[Federal Register Volume 76, Number 196 (Tuesday, October 11, 2011)]
[Notices]
[Pages 62778-62785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26200]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XA480


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

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

ACTION: Notice of issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an Incidental Harassment Authorization (IHA) to 
the Northeast Gateway[supreg] Energy BridgeTM L.P. 
(Northeast Gateway or NEG) to incidentally harass, by Level B 
harassment only, small numbers of marine mammals during operation of an 
offshore liquefied natural gas (LNG) facility in the Massachusetts Bay 
for a period of 1 year.

DATES: This authorization is effective from October 6, 2011, until 
October 5, 2012.

ADDRESSES: A copy of the application, IHA, and a list of references 
used in this document may be obtained by writing to P. Michael Payne, 
Chief, Permits, Conservation and Education Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910. A copy of the application may be 
obtained by writing to this address or by telephoning the contact 
listed here and is also available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected 
Resources, NMFS, (301) 247-8401.

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

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

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

    any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine

[[Page 62779]]

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

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

Summary of Request

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

Description of the Activity

    The Northeast Gateway Port is located in Massachusetts Bay and 
consists of a submerged buoy system to dock specially designed LNG 
carriers approximately 13 mi (21 km) offshore of Massachusetts in 
federal waters approximately 270 to 290 ft (82 to 88 m) in depth. This 
facility delivers regasified LNG to onshore markets via the Algonquin 
Pipeline Lateral (Pipeline Lateral). The Pipeline Lateral consists of a 
16.1-mile (25.8-kilometer) long, 24-inch (61-centimeter) outside 
diameter natural gas pipeline which interconnects the Port to an 
offshore natural gas pipeline known as the HubLine.
    The Northeast Gateway Port consists of two subsea Submerged Turret 
Loading\TM\ (STL) buoys, each with a flexible riser assembly and a 
manifold connecting the riser assembly, via a steel Flowline, to the 
subsea Pipeline Lateral. Northeast Gateway utilizes vessels from its 
current fleet of specially designed Energy Bridge\TM\ Regasification 
Vessels (EBRVs), each capable of transporting approximately 2.9 billion 
ft\3\ (82 million m\3\) of natural gas condensed to 4.9 million ft\3\ 
(138,000 m\3\) of LNG. Northeast Gateway has recently added two vessels 
to its fleet that have a cargo capacity of approximately 151,000 m\3\ 
(5.3 million ft\3\). The mooring system installed at the Northeast 
Gateway Port is designed to handle each class of vessel. The EBRVs 
would dock to the STL buoys, which would serve as both the single-point 
mooring system for the vessels and the delivery conduit for natural 
gas. Each of the STL buoys is secured to the seafloor using a series of 
suction anchors and a combination of chain/cable anchor lines.
    The proposed activity includes Northeast Gateway LNG Port 
operations. A detailed description of these activities is provided in 
the Federal Register notice for the proposed IHA (76 FR 43639; July 21, 
2011), and is not repeated here.

Comments and Responses

    A notice of receipt and request for public comment on the 
application and proposed authorization was published on July 21, 2011 
(76 FR 43639). During the 30-day public comment period, NMFS received 
comments from the Marine Mammal Commission (Commission).
    Comment 1: The Commission recommends that NMFS issue the requested 
authorization, subject to inclusion of the proposed mitigation and 
monitoring measures, including a condition that requires suspension of 
the proposed activities if an injury or death of a marine mammal occurs 
that may have resulted from those activities, pending authorization 
from NMFS to proceed.
    Response: NMFS concurs with the Commission's recommendation. A 
condition that requires suspension of the proposed activities if an 
injury or death of a marine mammal occurs that may have resulted from 
the LNG Port operations, pending authorization from NMFS to proceed, is 
included in the mitigation and monitoring measures in the IHA issued to 
Northeast Gateway.

Description of Marine Mammals in the Area of the Specified Activities

    Marine mammal species that potentially occur in the vicinity of the 
Northeast Gateway facility include several species of cetaceans and 
pinnipeds:

North Atlantic right whale (Eubalaena glacialis),
humpback whale (Megaptera novaeangliae),
fin whale (Balaenoptera physalus),
minke whale (B. acutorostrata),
long-finned pilot whale (Globicephala melas),
Atlantic white-sided dolphin (Lagenorhynchus acutus),
bottlenose dolphin (Tursiops truncatus),
common dolphin (Delphinus delphis),
killer whale (Orcinus orca),
Risso's dolphin (Grampus griseus),
harbor porpoise (Phocoena phocoena),
harbor seal (Phoca vitulina), and
gray seal (Halichoerus grypus).

