[Federal Register Volume 74, Number 43 (Friday, March 6, 2009)]
[Notices]
[Pages 9801-9810]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4799]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XN24


Taking and Importing Marine Mammals; Operations of a Liquified 
Natural Gas Port Facility in Massachusetts Bay

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

ACTION: Notice; proposed incidental harassment authorization and 
receipt of application for five-year regulations; request for comments 
and information.

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SUMMARY: NMFS has received a request from the Northeast Gateway Energy 
Bridge L.L.C. (Northeast Gateway or NEG) and its partner, Algonquin Gas 
Transmission, LLC (Algonquin), for authorization to take marine mammals 
incidental to operating and maintaining a liquified natural gas (LNG) 
port facility and its associated Pipeline Lateral by NEG and Algonquin, 
in Massachusetts Bay for the period of May 2009 through May 2014. 
Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting 
comments on its proposal to issue an authorization to Northeast Gateway 
and Algonquin to incidentally take, by harassment, small numbers of 
marine mammals for a period of 1 year. NMFS is also requesting 
comments, information, and suggestions concerning Northeast Gateway's 
application and the structure and content of future regulations.

DATES: Comments and information must be received no later than April 6, 
2009.

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 20910-3226. The mailbox address for providing email 
comments on this action is [email protected]. Comments sent via 
email, 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.
    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.
    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, 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 United States 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 August 15, 2008, NMFS received an application from Tetra Tech 
EC, Inc., on behalf of Northeast Gateway and Algonquin for an 
authorization to take 12 species of marine mammals by Level B 
harassment incidental to operation and maintenance of an LNG port 
facility in Massachusetts Bay. Since LNG Port operation and maintenance 
activities have the potential to take marine mammals, a marine mammal 
take authorization under the MMPA is warranted. NMFS has already issued 
a one-year incidental harassment

[[Page 9802]]

authorization for this activity pursuant to section 101(a)(5)(D) of the 
MMPA (73 FR 29485, May 21, 2008), which expires on May 20, 2009. In 
order to for Northeast Gateway and Algonquin to continue their 
operation and maintenance of the LNG port facility in Massachusetts 
Bay, both companies are seeking a renewal of their IHA. On January 26, 
2009, Northeast Gateway and Algonquin submitted a revised MMPA permit 
application with modified activities. The modified activities will also 
include certain operation and maintenance (O&M) activities to the 
Algonquin Pipeline Lateral for a limited time. Because the LNG Port 
facility and Algonquin Pipeline Lateral operation and maintenance 
activities will be ongoing in the foreseeable future, NMFS will propose 
regulations pursuant to section 101(a)(5)(A) of the MMPA, which would 
govern these incidental takes under a Letter of Authorization for up to 
five years. Under section 101(a)(5)(A), NMFS also must prescribe 
mitigation, monitoring, and reporting requirements in its regulations.

Description of the Activity

    The Northeast Gateway Port is located in Massachusetts Bay and 
consists of a submerged buoy system to dock specially designed LNG 
carriers approximately 13 mi (21 km) offshore of Massachusetts in 
federal waters approximately 270 to 290 ft (82 to 88 m) in depth. This 
facility delivers regasified LNG to onshore markets via a 16.06-mi 
(25.8-km) long, 24-in (61-cm) outside diameter natural gas pipeline 
lateral (Pipeline Lateral) owned and operated by Algonquin and 
interconnected to Algonquin's existing offshore natural gas pipeline 
system in Massachusetts Bay (HubLine).
    The Northeast Gateway Port consists of two subsea Submerged Turret 
Loading (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 Liquefied Natural Gas Regasification 
Vessels (LNGRVs), each capable of transporting approximately 2.9 
billion ft\3\ (82 million m\3\) of natural gas condensed to 4.9 million 
feet\3\ (138,000 m\3\) of LNG. Northeast Gateway would also be adding 
vessels to its fleet that will have a cargo capacity of approximately 
151,000 cubic m\3\. The mooring system installed at the Northeast 
Gateway Port is designed to handle both the existing vessels and any of 
the larger capacity vessels that may come into service in the future. 
The LNGRVs would dock to the STL buoys, which would serve as both the 
single-point mooring system for the vessels and the delivery conduit 
for natural gas. Each of the STL buoys is secured to the seafloor using 
a series of suction anchors and a combination of chain/cable anchor 
lines.
    The proposed activity includes Northeast Gateway LNG Port operation 
and maintenance.

