[Federal Register Volume 76, Number 113 (Monday, June 13, 2011)]
[Rules and Regulations]
[Pages 34157-34176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-14614]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 0808041026-1295-02]
RIN 0648-AX09


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Operation and Maintenance of the Neptune Liquefied 
Natural Gas Facility off Massachusetts

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

ACTION: Final rule.

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SUMMARY: NMFS, upon application from Neptune LNG LLC (Neptune), is 
issuing regulations pursuant to the Marine Mammal Protection Act (MMPA) 
to govern the unintentional taking of marine mammals, by harassment, 
incidental to port commissioning and operations, including maintenance 
and repair activities, at the Neptune Deepwater Port (the Port) in 
Massachusetts Bay for the period of July 2011 through July 2016. These 
regulations, which allow for the issuance of Letters of Authorization 
(LOAs) for the incidental take of marine mammals during the described 
activities and specified timeframes, prescribe the permissible methods 
of taking and other means of effecting the least practicable adverse 
impact on marine mammal species or stocks and their habitat, as well as 
requirements pertaining to the monitoring and reporting of such taking.

DATES: Effective from July 11, 2011, through August 10, 2016.

ADDRESSES: A copy of Neptune's application may be obtained by writing 
to Michael Payne, Chief, Permits, Conservation and Education Division, 
Office of Protected Resources, NMFS, 1315 East West Highway, Silver 
Spring, MD 20910, calling the contact listed under FOR FURTHER 
INFORMATION CONTACT, or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this 
final rule may also be viewed, by appointment, during regular business 
hours at the above address.
    The Final Environmental Impact Statement (Final EIS) on the Neptune 
Deepwater Port License Application authored by the Maritime 
Administration (MARAD) and U.S. Coast Guard (USCG) is available for 
viewing at http://www.regulations.gov by entering the search words 
``Neptune LNG.''

FOR FURTHER INFORMATION CONTACT: Candace Nachman, Office of Protected 
Resources, NMFS, (301) 713-2289, ext 156.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers 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 either 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 for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ``* * * an impact resulting from the specified activity that cannot 
be reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    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''].

[[Page 34158]]

Summary of Request

    On December 14, 2009, NMFS received an application from Neptune for 
the taking, by harassment, of marine mammals incidental to port 
commissioning and operations, including maintenance and repair 
activities, at its Neptune Deepwater Port (Port) facility in 
Massachusetts Bay. NMFS reviewed Neptune's application and identified a 
number of issues requiring further clarification. After addressing 
comments from NMFS, Neptune modified its application and submitted a 
revised application on March 11, 2010. The March 11, 2010, application 
was the one made available for public comment and considered by NMFS 
for these regulations.
    Neptune submitted its first complete application to NMFS on 
December 27, 2007, for the take of small numbers of marine mammals, by 
harassment, incidental to the construction phase of the Neptune LNG 
Port Facility. In June 2008, NMFS issued a 1-year Incidental Harassment 
Authorization (IHA) to Neptune for the construction of the Port (73 FR 
33400, June 12, 2008). This authorization expired on June 30, 2009. 
NMFS issued a second 1-year IHA to Neptune for the completion of 
construction and beginning of Port operations on June 26, 2009 (74 FR 
31926, July 6, 2009), which expired on June 30, 2010.
    On July 12, 2010, NMFS issued a third IHA to Neptune based on the 
request in its March 11, 2010, application (75 FR 41440, July 16, 
2010). This latest IHA is effective through July 11, 2011. During the 
period of this third IHA, Neptune conducted limited port operations.
    During the effective period of this final rule (July 2011-July 
2016), Neptune intends to continue port operations (including 
commissioning of its second shuttle regasification vessel [SRV]) and 
conduct maintenance and repairs, as needed. The Neptune Port is located 
approximately 22 mi (35 km) northeast of Boston, Massachusetts, in 
Federal waters approximately 260 ft (79 m) in depth. The purpose of the 
Port is to import liquefied natural gas (LNG) into the New England 
region. Take of marine mammals may occur during port operations from 
thruster use during maneuvering of the SRVs while docking and 
undocking, occasional weathervaning (turning of a vessel at anchor from 
one direction to another under the influence of wind or currents) at 
the Port, and during thruster use of dynamic positioning (DP) 
maintenance vessels should a major repair be necessary. Neptune 
requested authorization to take 12 marine mammal species by Level B 
harassment. The species are: North Atlantic right whale; humpback 
whale; fin whale; sei whale; minke whale; long-finned pilot whale; 
Atlantic white-sided dolphin; harbor porpoise; common dolphin; Risso's 
dolphin; bottlenose dolphin; and harbor seal. In the 2009 and 2010 
IHAs, NMFS also authorized take of killer whales and gray seals. NMFS 
has determined that it would be appropriate in this final rule to 
authorize take, by Level B harassment only, incidental to operations 
and maintenance activities of these two species as well. In this final 
rule, NMFS has authorized the take, by Level B harassment, of all 14 
marine mammal species listed here.

Description of the Specified Activity

    On March 23, 2007, Neptune received a license from MARAD to own, 
construct, and operate a deepwater port. The Port, which is located in 
Massachusetts Bay, consists of a submerged buoy system to dock 
specifically designed LNG carriers approximately 22 mi (35 km) 
northeast of Boston, Massachusetts, in Federal waters approximately 260 
ft (79 m) in depth. The two buoys are separated from one another by a 
distance of approximately 2.1 mi (3.4 km). The locations of the Neptune 
Port and the associated pipeline are shown in Figure 2-1 in Neptune's 
application (see ADDRESSES).
    All construction of the Neptune Port was completed in November 
2009. The first SRV was commissioned in February-March 2010. Between 
July 2011 and July 2016, (the time period for these regulations), 
Neptune plans to continue Port operations (including commissioning of 
its second SRV) and also plans to conduct any necessary maintenance and 
repairs of the Port facility.
    Neptune will be capable of mooring LNG SRVs with a capacity of 
approximately 183,113 cubic yards (yd\3\; 140,000 cubic meters (m\3\)) 
of LNG. Up to two SRVs will temporarily moor at the Port by means of a 
submerged unloading buoy system. Two separate buoys will allow natural 
gas to be delivered in a continuous flow, without interruption, by 
having a brief overlap between arriving and departing SRVs. The annual 
average throughput capacity will be around 500 million standard cubic 
feet per day (mmscfd) with an initial throughput of 400 mmscfd and a 
peak capacity of approximately 750 mmscfd of LNG.
    The SRVs will be equipped to store, transport, and vaporize LNG and 
to odorize, meter and send out natural gas by means of two 16-in (40.6-
cm) flexible risers and one 24-in (61-cm) subsea flowline. These risers 
and flowline will lead to a 24-in (61-cm) gas transmission pipeline 
connecting the deepwater port to the existing 30-in (76.2-cm) Algonquin 
Hubline\SM\ (Hubline\SM\) located approximately 9 mi (14.5 km) west of 
the Neptune deepwater port location. The Port will have an expected 
operating life of approximately 25 years. Figure 1-1 of Neptune's 
application shows an isometric view of the Port (see ADDRESSES). A 
detailed overview of Port operations and maintenance and repair 
activities, as well as the types of sounds those activities produce, 
was provided in the proposed rule (75 FR 80260, December 21, 2010). No 
changes have been made to the proposed operations or maintenance and 
repair activities.

Description of Marine Mammals in the Area of the Specified Activity

    Massachusetts Bay (as well as the entire Atlantic Ocean) hosts a 
diverse assemblage of marine mammals, including: The North Atlantic 
right whale; blue whale; fin whale; sei whale; minke whale; humpback 
whale; killer whale; long-finned pilot whale; sperm whale; Atlantic 
white-beaked dolphin; Atlantic white-sided dolphin; bottlenose dolphin; 
common dolphin; harbor porpoise; Risso's dolphin; striped dolphin; gray 
seal; harbor seal; harp seal; and hooded seal. Table 3-1 in Neptune's 
application outlines the marine mammal species that occur in 
Massachusetts Bay and the likelihood of occurrence of each species. Of 
the species listed here, the North Atlantic right, blue, fin, sei, 
humpback, and sperm whales are all listed as endangered under the 
Endangered Species Act (ESA) and as depleted under the MMPA. The 
northern coastal stock of bottlenose dolphins is considered depleted 
under the MMPA. Certain stocks or populations of killer whales are 
listed as endangered under the ESA or depleted under the MMPA; however, 
none of those stocks or populations occurs in the activity area.
    Of these species, 14 are expected to occur in the area of Neptune's 
operations. These species include: The North Atlantic right, humpback, 
fin, sei, minke, killer, and long-finned pilot whales; Atlantic white-
sided, common, Risso's, and bottlenose dolphins; harbor porpoise; and 
harbor and gray seals. Neptune used information from the Cetacean and 
Turtle Assessment Program (CETAP; 1982) and the U.S. Navy's Marine 
Resource Assessment (MRA) for the Northeast Operating Areas (DoN, 2005; 
available on the Internet at: https://

[[Page 34159]]

portal.navfac.navy.mil/portal/page/portal/navfac/navfac--ww--pp/
navfac--hq--pp/navfac--environmental/mra) to estimate densities of the 
species in the area. Nonetheless, NMFS used the data on cetacean 
distribution within Massachusetts Bay, such as those published by 
NOAA's National Centers for Coastal Ocean Science (NCCOS; 2006), to 
determine density estimates of several species of marine mammals in the 
vicinity of the project area. The explanation for those derivations and 
the actual density estimates are described later in this document (see 
the ``Estimated Take by Incidental Harassment'' section).
    The proposed rule contains a discussion of 17 marine mammal species 
that are not considered further in the analysis because of their rarity 
in the Massachusetts Bay area (blue whale, sperm whale, harp seal, 
hooded seal, ringed seal, northern bottlenose whale, Cuvier's beaked 
whale, Sowerby's beaked whale, Blainville's beaked whale, Gervais' 
beaked whale, True's beaked whale, beluga whale, pantropical spotted 
dolphin, false killer whale, pygmy sperm whale, striped dolphin, and 
Atlantic white-beaked dolphin). The proposed rule also contains brief 
summaries on several commonly sighted marine mammal species 
distribution and abundance in the vicinity of the action area. The 
``Description of Marine Mammals in the Area of the Specified Activity'' 
has not changed from the proposed rule. Please refer to the proposed 
rule (75 FR 80260, December 21, 2010) for the complete discussion.
    Additionally, information on those species that may be impacted by 
this activity is provided in Neptune's application and sections 3.2.3 
and 3.2.5 in the MARAD/USCG Final EIS on the Neptune LNG proposal (see 
ADDRESSES). Please refer to those documents for more information on 
these species. Also, general information on these marine mammal species 
can also be found in the 2009 NMFS U.S. Atlantic and Gulf of Mexico 
Marine Mammal Stock Assessment Report (SAR; Waring et al., 2009) and 
the 2010 Draft NMFS Atlantic and Gulf of Mexico Marine Mammal SAR 
(Waring et al., in prep.), which are available on the Internet at: 
http://www.nefsc.noaa.gov/publications/tm/tm213/ and http://www.nmfs.noaa.gov/pr/sars/draft.htm, respectively.

Brief Background on Marine Mammal Hearing

    When considering the influence of various kinds of sound on the 
marine environment, it is necessary to understand that different kinds 
of marine life are sensitive to different frequencies of sound. Based 
on available behavioral data, audiograms derived using auditory evoked 
potential techniques, anatomical modeling, and other data, Southall et 
al. (2007) designate ``functional hearing groups'' for marine mammals 
and estimate the lower and upper frequencies of functional hearing of 
the groups. The functional groups and the associated frequencies are 
indicated below (though animals are less sensitive to sounds at the 
outer edge of their functional range and most sensitive to sounds of 
frequencies within a smaller range somewhere in the middle of their 
functional hearing range):
     Low frequency cetaceans (13 species of mysticetes): 
Functional hearing is estimated to occur between approximately 7 Hz and 
22 kHz (however, a study by Au et al. (2006) of humpback whale songs 
indicate that the range may extend to at least 24 kHz);
     Mid-frequency cetaceans (32 species of dolphins, six 
species of larger toothed whales, and 19 species of beaked and 
bottlenose whales): functional hearing is estimated to occur between 
approximately 150 Hz and 160 kHz;
     High frequency cetaceans (eight species of true porpoises, 
six species of river dolphins, Kogia, the franciscana, and four species 
of cephalorhynchids): functional hearing is estimated to occur between 
approximately 200 Hz and 180 kHz; and
     Pinnipeds in Water: functional hearing is estimated to 
occur between approximately 75 Hz and 75 kHz, with the greatest 
sensitivity between approximately 700 Hz and 20 kHz.
    As mentioned previously in this document, 14 marine mammal species 
(12 cetacean and two pinniped species) are likely to occur in the 
Neptune Port area. Of the 12 cetacean species likely to occur in 
Neptune's project area, five are classified as low frequency cetaceans 
(i.e., North Atlantic right, humpback, fin, minke, and sei whales), six 
are classified as mid-frequency cetaceans (i.e., killer and pilot 
whales and bottlenose, common, Risso's, and Atlantic white-sided 
dolphins), and one is classified as a high-frequency cetacean (i.e., 
harbor porpoise) (Southall et al., 2007).

