Taking of Marine Mammals Incidental to Specified Activities; Operation of an LNG Facility in Massachusetts Bay, 16266-16272 [E8-6292]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 73, Number 60 (Thursday, March 27, 2008)]
[Notices]
[Pages 16266-16272]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-6292]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG25


Taking of Marine Mammals Incidental to Specified Activities; 
Operation of an LNG Facility in Massachusetts Bay

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

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

-----------------------------------------------------------------------

SUMMARY: On October 30, 2006, NMFS received a request from Northeast 
Gateway Energy Bridge\TM\ L.L.C. (Northeast Gateway) and Algonquin Gas 
Transmission, L.L.C. (Algonquin), for authorization to harass marine 
mammals, by harassment, incidental to construction and operation of an 
offshore liquefied natural gas (LNG) facility in the Massachusetts Bay. 
Following notice and comment, NMFS issued an incidental harassment 
authorization (IHA) to Northeast Gateway and Algonquin for a period of 
one year from May 8, 2007, to May 7, 2008, with mitigation, monitoring, 
and reporting requirements. On February 28, 2008, NMFS received a 
request from Tetra Tech EC, on behalf of Northeast Gateway to renew the 
IHA for a period of one year. NMFS will propose regulations at a later 
date that would govern these incidental takes under a Letter of 
Authorization (LOA) issued to Northeast Gateway for a period of up to 5 
years after the 1-year IHA expires. Pursuant to the Marine Mammal 
Protection Act (MMPA), NMFS is requesting comments on its proposal to 
issue an authorization to Northeast Gateway to incidentally take, by 
harassment, small numbers of marine mammals for a period of 1 year. 
NMFS is also requesting comments, information, and suggestions 
concerning Northeast Gateway's application and the structure and 
content of future regulations.

DATES: Comments and information must be postmarked no later than April 
28, 2008.

ADDRESSES: Comments should be addressed to P. Michael Payne, Chief, 
Permits, Conservation and Education Division, Office of Protected 
Resources, National Marine Fisheries Service, 1315 East-West Highway, 
Silver Spring, MD 20910-3226. The mailbox address for providing email 
comments on this action is PR1.0648-XG25@noaa.gov. Comments sent via 
email, including all attachments, must not exceed a 10-megabyte file 
size. A copy of the application and a list of references used in this 
document may be obtained by writing to this address, by telephoning the 
contact listed here (see FOR FURTHER INFORMATION CONTACT) and is also 
available at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm.
    The Maritime Administration (MARAD) and U.S. Coast Guard (USCG) 
Final Environmental Impact Statement (Final EIS) on the Northeast 
Gateway Energy Bridge LNG Deepwater Port license application is 
available for viewing at https://dms.dot.gov under the docket number 
22219.