    Information on those species that may be affected by this activity 
is discussed in detail in the USCG Final EIS on the Northeast Gateway 
LNG proposal. Please refer to that document for more information on 
these species and potential impacts from operation of this LNG 
facility. In addition, general information on these marine mammal 
species can also be found in W[uuml]rsig et al. (2000) and in the NMFS 
Stock Assessment Reports (Waring et al., 2011). This latter document is 
available at: http://www.nefsc.noaa.gov/publications/tm/tm219/. 
Additional information on those species that may be affected by this 
activity is provided in detail in the Federal Register published on 
July 21, 2011 (76 FR 43639).

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

[[Page 62780]]

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

Potential Effects of the Specified Activity on Marine Mammals

    Potential effects of NEG's port operations would most likely be 
acoustic in nature. LNG port operations introduce sound into the marine 
environment. The effects of noise on marine mammals are highly 
variable, and can be categorized as follows (based on Richardson et 
al., 1995): (1) The noise may be too weak to be heard at the location 
of the animal (i.e., lower than the prevailing ambient noise level, the 
hearing threshold of the animal at relevant frequencies, or both); (2) 
The noise may be audible but not strong enough to elicit any overt 
behavioral response; (3) The noise may elicit reactions of variable 
conspicuousness and variable relevance to the well being of the marine 
mammal; these can range from temporary alert responses to active 
avoidance reactions such as vacating an area at least until the noise 
event ceases; (4) Upon repeated exposure, a marine mammal may exhibit 
diminishing responsiveness (habituation), or disturbance effects may 
persist; the latter is most likely with sounds that are highly variable 
in characteristics, infrequent and unpredictable in occurrence, and 
associated with situations that a marine mammal perceives as a threat; 
(5) Any anthropogenic noise that is strong enough to be heard has the 
potential to reduce (mask) the ability of a marine mammal to hear 
natural sounds at similar frequencies, including calls from 
conspecifics, and underwater environmental sounds such as surf noise; 
(6) If mammals remain in an area because it is important for feeding, 
breeding or some other biologically important purpose even though there 
is chronic exposure to noise, it is possible that there could be noise-
induced physiological stress; this might in turn have negative effects 
on the well-being or reproduction of the animals involved; and (7) Very 
strong sounds have the potential to cause temporary or permanent 
reduction in hearing sensitivity. In terrestrial mammals, and 
presumably marine mammals, received sound levels must far exceed the 
animal's hearing threshold for there to be any temporary threshold 
shift (TTS) in its hearing ability. For transient sounds, the sound 
level necessary to cause TTS is inversely related to the duration of 
the sound. Received sound levels must be even higher for there to be 
risk of permanent hearing impairment. In addition, intense acoustic (or 
explosive events) may cause trauma to tissues associated with organs 
vital for hearing, sound production, respiration and other functions. 
This trauma may include minor to severe hemorrhage.
    There are three general categories of sounds recognized by NMFS: 
continuous (such as shipping sounds), intermittent (such as vibratory 
pile driving sounds), and impulse. No impulse noise activities, such as 
blasting or standard pile driving, are associated with this project. 
The noise sources of potential concern are regasification/offloading 
(which is a continuous sound) and dynamic positioning of vessels using 
thrusters (an intermittent sound) from EBRVs during docking at the NEG 
port facility. Noise generated from regasification/offloading is 
modeled to be under 120 dB, therefore, no take is expected from this 
activity. Based on research by Malme et al. (1983; 1984), for both 
continuous and intermittent sound sources, Level B harassment is 
presumed to begin at received levels of 120-dB. The detailed 
description of the noise that would result from the LNG Port operations 
is provided in the Federal Register notice for the initial construction 
and operations of the NEG LNG Port facility and Pipeline Lateral in 
2007 (72 FR 27077; May 14, 2007).

