Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Operation and Maintenance of a Liquefied Natural Gas Facility off Massachusetts, 41440-41449 [2010-17434]

Download as PDF 41440 Federal Register / Vol. 75, No. 136 / Friday, July 16, 2010 / Notices dealing with matters the disclosure of which would be likely to frustrate significantly implementation of an agency action as described in 5 U.S.C. 552b(c)(9)(B) shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)1 and 10(a)(3). The remaining portions of the meeting will be open to the public. For more information, call Yvette Springer at (202) 482–2813. (Final EIS) on the Neptune LNG Deepwater Port License Application is available for viewing at http:// www.regulations.gov by entering the search words ‘‘Neptune LNG.’’ FOR FURTHER INFORMATION CONTACT: Candace Nachman, Office of Protected Resources, NMFS, (301) 713 2289, ext 156. SUPPLEMENTARY INFORMATION: Dated: July 13, 2010. Yvette Springer, Committee Liaison Officer. Background Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review. Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined ‘‘negligible impact’’ in 50 CFR 216.103 as ’’...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.’’ 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. 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 the authorization. Except with respect to certain activities not pertinent here, the MMPA defines ‘‘harassment’’ as: [FR Doc. 2010–17398 Filed 7–15–10; 8:45 am] BILLING CODE 3510–JT–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XW09 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Operation and Maintenance of a Liquefied Natural Gas Facility off Massachusetts srobinson on DSKHWCL6B1PROD with NOTICES AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; issuance of an incidental harassment authorization. SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) regulations, notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to Neptune LNG LLC (Neptune) to take marine mammals, by harassment, incidental to port commissioning and operations, including maintenance and repair activities, at its Neptune Deepwater Port. DATES: Effective July 12, 2010, through July 11, 2011. ADDRESSES: A copy of the authorization and application may be obtained by writing to Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East West Highway, Silver Spring, MD 20910, telephoning the contact listed below (see FOR FURTHER INFORMATION CONTACT), or visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/ incidental.htm. Documents cited in this notice may also be viewed, by appointment, during regular business hours, at the aforementioned address. The Maritime Administration (MARAD) and U.S. Coast Guard (USCG) Final Environmental Impact Statement VerDate Mar<15>2010 18:00 Jul 15, 2010 Jkt 220001 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, PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [‘‘Level B harassment’’]. Summary of Request NMFS received an application on December 14, 2009, from Neptune for the taking, by harassment, of marine mammals incidental to port commissioning and operations, including maintenance and repair activities, at its Neptune Deepwater Port (Port) facility in Massachusetts Bay. NMFS reviewed Neptune’s application and identified a number of issues requiring further clarification. After addressing comments from NMFS, Neptune modified its application and submitted a revised application on March 11, 2010. NMFS issued a 1–year IHA to Neptune in June 2008 for the construction of the Port (73 FR 33400, June 12, 2008), which expired on June 30, 2009. NMFS issued a second 1–year IHA to Neptune for the completion of construction and beginning of Port operations on June 26, 2009 (74 FR 31926, July 6, 2009). This IHA expired on June 30, 2010. During the period of this third IHA, Neptune intends to commission its second shuttle and regasification vessel (SRV) and conduct limited port operations. There is also a chance that some maintenance and repairs may need to be conducted on the Port facility. The Neptune Port is located approximately 22 mi (35 km) northeast of Boston, Massachusetts, in Federal waters approximately 260 ft (79 m) in depth. The purpose of the Port is the importation of liquefied natural gas (LNG) into the New England region. Take of marine mammals may occur during port operations from thruster use during maneuvering of the SRVs while docking and undocking, occasional weathervaning (turning of a vessel at anchor from one direction to another under the influence of wind or currents) at the Port, and during thruster use of dynamic positioning (DP) maintenance vessels should a major repair be necessary. Neptune has requested an authorization to take 12 marine mammal species by Level B harassment. They are: North Atlantic right whale; humpback whale; fin whale; sei whale; minke whale; long-finned pilot whale; Atlantic white-sided dolphin; harbor porpoise; common dolphin; Risso’s dolphin; bottlenose dolphin; and harbor seal. In the 2009 IHA, NMFS also authorized take of killer whales and gray seals. NMFS has determined that it would be appropriate to authorize take, by Level B harassment only, of these E:\FR\FM\16JYN1.SGM 16JYN1 Federal Register / Vol. 75, No. 136 / Friday, July 16, 2010 / Notices srobinson on DSKHWCL6B1PROD with NOTICES two species as well for port operations and maintenance. Description of the Specified Activity On March 23, 2007, Neptune received a license to own, construct, and operate a deepwater port from MARAD. The Port, which is located in Massachusetts Bay, consists of a submerged buoy system to dock specifically designed LNG carriers approximately 22 mi (35 km) northeast of Boston, Massachusetts, in Federal waters approximately 260 ft (79 m) in depth. The two buoys are separated by a distance of approximately 2.1 mi (3.4 km). The locations of the Neptune Port and the associated pipeline are shown in Figure 2–1 in Neptune’s application (see ADDRESSES). During the time period of this IHA, Neptune plans to commission its second SRV and begin limited operations of the Port. Neptune will be capable of mooring LNG SRVs with a capacity of approximately 140,000 cubic meters (m3). Up to two SRVs will temporarily moor at the Port by means of a submerged unloading buoy system. Two separate buoys will allow natural gas to be delivered in a continuous flow, without interruption, by having a brief overlap between arriving and departing SRVs. The annual average throughput capacity will be around 500 million standard cubic feet per day (mmscfd) with an initial throughput of 400 mmscfd, and a peak capacity of approximately 750 mmscfd. The SRVs will be equipped to store, transport, and vaporize LNG and to odorize, meter and send out natural gas by means of two 16–in (40.6–cm) flexible risers and one 24–in (61–cm) subsea flowline. These risers and flowline will lead to a 24–in (61–cm) gas transmission pipeline connecting the deepwater port to the existing 30– in (76.2–cm) Algonquin HublineTM (HublineTM) located approximately 9 mi (14.5 km) west of the Neptune deepwater port location. The Port will have an expected operating life of approximately 25 years. Figure 1–1 of Neptune’s application shows an isometric view of the Port (see ADDRESSES). A detailed overview of Port operations and maintenance and repair activities, as well as the types of sounds those activities produce, was provided in the Notice of Proposed IHA (75 FR 24906, May 6, 2010). No changes have been made to the proposed operations or maintenance and repair activities. Comments and Responses A notice of receipt of Neptune’s application and NMFS’ proposal to issue an IHA to Neptune published in VerDate Mar<15>2010 18:00 Jul 15, 2010 Jkt 220001 the Federal Register on May 6, 2010 (75 FR 24906). During the 30–day public comment period, NMFS did not receive any comment letters. The Marine Mammal Commission (MMC) submitted comments after the close of the 30–day comment period. Those comments and responses are addressed here. Comment 1: The MMC concurs with the need for the monitoring and mitigation measures proposed by NMFS and the applicant and recommends that NMFS include all of them in any IHA, especially to mitigate the risk of ship collisions with North Atlantic right whales and other cetacean species. Response: All measures proposed in the Notice of Proposed IHA are included in the IHA. Comment 2: The MMC concurs with the need to reinitiate section 7 consultation and recommends that NMFS complete the consultation and issue the IHA only if the resulting Biological Opinion concludes that the cumulative effects of the proposed action, in combination with other activities in the action area, are not likely to jeopardize the continued existence of the North Atlantic right, humpback, fin, sperm, sei, or blue whales. Response: Section 7 consultation under the Endangered Species Act (ESA) was reinitiated in March 2010. That consultation is now complete and makes the following conclusion. After reviewing the best available information on the status of endangered and threatened species under NMFS jurisdiction, the environmental baseline for the action area, the effects of the action, and the cumulative effects in the action area, it is NMFS’ biological opinion that the operation of the Neptune LNG deepwater port, including required maintenance and repair work, is likely to adversely affect, but is not likely to jeopardize the continued existence of the North Atlantic right, humpback, fin, and sei whale. NMFS’ January 2007 Biological Opinion considered impacts from port and pipeline construction and operation on sperm and blue whales in addition to the other cetacean species cited in the MMC’s comment. The 2007 opinion concluded that those activities were not likely to adversely affect sperm and blue whales. Because no additional effects to these two species are anticipated from the repair and maintenance activities and no effects beyond those analyzed in 2007 for operations are likely, sperm and blue whales were not further analyzed in the 2010 Biological Opinion. PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 41441 Description of Marine Mammals in the Area of the Specified Activity Massachusetts Bay (as well as the entire Atlantic Ocean) hosts a diverse assemblage of marine mammals, including: North Atlantic right whale; blue whale; fin whale; sei whale; minke whale; humpback whale; killer whale; long-finned pilot whale; sperm whale; Atlantic white-beaked dolphin; Atlantic white-sided dolphin; bottlenose dolphin; common dolphin; harbor porpoise; Risso’s dolphin; striped dolphin; gray seal; harbor seal; harp seal; and hooded seal. Table 3–1 in Neptune’s application outlines the marine mammal species that occur in Massachusetts Bay and the likelihood of occurrence of each species. Of the species listed here, the North Atlantic right, blue, fin, sei, humpback, and sperm whales are all listed as endangered under the ESA and as depleted under the MMPA. The northern coastal stock of bottlenose dolphins is considered depleted under the MMPA. Certain stocks or populations of killer whales are listed as endangered under the ESA or depleted under the MMPA; however, none of those stocks or populations occurs in the proposed activity area. Of these species, 14 are expected to occur in the area of Neptune’s proposed operations. These species include: the North Atlantic right, humpback, fin, sei, minke, killer, and long-finned pilot whale; Atlantic white-sided, common, Risso’s, and bottlenose dolphins; harbor porpoise; and harbor and gray seals. The Notice of Proposed IHA (75 FR 24906, May 6, 2010) provided a description of certain marine mammal species that are considered rare in the project area. Information on those species that may be impacted by this activity is provided in Neptune’s application and sections 3.2.3 and 3.2.5 in the MARAD/USCG Final EIS on the Neptune LNG proposal (see ADDRESSES). Please refer to those documents for more information on these species. In addition, general information on these marine mammal species can also be found in the NMFS U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Report (Waring et al., 2009), which is available at: http:// www.nefsc.noaa.gov/publications/tm/ tm213/. A brief summary on several commonly sighted marine mammal species distribution and abundance in the vicinity of the action area was provided in the Notice of Proposed IHA (75 FR 24906, May 6, 2010). E:\FR\FM\16JYN1.SGM 16JYN1 41442 Federal Register / Vol. 75, No. 136 / Friday, July 16, 2010 / Notices srobinson on DSKHWCL6B1PROD with NOTICES Brief Background on Marine Mammal Hearing When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data, Southall et al. (2007) designate ‘‘functional hearing groups’’ for marine mammals and estimate the lower and upper frequencies of functional hearing of the groups. The functional groups and the associated frequencies are indicated below (though animals are less sensitive to sounds at the outer edge of their functional range and most sensitive to sounds of frequencies within a smaller range somewhere in the middle of their functional hearing range): • Low-frequency cetaceans (13 species of mysticetes): functional hearing is estimated to occur between approximately 7 Hz and 22 kHz; • Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): functional hearing is estimated to occur between approximately 150 Hz and 160 kHz; • High-frequency cetaceans (eight species of true porpoises, six species of river dolphins, Kogia, the franciscana, and four species of cephalorhynchids): functional hearing is estimated to occur between approximately 200 Hz and 180 kHz; and • Pinnipeds in Water: functional hearing is estimated to occur between approximately 75 Hz and 75 kHz, with the greatest sensitivity between approximately 700 Hz and 20 kHz. As mentioned previously in this document, 14 marine mammal species (12 cetacean and two pinniped species) are likely to occur in the Neptune Port area. Of the 12 cetacean species likely to occur in Neptune’s project area, five are classified as low-frequency cetaceans (i.e., North Atlantic right, humpback, fin, minke, and sei whales), six are classified as mid-frequency cetaceans (i.e., killer and pilot whales and bottlenose, common, Risso’s, and Atlantic white-sided dolphins), and one is classified as a high-frequency cetacean (i.e., harbor porpoise) (Southall et al., 2007). Potential Effects of the Specified Activity on Marine Mammals Potential effects of Neptune’s proposed port operations and VerDate Mar<15>2010 18:00 Jul 15, 2010 Jkt 220001 maintenance/repair activities would most likely be acoustic in nature. LNG port operations and maintenance/repair activities introduce sound into the marine environment. Potential acoustic effects on marine mammals relate to sound produced by thrusters during maneuvering of the SRVs while docking and undocking, occasional weathervaning at the port, and during thruster use of DP maintenance vessels should a major repair be necessary. The potential effects of sound from the proposed activities associated with the Neptune Port might include one or more of the following: tolerance; masking of natural sounds; behavioral disturbance; non-auditory physical effects; and, at least in theory, temporary or permanent hearing impairment (Richardson et al., 1995). However, for reasons discussed in the Notice of Proposed IHA (75 FR 24906, May 6, 2010) and later in this document, it is unlikely that there would be any cases of temporary, or especially permanent, hearing impairment resulting from these