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

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and 101(a)(5)(D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (Secretary) to allow, upon 
request, the incidental, but not intentional taking of marine mammals 
by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and regulations are issued or, if the taking is 
limited to harassment, a notice of a proposed authorization is provided 
to the public for review.
    An authorization shall be granted if NMFS finds that the taking 
will have a negligible impact on the species or stock(s) and will not 
have an unmitigable adverse impact on the availability of the species 
or stock(s) for certain subsistence uses, and if the permissible 
methods of taking and requirements pertaining to the mitigation, 
monitoring and reporting of such takings are set forth. NMFS has 
defined ``negligible impact'' in 50 CFR 216.103 as ``...an impact 
resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.''
    Subsection 101(a)(5)(D) of the MMPA established an expedited 
process by which citizens of the United States can apply for an 
authorization to incidentally take marine mammals by harassment. With 
respect to ``military readiness activities,'' the MMPA defines 
``harassment'' as follows:
(i) any act that injures or has the significant potential to injure 
a marine mammal or marine mammal stock in the wild [Level A 
harassment]; or (ii) any act that disturbs or is likely to disturb a 
marine mammal or marine mammal stock in the wild by causing 
disruption of natural behavioral patterns, including, but not 
limited to, migration, surfacing, nursing, breeding, feeding, or 
sheltering, to a point where such behavioral patterns are abandoned 
or significantly altered [Level B harassment].
    On October 30, 2006, NMFS received an application from Northeast 
Gateway and Algonquin for an IHA to take small numbers of several 
species of marine mammals, by Level B (behavioral) harassment, for a 
period of 1 year, incidental to construction and operation of an 
offshore LNG facility. On May 7, 2007, NMFS issued an IHA to Northeast 
Gateway and Algonquin to take marine mammals, by Level B harassment, 
incidental to construction and operation of the Northeast Gateway 
Deepwater Port (Port) to import LNG into the New England region. As one 
of the mitigation measures required by the IHA, construction of the LNG 
Port and its associated Pipeline Lateral was limited to between May 1 
and November 30, 2007 so that acoustic disturbance to the endangered 
North Atlantic right whale would largely be avoided.
    On November 15, 2007, Northeast Gateway and Algonquin submitted a 
letter to NMFS requesting a modification to their IHA to allow 
construction activities to extend into December 2007, due to unforeseen 
scheduling issues. Following a thorough review of Northeast Gateway's 
remaining construction activities, weekly marine mammal monitoring 
reports from previous construction, and analysis of the potential 
impacts to marine mammal species in the vicinity of the LNG Port, NMFS 
modified the IHA to allow Port construction activities into December 
2007, with additional mitigation, monitoring, and reporting measures.

[[Page 16267]]

    On December 21, 2007, Northeast Gateway reported that the LNG Port 
construction was complete. The Port, which is located in Massachusetts 
Bay, consists of a submerged buoy system to dock specifically 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. After 
construction, the Port completed commissioning activities on February 
27, 2008, enabling the facility to receive natural gas and to begin 
operations.

Description of the Activity

    The Port consists of two subsea Submerged Turret Loading (STL ) 
buoys, each with a flexible riser assembly and a manifold connecting 
the riser assembly, via a steel flowline, to the subsea Pipeline 
Lateral. Northeast Gateway utilizes vessels from its current fleet of 
specially designed Energy-Bridge\TM\Regasification Vessels (EBRVs), 
each capable of transporting approximately 2.9 billion ft\3\ (Bcf; 82 
million m\3\) of natural gas condensed to 4.9 million ft\3\ (138,000 
m\3\) of LNG. Northeast Gateway will also add vessels to its fleet that 
will have a cargo capacity of approximately 151,000 m\3\. The mooring 
system installed at the Port is designed to handle both the existing 
vessels and any of the larger capacity vessels that may come into 
service in the future. The EBRVs dock to the STL\TM\ buoys which serve 
as both the single-point mooring system for the vessels and the 
delivery conduit for natural gas. Each of the STL\TM\ buoys is secured 
to the seafloor using a series of suction anchors and a combination of 
chain/cable anchor lines.
    During the Port operations, EBRVs servicing the Port would utilize 
the newly configured and International Maritime Organization-approved 
Boston Traffic Separation Scheme (TSS) on their approach to and 
departure from the NEG Port at the earliest practicable point of 
transit. EBRVs would maintain speeds of 12 knots or less while in the 
TSS except when transiting the Off Race Point Seasonal Management Area 
between March 1 and April 30, the Great South Channel Seasonal 
Management Area between April 1 and July 31, or when there have been 
active right whale sightings, active acoustic detections, or both, in 
the vicinity of the transiting EBRV in the TSS or at the Port in which 
case the vessels would slow their speeds to 10 knots or less. See the 
Proposed Mitigation, Monitoring and Reporting Section.
    As an EBRV makes its final approach to the Port, vessel speed will 
gradually be reduced to 3 knots at 1.86 mi (1.16 km) out to less than 1 
knot at a distance of 1,640 ft (500 m) from the Port. When an EBRV 
arrives at the Port, it will retrieve one of the two permanently 
anchored submerged STL\TM\ buoys. It will make final connection to the 
buoy through a series of engine and bow thruster actions. The EBRV will 
require the use of thrusters for dynamic positioning during docking 
procedure. Typically, the docking procedure is completed over a 10- to 
30-minute period, with the thrusters activated as necessary for short 
periods of time in second bursts, not a continuous sound source. Once 
connected to the buoy, the EBRV will begin vaporizing the liquified 
natural gas (LNG) into its natural gas state using the onboard 
regasification system. As the LNG is regasified, natural gas will be 
transferred at pipeline pressures off the EBRV through the STL\TM\ buoy 
and flexible riser via a steel flowline leading to the connecting 
Pipeline Lateral. When the LNG vessel is on the buoy, wind and current 
effects on the vessel will be allowed to ``weathervane'' on the single-
point mooring system; therefore, thrusters will not be used to maintain 
a stationary position. It would take approximately 8 days for each EBRV 
to moor to the STL\TM\ Buoy, regasify its cargo of LNG and send it to 
the Northeast Gateway Pipeline Lateral, and disengage from the buoy.
    It is estimated that the Port could receive approximately 65 cargo 
deliveries a year. During this time period thrusters will be engaged in 
use for docking at the Port approximately 10 to 30 minutes for each 
vessel arrival and departure.
    The specified design life of the NEG Port is about 40 years, with 
the exception of the anchors, mooring chain/rope, and riser/umbilical 
assemblies, which are based on a maintenance-free design life of 20 
years. The buoy pick-up system components are considered consumable and 
will be inspected following each buoy connection, and replaced (from 
inside the STL\TM\ compartment during the normal cargo discharge 
period) as deemed necessary. The underwater components of the Port will 
be inspected once yearly using either divers or remotely operated 
vehicles to check and record the condition of the various STL\TM\ 
system components. These activities will be conducted using the Port's 
normal support vessel, and to the extent possible will coincide with 
planned weekly visits to the Port.
    Detailed information on these activities can be found in the MARAD/
USCG Final EIS on the Northeast Gateway Project (see ADDRESSES for 
availability) and in the IHA application. Detailed information on the 
LNG facility's operation and maintenance activities, and noise 
generated from operations was also published in the Federal Register on 
March 13, 2007 (72 FR 11328).