Potential Effects of the Specified Activity on Marine Mammals

    With respect to the MMPA, NMFS' effects assessment serves four 
primary purposes: (1) To prescribe the permissible methods of taking 
(i.e., Level B Harassment, including an identification of the number 
and types of take that could occur by Level B harassment) and to 
prescribe other means of effecting the least practicable adverse impact 
on such species or stock and its habitat (i.e., mitigation); (2) to 
determine whether the specified activity will have a negligible impact 
on the affected species or stocks of marine mammals (based on the 
likelihood that the activity will adversely affect the species or stock 
through effects on annual rates of recruitment or survival); (3) to 
determine whether the specified activity will have an unmitigable 
adverse impact on the availability of the species or stock(s) for 
subsistence uses (however, there are no subsistence communities that 
would be affected in the Massachusetts Bay area, so this determination 
is inapplicable for this rulemaking); and (4) to prescribe requirements 
pertaining to monitoring and reporting.
    Potential effects of Neptune's proposed port operations and 
maintenance/repair activities would most likely be acoustic in nature. 
LNG port operations and maintenance/repair activities introduce sound 
into the marine environment. Potential acoustic effects on marine 
mammals relate to sound produced by thrusters during maneuvering of the 
SRVs while docking and undocking, occasional weathervaning at the port, 
and during thruster use of DP maintenance vessels should a major repair 
be necessary. The potential effects of sound from the activities 
associated with the Neptune Port might include one or more of the 
following: tolerance; masking of natural sounds; behavioral 
disturbance; non-auditory physical effects; and, at least in theory, 
temporary or permanent hearing impairment (Richardson et al., 1995). 
However, for reasons discussed in the proposed rule, it is unlikely 
that there would be any cases of temporary, or especially permanent, 
hearing impairment resulting from these activities.
    In the ``Potential Effects of Specified Activities on Marine 
Mammals'' section of the proposed rule, NMFS included a qualitative 
discussion of the different ways that port operations and repair and 
maintenance activities may potentially affect marine mammals. Marine 
mammals may experience masking and behavioral disturbance. The 
information contained in the ``Potential Effects of Specified 
Activities on Marine Mammals'' section from the proposed rule has not 
changed. Please refer to the proposed rule for the full discussion (75 
FR 80260, December 21, 2010).

[[Page 34160]]

Anticipated Effects on Habitat

    The primary potential impacts to marine mammals and other marine 
species are associated with elevated sound levels produced by the Port 
operations and maintenance/repair activities. However, other potential 
impacts from physical disturbance are also possible. Major repairs to 
the Neptune port and pipeline may affect marine mammal habitat in 
several ways: cause disturbance of the seafloor; increase turbidity 
slightly; and generate additional underwater sound in the area. These 
underwater sound levels will cause some species to temporarily disperse 
from or avoid repair areas, but they are expected to return shortly 
after the repair is completed. Operation of the Port will result in 
long-term, continued disturbance of the seafloor, regular withdrawal of 
seawater, and generation of underwater sound. The proposed rule 
contained a full discussion of the potential impacts to marine mammal 
habitat and prey species in the project area. No changes have been made 
to that discussion. Please refer to the proposed rule for the full 
discussion of potential impacts to marine mammal habitat (75 FR 80260, 
December 21, 2010). NMFS has determined that Neptune's proposed port 
operations and maintenance/repair activities are not expected to have 
any habitat-related effects that could cause significant or long-term 
consequences for individual marine mammals or on the food sources that 
they utilize.

Mitigation

    In order to issue an incidental take authorization (ITA) under 
section 101(a)(5)(A) of the MMPA, NMFS must, where applicable, set 
forth the permissible methods of taking pursuant to such activity, and 
other means of effecting the least practicable adverse impact on such 
species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stock for taking for certain 
subsistence uses (where relevant).
    Neptune proposed several mitigation measures in the application 
(see ADDRESSES). After a review of these measures, NMFS determined that 
some additional measures should also be implemented in order to effect 
the least practicable adverse impact on the species or stock and its 
habitat. Both sets of measures are discussed next.

Mitigation Measures in Neptune's Application

    Neptune submitted a ``Marine Mammal Detection, Monitoring, and 
Response Plan for the Operations Phase'' (the Plan) as part of its MMPA 
application (Appendix D of the application; see ADDRESSES). The 
measures, which include safety zones and vessel speed reductions, are 
fully described in the Plan and summarized here. Some slight changes 
have been made in this final rule (from what appears in the Plan) based 
on public comments or for clarification purposes. An explanation of the 
changes is contained in the ``Comments and Responses'' section found 
later in this document.
    The 500-yd (457 m) safety zone for North Atlantic right whales is 
based on the approach regulation found at 50 CFR 224.103. The 100 yd 
(91 m) safety zone for other marine mammal species was taken from 
measures included in the 2007 Biological Opinion completed by NMFS' 
Northeast Regional Office. Any maintenance and/or repairs needed shall 
be scheduled in advance during the May 1 to November 30 seasonal 
window, whenever possible, so that disturbance to North Atlantic right 
whales will be largely avoided. If the repair cannot be scheduled 
during this time frame, additional mitigation measures are required in 
these regulations and described in part (2) of this section.
(1) Mitigation Measures for Major Repairs (May 1 to November 30)
    (A) During repairs, if a marine mammal is detected within 0.6 mi (1 
km) of the repair vessel (or acoustically), 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 repair 
area.
    (B) Repair vessels will cease any movement in the area if a marine 
mammal other than a right whale is sighted within or approaching to a 
distance of 100 yd (91 m) from the operating repair vessel. Repair 
vessels will cease any movement in the area if a right whale is sighted 
within or approaching to a distance of 500 yd (457 m) from the 
operating vessel. Vessels transiting the repair area, such as pipe haul 
barge tugs, will also be required to maintain these separation 
distances.
    (C) Repair vessels will cease all sound emitting activities if a 
marine mammal other than a right whale is sighted within or approaching 
to 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 repair 
vessel. The back-calculated source level, based on the most 
conservative cylindrical model of acoustic energy spreading, is 
estimated to be 139 dB re 1 [mu]Pa.
    (D) Repair activities 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) or if the marine 
mammal has not been re-sighted in the established zones for 30 minutes.
    (E) While under way, all repair vessels will remain 500 yd (457 m) 
away from right whales and 100 yd (91 m) away from all other marine 
mammals, unless constrained by human safety concerns or navigational 
constraints.
    (F) All repair vessels 300 gross tons or greater will maintain a 
speed of 10 knots (18.5 km/hr) or less. Vessels less than 300 gross 
tons carrying supplies or crew between the shore and the repair site 
will contact the Mandatory Ship Reporting System, the USCG, or the 
protected species observers (PSOs) at the repair site before leaving 
shore for reports of recent right whale sightings or active Dynamic 
Management Areas (DMAs) and, consistent with navigation safety, 
restrict speeds to 10 knots (18.5 km/hr) or less within 5 mi (8 km) of 
any recent sighting location and within any existing DMA.
    (G) Vessels transiting through the Cape Cod Canal and Cape Cod Bay 
(CCB) between January 1 and May 15 will reduce speeds to 10 knots (18.5 
km/hr) or less, follow the recommended routes charted by NOAA to reduce 
interactions between right whales and shipping traffic, and avoid 
aggregations of right whales in the eastern portion of CCB.
(2) Additional Port and Pipeline Major Repair Measures (December 1 to 
April 30)
    If unplanned/emergency repair activities cannot be conducted 
between May 1 and November 30, Neptune is required to implement the 
following additional mitigation measures:
    (A) If on-board PSOs do not have at least 0.6-mi (1-km) visibility, 
they shall call for a shutdown of repair activities. If dive operations 
are in progress, then they shall be halted and divers brought on board 
until visibility is adequate to see a 0.6-mi (1-km) range. At the time 
of shutdown, the use of thrusters must be minimized to the lowest level 
needed to maintain personnel safety. If there are potential safety 
problems due to the shutdown, the captain will decide what operations 
can safely be shut down and will document such activities in the data 
log.
    (B) Prior to leaving the dock to begin transit, the barge will 
contact one of the

[[Page 34161]]

PSOs on watch to receive an update of sightings within the visual 
observation area (within 0.6 mi (1 km) of the Port). If the PSO has 
observed a North Atlantic right whale within 30 minutes of the transit 
start, the vessel will hold for 30 minutes and again seek clearance to 
leave from the PSOs on board. PSOs will assess whale activity and 
visual observation ability at the time of the transit request to clear 
the barge for release and will grant clearance if no North Atlantic 
right whales have been sighted in the last 30 minutes in the visual 
observation area. [Similar requirements from the acoustic monitoring 
system is required and discussed part (4) of this subsection.]
    (C) Neptune or its contractor shall provide a half-day training 
course to designated crew members assigned to the transit barges and 
other support vessels who will have responsibilities for watching for 
marine mammals. This course shall cover topics including, but not 
limited to, descriptions of the marine mammals found in the area, 
mitigation and monitoring requirements contained in the LOA, sighting 
log requirements, and procedures for reporting injured or dead marine 
mammals. These designated crew members will be required to keep watch 
on the bridge and immediately notify the navigator of any whale 
sightings. All watch crew members will sign into a bridge log book upon 
the start and end of watch. Transit route, destination, sea conditions, 
and any protected species sightings/mitigation actions during watch 
will be recorded in the log book. Any whale sightings within 3,281 ft 
(1,000 m) of the vessel will result in a high alert and slow speed of 4 
knots (7.4 km/hr) or less. A sighting within 2,461 ft (750 m) will 
result in idle speed and/or ceasing all movement.
    (D) The material barges and tugs used for repair work shall transit 
from the operations dock to the work sites during daylight hours, when 
possible, provided the safety of the vessels is not compromised. Should 
transit at night be required, the maximum speed of the tug will be 5 
knots (9.3 km/hr).
    (E) Consistent with navigation safety, all repair vessels must 
maintain a speed of 10 knots (18.5 km/hr) or less during daylight 
hours. All vessels will operate at 5 knots (9.3 km/hr) or less at all 
times within 3.1 mi (5 km) of the repair area.
(3) Speed Restrictions in Seasonal Management Areas (SMAs)
    Repair vessels and SRVs will transit at 10 knots (18.5 km/hr) or 
less in the following seasons and areas, which either correspond to or 
are more restrictive than the times and areas in NMFS' regulations at 
50 CFR 224.105 that implement speed restrictions to reduce the 
likelihood and severity of ship strikes of right whales:
     CCB SMA from January 1 through May 15, which includes all 
waters in CCB, extending to all shorelines of the Bay, with a northern 
boundary of 42[deg] 12' N. latitude;
     Off Race Point SMA year round, which is bounded by 
straight lines connecting the following coordinates in the order 
stated: 42[deg]30' N. 69[deg]45' W.; thence to 42[deg]30' N. 70[deg]30' 
W.; thence to 42[deg]12' N. 70[deg]30' W.; thence to 42[deg]12' N. 
70[deg]12' W.; thence to 42[deg]04'56.5'' N. 70[deg]12' W.; thence 
along mean high water line and inshore limits of COLREGS limit to a 
latitude of 41[deg]40' N.; thence due east to 41[deg]41' N. 69[deg]45' 
W.; thence back to starting point; and
     Great South Channel (GSC) SMA from April 1 through July 
31, which is bounded by straight lines connecting the following 
coordinates in the order stated:

42[deg]30' N. 69[deg]45' W.
41[deg]40' N. 69[deg]45' W.
41[deg]00' N. 69[deg]05' W.
42[deg]09' N. 67[deg]08'24'' W.
42[deg]30' N. 67[deg]27' W.
42[deg]30' N. 69[deg]45' W.
(4) Additional Mitigation Measures
    (A) When approaching and departing from the Neptune Port, SRVs 
shall use the Boston Traffic Separation Scheme (TSS) starting and 
ending at the entrance to the GSC. Upon entering the TSS, the SRV shall 
go into a ``heightened awareness'' mode of operation, which is outlined 
in great detail in the Plan (see Neptune's application).
    (B) In the event that a whale is visually observed within 0.6 mi (1 
km) of the Port or a confirmed acoustic detection is reported on either 
of the two auto-detection buoys (ABs; more information on the acoustic 
devices is contained in the ``Monitoring and Reporting'' section later 
in this document) closest to the Port, departing SRVs shall delay their 
departure from the Port, unless extraordinary circumstances, defined in 
the Plan, require that the departure is not delayed. The departure 
delay shall continue until either the observed whale has been visually 
(during daylight hours) confirmed as more than 0.6 mi (1 km) from the 
Port or 30 minutes have passed without another confirmed detection 
either acoustically within the acoustic detection range of the two ABs 
closest to the Port or visually within 0.6 mi (1 km) from Neptune.
    (C) SRVs that are approaching or departing from the Port and are 
within the Area to be Avoided (ATBA) surrounding Neptune shall remain 
at least 0.6 mi (1 km) away from any visually detected right whales and 
at least 100 yd (91 m) away from all other visually detected whales 
unless extraordinary circumstances, as defined in Section 1.2 of the 
Plan in Neptune's application, require that the vessel stay its course. 
The ATBA is defined in 33 CFR 150.940. It is the largest area of the 
Port marked on nautical charts, and it is enforceable by the USCG in 
accordance with the 33 CFR 150.900 regulations. The Vessel Master shall 
designate at least one lookout to be exclusively and continuously 
monitoring for the presence of marine mammals at all times while the 
SRV is approaching or departing Neptune.
    (D) Neptune will ensure that other vessels providing support to 
Neptune operations during regasification activities that are 
approaching or departing from the Port and are within the ATBA shall be 
operated so as to remain at least 0.6 mi (1 km) away from any visually 
detected right whales and at least 100 yd (91 m) from all other 
visually detected whales.

Additional Mitigation Measures Required by NMFS

    In addition to the mitigation measures in Neptune's application, 
NMFS has required the following measures in these regulations in order 
to ensure the least practicable adverse impact on the affected species 
or stocks:
    (1) Neptune must immediately suspend any repair and maintenance or 
operations activities if a dead or injured marine mammal is found in 
the vicinity of the project area, and the death or injury of the animal 
could be attributable to the LNG facility activities. Upon finding a 
dead or injured marine mammal, Neptune must contact NMFS, the Northeast 
Stranding and Disentanglement Program, and the USCG. NMFS will review 
the documentation submitted by the PSO and attempt to attribute a cause 
of death. Activities will not resume until review and approval has been 
given by NMFS.
    (2) PSOs will direct a moving vessel to slow to idle if a baleen 
whale is seen less than 0.6 mi (1 km) from the vessel.
    (3) Use of lights during repair or maintenance activities shall be 
limited to areas where work is actually occurring, and all other lights 
must be extinguished. Lights must be downshielded to illuminate the 
deck and shall not intentionally illuminate surrounding waters, so as 
not to attract whales or their prey to the area.