NEG Port Operations

    During NEG Port operations, LNGRVs servicing the Northeast Gateway 
Port will utilize the newly configured and International Maritime 
Organization-approved Boston Traffic Separation Scheme (TSS) on their 
approach to and departure from the Northeast Gateway Port at the 
earliest practicable point of transit. LNGRVs will maintain speeds of 
12 knots or less while in the TSS, unless transiting the Off Race Point 
Seasonal Management Area between the dates of March 1 and April 30, or 
the Great South Channel Seasonal Management Area between the dates of 
April 1 and July 31, when they will not exceed 10-knots or when there 
have been active right whale sightings, active acoustic detections, or 
both, in the vicinity of the transiting LNGRV in the TSS or at the 
Northeast Gateway Port, in which case the vessels also will slow their 
speeds to 10 knots or less.
    As an LNGRV makes its final approach to the Northeast Gateway Port, 
vessel speed will gradually be reduced to 3 knots at 1.86 mi (3 km) out 
to less than 1 knot at a distance of 1,640 ft (500 m) from the 
Northeast Gateway Port. When an LNGRV arrives at the Northeast Gateway 
Port, it would retrieve one of the two permanently anchored submerged 
STL buoys. It would make final connection to the buoy through a series 
of engine and bow thruster actions. The LNGRV 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 
second bursts, not a continuous sound source. Once connected to the 
buoy, the LNGRV 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 LNGRV 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, wind and current effects on the vessel would be allowed to 
``weathervane'' 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.

NEG Port Maintenance

    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 
would be inspected following each buoy connection, and replaced (from 
inside the STL compartment during the normal cargo discharge period) as 
deemed necessary. The underwater components of the NEG Port would be 
inspected once yearly in accordance with Classification Society Rules 
(American Bureau of Shipping) using either divers or remotely operated 
vehicles (ROVs) to inspect and record the condition of the various STL 
system components. These activities would be conducted using the NEG 
Port's normal support vessel (125-foot, 99 gross ton, 2,700 horsepower, 
aluminum mono-hull vessel), and to the extent possible would coincide 
with planned weekly visits to the NEG Port. Helicopters would not be 
used for marker line maintenance inspections.
    Detailed information on the operations and maintenance activities 
can be found in the MARAD/USCG Final EIS on the Northeast Gateway 
Project (see ADDRESSES for availability) and in the take application. 
Detailed information on the LNG facility's operation and maintenance 
activities, 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).

Algonquin Pipeline Lateral Operation and Maintenance (O&M)

    The O&M activities associated with the Algonquin Pipeline Lateral 
can be subdivided into two categories, Routine O&M Activities and 
Unplanned Repair Work.
A. Routine O&M Activities
    The planned activities required for the O&M of the Algonquin 
Pipeline Lateral and Flowlines over a one year period are limited. 
Similar to the inspection of the NEG Port underwater components, the 
only planned O&M

[[Page 9803]]