Marine Mammals Affected by the Activity

    Marine mammal species that potentially occur in the vicinity of the 
Northeast Gateway facility include several species of cetaceans and 
pinnipeds:
    North Atlantic right whale (Eubalaena glacialis),
    humpback whale (Megaptera novaeangliae),
    fin whale (Balaenoptera physalus),
    minke whale (B. acutorostrata),
    pilot whale (Globicephala spp.),
    Atlantic white-sided dolphin (Lagenorhynchus acutus),
    bottlenose dolphin (Tursiops truncatus),
    common dolphin (Delphinus delphis),
    killer whale (Orcinus orca),
    harbor porpoise (Phocoena phocoena),
    harbor seal (Phoca vitulina), and
    gray seal (Halichoerus grypus).
    Information on those species that may be impacted by this activity 
are discussed in detail in the USCG Final EIS on the Northeast Gateway 
LNG proposal. Please refer to that document for more information on 
these species and potential impacts from construction and operation of 
this LNG facility. In addition, general information on these marine 
mammal species can also be found in Wursig et al. (2000) and in the 
NMFS Stock Assessment Reports (Waring et al., 2007). This latter 
document is available at: https://www.nefsc.noaa.gov/nefsc/publications/
tm/tm201/. An updated summary on several commonly sighted marine mammal 
species distribution and abundance in the vicinity of the proposed 
action area is provided below.

Humpback Whale

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

[[Page 16268]]

Tillies Basin and between the 50- and 200-m (164- and 656-ft) isobaths 
along the inner slope of Georges Bank. High abundance was also 
estimated for the waters around Platts Bank. In the summer months, 
abundance increased markedly over the shallow waters (<50 m, or <164 
ft) of Stellwagen Bank, the waters (100 - 200 m, or 328 - 656 ft) 
between Platts Bank and Jeffreys Ledge, the steep slopes (between the 
30- and 160-m isobaths) of Phelps and Davis Bank north of the Great 
South Channel towards Cape Cod, and between the 50- and 100-m (164- and 
328-ft) isobath for almost the entire length of the steeply sloping 
northern edge of Georges Bank. This general distribution pattern 
persisted in all seasons except winter, when humpbacks remained at high 
abundance in only a few locations including Porpoise and Neddick Basins 
adjacent to Jeffreys Ledge, northern Stellwagen Bank and Tillies Basin, 
and the Great South Channel.