activities. As outlined in previous NMFS documents, 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 but potentially for longer periods of time; (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, PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 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 a 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. The Notice of Proposed IHA (75 FR 24906, May 6, 2010) included a discussion of the effects of anthropogenic sound on mysticetes, odontocetes, and pinnipeds, including tolerance, masking, disturbance, and hearing impairment and other physiological effects. That discussion did not take into consideration the monitoring and mitigation measures proposed by Neptune and NMFS. Based on the discussion contained in the proposed IHA notice, it is highly unlikely that marine mammals could receive sounds strong enough (and over a sufficient duration) to cause permanent threshold shift (or even TTS) during port operations and maintenance/repair activities. The modeled broadband source level for 100 percent thruster use during port operations is 180 dB re 1 μPa at 1 m (rms). This does not reach the threshold of 190 dB currently used for pinnipeds. The threshold for cetaceans is 180 dB; therefore, cetaceans would have to be immediately adjacent to the vessel for even the possibility of hearing impairment to occur. Based on this and mitigation measures included in the IHA (described later in this document in the ‘‘Mitigation’’ section), only Level B behavioral harassment is anticipated occur, and it is highly unlikely that any type of hearing impairment would occur as a result of Neptune’s activities. Anticipated Effects on Habitat The primary potential impacts to marine mammals and other marine E:\FR\FM\16JYN1.SGM 16JYN1 Federal Register / Vol. 75, No. 136 / Friday, July 16, 2010 / Notices srobinson on DSKHWCL6B1PROD with NOTICES species are associated with elevated sound levels produced by the Port operations and maintenance/repair activities. However, other potential impacts from physical disturbance are also possible. Major repairs to the Neptune port and pipeline may affect marine mammal habitat in several ways: cause disturbance of the seafloor; increase turbidity slightly; and generate additional underwater sound in the area. These underwater sound levels will cause some species to temporarily disperse from or avoid repair areas, but they are expected to return shortly after the repair is completed. Operation of the Port will result in long-term, continued disturbance of the seafloor, regular withdrawal of seawater, and generation of underwater sound. The Notice of Proposed IHA (75 FR 24906, May 6, 2010) contained a full discussion of the potential impacts to marine mammal habitat and prey species in the project area. NMFS determined that repair activities would not create long-term habitat changes, and marine mammals displaced by the disturbance to the seafloor are expected to return soon after repair activities cease. Marine mammals also could be indirectly affected if benthic prey species were displaced or destroyed by repair activities. However, affected species are expected to recover soon after the completion of repairs and will represent only a small portion of food available to marine mammals in the area. In conclusion, NMFS has determined that Neptune’s port operations and maintenance/repair activities are not expected to have any habitat-related effects that could cause significant or long-term consequences for individual marine mammals or on the food sources that they utilize. Mitigation In order to issue an incidental take authorization (ITA) under Sections 101(a)(5)(A) and (D) of the MMPA, NMFS must, where applicable, set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable 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). Mitigation Measures in Neptune’s IHA Application Neptune submitted a ‘‘Marine Mammal Detection, Monitoring, and Response Plan for the Operations Phase’’ VerDate Mar<15>2010 18:00 Jul 15, 2010 Jkt 220001 (the Plan) as part of its MMPA application (Appendix D of the application; see ADDRESSES). The measures, which include safety zones and vessel speed reductions, are fully described in the Plan and summarized here. Any maintenance and/or repairs needed will be scheduled in advance during the May 1 to November 30 seasonal window, whenever possible, so that disturbance to North Atlantic right whales will be largely avoided. If the repair cannot be scheduled during this time frame, additional mitigation measures are required. (1) Mitigation Measures for Major Repairs (May 1 to November 30) (A) During repairs, if a marine mammal is detected within 0.5 mi (0.8 km) of the repair vessel, the vessel superintendent or on-deck supervisor will be notified immediately. The vessel’s crew will be put on a heightened state of alert. The marine mammal will be monitored constantly to determine if it is moving toward the repair area. (B) Repair vessels will cease any movement in the area if a marine mammal other than a right whale is sighted within or approaching to a distance of 100 yd (91 m) from the operating repair vessel. Repair vessels will cease any movement in the construction area if a right whale is sighted within or approaching to a distance of 500 yd (457 m) from the operating vessel. Vessels transiting the repair area, such as pipe haul barge tugs, will also be required to maintain these separation distances. (C) Repair vessels will cease all sound emitting activities if a marine mammal other than a right whale is sighted within or approaching to a distance of 100 yd (91 m) or if a right whale is sighted within or approaching to a distance of 500 yd (457 m), from the operating repair vessel. The backcalculated source level, based on the most conservative cylindrical model of acoustic energy spreading, is estimated to be 139 dB re 1 μPa. (D) Repair activities may resume after the marine mammal is positively reconfirmed outside the established zones (either 500 yd (457 m) or 100 yd (91 m), depending upon species). (E) While under way, all repair vessels will remain 500 yd (457 m) away from right whales and 100 yd (91 m) away from all other marine mammals to the extent physically feasible given navigational constraints. (F) All repair vessels 300 gross tons or greater will maintain a speed of 10 knots (18.5 km/hr) or less. Vessels less than 300 gross tons carrying supplies or crew PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 41443 between the shore and the repair site will contact the Mandatory Ship Reporting System (MSRS), the USCG, or the marine mammal observers (MMOs) at the repair site before leaving shore for reports of recent right whale sightings or active Dynamic Management Areas (DMAs) and, consistent with navigation safety, restrict speeds to 10 knots (18.5 km/hr) or less within 5 mi (8 km) of any recent sighting location and within any existing DMA. (G) Vessels transiting through the Cape Cod Canal and Cape Cod Bay (CCB) between January 1 and May 15 will reduce speeds to 10 knots (18.5 km/ hr) or less, follow the recommended routes charted by NOAA to reduce interactions between right whales and shipping traffic, and avoid aggregations of right whales in the eastern portion of CCB. (2) Additional Port and Pipeline Major Repair Measures (December 1 to April 30) If unplanned/emergency repair activities cannot be conducted between May 1 and November 30, Neptune is required to implement the following additional mitigation measures: (A) If on-board MMOs do not have at least 0.5–mi (0.8–km) visibility, they shall call for a shutdown of repair activities. If dive operations are in progress, then they shall be halted and brought on board until visibility is adequate to see a 0.5–mi (0.8–km) range. At the time of shutdown, the use of thrusters must be minimized. If there are potential safety problems due to the shutdown, the captain will decide what operations can safely be shut down and will document such activities. (B) Prior to leaving the dock to begin transit, the barge will contact one of the MMOs on watch to receive an update of sightings within the visual observation area. If the MMO has observed a North Atlantic right whale within 30 minutes of the transit start, the vessel will hold for 30 minutes and again get a clearance to leave from the MMOs on board. MMOs will assess whale activity and visual observation ability at the time of the transit request to clear the barge for release. (C) A half-day training course will be provided to designated crew members assigned to the transit barges and other support vessels. These designated crew members will be required to keep watch on the bridge and immediately notify the navigator of any whale sightings. All watch crew will sign into a bridge log book upon start and end of watch. Transit route, destination, sea conditions, and any protected species sightings/mitigation actions during E:\FR\FM\16JYN1.SGM 16JYN1 41444 Federal Register / Vol. 75, No. 136 / Friday, July 16, 2010 / Notices srobinson on DSKHWCL6B1PROD with NOTICES watch will be recorded in the log book. Any whale sightings within 3,281 ft (1,000 m) of the vessel will result in a high alert and slow speed of 4 knots (7.4 km/hr) or less. A sighting within 2,461 ft (750 m) will result in idle speed and/ or ceasing all movement. (D) The material barges and tugs used for repair work shall transit from the operations dock to the work sites during daylight hours, when possible, provided the safety of the vessels is not compromised. Should transit at night be required, the maximum speed of the tug will be 5 knots (9.3 km/hr). (E) Consistent with navigation safety, all repair vessels must maintain a speed of 10 knots (18.5 km/hr) or less during daylight hours. All vessels will operate at 5 knots or less at all times within 3.1 mi (5 km) of the repair area. (3) Speed Restrictions in Seasonal Management Areas (SMAs) Repair vessels and SRVs will transit at 10 knots (18.5 km/hr) or less in the following seasons and areas, which either correspond to or are more restrictive than the times and areas in NMFS’ final rule (73 FR 60173, October 10, 2008) to implement speed restrictions to reduce the likelihood and severity of ship strikes of right whales: • CCB SMA from January 1 through May 15, which includes all waters in CCB, extending to all shorelines of the Bay, with a northern boundary of 42° 12’ N. latitude; • Off Race Point SMA year round, which is bounded by straight lines connecting the following coordinates in the order stated: 42° 30’ N. 69° 45’ W.; thence to 42° 30’ N. 70° 30’ W.; thence to 42° 12’ N. 70° 30’ W.; thence to 42° 12’ N. 70° 12’ W.; thence to 42° 04’ 56.5’’ N. 70° 12’ W.; thence along mean high water line and inshore limits of COLREGS limit to a latitude of 41° 40’ N.; thence due east to 41° 41’ N. 69° 45’ W.; thence back to starting point; and • Great South Channel (GSC) SMA from April 1 through July 31, which is bounded by straight lines connecting the following coordinates in the order stated: 42° 30’ N. 69° 45’ W. 41° 40’ N. 69° 45’ W. 41° 00’ N. 69° 05’ W. 42° 09’ N. 67° 08’ 24’’ W. 42° 30’ N. 67° 27’ W. 42° 30’ N. 69° 45’ W. (4) Additional Mitigation Measures (A) In approaching and departing from the Neptune Port, SRVs shall use the Boston Traffic Separation Scheme (TSS) starting and ending at the entrance to the GSC. Upon entering the TSS, the SRV shall go into a ‘‘heightened VerDate Mar<15>2010 18:00 Jul 15, 2010 Jkt 220001 awareness’’ mode of operation, which is outlined in detail in the Plan (see Neptune’s application). (B) In the event that a whale is visually observed within 0.6 mi (1 km) of the Port or a confirmed acoustic detection is reported on either of the two auto-detection buoys (ABs; more information on the acoustic devices is contained in the ‘‘Monitoring and Reporting’’ section later in this document) closest to the Port, departing SRVs shall delay their departure from the Port, unless extraordinary circumstances, defined in the Plan, require that the departure is not delayed. The departure delay shall continue until either the observed whale has been visually (during daylight hours) confirmed as more than 0.6 mi (1 km) from the Port or 30 minutes have passed without another confirmed detection either acoustically within the acoustic detection range of the two ABs closest to the Port or visually within 0.6 mi (1 km) from Neptune. (C) SRVs that are approaching or departing from the Port and are within the Area to be Avoided (ATBA) surrounding Neptune shall remain at least 0.6 mi (1 km) away from any visually detected right whales and at least 100 yards (91 meters) away from all other visually detected whales unless extraordinary circumstances, as defined in Section 1.2 of the Plan in Neptune’s application, require that the vessel stay its course. The ATBA is defined in 33 CFR 150.940. It is the largest area of the Port marked on nautical charts and it is enforceable by the USCG in accordance with the 150.900 regulations. The Vessel Master shall designate at least one lookout to be exclusively and continuously monitoring for the presence of marine mammals at all times while the SRV is approaching or departing Neptune. (D) Neptune will ensure that other vessels providing support to Neptune operations during regasification activities that are approaching or departing from the Port and are within the ATBA shall be operated so as to remain at least 0.6 mi (1 km) away from any visually detected right whales and at least 100 yd (91 m) from all other visually detected whales. Additional Mitigation Measures Required by NMFS In addition to the mitigation measures in Neptune’s IHA application, NMFS has included the following measures in the IHA in order to ensure the least practicable impact on the affected species or stocks: (1) Neptune must immediately suspend any repair and maintenance or PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 operations activities if a dead or injured marine mammal is found in the vicinity of the project area, and the death or injury of the animal could be attributable to the LNG facility activities. Neptune must contact NMFS and the Northeast Stranding and Disentanglement Program. Activities will not resume until review and approval has been given by NMFS. (2) MMOs will direct a moving vessel to slow to idle if a baleen whale is seen less than 0.6 mi (1 km) from the vessel. (3) Use of lights during repair or maintenance activities shall be limited to areas where work is actually occurring, and all other lights must be extinguished. Lights must be downshielded to illuminate the deck and shall not intentionally illuminate surrounding waters, so as not to attract whales or their prey to the area. Mitigation Conclusions NMFS has carefully evaluated the applicant’s mitigation measures and considered a range of other 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 of the applicant’s measures, as well as other measures considered by NMFS, NMFS has determined that the required 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. Monitoring and Reporting In order to issue an ITA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must, where applicable, set forth ‘‘requirements pertaining to the monitoring and reporting of such taking’’. