Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Operation, Maintenance, and Repair of the Northeast Gateway Liquefied Natural Gas Port and the Algonquin Pipeline Lateral Facilities in Massachusetts Bay, 72688-72708 [2015-29642]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 80, Number 224 (Friday, November 20, 2015)]
[Notices]
[Pages 72688-72708]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29642]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XE267


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Operation, Maintenance, and Repair 
of the Northeast Gateway Liquefied Natural Gas Port and the Algonquin 
Pipeline Lateral Facilities in Massachusetts Bay

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

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

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SUMMARY: NMFS has received a request from Excelerate Energy, L.P. 
(Excelerate) and Tetra Tech, Inc. (Tetra Tech), on behalf of the 
Northeast Gateway[supreg] Energy BridgeTM, L.P. (Northeast 
Gateway or NEG) and Algonquin Gas Transmission, L.L.C. (Algonquin) for 
an authorization to take small numbers of 14 species of marine mammals, 
by Level B harassment, incidental to operating, maintaining, and 
repairing a liquefied natural gas (LNG) port and the Algonquin Pipeline 
Lateral (Pipeline Lateral) facilities by NEG and Algonquin, in 
Massachusetts Bay. Pursuant to the Marine Mammal Protection Act (MMPA), 
NMFS is requesting comments on its proposal to issue an authorization 
to NEG and Algonquin to incidentally take, by Level B harassment, small 
numbers of marine mammals during the specified activity for a period of 
1 year. NMFS is also requesting comments, information, and suggestions 
concerning NEG's application and the structure and content of future 
regulations.

[[Page 72689]]


DATES: Comments and information must be received no later than December 
21, 2015.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East-West Highway, Silver 
Spring, MD 20910. The mailbox address for providing email comments on 
this action is ITP.Guan@noaa.gov. Comments sent via email, including 
all attachments, must not exceed a 25-megabyte file size. A copy of the 
application and a list of references used in this document may be 
obtained by writing to this address, and is also available at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. NMFS is not 
responsible for comments sent to addresses other than those provided 
here.
    Instructions: All comments received are a part of the public record 
and will generally be posted to https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications without change. All Personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    The Maritime Administration (MARAD) and U.S. Coast Guard (USCG) 
Final Environmental Impact Statement (Final EIS) on the Northeast 
Gateway Energy Bridge LNG Deepwater Port license application is 
available for viewing at https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

Background

    Sections 101(a)(5)(A) (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (Secretary) to allow, upon request, 
the incidental, but not intentional taking of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region if certain findings are 
made and regulations are issued or, if the taking is limited to 
harassment, a notice of a proposed authorization is provided to the 
public for review.
    An authorization 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 a one-year authorization to 
incidentally take small numbers of marine mammals by harassment, 
provided that there is no potential for serious injury or mortality to 
result from the activity. 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.

Summary of Request

    On June 9, 2015, NMFS received an application from Excelerate and 
Tetra Tech, on behalf of Northeast Gateway and Algonquin, for an 
authorization to take 14 species of marine mammals by Level B 
harassment incidental to operations, maintenance, and repair of an LNG 
port and the Pipeline Lateral facilities in Massachusetts Bay. They 
are: North Atlantic right whale, humpback whale, fin whale, sei whale, 
minke whale, long-finned pilot whale, Atlantic white-sided dolphin, 
bottlenose dolphin, short-beaked common dolphin, killer whale, Risso's 
dolphin, harbor porpoise, harbor seal, and gray seal. Since LNG Port 
and Pipeline Lateral operation, maintenance, and repair activities have 
the potential to take marine mammals, a marine mammal take 
authorization under the MMPA is warranted. NMFS first issued an IHA to 
Northeast Gateway and Algonquin to allow for the incidental harassment 
of small numbers of marine mammals resulting from the construction and 
operation of the NEG Port and the Algonquin Pipeline Lateral (72 FR 
27077; May 14, 2007). Subsequently, NMFS issued five one-year IHAs for 
the take of marine mammals incidental to the operation of the NEG Port 
activity pursuant to section 101(a)(5)(D) of the MMPA (73 FR 29485, May 
21, 2008; 74 FR 45613, September 3, 2009; 75 FR 53672, September 1, 
2010; and 76 FR 62778, October 11, 2011). On December 22, 2014, NMFS 
issued an IHA to NEG and Algonquin to take marine mammals incidental to 
the operations of the NEG Port as well as maintenance and repair 
activities (79 FR 78806, December 31, 2014). The current IHA expires on 
December 21, 2015.
    Because the LNG Port facility and Algonquin Pipeline Lateral 
operation and maintenance activities will be ongoing in the foreseeable 
future, Excelerate and Tetra Tech have submitted an application for 
both an IHA under section 101(a)(5)(D) to cover the next one-year 
period of operations and maintenance/repair, and regulations under 
section 101(a)(5)(A) to cover the same activities for a subsequent 5-
year period. In this FR notice NMFS is (1) proposing to issue a one-
year IHA to cover the period from [x-y], with a 30-day public comment 
period; and (2) announcing its notice of receipt of the application for 
five-year regulations, also with a 30-day public comment period. 
Following a decision on the proposed IHA, NMFS will proceed with 
consideration of proposed regulations pursuant to section 101(a)(5)(A) 
of the MMPA.