Fin Whale

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

Minke Whale

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

North Atlantic Right Whale

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

Pilot whale

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

Atlantic White-Sided Dolphin

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

[[Page 16269]]

indicated that high-use areas for individual whales and dolphin species 
co-occurred, resulting in similar patterns of species richness 
primarily along the southern portion of the 100-m (328-ft) isobath 
extending northeast and northwest from the Great South Channel. The 
southern edge of Stellwagen Bank and the waters around the northern tip 
of Cape Cod were also highlighted as supporting high cetacean species 
richness. Intermediate to high numbers of species are also calculated 
for the waters surrounding Jeffreys Ledge, the entire Stellwagen Bank, 
Platts Bank, Fippennies Ledge and Cashes Ledge.

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

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

Harbor Seal and Gray Seal

    In the U.S. waters of the western North Atlantic, both harbor and 
gray seals were usually found from the coast of Maine south to southern 
New England and New York (Warrings et al., 2007).
    Along the southern New England and New York coasts, harbor seals 
occur seasonally from September through late May (Schneider and Payne, 
1983). In recent years, their seasonal interval along the southern New 
England to New Jersey coasts had increased (deHart, 2002). In U.S. 
waters, harbor seal breeding and pupping normally occur in waters north 
of the New Hampshire/Maine border, although breeding has occurred as 
far south as Cape Cod in the early part of the 20\th\ century (Temte et 
al., 1991; Katona et al., 1993).
    Although gray seals were often seen off the coast from New England 
to Labrador, within the U.S. waters, only small numbers of gray seals 
have been observed pupping on several isolated islands along the Maine 
coast and in Nantucket-Vineyard Sound, Massachusetts (Katona et al., 
1993; Rough, 1995). In the late 1990s, a year-round breeding population 
of approximately over 400 gray seals was documented on outer Cape Cod 
and Muskeget Island (Warring et al., 2007).