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species E:\FR\FM\16JYN1.SGM 16JYN1 Federal Register / Vol. 75, No. 136 / Friday, July 16, 2010 / Notices srobinson on DSKHWCL6B1PROD with NOTICES and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Neptune proposed both visual and acoustic monitoring programs in the Plan contained in the IHA application. Summaries of those plans, as well as the proposed reporting, are contained next. The monitoring and reporting programs contained in the Plan are included in the IHA. Passive Acoustic Monitoring Neptune LNG will deploy and maintain a passive acoustic detection network along a portion of the TSS and in the vicinity of Neptune. This network will consisting of autonomous recording units (ARUs) and near-real-time ABs. To develop, implement, collect, and analyze the acoustic data obtained from deployment of the ARUs and ABs, as well as to prepare reports and maintain the passive acoustic detection network, Neptune LNG has engaged the Cornell University Bioacoustic Research Program (BRP) in Ithaca, New York, and the Woods Hole Oceanographic Institution (WHOI) in Woods Hole, Massachusetts. During June 2008, an array of 19 passive seafloor ARUs was deployed by BRP for Neptune. The layout of the array centered on the terminal site and was used to monitor the noise environment in Massachusetts Bay in the vicinity of Neptune during construction of the port and associated pipeline lateral. The ARUs were not designed to provide real-time or nearreal-time information about vocalizing whales. Rather archival noise data collected from the ARU array were used for the purpose of understanding the seasonal occurrences and overall distributions of whales (primarily North Atlantic right whales) within approximately 10 nm (18.5 km) of the Neptune Port. Neptune LNG will maintain these ARUs in the same configuration for a period of five years during full operation of Neptune in order to monitor the actual acoustic output of port operations and to alert NOAA to any unanticipated adverse effects of port operations, such as large scale abandonment by marine mammals of the area. To further assist in evaluations of the Neptune’s acoustic output, source levels associated with DP of SRVs at the buoys will be estimated using empirical measurements collected from the passive detection network. In addition to the ARUs, Neptune LNG has deployed 10 ABs within the Separation Zone of the TSS for the operational life of the Port. The purpose of the AB array is to detect the presence VerDate Mar<15>2010 18:00 Jul 15, 2010 Jkt 220001 of vocalizing North Atlantic right whales. Each AB has an average detection range of 5 nm (9.3 km) of the AB, although detection ranges will vary based on ambient underwater conditions. The AB system will be the primary detection mechanism that alerts the SRV Master to the occurrence of right whales in the TSS and triggers heightened SRV awareness. The configurations of the ARU array and AB network (see Figure 3 in the Plan in Neptune’s application) were based upon the configurations developed and recommended by NOAA personnel. Each AB deployed in the TSS will continuously screen the low-frequency acoustic environment (less than 1,000 Hz) for right whale contact calls occurring within an approximately 5–nm (9.3–km) radius from each buoy (the ABs’ detection range) and rank detections on a scale from 1 to 10. Each AB shall transmit all detection data for detections of rank greater than or equal to 6 via Iridium satellite link to the BRP server website every 20 minutes. This 20–minute transmission schedule was determined by consideration of a combination of factors including the tendency of right whale calls to occur in clusters (leading to a sampling logic of listening for other calls rather than transmitting immediately upon detection of a possible call) and the amount of battery power required to complete a satellite transmission. Additional details on the protocol can be found in Neptune’s application. Additionally, Neptune shall provide empirically measured source level data for all sources of noise associated with LNG port maintenance and repair activities. Measurements should be carefully coordinated with noiseproducing activities and should be collected from the passive acoustic monitoring network. Visual Monitoring During maintenance- and repairrelated activities, Neptune LNG shall employ two qualified MMOs on each vessel that has a DP system. All MMOs must receive training and be approved in advance by NOAA after a review of their qualifications. Qualifications for these MMOs shall include direct field experience on a marine mammal observation vessel and/or aerial surveys in the Atlantic Ocean/Gulf of Mexico. The MMOs (one primary and one secondary) are responsible for visually locating marine mammals at the ocean’s surface and, to the extent possible, identifying the species. The primary MMO shall act as the identification specialist, and the secondary MMO will serve as data recorder and will assist PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 41445 with identification. Both MMOs shall have responsibility for monitoring for the presence of marine mammals. The MMOs shall monitor the area where maintenance and repair work is conducted beginning at daybreak using the naked eye, hand-held binoculars, and/or power binoculars (e.g, Big Eyes). The MMOs shall scan the ocean surface by eye for a minimum of 40 minutes every hour. All sightings must be recorded on marine mammal field sighting logs. While an SRV is navigating within the designated TSS, three people have lookout duties on or near the bridge of the ship including the SRV Master, the Officer-of-the-Watch, and the Helmsman on watch. In addition to standard watch procedures, while the SRV is within the ATBA and/or while actively engaging in the use of thrusters an additional lookout shall be designated to exclusively and continuously monitor for marine mammals. Once the SRV is moored and regasification activities have begun, the vessel is no longer considered in ‘‘heightened awareness’’ status. However, when regasification activities conclude and the SRV prepares to depart from Neptune, the Master shall once again ensure that the responsibilities as defined in the Plan are carried out. All sightings of marine mammals by the designated lookout, individuals posted to navigational lookout duties, and/or any other crew member while the SRV is within the TSS, in transit to the ATBA, within the ATBA, and/or when actively engaging in the use of thrusters shall be immediately reported to the Officer-ofthe-Watch who shall then alert the Master. Reporting Measures Since the Neptune Port is within the Mandatory Ship Reporting Area (MSRA), all SRVs transiting to and from Neptune shall report their activities to the mandatory reporting section of the USCG to remain apprised of North Atlantic right whale movements within the area. All vessels entering and exiting the MSRA shall report their activities to WHALESNORTH. Vessel operators shall contact the USCG by standard procedures promulgated through the Notice to Mariner system. For any repair work associated with the pipeline lateral or other port components, Neptune LNG shall notify the appropriate NOAA personnel as soon as practicable after it is determined that repair work must be conducted. During maintenance and repair of the pipeline lateral or other port components, weekly status reports must be provided to NOAA. The weekly E:\FR\FM\16JYN1.SGM 16JYN1 srobinson on DSKHWCL6B1PROD with NOTICES 41446 Federal Register / Vol. 75, No. 136 / Friday, July 16, 2010 / Notices report must include data collected for each distinct marine mammal species observed in the project area during the period of the repair activity. The weekly reports shall include the following: • The location, time, and nature of the pipeline lateral repair activities; • Whether the DP system was operated and, if so, the number of thrusters used and the time and duration of DP operation; • Marine mammals observed in the area (number, species, age group, and initial behavior); • The distance of observed marine mammals from the repair activities; • Observed marine mammal behaviors during the sighting; • Whether any mitigation measures were implemented; • Weather conditions (sea state, wind speed, wind direction, ambient temperature, precipitation, and percent cloud cover, etc.); • Condition of the marine mammal observation (visibility and glare); and • Details of passive acoustic detections and any action taken in response to those detections. For minor repairs and maintenance activities, the following protocols will be followed: • All vessel crew members will be trained in marine mammal identification and avoidance procedures; • Repair vessels will notify designated NOAA personnel when and where the repair/maintenance work is to take place along with a tentative schedule and description of the work; • Vessel crews will record/document any marine mammal sightings during the work period; and • At the conclusion of the repair/ maintenance work, a report will be delivered to designated NOAA personnel describing any marine mammal sightings, the type of work taking place when the sighting occurred, and any avoidance actions taken during the repair/maintenance work. During all phases of project repair/ maintenance activities and operation, sightings of any injured or dead marine mammals will be reported immediately to the USCG and NMFS, regardless of whether the injury or death is caused by project activities. Sightings of injured or dead marine mammals not associated with project activities can be reported to the USCG on VHF Channel 16 or to NMFS Stranding and Entanglement Hotline. In addition, if the injury or death was caused by a project vessel (e.g., SRV, support vessel, or construction vessel), USCG must be notified immediately, and a full report must be provided to NMFS, Northeast VerDate Mar<15>2010 18:00 Jul 15, 2010 Jkt 220001 Regional Office. The report must include the following information: (1) the time, date, and location (latitude/ longitude) of the incident; (2) the name and type of vessel involved; (3) the vessel’s speed during the incident; (4) a description of the incident; (5) water depth; (6) environmental conditions (e.g., wind speed and direction, sea state, cloud cover, and visibility); (7) the species identification or description of the animal; (8) the fate of the animal; and (9) photographs or video footage of the animal (if equipment is available). An annual report on marine mammal monitoring and mitigation will be submitted to NMFS Office of Protected Resources and NMFS Northeast Regional Office within 90 days after the expiration of the IHA. The weekly reports and 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 operations and repair/maintenance activities. Description of marine mammal behavior, overall numbers of individuals observed, frequency of observation, and any behavioral changes and the context of the changes relative to operation and repair/maintenance activities shall also be included in the annual report. Additional information that will be recorded during operations and repair/maintenance activities and contained in the reports include: date and time of marine mammal detections (visually or acoustically), weather conditions, species identification, approximate distance from the source, activity of the vessel when a marine mammal is sighted, and whether thrusters were in use and, if so, how many at the time of the sighting. General Conclusions Drawn from Previous Monitoring Reports Throughout the construction period, Neptune submitted weekly reports on marine mammal sightings in the area. While it is difficult to draw biological conclusions from these reports, NMFS can make some general conclusions. Data gathered by MMOs is generally useful to indicate the presence or absence of marine mammals (often to a species level) within the safety zones (and sometimes without) and to document the implementation of mitigation measures. Though it is by no means conclusory, it is worth noting that no instances of obvious behavioral disturbance as a result of Neptune’s activities were observed by the MMOs. Of course, these observations only cover the animals that were at the surface and within the distance that the MMOs could see. Based on the number of PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 sightings contained in the weekly reports, it appears that NMFS’ estimated take levels are accurate. As operation of the Port has not yet commenced, there are no reports describing the results of the visual monitoring program for this phase of the project. However, it is anticipated that visual observations will be able to continue as they were during construction. As described previously in this document, Neptune was required to maintain an acoustic array to monitor calling North Atlantic right whales (humpback and fin whale calls were also able to be detected). Cornell BRP analyzed the data and submitted a report covering the initial construction phase of the project, which occurred in 2008. While acoustic data can only be collected if the animals are actively calling, the report indicates that humpback and fin whales were heard calling on at least some of the ARUs on all construction days, and right whale calls were heard only 28 percent of the time during active construction days. The passive acoustic arrays will remain deployed during the time frame of this IHA in order to obtain information during the operational phase of the Port facility. Estimated Take by Incidental Harassment Except with respect to certain activities not pertinent here, the MMPA defines ‘‘harassment’’ as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment]. Only take by Level B harassment is anticipated as a result of Neptune’s operational and repair/ maintenance activities. Anticipated take of marine mammals is associated with thruster sound during maneuvering of the SRVs while docking and undocking, occasional weathervaning at the Port, and during thruster use of DP maintenance vessels should a major repair be necessary. The regasification process itself is an activity that does not rise to the level of taking, as the modeled source level for this activity is 110 dB (rms). Certain species may have a behavioral reaction to the sound emitted during the activities. Hearing impairment is not anticipated. Additionally, vessel strikes are not anticipated, especially because of the speed restriction measures that are E:\FR\FM\16JYN1.SGM 16JYN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 136 / Friday, July 16, 2010 / Notices proposed that were described earlier in this document. For continuous sounds, such as those produced by Neptune’s proposed activities, NMFS uses a received level of 120–dB (rms) to indicate the onset of Level B harassment. The basis for Neptune’s ‘‘take’’ estimate is the number of marine mammals that potentially could be exposed to sound levels in excess of 120 dB. This has been determined by applying the modeled zone of influence (ZOI; e.g., the area ensonified by the 120–dB contour) to the seasonal use (density) of the area by marine mammals and correcting for seasonal duration of sound-generating activities and estimated duration of individual activities when the maximum sound-generating activities are intermittent to occasional. Nearly all of the required information is readily available in the MARAD/USCG Final EIS, with the exception of marine mammal density estimates for the project area. In the case of data gaps, a conservative approach was used to ensure that the potential number of takes is not underestimated. The Notice of Proposed IHA (75 FR 24906, May 6, 2010) included an indepth discussion of the methodology used by NMFS to estimate take by harassment incidental to operation and repair/maintenance activities at the Neptune Port facility. A summary is provided next. Results of sound modeling tests indicate that the 120–dB radius from thruster use by the SRV is estimated to be 1.6 nm (3 km), creating a maximum ZOI of 8.5 nm2 (29 km2). This zone is smaller than the one that was used to estimate the level of take in the previous IHA. However, the vessels used in the 2009 tests more closely resemble the vessels that will be used by Neptune for regasification by the SRV. Other vessels would be required for use during maintenance and repair activities at the port facility. Sounds generated during those activities would be similar or less than those generated during original construction of the facility. Therefore, NMFS has used the 120–dB contour estimated for construction in the previous IHAs for repair and maintenance activities. Depending on water depth, the 120–dB contour during repair and maintenance activities will extend from the source (the Port) out to 3.9 km (2.1 nm) and cover an area of 52 km2 (15 nm2). NMFS used 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 VerDate Mar<15>2010 18:00 Jul 15, 2010 Jkt 220001 of the project area. Sighting data for the following species are contained in the report: North Atlantic right, fin, humpback, minke, pilot, and sei whales and Atlantic white-sided dolphins. The NCCOS study used cetacean sightings from two sources: (1) the North Atlantic Right Whale Consortium (NARWC) sightings database held at the University of Rhode Island (Kenney, 2001); and (2) the Manomet Bird Observatory (MBO) database, held at the NMFS Northeast Fisheries Science Center (NEFSC). 