Description of the Specified Activity

    The proposed NEG and Algonquin activities include the following:
    NEG Port Operations: The NEG Port operations involve docking of LNG 
vessels and regasification of LNG for delivery to shore. Noises 
generated during these activities, especially from the LNG vessel's 
dynamics positioning thrusters during docking, could result in takes of 
marine mammals in the Port vicinity by level B behavioral harassment.
    NEG Port Maintenance and Repair: Regular maintenance and occasional 
repair of the NEG Port are expected to occur throughout the NEG Port 
operation period. Machinery used during these activities generate 
noises that could result in takes of marine mammals in the Port 
vicinity by Level B behavioral harassment.
    Algonquin Pipeline Lateral Routine Operations and Maintenance: The 
Algonquin Pipeline Lateral that is used for gas delivery would be 
inspected regularly to ensure proper operations. The work would be done 
using support vessels operating in dynamic positioning mode. Noises 
generated from these activities could result in takes of marine mammals 
in the vicinity of Pipeline Lateral by Level B behavioral harassment.
    Unplanned Pipeline Repair Activities: Unplanned repair activities 
may be required from time to time at a location along the Algonquin 
Pipeline Lateral in

[[Page 72690]]

west Massachusetts Bay, as shown in Figure 2.1 of the IHA application. 
The repair would involve the use of a dive vessel operating in dynamic 
positioning mode. Noise generated from this activity could result in 
takes of marine mammals in the vicinity of repair work by Level B 
behavioral harassment.
    An IHA was previously issued to NEG and Algonquin for this activity 
on December 22, 2014 (79 FR 78806; December 31, 2014), based on 
activities described on Excelerate and Tetra Tech's IHA application 
submitted in June 2014 and on the Federal Register notice for the 
proposed IHA (78 FR 69049; November 18, 2013). The latest IHA 
application submitted by Excelerate and Tetra Tech on October 9, 2015, 
contains the same information on project descriptions as described in 
the June 2014 IHA application. There is no change on the NEG and 
Algonquin's proposed LNG Port and Pipeline Lateral operations and 
maintenance and repair. Please refer to these documents for a detailed 
description of NEG and Algonquin's proposed LNG Port and Pipeline 
Lateral operations and maintenance and repair activities.

Description of Marine Mammals in the Area of the Specified Activities

    General information on the marine mammal species found in 
Massachusetts Bay can be found in Waring et al. (2014), which is 
available at the following URL: https://www.nmfs.noaa.gov/pr/sars/pdf/ao2013_tm228.pdf. Refer to that document for information on these 
species.
    Marine mammal species that potentially occur in the vicinity of the 
Northeast Gateway facility can be found in the IHA application and in 
the earlier Federal Register notice for the proposed IHA (78 FR 69049; 
November 18, 2013). These species are summarized in Table 1 below.

                                        Table 1--Marine Mammal Species Potentially Present in Region of Activity
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              Species                      ESA status              MMPA status             Abundance                Range                Occurrence
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North Atlantic right whale.........  Endangered............  Depleted..............  465..................  N. Atlantic..........  Occasional.
Humpback whale.....................  Endangered............  Depleted..............  823..................  N. Atlantic..........  Occasional.
Fin whale..........................  Endangered............  Depleted..............  1618.................  N. Atlantic..........  Occasional.
Sei whale..........................  Endangered............  Depleted..............  357..................  N. Atlantic..........  Occasional.
Minke whale........................  Not listed............  Non-depleted..........  20741................  N. Atlantic..........  Occasional.
Long-finned pilot whale............  Not listed............  Non-depleted..........  21515................  N. Atlantic..........  Occasional.
Atlantic white-sided dolphin.......  Not listed............  Non-depleted..........  48819................  N. Atlantic..........  Occasional.
Bottlenose dolphin.................  Not listed............  Non-depleted..........  11548................  N. Atlantic..........  Uncommon.
Common dolphin.....................  Not listed............  Non-depleted..........  173486...............  N. Atlantic..........  Uncommon.
Killer whale.......................  Not listed............  Non-depleted..........  Unknown..............  N. Atlantic..........  Uncommon.
Risso's dolphin....................  Not listed............  Non-depleted..........  18250................  N. Atlantic..........  Uncommon.
Harbor porpoise....................  Not listed............  Non-depleted..........  79833................  N. Atlantic..........  Uncommon.
Harbor Seal........................  Not listed............  Non-depleted..........  75834................  N. Atlantic..........  Occasional.
Gray seal..........................  Not listed............  Non-depleted..........  Unknown..............  N. Atlantic..........  Occasional.
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Potential Effects of the Specified Activity on Marine Mammals

    This section includes a summary and discussion of the ways that the 
types of stressors associated with the specified activity (e.g., pile 
removal and pile driving) have been observed to impact marine mammals. 
This discussion may also include reactions that we consider to rise to 
the level of a take and those that we do not consider to rise to the 
level of a take (for example, with acoustics, we may include a 
discussion of studies that showed animals not reacting at all to sound 
or exhibiting barely measurable avoidance). This section is intended as 
a background of potential effects and does not consider either the 
specific manner in which this activity will be carried out or the 
mitigation that will be implemented, and how either of those will shape 
the anticipated impacts from this specific activity. The ``Estimated 
Take by Incidental Harassment'' section later in this document will 
include a quantitative analysis of the number of individuals that are 
expected to be taken by this activity. The ``Negligible Impact 
Analysis'' section will include the analysis of how this specific 
activity will impact marine mammals and will consider the content of 
this section, the ``Estimated Take by Incidental Harassment'' section, 
the ``Proposed Mitigation'' section, and the ``Anticipated Effects on 
Marine Mammal Habitat'' section to draw conclusions regarding the 
likely impacts of this activity on the reproductive success or 
survivorship of individuals and from that on the affected marine mammal 
populations or stocks.
    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 have been derived using 
auditory evoked potentials, 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 
25 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;
     Phocid pinnipeds (true seals): functional hearing is 
estimated between 75 Hz to 100 kHz; and
     Otariid pinnipeds (sea lions and fur seals): functional 
hearing is estimated between 100 Hz to 48 kHz.
    Species found in the vicinity of NEG LNG port and Algonquin 
Pipeline Lateral operations and maintenance and repair area include 
five low-frequency

