rate for the period 1990-2005 was 1.8 percent (Waring et al.,
2009).

Long-Finned Pilot Whale

The long-finned pilot whale is more generally found along the edge
of the continental shelf (a depth of 330 to 3,300 ft, or 100 to 1,000
m), choosing areas of high relief or submerged banks in cold or
temperate shoreline waters. This species is split between two
subspecies: The Northern and Southern subspecies. The Southern
subspecies is circumpolar with northern limits of Brazil and South
Africa. The Northern subspecies, which could be encountered during
operation of the NEG Port, ranges from North Carolina to Greenland
(Reeves et al., 2002; Wilson and Ruff, 1999). In the western North
Atlantic, long-finned pilot whales are pelagic, occurring in especially
high densities in winter and spring over the continental slope, then
moving inshore and onto the shelf in summer and autumn following squid
and mackerel populations (Reeves et al., 2002). They frequently travel
into the central and northern Georges Bank, Great South Channel, and
Gulf of Maine areas during the summer and early fall (May and October)
(NOAA, 1993). According to the species stock report,

[[Page 43642]]

the population estimate for the Western North Atlantic long-finned
pilot whale is 26,535 individuals (Waring et al., 2010). Currently,
there are insufficient data to determine population trends for the
long-finned pilot whale.

Atlantic White-Sided Dolphin

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

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

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

Harbor Seal and Gray Seal

In the U.S. waters of the western North Atlantic, both harbor and
gray seals are usually found from the coast of Maine south to southern
New England and New York (Waring et al., 2010).
Along the southern New England and New York coasts, harbor seals
occur seasonally from September through late May (Schneider and Payne,
1983). In recent years, their seasonal interval along the southern New
England to New Jersey coasts has increased (deHart, 2002). In U.S.
waters, harbor seal breeding and pupping normally occur in waters north
of the New Hampshire/Maine border, although breeding has occurred as
far south as Cape Cod in the early part of the 20th century (Temte et
al., 1991; Katona et al., 1993). The best estimate of abundance for the
western North Atlantic stock of harbor seals is 99,340 animals (Waring
et al., 2009). Between 1981 and 2001, the uncorrected counts of seals
increased from 10,543 to 38,014, an annual rate of 6.6 percent (Gilbert
et al., 2005, cited in Waring et al., 2009). Although gray seals are
often seen off the coast from New England to Labrador, within the U.S.
waters, only small numbers of gray seals have been observed pupping on
several isolated islands along the Maine coast and in Nantucket-
Vineyard Sound, Massachusetts (Katona et al., 1993; Rough, 1995). In
the late 1990s, a year-round breeding population of approximately 400
gray seals was documented on outer Cape Cod and Muskeget Island
(Warring et al., 2007). Depending on the model used, the minimum
estimate for the Canadian gray seal population was estimated to range
between 125,541 and 169,064 animals (Trzcinski et al., 2005, cited in
Waring et al., 2009); however, present data are insufficient to
calculate the minimum population estimate for U.S. waters. Waring et
al, (2009) note that gray seal abundance in the U.S. Atlantic is likely
increasing, but the rate of increase is unknown.

Brief Background on Marine Mammal Hearing

When considering the influence of various kinds of sound on the
marine environment, it is necessary to understand that different kinds
of marine life are sensitive to different frequencies of sound. Based
on available behavioral data, audiograms derived using auditory evoked
potential techniques, anatomical modeling, and other data, Southall et
al. (2007) designate ``functional hearing groups'' for marine mammals
and estimate the lower and upper frequencies of functional hearing of
the groups. The functional groups and the associated frequencies are
indicated below (though animals are less sensitive to sounds at the
outer edge of their functional range and most sensitive to sounds of
frequencies within a smaller range somewhere in the middle of their
functional hearing range):
Low frequency cetaceans (13 species of mysticetes):
functional