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. For a detailed description and calculation of the cetacean abundance data and sightings-per-unit-effort (SPUE), refer to the NCCOS study (NCCOS, 2006). SPUE for all four seasons were analyzed, and the highest value SPUE for the season with the highest abundance of each species was used to determine relative abundance. Based on the data, the relative abundance of North Atlantic right, fin, humpback, minke, sei, and pilot whales and Atlantic white-sided dolphins, as calculated by SPUE in number of animals per square kilometer, is 0.0082, 0.0097, 0.0265, 0.0059, 0.0084, 0.0407, and 0.1314 n/km, respectively. Table 1 in this document outlines the density, abundance, take estimates, and percent of population for the 14 species for which NMFS has authorized Level B harassment. 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, as a conservative hypothetical strip width (W). Thus the area density (D) of these species in the project area can be obtained by the following formula: D = SPUE/2W. Based on the calculation, the estimated take numbers by Level B harassment for the 1–year IHA period during operation of the SRV for North Atlantic right, fin, humpback, minke, sei, and pilot whales and Atlantic white-sided dolphins, within the 120– dB ZOI of the LNG Port facility area of approximately 8.5 nm2 (29 km2) maximum ZOI, corrected for 50 percent underwater, are 23, 27, 72, 16, 6, 110, and 357, respectively. This estimate is based on an estimated 50 SRV trips for the period July 12, 2010, through July 11, 2011, that will produce sounds of 120 dB or greater. PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 41447 Based on the same calculation method described above for Port operations (but using the 120–dB ZOI of approximately 52 km2 (15 nm2), the estimated take numbers by Level B harassment for North Atlantic right, fin, humpback, minke, sei, and pilot whales and Atlantic white-sided dolphins for the 1– year IHA period incidental to Port maintenance and repair activities, corrected for 50 percent underwater, are 11, 13, 36, 8, 11, 56, and 179, respectively. These numbers are based on 14 days of repair and maintenance activities occurring between July 12, 2010, through July 11, 2011. It is unlikely that this much repair and maintenance work would be required this soon after completion of the construction phase of the facility. The total estimated take of these species as a result of both operations and repair and maintenance activities of the Neptune Port facility between July 12, 2010, through July 11, 2011, is: 33 North Atlantic right whales; 40 fin whales; 108 humpback whales; 24 minke whales; 17 sei whales; 166 longfinned pilot whales; and 536 Atlantic white-sided dolphins. These numbers represent a maximum of 9.6, 1.8, 12.8, 0.7, 4.4, 0.5, and 0.8 percent of the populations for these species or stocks in the western North Atlantic, respectively. It is likely that individual animals will be ‘‘taken’’ by harassment multiple times (because certain individuals may occur in the area more than once while other individuals of the population or stock may not enter the proposed project area). Additionally, the highest value SPUE for the season with the highest abundance of each species was used to determine relative abundance. Moreover, it is not expected that Neptune will have 50 SRV transits and LNG deliveries in the first year of operations. Therefore, these percentages are the upper boundary of the animal population that could be affected. Thus, the actual number of individual animals being exposed or taken is expected to be far less. In addition, bottlenose dolphins, common dolphins, Risso’s dolphins, killer whales, harbor porpoises, harbor seals, and gray seals could also be taken by Level B harassment as a result of the deepwater LNG port project. Because these species are less likely to occur in the area, and there are no density estimates specific to this particular area, NMFS based the take estimates on typical group size. Therefore, NMFS estimates (and has authorized) that up to approximately 10 bottlenose dolphins, 20 common dolphins, 20 Risso’s dolphins, 20 killer whales, 5 harbor porpoises, 15 harbor seals, and E:\FR\FM\16JYN1.SGM 16JYN1 41448 Federal Register / Vol. 75, No. 136 / Friday, July 16, 2010 / Notices 15 gray seals could be exposed to continuous noise at or above 120 dB re 1 μPa rms incidental to operations and repair and maintenance activities during the one year period of the IHA, respectively. Because Massachusetts Bay represents only a small fraction of the western North Atlantic basin where these animals occur NMFS has determined that only small numbers of the affected marine mammal species or stocks would be potentially affected by the Neptune LNG deepwater project. The take estimates presented in this section of the document do not take into consideration the mitigation and monitoring measures required by the IHA. TABLE 1. DENSITY ESTIMATES, POPULATION ABUNDANCE ESTIMATES, TOTAL AUTHORIZED TAKE (WHEN COMBINE TAKES FROM OPERATION AND MAINTENANCE/REPAIR ACTIVITIES), AND PERCENTAGE OF POPULATION THAT MAY BE TAKEN FOR THE POTENTIAL AFFECTED SPECIES. Density (n/km2) Abundance1 Total Authorized Take (operation & maintenance) Percentage of Stock or Population North Atlantic right whale 0.0082 345 33 9.6 Fin whale 0.0097 2,269 40 1.8 Humpback whale 0.0265 847 108 12.8 Minke whale 0.0059 3,312 24 0.7 Sei whale 0.0084 386 17 4.4 Long-finned pilot whale 0.0407 31,139 166 0.5 Atlantic white-sided dolphin 0.1314 63,368 536 0.8 Bottlenose dolphin NA 7,489 10 0.1 Common dolphin NA 120,743 20 0.02 Risso’s dolphin NA 20,479 20 0.1 Killer whale NA NA 20 NA Harbor porpoise NA 89,054 5 0.01 Harbor seal NA 99,340 15 0.02 Gray seal NA 125,541-169,064 15 0.01 Species srobinson on DSKHWCL6B1PROD with NOTICES 1 Abundance estimates taken from NMFS Atlantic and Gulf of Mexico SAR; NA=Not Available NMFS has defined ‘‘negligible impact’’ in 50 CFR 216.103 as ’’...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.’’ In making a negligible impact determination, NMFS considers a variety of factors, including but not limited to: (1) the number of anticipated mortalities; (2) the number and nature of anticipated injuries; (3) the number, nature, intensity, and duration of Level B harassment; and (4) the context in which the takes occur. No injuries or mortalities are anticipated to occur as a result of Neptune’s port operation and maintenance and repair activities, and none have been authorized by NMFS. Additionally, animals in the area are not anticipated to incur any hearing impairment (i.e., TTS or PTS), as the modeling results for the SRV indicate a source level of 180 dB (rms). VerDate Mar<15>2010 18:00 Jul 15, 2010 Jkt 220001 While some of the species occur in the project area year-round, some species only occur in the area during certain seasons. Sei whales are only anticipated in the area during the spring. Therefore, if shipments and/or maintenance/repair activities occur in other seasons, the likelihood of sei whales being affected is quite low. Additionally, any repairs that can be scheduled in advance will be scheduled to avoid the peak time that North Atlantic right whales occur in the area, which usually is during the early spring. North Atlantic right, humpback, and minke whales are not expected in the project area in the winter. During the winter, a large portion of the North Atlantic right whale population occurs in the southeastern U.S. calving grounds (i.e., South Carolina, Georgia, and northern Florida). The fact that certain activities will occur during times when certain species are not commonly found in the area will help reduce the amount of Level B harassment for these species. PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 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. Once Neptune is at full operations, SRV shipments would occur every 4–8 days, with thruster use needed for a couple of hours. Therefore, Neptune will not be creating increased sound levels in the marine environment for several days at a time. E:\FR\FM\16JYN1.SGM 16JYN1 srobinson on DSKHWCL6B1PROD with NOTICES Federal Register / Vol. 75, No. 136 / Friday, July 16, 2010 / Notices Of the 14 marine mammal species likely to occur in the area, four are listed as endangered under the ESA: North Atlantic right, humpback, fin, and sei whales. All of these species, as well as the northern coastal stock of bottlenose dolphin, are also considered depleted under the MMPA. The affected humpback and North Atlantic right whale populations have been increasing in recent years. However, there is insufficient data to determine population trends for the other depleted species in the project area. There is currently no designated critical habitat or known reproductive areas for any of these species in or near the project area. However, there are several well known North Atlantic right whale feeding grounds in the CCB and GSC. As mentioned previously, to the greatest extent practicable, all maintenance/ repair work will be scheduled during the May 1 to November 30 time frame to avoid peak right whale feeding in these areas, which occur close to the Neptune Port. No mortality or injury is expected to occur and due to the nature, degree, and context of the Level B harassment anticipated, the activity is not expected to impact rates of recruitment or survival. The population estimates for the species that may be taken by harassment from the most recent U.S. Atlantic SAR were provided earlier in this document (see Table 1). 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 (12.8 percent for humpback whales and 9.6 percent for North Atlantic right whales and no more than 4.4 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 operation, including repair and maintenance activities, of the Neptune Port will result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking from Neptune’s activities will have a negligible impact on the affected species or stocks. VerDate Mar<15>2010 18:00 Jul 15, 2010 Jkt 220001 Impact on Availability of Affected Species or Stock for Taking for Subsistence Uses There are no relevant subsistence uses of marine mammals implicated by this action. Endangered Species Act (ESA) On January 12, 2007, NMFS concluded consultation with MARAD and USCG under section 7 of the ESA on the proposed construction and operation of the Neptune LNG facility and issued a Biological Opinion. The finding of that consultation was that the construction and operation of the Neptune LNG terminal may adversely affect, but is not likely to jeopardize, the continued existence of North Atlantic right, humpback, and fin whales, and is not likely to adversely affect sperm, sei, or blue whales and Kemp’s ridley, loggerhead, green, or leatherback sea turtles. On March 2, 2010, MARAD and USCG sent a letter to NMFS requesting reinitiation of the section 7 consultation. MARAD and USCG determined that certain routine planned operations and maintenance activities, inspections, surveys, and unplanned repair work on the Neptune Deepwater Port pipelines and flowlines, as well as any other Neptune Deepwater Port component (including buoys, risers/ umbilicals, mooring systems, and subsea manifolds), may constitute a modification not previously considered in the 2007 Biological Opinion. Construction of the Port facility has been completed, and, therefore, is no longer part of the proposed action. Consultation with NMFS’ Northeast Regional Office is now complete. The 2010 Biological Opinion contains the following conclusion. After reviewing the best available information on the status of endangered and threatened species under NMFS jurisdiction, the environmental baseline for the action area, the effects of the action, and the cumulative effects in the action area, it is NMFS’ biological opinion that the operation of the Neptune LNG deepwater port, including required maintenance and repair work, is likely to adversely affect, but is not likely to jeopardize the continued existence of the North Atlantic right, humpback, fin, and sei whale. National Environmental Policy Act (NEPA) MARAD and the USCG released a Final EIS/Environmental Impact Report (EIR) for the proposed Neptune LNG Deepwater Port (see ADDRESSES). A notice of availability was published by PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 41449 MARAD on November 2, 2006 (71 FR 64606). 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 in the preparation of the Draft and Final EISs based on a Memorandum of Understanding related to the Licensing of Deepwater Ports entered into by the U.S. Department of Commerce along with 10 other government agencies. On June 3, 2008, NMFS adopted the USCG and MARAD FEIS and issued a separate Record of Decision for issuance of authorizations pursuant to sections 101(a)(5)(A) and (D) of the MMPA for the construction and operation of the Neptune LNG Port facility. Authorization As a result of these determinations, NMFS has issued an IHA to Neptune for the take of marine mammals incidental to port commissioning and operations, including repair and maintenance activities at the Neptune Deepwater Port, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. Dated: July 12, 2010. James H. Lecky, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2010–17434 Filed 7–15–10; 8:45 am] BILLING CODE 3510–22–S COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List Additions and Deletion AGENCY: Committee for Purchase From People Who Are Blind or Severely Disabled. ACTION: Additions to and deletion from the Procurement List. SUMMARY: This action adds products and services to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities and deletes a service from the Procurement List previously furnished by such agency. DATES: Effective Date: 8/16/2010. ADDRESSES: Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202–3259. FOR FURTHER INFORMATION CONTACT: Barry S. Lineback, Telephone: (703) E:\FR\FM\16JYN1.SGM 16JYN1