[[Page 34162]]

Mitigation Conclusions

    NMFS has carefully evaluated the applicant's proposed mitigation 
measures and considered a range of other measures in the context of 
ensuring that NMFS prescribes the means of effecting the least 
practicable adverse impact on the affected marine mammal species and 
stocks and their habitat. Our evaluation of potential measures included 
consideration of the following factors in relation to one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     The practicability of the measure for applicant 
implementation.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS or recommended by the public, 
NMFS has determined that the mitigation measures described above, 
including the adaptive management component (see the ``Adaptive 
Management'' section later in this document), provide the means of 
effecting the least practicable adverse impact on marine mammal species 
or stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(A) of 
the MMPA states that NMFS must, where applicable, set forth 
``requirements pertaining to the monitoring and reporting of such 
taking.'' The MMPA implementing regulations at 50 CFR 216.104(a)(13) 
indicate that requests for ITAs must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the action area.
    Neptune proposed both visual and acoustic monitoring programs in 
the Plan contained in the application. Summaries of those plans, as 
well as the proposed reporting, are contained here.

Passive Acoustic Monitoring

    Neptune LNG will deploy and maintain a passive acoustic detection 
network along a portion of the TSS and in the vicinity of Neptune. This 
network will consist of autonomous recording units (ARUs) and near-
real-time ABs. To develop, implement, collect, and analyze the acoustic 
data obtained from deployment of the ARUs and ABs, as well as to 
prepare reports and maintain the passive acoustic detection network, 
Neptune LNG has engaged the Cornell University Bioacoustic Research 
Program (BRP) in Ithaca, New York, and the Woods Hole Oceanographic 
Institution (WHOI) in Woods Hole, Massachusetts.
    During June 2008, an array of 19 passive seafloor ARUs was deployed 
by BRP for Neptune. The layout of the array centered on the terminal 
site and was used to monitor the noise environment in Massachusetts Bay 
in the vicinity of Neptune during construction of the Port and 
associated pipeline lateral. The ARUs were not designed to provide 
real-time or near-real-time information about vocalizing whales. 
Rather, archival noise data collected from the ARU array were used for 
the purpose of understanding the seasonal occurrences and overall 
distributions of whales (primarily North Atlantic right whales) within 
approximately 11.5 mi (18.5 km) of the Neptune Port. Neptune LNG will 
maintain these ARUs in the same configuration for a period of 5 years 
during operation of the Neptune Port in order to monitor the actual 
acoustic output of port operations and to alert NOAA to any 
unanticipated effects of port operations, such as large scale 
abandonment by marine mammals of the area. To further assist in 
evaluations of Neptune's acoustic output, source levels associated with 
DP of SRVs at the buoys will be estimated using empirical measurements 
collected from the passive detection network. If it is determined that 
this network is insufficient to collect the data, then source levels 
shall be collected from a platform as close as practicable to thrusters 
while in use.
    In addition to the ARUs, Neptune LNG has deployed 10 ABs within the 
Separation Zone of the TSS for the operational life of the Port. The 
purpose of the AB array is to detect the presence of vocalizing North 
Atlantic right whales. Each AB has an average detection range of 5.8 mi 
(9.3 km) from the AB, although detection ranges will vary based on 
ambient underwater conditions. The AB system will be the primary 
detection mechanism that alerts the SRV Master to the occurrence of 
right whales in the TSS and triggers heightened SRV awareness. The 
configurations of the ARU array and AB network (see Figure 3 in the 
Plan in Neptune's application) were based upon configurations developed 
and recommended by NOAA personnel.
    Each AB deployed in the TSS will continuously screen the low-
frequency acoustic environment (less than 1,000 Hz) for right whale 
contact calls occurring within an approximately 5.8-mi (9.3-km) radius 
from each buoy (the ABs' detection range) and rank detections on a 
scale from 1 to 10. Each AB shall transmit up to 10 clips with ratings 
6-10 in near-real-time via Iridium satellite link to the BRP server Web 
site every 20 minutes during periods of heightened awareness (otherwise 
AB detections are transmitted at a rate of 5 clips per 6 hours). This 
20-minute transmission schedule was determined by consideration of a 
combination of factors including the tendency of right whale calls to 
occur in clusters (leading to a sampling logic of listening for other 
calls rather than transmitting immediately upon detection of a possible 
call) and the amount of battery power required to complete a satellite 
transmission. Additional details on the protocol can be found in 
Neptune's application.
    Additional passive acoustic monitoring shall be required, on a 
case-by-case basis, during both planned and emergency repair activities 
in order to better detect right whales in the area of repair work and 
to collect additional data on the noise levels produced during repair 
and maintenance activities. Neptune shall work with NOAA (NMFS and 
SBNMS) to evaluate when to install real-time passive acoustic detection 
buoys to provide early warnings for potential occurrence of right 
whales in the vicinity of the repair area. The number of passive 
acoustic detection buoys installed around the activity site, if deemed 
necessary, shall be commensurate with the type and spatial extent of 
maintenance/repair work required but must be sufficient to detect 
vocalizing right whales within the 120-dB impact zone. In addition, 
Neptune shall provide NMFS with empirically measured source level data 
for all sources of noise associated with LNG port maintenance and 
repair activities. Measurements shall be carefully planned and 
coordinated with noise-producing activities and shall be collected from 
the passive detection network.

Visual Monitoring

(1) Maintenance and Repair Activities
    During maintenance- and repair-related activities, Neptune LNG 
shall employ qualified PSOs on each vessel that has a DP system. All 
PSOs must

[[Page 34163]]

receive training and be approved in advance by NOAA after a review of 
their qualifications. Qualifications for these PSOs shall include 
direct field experience on a marine mammal observation vessel and/or 
aerial surveys in the Atlantic Ocean/Gulf of Mexico. Two PSOs are on-
duty at all times. Each vessel typically has four PSOs on-board at all 
times. The PSOs (one primary and one secondary) are responsible for 
visually locating marine mammals at the ocean's surface and, to the 
extent possible, identifying the species. The primary PSO shall act as 
the identification specialist, and the secondary PSO will serve as data 
recorder and will assist with identification. Both PSOs shall have 
responsibility for monitoring for the presence of marine mammals.
    The PSOs shall monitor the area where maintenance and repair work 
is conducted using the naked eye, hand-held binoculars, and/or power 
binoculars (e.g, Big Eyes). Two PSOs are on-duty 24 hours/day and 
switch between primary and secondary duties (as described in the 
previous paragraph) about every 40-60 minutes. During nighttime 
watches, PSOs are equipped with night vision devices. All sightings 
must be recorded on marine mammal field sighting logs.
(2) Operations
    While an SRV is navigating within the designated TSS, three people 
have lookout duties on or near the bridge of the ship including the SRV 
Master, the Officer-of-the-Watch, and the Helmsman on watch. In 
addition to standard watch procedures, while the SRV is within the ATBA 
and/or while actively engaging in the use of thrusters, an additional 
lookout shall be designated to exclusively and continuously monitor for 
marine mammals. Once the SRV is moored and regasification activities 
have begun, the vessel is no longer considered to be in ``heightened 
awareness'' status. However, when regasification activities conclude 
and the SRV prepares to depart from Neptune, the Master shall once 
again ensure that the responsibilities as defined in the Plan are 
carried out. All sightings of marine mammals by the designated lookout, 
individuals posted to navigational lookout duties, and/or any other 
crew member while the SRV is within the TSS, in transit to the ATBA, 
within the ATBA, and/or when actively engaging in the use of thrusters 
shall be immediately reported to the Officer-of-the-Watch who shall 
then alert the Master.

Reporting Measures

    Since the Neptune Port is within the Mandatory Ship Reporting Area 
(MSRA), all SRVs transiting to and from Neptune shall report their 
activities to the mandatory reporting section of the USCG to remain 
apprised of North Atlantic right whale movements within the area. All 
vessels entering and exiting the MSRA shall report their activities to 
WHALESNORTH. Vessel operators shall contact the USCG by standard 
procedures promulgated through the Notice to Mariner system.
    For major repair work associated with the pipeline lateral or other 
port components, Neptune LNG shall notify the appropriate NOAA 
personnel as soon as practicable after it is determined that repair 
work must be conducted. During maintenance and repair of the pipeline 
lateral or other port components, weekly status reports must be 
provided to NOAA. The weekly report must include data collected for 
each distinct marine mammal species observed in the project area during 
the period of the repair activity. The weekly reports shall include the 
following:
     The location, time, and nature of the pipeline lateral 
repair activities;
     Whether the DP system was operated and, if so, the number 
of thrusters used and the time and duration of DP operation;
     Marine mammals observed in the area (number, species, age 
group, and initial behavior);
     The distance of observed marine mammals from the repair 
activities;
     Observed marine mammal behaviors during the sighting;
     Whether any mitigation measures were implemented;
     Weather conditions (sea state, wind speed, wind direction, 
ambient temperature, precipitation, and percent cloud cover, etc.);
     Condition of the marine mammal observation (visibility and 
glare); and
     Details of passive acoustic detections and any action 
taken in response to those detections.
    For minor repairs and maintenance activities, the following 
protocols will be followed:
     All vessel crew members will be trained in marine mammal 
identification and avoidance procedures;
     Repair vessels will notify designated NOAA personnel when 
and where the repair/maintenance work is to take place along with a 
tentative schedule and description of the work, as soon as practicable 
after it is determined that repair work must be conducted;
     Vessel crews will record/document any marine mammal 
sighting(s) during the work period; and
     At the conclusion of the repair/maintenance work, a report 
will be delivered to designated NOAA personnel describing any marine 
mammal sightings, the type of work taking place when the sighting 
occurred, and any avoidance actions taken during the repair/maintenance 
work.
    During all phases of project repair/maintenance activities and 
operation, sightings of any injured or dead marine mammals will be 
reported immediately to the USCG, NMFS, and the Northeast Stranding and 
Disentanglement Program, regardless of whether the injury or death is 
caused by project activities. Sightings of injured or dead marine 
mammals not associated with project activities can be reported to the 
USCG on VHF Channel 16 or to NMFS Stranding and Entanglement Hotline. 
In addition, if the injury or death was caused by a project vessel 
(e.g., SRV, support vessel, or repair/maintenance vessel), USCG must be 
notified immediately, and a full report must be provided to NMFS, 
Northeast Regional Office, and NMFS, Office of Protected Resources. The 
report must include the following information: (1) The time, date, and 
location (latitude/longitude) of the incident; (2) the name and type of 
vessel involved; (3) the vessel's speed during the incident; (4) a 
description of the incident; (5) water depth; (6) environmental 
conditions (e.g., wind speed and direction, sea state, cloud cover, and 
visibility); (7) the species identification or description of the 
animal; (8) the fate of the animal; and (9) photographs or video 
footage of the animal (if equipment is available). Activities will not 
resume until review and approval has been given by NMFS.
    An annual report on marine mammal monitoring and mitigation will be 
submitted to NMFS, Office of Protected Resources, and NMFS, Northeast 
Regional Office, on August 1 of each year. The annual report shall 
cover the time period of January 1 through December 31 of the previous 
year for each year of activity. The weekly and annual reports shall 
include data collected for each distinct marine mammal species observed 
in the project area in Massachusetts Bay during the period of LNG 
facility operations and repair/maintenance activities. The annual 
report shall also include a 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 and repair/maintenance

[[Page 34164]]

activities. Additional information that will be recorded by Neptune or 
its contractors during operation and repair/maintenance activities and 
contained in the reports include: results of empirical source level 
estimation for thrusters while in use and activities associated with 
maintenance and repair events, date and time of marine mammal 
detections (visually or acoustically), weather conditions, species 
identification, approximate distance from the source, activity of the 
vessel or at the repair site when a marine mammal is sighted, and 
whether thrusters were in use and, if so, how many at the time of the 
sighting.
    In addition to annual reports, Neptune must submit a draft 
comprehensive final report to NMFS, Office of Protected Resources, and 
NMFS, Northeast Regional Office, 180 days prior to the expiration of 
these regulations. This comprehensive technical report shall provide 
full documentation of methods, results, and interpretation of all 
monitoring during the first 4.5 years of the LOA. A revised final 
comprehensive technical report, including all monitoring results during 
the entire period of the LOAs will be due 90 days after the end of the 
period of effectiveness of the regulations.

General Conclusions Drawn From Previous Monitoring Reports

    Throughout the construction period (July 2008-November 2009 with 
work stoppages during peak right whale season), Neptune submitted 
weekly reports on marine mammal sightings in the area. While it is 
difficult to draw biological conclusions from these reports, NMFS can 
make some general conclusions. Data gathered by PSOs is generally 
useful to indicate the presence or absence of marine mammals (often to 
a species level) within the safety zones (and sometimes without) and to 
document the implementation of mitigation measures. Though it is by no 
means conclusory, it is worth noting that no instances of obvious 
behavioral disturbance as a result of Neptune's activities were 
observed by the PSOs. Of course, these observations only cover the 
animals that were at the surface and within the distance that the PSOs 
could see. Neptune has not yet conducted any repair or maintenance 
activities at the Port.
    As described previously in this document, Neptune was required to 
maintain an acoustic array to monitor calling North Atlantic right 
whales (humpback and fin whale calls were also able to be detected). 
The ARUs log continuous acoustic data for up to 110 days per each 
deployment. At the end of each ARU recording cycle, the 19 units are 
recovered by BRP personnel. The data are analyzed based on seven 
objectives, which are as follows: (1) Determine daily presence of fin 
whale sounds; (2) determine daily presence of humpback whale sounds; 
(3) determine hourly presence of right whale sounds; (4) estimate 
locations and numbers of vocalizing right whales in the monitoring area 
each day; (5) estimate sound exposure for each locatable vocalizing 
whale; (6) assess noise conditions; and (7) improve analysis software 
applications.
    Cornell BRP analyzed the data and submitted a report covering the 
initial construction phase of the project, which occurred in 2008. 
While acoustic data can only be collected if the animals are actively 
calling, the report indicates that humpback and fin whales were heard 
calling on at least some of the ARUs on all construction days, and 
right whale calls were heard only 28 percent of the time during active 
construction days. Background noise analysis revealed definite 
increases in acoustic noise in association with the different types of 
construction activities with increases highest in the right whale band 
and next highest in the humpback band. The report asserted that the 
influence of construction activities on the acoustic habitat that was 
monitored could not be adequately evaluated by simply counting the 
number of detected whales exposed to a received noise level above 120 
dB.
    The September 2010 ARU quarterly passive acoustic monitoring status 
report indicates that only a small portion of the 2010 data have been 
analyzed to date. The final Marine Mammal Acoustic Monitoring and 
Analysis for the Operation of the Neptune Liquefied Natural Gas 
Terminal: 1 January-31 December 2010 will be submitted to NOAA, USGC, 
and MARAD by July 31, 2011.
    The AB network has been deployed and operational in the Boston TSS 
since January 2010. Acoustic data from these buoys are sent to the BRP 
Cornell lab in near-real-time for analysis for the presence of North 
Atlantic right whales in the monitoring area. Positive North Atlantic 
right whale detections are relayed to SRVs during transit through the 
shipping lanes. The cycle of data analysis and information submission 
is a 24 hrs/day, 7 days/week operation when SRVs are in the monitoring 
area. To date, Cornell has prepared and submitted two reports for the 
AB system for 2010: January-June time period and July-September time 
period.
    There are two monitoring conditions that dictate the tasks 
performed by analysts at BRP: ``normal'' monitoring conditions and 
``heightened watch'' monitoring conditions. During ``normal'' 
monitoring conditions (i.e., no SRVs are present in the monitoring 
area), analysts at BRP monitor and report on North Atlantic right whale 
activity twice a day. During ``heightened watch'' monitoring conditions 
(i.e., when a SRV is 24 hours from the TSS AB coverage area, traveling 
through the Boston Shipping Lanes or transiting to the Neptune Port 
from the Boston Shipping Lanes) analysts at BRP monitor and report on 
North Atlantic right whale acoustic activity in near-real-time. Table 1 
in this document outlines the detections and data that were recorded on 
the ABs from January-September 2010. The highest number of detections 
was recorded in March and the lowest number recorded in June. During 
the period January-September 2010, there were two SRV visits to the 
Port. This resulted in ``heightened watch'' monitoring conditions of 
the AB array for 2 days in February, 2 days in March, 7 days in April, 
1 day in May, 1 day in July, and 7 days in August. The passive acoustic 
arrays will remain deployed during the effective period of these 
regulations in order to obtain information during the operational phase 
of the Port facility.

