Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Operation and Maintenance of the Neptune Liquefied Natural Gas Facility off Massachusetts, 34157-34176 [2011-14614]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

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


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

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


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

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

ACTION: Final rule.

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

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

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

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

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

SUPPLEMENTARY INFORMATION:

Background

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

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

[[Page 34158]]

Summary of Request

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

Description of the Specified Activity

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

Description of Marine Mammals in the Area of the Specified Activity

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

[[Page 34159]]

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

Brief Background on Marine Mammal Hearing

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

Potential Effects of the Specified Activity on Marine Mammals

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

[[Page 34160]]

Anticipated Effects on Habitat

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

Mitigation

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

Mitigation Measures in Neptune's Application

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

[[Page 34161]]

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

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

Additional Mitigation Measures Required by NMFS

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

[[Page 34162]]

Mitigation Conclusions

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

Monitoring and Reporting

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

Passive Acoustic Monitoring

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

Visual Monitoring

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

[[Page 34163]]

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

Reporting Measures

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

[[Page 34164]]

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

General Conclusions Drawn From Previous Monitoring Reports

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

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


[[Page 34165]]

Adaptive Management

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

Comments and Responses

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

[[Page 34166]]

addition to DP use and repair/maintenance activities) have now been 
calculated and added to the total annual take estimate for each 
species. NMFS estimated that Neptune would require up to 8 days/year to 
conduct weathervaning to maintain position at the Port. This is based 
on information contained in their application and associated 
appendices. Including this activity only added a very small number of 
individuals of each species to the overall take totals for each 
species.
    In December 2009, LGL Limited completed a Second Supplementary 
Biological Effects Report titled Assessment of the Effects of 
Underwater Noise from Thrusters to be Used on the Neptune LNG Project 
(LGL, 2009). This report incorporated measurements of the SRVs 
conducted by Samsung and new transmission loss modeling by JASCO 
Applied Sciences. This report pres