activity is the annual inspection of the cathodic protection monitors 
by a ROV. The monitors are located at the ends of the Algonquin 
Pipeline Lateral and the adjacent Flowlines. Each inspection activity 
will take approximately three days and will utilize a ROV launched from 
a vessel of opportunity. The most likely vessel will be similar to the 
NEG Port's normal support vessel referenced in NEG Port Maintenance 
section. This vessel is self-positioning and requires no anchors or use 
of thrusters. It will mobilize from Salem, Massachusetts, and will 
inspect the monitors in the vicinity of the NEG Port and at the point 
where the Algonquin Pipeline Lateral interconnects with Algonquin's 
HubLine. These activities will be performed during daylight hours and 
during periods of good weather.
B. Unplanned Pipeline Repair Activities
    Unplanned O&M activities may be required from time to time at a 
location along the Algonquin Pipeline Lateral or along one of the 
Flowlines should the line become damaged or malfunction.
    Should repair work be required, it is likely a dive vessel would be 
the main vessel used to support the repair work. The type of diving 
spread and the corresponding vessel needed to support the spread would 
be dictated by the type of repair work required and the water depth at 
the work location. In addition, the type of vessel used may vary 
depending upon availability. The duration of an unplanned activity 
would also vary depending upon the repair work involved (e.g., 
repairing or replacing a section of the pipeline, connection, or valve) 
but can generally be assumed to take less than 40 work days to complete 
based on industry experience with underwater pipeline repairs.
    A diving spread required to execute an unplanned activity might 
necessitate several vessels. Most likely the dive vessel would support 
a saturation diving spread and be moored at the work location using 
four anchors. This vessel would likely be accompanied by an attendant 
tug to assist with anchor placement. Once secured at the work location, 
the dive vessel would remain on site through the completion of the 
work, weather permitting. A crew/supply boat would be utilized to 
intermittently provide labor and supply transfers. Once or twice during 
the work, a tug may be required to bring a material barge to and from 
the location. While unlikely, there is a small possibility that a 
second dive vessel would be required to support the main dive vessel, 
depending upon the work activity. The second dive vessel would be on-
site for a shorter work duration. These vessels would be supported from 
an onshore base located between Quincy, Massachusetts and Gloucester, 
Massachusetts.
    The selection of a dive vessel will be driven by the technical 
requirements of the work. In addition, the degree of urgency required 
to address the work and the availability of vessels will also enter 
into the decision process for securing a dive vessel. It may be that a 
four point moored dive vessel is either not available or doesn't meet 
the technical capabilities required by the work. It then becomes 
possible that a dynamically positioned (DP) dive vessel may have to be 
utilized. The use of a DP dive vessel removes the need for an attendant 
tug to support the vessel since no anchors will be deployed. However, 
potential impacts related to noise are increased when a DP dive vessel 
is used. The noise generated by a DP dive vessel varies, and results 
from the use of the thrusters at various levels to maintain the 
vessel's position during the work depending upon currents, winds, waves 
and other forces acting on the vessel at the time of the work.

Description of Marine Mammals in the Area of the Specified Activities

    Marine mammal species that potentially occur in the vicinity of the 
Northeast Gateway facility include several species of cetaceans and 
pinnipeds:
    North Atlantic right whale (Eubalaena glacialis),
    humpback whale (Megaptera novaeangliae),
    fin whale (Balaenoptera physalus),
    minke whale (B. acutorostrata),
    long-finned pilot whale (Globicephala melas),
    Atlantic white-sided dolphin (Lagenorhynchus acutus),
    bottlenose dolphin (Tursiops truncatus),
    common dolphin (Delphinus delphis),
    killer whale (Orcinus orca),
    harbor porpoise (Phocoena phocoena),
    harbor seal (Phoca vitulina), and
    gray seal (Halichoerus grypus).
    Information on those species that may be affected by this activity 
are 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 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 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 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.

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

[[Page 9804]]

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.

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.

North Atlantic Right Whale

    North Atlantic right whales are generally distributed widely across 
the southern Gulf of Maine in spring with highest abundance locate 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 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 occured along the southern edge of the Bank.

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, the population 
estimate for the Gulf of Maine/Bay of Fundy long-finned pilot whale is 
14,524 individuals (Waring et al., 2004).

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 sightings are also recorded 
over Truxton Swell, Wilkinson Basin, Cashes Ledge and the 
bathymetrically complex area northeast of Platts Bank. High sightings 
of white-sided dolphin are recorded within SBNMS in all seasons, with 
highest density in summer and most widespread distributions in spring 
locate mainly over the southern end of Stellwagen Bank. In winter, high 
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-occurr, 
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.

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 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).