NEG Port Activities

    Underwater noise generated at the NEG Port has the potential to 
result from two distinct actions, including closed-loop regasification 
of LNG and/or EBRV maneuvering during coupling and decoupling with STL 
buoys. To evaluate the potential for these activities to result in 
underwater noise that could harass marine mammals, Excelerate conducted 
field sound survey studies during periods of March 21 to 25, 2005, and 
August 6 to 9, 2006, while the EBRV Excelsior was both maneuvering and 
moored at the operational Gulf Gateway Port located 116 mi (187 km) 
offshore in the Gulf of Mexico (the Gulf) (see Appendices B and C of 
the NEG application). EBRV maneuvering conditions included the use of 
both stern and bow thrusters required for dynamic positioning during 
coupling. These data were used to model underwater sound propagation at 
the NEG Port. The pertinent results of the field survey are provided as 
underwater sound source pressure levels as follows:
     Sound levels during closed-loop regasification ranged from 
104 to 110 dB. Maximum levels during steady state operations were 108 
dB.
     Sound levels during coupling operations were dominated by 
the periodic use of the bow and stern thrusters and ranged from 160 to 
170 dBL.
    Figures 1-1 and 1-2 of NEG's IHA application present the net 
acoustic impact of one EBRV operating at the NEG Port. Thrusters are 
operated intermittently and only for relatively short durations of 
time. The resulting area within the 120 dB isopleth is less than 1 
km\2\ with the linear distance to the isopleths extending 430 m (1,411 
ft). The area within the 180 dB isopleth is very localized and will not 
extend beyond the immediate area where EBRV coupling operations are 
occurring.
    The potential impacts to marine mammals associated with sound 
propagation from vessel movements, anchors, chains and LNG 
regasification/offloading could be the temporary and short-term 
displacement of seals and

[[Page 62781]]

whales from within the 120-dB zones ensonified by these noise sources. 
Animals would be expected to re-occupy the area once the noise ceases.

Anticipated Effects on Habitat

    Approximately 4.8 acres of seafloor has been converted from soft 
substrate to artificial hard substrate. The soft-bottom benthic 
community may be replaced with organisms associated with naturally 
occurring hard substrate, such as sponges, hydroids, bryozoans, and 
associated species. The benthic community in the up to 43 acres (worst 
case scenario based on severe 100-year storm with EBRVs occupying both 
STL buoys) of soft bottom that may be swept by the anchor chains while 
EBRVs are docked will have limited opportunity to recover, so this area 
will experience a long-term reduction in benthic productivity. In 
addition, disturbance from anchor chain movement would result in 
increased turbidity levels in the vicinity of the buoys that could 
affect prey species for marine mammals; however, as indicated in the 
final EIS/EIR, these impacts are expected to be short-term, indirect, 
and minor.
    Daily removal of sea water from EBRV intakes will reduce the food 
resources available for planktivorous organisms. Water usage would be 
limited to the standard requirements of NEG's normal support vessel. As 
with all vessels operating in Massachusetts Bay, sea water uptake and 
discharge is required to support engine cooling, typically using a 
once-through system. The rate of seawater uptake varies with the ship's 
horsepower and activity and therefore will differ between vessels and 
activity type. For example, the GATEWAY ENDEAVOR is a 90-ft (27 m) 
vessel powered with a 1,200 horsepower diesel engine with a four-pump 
seawater cooling system. This system requires seawater intake of about 
68 gallons per minute (gpm) while idling and up to about 150 gpm at 
full power. Use of full power is required generally for transit. A 
conservatively high estimate of vessel activity for the GATEWAY 
ENDEAVOR would be operation at idle for 75% of the time and full power 
for 25% of the time. During routine activities, this would equate to 
approximately 42,480 gallons of seawater per 8-hour work day. When 
compared to the engine cooling requirements of an EBRV over an 8-hour 
period (approximately 17.62 million gallons), the GATEWAY ENDEAVOUR 
uses about 0.2% of the EBRV requirement. To put this water use into 
context, the final EIS/EIR for the NEG Port concluded that the impacts 
to fish populations and to marine mammals that feed on fish or plankton 
resulting from water use by an EBRV during port operations 
(approximately 39,780,000 gallons over each 8-day regasification 
period) would be minor. Water use by support vessels during routine 
port activities would not materially add to the overall impacts 
evaluated in the final EIS/EIR. Additionally, discharges associated 
with the GATEWAY ENDEAVOR and/or other support/maintenance vessels that 
are 79 feet or greater in length, are now regulated under the Clean 
Water Act (CWA) and must receive and comply with the United States 
Environmental Protection Agency (EPA) Vessel General Permit (VGP). The 
permit incorporates the USCG mandatory ballast water management and 
exchange standards, and provides technology- and water quality-based 
effluent limits for other types of discharges, including deck runoff, 
bilge water, graywater, and other pollutants. It also establishes 
specific corrective actions, inspection, and monitoring requirements 
and recordkeeping and reporting requirements for each vessel. 
Massachusetts Bay circulation will not be altered, so plankton will be 
continuously transported into the NEG Port area. The removal of these 
species is minor and unlikely to affect in a measurable way the food 
sources available to marine mammals.
    In conclusion, NMFS has determined that NEG's port operations are 
not expected to have any habitat-related effects that could cause 
significant or long-term consequences for individual marine mammals or 
on the food sources that they utilize.