[[Page 43643]]

hearing is estimated to occur between approximately 7 Hz and 22 kHz;
Mid-frequency cetaceans (32 species of dolphins, six
species of larger toothed whales, and 19 species of beaked and
bottlenose whales): functional hearing is estimated to occur between
approximately 150 Hz and 160 kHz;
High frequency cetaceans (eight species of true porpoises,
six species of river dolphins, Kogia, the franciscana, and four species
of cephalorhynchids): functional hearing is estimated to occur between
approximately 200 Hz and 180 kHz; and
Pinnipeds in Water: functional hearing is estimated to
occur between approximately 75 Hz and 75 kHz, with the greatest
sensitivity between approximately 700 Hz and 20 kHz.
As mentioned previously in this document, 13 marine mammal species
(11 cetacean and two pinniped species) are likely to occur in the NEG
Port area. Of the 11 cetacean species likely to occur in NEG's project
area, four are classified as low frequency cetaceans (i.e., North
Atlantic right, humpback, fin, and minke whales), six are classified as
mid-frequency cetaceans (i.e., killer and pilot whales and bottlenose,
common, Risso's, and Atlantic white-sided dolphins), and one is
classified as a high-frequency cetacean (i.e., harbor porpoise)
(Southall et al., 2007).

Potential Effects of the Specified Activity on Marine Mammals

Potential effects of NEG's proposed port operations would most
likely be acoustic in nature. LNG port operations introduce sound into
the marine environment. 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. Noise generated from regasification/offloading is
modeled to be under 120 dB, therefore, no take is expected from this
activity. Based on research by Malme et al. (1983; 1984), for both
continuous and intermittent sound sources, Level B harassment is
presumed to begin at received levels of 120-dB. The detailed
description of the noise that would result from the proposed LNG Port
operations is provided in the Federal Register notice for the initial
construction and operations of the NEG LNG Port facility and Pipeline
Lateral in 2007 (72 FR 27077; May 14, 2007).

NEG Port Activities

Underwater noise generated at the NEG Port has the potential to
result from two distinct actions, including closed-loop regasification
of LNG and/or 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 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 dB. Maximum levels during steady state operations were 108
dB.
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 NEG's IHA 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 isopleth 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.

Anticipated Effects 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

[[Page 43644]]

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 EIS/EIR, these impacts are expected to be short-term,
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-ft (27 m)
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 required generally 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 final EIS/EIR for the proposed NEG Port 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
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.
In conclusion, NMFS has preliminarily determined that NEG's
proposed port operations are not expected to have any habitat-related
effects that could cause significant or long-term consequences for
individual marine mammals or on the food sources that they utilize.
Proposed Monitoring and Mitigation Measures.
In order to issue an incidental take authorization (ITA) under the
MMPA, NMFS must, where applicable, set forth the permissible methods of
taking pursuant to such activity, and other means of effecting the
least practicable adverse impact on such species or stock and its
habitat, paying particular attention to rookeries, mating grounds, and
areas of similar significance, and on the availability of such species
or stock for taking for certain subsistence uses (where relevant). In
addition, NMFS must, where applicable, set forth ``requirements
pertaining to the monitoring and reporting of such taking''. The MMPA
implementing regulations at 50 CFR 216.104 (a)(13) indicate that
requests for ITAs must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present in the
action area.
During the construction and operations of the NEG LNG Port facility
in prior years, Northeast Gateway 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 conclusive, 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).
For the proposed IHA to NEG for LNG port operations, NMFS proposes
the following monitoring and mitigation measures.

Protected Species 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 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.