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

[[Page 9805]]

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 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).
    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 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 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 LNGRVs during docking at the NEG 
port facility and from repair vessels during Algonquin Pipeline Lateral 
repair and maintenance for diving support. 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 and Pipeline Lateral O&M activities is 
provided in the Federal Register 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 LNGRV 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 Energy, 
L.L.C. (Excelerate) conducted field sound survey studies during periods 
of March 21 to 25, 2005 and August 6 to 9, 2006 while the LNGRV 
Excelsior was both maneuvering and moored at the operational Gulf 
Gateway Port located 116 mi (187 km) offshore in the Gulf of Mexico 
(the Gulf) (see Appendices B and C of the NEG and Algonquin 
application). LNGRV maneuvering conditions included the use of both 
stern and bow thrusters required for dynamic positioning during 
coupling. These data were used to model underwater sound propagation at 
the NEG Port. The pertinent results of the field survey are provided as 
underwater sound source pressure levels as follows:
     Sound levels during closed-loop regasification ranged from 
104 to 110 decibel linear (dBL). Maximum levels during steady state 
operations were 108 dBL.
     Sound levels during coupling operations were dominated by 
the periodic use of the bow and stern thrusters and ranged from 160 to 
170 dBL.
    Figures 1-1 and 1-2 of the NEG and Algonquin's revised MMPA permit 
application present the net acoustic impact of one LNGRV 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 km2 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 LNGRV 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.

Unplanned Pipeline Lateral Repair Activities

    As discussed previously, pipeline repairs may be required from time 
to time should the pipeline become damaged or malfunction. While the 
need for repairs to underwater pipelines is typically infrequent, in 
the event that a pipeline repair is required, it is most likely that 
anchor-moored vessels will be used. If so, underwater noise will not be 
generated at the level of concern for marine mammals.

[[Page 9806]]

    However, there is the potential that underwater noise will be 
generated within the 120 dB threshold for level B harassment for marine 
mammals if DP vessels are used to perform the work. Given the limited 
availability of DP dive support vessels, it is most likely that an 
anchor-moored dive vessel will be used, though the possibility that a 
DP vessel would be used cannot be ruled out. Depending on the nature of 
the repair, the work could last for up to 40 work days. The possibility 
that a DP vessel would be used to perform a pipeline repair is the only 
instance in which underwater noise will be generated within the 120 dB 
threshold for level B harassment in connection with Algonquin's 
ownership or operation of the Algonquin Pipeline Lateral.
    In general, DP vessels are fitted with six thrusters of three main 
types: main propellers, tunnel thrusters and azimuth thrusters. Two or 
three tunnel thrusters are usually fitted in the bow. Stern tunnel 
thrusters are also common, operating together but controlled 
individually, as are azimuth or compass thrusters placed in the rear. 
Azimuth thrusters are located beneath the bottom of the vessel and can 
be rotated to provide thrust in any direction. During vessel operation, 
the thrusters engage in varying numbers and at varying intensity 
levels, as needed to control and maintain vessel location based on sea 
and weather conditions. While at least one thruster is always engaged 
in at least partial capacity, higher noise levels are generated 
periodically when greater numbers of thrusters need to engage, and when 
thrusters are at closer to their full capacity. Thruster underwater 
noise levels are principally caused by cavitation, which is a 
combination of broadband noise and tonal sounds at discrete 
frequencies.
    In August 2007, during construction of the NEG Port and Algonquin 
Pipeline Lateral, Northeast Gateway collected sound measurements of 
vessels used to support construction including crew boats, support 
tugs, and diver support vessels which required the steady use of 
thrusters as well as unassociated boat movements routinely occurring 
outside the immediate construction zone. These vessels are similar to 
those which may be employed during pipeline repair.
    Based upon the measurement data collected, results showed no 
exceedance of the 180 dBL level for potential Level B harassment that 
could cause TTS during any of the monitoring periods in the acoustic 
far field ranging from 605 to 1,050 m (1,985 to 3,445 ft) (see Figure 
1-3 of the NEG and Algonquin MMPA permit application). However, 
construction activities involving the use of DP vessels did exceed the 
120 dBL Level B behavioral harassment threshold for this sound bype, 
principally at low and mid-range frequencies.
    It is important to note, however, that even though measurements 
showed construction activities periodically resulted in the exceedances 
of the Level B behavioral harassment threshold, such received sound 
pressure levels may not in every instance be perceptible to marine 
life, as hearing thresholds are largely frequency-dependent and vary 
considerably from species to species. In addition, though ambient noise 
in shallow waters such as the Gulf of Maine tends to be highly variable 
in both time and location, existing elevated ambient conditions 
inherent within the Massachusetts Bay environment may effectively mask 
noise generated by future offshore repair work at short to moderate 
distances from where the work is occurring. This is particularly true 
during elevated wind and seastate conditions when the use of thrusters 
is more predominant. At the same time, the ambient underwater noise 
intensity levels will be higher during these periods as well.