[[Page 72691]]

cetacean species (North Atlantic right whale, humpback whale, fin 
whale, sei whale, and minke whale), six mid-frequency cetacean species 
(long-finned pilot whale, Atlantic white-sided dolphin, bottlenose 
dolphin, common dolphin, Risso's dolphin, and killer whale), one high-
frequency cetacean species (harbor porpoise), and two pinniped species 
(harbor seal and gray seal) (Table 1).
    The proposed NEG LNG port operations and maintenance and repair 
activities could adversely affect marine mammal species and stocks by 
exposing them to elevated noise levels in the vicinity of the activity 
area.
    Marine mammals exposed to high intensity sound repeatedly or for 
prolonged periods can experience hearing threshold shift (TS), which is 
the loss of hearing sensitivity at certain frequency ranges (Kastak et 
al. 1999; Schlundt et al. 2000; Finneran et al. 2002; 2005). TS can be 
permanent (PTS), in which case the loss of hearing sensitivity is 
unrecoverable, or temporary (TTS), in which case the animal's hearing 
threshold will recover over time (Southall et al. 2007). Since marine 
mammals depend on acoustic cues for vital biological functions, such as 
orientation, communication, finding prey, and avoiding predators, 
marine mammals that suffer from PTS or TTS will have reduced fitness in 
survival and reproduction, either permanently or temporarily. Repeated 
noise exposure that leads to TTS could cause PTS.
    In addition, chronic exposure to excessive, though not high-
intensity, noise could cause masking at particular frequencies for 
marine mammals that utilize sound for vital biological functions (Clark 
et al. 2009). Acoustic masking can interfere with detection of acoustic 
signals such as communication calls, echolocation sounds, and 
environmental sounds important to marine mammals. Therefore, under 
certain circumstances, marine mammals whose acoustical sensors or 
environment are being severely masked could also be impaired from 
maximizing their performance fitness in survival and reproduction.
    Masking occurs at the frequency band which the animals utilize. 
Therefore, since noise generated from in-water vibratory pile driving 
and removal is mostly concentrated at low frequency ranges, it may have 
less effect on high frequency echolocation sounds by odontocetes 
(toothed whales). However, lower frequency man-made noises are more 
likely to affect detection of communication calls and other potentially 
important natural sounds such as surf and prey noise. It may also 
affect communication signals when they occur near the noise band and 
thus reduce the communication space of animals (e.g., Clark et al. 
2009) and cause increased stress levels (e.g., Foote et al. 2004; Holt 
et al. 2009).
    Unlike TS, masking can potentially affect the species at 
population, community, or even ecosystem levels, as well as individual 
levels. Masking affects both senders and receivers of the signals and 
could have long-term chronic effects on marine mammal species and 
populations. Recent science suggests that low frequency ambient sound 
levels have increased by as much as 20 dB (more than 3 times in terms 
of sound pressure level (SPL)) in the world's ocean from pre-industrial 
periods, and most of these increases are from distant shipping 
(Hildebrand 2009). All anthropogenic noise sources, such as those from 
vessel traffic, vessel docking, and stationing while operating dynamic 
positioning (DP) thrusters, dredging and pipe laying associated with 
LNG Port and Pipeline Lateral maintenance and repair, and LNG 
regasification activities, contribute to the elevated ambient noise 
levels, thus increasing potential for or severity of masking.
    Finally, exposure of marine mammals to certain sounds could lead to 
behavioral disturbance (Richardson et al. 1995), such as: changing 
durations of surfacing and dives, number of blows per surfacing, or 
moving direction and/or speed; reduced/increased vocal activities; 
changing/cessation of certain behavioral activities (such as 
socializing or feeding); visible startle response or aggressive 
behavior (such as tail/fluke slapping or jaw clapping); avoidance of 
areas where noise sources are located; and/or flight responses (e.g., 
pinnipeds flushing into water from haulouts or rookeries).
    The biological significance of many of these behavioral 
disturbances is difficult to predict, especially if the detected 
disturbances appear minor. However, the consequences of behavioral 
modification are expected to be biologically significant if the change 
affects growth, survival, and/or reproduction.
    The onset of behavioral disturbance from anthropogenic noise 
depends on both external factors (characteristics of noise sources and 
their paths) and the receiving animals (hearing, motivation, 
experience, demography) and is also difficult to predict (Southall et 
al. 2007). Currently NMFS uses 160 dB re 1 [mu]Pa (rms) at received 
level for impulse noises (such as impact pile driving) as the onset of 
marine mammal behavioral harassment, and 120 dB re 1 [mu]Pa (rms) for 
non-impulse noises (such as operating DP thrusters, dredging, pipe 
laying, and LNG regasification). No impulse noise is expected from the 
NEG and Algonquin's proposed LNG Port and Pipeline Lateral operation, 
maintenance, and repair activities. For the NEG Port and Algonquin 
Pipeline Lateral operations and maintenance and repair activities, only 
the 120 dB re 1 [mu]Pa (rms) threshold is considered because only non-
impulse noise sources would be generated.

