[Federal Register Volume 73, Number 99 (Wednesday, May 21, 2008)]
[Notices]
[Pages 29485-29491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11417]



[[Page 29485]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XI04


Taking of Marine Mammals Incidental to Specified Activities; 
Operation of an LNG 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 regulations implementing the Marine Mammal 
Protection Act (MMPA) as amended, notification is hereby given that an 
Incidental Harassment Authorization (IHA) to take marine mammals, by 
harassment, incidental to operation of an offshore liquefied natural 
gas (LNG) facility in the Massachusetts Bay, has been issued to 
Northeast Gateway Energy Bridge\TM\ L.L.C. (Northeast Gateway) for a 
period of 1 year.

DATES:  This authorization is effective from May 15, 2008, until May 
14, 2009.

ADDRESSES:  A copy of the application, IHA, and a list of references 
used in this document may be obtained by writing to P. Michael Payne, 
Chief, Permits, Conservation and Education Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3225. A copy of the application may be 
obtained by writing to this address or by telephoning the contact 
listed here and is also available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#iha.
    The Maritime Administration (MARAD) and U.S. Coast Guard (USCG) 
Final Environmental Impact Statement (Final EIS) on the Northeast 
Gateway Energy Bridge LNG Deepwater Port license application is 
available for viewing at http://dms.dot.gov under the docket number 
22219.

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected 
Resources, NMFS, (301) 713-2289, ext 137.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and 101(a)(5)(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.
    An authorization shall be granted if NMFS finds that the taking 
will have a negligible impact on the species or stock(s) and will not 
have an unmitigable adverse impact on the availability of the species 
or stock(s) for certain subsistence uses, 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.''
    Subsection 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 marine mammals by harassment. Except 
with respect to certain activities not pertinent here, the MMPA defines 
``harassment'' as follows:
    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.

Description of the Activity

    The Port consists of two subsea Submerged Turret Loading (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\ (Bcf; 82 
million m\3\) of natural gas condensed to 4.9 million ft\3\ (138,000 
m\3\) of LNG. Northeast Gateway will also add vessels to its fleet that 
will have a cargo capacity of approximately 151,000 m\3\. The mooring 
system installed at the Port is designed to handle both the existing 
vessels and any of the larger capacity vessels that may come into 
service in the future. The EBRVs dock to the STLTM\TM\ buoys which 
serve as both the single-point mooring system for the vessels and the 
delivery conduit for natural gas. Each of the STLTM buoys is secured to 
the seafloor using a series of suction anchors and a combination of 
chain/cable anchor lines.
    During the Port operations, EBRVs servicing the Port would utilize 
the newly configured and International Maritime Organization-approved 
Boston Traffic Separation Scheme (TSS) on their approach to and 
departure from the NEG Port at the earliest practicable point of 
transit. EBRVs would maintain speeds of 12 knots or less while in the 
TSS except when transiting the Off Race Point Seasonal Management Area 
between March 1 and April 30, the Great South Channel Seasonal 
Management Area between April 1 and July 31, or when there have been 
active right whale sightings, active acoustic detections, or both, in 
the vicinity of the transiting EBRV in the TSS or at the Port, in which 
case the vessels would slow their speeds to 10 knots or less. See the 
Mitigation, Monitoring and Reporting Measurements section.
    As an EBRV makes its final approach to the Port, vessel speed will 
gradually be reduced to 3 knots at 1.86 mi (1.16 km) out to less than 1 
knot at a distance of 1,640 ft (500 m) from the Port. When an EBRV 
arrives at the Port, it will retrieve one of the two permanently 
anchored submerged STLTM\TM\ buoys. It will make final connection to 
the buoy through a series of engine and bow thruster actions. The EBRV 
will 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 second bursts, not a continuous sound source. 
Once connected to the buoy, the EBRV will begin vaporizing the 
liquified natural gas (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 
STLTM\TM\ buoy and flexible riser via a steel flowline leading to the 
connecting Pipeline Lateral. When the LNG vessel is on the buoy, wind 
and current effects on the vessel will be allowed to ``weathervane'' on 
the single-point mooring system; therefore, thrusters will not be used 
to maintain a stationary position. It would take approximately 8 days 
for each EBRV to moor to the