Estimates of Take by Harassment

    Although Northeast Gateway stated that the ensonified area of 120-
dB isopleths by LNGRV'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 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. For the NEG port facility operations, the take 
estimates are determined by multiplying the area of the LNGRV's ZOI (21 
km\2\) by local marine mammal density estimates, corrected to account 
for 50 percent more marine mammals that may be underwater, and then 
multiplying by the estimated LNG container ship visits per year. For 
the Algonquin Pipeline Lateral O&M activities, the take estimates are 
determined by multiplying the area of ZOI (34 km\2\ ) resulting from 
the DP vessel used in repair by local marine mammal density estimates, 
corrected to account for 50 percent more marine mammals that may be 
underwater, and then multiplying by the number of dates O&M activities 
are conducted 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

[[Page 9807]]

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 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 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 Proposed 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 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 21, 25, 68, 15, 104, and 
336, respectively.
    The estimated take number per year for North Atlantic right, fin, 
humpback, minke, and pilot whales, and Atlantic white-side dolphin by 
the Algonquin Pipeline Lateral O&M activities, based on a maximum of 40 
days by the operation of DP vessels for diver support, corrected for 50 
percent underwater, are 21, 25, 68, 15, 104, and 335, respectively.
    The total estimated take numbers of these species per year are: 42 
North Atlantic right, 50 fin, 136 humpback, 30 minke, 208 pilot whales, 
and 671 Atlantic white-sided dolphins. These numbers represent maximum 
of 12.9, 2.2, 15.0, 0.9, 0.7, and 1.1 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, 
harbor porpoises, harbor seals, and gray seals could also be taken by 
Level B harassment as a result of deepwater LNG port operations and 
Pipeline Lateral O&M activities. 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, 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 NEG Port and Algonquin 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 LNGRV 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. 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 three 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.

Proposed Monitoring and Mitigation Measures

    For the proposed NEG LNG port operations and Algonquin Pipeline 
Lateral O&M activities, NMFS proposes the following monitoring and 
mitigation measures.

[[Page 9808]]

Marine Mammal Observers

    For activities related to the NEG LNG port operations, all 
individuals onboard the LNGRVs 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 LNGRV 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.
    For activities related to the Algonquin Pipeline Lateral O&M, two 
qualified Maine Mammal Observers (MMOs) will be assigned to each DP 
vessel (each operating individually in designated shifts to accommodate 
adequate rest schedules). Their exclusive responsibility is to watch 
for marine mammals and to alert the construction crew supervisor if 
marine mammals are visually detected within the most conservatively 
estimated ZOI, within 2 mi (3.31 km) of the DP vessel, to allow for 
mitigating responses. MMOs will maintain logs at all times while on 
watch. All personnel will have experience in marine mammal detection 
and observation during marine construction. MMOs will maintain in situ 
records while on watch and therefore visual observation will not be 
affected. Additional MMOs may be assigned to additional vessels if 
auto-detection buoy (AB) data shows sound levels from additional 
vessels in excess of 120 dB re 1 microPa, further than 100 m (328 ft) 
from the vessel.
    Each MMO will scan the area surrounding the construction vessel s 
for visual signs of non-vocalizing whales that may enter the 
construction area. Observations will take place from the highest 
available vantage point on the vessels. General 360 scanning will occur 
during the monitoring periods, and target scanning by the observer will 
occur when alerted of a whale presence.
    Searching will take place at all hours of the day. Night-time 
observations will be conducted with the aid of a night-vision scope 
where practical. Observers, using binoculars, will estimate distances 
to marine mammals either visually or by using reticled binoculars. If 
higher vantage points (>25 ft or 7.6 m) are available, distances can be 
measured using inclinometers. Position data will be recorded using 
hand-held or vessel global positioning system (GPS) units for each 
sighting, vessel position change, and any environmental change.
    Environmental data to be collected will include Beaufort sea state, 
wind speed, wind direction, ambient temperature, precipitation, glare, 
and percent cloud cover. Wind and temperature data will be extracted 
from onboard meteorological stations (when available). Animal data to 
be collected includes number, species, position, distance, behavior, 
direction of movement, and apparent reaction to construction activity. 
All data will be entered at the time of observation. Notes of 
activities will be kept and a daily report will be prepared and 
attached to the daily field form.