Monitoring and Mitigation Measures

    In order to issue an incidental take authorization (ITA) under the 
MMPA, NMFS must, where applicable, set forth the permissible methods of 
taking pursuant to such activity, and other means of effecting the 
least practicable adverse impact on such species or stock and its 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance, and on the availability of such species 
or stock for taking for certain subsistence uses (where relevant). In 
addition, NMFS must, where applicable, set forth ``requirements 
pertaining to the monitoring and reporting of such taking''. The MMPA 
implementing regulations at 50 CFR 216.104 (a)(13) indicate that 
requests for ITAs must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
action area.
    During the construction and operations of the NEG LNG Port facility 
in prior years, Northeast Gateway submitted reports on marine mammal 
sightings in the area. While it is difficult to draw biological 
conclusions from these reports, NMFS can make some general conclusions. 
Data gathered by protected species observers (PSOs) are generally 
useful to indicate the presence or absence of marine mammals (often to 
a species level) within the exclusion zones (and sometimes without) and 
to document the implementation of mitigation measures. Though it is by 
no means conclusive, it is worth noting that no instances of obvious 
behavioral disturbance as a result of Northeast Gateway's activities 
were observed by the PSOs.
    In addition, Northeast Gateway was required to maintain an array of 
Marine Autonomous Recording Units (MARUs) to monitor calling North 
Atlantic right whales (humpback, fin, and minke whale calls were also 
able to be detected).
    For the issuance of the IHA to NEG for LNG port operations, NMFS 
requires the following monitoring and mitigation measures.

Protected Species Observers

    For activities related to the NEG LNG port operations, all 
individuals onboard the EBRVs responsible for the navigation and 
lookout duties on the vessel must receive training prior to assuming 
navigation and lookout duties, a component of which will be training on 
marine mammal sighting/reporting and vessel strike avoidance measures. 
Crew training of EBRV personnel will stress individual responsibility 
for marine mammal awareness and reporting.
    If a marine mammal is sighted by a crew member, an immediate 
notification will be made to the Person-in-Charge on board the vessel 
and the Northeast Port Manager, who will ensure that the required 
vessel strike avoidance measures and reporting procedures are followed.

Vessel Strike Avoidance

    (1) All EBRVs approaching or departing the port will comply with 
the Mandatory Ship Reporting (MSR) system to keep apprised of right 
whale sightings in the vicinity. Vessel operators will also receive 
active detections from an existing passive acoustic array prior to and 
during transit through the northern leg of the Boston TSS where the 
buoys are installed.

[[Page 62782]]

    (2) In response to active right whale sightings (detected 
acoustically or reported through other means such as the MSR or 
Sighting Advisory System (SAS)), and taking into account safety and 
weather conditions, EBRVs will take appropriate actions to minimize the 
risk of striking whales, including reducing speed to 10 knots or less 
and alerting personnel responsible for navigation and lookout duties to 
concentrate their efforts.
    (3) EBRVs will maintain speeds of 12 knots or less while in the TSS 
until reaching the vicinity of the buoys (except during the seasons and 
areas defined below, when speed will be limited to 10 knots or less). 
At 1.86 mi (3 km) from the NEG port, speed will be reduced to 3 knots, 
and to less than 1 knot at 1,640 ft (500 m) from the buoy.
    (4) EBRVs will reduce transit speed to 10 knots or less over ground 
from March 1-April 30 in all waters bounded by straight lines 
connecting the following points in the order stated below. This area is 
known as the Off Race Point SMA and tracks NMFS regulations at 50 CFR 
224.105: 42[deg]30'00.0'' N-069[deg]45'00.0'' W; thence to 
42[deg]30'00.0'' N-070[deg]30'00.0'' W; thence to 42[deg]12'00.0'' N-
070[deg]30'00.0'' W; thence to 42[deg]12'00.0'' N-070[deg]12'00.0'' W; 
thence to 42[deg]04'56.5'' N-070[deg]12'00.0'' W; thence along charted 
mean high water line and inshore limits of COLREGS limit to a latitude 
of 41[deg]40'00.0'' N; thence due east to 41[deg]41'00.0'' N-
069[deg]45'00.0'' W; thence back to starting point.
    (5) EBRVs will reduce transit speed to 10 knots or less over ground 
from April 1-July 31 in all waters bounded by straight lines connecting 
the following points in the order stated below. This area is also known 
as the Great South Channel SMA and tracks NMFS regulations at 50 CFR 
224.105: 42[deg]30'00.0'' N-69[deg]45'00.0'' W, 41[deg]40'00.0'' N- 
69[deg]45'00.0'' W, 41[deg]00'00.0'' N- 69[deg]05'00.0'' W, 
42[deg]09'00.0'' N- 67[deg]08'24.0'' W, 42[deg]30'00.0'' N- 
67[deg]27'00.0'' W, 42[deg]30'00.0'' N- 69[deg]45'00.0'' W.
    (6) LNGRVs are not expected to transit Cape Cod Bay. However, in 
the event transit through Cape Cod Bay is required, LNGRVs will reduce 
transit speed to 10 knots or less over ground from January 1-May 15 in 
all waters in Cape Cod Bay, extending to all shorelines of Cape Cod 
Bay, with a northern boundary of 42[deg]12'00.0'' N latitude.
    (7) A vessel may operate at a speed necessary to maintain safe 
maneuvering speed instead of the required 10 knots only if justified 
because the vessel is in an area where oceanographic, hydrographic, 
and/or meteorological conditions severely restrict the maneuverability 
of the vessel and the need to operate at such speed is confirmed by the 
pilot on board or, when a vessel is not carrying a pilot, the master of 
the vessel. If a deviation from the 10-knot speed limit is necessary, 
the reasons for the deviation, the speed at which the vessel is 
operated, the latitude and longitude of the area, and the time and 
duration of such deviation shall be entered into the logbook of the 
vessel. The master of the vessel shall attest to the accuracy of the 
logbook entry by signing and dating it.