[[Page 43645]]

(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 SMA and tracks NMFS regulations at 50 CFR
224.105:
42[deg]30'00.0'' N-069[deg]45'00.0'' W; thence to 42[deg]30'00.0''
N-070[deg]30'00.0'' W; thence to 42[deg]12'00.0'' N-070[deg]30'00.0''
W; thence to 42[deg]12'00.0'' N-070[deg]12'00.0'' W; thence to
42[deg]04'56.5'' N-070[deg]12'00.0'' W; thence along charted mean high
water line and inshore limits of COLREGS limit to a latitude of
41[deg]40'00.0'' N; thence due east to 41[deg]41'00.0'' N-
069[deg]45'00.0'' W; thence back to starting point.
(5) 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]30'00.0'' N-69[deg]45'00.0'' W
41[deg]40'00.0'' N-69[deg]45'00.0'' W
41[deg]00'00.0'' N-69[deg]05'00.0'' W
42[deg]09'00.0'' N-67[deg]08'24.0'' W
42[deg]30'00.0'' N-67[deg]27'00.0'' W
42[deg]30'00.0'' N-69[deg]45'00.0'' W

(6) LNGRVs are not expected to transit Cape Cod Bay. However, in
the event transit through Cape Cod Bay is required, LNGRVs will reduce
transit speed to 10 knots or less over ground from January 1-May 15 in
all waters in Cape Cod Bay, extending to all shorelines of Cape Cod
Bay, with a northern boundary of 42[deg]12'00.0'' N latitude.
(7) A vessel may operate at a speed necessary to maintain safe
maneuvering speed instead of the required 10 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 10-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 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
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 (18 km) of the NEG Port and shall measure and document
the noise ``footprint'' 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 this
NEG and Algonquin's application. The purpose of the ABs shall be to
detect a calling North Atlantic right whale an average of 5 nm (9.26
km) from each AB (detection ranges will vary based on ambient
underwater conditions). The AB system shall be the primary detection
mechanism that alerts the 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 and the Woods Hole
Oceanographic Institution 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.

Mitigation Conclusions

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

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 and NMFS, regardless of
whether the injury or death is caused by project activities.
An annual report on marine mammal monitoring and mitigation shall
be submitted to NMFS Office of Protected Resources and NMFS Northeast

[[Page 43646]]

Regional Office within 90 days after the expiration of the IHA. The
annual report shall include data collected for each distinct marine
mammal species observed in the project area in 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.

General Conclusions Drawn From Previous Monitoring Reports

Based on monthly activity reports submitted to NMFS for the period
between August 2010 and May 2011, there were no activities at the NEG
Port during the period. Therefore, no take of marine mammals occurred
or were reported during this period.