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[Federal Register Volume 75, Number 136 (Friday, July 16, 2010)]
[Notices]
[Pages 41440-41449]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-17434]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XW09


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Operation and Maintenance of a 
Liquefied Natural Gas Facility off Massachusetts

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

ACTION:  Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulations, notification is hereby given that NMFS has issued an 
Incidental Harassment Authorization (IHA) to Neptune LNG LLC (Neptune) 
to take marine mammals, by harassment, incidental to port commissioning 
and operations, including maintenance and repair activities, at its 
Neptune Deepwater Port.

DATES:  Effective July 12, 2010, through July 11, 2011.

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

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

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ''...an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    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. 
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 the authorization.
    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''].

Summary of Request

    NMFS received an application on December 14, 2009, from Neptune for 
the taking, by harassment, of marine mammals incidental to port 
commissioning and operations, including maintenance and repair 
activities, at its Neptune Deepwater Port (Port) facility in 
Massachusetts Bay. NMFS reviewed Neptune's application and identified a 
number of issues requiring further clarification. After addressing 
comments from NMFS, Neptune modified its application and submitted a 
revised application on March 11, 2010.
    NMFS issued a 1-year IHA to Neptune in June 2008 for the 
construction of the Port (73 FR 33400, June 12, 2008), which expired on 
June 30, 2009. NMFS issued a second 1-year IHA to Neptune for the 
completion of construction and beginning of Port operations on June 26, 
2009 (74 FR 31926, July 6, 2009). This IHA expired on June 30, 2010.
    During the period of this third IHA, Neptune intends to commission 
its second shuttle and regasification vessel (SRV) and conduct limited 
port operations. There is also a chance that some maintenance and 
repairs may need to be conducted on the Port facility. The Neptune Port 
is located approximately 22 mi (35 km) northeast of Boston, 
Massachusetts, in Federal waters approximately 260 ft (79 m) in depth. 
The purpose of the Port is the importation of liquefied natural gas 
(LNG) into the New England region. Take of marine mammals may occur 
during port operations from thruster use during maneuvering of the SRVs 
while docking and undocking, occasional weathervaning (turning of a 
vessel at anchor from one direction to another under the influence of 
wind or currents) at the Port, and during thruster use of dynamic 
positioning (DP) maintenance vessels should a major repair be 
necessary. Neptune has requested an authorization to take 12 marine 
mammal species by Level B harassment. They are: North Atlantic right 
whale; humpback whale; fin whale; sei whale; minke whale; long-finned 
pilot whale; Atlantic white-sided dolphin; harbor porpoise; common 
dolphin; Risso's dolphin; bottlenose dolphin; and harbor seal. In the 
2009 IHA, NMFS also authorized take of killer whales and gray seals. 
NMFS has determined that it would be appropriate to authorize take, by 
Level B harassment only, of these

[[Page 41441]]

two species as well for port operations and maintenance.

Description of the Specified Activity

    On March 23, 2007, Neptune received a license to own, construct, 
and operate a deepwater port from MARAD. The Port, which is located in 
Massachusetts Bay, consists of a submerged buoy system to dock 
specifically designed LNG carriers approximately 22 mi (35 km) 
northeast of Boston, Massachusetts, in Federal waters approximately 260 
ft (79 m) in depth. The two buoys are separated by a distance of 
approximately 2.1 mi (3.4 km). The locations of the Neptune Port and 
the associated pipeline are shown in Figure 2-1 in Neptune's 
application (see ADDRESSES). During the time period of this IHA, 
Neptune plans to commission its second SRV and begin limited operations 
of the Port.
    Neptune will be capable of mooring LNG SRVs with a capacity of 
approximately 140,000 cubic meters (m3). Up to two SRVs will 
temporarily moor at the Port by means of a submerged unloading buoy 
system. Two separate buoys will allow natural gas to be delivered in a 
continuous flow, without interruption, by having a brief overlap 
between arriving and departing SRVs. The annual average throughput 
capacity will be around 500 million standard cubic feet per day 
(mmscfd) with an initial throughput of 400 mmscfd, and a peak capacity 
of approximately 750 mmscfd.
    The SRVs will be equipped to store, transport, and vaporize LNG and 
to odorize, meter and send out natural gas by means of two 16-in (40.6-
cm) flexible risers and one 24-in (61-cm) subsea flowline. These risers 
and flowline will lead to a 24-in (61-cm) gas transmission pipeline 
connecting the deepwater port to the existing 30-in (76.2-cm) Algonquin 
Hubline\TM\ (Hubline\TM\) located approximately 9 mi (14.5 km) west of 
the Neptune deepwater port location. The Port will have an expected 
operating life of approximately 25 years. Figure 1-1 of Neptune's 
application shows an isometric view of the Port (see ADDRESSES). A 
detailed overview of Port operations and maintenance and repair 
activities, as well as the types of sounds those activities produce, 
was provided in the Notice of Proposed IHA (75 FR 24906, May 6, 2010). 
No changes have been made to the proposed operations or maintenance and 
repair activities.

Comments and Responses

    A notice of receipt of Neptune's application and NMFS' proposal to 
issue an IHA to Neptune published in the Federal Register on May 6, 
2010 (75 FR 24906). During the 30-day public comment period, NMFS did 
not receive any comment letters. The Marine Mammal Commission (MMC) 
submitted comments after the close of the 30-day comment period. Those 
comments and responses are addressed here.
    Comment 1: The MMC concurs with the need for the monitoring and 
mitigation measures proposed by NMFS and the applicant and recommends 
that NMFS include all of them in any IHA, especially to mitigate the 
risk of ship collisions with North Atlantic right whales and other 
cetacean species.
    Response: All measures proposed in the Notice of Proposed IHA are 
included in the IHA.
    Comment 2: The MMC concurs with the need to reinitiate section 7 
consultation and recommends that NMFS complete the consultation and 
issue the IHA only if the resulting Biological Opinion concludes that 
the cumulative effects of the proposed action, in combination with 
other activities in the action area, are not likely to jeopardize the 
continued existence of the North Atlantic right, humpback, fin, sperm, 
sei, or blue whales.
    Response: Section 7 consultation under the Endangered Species Act 
(ESA) was reinitiated in March 2010. That consultation is now complete 
and makes the following conclusion. After reviewing the best available 
information on the status of endangered and threatened species under 
NMFS jurisdiction, the environmental baseline for the action area, the 
effects of the action, and the cumulative effects in the action area, 
it is NMFS' biological opinion that the operation of the Neptune LNG 
deepwater port, including required maintenance and repair work, is 
likely to adversely affect, but is not likely to jeopardize the 
continued existence of the North Atlantic right, humpback, fin, and sei 
whale.
    NMFS' January 2007 Biological Opinion considered impacts from port 
and pipeline construction and operation on sperm and blue whales in 
addition to the other cetacean species cited in the MMC's comment. The 
2007 opinion concluded that those activities were not likely to 
adversely affect sperm and blue whales. Because no additional effects 
to these two species are anticipated from the repair and maintenance 
activities and no effects beyond those analyzed in 2007 for operations 
are likely, sperm and blue whales were not further analyzed in the 2010 
Biological Opinion.