Research Passive Acoustic Monitoring (PAM) Program

    Northeast Gateway shall monitor the noise environment in 
Massachusetts Bay in the vicinity of the NEG Port using an array of 19 
MARUs that were deployed initially in April 2007 to collect data during 
the preconstruction and active construction phases of the NEG Port and 
Algonquin Pipeline Lateral. A description of the MARUs can be found in 
Appendix A of the NEG and Algonquin application. These 19 MARUs will 
remain in the same configuration during full operation of the NEG Port. 
The MARUs collect archival noise data and are not designed to provide 
real-time or near-real-time information about vocalizing whales. 
Rather, the acoustic data collected by the MARUs shall be analyzed to 
document the seasonal occurrences and overall distributions of whales 
(primarily fin, humpback, and right whales) within approximately 10 
nautical miles (18 km) of the NEG Port and shall measure and document 
the noise ``footprint'' of Massachusetts Bay so as to eventually assist 
in determining whether an overall increase in noise in the Bay 
associated with the NEG Port might be having a potentially negative 
impact on marine mammals. The overall intent of this system is to 
provide better information for both regulators and the general public 
regarding the acoustic footprint associated with long-term operation of 
the NEG Port in Massachusetts Bay and the distribution of vocalizing 
marine mammals during NEG Port activities.
    In addition to the 19 MARUs, Northeast Gateway will deploy 10 auto-
detection buoys (ABs) within the TSS for the operational life of the 
NEG Port. A description of the ABs is provided in Appendix A of NEG and 
Algonquin's application. The purpose of the ABs shall be to detect a 
calling North Atlantic right whale an average of 5 nm (9.26 km) from 
each AB (detection ranges will vary based on ambient underwater 
conditions). The AB system shall be the primary detection mechanism 
that alerts the EBRV captains to the occurrence of right whales, 
heightens EBRV awareness, and triggers necessary mitigation actions as 
described in the Marine Mammal Detection, Monitoring, and Response Plan 
included as Appendix A of the NEG application.
    Northeast Gateway has engaged representatives from Cornell 
University's Bioacoustics Research Program and the Woods Hole 
Oceanographic Institution as the consultants for developing, 
implementing, collecting, and analyzing the acoustic data; reporting; 
and maintaining the acoustic monitoring system.
    Further information detailing the deployment and operation of 
arrays of 19 passive seafloor acoustic recording units (MARUs) centered 
on the terminal site and the 10 ABs that are to be placed at 
approximately 5-m (8.0-km) intervals within the recently modified TSS 
can be found in the Marine Mammal Detection, Monitoring, and Response 
Plan included as Appendix A of the NEG and Algonquin application.

Mitigation Conclusions

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

Reporting

    The Project area is within the Mandatory Ship Reporting Area 
(MSRA), so all vessels entering and exiting the MSRA will report their 
activities to WHALESNORTH. During all phases of the Northeast Gateway 
LNG Port operations, sightings of any injured or dead marine mammals 
will

[[Page 62783]]

be reported immediately to the USCG and NMFS, regardless of whether the 
injury or death is caused by project activities.
    An annual report on marine mammal monitoring and mitigation shall 
be submitted to NMFS Office of Protected Resources and NMFS Northeast 
Regional Office within 90 days after the expiration of the IHA. The 
annual report shall include data collected for each distinct marine 
mammal species observed in the project area in Massachusetts Bay during 
the period of LNG facility operation. Description of marine mammal 
behavior, overall numbers of individuals observed, frequency of 
observation, and any behavioral changes and the context of the changes 
relative to operation activities shall also be included in the annual 
report.