Distance and Noise Level for Cut-Off

    For all whales near DP vessels, the MMO observation will be the 
principal detection tool available. If a North Atlantic right whale or 
other marine mammal is seen within the 2 mi (3.31 km) ZOI of a DP 
vessel or other construction vessel that has been shown to emit noises 
in excess of 120 dB re 1 microPa, then the MMO will alert the 
construction crew to minimize the use of thrusters until the animal has 
moved away unless there are divers in the water or an ROV is deployed.
    During Algonquin Pipeline Lateral O&M, the following procedures 
would be followed upon detection of a marine mammal within 0.5 mi (0.8 
km) of the repair vessels:
    (1) The vessel superintendent or on-deck supervisor will be 
notified immediately. The vessel's crew will be put on a heightened 
state of alert. The marine mammal will be monitored constantly to 
determine if it is moving toward the Pipeline Lateral repair area. The 
observer is required to report all North Atlantic right whale sightings 
to NMFS, as soon as possible.
    (2) If a marine mammal other than a right whale is sighted within 
or approaching at a distance of 100 yd (91 m), or if a right whale is 
sighted within or approaching to a distance of 500 yd (457 m) from the 
operating construction vessel and the nature of the repair activity at 
the time would not compromise either the health and safety of divers on 
the bottom or the integrity of the pipeline, construction vessel(s) 
will cease any movement and cease all activities that emit sounds 
reaching a received level of 120 dB re 1 microPa or higher as soon as 
practicable. The back-calculated source level, based on the most 
conservative cylindrical model of acoustic energy spreading, is 
estimated to be 139 dB re 1 microPa. Vessels transiting the repair area 
will also be required to maintain these separation distances.
    (3) Repair work may resume after the marine mammal is positively 
reconfirmed outside the established zones (either 500 yd (457 m) or 100 
yd (91 m), depending upon species).

Vessel Strike Avoidance

    (1) All LNGRVs 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, LNGRVs 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) LNGRVs 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) LNGRVs will reduce transit speed to 10 knots or less over 
ground from March 1 - April 30 in all waters bounded by straight lines 
connecting the following points in the order stated below. This area is 
known as the Off Race Point Seasonal Management Area (SMA) and tracks 
NMFS regulations at 50 CFR 224.105:
    42[deg]30'00.0'' N -069[deg] 45'00.0'' W; thence to 42[deg] 
30'00.0'' N 070 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) LNGRVs 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

[[Page 9809]]