 Table 1--Information on North Atlantic Right Whale Call Data Collected From the AB Array Deployed Near the Neptune Port From January Through September
                                                                          2010
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                January    February      March       April        May        June        July       August     September
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of ABs with a detection..............          8          10          10          10          10           5           8           8           8
Total number of detections for all ABs......        328         573       3,874       2,786       1,538          34          64         112         189
Highest number of detections on a single day         58         103       1,059         255         186           8          26          35          43
                                              (Jan. 14)   (Feb. 25)   (Mar. 25)   (Apr. 24)     (May 1)   (Jun. 15)    (Jul. 3)   (Aug. 14)   (Sep. 18)
Number of days with no recorded detections..          5           2           0           0           1          14          16           9          11
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 34165]]

Adaptive Management

    NMFS has included an adaptive management component in the 
regulations governing the take of marine mammals incidental to 
operation and repair/maintenance activities at the Neptune Port. In 
accordance with 50 CFR 216.105(c), regulations for the proposed 
activity must be based on the best available information. As new 
information is developed, through monitoring, reporting, or research, 
the regulations may be modified, in whole or in part, after notice and 
opportunity for public review and comment. The use of adaptive 
management will allow NMFS to consider new information from different 
sources to determine if mitigation or monitoring measures should be 
modified (including additions or deletions) if new data suggest that 
such modifications are appropriate for subsequent LOAs.
    The following are some of the possible sources of applicable data:
     Results from Neptune's monitoring from the previous year;
     Results from general marine mammal and sound research; or
     Any information which reveals that marine mammals may have 
been taken in a manner, extent or number not authorized by these 
regulations or subsequent LOAs.
    If, during the effective period of the regulations, new information 
is presented from monitoring, reporting, or research, these regulations 
may be modified, in whole, or in part after notice and opportunity for 
public review and comment, as allowed for in 50 CFR 216.105(c). In 
addition, LOAs shall be withdrawn or suspended if, after notice and 
opportunity for public comment, the Assistant Administrator finds, 
among other things, that the regulations are not being substantially 
complied with or the taking allowed is having more than a negligible 
impact on the species or stock, as allowed for in 50 CFR 216.106(e). 
That is, should substantial changes in marine mammal populations in the 
project area occur or monitoring and reporting show that the Port 
operations are having more than a negligible impact on marine mammals, 
then NMFS reserves the right to modify the regulations and/or withdraw 
or suspend LOAs after public review and comment.

Comments and Responses

    On December 21, 2010 (75 FR 80260), NMFS published a proposed rule 
in response to Neptune's request to take marine mammals incidental to 
port commissioning and operations, including maintenance and repair 
activities, at its Deepwater Port in Massachusetts Bay and requested 
comments, information, and suggestions concerning the request. During 
the 45-day public comment period, NMFS received comments from two 
private individuals and the Marine Mammal Commission (MMC). NMFS has 
responded to these comments here.
    Comment 1: One of the private citizen letters noted the continual 
harassment and stress sustained by marine mammals from human 
activities, and, therefore, urged that the regulations be denied.
    Response: NMFS considered the potential for harassment from these 
activities in its impacts analysis in the proposed rule (75 FR 80260, 
December 21, 2010). Authorization for incidental takings shall be 
granted if NMFS finds that the taking will have a negligible impact on 
the species or stock(s), will not have an unmitigable adverse impact on 
the availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. Based on the assessment in the proposed rule and 
contained later in this document, NMFS determined that the level of 
harassment from these activities would take only small numbers of 
marine mammals and would not have more than a negligible impact on the 
affected species or stocks. There are no relevant subsistence uses of 
marine mammals implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or stocks would 
not have an unmitigable adverse impact on the availability of such 
species or stocks for taking for subsistence purposes. The permissible 
methods of taking and the required mitigation, monitoring, and 
reporting measures are laid out in this final rule.
    Comment 2: The second private citizen letter expressed 
contradicting points of view. It stated on the one hand that NMFS 
should not stop LNG operations, as it would force increased prices for 
the public. However, the letter also stated that NMFS should take 
positive steps to protect marine mammals.
    Response: NMFS is not the agency with regulatory authority over 
offshore deepwater LNG ports. That authority falls to the USCG and 
MARAD. Therefore, those are the agencies that either allow or deny LNG 
port construction and operation. NMFS authorizes the take of marine 
mammals incidental to a specified activity if certain findings are 
made. Those findings are described in the ``Background'' section found 
earlier in this document. The final rule and associated LOA contain 
mitigation and monitoring measures to ensure the least practicable 
adverse impact on marine mammal species and stocks in the Port area.
    Comment 3: The MMC expressed three concerns with the information in 
the proposed rule as to the derivation of take estimates. First, the 
MMC expressed concern about the 120-dB zones that were used as they 
were smaller than those derived from in-situ measurements and 
incorporated into models in appendices in Neptune's application. This 
resulted in an underestimation of the zones of exposure. Second, the 
hypothetical strip width that was used by NMFS was much smaller than 
the strip width used during the surveys, thus producing overestimates 
of marine mammal densities in the area. Lastly, NMFS only estimated 
take from repair and maintenance activities and DP but not 
weathervaning.
    The MMC is concerned that the presence of these errors and 
omissions in the proposed rule may have compromised the public's 
opportunity to comment meaningfully on the proposed authorization. 
Without seeing the new analyses, it is difficult to know whether the 
final rule will differ significantly enough from the proposed rule that 
an additional opportunity for public review and comment should be 
provided. Therefore, the MMC recommends that NMFS allow for an 
additional opportunity for public review and comment before publication 
of a final rule if the recalculated takes or zones in which takes might 
occur are significantly greater than those described in the proposed 
rule. If NMFS determines that additional notice and opportunity to 
comment are not needed, the MMC recommends that NMFS ensure that the 
revised estimates of the zones of exposure and anticipated takes for 
each of the three proposed activities are provided in the final rule, 
together with the rationale for not providing an additional opportunity 
for public review and comment.
    Response: NMFS has revised the take estimates in this final rule 
from those contained in the proposed rule. A summary of the revisions 
is provided here, and more details can be found in the ``Estimated Take 
by Incidental Harassment'' section found later in this document.
    As noted by the MMC, NMFS inadvertently did not estimate takes from 
weathervaning in the proposed rule. Takes from this activity (in

[[Page 34166]]

addition to DP use and repair/maintenance activities) have now been 
calculated and added to the total annual take estimate for each 
species. NMFS estimated that Neptune would require up to 8 days/year to 
conduct weathervaning to maintain position at the Port. This is based 
on information contained in their application and associated 
appendices. Including this activity only added a very small number of 
individuals of each species to the overall take totals for each 
species.
    In December 2009, LGL Limited completed a Second Supplementary 
Biological Effects Report titled Assessment of the Effects of 
Underwater Noise from Thrusters to be Used on the Neptune LNG Project 
(LGL, 2009). This report incorporated measurements of the SRVs 
conducted by Samsung and new transmission loss modeling by JASCO 
Applied Sciences. This report presents zones of influence (ZOIs; e.g., 
the area ensonified by the 120-dB contour) for DP during thruster use 
for docking and undocking, weathervaning (to maintain position on the 
mooring), and repair and maintenance activities. For each of these 
three activities that have the potential to result in take of marine 
mammals, LGL presented a range for the radius of the 120-dB isopleth. 
NMFS took the average (or mean) value for each of these three radii to 
determine the ZOIs for each activity and the amount of take for each 
species. NMFS used the following radii (and ZOIs) in its take 
calculations:
     DP during thruster use for docking and undocking: Radius 
of 2.33 mi (3.75 km) and an area of 17.06 mi\2\ (44.18 km\2\);
     Weathervaning: Radius of 3.2 mi (5.15 km) and an area of 
32.17 mi\2\ (83.32 km\2\); and
     Repair and maintenance activities: Radius of 4.38 mi (7.05 
km) and an area of 60.29 mi\2\ (156.14 km\2\).
    The radius for DP increased only slightly between the proposed and 
final rules from 1.9 mi (3 km) to 2.33 mi (3.75 km). The increase in 
radius (and therefore ZOI) from repair and maintenance activities had a 
more dramatic increase between the proposed and final rules: 2.4 mi 
(3.9 km) to 4.38 mi (7.05 km). However, the radius for repair and 
maintenance activities assumes that all such activities would be 
similar to construction activities. Activities during construction were 
noisier and required more vessels on site at the same time than what 
would be expected for most repair or maintenance type activities. 
Therefore, this radius and associated ZOI are likely overestimates, as 
many of the activities would not occur on this large of a scale.
    As noted by the MMC, NMFS used an extremely conservative 
hypothetical strip width in the proposed rule to derive density 
estimates. By doing so, the density estimates were severely inflated. 
NMFS has reviewed the 2006 NCCOS report from which data were used to 
determine species densities. Some of the data used a strip-transect 
survey method. The value for this was 2.3 mi (3.7 km). In order to 
convert a strip-transect value to a line transect for the strip width, 
one must divide the strip transect width by 2. Therefore, in this final 
rule, NMFS has used a strip width of 1.15 mi (1.85 km) to derive 
density estimates for the seven species discussed in the NCCOS (2006) 
report. This value is more realistic of actual field conditions than 
the original value used in the proposed rule. By using this larger 
strip width, the take estimates dropped dramatically (especially for DP 
thruster use), even with the larger ZOIs. The take estimates for DP 
thruster use with the lower density estimates and larger ensonified 
areas decreased by nearly three times the values in the proposed rule.
    NMFS has determined that there does not need to be another 
opportunity for public comment on this rule based merely on the fact 
that the take estimates have been revised. When all of the recommended 
modifications to the take estimates were made (i.e., inclusion of 
weathervaning, increasing ZOIs, and increasing strip width), the end 
result was that in all cases, the take estimates decreased slightly for 
the species described in the 2006 NCCOS report. Additionally, the 
public's opportunity to comment meaningfully was not compromised. 
Besides the MMC, only two other people submitted comment letters. 
Neither of these letters discussed the issue of take estimates or how 
the values were calculated in the proposed rule. NMFS has provided 
ample explanation for how the estimates were derived in this final rule 
and where changes in derivation were made from the proposed rule.
    Comment 4: The MMC recommends that NMFS adopt a consistent 
requirement that mitigation zones be clear of all species of marine 
mammals for 30 minutes before initiation or resumption of activities.
    Response: NMFS has changed the requirement that repair and 
maintenance activities not resume until the marine mammal has been 
positively confirmed to have left the mitigation zone to also state 
that if the animal has not been re-sighted for 30 minutes in the 
appropriate mitigation zone that activities may resume. This change is 
consistent with requirements and conditions contained in other MMPA 
ITAs.
    Comment 5: The MMC notes that the proposed rule uses a 0.6-mi (1-
km) radius of the area that must be visible for certain activities and 
a 0.5-mi (0.8-km) radius for repair and maintenance activities. The 
basis for allowing lower visibility for certain activities is not 
clear. The MMC recommends that NMFS require that visibility also be at 
least 0.6 mi (1 km) before maintenance and repair activities can 
proceed or provide a reasoned basis for allowing these activities under 
poorer visibility.
    Response: NMFS has changed the visibility requirement for repair 
and maintenance activities in the final rule to be consistent with that 
of other activities for which mitigation is required in the rule. NMFS 
agrees with the MMC that there is no reason for the discrepancy in the 
visibility distances and therefore has made the requested change. The 
mitigation requirements for such activities now state that a zone of 
0.6 mi (1 km) must be visible.
    Comment 6: The MMC also questions whether the planned visual 
monitoring is adequate for mitigation purposes. The proposed rule 
specifies that PSOs would conduct visual monitoring for 40 minutes each 
hour, beginning at daybreak. With that 20-minute break each hour, if 
the Port operates 24 hours/day, then in a season with 12 hours of daily 
sunlight, observers would be on watch for a total of 8 hours only--that 
is, during one-third of operations. In essence, NMFS' approach implies 
that visual monitoring is necessary for mitigation purposes only at 
certain times, and the MMC does not see the basis for that conclusion. 
To address that concern, the MMC recommends that NMFS (1) require that 
PSOs monitor continuously for the presence of marine mammals when 
activities occur during daylight hours and (2) either prohibit 
nighttime operations or adopt measures that it can demonstrate to be 
reliable for detecting all marine mammals within the specified 
mitigation zones under nighttime conditions.
    Response: The information contained in the proposed rule about the 
procedures used by PSOs during repair and maintenance activities at the 
Neptune Port was not described clearly. Additional information has been 
added to the ``Monitoring and Reporting'' section of this document to 
add clarity.
    PSOs are on-duty continuously to monitor for the presence of marine 
mammals. This includes work done during nighttime hours. Two PSOs are 
on-watch at all times and take turns during the shift between being the