General Conclusions Drawn From Previous Monitoring Reports

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

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: any act of pursuit, torment, or 
annoyance which (i) Has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment]. Only take by Level B harassment is 
anticipated as a result of NEG's operational activities. Anticipated 
take of marine mammals is associated with operation of dynamic 
positioning during the docking of the LNG vessels. The regasification 
process itself is an activity that does not rise to the level of 
taking, as the modeled source level for this activity is 108 dB. 
Certain species may have a behavioral reaction to the sound emitted 
during the activities. Hearing impairment is not anticipated. 
Additionally, vessel strikes are not anticipated, especially because of 
the speed restriction measures that were described earlier in this 
document.
    Although Northeast Gateway stated that the ensonified area of 120-
dB isopleths by EBRV's decoupling would be less than 1 km\2\ as 
measured in the Gulf of Mexico in 2005, due to the lack of more recent 
sound source verification and the lack of source measurement in 
Massachusetts Bay, NMFS uses a more conservative spreading model to 
calculate the 120 dB isopleth received sound level. This model was also 
used to establish the 120-dB zone of influence (ZOI) for the previous 
IHAs issued to Northeast Gateway. In the vicinity of the LNG Port, 
where the water depth is about 80 m (262 ft), the 120-dB radius is 
estimated to be 2.56 km (1.6 mi) maximum from the sound source during 
dynamic positioning for the container ship, making a maximum ZOI of 21 
km\2\ (8.1 mi\2\). For shallow water depth (40 m or 131 ft) 
representative of the northern segment of the Algonquin Pipeline 
Lateral, the 120-dB radius is estimated to be 3.31 km (2.06 mi), the 
associated ZOI is 34 km\2\ (13.1 mi\2\).
    The basis for Northeast Gateway and Algonquin's ``take'' estimate 
is the number of marine mammals that would be exposed to sound levels 
in excess of 120 dB, which is the threshold used by NMFS for continuous 
sounds. For the NEG port facility operations, the take estimates are 
determined by multiplying the area of the EBRV's ZOI (34 km\2\) by 
local marine mammal density estimates, corrected to account for 50 
percent more marine mammals that may be underwater, and then 
multiplying by the estimated LNG container ship visits per year. In the 
case of data gaps, a conservative approach was used to ensure the 
potential number of takes is not underestimated, as described next.
    NMFS recognizes that baleen whale species other than North Atlantic 
right whales have been sighted in the project area from May to 
November. However, the occurrence and abundance of fin, humpback, and 
minke whales is not well documented within the project area. 
Nonetheless, NMFS uses the data on cetacean distribution within 
Massachusetts Bay, such as those published by the National Centers for 
Coastal Ocean Science (NCCOS, 2006), to estimate potential takes of 
marine mammals species in the vicinity of project area.
    The NCCOS study used cetacean sightings from two sources: (1) The 
North Atlantic Right Whale Consortium (NARWC) sightings database held 
at the University of Rhode Island (Kenney, 2001); and (2) the Manomet 
Bird Observatory (MBO) database, held at NMFS Northeast Fisheries 
Science Center (NEFSC). The NARWC data contained survey efforts and 
sightings data from ship and aerial surveys and opportunistic sources 
between 1970 and 2005. The main data contributors included: Cetacean 
and Turtles Assessment Program (CETAP), Canadian Department of 
Fisheries and Oceans, PCCS, International Fund for Animal Welfare, 
NOAA's NEFSC, New England Aquarium, Woods Hole Oceanographic 
Institution, and the University of Rhode Island. A total of 653,725 km 
(406,293 mi) of survey track and 34,589 cetacean observations were 
provisionally selected for the NCCOS study in order to minimize bias 
from uneven allocation of survey effort in both time and space. The 
sightings-per-unit-effort (SPUE) was calculated for all cetacean 
species by month covering the southern Gulf of Maine study area, which 
also includes the project area (NCCOS, 2006).
    The MBO's Cetacean and Seabird Assessment Program (CSAP) was 
contracted from 1980 to 1988 by NMFS NEFSC to provide an assessment of 
the relative abundance and distribution of cetaceans, seabirds, and 
marine turtles in the shelf waters of the northeastern United States 
(MBO, 1987). The CSAP program was designed to be completely compatible 
with NMFS NEFSC databases so that marine mammal data could be compared 
directly with fisheries data throughout the time series during which 
both types of information were gathered. A total of 5,210 km (8,383 mi) 
of survey distance and 636 cetacean observations from the MBO data were 
included in the NCCOS analysis. Combined valid survey effort for the 
NCCOS studies included 567,955 km (913,840 mi) of survey track for 
small cetaceans (dolphins and porpoises) and 658,935 km (1,060,226 mi) 
for large cetaceans (whales) in the southern Gulf of Maine. The NCCOS 
study then combined these two data sets by extracting cetacean sighting 
records, updating database field names to match the NARWC database, 
creating geometry to represent survey tracklines and applying a set of 
data selection criteria designed to minimize uncertainty and bias in 
the data used.
    Owing to the comprehensiveness and total coverage of the NCCOS 
cetacean distribution and abundance study, NMFS calculated the 
estimated take number of marine mammals based on the most recent NCCOS 
report published in December 2006. For a detailed description and 
calculation of the cetacean abundance data and SPUE, please refer to 
the NCCOS study (NCCOS, 2006). These data show that the relative 
abundance of North Atlantic right, fin, humpback, minke, and pilot 
whales, and Atlantic white-sided dolphins for all seasons, as 
calculated by SPUE in number of animals per square kilometer, is 
0.0082, 0.0097,