Estimated Take by Incidental Harassment

Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as: Any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild [Level A harassment]; or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering [Level B harassment]. Only take by Level B harassment is
anticipated as a result of NEG's operational activities. Anticipated
take of marine mammals is associated with operation of dynamic
positioning during the docking of the LNG vessels. The regasification
process itself is an activity that does not rise to the level of
taking, as the modeled source level for this activity is 108 dB.
Certain species may have a behavioral reaction to the sound emitted
during the activities. Hearing impairment is not anticipated.
Additionally, vessel strikes are not anticipated, especially because of
the speed restriction measures that are proposed that were described
earlier in this document.
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 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, which is the threshold used by NMFS for continuous
sounds. For the NEG port facility operations, the take estimates are
determined by multiplying the area of the EBRV's ZOI (34 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 recognizes that baleen whale species other than North Atlantic
right whales have been sighted in the project area from May to
November. However, the occurrence and abundance of fin, humpback, and
minke whales is not well documented within the project area.
Nonetheless, NMFS uses the data on cetacean distribution within
Massachusetts Bay, such as those published by the National Centers for
Coastal Ocean Science (NCCOS, 2006), to estimate potential takes of
marine mammals species in the vicinity of project area.
The NCCOS study used cetacean sightings from two sources: (1) The
North Atlantic Right Whale Consortium (NARWC) sightings database held
at the University of Rhode Island (Kenney, 2001); and (2) the Manomet
Bird Observatory (MBO) database, held at NMFS Northeast Fisheries
Science Center (NEFSC). The NARWC data contained survey efforts and
sightings data from ship and aerial surveys and opportunistic sources
between 1970 and 2005. The main data contributors included: Cetacean
and Turtles Assessment Program (CETAP), Canadian Department of
Fisheries and Oceans, PCCS, International Fund for Animal Welfare,
NOAA's NEFSC, New England Aquarium, Woods Hole Oceanographic
Institution, and the University of Rhode Island. A total of 653,725 km
(406,293 mi) of survey track and 34,589 cetacean observations were
provisionally selected for the NCCOS study in order to minimize bias
from uneven allocation of survey effort in both time and space. The
sightings-per-unit-effort (SPUE) was calculated for all cetacean
species by month covering the southern Gulf of Maine study area, which
also includes the project area (NCCOS, 2006).
The MBO's Cetacean and Seabird Assessment Program (CSAP) was
contracted from 1980 to 1988 by NMFS NEFSC to provide an assessment of
the relative abundance and distribution of cetaceans, seabirds, and
marine turtles in the shelf waters of the northeastern United States
(MBO, 1987). The CSAP program was designed to be completely compatible
with NMFS NEFSC databases so that marine mammal data could be compared
directly with fisheries data throughout the time series during which
both types of information were gathered. A total of 5,210 km (8,383 mi)
of survey distance and 636 cetacean observations from the MBO data were
included in the NCCOS analysis. Combined valid survey effort for the
NCCOS studies included 567,955 km (913,840 mi) of survey track for
small cetaceans (dolphins and porpoises) and 658,935 km (1,060,226 mi)
for large cetaceans (whales) in the southern Gulf of Maine. The NCCOS
study then combined these two data sets by extracting cetacean sighting
records, updating database field names to match the NARWC database,
creating geometry to represent survey tracklines and applying a set of
data selection criteria designed to minimize uncertainty and bias in
the data used.
Owing to the comprehensiveness and total coverage of the NCCOS
cetacean distribution and abundance study, NMFS calculated the
estimated take number of marine mammals based on the most recent NCCOS
report published in December 2006. A summary of seasonal cetacean
distribution and abundance in the project area is provided above, in
the ``Description of Marine Mammals in the Area of the Specified
Activities'' section. For a detailed description and calculation of the
cetacean abundance data and SPUE, please refer to the NCCOS study
(NCCOS, 2006). These data show that the 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.

[[Page 43647]]

In calculating the area density of these species from these linear
density data, NMFS used 1.15 mi (1.85 km) as the strip width (W). This
strip width is based on the distance of visibility used in the NARWC
data that was part of the NCCOS (2006) study. However, those surveys
used a strip transect instead of a line transect methodology.
Therefore, in order to obtain a strip width, one must divide the
visibility or transect value in half. Since the visibility value used
in the NARWC data was 2.3 mi (3.7 km), it thus gives a strip width of
1.15 mi (1.85 km). Based on this information, the area density (D) of
these species in the project area can be obtained by the following
formula:

D = SPUE/2W.

Based on this calculation method, the estimated take numbers per
year for North Atlantic right, fin, humpback, minke, and pilot whales,
and Atlantic white-sided dolphins by the NEG Port facility operations,
which is an average of 65 visits by LNG container ships to the project
area per year (or approximately 1.25 visits per week), operating the
vessels' thrusters for dynamic positioning before offloading natural
gas, corrected for 50 percent underwater, are 5, 5, 15, 3, 23, and 73,
respectively. These numbers represent maximum of 1.32, 0.24, 1.73,
0.10, 0.08, and 0.11 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 the exposure to these noise levels.
In addition, bottlenose dolphins, common dolphins, killer whales,
Risso's dolphins, harbor porpoises, harbor seals, and gray seals could
also be taken by Level B harassment as a result of deepwater LNG port
operations. Since these species are less likely to occur in the area,
and there are no density estimates specific to this particular area,
NMFS based the take estimates on typical group size. Therefore, NMFS
estimates that up to approximately 10 bottlenose dolphins, 20 common
dolphins, 20 Risso's dolphins, 20 killer whales, 5 harbor porpoises, 15
harbor seals, and 15 gray seals could be exposed to continuous noise at
or above 120 dB re 1 [mu]Pa rms incidental to operations during the one
year period of the IHA, respectively.
Since Massachusetts Bay represents only a small fraction of the
western North Atlantic basin where these animals occur NMFS has
preliminarily determined that only small numbers of the affected marine
mammal species or stocks would be potentially affected by the Northeast
Gateway LNG deepwater project. The take estimates presented in this
section of the document do not take into consideration the mitigation
and monitoring measures that are proposed for inclusion in the IHA (if
issued).