[[Page 29486]]

STLTM\TM\ Buoy, regasify its cargo of LNG and send it to the Northeast 
Gateway Pipeline Lateral, and disengage from the buoy.
    It is estimated that the Port could receive approximately 65 cargo 
deliveries a year. During this time period thrusters will be engaged in 
use for docking at the Port approximately 10 to 30 minutes for each 
vessel arrival and departure.
    The specified design life of the NEG Port is about 40 years, with 
the exception of the anchors, mooring chain/rope, and riser/umbilical 
assemblies, which are based on a maintenance-free design life of 20 
years. The buoy pick-up system components are considered consumable and 
will be inspected following each buoy connection, and replaced (from 
inside the STLTM compartment during the normal cargo discharge period) 
as deemed necessary. The underwater components of the Port will be 
inspected once yearly using either divers or remotely operated vehicles 
to check and record the condition of the various STLTM system 
components. These activities will be conducted using the Port's normal 
support vessel, and to the extent possible will coincide with planned 
weekly visits to the Port.
    Detailed information on these activities can be found in the MARAD/
USCG Final EIS on the Northeast Gateway Project (see ADDRESSES for 
availability) and in the IHA application. Detailed information on the 
LNG facility's operation and maintenance activities, and noise 
generated from operations was also published in the Federal Register on 
March 13, 2007 (72 FR 11328). No changes have been made to these 
proposed activities.

Comments and Responses

    A notice of receipt and request for public comment on the 
application and proposed authorization was published on March 27, 2008 
(73 FR 16266). During the 30-day public comment period, NMFS received 
comments from the Marine Mammal Commission (Commission) and two private 
citizens.
    Comment 1: The Commission recommends that NMFS issue the IHA 
provided that (a) all marine mammal mitigation, monitoring, and 
reporting measures identified in the Federal Register notice are 
included in the authorization and retained in any proposed regulations 
issued by NMFS to govern the activities over a five-year period; and 
(b) operations be suspended immediately if a dead or seriously injured 
right whale or other marine mammal is found in the vicinity of the 
operations and the death or injury could be attributable to the 
applicant's activities. Any suspension should remain in place until 
NMFS (1) has reviewed the situation and determined that further deaths 
or serious injuries are unlikely or (2) has issued regulations 
authorizing such takes 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 requirement to any type of 
injury, not just serious injury, if it could be attributable to LNG 
activities.
    Comment 2: One private citizen states that more due diligence on 
the front end is needed before NMFS issues the IHA.
    Response: NMFS has conducted extensive review of the best science 
available regarding the biology of the marine mammals affected and the 
propagation of sounds from operations of the offshore LNG port. This 
information is supported by Draft and Final Environmental Impact 
Statements issued by MARAD and USCG under the National Environmental 
Policy Act (NEPA) and a biological opinion pursuant to the Endangered 
Species Act (ESA).
    Comment 3: One private citizen questions why NMFS grants the permit 
if there is harassment to marine mammals.
    Response: As stated in the beginning of this document, the MMPA 
directs the 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. NMFS has made these 
findings and followed the appropriate process set forth in MMPA section 
101(a)(5)(D).