Description of Marine Mammals in the Area of the Specified Activity

    Massachusetts Bay (as well as the entire Atlantic Ocean) hosts a 
diverse assemblage of marine mammals, including: North Atlantic right 
whale; blue whale; fin whale; sei whale; minke whale; humpback whale; 
killer whale; long-finned pilot whale; sperm whale; Atlantic white-
beaked dolphin; Atlantic white-sided dolphin; bottlenose dolphin; 
common dolphin; harbor porpoise; Risso's dolphin; striped dolphin; gray 
seal; harbor seal; harp seal; and hooded seal. Table 3-1 in Neptune's 
application outlines the marine mammal species that occur in 
Massachusetts Bay and the likelihood of occurrence of each species. Of 
the species listed here, the North Atlantic right, blue, fin, sei, 
humpback, and sperm whales are all listed as endangered under the ESA 
and as depleted under the MMPA. The northern coastal stock of 
bottlenose dolphins is considered depleted under the MMPA. Certain 
stocks or populations of killer whales are listed as endangered under 
the ESA or depleted under the MMPA; however, none of those stocks or 
populations occurs in the proposed activity area.
    Of these species, 14 are expected to occur in the area of Neptune's 
proposed operations. These species include: the North Atlantic right, 
humpback, fin, sei, minke, killer, and long-finned pilot whale; 
Atlantic white-sided, common, Risso's, and bottlenose dolphins; harbor 
porpoise; and harbor and gray seals. The Notice of Proposed IHA (75 FR 
24906, May 6, 2010) provided a description of certain marine mammal 
species that are considered rare in the project area.
    Information on those species that may be impacted by this activity 
is provided in Neptune's application and sections 3.2.3 and 3.2.5 in 
the MARAD/USCG Final EIS on the Neptune LNG proposal (see ADDRESSES). 
Please refer to those documents for more information on these species. 
In addition, general information on these marine mammal species can 
also be found in the NMFS U.S. Atlantic and Gulf of Mexico Marine 
Mammal Stock Report (Waring et al., 2009), which is available at: 
http://www.nefsc.noaa.gov/publications/tm/tm213/. A brief summary on 
several commonly sighted marine mammal species distribution and 
abundance in the vicinity of the action area was provided in the Notice 
of Proposed IHA (75 FR 24906, May 6, 2010).

[[Page 41442]]

Brief Background on Marine Mammal Hearing

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

Potential Effects of the Specified Activity on Marine Mammals

    Potential effects of Neptune's proposed port operations and 
maintenance/repair activities would most likely be acoustic in nature. 
LNG port operations and maintenance/repair activities introduce sound 
into the marine environment. Potential acoustic effects on marine 
mammals relate to sound produced by thrusters during maneuvering of the 
SRVs while docking and undocking, occasional weathervaning at the port, 
and during thruster use of DP maintenance vessels should a major repair 
be necessary. The potential effects of sound from the proposed 
activities associated with the Neptune Port might include one or more 
of the following: tolerance; masking of natural sounds; behavioral 
disturbance; non-auditory physical effects; and, at least in theory, 
temporary or permanent hearing impairment (Richardson et al., 1995). 
However, for reasons discussed in the Notice of Proposed IHA (75 FR 
24906, May 6, 2010) and later in this document, it is unlikely that 
there would be any cases of temporary, or especially permanent, hearing 
impairment resulting from these activities. As outlined in previous 
NMFS documents, 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 but 
potentially for longer periods of time;
    (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 a 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.
    The Notice of Proposed IHA (75 FR 24906, May 6, 2010) included a 
discussion of the effects of anthropogenic sound on mysticetes, 
odontocetes, and pinnipeds, including tolerance, masking, disturbance, 
and hearing impairment and other physiological effects. That discussion 
did not take into consideration the monitoring and mitigation measures 
proposed by Neptune and NMFS. Based on the discussion contained in the 
proposed IHA notice, it is highly unlikely that marine mammals could 
receive sounds strong enough (and over a sufficient duration) to cause 
permanent threshold shift (or even TTS) during port operations and 
maintenance/repair activities. The modeled broadband source level for 
100 percent thruster use during port operations is 180 dB re 1 microPa 
at 1 m (rms). This does not reach the threshold of 190 dB currently 
used for pinnipeds. The threshold for cetaceans is 180 dB; therefore, 
cetaceans would have to be immediately adjacent to the vessel for even 
the possibility of hearing impairment to occur. Based on this and 
mitigation measures included in the IHA (described later in this 
document in the ``Mitigation'' section), only Level B behavioral 
harassment is anticipated occur, and it is highly unlikely that any 
type of hearing impairment would occur as a result of Neptune's 
activities.

Anticipated Effects on Habitat

    The primary potential impacts to marine mammals and other marine

[[Page 41443]]

species are associated with elevated sound levels produced by the Port 
operations and maintenance/repair activities. However, other potential 
impacts from physical disturbance are also possible. Major repairs to 
the Neptune port and pipeline may affect marine mammal habitat in 
several ways: cause disturbance of the seafloor; increase turbidity 
slightly; and generate additional underwater sound in the area. These 
underwater sound levels will cause some species to temporarily disperse 
from or avoid repair areas, but they are expected to return shortly 
after the repair is completed. Operation of the Port will result in 
long-term, continued disturbance of the seafloor, regular withdrawal of 
seawater, and generation of underwater sound. The Notice of Proposed 
IHA (75 FR 24906, May 6, 2010) contained a full discussion of the 
potential impacts to marine mammal habitat and prey species in the 
project area.
    NMFS determined that repair activities would not create long-term 
habitat changes, and marine mammals displaced by the disturbance to the 
seafloor are expected to return soon after repair activities cease. 
Marine mammals also could be indirectly affected if benthic prey 
species were displaced or destroyed by repair activities. However, 
affected species are expected to recover soon after the completion of 
repairs and will represent only a small portion of food available to 
marine mammals in the area. In conclusion, NMFS has determined that 
Neptune's port operations and maintenance/repair activities are not 
expected to have any habitat-related effects that could cause 
significant or long-term consequences for individual marine mammals or 
on the food sources that they utilize.

Mitigation

    In order to issue an incidental take authorization (ITA) under 
Sections 101(a)(5)(A) and (D) of the MMPA, NMFS must, where applicable, 
set forth the permissible methods of taking pursuant to such activity, 
and other means of effecting the least practicable 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).

Mitigation Measures in Neptune's IHA Application

    Neptune submitted a ``Marine Mammal Detection, Monitoring, and 
Response Plan for the Operations Phase'' (the Plan) as part of its MMPA 
application (Appendix D of the application; see ADDRESSES). The 
measures, which include safety zones and vessel speed reductions, are 
fully described in the Plan and summarized here. Any maintenance and/or 
repairs needed will be scheduled in advance during the May 1 to 
November 30 seasonal window, whenever possible, so that disturbance to 
North Atlantic right whales will be largely avoided. If the repair 
cannot be scheduled during this time frame, additional mitigation 
measures are required.
(1) Mitigation Measures for Major Repairs (May 1 to November 30)
    (A) During repairs, if a marine mammal is detected within 0.5 mi 
(0.8 km) of the repair vessel, the vessel superintendent or on-deck 
supervisor will be notified immediately. The vessel's crew will be put 
on a heightened state of alert. The marine mammal will be monitored 
constantly to determine if it is moving toward the repair area.
    (B) Repair vessels will cease any movement in the area if a marine 
mammal other than a right whale is sighted within or approaching to a 
distance of 100 yd (91 m) from the operating repair vessel. Repair 
vessels will cease any movement in the construction area if a right 
whale is sighted within or approaching to a distance of 500 yd (457 m) 
from the operating vessel. Vessels transiting the repair area, such as 
pipe haul barge tugs, will also be required to maintain these 
separation distances.
    (C) Repair vessels will cease all sound emitting activities if a 
marine mammal other than a right whale is sighted within or approaching 
to a distance of 100 yd (91 m) or if a right whale is sighted within or 
approaching to a distance of 500 yd (457 m), from the operating repair 
vessel. The back-calculated source level, based on the most 
conservative cylindrical model of acoustic energy spreading, is 
estimated to be 139 dB re 1 microPa.
    (D) Repair activities may resume after the marine mammal is 
positively reconfirmed outside the established zones (either 500 yd 
(457 m) or 100 yd (91 m), depending upon species).
    (E) While under way, all repair vessels will remain 500 yd (457 m) 
away from right whales and 100 yd (91 m) away from all other marine 
mammals to the extent physically feasible given navigational 
constraints.
    (F) All repair vessels 300 gross tons or greater will maintain a 
speed of 10 knots (18.5 km/hr) or less. Vessels less than 300 gross 
tons carrying supplies or crew between the shore and the repair site 
will contact the Mandatory Ship Reporting System (MSRS), the USCG, or 
the marine mammal observers (MMOs) at the repair site before leaving 
shore for reports of recent right whale sightings or active Dynamic 
Management Areas (DMAs) and, consistent with navigation safety, 
restrict speeds to 10 knots (18.5 km/hr) or less within 5 mi (8 km) of 
any recent sighting location and within any existing DMA.
    (G) Vessels transiting through the Cape Cod Canal and Cape Cod Bay 
(CCB) between January 1 and May 15 will reduce speeds to 10 knots (18.5 
km/hr) or less, follow the recommended routes charted by NOAA to reduce 
interactions between right whales and shipping traffic, and avoid 
aggregations of right whales in the eastern portion of CCB.
(2) Additional Port and Pipeline Major Repair Measures (December 1 to 
April 30)
    If unplanned/emergency repair activities cannot be conducted 
between May 1 and November 30, Neptune is required to implement the 
following additional mitigation measures:
    (A) If on-board MMOs do not have at least 0.5-mi (0.8-km) 
visibility, they shall call for a shutdown of repair activities. If 
dive operations are in progress, then they shall be halted and brought 
on board until visibility is adequate to see a 0.5-mi (0.8-km) range. 
At the time of shutdown, the use of thrusters must be minimized. If 
there are potential safety problems due to the shutdown, the captain 
will decide what operations can safely be shut down and will document 
such activities.
    (B) Prior to leaving the dock to begin transit, the barge will 
contact one of the MMOs on watch to receive an update of sightings 
within the visual observation area. If the MMO has observed a North 
Atlantic right whale within 30 minutes of the transit start, the vessel 
will hold for 30 minutes and again get a clearance to leave from the 
MMOs on board. MMOs will assess whale activity and visual observation 
ability at the time of the transit request to clear the barge for 
release.
    (C) A half-day training course will be provided to designated crew 
members assigned to the transit barges and other support vessels. These 
designated crew members will be required to keep watch on the bridge 
and immediately notify the navigator of any whale sightings. All watch 
crew will sign into a bridge log book upon start and end of watch. 
Transit route, destination, sea conditions, and any protected species 
sightings/mitigation actions during