[[Page 62784]]

0.0265, 0.0059, 0.0407, and 0.1314 n/km, respectively.
    In calculating the area density of these species from these linear 
density data, NMFS used 1.15 mi (1.85 km) as the strip width (W). This 
strip width is based on the distance of visibility used in the NARWC 
data that was part of the NCCOS (2006) study. However, those surveys 
used a strip transect instead of a line transect methodology. 
Therefore, in order to obtain a strip width, one must divide the 
visibility or transect value in half. Since the visibility value used 
in the NARWC data was 2.3 mi (3.7 km), it thus gives a strip width of 
1.15 mi (1.85 km). Based on this information, the area density (D) of 
these species in the project area can be obtained by the following 
formula:

D = SPUE/2W.

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

Negligible Impact and Small Numbers Analysis and Determination

    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``* * * 
an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.'' In making a negligible impact determination, 
NMFS considers a variety of factors, including but not limited to: (1) 
The number of anticipated mortalities; (2) the number and nature of 
anticipated injuries; (3) the number, nature, intensity, and duration 
of Level B harassment; and (4) the context in which the takes occur.
    No injuries or mortalities are anticipated to occur as a result of 
Northeast Gateway's proposed port operation activities, and none are 
authorized by NMFS. Additionally, animals in the area are not 
anticipated to incur any hearing impairment (i.e., TTS or PTS), as the 
modeling of source levels indicates that none of the source received 
levels exceed 180 dB (rms).
    While some of the species occur in the proposed project area year-
round, some species only occur in the area during certain seasons. 
Humpback and minke whales are not expected in the project area in the 
winter. During the winter, a large portion of the North Atlantic right 
whale population occurs in the southeastern U.S. calving grounds (i.e., 
South Carolina, Georgia, and northern Florida). The fact that certain 
activities will occur during times when certain species are not 
commonly found in the area will help reduce the amount of Level B 
harassment for these species.
    Many animals perform vital functions, such as feeding, resting, 
traveling, and socializing, on a diel cycle (24-hr cycle). Behavioral 
reactions to noise exposure (such as disruption of critical life 
functions, displacement, or avoidance of important habitat) are more 
likely to be significant if they last more than one diel cycle or recur 
on subsequent days (Southall et al., 2007). Consequently, a behavioral 
response lasting less than one day and not recurring on subsequent days 
is not considered particularly severe unless it could directly affect 
reproduction or survival (Southall et al., 2007). Operational 
activities are not anticipated to occur at the Port on consecutive 
days. In addition, Northeast Gateway EBRVs are expected to make 65 port 
calls throughout the year, with thruster use needed for a couple of 
hours. Therefore, Northeast Gateway will not be creating increased 
sound levels in the marine environment for prolonged periods of time.
    Of the 13 marine mammal species likely to occur in the area, four 
are listed as endangered under the ESA: North Atlantic right, humpback, 
and fin whales. All of these species, as well as the northern coastal 
stock of bottlenose dolphin, are also considered depleted under the 
MMPA. There is currently no designated critical habitat or known 
reproductive areas for any of these species in or near the proposed 
project area. However, there are several well known North Atlantic 
right whale feeding grounds in the Cape Cod Bay and Great South 
Channel. No mortality or injury is expected to occur, and due to the 
nature, degree, and context of the Level B harassment anticipated, the 
activity is not expected to impact rates of recruitment or survival.
    From the most conservative estimates of both marine mammal 
densities in the project area and the size of the 120-dB ZOI, the 
maximum calculated number of individual marine mammals for each species 
that could potentially be harassed annually is small relative to the 
overall population sizes (1.73 percent for humpback whales and 1.32 
percent for North Atlantic right whales and no more than 1 percent of 
any other species).
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, NMFS finds that the operation activities of the Northeast 
Gateway LNG Port will result in the incidental take of small numbers of 
marine mammals, by Level B harassment only, and that the total taking 
from Northeast Gateway's proposed activities will have a 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