Potential Effects of Noise on Marine Mammals

    The effects of noise on marine mammals are highly variable, and can 
be categorized as follows (based on Richardson et al., 1995): (1) The 
noise may be too weak to be heard at the location of the animal (i.e., 
lower than the prevailing ambient noise level, the hearing threshold of 
the animal at relevant frequencies, or both); (2) The noise may be 
audible but not strong enough to elicit any overt behavioral response; 
(3) The noise may elicit reactions of variable conspicuousness and 
variable relevance to the well being of the marine mammal; these can 
range from temporary alert responses to active avoidance reactions such 
as vacating an area at least until the noise event ceases; (4) Upon 
repeated exposure, a marine mammal may exhibit diminishing 
responsiveness (habituation), or disturbance effects may persist; the 
latter is most likely with sounds that are highly variable in 
characteristics, infrequent and unpredictable in occurrence, and 
associated with situations that a marine mammal perceives as a threat; 
(5) Any anthropogenic noise that is strong enough to be heard has the 
potential to reduce (mask) the ability of a marine mammal to hear 
natural sounds at similar frequencies, including calls from 
conspecifics, and underwater environmental sounds such as surf noise; 
(6) If mammals remain in an area because it is important for feeding, 
breeding or some other biologically important purpose even though there 
is chronic exposure to noise, it is possible that there could be noise-
induced physiological stress; this might in turn have negative effects 
on the well-being or reproduction of the animals involved; and (7) Very 
strong sounds have the potential to cause temporary or permanent 
reduction in hearing sensitivity. In terrestrial mammals, and 
presumably marine mammals, received sound levels must far exceed the 
animal's hearing threshold for there to be any temporary threshold 
shift (TTS) in its hearing ability. For transient sounds, the sound 
level necessary to cause TTS is inversely related to the duration of 
the sound. Received sound levels must be even higher for there to be 
risk of permanent hearing impairment. In addition, intense acoustic (or 
explosive events) may cause trauma to tissues associated with organs 
vital for hearing, sound production, respiration and other functions. 
This trauma may include minor to severe hemorrhage.
    There are three general kinds of sounds recognized by NMFS: 
continuous (such as shipping sounds), intermittent (such as vibratory 
pile driving sounds), and impulse. No impulse noise activities, such as 
blasting or standard pile driving, are associated with this project. 
The noise sources of potential concern are regasification/offloading 
(which is a continuous sound) and dynamic positioning of vessels using 
thrusters (an intermittent sound). Based on research by Malme et al. 
(1983; 1984), for both continuous and intermittent sound sources, Level 
B harassment is presumed to begin at received levels of 120-dB.
    None of the continuous sound sources associated with operation of 
the Northeast Gateway Project is expected to exceed the 120-dB 
threshold for Level B harassment. However, the intermittent noises from 
thruster use associated with dynamic positioning of vessels during 
operation (docking) may occasionally exceed this 120-dB threshold. 
Consequently, thruster use has the potential for a ``take'' by Level B 
harassment of any marine mammal occurring with a zone of ensonification 
(greater than 120 dB) emanating from the sound source. The potential 
impacts to marine mammals associated with sound propagation from vessel 
movements, anchors, chains and LNG regasification/offloading could be 
the temporary and short-term displacement of seals and whales from 
within the 120-dB zones ensonified by these noise sources. Animals 
would be expected to re-occupy the area once the noise ceases. In the 
vicinity of the LNG Port, where the water depth is about 80 m (262 ft), 
the 120-dB radius is estimated to be approximately 2.56 km (1.6 mi) 
from the second source during dynamic positioning for the container 
ship, making a ZOI of 21 km\2\ (8.1 mi\2\).

Estimates of Take by Harassment

    The basis for Northeast Gateway's ``take'' estimate is the number 
of marine mammals that would be exposed to sound levels in excess of 
120 dB. This is determined by multiplying the ZOI by local marine 
mammal density estimates, corrected to take account for 50 percent 
marine mammals that may be underwater, and then by estimated LNG 
container ship visits per year. In the case of data gaps, a 
conservative approach was used to ensure the potential number of takes 
is not underestimated, as described next.
    NMFS recognizes that baleen whale species other than North Atlantic 
right whales have been sighted in the proposed project area from May to

[[Page 16270]]