Potential Effects on Marine Mammal Habitat

    The proposed action area is considered biologically important 
habitat for the North Atlantic right, fin, humpback, and minke whales 
during part of the seasons, and it is adjacent to the Stellwagen Bank 
National Marine Sanctuary. There is no critical habitat in the vicinity 
of the proposed action area.

NEG Port Operations

    Operation of the NEG Port will not result in short-term effects; 
however, long-term effects on the marine environment, including 
alteration of the seafloor conditions, continued disturbance of the 
seafloor, regular withdrawal of sea water, and regular generation of 
underwater noise, will result from Port operations. Specifically, a 
small area (0.14 acre) along the Pipeline Lateral has been permanently 
altered (armored) at two cable crossings. In addition, the structures 
associated with the NEG Port (flowlines, mooring wire rope and chain, 
suction anchors, and pipeline end manifolds) occupy 4.8 acres of 
seafloor. An additional area of the seafloor of up to 43 acres (worst 
case scenario based on severe 100-year storm with Energy Bridge 
Regasification Vehicle (EBRVs) occupying both submerged turret loading 
(STL) buoys) will be subject to disturbance due to chain sweep while 
the buoys are occupied. Given the relatively small size of the NEG Port 
area that will be directly affected by Port operations, NMFS does not 
anticipate that habitat loss will be significant.
    EBRVs are currently authorized to withdraw an average of 4.97 
million gallons per day (mgd) and 2.6 billion gallons per year of sea 
water for general ship operations during cargo delivery activities at 
the NEG Port. However, as we explained in the FR notice for the current 
IHA (78 FR 69049; November 18, 2013), during the operations of the NEG 
Port facility, it was revealed that significantly more water usage is 
needed than what was originally evaluated in the final USCG 
Environmental Impact Statement/Environmental Impact Report

[[Page 72692]]