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]05'00.0Prime; 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 ten knots only if justified 
because the vessel is in an area where oceanographic, hydrographic and/
or meteorological conditions severely restrict the maneuverability of 
the vessel and the need to operate at such speed is confirmed by the 
pilot on board or, when a vessel is not carrying a pilot, the master of 
the vessel. If a deviation from the ten-knot speed limit is necessary, 
the reasons for the deviation, the speed at which the vessel is 
operated, the latitude and longitude of the area, and the time and 
duration of such deviation shall be entered into the logbook of the 
vessel. The master of the vessel shall 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 and Algonquin 
Pipeline Lateral using an array of 19 Marine Autonomous Recording Units 
(MARUs) that were deployed initially in April 2007 to collect data 
during the preconstruction and active construction phases of the NEG 
Port and Algonquin Pipeline Lateral. A description of the MARUs can be 
found in Appendix A of the NEG application. These 19 MARUs will remain 
in the same configuration during full operation of the NEG Port and 
Algonquin Pipeline Lateral. The MARUs collect archival noise data and 
are not designed to provide real-time or near-real-time information 
about vocalizing whales. Rather, the acoustic data collected by the 
MARUs shall be analyzed to document the seasonal occurrences and 
overall distributions of whales (primarily fin, humpback, and right 
whales) within approximately 10 nautical miles of the NEG Port, and 
shall measure and document the noise ``budget'' of Massachusetts Bay so 
as to eventually assist in determining whether an overall increase in 
noise in the Bay associated with the NEG Port and Algonquin Pipeline 
Lateral 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 
and Algonquin Pipeline Lateral in Massachusetts Bay, and the 
distribution of vocalizing marine mammals during NEG Port and Algonquin 
Pipeline Lateral O&M activities (analyzed to assess impacts of former 
on latter). In addition to the 19 MARUs, Northeast Gateway will deploy 
10 ABs within the TSS for the operational life of the NEG Port and 
Algonquin Pipeline Lateral. 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 LNGRV Master and/or Algonquin 
Pipeline support vessel captains to the occurrence of right whales, 
heightens LNGRV or pipeline support vessel awareness, and triggers 
necessary mitigation actions as described in the Marine Mammal 
Detection, Monitoring, and Response Plan included as Appendix A of the 
NEG application.
    Northeast Gateway has engaged representatives from Cornell 
University's Bioacoustics Research Program (BRP) and the Woods Hole 
Oceanographic Institution (WHOI) as the consultants for developing, 
implementing, collecting, and analyzing the acoustic data; reporting; 
and maintaining the acoustic monitoring system.
    Further information detailing the deployment and operation of 
arrays of 19 passive seafloor acoustic recording units (MARUs) centered 
on the terminal site and the 10 ABs that are to be placed at 
approximately 5-m (8.0-km) intervals within the recently modified TSS 
can be found in the Marine Mammal Detection, Monitoring, and Response 
Plan included as Appendix A of the NEG application.

Reporting

    The Project area is within the Mandatory Ship Reporting Area 
(MSRA), so all vessels entering and exiting the MSRA will report their 
activities to WHALESNORTH. During all phases of the Northeast Gateway 
LNG Port operations and the Algonquin Pipeline Lateral O&M activities, 
sightings of any injured or dead marine mammals will be reported 
immediately to the USCG or NMFS, regardless of whether the injury or 
death is caused by project activities.
    An annual report on marine mammal monitoring and mitigation would 
be submitted to NMFS Office of Protected Resources and NMFS Northeast 
Regional Office within 90 days after the expiration of an LOA. The 
annual report shall include data collected for each distinct marine 
mammal species observed in the project area in the Massachusetts Bay 
during the period of LNG facility operation. Description of marine 
mammal behavior, overall numbers of individuals observed, frequency of 
observation, and any behavioral changes and the context of the changes 
relative to operation activities shall also be included in the annual 
report.

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

[[Page 9810]]

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. Currently, 
NMFS is consulting with NMFS NER on to determine whether the modified 
activities with the inclusion of Algonquin Pipeline Lateral O&M 
activities would have any adverse impact to listed species.

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.

Preliminary Determinations

    NMFS has preliminarily determined that the impact of operation of 
the Northeast Gateway LNG Port facility and the Algonquin Pipeline 
Lateral O&M activities 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, maintenance, and 
repair. These activities are expected to result in some local short-
term displacement and will have no more than a negligible impact on the 
affected species or stocks of marine mammals.
    This preliminary determination is supported by proposed mitigation, 
monitoring, and reporting measures described in this document on this 
action.
    As a result of the described proposed 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 and the Pipeline Lateral, the estimated numbers 
of marine mammals to be harassed is small relative to the affected 
species or stock sizes. Please see Estimate of Take by Harassment 
section below for the calculation of these take numbers.

Proposed Authorization

    NMFS proposes to issue an IHA to Northeast Gateway and Algonquin 
for conducting LNG Port facility and Pipeline Lateral operations and 
maintenance in Massachusetts Bay, provided the previously mentioned 
mitigation, monitoring, and reporting requirements are incorporated.

Information Solicited

    NMFS requests interested persons to submit comments and information 
concerning this proposed IHA and Northeast Gateway and Algonquin's 
application for incidental take regulations (see ADDRESSES). NMFS 
requests interested persons to submit comments, information, and 
suggestions concerning both the request and the structure and content 
of future regulations to allow this taking. NMFS will consider this 
information in developing proposed regulations to govern the taking.

    Dated: February 26, 2009.
James H Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E9-4799 Filed 3-5-09; 8:45 am]
BILLING CODE 3510-22-S