Marine Mammals Affected by the Activity

    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),
    pilot whale (Globicephala spp.),
    Atlantic white-sided dolphin (Lagenorhynchus acutus),
    bottlenose dolphin (Tursiops truncatus),
    common dolphin (Delphinus delphis),
    killer whale (Orcinus orca),
    harbor porpoise (Phocoena phocoena),
    harbor seal (Phoca vitulina), and
    gray seal (Halichoerus grypus).
    Information on those species that may be impacted by this activity 
are discussed in detail in the MARAD and USCG Final EIS on the 
Northeast Gateway LNG proposal. Please refer to that document for more 
information on these species and potential impacts from construction 
and operation of this LNG facility. In addition, general information on 
these marine mammal species can also be found in Wursig et al. (2000) 
and in the NMFS Stock Assessment Reports (Waring et al., 2007). This 
latter document is available at: http://www.nefsc.noaa.gov/nefsc/publications/tm/tm201/. 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 was distributed primarily 
along a relatively narrow corridor following the 100-m (328 ft) isobath 
across the southern Gulf of Maine from the northwestern slope of 
Georges Bank, south to the Great South Channel, and northward alongside 
Cape Cod to Stellwagen Bank and Jeffreys Ledge. The relative abundance 
of whales increased in the spring with the highest occurrence along the 
slope waters (between the 40- and 140-m, or 131- and 459-ft, isobaths) 
off Cape Cod and Davis Bank, Stellwagen Basin and Tillies Basin and 
between the 50- and 200-m (164- and 656-ft) isobaths along the inner 
slope of Georges Bank. High abundance was also estimated for the waters 
around Platts Bank. In the summer months, abundance increased markedly 
over the shallow waters (<50 m, or <164 ft) of Stellwagen Bank, the 
waters (100 - 200 m, or 328 - 656 ft) between Platts Bank and Jeffreys 
Ledge, the steep slopes (between the 30- and 160-m isobaths) of Phelps 
and Davis Bank north of the Great South Channel towards Cape Cod, and 
between the 50- and 100-m (164- and 328-ft) isobath for almost the 
entire length of the steeply sloping northern edge of Georges Bank. 
This general distribution pattern persisted in all seasons except 
winter, when humpbacks remained at high abundance in only a few 
locations including Porpoise and Neddick Basins adjacent to Jeffreys 
Ledge, northern Stellwagen Bank and Tillies Basin, and the Great South 
Channel.

Fin Whale

    Spatial patterns of habitat utilization by fin whales were very 
similar to those of humpback whales. Spring and

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summer high-use areas followed the 100-m (328 ft) isobath along the 
northern edge of Georges Bank (between the 50- and 200-m (164- and 656-
ft) isobaths), and northward from the Great South Channel (between the 
50- and 160-m, or 164- and 525-ft, isobaths). Waters around Cashes 
Ledge, Platts Bank, and Jeffreys Ledge are all high-use areas in the 
summer months. Stellwagen Bank was a high-use area for fin whales in 
all seasons, with highest abundance occurring over the southern 
Stellwagen Bank in the summer months. In fact, the southern portion of 
the Stellwagen Bank National Marine Sanctuary (SBNMS) was used more 
frequently than the northern portion in all months except winter, when 
high abundance was recorded over the northern tip of Stellwagen Bank. 
In addition to Stellwagen Bank, high abundance in winter was estimated 
for Jeffreys Ledge and the adjacent Porpoise Basin (100- to 160-m, 328- 
to 656-ft, isobaths), as well as Georges Basin and northern Georges 
Bank.

Minke Whale

    Like other piscivorous baleen whales, highest abundance for minke 
whale was strongly associated with regions between the 50- and 100-m 
(164- and 328-ft) isobaths, but with a slightly stronger preference for 
the shallower waters along the slopes of Davis Bank, Phelps Bank, Great 
South Channel and Georges Shoals on Georges Bank. Minke whales were 
sighted in the SBNMS in all seasons, with highest abundance estimated 
for the shallow waters (approximately 40 m, or 131 ft) over southern 
Stellwagen Bank in the summer and fall months. Platts Bank, Cashes 
Ledge, Jeffreys Ledge, and the adjacent basins (Neddick, Porpoise and 
Scantium) also supported high relative abundance. Very low densities of 
minke whales remained throughout most of the southern Gulf of Maine in 
winter.