November. However, the occurrence and abundance of fin, humpback, and 
minke is not well documented within the project area. Nonetheless, NMFS 
uses the data on cetacean distribution within Massachusetts Bay, such 
as those published by the National Centers for Coastal Ocean Science 
(NCCOS, 2006), to determine potential takes of marine mammals in the 
vicinity of project area.
    The NCCOS study used cetacean sightings from two sources: (1) the 
North Atlantic Right Whale Consortium (NARWC) sightings database held 
at the University of Rhode Island (Kenney, 2001); and (2) the Manomet 
Bird Observatory (MBO) database, held at NOAA 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 proposed project area (NCCOS, 2006).
    The MBO's Cetacean and Seabird Assessment Program (CSAP) was 
contracted from 1980 to 1988 by NMFS NEFSC to provide an assessment of 
the relative abundance and distribution of cetaceans, seabirds, and 
marine turtles in the shelf waters of the northeastern United States 
(MBO, 1987). The CSAP program was designed to be completely compatible 
with NMFS NEFSC databases so that marine mammal data could be compared 
directly with fisheries data throughout the time series during which 
both types of information were gathered. A total of 5,210 km (8,383 mi) 
of survey distance and 636 cetacean observations from the MBO data were 
included in the NCCOS analysis. Combined valid survey effort for the 
NCCOS studies included 567,955 km (913,840 mi) of survey track for 
small cetaceans (dolphins and porpoises) and 658,935 km (1,060,226 mi) 
for large cetaceans (whales) in the southern Gulf of Maine. The NCCOS 
study then combined these two data sets by extracting cetacean sighting 
records, updating database field names to match the NARWC database, 
creating geometry to represent survey tracklines and applying a set of 
data selection criteria designed to minimize uncertainty and bias in 
the data used.
    Owning to the comprehensiveness and total coverage of the NCCOS 
cetacean distribution and abundance study, NMFS subsequently 
recalculated 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 proposed project 
area is provided above, in the Marine Mammals Affected by the Activity 
section. For a detailed description and calculation of the cetacean 
abundance data and SPUE, please refer to the NCCOS study (NCCOS, 2006). 
These data show that the upper limit of the relative abundance of North 
Atlantic right, fin, humpback, minke, and pilot whales, and Atlantic 
white-sided dolphins for all seasons, as calculated by SPUE in number 
of animals per square kilometer, is 0.0082, 0.0097, 0.0265, 0.0059, 
0.0407, and 0.1314 n/km, respectively.
    In calculating the area density of these species from these linear 
density data, NMFS used 0.4 km (0.25 mi), which is a quarter the 
distance of the radius for visual monitoring (see Monitoring, 
Mitigation, and Reporting section below), as a conservative 
hypothetical strip width (W). Thus the area density (D) of these 
species in the proposed project area can be obtained by the following 
formula:
    D = SPUE/2W.
    Based on the calculation, the estimated take numbers per year for 
North Atlantic right, fin, humpback, minke, and pilot whales, and 
Atlantic white-sided dolphins, within the 120-dB ZOI of the LNG Port 
facility area of approximately 21 km\2\ (8.1 mi\2\) maximum ZOI, 
corrected for 50 percent underwater, are 21, 90, 165, 15, 104, and 336, 
respectively. This estimate is based on an average of 65 visits by LNG 
container ships to the project area per year (or approximately 1.25 
visits per week), operating the vessels' thrusters for dynamic 
positioning before offloading natural gas. It is expected that total 
amount of time of dynamic positioning is about 30 minutes, therefore, 
any marine mammals that are potentially exposed to noise levels about 
120 dB re 1 microPa from container ships' dynamic positioning would be 
brief. There is no danger of injury, death, or hearing impairment from 
the exposure to these noise levels. These numbers represent 
approximately 7, 3, 18, 0.4, 0.3, and 0.7 percent of the populations 
for these species, respectively.
    In addition, bottlenose dolphins, common dolphins, harbor 
porpoises, harbor seals, and gray seals could also be taken by Level B 
harassment as a result of the proposed deepwater LNG port project. The 
numbers of estimated take of these species are not available they are 
rare in the proposed project area. The population estimates of these 
marine mammal species and stock in the west North Atlantic basin are 
81,588, 120,743, 89,700, 99,340, and 195,000 for bottlenose dolphins, 
common dolphins, harbor porpoises, harbor seals, and gray seals, 
respectively (Waring et al., 2007). Since the Massachusetts Bay 
represents only a small fraction of the west North Atlantic basin where 
these animals occur, and these animals do not congregate in the 
vicinity of the proposed project area, NMFS believes that only 
relatively small numbers of these marine mammal species would be 
potentially affected by the proposed Northeast Gateway LNG deepwater 
project. From the most conservative estimates of both marine mammal 
densities in the proposed project area and the size of the 120-dB zone 
of (noise) influence (ZOI), the calculated number of individual marine 
mammals for each species that could potentially be harassed annually is 
small relative to the overall population size.

Potential Impact on Habitat

    Operation of the Port and Pipeline Lateral will result in long-term 
effects on the marine environment, including alteration of seafloor 
conditions, continued disturbance of the seafloor, regular withdrawal 
of sea water, and regular generation of underwater noise. A small area 
(0.14 acre) along the Pipeline Lateral will be permanently altered 
(armored) at two cable crossings. In addition, the structures 
associated with the Port will occupy 4.8 acres of seafloor. An 
additional area of the seafloor of up to 38 acres will be subject to 
disturbance due to chain sweep while the buoys are occupied. The 
benthic community in the up-to 38 acres of soft bottom that may be 
swept by the anchor chains while EBRVs are docked will have limited 
opportunity to recover, so this area will experience a long-term 
reduction in benthic productivity.
    Each EBRV will require the withdrawal of an average of 4.97 million 
gallons per day of sea water for general ship operations during its 8-
day stay at the Port. As with hydrostatic testing, plankton associated 
with the sea water will not likely survive this activity. Based on 
densities of plankton in