(EIS/EIR). The updates for the needed water intake and discharge 
temperature are:
     11 billion gallons of total annual water use at the Port;
     Maximum daily intake volume of up to 56 mgd at a rate of 
0.45 feet per second when an EBRV is not able to achieve the heat 
recovery system (HRS: it is the capability of reducing water use during 
the regasification process) mode of operation; and,
     Maximum daily change in discharge temperature of 12 [deg]C 
(21.6 [deg]F) from ambient from the vessel's main condenser cooling 
system.
    Under the requested water-use scenario, Tetra Tech (2011) conducted 
an environmental analysis on the potential impacts to marine mammals 
and their prey. To evaluate impacts to phytoplankton under the 
increased water usage, the biomass of phytoplankton lost from the 
Massachusetts Bay ecosystem was estimated based on the method presented 
in the final EIS/EIR. Phytoplankton densities of 65,000 to 390,000 
cells/gallon were multiplied by the annual planned activities of 
withdrawal rate of 11 billion gallons to estimate a loss of 7.15 x 
10\14\ to 4.29 x 10\15\ cells per year. Assuming a dry-weight biomass 
of 10-10 to 10-11 gram per cell (g/cell), an 
estimated 7.2 kg to 429 kg of biomass would be lost from Massachusetts 
Bay under the proposed activity, up to approximately 4.2 times that 
estimated in the final EIS/EIR for the permitted operational scenario. 
An order of magnitude estimate of the effect of this annual biomass 
loss on the regional food web can be calculated assuming a 10 percent 
transfer of biomass from one trophic level to the next (Sumich 1988) 
following the method used in the final EIS/EIR. This suggests that the 
loss of 7.2 kg to 429 kg of phytoplankton will result in the loss of 
about 0.7 kg to 42.9 kg of zooplankton, less than 0.1 kg to 4.3 kg of 
small planktivorous fish, and up to 0.4 kg of large piscivorous fish 
(approximately equivalent to a single 1-pound striped bass). Relative 
to the biomass of these trophic levels in the project area, this 
biomass loss is minor and consistent with the findings in the final 
EIS/EIR.
    In addition, zooplankton losses will also increase proportionally 
to the increase in water withdrawn. The final EIS/EIR used densities of 
zooplankton determined by the sampling conducted by the Massachusetts 
Water Resource Authority (MWRA) to characterize the area around its 
offshore outfall and assumed a mean zooplankton density of 34.9 x 10\3\ 
organisms per m\3\. Applying this density, the water withdrawal volume 
under the proposed activity would result in the entrainment of 2.2 x 
10\10\ zooplankton individuals per trip or 1.5 x 10\12\ individuals per 
year. Assuming an average biomass of 0.63 x 10-6 g per 
individual, this would result in the loss of 14.1 kg of zooplankton per 
shipment or 916.5 kg of zooplankton per year. As discussed for 
phytoplankton, biomass transfers from one trophic level to the next at 
a rate of about 10 percent. Therefore, this entrainment of zooplankton 
would result in loss of about 91.6 kg of planktivorous fish and 9.2 kg 
of large piscivorous fish (approximately equivalent to two 9-pound 
striped bass). These losses are minor relative to the total biomass of 
these trophic levels in Massachusetts Bay.
    Finally, ichthyoplankton (fish eggs and larvae) losses and 
equivalent age one juvenile fish estimates under the proposed activity 
were made based on actual monthly ichthyoplankton data collected in the 
port area from October 2005 through December 2009 and the proposed 
activity withdrawal volume of 11 billion gallons per year evenly 
distributed among months (0.92 billion gallons per month) as a worst-
case scenario, representing the maximum number of Port deliveries 
during any given month. Similarly, the lower, upper, and mean annual 
entrainment estimates are based on the lower and upper 95 percent 
confidence limits, of the monthly mean ichthyoplankton densities, and 
the monthly mean estimates multiplied by the monthly withdrawal rate of 
0.92 billion gallons per month. At this withdrawal rate approximately 
106 million eggs and 67 million larvae are estimated to be lost (see 
Table 4.2-2 of the IHA application). The most abundant species and life 
stages estimated to be entrained under the proposed activity are cunner 
post yolk-sac larvae (33.3 million), yellowtail flounder/Labridae eggs 
(27.4 million) and hake species eggs (18.7 million). Together, these 
species and life stages accounted for approximately 46 percent of the 
total entrainment estimated. Entrainment was estimated to be highest in 
June through July when 97.4 million eggs and larvae (approximately 57 
percent of the annual total) were estimated to be entrained. However, 
the demand for natural gas and corresponding Port activities will 
likely be greatest during the winter heating season (November through 
March) when impacts from entrainment will likely be lower.
    These estimated losses are not significant given the very high 
natural mortality of ichthyoplankton. This comparison was done in the 
final EIS/EIR where ichthyoplankton losses based on historic regional 
ichthyoplankton densities and a withdrawal rate of approximately 2.6 
billion gallons per year were represented by the equivalent number of 
age one fish. Under the final EIS/EIR withdrawal scenario, equivalent 
age one losses due to entrainment ranged from 1 haddock to 43,431 sand 
lance (Tetra Tech 2010). Equivalent age one losses under the conditions 
when no NEG Port operations occurrence were recalculated using 
Northeast Gateway monitoring data in order to facilitate comparisons 
between the permitted scenario and the updated scenario. Using 
Northeast Gateway monitoring data, withdrawal of 2.6 billion gallons 
per year would result in equivalent age one losses ranging from less 
than 1 haddock to 5,602 American sand lance. By comparison, equivalent 
age one losses under the proposed activity withdrawal rate of 11 
billion gallons per year ranged from less than 1 haddock to 23,701 sand 
lance and were generally similar to or less than those in the final 
EIS/EIR. Substantially more equivalent age one Atlantic herring, 
pollock, and butterfish were estimated to be lost under the final EIS/
EIR at a withdrawal rate of 2.6 billion gallons per year, while 
substantially more equivalent age one Atlantic cod, silver hake and 
hake species, cunner, and Atlantic mackerel are estimated to be lost 
under the proposed activity.
    Although no reliable annual food consumption rates of baleen whales 
are available for comparison, based on the calculated quantities of 
phytoplankton, zooplankton, and ichthyoplankton removal analyzed above, 
it is reasonable to conclude that baleen whale predation rates would 
dwarf any reasonable estimates of prey removals by NEG Port operations.

NEG Port Maintenance

    As stated earlier, NEG LNG Port will require scheduled maintenance 
inspections using either divers or remote operated vehicles (ROVs). The 
duration of these inspections are not anticipated to be more than two 
8-hour working days. An EBRV will not be required to support these 
annual inspections. Water usage during the LNG Port maintenance would 
be limited to the standard requirements of NEG's normal support vessel. 
As with all vessels operating in Massachusetts Bay, sea water uptake 
and discharge is required to support engine cooling, typically using a 
once-through system. The rate of seawater uptake varies with the ship's 
horsepower and activity and therefore will differ between vessels and

[[Page 72693]]

activity type. For example, the Gateway Endeavor is a 90-foot vessel 
powered with a 1,200 horsepower diesel engine with a four-pump seawater 
cooling system. This system requires seawater intake of about 68 
gallons per minute (gpm) while idling and up to about 150 gpm at full 
power. Use of full power is required generally for transit. A 
conservatively high estimate of vessel activity for the Gateway 
Endeavor would be operation at idle for 75 percent of the time and full 
power for 25 percent of the time. During the routine activities this 
would equate to approximately 42,480 gallons of seawater per 8-hour 
work day. When compared to the engine cooling requirements of an EBRV 
over an 8-hour period (approximately 18 million gallons), the Gateway 
Endeavour uses about 0.2 percent of the EBRV requirement. To put this 
water use into context, potential effects from the waters-use scenario 
of 56 mgd have been concluded to be orders of magnitude less than the 
natural fluctuations of Massachusetts Bay and Cape Cod Bay and not 
detectable. Water use by support vessels during routine port activities 
would not materially add to the overall impacts.
    Certain maintenance and repair activities may also require the 
presence of an EBRV at the Port. Such instances may include maintenance 
and repair on the STL Buoy, vessel commissioning, and any onboard 
equipment malfunction or failure occurring while a vessel is present 
for cargo delivery. Because the requested water-use scenario allows for 
daily water use of up to 56 mgd to support standard EBRV requirements 
when not operating in the HRS mode, vessels would be able to remain at 
the Port as necessary to support all such maintenance and repair 
scenarios. Therefore, NMFS considers that NEG Port maintenance and 
repair would have negligible impacts to marine mammal habitat in the 
proposed activity area.