North Atlantic Right Whale

    North Atlantic right whales were 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 (100 300 m, 328 - 984 ft) parallel to the 100-m (328-ft) isobath 
of northern Georges Bank and Georges Basin. High abundance was also 
found in the shallowest waters (< 30 m, or <98 ft) of Cape Cod Bay, 
over Platts Bank and around Cashes Ledge. Lower relative abundance was 
estimated over deep-water basins including Wilkinson Basin, Rodgers 
Basin and Franklin Basin. In the summer months, right whales moved 
almost entirely away from the coast to deep waters over basins in the 
central Gulf of Maine (Wilkinson Basin, Cashes Basin between the 160- 
and 200-m, or 525- and 656-ft, isobaths) and north of Georges Bank 
(Rogers, Crowell and Georges Basins). Highest abundance was found north 
of the 100-m (328-ft) isobath at the Great South Channel and over the 
deep slope waters and basins along the northern edge of Georges Bank. 
The waters between Fippennies Ledge and Cashes Ledge were also 
estimated as high-use areas. In the fall months, right whales were 
sighted infrequently in the Gulf of Maine, with highest densities over 
Jeffreys Ledge and over deeper waters near Cashes Ledge and Wilkinson 
Basin. In winter, Cape Cod Bay, Scantum Basin, Jeffreys Ledge, and 
Cashes Ledge were the main high-use areas. Although SBNMS does not 
appear to support the highest abundance of right whales, sightings 
within SBNMS are reported for all four seasons, albeit at low relative 
abundance. Highest sighting within SBNMS occured along the southern 
edge of the Bank.

Pilot whale

    Pilot whales arrived in the southern Gulf of Maine in spring, with 
highest abundance in the region occurring in summer and fall. Summer 
high-use areas included the slopes of northern Georges Bank along the 
100-m (328-ft) isobath and pilot whales made extensive use of the 
shoals of Georges Bank (<60 m, or <197 ft, depth). Similarly, fall 
distributions were also primarily along the slopes of northern Georges 
Bank, but with high-use areas also occurring amongst the deep-water 
basins and ledges of the south-central Gulf of Maine. Within SBNMS, 
pilot whales were sighted infrequently and were most often estimated at 
low density. Cape Cod Bay and southern SBNMS were the only locations 
with pilot whale sightings for winter.

Atlantic White-Sided Dolphin

    In spring, summer and fall, Atlantic white-sided dolphins were 
widespread throughout the southern Gulf of Maine, with the high-use 
areas widely located either side of the 100-m (328-ft) isobath along 
the northern edge of Georges Bank, and north from the Great South 
Channel to Stellwagen Bank, Jeffreys Ledge, Platts Bank and Cashes 
Ledge. In spring, high-use areas existed 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 was a shift and expansion of habitat 
toward the east and northeast. High-use areas were identified along 
most of the northern edge of Georges Bank between the 50- and 200-m 
(164- and 656-ft) isobaths and northward from the Great South Channel 
along the slopes of Davis Bank and Cape Cod. High sightings were also 
recorded over Truxton Swell, Wilkinson Basin, Cashes Ledge and the 
bathymetrically complex area northeast of Platts Bank. High sightings 
of white-sided dolphin were recorded within SBNMS in all seasons, with 
highest density in summer and most widespread distributions in spring 
located mainly over the southern end of Stellwagen Bank. In winter, 
high sightings were recorded at the northern tip of Stellwagen Bank and 
Tillies Basin.
    A comparison of spatial distribution patterns for all baleen whales 
(Mysticeti) and all porpoises and dolphins combined showed that both 
groups have very similar spatial patterns of high- and low-use areas. 
The baleen whales, whether piscivorous or planktivorous, were more 
concentrated than the dolphins and porpoises. They utilized a corridor 
that extended broadly along the most linear and steeply sloping edges 
in the southern Gulf of Maine indicated broadly by the 100 m (328 ft) 
isobath. Stellwagen Bank and Jeffreys Ledge supported a high abundance 
of baleen whales throughout the year. Species richness maps indicated 
that high-use areas for individual whales and dolphin species co-
occurred, resulting in similar patterns of species richness primarily 
along the southern portion of the 100-m (328-ft) isobath extending 
northeast and northwest from the Great South Channel. The southern edge 
of Stellwagen Bank and the waters around the northern tip of Cape Cod 
were also highlighted as supporting high cetacean species richness. 
Intermediate to high numbers of species are also calculated for the 
waters surrounding Jeffreys Ledge, the entire Stellwagen Bank, Platts 
Bank, Fippennies Ledge and Cashes Ledge.