[[Page 16271]]

Massachusetts Bay, it is estimated that sea water use during operations 
will consume, on a daily basis, about 3 200 x 1,010 phytoplankton cells 
(about several hundred grams of biomass), 6.5 x 108 zooplankters 
(equivalent to about 1.2 kg of copepods), and on the order of 30,000 
fish eggs and 5,000 fish larvae. Also, the daily removal of sea water 
will reduce the food resources available for planktivorous organisms. 
However, the removal of these species is minor relative to the overall 
area they occupy and unlikely to measurably affect the food sources 
available to marine mammals.

Proposed Monitoring, Mitigation, and Reporting

    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 
reporting procedures are followed.

Vessel Strike Avoidance

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

PAM Program

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

Reporting

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

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. NMFS determined the issuance of the IHA for 
the construction and operation of the

[[Page 16272]]

LNG Port facility for the period between May 8, 2007, and May 7, 2008, 
with construction activities limited from May to November 2007, would 
not have impacts beyond what was analyzed in the biological opinion so 
additional consultation was not required. An incidental take statement 
(ITS) was issued following NMFS' issuance of the IHA.
    On November 15, 2007, Northeast Gateway and Algonquin submitted a 
letter to NMFS requesting an extension for the LNG Port construction 
into December 2007. Upon reviewing Northeast Gateway's weekly marine 
mammal monitoring reports submitted under the previous IHA, NMFS 
recognized that the potential take of some marine mammals resulting 
from the LNG Port and Pipeline Lateral by Level B behavioral harassment 
likely had exceeded the original take estimates. Therefore, NMFS 
Northeast Region (NER) reinitiated consultation with MARAD and USCG on 
the construction and operation of the Northeast Gateway LNG facility, 
based on their proposed action to issue revised permits allowing 
construction to continue through December 2007 and including the 
mitigation measures that are also included as part of the IHA 
modification, and the fact that the takes associated with the project 
likely had exceeded the amount of take in the ITS of the February 5, 
2007, biological opinion. 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 has 
concluded that issuance of this proposed IHA renewal would not have 
impacts beyond what was analyzed in the November 30, 2007, biological 
opinion, so additional consultation is not required.

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

Preliminary Determinations

    NMFS has preliminarily determined that the impact of operation of 
the Northeast Gateway Port Project may result, at worst, in a temporary 
modification in behavior of small numbers of certain species of marine 
mammals that may be in close proximity to the Northeast Gateway LNG 
facility and associated pipeline during its operation. These activities 
are expected to result in some local short-term displacement and will 
have no more than a negligible impact on the affected species or stocks 
of marine mammals. Taking these two factors together, NMFS concludes 
that there will be no biologically significant effects on the survival 
and reproduction of these species or stocks. Please see Estimate of 
Take by Harassment section below for the calculation of these take 
numbers.
    This preliminary determination is supported by proposed mitigation, 
monitoring, and reporting measures described in this document and NMFS' 
Biological Opinion on this action.
    As a result of the described proposed mitigation and monitoring 
measures, no take by injury or death would be requested, anticipated or 
authorized, and the potential for temporary or permanent hearing 
impairment is very unlikely due to the relatively low noise levels (and 
consequently small zone of impact).
    While the number of marine mammals that may be harassed will depend 
on the distribution and abundance of marine mammals in the vicinity of 
the LNG Port facility, the estimated numbers of marine mammals to be 
harassed is small relative to the affected species or stock sizes.

Proposed Authorization

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

Information Solicited

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

    Dated: March 20, 2008.
Helen Golde,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. E8-6292 Filed 3-26-08; 8:45 am]
BILLING CODE 3510-22-S