[[Page 34167]]

primary observer watching for marine mammals and the secondary observer 
who records sightings in the log book and watches for marine mammals 
when not entering data. Should repair and maintenance activities occur 
during nighttime hours, PSOs are equipped with night vision devices. 
These devices have proven to be useful within the small distances that 
are encompassed by the mitigation zones for this project.
    Comment 7: The MMC believes that NMFS' determination under the MMPA 
that these activities will have a negligible impact on marine mammal 
species or stocks needs to take into account possible cumulative 
effects, even if cumulative effects analyses have been conducted under 
the National Environmental Policy Act (NEPA). Unless such an analysis 
is done, NMFS could continue indefinitely to grant ITAs for individual 
activities that, by themselves, have a negligible impact even though 
the combined total of all impacts might significantly impede a species' 
recovery or contribute to its further decline. With that concern in 
mind, the MMC recommends that NMFS include in its final rule an 
analysis evaluating the impact of the proposed operations together with 
the cumulative impacts of all the other pertinent risk factors 
affecting right whales and other marine mammals that occur in the Port 
area and explain why it believes that the combined impacts would be 
negligible.
    Response: NMFS considered the cumulative effects analysis contained 
in the USCG's and MARAD's 2006 Final EIS and other relevant data to 
inform its MMPA determination here. NMFS was a cooperating agency in 
the development of both the Draft and Final EISs for this project. 
Pursuant to NEPA, those documents contained a cumulative impacts 
assessment, as well as an assessment of the impacts of the proposed 
Neptune Port construction, operation, and abandonment on marine mammals 
and other protected resources.
    Section 101(a)(5)(A) of the MMPA and its implementing regulations 
require NMFS to consider a request for the taking of marine mammals 
incidental to a specified activity within a specified geographical 
region and, assuming certain findings can be made, to authorize the 
taking of small numbers of marine mammals while engaged in that 
activity. NMFS has defined ``specified activity'' in 50 CFR 216.103 as 
``any activity, other than commercial fishing, that takes place in a 
specified geographical region and potentially involves the taking of 
small numbers of marine mammals.'' When making a negligible impact 
determination, NMFS considers the total impact during each 5-year 
period resulting from the specified activity only and supports its 
determination by relying on factors such as: (1) The number of 
anticipated mortalities from the activity; (2) the number and nature of 
anticipated injuries from the activity; (3) the number, nature, 
intensity, and duration of Level B harassment resulting from the 
activity; and (4) the context in which the takes occur.
    NMFS considered the impacts analyses (i.e., direct, indirect, and 
cumulative) contained in the 2006 EIS in reaching its conclusion that 
any marine mammals exposed to the low level sounds produced by 
operations or repair/maintenance activities at the Neptune Port would 
be disturbed for only a short period of time and would not be harmed or 
killed. Furthermore, the required mitigation and monitoring measures 
are expected to reduce the likelihood or severity of any impacts to 
marine mammals over the course of these activities.
    Moreover, NMFS gave careful consideration to a number of other 
issues and sources of information. In particular, NMFS relied upon a 
number of scientific reports, including the 2009 and 2010 U.S. Atlantic 
and Gulf of Mexico Marine Mammal SARs to support its findings. The SARs 
contain a description of each marine mammal stock, its geographic 
range, a minimum population estimate, current population trends, 
current and maximum net productivity rates, optimum sustainable 
population levels and allowable removal levels, and estimates of annual 
human-caused mortality and serious injury through interactions with 
commercial fisheries. NMFS also used data from the 2006 NCCOS report to 
determine density levels of several of the marine mammal species in the 
proposed activity area.
    After careful consideration of the proposed activities, the context 
in which Neptune's proposed activities would occur, the best available 
scientific information, and all effects analyses (including cumulative 
effects), NMFS has determined that the taking from the specified 
activities: (1) Would not result in more than the behavioral harassment 
(i.e., Level B harassment) of small numbers of marine mammal species or 
stocks; (2) would not result in more than a negligible impact on 
affected species or stocks; and (3) would not have an unmitigable 
adverse impact on the availability of such species or stocks for taking 
for subsistence uses. Therefore NMFS has decided to issue regulations 
and associated LOA(s) to Neptune to take, by no more than Level B 
harassment, small numbers of marine mammals incidental to operation and 
repair/maintenance activities at the Neptune Port off Massachusetts.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: ``any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment].'' Only take by Level B harassment is 
anticipated as a result of Neptune's operational and repair/maintenance 
activities. Anticipated take of marine mammals is associated with 
thruster sound during maneuvering of the SRVs while docking and 
undocking, occasional weathervaning at the Port, and during thruster 
use of DP maintenance vessels should a major repair be necessary. The 
regasification process itself is an activity that does not rise to the 
level of taking, as the modeled source level for this activity is 110 
dB (rms). Certain species may have a behavioral reaction to the sound 
emitted during the activities; however, hearing impairment as a result 
of these activities is not anticipated. Additionally, vessel strikes 
are not anticipated, especially because of the required speed 
restriction measures that were described earlier in this document.
    For continuous sounds, such as those produced by Neptune's 
activities, NMFS uses a received level of 120-dB (rms) to indicate the 
onset of Level B harassment. The basis for Neptune's ``take'' estimate 
is the number of marine mammals that potentially could be exposed to 
sound levels in excess of 120 dB. This has been determined by applying 
the modeled ZOI to the seasonal use (density) of the area by marine 
mammals and correcting for seasonal duration of sound-generating 
activities and estimated duration of individual activities when the 
maximum sound-generating activities are intermittent to occasional. 
Nearly all of the required information is readily available in the 
MARAD/USCG Final EIS, with the exception of marine mammal density 
estimates for the project area. In the case of data gaps, a 
conservative approach was used to ensure that the potential number of 
takes is not underestimated, as described next.

[[Page 34168]]

    Based on comments received from the MMC, NMFS has reevaluated the 
take estimates. The following factors for developing the take estimates 
have been taken into account in this final rule, which were not 
considered in the proposed rule:
     Takes from weathervaning were also estimated (in addition 
to takes from thruster use during DP and repair and maintenance 
activities, which were estimated in the proposed rule);
     The ZOIs for each of the three activities listed here are 
taken from Appendix C3 in Neptune's application, which are taken from 
in-situ measurements and incorporated into models in Neptune's 
application instead of the ZOIs from earlier reports, which were used 
in the proposed rule; and
     Density estimates were derived using a strip width of 1.15 
mi (1.85 km) instead of the overly conservative strip width of 0.25 mi 
(0.4 km) used in the proposed rule.
    In December 2009, LGL Limited completed a Second Supplementary 
Biological Effects Report titled Assessment of the Effects of 
Underwater Noise from Thrusters to be Used on the Neptune LNG Project 
(LGL, 2009). This report incorporated measurements of the SRVs 
conducted by Samsung and new transmission loss modeling by JASCO 
Applied Sciences. This report presents ZOIs for DP during thruster use 
for docking and undocking, weathervaning (to maintain position on the 
mooring), and repair and maintenance activities. For each of these 
three activities that have the potential to result in take of marine 
mammals, LGL presented a range for the radius of the 120-dB isopleth 
and also for the 120-dB ensonified area. NMFS took the average (or 
mean) value for each of these three radii to determine the ZOIs for 
each activity and the amount of take for each species from the three 
activities. Therefore, NMFS used the following radii (and ZOIs) in its 
take calculations:
     DP during thruster use for docking and undocking: Radius 
of 2.33 mi (3.75 km) and an area of 17.06 mi\2\ (44.18 km\2\);
     Weathervaning: Radius of 3.2 mi (5.15 km) and an area of 
32.17 mi\2\ (83.32 km\2\); and
     Repair and maintenance activities: Radius of 4.38 mi (7.05 
km) and an area of 60.29 mi\2\ (156.14 km\2\).
    Additionally, in the calculation of take from repair and 
maintenance activities, the proposed rule determined that such 
activities may only need to occur for 14 days each year. However, after 
a reevaluation, NMFS has determined that it would be more appropriate 
to assume 28 days per year for repair and maintenance activities. While 
some repairs may take 3-4 weeks in any given year, there is also the 
possibility that some years may not have any repair or maintenance 
activities occur.
    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 used the data on cetacean distribution within 
Massachusetts Bay, such as those published by the NCCOS (2006), to 
determine potential takes of marine mammals in the vicinity of the 
project area. Neptune presented density estimates using the CETAP 
(1982) and U.S. Navy MRA (2005) data. The NCCOS (2006) report uses 
information from these sources; however, it also includes information 
from some other studies. Therefore, NMFS used density information for 
the species that are included in the NCCOS (2006) report. These species 
include: North Atlantic right, fin, humpback, minke, pilot, and sei 
whales and Atlantic white-sided dolphins.
    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: The CETAP, 
the Canadian Department of Fisheries and Oceans, the Provincetown 
Center for Coastal Studies, International Fund for Animal Welfare, 
NEFSC, New England Aquarium, WHOI, and the University of Rhode Island. 
A total of 406,293 mi (653,725 km) 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 NEFSC to provide an assessment of the 
relative abundance and distribution of cetaceans, seabirds, and marine 
turtles in the shelf waters of the northeastern U.S. (MBO, 1987). The 
CSAP program was designed to be completely compatible with 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 8,383 mi (5,210 km) 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 913,840 mi (567,955 km) of survey track for small 
cetaceans (dolphins and porpoises) and 1,060,226 mi (658,935 km) 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.
    Based on 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 was provided in the 
proposed rule, in the ``Description of Marine Mammals in the Area of 
the Specified Activity'' section (75 FR 80260, December 21, 2010). For 
a detailed description and calculation of the cetacean abundance data 
and SPUE, refer to the NCCOS study (NCCOS, 2006). SPUE for all four 
seasons were analyzed, and the highest value SPUE for the season with 
the highest abundance of each species was used to determine relative 
abundance. Based on the data, the relative abundance of North Atlantic 
right, fin, humpback, minke, sei, and pilot whales and Atlantic white-
sided dolphins, as calculated by SPUE in number of animals per square 
kilometer, is 0.0082, 0.0097, 0.0265, 0.0059, 0.0084, 0.0407, and 
0.1314 n/km, respectively. Table 2 in this document outlines the 
density, abundance, take estimates, and percent of population for the 
14 species for which NMFS is authorizing Level B harassment.
    In calculating the area density of these species from these linear 
density data, NMFS used 1.15 mi (1.85 km) as the strip width (W). This 
is larger than the extremely conservative hypothetical strip width of 
0.25 mi (0.4 km) that was used in the proposed rule. This revised strip 
width is based on the distance of

[[Page 34169]]

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

D = SPUE/2W.

    Based on the calculation, the estimated take numbers by Level B 
harassment on an annual basis for North Atlantic right, fin, humpback, 
minke, sei, and pilot whales and Atlantic white-sided dolphins, within 
the 120-dB ensonified area during DP of thrusters for docking and 
undocking of approximately 17.06 mi\2\ (44.18 km\2\) maximum ZOI, 
corrected for 50 percent underwater, are 7, 9, 24, 5, 2, 36, and 118, 
respectively. This estimate is based on an estimated 50 SRV trips 
annually (for all of these species except for sei whales) that will 
produce sounds of 120 dB or greater. This estimate is based on an 
estimated 12.5 SRV trips annually that will produce sounds of 120 dB or 
greater for sei whales. Sei whales only occur in the area in the 
spring. Therefore, shipments during the other three seasons will not 
result in the take of sei whales. For this reason, take from shipment 
operations has only been calculated at a quarter of the rate of the 
other species for sei whales. With the revised strip width and ZOI, the 
take estimates for these seven species from DP during thruster use is 
about one-third the estimates in the proposed rule (75 FR 80260, 
December 21, 2010).
    Based on the same calculation method described above for DP 
thruster use (but using the 120-dB ZOI of approximately 60.29 mi\2\ 
(156.14 km\2\)), the estimated take numbers by Level B harassment on an 
annual basis for North Atlantic right, fin, humpback, minke, sei, and 
pilot whales and Atlantic white-sided dolphins incidental to Port 
maintenance and repair activities, corrected for 50 percent underwater, 
are 15, 17, 47, 11, 7, 72, and 233, respectively. These numbers are 
based on 28 days of repair and maintenance activities occurring 
annually (for all of these species except for sei whales). As mentioned 
previously, sei whales only occur in the area in spring. Since most 
repair work is to be scheduled for the spring and summer seasons, the 
take estimate for sei whales was calculated based on 14 days or repair 
and maintenance activities annually. It is unlikely that this much 
repair and maintenance work would be required each year. With the 
revised strip width and ZOI, the take estimates for these seven species 
from maintenance and repair activities increased only slightly (i.e., 
no more than 9 individuals for any endangered whale species) from the 
proposed rule (75 FR 80260, December 21, 2010).
    The third activity that has the potential to take marine mammals is 
weathervaning in order to maintain position at the Port. This activity 
is not anticipated to occur for more than 8 days in any given year. 
Therefore, the take estimates are based on the possibility of 
weathervaning occurring for up to 8 days for all species except sei 
whales. Again, since sei whales only occur in the area in spring, the 
estimate for this species was calculated at one-quarter the rate (i.e., 
2 days of weathervaning per year). Using a ZOI of 32.17 mi\2\ (83.32 
km\2\), the estimated take numbers by Level B harassment on an annual 
basis for North Atlantic right, fin, humpback, minke, sei, and pilot 
whales and Atlantic white-sided dolphins incidental to weathervaning, 
corrected for 50 percent underwater, are 2, 3, 7, 2, 1, 11, 36, 
respectively.
    The total estimated annual take of each of these species as a 
result of all three activities with the potential to incidentally take 
marine mammals (i.e., DP thruster use, repair and maintenance 
activities, and weathervaning) at the Neptune Port facility is: 24 
North Atlantic right whales; 29 fin whales; 78 humpback whales; 18 
minke whales; 12 sei whales; 119 long-finned pilot whales; and 387 
Atlantic white-sided dolphins. These numbers represent a maximum of 7, 
1.3, 9.2, 0.5, 3.1, 0.9, and 0.6 percent of the populations for these 
species or stocks in the western North Atlantic, respectively. The 
revised take estimates for these seven species are lower than the take 
estimates presented in the proposed rule (75 FR 80260, December 21, 
2010). It is likely that individual animals will be ``taken'' by 
harassment multiple times (because certain individuals may occur in the 
area more than once while other individuals of the population or stock 
may not enter the project area). Additionally, the highest value SPUE 
for the season with the highest abundance of each species was used to 
determine relative abundance. Moreover, it is not expected that Neptune 
will have 50 SRV transits and LNG deliveries in the first year or two 
of operations. Therefore, these percentages represent the upper 
boundary of the animal population that could be affected. Thus, the 
actual number of individual animals being exposed or taken is expected 
to be far less, especially in the first couple of years of operation.
    In addition, bottlenose dolphins, common dolphins, Risso's 
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. Because these species are less likely to occur in the 
area, and there are no density estimates specific to this particular 
area, NMFS based the take estimates on one or two encounters with 
typical group size. Therefore, NMFS estimates that up to approximately 
10 bottlenose dolphins, 20 common dolphins, 20 Risso's dolphins, 20 
killer whales, 5 harbor porpoises, 15 harbor seals, and 15 gray seals 
could be exposed to continuous noise at or above 120 dB re 1 [mu]Pa rms 
incidental to operations (i.e., DP thruster use and weathervaning) and 
repair and maintenance activities annually, respectively. The take 
estimates for these seven species have not changed from the proposed 
rule.
    Because Massachusetts Bay represents only a small fraction of the 
western North Atlantic basin where these animals occur, NMFS has 
determined that only small numbers of the marine mammal species or 
stocks in the area would be potentially affected by the Neptune LNG 
deepwater project. The take estimates presented in this section of the 
document do not take into consideration the mitigation and monitoring 
measures required in the regulations.