Killer Whale, Common Dolphin, Bottlenose Dolphin, and Harbor Porpoise

    Although these four species are some of the most widely distributed 
small cetacean species in the world (Jefferson et al., 1993), they were 
not commonly seen in the vicinity of the project area in Massachusetts 
Bay (Wiley et al., 1994; NCCOS, 2006; Northeast Gateway Marine Mammal 
Monitoring Weekly Reports, 2007).

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Harbor Seal and Gray Seal

    In the U.S. waters of the western North Atlantic, both harbor and 
gray seals were usually found from the coast of Maine south to southern 
New England and New York (Warrings et al., 2007).
    Along the southern New England and New York coasts, harbor seals 
occur seasonally from September through late May (Schneider and Payne, 
1983). In recent years, their seasonal interval along the southern New 
England to New Jersey coasts had 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 20\th\ century (Temte et 
al., 1991; Katona et al., 1993).
    Although gray seals were 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 over 400 gray seals was documented on outer Cape Cod 
and Muskeget Island (Warring et al., 2007).

Potential Effects of Noise on Marine Mammals

    The effects of noise on marine mammals are highly variable, and can 
be categorized as follows (based on Richardson et al., 1995): (1) The 
noise may be too weak to be heard at the location of the animal (i.e., 
lower than the prevailing ambient noise level, the hearing threshold of 
the animal at relevant frequencies, or both); (2) The noise may be 
audible but not strong enough to elicit any overt behavioral response; 
(3) The noise may elicit reactions of variable conspicuousness and 
variable relevance to the well being of the marine mammal; these can 
range from temporary alert responses to active avoidance reactions such 
as vacating an area at least until the noise event ceases; (4) Upon 
repeated exposure, a marine mammal may exhibit diminishing 
responsiveness (habituation), or disturbance effects may persist; the 
latter is most likely with sounds that are highly variable in 
characteristics, infrequent and unpredictable in occurrence, and 
associated with situations that a marine mammal perceives as a threat; 
(5) Any anthropogenic noise that is strong enough to be heard has the 
potential to reduce (mask) the ability of a marine mammal to hear 
natural sounds at similar frequencies, including calls from 
conspecifics, and underwater environmental sounds such as surf noise; 
(6) If mammals remain in an area because it is important for feeding, 
breeding or some other biologically important purpose even though there 
is chronic exposure to noise, it is possible that there could be noise-
induced physiological stress; this might in turn have negative effects 
on the well-being or reproduction of the animals involved; and (7) Very 
strong sounds have the potential to cause temporary or permanent 
reduction in hearing sensitivity. In terrestrial mammals, and 
presumably marine mammals, received sound levels must far exceed the 
animal's hearing threshold for there to be any temporary threshold 
shift (TTS) in its hearing ability. For transient sounds, the sound 
level necessary to cause TTS is inversely related to the duration of 
the sound. Received sound levels must be even higher for there to be 
risk of permanent hearing impairment. In addition, intense acoustic (or 
explosive events) may cause trauma to tissues associated with organs 
vital for hearing, sound production, respiration and other functions. 
This trauma may include minor to severe hemorrhage.
    There are three general kinds of sounds recognized by NMFS: 
continuous (such as shipping sounds), intermittent (such as vibratory 
pile driving sounds), and impulse. No impulse noise activities, such as 
blasting or standard pile driving, are associated with this project. 
The noise sources of potential concern are regasification/offloading 
(which is a continuous sound) and dynamic positioning of vessels using 
thrusters (an intermittent sound). Based on research by Malme et al. 
(1983; 1984), for both continuous and intermittent sound sources, Level 
B harassment is presumed to begin at received levels of 120-dB.
    None of the continuous sound sources associated with operation of 
the Northeast Gateway Project is expected to exceed the 120-dB 
threshold for Level B harassment. However, the intermittent noises from 
thruster use associated with dynamic positioning of vessels during 
operation (docking) may occasionally exceed this 120-dB threshold. 
Consequently, thruster use has the potential for a ``take'' by Level B 
harassment of any marine mammal occurring within a zone of 
ensonification (greater than 120 dB) emanating from the sound source. 
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 expexted to re-
occupy the area once the noise ceases. 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 approximately 2.56 km (1.6 mi) from the second source 
during dynamic positioning for the container ship, making a zone of 
influence (ZOI) of 21 km\2\ (8.1 mi\2\).