[[Page 62785]]

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

Endangered Species Act (ESA)

    On February 5, 2007, NMFS concluded consultation with MARAD and the 
USCG, under section 7 of the ESA, on the proposed construction and 
operation of the Northeast Gateway LNG facility and issued a biological 
opinion. The finding of that consultation was that the construction and 
operation of the Northeast Gateway LNG terminal may adversely affect, 
but is not likely to jeopardize, the continued existence of northern 
right, humpback, and fin whales, and is not likely to adversely affect 
sperm, sei, or blue whales and Kemp's ridley, loggerhead, green or 
leatherback sea turtles. An incidental take statement (ITS) was issued 
following NMFS' issuance of the 2007 IHA.
    On November 15, 2007, Northeast Gateway and Algonquin submitted a 
letter to NMFS requesting an extension for the LNG Port construction 
into December 2007. Upon reviewing Northeast Gateway's weekly marine 
mammal monitoring reports submitted under the previous IHA, NMFS 
recognized that the potential take of some marine mammals resulting 
from the LNG Port and Pipeline Lateral by Level B behavioral harassment 
likely had exceeded the original take estimates. Therefore, NMFS 
Northeast Region (NER) reinitiated consultation with MARAD and USCG on 
the construction and operation of the Northeast Gateway LNG facility. 
On November 30, 2007, NMFS NER issued a revised biological opinion, 
reflecting the revised construction time period and including a revised 
ITS. This revised biological opinion concluded that the construction 
and operation of the Northeast Gateway LNG terminal may adversely 
affect, but is not likely to jeopardize, the continued existence of 
northern right, humpback, and fin whales, and is not likely to 
adversely affect sperm, sei, or blue whales.
    NMFS' Permits, Conservation and Education division has determined 
that the activities described in here are the same as those analyzed in 
the revised 2007 biological opinion. Therefore, a new consultation is 
not required for issuance of this IHA.

National Environmental Policy Act

    MARAD and the USCG released a Final EIS/Environmental Impact Report 
(EIR) for the proposed Northeast Gateway Port and Pipeline Lateral. A 
notice of availability was published by MARAD on October 26, 2006 (71 
FR 62657). The Final EIS/EIR provides detailed information on the 
proposed project facilities, construction methods and analysis of 
potential impacts on marine mammals.
    NMFS was a cooperating agency (as defined by the Council on 
Environmental Quality (40 CFR 1501.6)) in the preparation of the Draft 
and Final EISs. NMFS reviewed the Final EIS and adopted it on May 4, 
2007. NMFS issued a separate Record of Decision for issuance of 
authorizations pursuant to section 101(a)(5) of the MMPA for the 
construction and operation of the Northeast Gateway's LNG Port Facility 
in Massachusetts Bay.

Determinations

    NMFS has determined that the operation and maintenance activities 
of the Northeast Gateway Port facility may result, at worst, in a 
temporary modification in behavior of small numbers of certain species 
of marine mammals that may be in close proximity to the Northeast 
Gateway LNG facility. These activities are expected to result in some 
local short-term displacement only of the affected species or stocks of 
marine mammals. Taking these two factors together, NMFS concludes that 
the activity will have no more than a negligible impact on the affected 
species or stocks, as there will be no expected effects on annual rates 
of survival and reproduction of these species or stocks. This 
determination is further supported by the required mitigation, 
monitoring, and reporting measures described in this document.
    As a result of implementation of the described mitigation and 
monitoring measures, no take by injury or death would be requested, 
anticipated or authorized, and the potential for temporary or permanent 
hearing impairment is very unlikely due to the relatively low noise 
levels (and consequently small zone of impact relative to the size of 
Massachusetts Bay).
    While the number of marine mammals that may be harassed will depend 
on the distribution and abundance of marine mammals in the vicinity of 
the LNG Port facility, the estimated numbers of marine mammals to be 
harassed are small relative to the affected species or stock sizes.

Authorization

    NMFS has issued an IHA to Northeast Gateway for conducting LNG Port 
facility operations in Massachusetts Bay, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: October 4, 2011.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2011-26200 Filed 10-7-11; 8:45 am]
BILLING CODE 3510-22-P