[[Page 34170]]



  Table 2--Density Estimates, Population Abundance Estimates, Total Annual Authorized Take (When Combine Takes
 From DP Thruster Use, Maintenance/Repair Activities, and Weathervaning), and Percentage of Population That May
                                  Be Taken for the Potentially Affected Species
----------------------------------------------------------------------------------------------------------------
                                                                                   Total annual    Percentage of
             Species                  Density      Abundance \1\   Abundance \2\    authorized       stock or
                                                                                       take         population
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale......          0.0022             345             361              24           6.6-7
Fin whale.......................          0.0026           2,269           3,985              29         0.7-1.3
Humpback whale..................          0.0072             847             847              78             9.2
Minke whale.....................          0.0016           3,312           8,987              18         0.2-0.5
Sei whale.......................          0.0023             386             386              12             3.1
Long-finned pilot whale.........           0.011          31,139          12,619             119         0.4-0.9
Atlantic white-sided dolphin....          0.0355          63,368          63,368             387             0.6
Bottlenose dolphin..............              NA           7,489           9,604              10             0.1
Common dolphin..................              NA         120,743         120,743              20            0.02
Risso's dolphin.................              NA          20,479          20,479              20             0.1
Killer whale....................              NA              NA              NA              20              NA
Harbor porpoise.................              NA          89,054          89,054               5            0.01
Harbor seal.....................              NA          99,340              NA              15            0.02
Gray seal.......................              NA        125,541-        125,541-              15            0.01
                                                         169,064         169,064
----------------------------------------------------------------------------------------------------------------
\1\ Abundance estimates in 2009 NMFS Atlantic and Gulf of Mexico SAR;
\2\ Abundance estimates in 2010 Draft NMFS Atlantic and Gulf of Mexico SAR; NA=Not Available.

Negligible Impact and Small Numbers Analysis and Determination

    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as `` * * 
* an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.'' In making a negligible impact determination, 
NMFS considers a variety of factors, including but not limited to: (1) 
The number of anticipated mortalities; (2) the number and nature of 
anticipated injuries; (3) the number, nature, intensity, and duration 
of Level B harassment; and (4) the context in which the takes occur.
    No injuries or mortalities are anticipated to occur as a result of 
Neptune's port operation and maintenance and repair activities, and 
none are authorized by NMFS. Additionally, animals in the area are not 
anticipated to incur any hearing impairment (i.e., TTS, a Level B 
harassment, or PTS, a Level A [injury] harassment), as the modeling 
results for the SRV indicate a source level of 180 dB (rms), which is 
below the threshold used by NMFS for acoustic injury to marine mammals. 
All takes are anticipated to be by Level B behavioral harassment only. 
Certain species may have a behavioral reaction (e.g., increased swim 
speed, avoidance of the area, etc.) to the sound emitted during the 
operations and maintenance activities. Table 2 in this document 
outlines the number of Level B harassment takes that are anticipated as 
a result of the activities. These takes are anticipated to be of low 
intensity due to the low level of sound emitted by the activities 
themselves. The activities could occur year-round. However, operations 
are not anticipated to occur on successive days. Should repair or 
maintenance work be required, this could occur on successive days but 
likely only for 1-2 weeks but no more than 3-4 weeks. The activities do 
not occur in any critical habitat for the affected species, although 
there is some nearby for North Atlantic right whales. Maintenance and 
repair activities will be conducted to avoid times of year when that 
species is most likely to be in the area.
    While some of the species occur in the project area year-round, 
some species only occur in the area during certain seasons. For 
example, sei whales are only anticipated in the area during the spring. 
Therefore, if shipments and/or maintenance/repair activities occur in 
other seasons, the likelihood of sei whales being affected is quite 
low. Additionally, any repairs that can be scheduled in advance will be 
scheduled to avoid the peak time that North Atlantic right whales occur 
in the area, which usually is during the early spring. North Atlantic 
right, humpback, and minke whales are not expected in the project area 
in the winter. During the winter, a large portion of the North Atlantic 
right whale population occurs in the southeastern U.S. calving grounds 
(i.e., South Carolina, Georgia, and northern Florida). The fact that 
certain activities will occur during times when certain species are not 
commonly found in the area will help reduce the amount of Level B 
harassment for these species.
    Many animals perform vital functions, such as feeding, resting, 
traveling, and socializing, on a diel cycle (24-hr cycle). Behavioral 
reactions to noise exposure (such as disruption of critical life 
functions, displacement, or avoidance of important habitat) are more 
likely to be significant if they last more than one diel cycle or recur 
on subsequent days (Southall et al., 2007). Consequently, a behavioral 
response lasting less than one day and not recurring on subsequent days 
is not considered particularly severe unless it could directly affect 
reproduction or survival (Southall et al., 2007). Operational 
activities (i.e., DP and weathervaning) are not anticipated to occur at 
the Port on consecutive days. Once Neptune is at full operations, SRV 
shipments would occur every 4-8 days, with thruster use needed for a 
couple of hours during each shipment. Weathervaning is anticipated to 
be needed during only a small portion of the shipments. Therefore, 
Neptune will not be creating increased sound levels in the marine 
environment for several days at a time.
    Of the 14 marine mammal species likely to occur in the area, four 
are listed as endangered under the ESA: North Atlantic right, humpback, 
fin, and sei whales. These four species, as well as the northern 
coastal stock of bottlenose dolphin, are also considered depleted under 
the MMPA. The affected humpback and North Atlantic right whale 
populations have been increasing in recent years. However, there is 
insufficient data to determine population trends for the other depleted 
species in the project area. There are several well known North 
Atlantic right

[[Page 34171]]

whale feeding grounds in the CCB and GSC. However, they are outside of 
the area of the Port. As mentioned previously, to the greatest extent 
practicable, all maintenance/repair work will be scheduled during the 
May 1 to November 30 time frame to avoid peak right whale feeding in 
these areas, which occur close to the Neptune Port. Additionally, to 
protect North Atlantic right whales (and other marine mammals in the 
project area), Neptune must cease sound emitting activities and/or 
reduce vessel speed if animals enter into the designated zones. No 
mortality or injury is expected to occur and due to the nature, degree, 
and context of the Level B harassment anticipated, the activity is not 
expected to impact rates of recruitment or survival.
    The population estimates for the species that may be taken by 
harassment from the most recent U.S. Atlantic SARs were provided in 
Table 2 in this document. From the most conservative estimates of both 
marine mammal densities in the project area and the size of the 120-dB 
ZOI, the maximum calculated number of individual marine mammals for 
each species that could potentially be harassed annually is small 
relative to the overall population sizes (9.2 percent for humpback 
whales, 6.6-7 percent for North Atlantic right whales, and no more than 
3.1 percent of any other species).
    As stated previously, NMFS' practice has been to apply the 120 dB 
re 1 [micro]Pa (rms) received level threshold for underwater continuous 
sound levels to determine whether take by Level B harassment occurs. 
However, not all animals react to sounds at this low level, and many 
will not show strong reactions (and in some cases any reaction) until 
sounds are much stronger. Southall et al. (2007) provide a severity 
scale for ranking observed behavioral responses of both free-ranging 
marine mammals and laboratory subjects to various types of 
anthropogenic sound (see Table 4 in Southall et al. (2007)). Tables 15, 
17, 19, and 21 in Southall et al. (2007) outline the numbers of low-
frequency, mid-frequency, and high-frequency cetaceans and pinnipeds in 
water, respectively, reported as having behavioral responses to non-
pulses in 10-dB received level increments. These tables illustrate, 
especially for cetaceans, that more intense observed behavioral 
responses did not occur until sounds were higher than 120 dB (rms). 
Many of the animals had no observable response at all when exposed to 
anthropogenic sound at levels of 120 dB (rms) or even higher.
    The take estimates presented in this document are likely an 
overestimate of the actual number of animals that may be taken by Level 
B harassment in any given year. First, NMFS used the highest value SPUE 
for the season with the highest abundance of each species to determine 
relative abundance from the NCCOS (2006) report. However, the SPUE 
quantiles used in that report had very large ranges. For example, for 
humpback whales, NMFS used the SPUE quantile with a value of 0.1-11.8 
but used 11.8 as the SPUE to determine density. In most cases, the 
highest value SPUE in any given quantile is many magnitudes larger than 
the minimum value in that particular quantile. Second, the estimates 
assume that repairs will be required every year, which may not be the 
case. For the reasons discussed in this section of the document (and 
elsewhere), the take estimates presented by NMFS are likely an 
overestimate.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, NMFS finds that operation, including repair and maintenance 
activities, of the Neptune Port will result in the incidental take of 
small numbers of marine mammals, by Level B harassment only, and that 
the total taking from Neptune's activities will have a negligible 
impact on the affected species or stocks.
Impact on Availability of Affected Species or Stock for Taking for 
Subsistence Uses
    There are no relevant subsistence uses of marine mammals implicated 
by this action. Therefore, NMFS has determined that the total taking of 
affected species or stocks would not have an unmitigable adverse impact 
on the availability of such species or stocks for taking for 
subsistence purposes.

Endangered Species Act (ESA)

    On January 12, 2007, NMFS concluded consultation with MARAD and 
USCG under section 7 of the ESA on the proposed construction and 
operation of the Neptune LNG facility and issued a Biological Opinion. 
The finding of that consultation was that the construction and 
operation of the Neptune 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.
    On March 2, 2010, MARAD and USCG sent a letter to NMFS requesting 
reinitiation of the ESA section 7 consultation. MARAD and USCG 
determined that certain routine planned operations and maintenance 
activities, inspections, surveys, and unplanned repair work on the 
Neptune Deepwater Port pipelines and flowlines, as well as any other 
Neptune Deepwater Port component (including buoys, risers/umbilicals, 
mooring systems, and sub-sea manifolds), may constitute a modification 
not previously considered in the 2007 Biological Opinion. Construction 
of the Port facility has been completed, and, therefore, is no longer 
part of the proposed action. On July 12, 2010, NMFS' Northeast Regional 
Office issued a Biological Opinion, which concludes that the operation 
of the Neptune LNG deepwater port, including required maintenance and 
repair work, is likely to adversely affect, but is not likely to 
jeopardize the continued existence of the North Atlantic right, 
humpback, fin, and sei whales. NMFS reached this conclusion after 
reviewing the best available information on the status of endangered 
and threatened species under NMFS jurisdiction, the environmental 
baseline for the action area, the effects of the action, and the 
cumulative effects in the action area. Although MARAD served as the 
lead Federal agency for the section 7 consultation, the Biological 
Opinion also considered the effects of permits issued by the Army Corps 
of Engineers, the Federal Energy Regulatory Commission, and the 
Environmental Protection Agency for various portions of the maintenance 
and operation of the Port and associated pipeline, as well as NMFS' 
issuance of authorizations to Neptune under the MMPA for the take of 
marine mammals incidental to Port operations and maintenance/repairs. 
NMFS has determined that issuance of these regulations and subsequent 
LOAs will not have any impacts beyond those analyzed in the 2010 
Biological Opinion. NMFS' Northeast Regional Office will issue an 
Incidental Take Statement upon issuance of the LOA.

National Environmental Policy Act (NEPA)

    MARAD and the USCG released a Final EIS/Environmental Impact Report 
(EIR) for the proposed Neptune LNG Deepwater Port (see ADDRESSES). A 
notice of availability of the Final EIS/EIR was published by MARAD on 
November 2, 2006 (71 FR 64606). The Final EIS/EIR provides detailed

[[Page 34172]]

information on the proposed project facilities, construction methods, 
and analysis of potential impacts on marine mammals.
    NMFS was a cooperating agency in the preparation of the Draft and 
Final EISs based on a Memorandum of Understanding related to the 
Licensing of Deepwater Ports entered into by the U.S. Department of 
Commerce along with 10 other government agencies. On June 3, 2008, NMFS 
adopted the USCG and MARAD FEIS and issued a separate Record of 
Decision for issuance of authorizations pursuant to sections 
101(a)(5)(A) and (D) of the MMPA for the construction and operation of 
the Neptune LNG Port facility. NMFS reviewed the FEIS to ensure that 
the analysis contained in that document accurately describes and 
analyzes the impacts to the human environment of NMFS' action of 
issuing an MMPA authorization for the operation and repair and 
maintenance of the Neptune Port. NMFS has determined that the FEIS 
sufficiently covers the activities considered in this final rule.