Estimates of Take by Harassment

    The basis for Northeast Gateway's ``take'' estimate is the number 
of marine mammals that would be exposed to sound levels in excess of 
120 dB. This is determined by multiplying the ZOI by local marine 
mammal density estimates, corrected to take account for 50 percent 
marine mammals that may be underwater, and then by 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 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 determine potential takes of marine mammals in the 
vicinity of project area.
    The NCCOS study used cetacean sightings from two sources: (1) the 
North Atlantic Right Whale Consortium (NARWC) sightings database held 
at the University of Rhode Island (Kenney, 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

[[Page 29489]]

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.
    Owning 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 Marine Mammals Affected by the Activity section. 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 upper limit of the relative abundance of North 
Atlantic right, fin, humpback, minke, and pilot whales, and Atlantic 
white-sided dolphins for all seasons, as calculated by SPUE in number 
of animals per square kilometer, is 0.0082, 0.0097, 0.0265, 0.0059, 
0.0407, and 0.1314 n/km, respectively.
    In calculating the area density of these species from these linear 
density data, NMFS used 0.4 km (0.25 mi), which is a quarter the 
distance of the radius for visual monitoring (see Monitoring, 
Mitigation, and Reporting section below), as a conservative 
hypothetical strip width (W). Thus the area density (D) of these 
species in the project area can be obtained by the following formula:
    D = SPUE/2W,
    Based on the calculation, the estimated take numbers per year for 
North Atlantic right, fin, humpback, minke, and pilot whales, and 
Atlantic white-sided dolphins, within the 120-dB ZOI of the LNG Port 
facility area of approximately 21 km2 (8.1 mi2) maximum ZOI, corrected 
for 50 percent underwater, are 21, 90, 165, 15, 104, and 336, 
respectively. This estimate is based on 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. It is expected that total 
amount of time of dynamic positioning is about 30 minutes, therefore, 
any marine mammals that are potentially exposed to noise levels about 
120 dB re 1 microPa from container ships' dynamic positioning would be 
brief. There is no danger of injury, death, or hearing impairment from 
the exposure to these noise levels. These numbers represent 
approximately 7, 3, 18, 0.4, 0.3, and 0.7 percent of the populations 
for these species, respectively.
    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 the deepwater LNG port project. 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, 89,700, 99,340, and 195,000 for bottlenose dolphins, 
common dolphins, harbor porpoises, harbor seals, and gray seals, 
respectively (Waring et al., 2007). No population estimate is available 
for the North Atlantic stock of killer whales, 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. 
From the most conservative estimates of both marine mammal densities in 
the project area and the size of the 120-dB zone of (noise) influence 
(ZOI), the calculated number of individual marine mammals for each 
species that could potentially be harassed annually is small relative 
to the overall population size.