Unanticipated Algonquin Pipeline Lateral Maintenance and Repair

    As stated earlier, proper care and maintenance of the Algonquin 
Pipeline Lateral should minimize the likelihood of an unanticipated 
maintenance and/or repair event; however, unanticipated activities may 
occur from time to time if facility components become damaged or 
malfunction. Unanticipated repairs may range from relatively minor 
activities requiring minimal equipment and one or two diver/ROV support 
vessels to major activities requiring larger construction-type vessels 
similar to those used to support the construction and installation of 
the facility.
    Major repair activities, although unlikely, may include repairing 
or replacement of pipeline manifolds or sections of the Pipeline 
Lateral. This type of work would likely require the use of large 
specialty construction vessels such as those used during the 
construction and installation of the NEG Port and Algonquin Pipeline 
Lateral. The duration of a major unplanned activity would depend upon 
the type of repair work involved and would require careful planning and 
coordination.
    Turbidity would likely be a potential effect of Algonquin Pipeline 
Lateral maintenance and repair activities on listed species. In 
addition, the possible removal of benthic or planktonic species, 
resulting from relatively minor construction vessel water use 
requirements, as measured in comparison to EBRV water use, is unlikely 
to affect in a measurable way the food sources available to marine 
mammals. Thus, any impacts to marine mammal habitat are not expected to 
cause significant or long-term consequences for individual marine 
mammals or their populations.

Proposed Mitigation Measures

    In order to issue an incidental take authorization under section 
101(a)(5)(D) of the MMPA, NMFS must 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. NMFS regulations 
require applicants for incidental take authorizations to include 
information about the availability and feasibility (economic and 
technological) of equipment, methods, and manner of conducting such 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks, their habitat.
    For the proposed NEG LNG Port operations and maintenance and repair 
activities, Excelerate and Tetra Tech worked with NMFS to develop 
mitigation measures to minimize the potential impacts to marine mammal 
populations in the project vicinity as a result of the LNG Port and 
Algonquin Pipeline Lateral operations and maintenance and repair 
activities. The primary purpose of these proposed mitigation measures 
is to ensure that no marine mammal would be injured or killed by 
vessels transiting the LNG Port facility, and to minimize the intensity 
of noise exposure of marine mammals in the activity area. For the 
proposed NEG Port and Algonquin Pipeline Lateral operations and 
maintenance and repair, the following mitigation measures are proposed.
(a) General Marine Mammal Avoidance Measures
    All vessels shall utilize the International Maritime Organization 
(IMO)-approved Boston Traffic Separation Scheme (TSS) on their approach 
to and departure from the NEG Port and/or the repair/maintenance area 
at the earliest practicable point of transit in order to avoid the risk 
of whale strikes.
    Upon entering the TSS and areas where North Atlantic right whales 
are known to occur, including the Great South Channel Seasonal 
Management Area (GSC-SMA) and the Stellwagen Bank National Marine 
Sanctuary (SBNMS), the Energy Bridge Regasification Vessels 
(EBRVTM) shall go into ``Heightened Awareness'' as described 
below.
    (1) Prior to entering and navigating the modified TSS, the Master 
of the vessel shall:
     Consult Navigational Telex (NAVTEX), NOAA Weather Radio, 
the NOAA Right Whale Sighting Advisory System (SAS) or other means to 
obtain current right whale sighting information as well as the most 
recent Cornell acoustic monitoring buoy data for the potential presence 
of marine mammals;
     Post a look-out to visually monitor for the presence of 
marine mammals;
     Provide the US Coast Guard (USCG) required 96-hour 
notification of an arriving EBRV to allow the NEG Port Manager to 
notify Cornell of vessel arrival.
    (2) The look-out shall concentrate his/her observation efforts 
within the 2-mile radius zone of influence (ZOI) from the maneuvering 
EBRV.
    (3) If marine mammal detection was reported by NAVTEX, NOAA Weather 
Radio, SAS and/or an acoustic monitoring buoy, the look-out shall 
concentrate visual monitoring efforts towards the areas of the most 
recent detection.
    (4) If the look-out (or any other member of the crew) visually 
detects a marine mammal within the 2-mile radius ZOI of a maneuvering 
EBRV, he/she will take the following actions:
     The Officer-of-the-Watch shall be notified immediately; 
who shall then relay the sighting information to the Master of the 
vessel to ensure action(s) can be taken to avoid physical contact with 
marine mammals.

[[Page 72694]]