Classification

    The Office of Management and Budget (OMB) has determined that this 
final rule is not significant for purposes of Executive Order 12866.
    At the proposed rule stage, the Chief Counsel for Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. Neptune LNG LLC is the only entity that would be subject to 
the requirements in these regulations. Neptune is one of several 
companies at GDF SUEZ Energy North America (GSENA), which itself is a 
business division of GDF SUEZ Energy Europe & International. GSENA has 
more than 2,000 employees in North America alone. Therefore, it is not 
a small governmental jurisdiction, small organization, or small 
business, as defined by the Regulatory Flexibility Act. Because of this 
certification, a regulatory flexibility analysis is not required and 
none has been prepared.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act (PRA) unless that collection of information 
displays a currently valid OMB control number. This final rule contains 
collection-of-information requirements subject to the provisions of the 
PRA. These requirements have been approved by OMB under control number 
0648-0151 and include applications for regulations, subsequent LOAs, 
and reports.

List of Subjects in 50 CFR Part 217

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties, Reporting and recordkeeping requirements, Seafood, 
Transportation.

    Dated: June 7, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set forth in the preamble, 50 CFR part 217 is amended 
as follows:

PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS 
INCIDENTAL TO SPECIFIED ACTIVITIES

0
1. The authority citation for part 217 continues to read as follows:

    Authority: 16 U.S.C. 1361 et seq.


0
2. Subpart R is added to part 217 to read as follows:
Subpart R--Taking of Marine Mammals Incidental to Operation and 
Maintenance of the Neptune Liquefied Natural Gas Facility Off 
Massachusetts
Sec.
217.170 Specified activity and specified geographical region.
217.171 Effective dates.
217.172 Permissible methods of taking.
217.173 Prohibitions.
217.174 Mitigation.
217.175 Requirements for monitoring and reporting.
217.176 Applications for Letters of Authorization.
217.177 Letters of Authorization.
217.178 Renewal of Letters of Authorization and adaptive management.
217.179 Modifications of Letters of Authorization.

Subpart R--Taking of Marine Mammals Incidental to Operation and 
Maintenance of a Liquefied Natural Gas Facility Off Massachusetts


Sec.  217.170  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to Neptune LNG LLC 
(Neptune) and those persons it authorizes to conduct activities on its 
behalf for the taking of marine mammals that occurs in the area 
outlined in paragraph (b) of this section and that occur incidental to 
commissioning and operation, including maintenance and repair 
activities, at the Neptune Deepwater Port (Port).
    (b) The taking of marine mammals by Neptune may be authorized in a 
Letter of Authorization only if it occurs at the Neptune Deepwater Port 
within Outer Continental Shelf blocks NK 19-04 6525 and NK 19-04 6575, 
which are located at approximately 42[deg]28'09'' N. lat and 
70[deg]36'22'' W. long.


Sec.  217.171  Effective dates.

    Regulations in this subpart are effective from July 11, 2011, 
through August 10, 2016.


Sec.  217.172  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec.  
216.106 and 217.177 of this chapter, the Holder of the Letter of 
Authorization (hereinafter ``Neptune'') may incidentally, but not 
intentionally, take marine mammals within the area described in Sec.  
217.170(b), provided the activity is in compliance with all terms, 
conditions, and requirements of the regulations in this subpart and the 
appropriate Letter of Authorization.
    (b) The incidental take of marine mammals under the activities 
identified in Sec.  217.170(a) is limited to the following species and 
is limited to Level B Harassment:
    (1) Mysticetes:
    (i) North Atlantic right whale (Eubalaena glacialis)--120 (an 
average of 24 annually).
    (ii) Fin whale (Balaenoptera physalus)--145 (an average of 29 
annually).
    (iii) Humpback whale (Megaptera novaeangliae)--390 (an average of 
78 annually).
    (iv) Minke whale (Balaenoptera acutorostrata)--90 (an average of 18 
annually).
    (v) Sei whale (Balaenoptera borealis)--60 (an average of 12 
annually).
    (2) Odontocetes:
    (i) Long-finned pilot whale (Globicephala melas)--595 (an average 
of 119 annually).
    (ii) Atlantic white-sided dolphin (Lagenorhynchus acutus)--1,935 
(an average of 387 annually).
    (iii) Bottlenose dolphin (Tursiops truncatus)--50 (an average of 10 
annually).
    (iv) Common dolphin (Delphinus delphis)--100 (an average of 20 
annually).
    (v) Risso's dolphin (Grampus griseus)--100 (an average of 20 
annually).
    (vi) Killer whale (Orcinus orca)--100 (an average of 20 annually).
    (vii) Harbor porpoise (Phocoena phocoena)--25 (an average of 5 
annually).
    (3) Pinnipeds:
    (i) Harbor seal (Phoca vitulina)--75 (an average of 15 annually).

[[Page 34173]]

    (ii) Gray seal (Halichoerus grypus)--75 (an average of 15 
annually).


Sec.  217.173  Prohibitions.

    Notwithstanding takings contemplated in Sec.  217.170 and 
authorized by a Letter of Authorization issued under Sec. Sec.  216.106 
and 217.177 of this chapter, no person in connection with the 
activities described in Sec.  217.170 may:
    (a) Take any marine mammal not specified in Sec.  217.172(b);
    (b) Take any marine mammal specified in Sec.  217.172(b) other than 
by incidental, unintentional Level B Harassment;
    (c) Take a marine mammal specified in Sec.  217.172(b) if such 
taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a Letter of Authorization issued under 
Sec. Sec.  216.106 and 217.177 of this chapter.


Sec.  217.174  Mitigation.

    (a) When conducting the activities identified in Sec.  217.170(a), 
the mitigation measures contained in the Letter of Authorization issued 
under Sec. Sec.  216.106 and 217.177 must be implemented. These 
mitigation measures include but are not limited to:
    (1) Major Repairs (May 1-November 30):
    (i) During repairs, if a marine mammal is detected within 0.6 mi (1 
km) of the repair vessel (or acoustically), the vessel superintendent 
or on-deck supervisor shall 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 repair 
area.
    (ii) Repair vessels shall cease any movement in the area if a 
marine mammal other than a right whale is sighted within or approaching 
to a distance of 100 yd (91 m) from the operating repair vessel. Repair 
vessels shall cease any movement in the construction area if a right 
whale is sighted within or approaching to a distance of 500 yd (457 m) 
from the operating vessel. Vessels transiting the repair area, such as 
pipe haul barge tugs, shall also be required to maintain these 
separation distances.
    (iii) Repair vessels shall cease all sound emitting activities if a 
marine mammal other than a right whale is sighted within or approaching 
to 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 repair 
vessel. The back-calculated source level, based on the most 
conservative cylindrical model of acoustic energy spreading, is 
estimated to be 139 dB re 1 [mu]Pa.
    (iv) Repair activities 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) or if the marine 
mammal has not been re-sighted in the established zones for 30 minutes.
    (v) While under way, all repair vessels shall remain 500 yd (457 m) 
away from right whales and 100 yd (91 m) away from all other marine 
mammals, unless constrained by human safety concerns or navigational 
constraints.
    (vi) All repair vessels 300 gross tons or greater must maintain a 
speed of 10 knots (18.5 km/hr) or less. Vessels less than 300 gross 
tons carrying supplies or crew between the shore and the repair site 
must contact the Mandatory Ship Reporting System, the U.S. Coast Guard 
(USCG), or the protected species observers (PSOs) at the repair site 
before leaving shore for reports of recent right whale sightings or 
active Dynamic Management Areas (DMAs) and, consistent with navigation 
safety, restrict speeds to 10 knots (18.5 km/hr) or less within 5 mi (8 
km) of any recent sighting location and within any existing DMA.
    (vii) Vessels transiting through the Cape Cod Canal and Cape Cod 
Bay (CCB) between January 1 and May 15 must reduce speeds to 10 knots 
(18.5 km/hr) or less, follow the recommended routes charted by NOAA to 
reduce interactions between right whales and shipping traffic, and 
avoid aggregations of right whales in the eastern portion of CCB.
    (2) Major Repairs (December 1-April 30): If unplanned/emergency 
repair activities cannot be conducted between May 1 and November 30, 
then Neptune shall implement the following mitigation measures in 
addition to those listed in Sec.  217.174(a)(1)(i) through (vii):
    (i) If on-board PSOs do not have at least 0.6-mi (1-km) visibility, 
they shall call for a shutdown of repair activities. If dive operations 
are in progress, then they shall be halted and divers brought on board 
until visibility is adequate to see a 0.6-mi (1-km) range. At the time 
of shutdown, the use of thrusters must be minimized to the lowest level 
needed to maintain personnel safety. If there are potential safety 
problems due to the shutdown, the captain must decide what operations 
can safely be shut down and shall document such activities in the data 
log.
    (ii) Prior to leaving the dock to begin transit, the barge must 
contact one of the PSOs on watch to receive an update of sightings 
within the visual observation area. If the PSO has observed a North 
Atlantic right whale within 30 minutes of the transit start, the vessel 
shall hold for 30 minutes and again seek clearance to leave from the 
PSOs on board. PSOs will assess whale activity and visual observation 
ability at the time of the transit request to clear the barge for 
release and will grant clearance if no North Atlantic right whales have 
been sighted in the last 30 minutes in the visual observation area.
    (iii) Neptune or its contractor shall provide a half-day training 
course to designated crew members assigned to the transit barges and 
other support vessels who will have responsibilities for watching for 
marine mammals. This course shall cover topics including, but not 
limited to, descriptions of the marine mammals found in the area, 
mitigation and monitoring requirements contained in the Letter of 
Authorization, sighting log requirements, and procedures for reporting 
injured or dead marine mammals. These designated crew members shall be 
required to keep watch on the bridge and immediately notify the 
navigator of any whale sightings. All watch crew members shall sign 
into a bridge log book upon start and end of watch. Transit route, 
destination, sea conditions, and any protected species sightings/
mitigation actions during watch shall be recorded in the log book. Any 
whale sightings within 3,281 ft (1,000 m) of the vessel shall result in 
a high alert and slow speed of 4 knots (7.4 km/hr) or less. A sighting 
within 2,461 ft (750 m) shall result in idle speed and/or ceasing all 
movement.
    (iv) The material barges and tugs used for repair work shall 
transit from the operations dock to the work sites during daylight 
hours, when possible, provided the safety of the vessels is not 
compromised. Should transit at night be required, the maximum speed of 
the tug shall be 5 knots (9.3 km/hr).
    (v) Consistent with navigation safety, all repair vessels must 
maintain a speed of 10 knots (18.5 km/hr) or less during daylight 
hours. All vessels shall operate at 5 knots (9.3 km/hr) or less at all 
times within 3.1 mi (5 km) of the repair area.
    (3) Speed Restrictions in Seasonal Management Areas (SMAs): Repair 
vessels and shuttle regasification vessels (SRVs) shall transit at 10 
knots (18.5 km/hr) or less in the following seasons and areas, which 
either correspond to or are more restrictive than the times and areas 
in NMFS' regulations at 50 CFR 224.105 that implement speed

[[Page 34174]]

restrictions to reduce the likelihood and severity of ship strikes of 
right whales:
    (i) CCB SMA from January 1 through May 15, which includes all 
waters in CCB, extending to all shorelines of the Bay, with a northern 
boundary of 42[deg] 12' N. latitude;
    (ii) Off Race Point SMA year round, which is bounded by straight 
lines connecting the following coordinates in the order stated: 
42[deg]30' N. 69[deg]45' W.; thence to 42[deg]30' N. 70[deg]30' W.; 
thence to 42[deg]12' N. 70[deg]30' W.; thence to 42[deg]12' N. 
70[deg]12' W.; thence to 42[deg]04' 56.5'' N. 70[deg]12' W.; thence 
along mean high water line and inshore limits of COLREGS limit to a 
latitude of 41[deg]40' N.; thence due east to 41[deg]41' N. 69[deg]45' 
W.; thence back to starting point; and
    (iii) Great South Channel (GSC) SMA from April 1 through July 31, 
which is bounded by straight lines connecting the following coordinates 
in the order stated:

(A) 42[deg]30' N. 69[deg]45' W.
(B) 41[deg]40' N. 69[deg]45' W.
(C) 41[deg]00' N. 69[deg]05' W.
(D) 42[deg]09' N. 67[deg]08' 24'' W.
(E) 42[deg]30' N. 67[deg]27' W.
(F) 42[deg]30' N. 69[deg]45' W.

    (4) Additional Mitigation Measures:
    (i) When approaching and departing from the Neptune Port, SRVs 
shall use the Boston Traffic Separation Scheme (TSS) starting and 
ending at the entrance to the GSC. Upon entering the TSS, the SRV shall 
go into a ``heightened awareness'' mode of operation.
    (ii) In the event that a whale is visually observed within 0.6 mi 
(1 km) of the Port or a confirmed acoustic detection is reported on 
either of the two auto-detection buoys (ABs) closest to the Port, 
departing SRVs shall delay their departure from the Port, unless 
extraordinary circumstances, defined in the Marine Mammal Detection, 
Monitoring, and Response Plan (the Plan), require that the departure is 
not delayed. The departure delay shall continue until either the 
observed whale has been visually (during daylight hours) confirmed as 
more than 0.6 mi (1 km) from the Port or 30 minutes have passed without 
another confirmed detection either acoustically within the acoustic 
detection range of the two ABs closest to the Port or visually within 
0.6 mi (1 km) from Neptune.
    (iii) SRVs that are approaching or departing from the Port and are 
within the Area to be Avoided (ATBA) surrounding Neptune shall remain 
at least 0.6 mi (1 km) away from any visually detected right whales and 
at least 100 yd (91 m) away from all other visually detected whales 
unless extraordinary circumstances, as defined in Section 1.2 of the 
Plan, require that the vessel stay its course. The ATBA is defined in 
33 CFR 150.940. It is the largest area of the Port marked on nautical 
charts, and it is enforceable by the USCG in accordance with the 33 CFR 
150.900 regulations. The Vessel Master shall designate at least one 
lookout to be exclusively and continuously monitoring for the presence 
of marine mammals at all times while the SRV is approaching or 
departing Neptune.
    (iv) Neptune shall ensure that other vessels providing support to 
Port operations during regasification activities that are approaching 
or departing from the Port and are within the ATBA shall be operated so 
as to remain at least 0.6 mi (1 km) away from any visually detected 
right whales and at least 100 yd (91 m) from all other visually 
detected whales.
    (v) PSOs shall direct a moving vessel to slow to idle if a baleen 
whale is seen less than 0.6 mi (1 km) from the vessel.
    (vi) Use of lights during repair or maintenance activities shall be 
limited to areas where work is actually occurring, and all other lights 
must be extinguished. Lights must be downshielded to illuminate the 
deck and shall not intentionally illuminate surrounding waters, so as 
not to attract whales or their prey to the area.
    (vii) Neptune must immediately suspend any repair and maintenance 
or operations activities if a dead or injured marine mammal is found in 
the vicinity of the project area, and the death or injury of the animal 
could be attributable to the Port facility activities. Upon finding a 
dead or injured marine mammal, Neptune must contact NMFS, the Northeast 
Stranding and Disentanglement Program, and the USCG. NMFS will review 
the documentation submitted by the PSO and attempt to attribute a cause 
of death. Activities shall not resume until review and approval has 
been given by NMFS.
    (5) Additional mitigation measures as contained in a Letter of 
Authorization issued under Sec. Sec.  216.106 and 217.177 of this 
chapter.
    (b) [Reserved]


Sec.  217.175  Requirements for monitoring and reporting.