[[Page 41444]]

watch will be recorded in the log book. Any whale sightings within 
3,281 ft (1,000 m) of the vessel will result in a high alert and slow 
speed of 4 knots (7.4 km/hr) or less. A sighting within 2,461 ft (750 
m) will result in idle speed and/or ceasing all movement.
    (D) The material barges and tugs used for repair work shall transit 
from the operations dock to the work sites during daylight hours, when 
possible, provided the safety of the vessels is not compromised. Should 
transit at night be required, the maximum speed of the tug will be 5 
knots (9.3 km/hr).
    (E) Consistent with navigation safety, all repair vessels must 
maintain a speed of 10 knots (18.5 km/hr) or less during daylight 
hours. All vessels will operate at 5 knots or less at all times within 
3.1 mi (5 km) of the repair area.
(3) Speed Restrictions in Seasonal Management Areas (SMAs)
    Repair vessels and SRVs will transit at 10 knots (18.5 km/hr) or 
less in the following seasons and areas, which either correspond to or 
are more restrictive than the times and areas in NMFS' final rule (73 
FR 60173, October 10, 2008) to implement speed restrictions to reduce 
the likelihood and severity of ship strikes of right whales:
     CCB SMA from January 1 through May 15, which includes all 
waters in CCB, extending to all shorelines of the Bay, with a northern 
boundary of 42[deg] 12' N. latitude;
     Off Race Point SMA year round, which is bounded by 
straight lines connecting the following coordinates in the order 
stated: 42[deg] 30' N. 69[deg] 45' W.; thence to 42[deg] 30' N. 70[deg] 
30' W.; thence to 42[deg] 12' N. 70[deg] 30' W.; thence to 42[deg] 12' 
N. 70[deg] 12' W.; thence to 42[deg] 04' 56.5'' N. 70[deg] 12' W.; 
thence along mean high water line and inshore limits of COLREGS limit 
to a latitude of 41[deg] 40' N.; thence due east to 41[deg] 41' N. 
69[deg] 45' W.; thence back to starting point; and
     Great South Channel (GSC) SMA from April 1 through July 
31, which is bounded by straight lines connecting the following 
coordinates in the order stated:
    42[deg] 30' N. 69[deg] 45' W.
    41[deg] 40' N. 69[deg] 45' W.
    41[deg] 00' N. 69[deg] 05' W.
    42[deg] 09' N. 67[deg] 08' 24'' W.
    42[deg] 30' N. 67[deg] 27' W.
    42[deg] 30' N. 69[deg] 45' W.
(4) Additional Mitigation Measures
    (A) In approaching and departing from the Neptune Port, SRVs shall 
use the Boston Traffic Separation Scheme (TSS) starting and ending at 
the entrance to the GSC. Upon entering the TSS, the SRV shall go into a 
``heightened awareness'' mode of operation, which is outlined in detail 
in the Plan (see Neptune's application).
    (B) In the event that a whale is visually observed within 0.6 mi (1 
km) of the Port or a confirmed acoustic detection is reported on either 
of the two auto-detection buoys (ABs; more information on the acoustic 
devices is contained in the ``Monitoring and Reporting'' section later 
in this document) closest to the Port, departing SRVs shall delay their 
departure from the Port, unless extraordinary circumstances, defined in 
the Plan, require that the departure is not delayed. The departure 
delay shall continue until either the observed whale has been visually 
(during daylight hours) confirmed as more than 0.6 mi (1 km) from the 
Port or 30 minutes have passed without another confirmed detection 
either acoustically within the acoustic detection range of the two ABs 
closest to the Port or visually within 0.6 mi (1 km) from Neptune.
    (C) SRVs that are approaching or departing from the Port and are 
within the Area to be Avoided (ATBA) surrounding Neptune shall remain 
at least 0.6 mi (1 km) away from any visually detected right whales and 
at least 100 yards (91 meters) away from all other visually detected 
whales unless extraordinary circumstances, as defined in Section 1.2 of 
the Plan in Neptune's application, require that the vessel stay its 
course. The ATBA is defined in 33 CFR 150.940. It is the largest area 
of the Port marked on nautical charts and it is enforceable by the USCG 
in accordance with the 150.900 regulations. The Vessel Master shall 
designate at least one lookout to be exclusively and continuously 
monitoring for the presence of marine mammals at all times while the 
SRV is approaching or departing Neptune.
    (D) Neptune will ensure that other vessels providing support to 
Neptune operations during regasification activities that are 
approaching or departing from the Port and are within the ATBA shall be 
operated so as to remain at least 0.6 mi (1 km) away from any visually 
detected right whales and at least 100 yd (91 m) from all other 
visually detected whales.

Additional Mitigation Measures Required by NMFS

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

Mitigation Conclusions

    NMFS has carefully evaluated the applicant's mitigation measures 
and considered a range of other 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 of the applicant's measures, as well as 
other measures considered by NMFS, NMFS has determined that the 
required 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.

Monitoring and Reporting

    In order to issue an ITA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must, where applicable, set forth 
``requirements pertaining to the monitoring and reporting of such 
taking''. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) 
indicate that requests for ITAs must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species

[[Page 41445]]

and of the level of taking or impacts on populations of marine mammals 
that are expected to be present in the proposed action area.
    Neptune proposed both visual and acoustic monitoring programs in 
the Plan contained in the IHA application. Summaries of those plans, as 
well as the proposed reporting, are contained next. The monitoring and 
reporting programs contained in the Plan are included in the IHA.

Passive Acoustic Monitoring

    Neptune LNG will deploy and maintain a passive acoustic detection 
network along a portion of the TSS and in the vicinity of Neptune. This 
network will consisting of autonomous recording units (ARUs) and near-
real-time ABs. To develop, implement, collect, and analyze the acoustic 
data obtained from deployment of the ARUs and ABs, as well as to 
prepare reports and maintain the passive acoustic detection network, 
Neptune LNG has engaged the Cornell University Bioacoustic Research 
Program (BRP) in Ithaca, New York, and the Woods Hole Oceanographic 
Institution (WHOI) in Woods Hole, Massachusetts.
    During June 2008, an array of 19 passive seafloor ARUs was deployed 
by BRP for Neptune. The layout of the array centered on the terminal 
site and was used to monitor the noise environment in Massachusetts Bay 
in the vicinity of Neptune during construction of the port and 
associated pipeline lateral. The ARUs were not designed to provide 
real-time or near-real-time information about vocalizing whales. Rather 
archival noise data collected from the ARU array were used for the 
purpose of understanding the seasonal occurrences and overall 
distributions of whales (primarily North Atlantic right whales) within 
approximately 10 nm (18.5 km) of the Neptune Port. Neptune LNG will 
maintain these ARUs in the same configuration for a period of five 
years during full operation of Neptune in order to monitor the actual 
acoustic output of port operations and to alert NOAA to any 
unanticipated adverse effects of port operations, such as large scale 
abandonment by marine mammals of the area. To further assist in 
evaluations of the Neptune's acoustic output, source levels associated 
with DP of SRVs at the buoys will be estimated using empirical 
measurements collected from the passive detection network.
    In addition to the ARUs, Neptune LNG has deployed 10 ABs within the 
Separation Zone of the TSS for the operational life of the Port. The 
purpose of the AB array is to detect the presence of vocalizing North 
Atlantic right whales. Each AB has an average detection range of 5 nm 
(9.3 km) of the AB, although detection ranges will vary based on 
ambient underwater conditions. The AB system will be the primary 
detection mechanism that alerts the SRV Master to the occurrence of 
right whales in the TSS and triggers heightened SRV awareness. The 
configurations of the ARU array and AB network (see Figure 3 in the 
Plan in Neptune's application) were based upon the configurations 
developed and recommended by NOAA personnel.
    Each AB deployed in the TSS will continuously screen the low-
frequency acoustic environment (less than 1,000 Hz) for right whale 
contact calls occurring within an approximately
    5-nm (9.3-km) radius from each buoy (the ABs' detection range) and 
rank detections on a scale from 1 to 10. Each AB shall transmit all 
detection data for detections of rank greater than or equal to 6 via 
Iridium satellite link to the BRP server website every 20 minutes. This 
20-minute transmission schedule was determined by consideration of a 
combination of factors including the tendency of right whale calls to 
occur in clusters (leading to a sampling logic of listening for other 
calls rather than transmitting immediately upon detection of a possible 
call) and the amount of battery power required to complete a satellite 
transmission. Additional details on the protocol can be found in 
Neptune's application.
    Additionally, Neptune shall provide empirically measured source 
level data for all sources of noise associated with LNG port 
maintenance and repair activities. Measurements should be carefully 
coordinated with noise-producing activities and should be collected 
from the passive acoustic monitoring network.

Visual Monitoring

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

Reporting Measures

    Since the Neptune Port is within the Mandatory Ship Reporting Area 
(MSRA), all SRVs transiting to and from Neptune shall report their 
activities to the mandatory reporting section of the USCG to remain 
apprised of North Atlantic right whale movements within the area. All 
vessels entering and exiting the MSRA shall report their activities to 
WHALESNORTH. Vessel operators shall contact the USCG by standard 
procedures promulgated through the Notice to Mariner system.
    For any repair work associated with the pipeline lateral or other 
port components, Neptune LNG shall notify the appropriate NOAA 
personnel as soon as practicable after it is determined that repair 
work must be conducted. During maintenance and repair of the pipeline 
lateral or other port components, weekly status reports must be 
provided to NOAA. The weekly

[[Page 41446]]

report must include data collected for each distinct marine mammal 
species observed in the project area during the period of the repair 
activity. The weekly reports shall include the following:
     The location, time, and nature of the pipeline lateral 
repair activities;
     Whether the DP system was operated and, if so, the number 
of thrusters used and the time and duration of DP operation;
     Marine mammals observed in the area (number, species, age 
group, and initial behavior);
     The distance of observed marine mammals from the repair 
activities;
     Observed marine mammal behaviors during the sighting;
     Whether any mitigation measures were implemented;
     Weather conditions (sea state, wind speed, wind direction, 
ambient temperature, precipitation, and percent cloud cover, etc.);
     Condition of the marine mammal observation (visibility and 
glare); and
     Details of passive acoustic detections and any action 
taken in response to those detections.
    For minor repairs and maintenance activities, the following 
protocols will be followed:
     All vessel crew members will be trained in marine mammal 
identification and avoidance procedures;
     Repair vessels will notify designated NOAA personnel when 
and where the repair/maintenance work is to take place along with a 
tentative schedule and description of the work;
     Vessel crews will record/document any marine mammal 
sightings during the work period; and
     At the conclusion of the repair/maintenance work, a report 
will be delivered to designated NOAA personnel describing any marine 
mammal sightings, the type of work taking place when the sighting 
occurred, and any avoidance actions taken during the repair/maintenance 
work.
    During all phases of project repair/maintenance activities and 
operation, sightings of any injured or dead marine mammals will be 
reported immediately to the USCG and NMFS, regardless of whether the 
injury or death is caused by project activities. Sightings of injured 
or dead marine mammals not associated with project activities can be 
reported to the USCG on VHF Channel 16 or to NMFS Stranding and 
Entanglement Hotline. In addition, if the injury or death was caused by 
a project vessel (e.g., SRV, support vessel, or construction vessel), 
USCG must be notified immediately, and a full report must be provided 
to NMFS, Northeast Regional Office. The report must include the 
following information: (1) the time, date, and location (latitude/
longitude) of the incident; (2) the name and type of vessel involved; 
(3) the vessel's speed during the incident; (4) a description of the 
incident; (5) water depth; (6) environmental conditions (e.g., wind 
speed and direction, sea state, cloud cover, and visibility); (7) the 
species identification or description of the animal; (8) the fate of 
the animal; and (9) photographs or video footage of the animal (if 
equipment is available).
    An annual report on marine mammal monitoring and mitigation will be 
submitted to NMFS Office of Protected Resources and NMFS Northeast 
Regional Office within 90 days after the expiration of the IHA. The 
weekly reports and 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 operations and 
repair/maintenance activities. Description of marine mammal behavior, 
overall numbers of individuals observed, frequency of observation, and 
any behavioral changes and the context of the changes relative to 
operation and repair/maintenance activities shall also be included in 
the annual report. Additional information that will be recorded during 
operations and repair/maintenance activities and contained in the 
reports include: date and time of marine mammal detections (visually or 
acoustically), weather conditions, species identification, approximate 
distance from the source, activity of the vessel when a marine mammal 
is sighted, and whether thrusters were in use and, if so, how many at 
the time of the sighting.