     The sighting shall be recorded in the sighting log by the 
designated look-out.
    In accordance with 50 CFR 224.103(c), all vessels associated with 
NEG Port and Pipeline Lateral activities shall not approach closer than 
500 yards (460 m) to a North Atlantic right whale and 100 yards (91 m) 
to other whales to the extent physically feasible given navigational 
constraints. In addition, when approaching and departing the project 
area, vessels shall be operated so as to remain at least 1 kilometer 
away from any visually-detected North Atlantic right whales.
    In response to active right whale sightings and active acoustic 
detections, and taking into account exceptional circumstances, EBRVs as 
well as repair and maintenance vessels shall take appropriate actions 
to minimize the risk of striking whales. Specifically vessels shall:
    (1) Respond to active right whale sightings and/or Dynamic 
Management Areas (DMAs) reported on the Mandatory Ship Reporting (MSR) 
or SAS by concentrating monitoring efforts towards the area of most 
recent detection and reducing speed to 10 knots or less if the vessel 
is within the boundaries of a DMA or within the circular area centered 
on an area 8 nautical miles (nm) in radius from a sighting location;
    (2) Respond to active acoustic detections by concentrating 
monitoring efforts towards the area of most recent detection and 
reducing speed to 10 knots or less within an area 5 nm in radius 
centered on the detecting auto-detection buoy (AB); and
    (3) Respond to additional sightings made by the designated look-
outs within a 2-mile radius of the vessel by slowing the vessel to 10 
knots or less and concentrating monitoring efforts towards the area of 
most recent sighting.
    All vessels operated under NEG and Algonquin must follow the 
established specific speed restrictions when calling at the NEG Port. 
The specific speed restrictions required for all vessels (i.e., EBRVs 
and vessels associated with maintenance and repair) consist of the 
following:
    (1) Vessels shall reduce their maximum transit speed while in the 
TSS from 12 knots or less to 10 knots or less from March 1 to April 30 
in all waters bounded by straight lines connecting the following points 
in the order stated below unless an emergency situation dictates for an 
alternate speed. This area shall hereafter be referred to as the Off 
Race Point Seasonal Management Area (ORP-SMA) and tracks NMFS 
regulations at 50 CFR 224.105:


42[deg]30' N. 70[deg]30' W.       41[deg]40' N. 69[deg]57' W.
42[deg]30' N. 69[deg]45' W.       42[deg]12' N. 70[deg]15' W.
41[deg]40' N. 69[deg]45' W.       42[deg]12' N. 70[deg]30' W.
42[deg]04.8' N. 70[deg]10' W.     42[deg]30' N. 70[deg]30' W.
 


    (2) Vessels shall reduce their maximum transit speed while in the 
TSS to 10 knots or less unless an emergency situation dictates for an 
alternate speed from April 1 to July 31 in all waters bounded by 
straight lines connecting the following points in the order stated 
below. This area shall hereafter be referred to as the GSC-SMA and 
tracks NMFS regulations at 50 CFR 224.105:


42[deg]30' N. 69[deg]45' W.       41[deg]40' N. 69[deg]45' W.
42[deg]30' N. 67[deg]27' W.       42[deg]30' N. 69[deg]45' W.
42[deg]09' N. 67[deg]08.4' W.     41[deg]00' N. 69[deg]05' W.
 


    (3) Vessels are not expected to transit the Cape Cod Bay or the 
Cape Cod Canal; however, in the event that transit through the Cape Cod 
Bay or the Cape Cod Canal is required, vessels shall reduce maximum 
transit speed to 10 knots or less from January 1 to May 15 in all 
waters in Cape Cod Bay, extending to all shorelines of Cape Cod Bay, 
with a northern boundary of 42[deg]12' N. latitude and the Cape Cod 
Canal. This area shall hereafter be referred to as the Cape Cod Bay 
Seasonal Management Area (CCB-SMA).
    (4) All Vessels transiting to and from the project area 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.
    (5) All Vessels greater than or equal to 300 gross tons (GT) shall 
maintain a speed of 10 knots or less, unless an emergency situation 
requires speeds greater than 10 knots.
    (6) All Vessels less than 300 GT traveling between the shore and 
the project area that are not generally restricted to 10 knots will 
contact the Mandatory Ship Reporting (MSR) system, the USCG, or the 
project site before leaving shore for reports of active DMAs and/or 
recent right whale sightings and, consistent with navigation safety, 
restrict speeds to 10 knots or less within 5 miles (8 kilometers) of 
any sighting location, when traveling in any of the seasonal management 
areas (SMAs) or when traveling in any active DMA.
(b) NEG Port-Specific Operations
    In addition to the general marine mammal avoidance requirements 
identified above, vessels calling on the NEG Port must comply with the 
following additional requirements:
    (1) EBRVs shall travel at 10 knots maximum speed when transiting 
to/from the TSS or to/from the NEG Port/Pipeline Lateral area. For 
EBRVs, at 1.86 miles (3 km) from the NEG Port, speed will be reduced to 
3 knots and to less than 1 knot at 1,640 ft (500 m) from the NEG buoys, 
unless an emergency situation dictates the need for an alternate speed.
    (2) EBRVs that are approaching or departing from the NEG Port and 
are within the Area to be Avoided (ATBA) surrounding the NEG Port, 
shall remain at least 1 km away from any visually-detected North 
Atlantic right whale and at least 100 yards (91 m) away from all other 
visually-detected whales unless an emergency situation requires that 
the vessel stay its course. During EBRV maneuvering, the Vessel Master 
shall designate at least one look-out to be exclusively and 
continuously monitoring for the presence of marine mammals at all times 
while the EBRV is approaching or departing from the NEG Port.
    (3) During NEG Port operations, in the event that a whale is 
visually observed within 1 km of the NEG Port or a confirmed acoustic 
detection is reported on either of the two ABs closest to the NEG Port 
(western-most in the TSS array), departing EBRVs shall delay their 
departure from the NEG Port, unless an emergency situation requires 
that departure is not delayed. This departure delay shall continue 
until either the observed whale has been visually (during daylight 
hours) confirmed as more than 1 km from the NEG Port or 30 minutes have 
passed without another confirmed detection either acoustically within 
the acoustic detection range of the two ABs closest to the NEG Port, or 
visually within 1 km from the NEG Port.
    Vessel captains shall focus on reducing dynamic positioning (DP) 
thruster power to the maximum extent practicable, taking into account 
vessel and Port safety, during the operation activities. Vessel 
captains will shut down thrusters whenever they are not needed.
(c) Planned and Unplanned Maintenance and Repair Activities
NEG Port
    (1) The Northeast Gateway shall conduct empirical source level 
measurements on all noise emitting