Potential Impact on Habitat

    Operation of the Port and Pipeline Lateral will result in long-term 
effects on the marine environment, including alteration of seafloor 
conditions, continued disturbance of the seafloor, regular withdrawal 
of sea water, and regular generation of underwater noise. A small area 
(0.14 acre) along the Pipeline Lateral will be permanently altered 
(armored) at two cable crossings. In addition, the structures 
associated with the Port will occupy 4.8 acres of seafloor. An 
additional area of the seafloor of up to 38 acres will be subject to 
disturbance due to chain sweep while the buoys are occupied. The 
benthic community in the up-to 38 acres of soft bottom that may be 
swept by the anchor chains while EBRVs are docked will have limited 
opportunity to recover, so this area will experience a long-term 
reduction in benthic productivity.
    Each EBRV will require the withdrawal of an average of 4.97 million 
gallons per day of sea water for general ship operations during its 8-
day stay at the Port. As with hydrostatic testing, plankton associated 
with the sea water will not likely survive this activity. Based on 
densities of plankton in Massachusetts Bay, it is estimated that sea 
water use during operations will consume, on a daily basis, about 3 200 
x 1,010 phytoplankton cells (about several hundred grams of biomass), 
6.5 x 108 zooplankters (equivalent to about 1.2 kg of copepods), and on 
the order of 30,000 fish eggs and 5,000 fish larvae. Also, the daily 
removal of sea water will reduce the food resources available for 
planktivorous organisms. However, the removal of these species is minor 
relative to the overall area they occupy and unlikely to measurably 
affect the food sources available to marine mammals.

Monitoring, Mitigation, and Reporting Measures

    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.

[[Page 29490]]

    If a marine mammal is sighted by a crew member, an immediate 
notification will be made to the Person-in-Charge on board the vessel 
and the Northeast Port Manager, who will ensure that the required 
reporting procedures are followed.

Vessel Strike Avoidance

    (1) All EBRVs approaching or departing the port will comply with 
the Mandatory Ship Reporting (MSR) system to keep apprised of right 
whale sightings in the vicinity. Vessel operators will also receive 
active detections from the passive acoustic array prior to and during 
transit through the northern leg of the Boston TSS where the buoys are 
installed.
    (2) In response to active right whale sightings (detected 
acoustically or reported through other means such as the MSR or SAS), 
and taking into account safety and weather conditions, EBRVs will take 
appropriate actions to minimize the risk of striking whales, including 
reducing speed to 10 knots or less and alerting personnel responsible 
for navigation and lookout duties to concentrate their efforts.
    (3) EBRVs will maintain speeds of 12 knots or less while in the TSS 
until reaching the vicinity of the buoys (except during the seasons and 
areas defined below, when speed will be limited to 10 knots or less). 
At 1.86 miles (3 km) from the NEG port, speed will be reduced to 3 
knots, and to less than 1 knot at 1,640 ft (500 m) from the buoy.
    (4) EBRVs will reduce transit speed to 10 knots or less (unless 
hydrographic, meteorological, or traffic conditions dictate an 
alternative speed to maintain the safety or maneuverability of the 
vessel) from March 1 - April 30 in all waters bounded by straight lines 
connecting the following points in the order stated below. This area is 
also known as the Off Race Point Seasonal Management Area (SMA).
    42[deg]30'N 70[deg]30'W
    42[deg]30'N 69v45'W
    41[deg]40'N 69[deg]45'W
    41[deg]40'N 69[deg]57'W
    42[deg]04.8'N 70[deg]10'W
    42[deg]12'N 70[deg]15'W
    42[deg]12'N 70[deg]30'W
    42[deg]30'N 70[deg]30'W
    (5) EBRVs will reduce transit speed to 10 knots or less (unless 
hydrographic, meteorological, or traffic conditions dictate an 
alternative speed to maintain the safety or maneuverability of the 
vessel) from April 1 - July 31 in all waters bounded by straight lines 
connecting the following points in the order stated below. This area is 
also known as the Great South Channel SMA.
    42[deg]30'N 69[deg]45'W
    42[deg]30'N 67[deg]27'W
    42[deg]09'N 67[deg]08.4'W
    41[deg]00'N 69[deg]05'W
    41[deg]40'N 69[deg]45'W
    42[deg]30'N 69[deg]45'W
    (6) EBRVs are not expected to transit Cape Cod Bay. However, in the 
event transit through Cape Cod Bay is required, EBRVs will reduce 
transit speed to 10 knots or less (unless hydrographic, meteorological, 
or traffic conditions dictate an alternative speed to maintain the 
safety or maneuverability of the vessel) from January 1 - May 15 in all 
waters in Cape Cod Bay, extending to all shorelines of Cape Cod Bay, 
with a northern boundary of 42[deg]12'N latitude.
    (7) In such cases where speeds in excess of the ten knot speed 
maximums as described above are required, the reasons for the 
deviation, the speed at which the vessel is operated, the area, and the 
time and duration of such deviation will be documented in the logbook 
of the vessel and reported to the NMFS Northeast Region Ship Strike 
Coordinator.