Negligible Impact and Small Numbers Analysis and Preliminary
Determination

NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``* * *
an impact resulting from the specified activity that cannot be
reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.'' In making a negligible impact determination,
NMFS considers a variety of factors, including but not limited to: (1)
The number of anticipated mortalities; (2) the number and nature of
anticipated injuries; (3) the number, nature, intensity, and duration
of Level B harassment; and (4) the context in which the takes occur.
No injuries or mortalities are anticipated to occur as a result of
Northeast Gateway's proposed port operation activities, and none are
proposed to be authorized by NMFS. Additionally, animals in the area
are not anticipated to incur any hearing impairment (i.e., TTS or PTS),
as the modeling of source levels indicates that none of the source
received levels exceed 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.
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 a couple of
hours. Therefore, Northeast Gateway will not be creating increased
sound levels in the marine environment for prolonged periods of time.
Of the 13 marine mammal species likely to occur in the area, four
are listed as endangered under the ESA: North Atlantic right, humpback,
and fin 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 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 Level
B behavioral harassment contained in 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 (1.73 percent for humpback whales and 1.32 percent for
North Atlantic right whales and no more than 1 percent of any other
species).
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the mitigation and monitoring
measures, NMFS preliminarily finds that the operation 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

[[Page 43648]]

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. Therefore, NMFS has determined that the total taking of
affected species or stocks would not have an unmitigable adverse impact
on the availability of such species or stocks for taking for
subsistence purposes.

Endangered Species Act (ESA)

On February 5, 2007, NMFS concluded consultation with MARAD and the
USCG, under section 7 of the ESA, on the proposed construction and
operation of the Northeast Gateway LNG facility and issued a biological
opinion. The finding of that consultation was that the construction and
operation of the Northeast Gateway LNG terminal may adversely affect,
but is not likely to jeopardize, the continued existence of northern
right, humpback, and fin whales, and is not likely to adversely affect
sperm, sei, or blue whales and Kemp's ridley, loggerhead, green or
leatherback sea turtles. An incidental take statement (ITS) was issued
following NMFS' issuance of the 2007 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.
NMFS' Permits, Conservation and Education division has
preliminarily determined that the activities described in the proposed
IHA are the same as those analyzed in the revised 2007 biological
opinion. Therefore, a new consultation is not required for issuance of
this IHA. If the IHA is issued, NMFS NER will need to issue a new ITS.

National Environmental Policy Act

MARAD and the USCG released a Final EIS/Environmental Impact Report
(EIR) for the proposed Northeast Gateway Port and Pipeline Lateral. A
notice of availability was published by MARAD on October 26, 2006 (71
FR 62657). The Final EIS/EIR provides detailed information on the
proposed project facilities, construction methods 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 reviewed the Final EIS and adopted it on May 4,
2007. NMFS issued a separate Record of Decision for issuance of
authorizations pursuant to section 101(a)(5) of the MMPA for the
construction and operation of the Northeast Gateway's LNG Port Facility
in Massachusetts Bay.

Dated: July 14, 2011.
Helen Golde,
Deputy Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2011-18320 Filed 7-20-11; 8:45 am]
BILLING CODE 3510-22-P