    (a) Visual Monitoring Program:
    (1) Neptune shall employ PSOs during maintenance- and repair-
related activities on each vessel that has a dynamic positioning 
system. Two (2) PSOs shall be on-duty at all times. All PSOs must 
receive NMFS-approved PSO training and be approved in advance by NMFS 
after a review of their qualifications.
    (2) Qualifications for these PSOs shall include direct field 
experience on a marine mammal observation vessel and/or aerial surveys 
in the Atlantic Ocean/Gulf of Mexico.
    (3) The PSOs (one primary and one secondary) are responsible for 
visually locating marine mammals at the ocean's surface and, to the 
extent possible, identifying the species. The primary PSO shall act as 
the identification specialist, and the secondary PSO shall serve as 
data recorder and also assist with identification. Both PSOs shall have 
responsibility for monitoring for the presence of marine mammals.
    (4) The PSOs shall monitor the maintenance/repair area using the 
naked eye, hand-held binoculars, and/or power binoculars.
    (5) The PSOs shall scan the ocean surface during maintenance- and 
repair-related activities and record all sightings in marine mammal 
field sighting logs. Observations of marine mammals shall be identified 
to the species or the lowest taxonomic level possible, and their 
relative position in relation to the vessel shall be recorded.
    (6) While a SRV is navigating within the designated TSS, three 
people have lookout duties on or near the bridge of the ship including 
the SRV Master, the Officer-of-the-Watch, and the Helmsman on watch.
    (7) In addition to standard watch procedures, while the SRV is 
within the ATBA and/or while actively engaging in the use of thrusters, 
an additional lookout shall be designated to exclusively and 
continuously monitor for marine mammals. Once the SRV is moored and 
regasification activities have begun, the vessel is no longer 
considered in ``heightened awareness'' status.
    (8) At the conclusion of regasification activities, when the SRV is 
prepared to depart from the Port, the Master shall once again ensure 
that the responsibilities as defined in the Plan are carried out. All 
sightings of marine mammals by the designated lookout, individuals 
posted to navigational lookout duties, and/or any other crew member 
while the SRV is within the TSS, in transit to the ATBA, within the 
ATBA, and/or when actively engaging in the use of thrusters shall be 
immediately reported to the Officer-of-the-Watch who shall then alert 
the Master.
    (b) Passive Acoustic Monitoring (PAM) Program:
    (1) Neptune shall work with NMFS, Stellwagen Bank National Marine 
Sanctuary (SBNMS), and other scientists

[[Page 34175]]

to install and monitor an array of passive acoustic detection buoys 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 shall provide near real-time 
information on the presence of vocalizing whales in the shipping lanes.
    (2) Neptune shall work with NMFS, SBNMS, and other scientists to 
monitor the archival array of acoustic recording units (ARUs), or 
``pop-ups,'' around the Port that meets the criteria specified in the 
program developed by NOAA in consultation with the USCG under the NMSA. 
The ARUs shall remain 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 or greater acoustic impacts 
than predicted through modeling.
    (3) Passive acoustic devices shall be actively monitored for 
detections by a NMFS-approved bioacoustic technician.
    (4) Repair Activity PAM Measures: PAM, in addition to that required 
in this section of these regulations, shall be required, on a case-by-
case basis, during both planned and emergency repair activities in 
order to better detect right whales in the area of repair work and to 
collect additional data on the noise levels produced during repair and 
maintenance activities.
    (i) Neptune shall work with NOAA (NMFS and SBNMS) to evaluate when 
to install and maintain an array of real-time passive acoustic 
detection buoys to provide early warnings for potential occurrence of 
right whales in the vicinity of the repair area. The number of passive 
acoustic detection buoys installed around the activity site, if deemed 
necessary, shall be commensurate with the type and spatial extent of 
maintenance/repair work required, but must be sufficient to detect 
vocalizing right whales within the 120-dB impact zone.
    (ii) Neptune shall provide NMFS with empirically measured source 
level data for all sources of noise associated with Port maintenance 
and repair activities. Measurements shall be carefully planned and 
coordinated with noise-producing activities and shall be collected from 
the passive detection network.
    (5) SRV Regasification PAM Measures: Source levels associated with 
dynamic positioning of SRVs at the buoys shall be estimated using 
empirical measurements collected from a platform positioned as close as 
practicable to thrusters while in use.
    (c) Neptune must implement the following reporting requirements:
    (1) Because the Port is within the Mandatory Ship Reporting Area 
(MSRA), all SRVs transiting to and from the Port must report their 
activities to the mandatory reporting section of the USCG to remain 
apprised of North Atlantic right whale movements within the area. All 
vessels entering and exiting the MSRA must report their activities to 
WHALESNORTH. Any North Atlantic right whale sightings must be reported 
to the NMFS Sighting Advisory System.
    (2) Repair Work Reports. (i) For major repair work associated with 
the pipeline lateral or other port components, Neptune shall notify the 
appropriate NOAA personnel as soon as practicable after it is 
determined that repair work must be conducted.
    (ii) During maintenance and repair of the pipeline lateral or other 
port components, weekly status reports must be provided to NOAA. The 
weekly report must include data collected for each distinct marine 
mammal species observed in the project area during the period of the 
repair activity. The weekly reports shall include the following:
    (A) The location, time, and nature of the pipeline lateral 
activities;
    (B) Whether the dynamic position (DP) system was operated and, if 
so, the number of thrusters used and the time and duration of DP 
operation;
    (C) Marine mammals observed in the area (number, species, age 
group, and initial behavior);
    (D) The distance of observed marine mammals from the repair 
activities;
    (E) Observed marine mammal behaviors during the sighting;
    (F) Whether any mitigation measures were implemented;
    (G) Weather conditions (sea state, wind speed, wind direction, 
ambient temperature, precipitation, and percent cloud cover, etc.);
    (H) Condition of the marine mammal observation (visibility and 
glare); and
    (I) Details of passive acoustic detections and any action taken in 
response to those detections.
    (iii) For all minor repair work, Neptune must notify NOAA regarding 
when and where the repair/maintenance work is to take place along with 
a tentative schedule and description of the work, as soon as 
practicable after it is determined that repair work must be conducted. 
Vessel crews shall record/document any marine mammal sightings during 
the work period.
    (iv) At the conclusion of all minor repair work, Neptune shall 
provide NOAA with a report describing any marine mammal sightings, the 
type of work taking place when the sighting occurred, and any avoidance 
actions taken during the repair/maintenance work.
    (3) Incident Reports. During all phases of project repair/
maintenance activities and operation, sightings of any injured or dead 
marine mammals must be reported immediately to the Chief, Permits, 
Conservation and Education Division or staff member and the Northeast 
Stranding and Disentanglement Program, regardless of whether the injury 
or death is caused by project activities. If the injury or death was 
caused by a project vessel (e.g., SRV, support vessel, or construction 
vessel), the USCG must be notified immediately, and a full report must 
be provided to NMFS. Activities will not resume until review and 
approval has been given by NMFS. The report must include the following 
information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) The name and type of vessel involved;
    (iii) The vessel's speed during the incident;
    (iv) Description of the incident;
    (v) Water depth;
    (vi) Environmental conditions (e.g., wind speed and direction, sea 
state, cloud cover, and visibility);
    (vii) Species identification or description of the animal;
    (viii) The fate of the animal; and
    (ix) Photographs or video footage of the animal (if equipment is 
available).
    (4) Annual Reports. (i) An annual report on marine mammal 
monitoring and mitigation shall be submitted to NMFS, Office of 
Protected Resources, and NMFS, Northeast Regional Office (specific 
contact information to be provided in Letter of Authorization), on 
August 1 of each year. The annual report shall cover the time period of 
January 1 through December 31 of each year of activity.
    (ii) 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 Port operations and repair/
maintenance activities. The annual report shall also include a 
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 and repair/maintenance 
activities. Additional information that shall be recorded by Neptune or 
its contractor during operations and repair/maintenance activities and 
contained in the reports include: results of empirical

[[Page 34176]]

source level estimation for thrusters while in use and activities 
associated with maintenance and repair events, date and time of marine 
mammal detections (visually or acoustically), weather conditions, 
species identification, approximate distance from the source, activity 
of the vessel when a marine mammal is sighted, and whether thrusters 
were in use and, if so, how many at the time of the sighting.
    (5) Five-year Comprehensive Report. (i) Neptune shall submit a 
draft comprehensive final report to NMFS, Office of Protected 
Resources, and NMFS, Northeast Regional Office (specific contact 
information to be provided in Letter of Authorization), 180 days prior 
to the expiration of the regulations. This comprehensive technical 
report shall provide full documentation of methods, results, and 
interpretation of all monitoring during the first four and a half years 
of the LOA.
    (ii) Neptune shall submit a revised final comprehensive technical 
report, including all monitoring results during the entire period of 
the LOAs, 90 days after the end of the period of effectiveness of the 
regulations to NMFS, Office of Protected Resources, and NMFS, Northeast 
Regional Office (specific contact information to be provided in Letter 
of Authorization).


Sec.  217.176  Applications for Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the U.S. Citizen (as defined by Sec.  216.103) conducting 
the activity identified in Sec.  217.170(a) (i.e., Neptune) must apply 
for and obtain either an initial Letter of Authorization in accordance 
with Sec.  217.177 or a renewal under Sec.  217.178.
    (b) [Reserved]


Sec.  217.177  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, shall 
be valid for a period of time not to exceed the period of validity of 
this subpart.
    (b) The Letter of Authorization shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses (i.e., mitigation); and
    (3) Requirements for mitigation, monitoring and reporting.
    (c) Issuance and renewal of the Letter of Authorization shall be 
based on a determination that the total number of marine mammals taken 
by the activity as a whole will have no more than a negligible impact 
on the affected species or stock of marine mammal(s).


Sec.  217.178  Renewal of Letters of Authorization and adaptive 
management.

    (a) A Letter of Authorization issued under Sec.  216.106 and Sec.  
217.177 of this chapter for the activity identified in Sec.  217.170(a) 
shall be renewed upon request by the applicant or determination by NMFS 
and the applicant that modifications are appropriate pursuant to the 
adaptive management component of these regulations, provided that:
    (1) NMFS is notified that the activity described in the application 
submitted under Sec.  217.176 will be undertaken and that there will 
not be a substantial modification to the described work, mitigation or 
monitoring undertaken during the upcoming 12 months;
    (2) NMFS recieves the monitoring reports required under Sec.  
217.175(c)(1)-(4); and
    (3) NMFS determines that the mitigation, monitoring and reporting 
measures required under Sec. Sec.  217.174 and 217.175 and the Letter 
of Authorization issued under Sec. Sec.  216.106 and 217.177 of this 
chapter were undertaken and will be undertaken during the upcoming 
annual period of validity of a renewed Letter of Authorization.
    (b) If either a request for a renewal of a Letter of Authorization 
issued under Sec. Sec.  216.106 and 217.178 or a determination by NMFS 
and the applicant that modifications are appropriate pursuant to the 
adaptive management component of these regulations indicates that a 
substantial modification, as determined by NMFS, to the described work, 
mitigation or monitoring undertaken during the upcoming season will 
occur, NMFS will provide the public a period of 30 days for review and 
comment on the request. Review and comment on renewals of Letters of 
Authorization are restricted to:
    (1) New cited information and data indicating that the 
determinations made in this document are in need of reconsideration, 
and
    (2) Proposed substantive changes to the mitigation and monitoring 
requirements contained in these regulations or in the current Letter of 
Authorization.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register.
    (d) Adaptive Management--NMFS may modify or augment the existing 
mitigation or monitoring measures (after consulting with Neptune 
regarding the practicability of the modifications) if doing so creates 
a reasonable likelihood of more effectively accomplishing the goals of 
mitigation and monitoring set forth in the preamble of these 
regulations. Below are some of the possible sources of new data that 
could contribute to the decision to modify the mitigation or monitoring 
measures:
    (1) Results from Neptune's monitoring from the previous year;
    (2) Results from general marine mammal and sound research; or
    (3) Any information which reveals that marine mammals may have been 
taken in a manner, extent or number not authorized by these regulations 
or subsequent LOAs.


Sec.  217.179  Modifications of Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization issued by NMFS, pursuant to Sec. Sec.  216.106 
and 217.177 of this chapter and subject to the provisions of this 
subpart shall be made until after notification and an opportunity for 
public comment has been provided. For purposes of this paragraph, a 
renewal of a Letter of Authorization under Sec.  217.178, without 
modification (except for the period of validity), is not considered a 
substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species 
or stocks of marine mammals specified in Sec.  217.172(b), a Letter of 
Authorization issued pursuant to Sec. Sec.  216.106 and 217.177 of this 
chapter may be substantively modified without prior notification and an 
opportunity for public comment. Notification will be published in the 
Federal Register within 30 days subsequent to the action.

[FR Doc. 2011-14614 Filed 6-10-11; 8:45 am]
BILLING CODE 3510-22-P