Passive Acoustic Monitoring (PAM) Program

    An array of Auto-detection Buoys (ABs) have been installed in the 
Boston TSS that meets the criteria specified in the recommendations 
developed by NOAA through consultation with the USCG under the National 
Marine Sanctuary Act (NMSA). The system will be monitored during the 
LNG Port operations and will provide near real-time information on the 
presence of vocalizing whales in the shipping lanes.
    An archival array of acoustic recording units (ARUs), or ``pop-
ups,'' has been installed around the port site that meets the criteria 
specified in the program developed by NOAA in consultation with the 
USCG under the National Marine Sanctuary Act (NMSA). The ARUs will be 
in place for 5 years following initiation of operations to monitor the 
actual acoustic output of port operations and alert NOAA to any 
unanticipated adverse effects of port operations, such as large-scale 
abandonment of the area.

Reporting

    The Project area is within the Mandatory Ship Reporting Area 
(MSRA), so all vessels entering and exiting the MSRA would report their 
activities to WHALESNORTH. During all phases of the Northeast Gateway 
LNG Port operation, sightings of any injured or dead marine mammals 
would 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 would 
be submitted to NMFS Office of Protected Resources and NMFS Northeast 
Regional Office within 90 days after the expiration of the IHA. The 
annual report should include data collected for each distinct marine 
mammal species observed in the project area in the Massachusetts Bay 
during the period of LNG facility 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.

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 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

[[Page 29491]]

whales, and is not likely to adversely affect sperm, sei, or blue 
whales. NMFS has concluded that issuance of this IHA renewal would not 
have impacts beyond what was analyzed in the November 30, 2007, 
biological opinion, so additional consultation is not required.

NEPA

    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 mammal.
    NMFS was a cooperating agency (as defined by the Council on 
Environmental Quality (40 CFR 1501.6)) in the preparation of the Draft 
and Final EISs. NMFS has reviewed the Final EIS and has adopted it. 
Therefore, the preparation of another EIS or EA is not warranted.

Determinations

    NMFS has determined that the impact of operation of the Northeast 
Gateway Port Project may result, at worst, in a temporary modification 
in behavior of small numbers of certain species of marine mammals that 
may be in close proximity to the Northeast Gateway LNG facility and 
associated pipeline during its operation. 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 and in NMFS' Biological Opinion on this action.
    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).
    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 is 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: May 15, 2008.
Helen Golde,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. E8-11417 Filed 5-20-08; 8:45 am]
BILLING CODE 3510-22-S