General Conclusions Drawn from Previous Monitoring Reports

    Throughout the construction period, Neptune submitted weekly 
reports on marine mammal sightings in the area. While it is difficult 
to draw biological conclusions from these reports, NMFS can make some 
general conclusions. Data gathered by MMOs is generally useful to 
indicate the presence or absence of marine mammals (often to a species 
level) within the safety zones (and sometimes without) and to document 
the implementation of mitigation measures. Though it is by no means 
conclusory, it is worth noting that no instances of obvious behavioral 
disturbance as a result of Neptune's activities were observed by the 
MMOs. Of course, these observations only cover the animals that were at 
the surface and within the distance that the MMOs could see. Based on 
the number of sightings contained in the weekly reports, it appears 
that NMFS' estimated take levels are accurate. As operation of the Port 
has not yet commenced, there are no reports describing the results of 
the visual monitoring program for this phase of the project. However, 
it is anticipated that visual observations will be able to continue as 
they were during construction.
    As described previously in this document, Neptune was required to 
maintain an acoustic array to monitor calling North Atlantic right 
whales (humpback and fin whale calls were also able to be detected). 
Cornell BRP analyzed the data and submitted a report covering the 
initial construction phase of the project, which occurred in 2008. 
While acoustic data can only be collected if the animals are actively 
calling, the report indicates that humpback and fin whales were heard 
calling on at least some of the ARUs on all construction days, and 
right whale calls were heard only 28 percent of the time during active 
construction days. The passive acoustic arrays will remain deployed 
during the time frame of this IHA in order to obtain information during 
the operational phase of the Port facility.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment]. Only take by Level B harassment is 
anticipated as a result of Neptune's operational and repair/maintenance 
activities. Anticipated take of marine mammals is associated with 
thruster sound during maneuvering of the SRVs while docking and 
undocking, occasional weathervaning at the Port, and during thruster 
use of DP maintenance vessels should a major repair be necessary. The 
regasification process itself is an activity that does not rise to the 
level of taking, as the modeled source level for this activity is 110 
dB (rms). Certain species may have a behavioral reaction to the sound 
emitted during the activities. Hearing impairment is not anticipated. 
Additionally, vessel strikes are not anticipated, especially because of 
the speed restriction measures that are

[[Page 41447]]

proposed that were described earlier in this document.
    For continuous sounds, such as those produced by Neptune's proposed 
activities, NMFS uses a received level of 120-dB (rms) to indicate the 
onset of Level B harassment. The basis for Neptune's ``take'' estimate 
is the number of marine mammals that potentially could be exposed to 
sound levels in excess of 120 dB. This has been determined by applying 
the modeled zone of influence (ZOI; e.g., the area ensonified by the 
120-dB contour) to the seasonal use (density) of the area by marine 
mammals and correcting for seasonal duration of sound-generating 
activities and estimated duration of individual activities when the 
maximum sound-generating activities are intermittent to occasional. 
Nearly all of the required information is readily available in the 
MARAD/USCG Final EIS, with the exception of marine mammal density 
estimates for the project area. In the case of data gaps, a 
conservative approach was used to ensure that the potential number of 
takes is not underestimated.
    The Notice of Proposed IHA (75 FR 24906, May 6, 2010) included an 
in-depth discussion of the methodology used by NMFS to estimate take by 
harassment incidental to operation and repair/maintenance activities at 
the Neptune Port facility. A summary is provided next.
    Results of sound modeling tests indicate that the 120-dB radius 
from thruster use by the SRV is estimated to be 1.6 nm (3 km), creating 
a maximum ZOI of 8.5 nm\2\ (29 km\2\). This zone is smaller than the 
one that was used to estimate the level of take in the previous IHA. 
However, the vessels used in the 2009 tests more closely resemble the 
vessels that will be used by Neptune for regasification by the SRV. 
Other vessels would be required for use during maintenance and repair 
activities at the port facility. Sounds generated during those 
activities would be similar or less than those generated during 
original construction of the facility. Therefore, NMFS has used the 
120-dB contour estimated for construction in the previous IHAs for 
repair and maintenance activities. Depending on water depth, the 120-dB 
contour during repair and maintenance activities will extend from the 
source (the Port) out to 3.9 km (2.1 nm) and cover an area of 52 km\2\ 
(15 nm\2\).
    NMFS used 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 the project area. Sighting data for the following 
species are contained in the report: North Atlantic right, fin, 
humpback, minke, pilot, and sei whales and Atlantic white-sided 
dolphins. The NCCOS study used cetacean sightings from two sources: (1) 
the North Atlantic Right Whale Consortium (NARWC) sightings database 
held at the University of Rhode Island (Kenney, 2001); and (2) the 
Manomet Bird Observatory (MBO) database, held at the NMFS Northeast 
Fisheries Science Center (NEFSC). 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.
    For a detailed description and calculation of the cetacean 
abundance data and sightings-per-unit-effort (SPUE), refer to the NCCOS 
study (NCCOS, 2006). SPUE for all four seasons were analyzed, and the 
highest value SPUE for the season with the highest abundance of each 
species was used to determine relative abundance. Based on the data, 
the relative abundance of North Atlantic right, fin, humpback, minke, 
sei, and pilot whales and Atlantic white-sided dolphins, as calculated 
by SPUE in number of animals per square kilometer, is 0.0082, 0.0097, 
0.0265, 0.0059, 0.0084, 0.0407, and 0.1314 n/km, respectively. Table 1 
in this document outlines the density, abundance, take estimates, and 
percent of population for the 14 species for which NMFS has authorized 
Level B harassment.
    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, as a conservative 
hypothetical strip width (W). Thus the area density (D) of these 
species in the project area can be obtained by the following formula:
    D = SPUE/2W.
    Based on the calculation, the estimated take numbers by Level B 
harassment for the 1-year IHA period during operation of the SRV for 
North Atlantic right, fin, humpback, minke, sei, and pilot whales and 
Atlantic white-sided dolphins, within the 120-dB ZOI of the LNG Port 
facility area of approximately 8.5 nm\2\ (29 km\2\) maximum ZOI, 
corrected for 50 percent underwater, are 23, 27, 72, 16, 6, 110, and 
357, respectively. This estimate is based on an estimated 50 SRV trips 
for the period July 12, 2010, through July 11, 2011, that will produce 
sounds of 120 dB or greater.
    Based on the same calculation method described above for Port 
operations (but using the 120-dB ZOI of approximately 52 km\2\ (15 
nm\2\), the estimated take numbers by Level B harassment for North 
Atlantic right, fin, humpback, minke, sei, and pilot whales and 
Atlantic white-sided dolphins for the 1-year IHA period incidental to 
Port maintenance and repair activities, corrected for 50 percent 
underwater, are 11, 13, 36, 8, 11, 56, and 179, respectively. These 
numbers are based on 14 days of repair and maintenance activities 
occurring between July 12, 2010, through July 11, 2011. It is unlikely 
that this much repair and maintenance work would be required this soon 
after completion of the construction phase of the facility.
    The total estimated take of these species as a result of both 
operations and repair and maintenance activities of the Neptune Port 
facility between July 12, 2010, through July 11, 2011, is: 33 North 
Atlantic right whales; 40 fin whales; 108 humpback whales; 24 minke 
whales; 17 sei whales; 166 long-finned pilot whales; and 536 Atlantic 
white-sided dolphins. These numbers represent a maximum of 9.6, 1.8, 
12.8, 0.7, 4.4, 0.5, and 0.8 percent of the populations for these 
species or stocks in the western North Atlantic, respectively. It is 
likely that individual animals will be ``taken'' by harassment multiple 
times (because certain individuals may occur in the area more than once 
while other individuals of the population or stock may not enter the 
proposed project area). Additionally, the highest value SPUE for the 
season with the highest abundance of each species was used to determine 
relative abundance. Moreover, it is not expected that Neptune will have 
50 SRV transits and LNG deliveries in the first year of operations. 
Therefore, these percentages are the upper boundary of the animal 
population that could be affected. Thus, the actual number of 
individual animals being exposed or taken is expected to be far less.
    In addition, bottlenose dolphins, common dolphins, Risso's 
dolphins, killer whales, harbor porpoises, harbor seals, and gray seals 
could also be taken by Level B harassment as a result of the deepwater 
LNG port project. Because these species are less likely to occur in the 
area, and there are no density estimates specific to this particular 
area, NMFS based the take estimates on typical group size. Therefore, 
NMFS estimates (and has authorized) that up to approximately 10 
bottlenose dolphins, 20 common dolphins, 20 Risso's dolphins, 20 killer 
whales, 5 harbor porpoises, 15 harbor seals, and

[[Page 41448]]

15 gray seals could be exposed to continuous noise at or above 120 dB 
re 1 microPa rms incidental to operations and repair and maintenance 
activities during the one year period of the IHA, respectively.
    Because Massachusetts Bay represents only a small fraction of the 
western North Atlantic basin where these animals occur NMFS has 
determined that only small numbers of the affected marine mammal 
species or stocks would be potentially affected by the Neptune LNG 
deepwater project. The take estimates presented in this section of the 
document do not take into consideration the mitigation and monitoring 
measures required by the IHA.

Table 1. Density estimates, population abundance estimates, total authorized take (when combine takes from operation and maintenance/repair activities),
                                   and percentage of population that may be taken for the potential affected species.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                        Total Authorized Take
                           Species                            Density (n/km\2\)      Abundance\1\           (operation &         Percentage of Stock or
                                                                                                            maintenance)               Population
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale                                              0.0082                  345                        33                       9.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fin whale                                                               0.0097                2,269                        40                       1.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback whale                                                          0.0265                  847                       108                      12.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minke whale                                                             0.0059                3,312                        24                       0.7
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sei whale                                                               0.0084                  386                        17                       4.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
Long-finned pilot whale                                                 0.0407               31,139                       166                       0.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
Atlantic white-sided dolphin                                            0.1314               63,368                       536                       0.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bottlenose dolphin                                                          NA                7,489                        10                       0.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Common dolphin                                                              NA              120,743                        20                      0.02
--------------------------------------------------------------------------------------------------------------------------------------------------------
Risso's dolphin                                                             NA               20,479                        20                       0.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Killer whale                                                                NA                   NA                        20                        NA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor porpoise                                                             NA               89,054                         5                      0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal                                                                 NA               99,340                        15                      0.02
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray seal                                                                   NA      125,541-169,064                        15                      0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Abundance estimates taken from NMFS Atlantic and Gulf of Mexico SAR; NA=Not Available

    NMFS has defined ``negligible impact'' in 50 CFR 21