[[Page 72695]]

construction equipment and all vessels that are involved in 
maintenance/repair work.
    (2) If DP systems are to be employed and/or activities will emit 
noise with a source level of 139 dB re 1 [mu]Pa at 1 m, activities 
shall be conducted in accordance with the requirements for DP systems 
listed above.
    (3) Northeast Gateway shall provide the NMFS Headquarters Office of 
the Protected Resources, NMFS Northeast Region Ship Strike Coordinator, 
and SBNMS with a minimum of 30 days notice prior to any planned repair 
and/or maintenance activity. For any unplanned/emergency repair/
maintenance activity, Northeast Gateway shall notify the agencies as 
soon as it determines that repair work must be conducted. Northeast 
Gateway shall continue to keep the agencies apprised of repair work 
plans as further details (e.g., the time, location, and nature of the 
repair) become available. A final notification shall be provided to 
agencies 72 hours prior to crews being deployed into the field.
Pipeline Lateral
    (1) Pipeline maintenance/repair vessels less than 300 GT traveling 
between the shore and the maintenance/repair area that are not 
generally restricted to 10 knots shall contact the MSR system, the 
USCG, or the project site before leaving shore for reports of active 
DMAs and/or recent right whale sightings and, consistent with 
navigation safety, restrict speeds to 10 knots or less within 5 miles 
(8 km) of any sighting location, when travelling in any of the seasonal 
management areas (SMAs) as defined above.
    (2) Maintenance/repair vessels greater than 300 GT shall not exceed 
10 knots, unless an emergency situation that requires speeds greater 
than 10 knots.
    (3) Planned maintenance and repair activities shall be restricted 
to the period between May 1 and November 30 when most of the majority 
of North Atlantic right whales are absent in the area.
    (4) Unplanned/emergency maintenance and repair activities shall be 
conducted utilizing anchor-moored dive vessel whenever operationally 
possible.
    (5) Algonquin shall also provide the NMFS Office of the Protected 
Resources, NMFS Northeast Region Ship Strike Coordinator, and SBNMS 
with a minimum of 30-day notice prior to any planned repair and/or 
maintenance activity. For any unplanned/emergency repair/maintenance 
activity, Northeast Gateway shall notify the agencies as soon as it 
determines that repair work must be conducted. Algonquin shall continue 
to keep the agencies apprised of repair work plans as further details 
(e.g., the time, location, and nature of the repair) become available. 
A final notification shall be provided to agencies 72 hours prior to 
crews being deployed into the field.
    (6) If DP systems are to be employed and/or activities will emit 
noise with a source level of 139 dB re 1 [mu]Pa at 1 m, activities 
shall be conducted in accordance with the requirements for DP systems 
listed in (5)(b)(ii).
    (7) In the event that a whale is visually observed within 0.5 mile 
(0.8 kilometers) of a repair or maintenance vessel, the vessel 
superintendent or on-deck supervisor shall be notified immediately. The 
vessel's crew shall be put on a heightened state of alert and the 
marine mammal shall be monitored constantly to determine if it is 
moving toward the repair or maintenance area.
    (8) Repair/maintenance vessel(s) must cease any movement and/or 
cease all activities that emit noises with source level of 139 dB re 1 
[mu]Pa @ 1 meter or higher when a right whale is sighted within or 
approaching at 500 yards (457 meters) from the vessel. The source level 
of 139 dB corresponds to 120 dB received level at 500 yards (457 
meters). Repair and maintenance work may resume after the marine mammal 
is positively reconfirmed outside the established zones (500 yards [457 
meters]) or 30 minutes have passed without a redetection. Any vessels 
transiting the maintenance area, such as barges or tugs, must also 
maintain these separation distances.
    (9) Repair/maintenance vessel(s) must cease any movement and/or 
cease all activities that emit noises with source level of 139 dB re 1 
[mu]Pa @ 1 meter or higher when a marine mammal other than a right 
whale is sighted within or approaching at 100 yards (91 meters) from 
the vessel. Repair and maintenance work may resume after the marine 
mammal is positively reconfirmed outside the established zones (100 
yards [91 meters]) or 30 minutes have passed without a redetection. Any 
vessels transiting the maintenance area, such as barges or tugs, must 
also maintain these separation distances.
    (10) Algonquin and associated contractors shall also comply with 
the following:
     Operations involving excessively noisy equipment (source 
level exceeding 139 dB re 1[mu]Pa @ 1 meter) shall ``ramp-up'' sound 
sources, allowing whales a chance to leave the area before sounds reach 
maximum levels. In addition, Northeast Gateway, Algonquin, and other 
associated contractors shall maintain equipment to manufacturers' 
specifications, including any sound-muffling devices or engine covers 
in order to minimize noise effects. Noisy construction equipment shall 
only be used as needed and equipment shall be turned off when not in 
operation.
     Any material that has the potential to entangle marine 
mammals (e.g., anchor lines, cables, rope or other construction debris) 
shall only be deployed as needed and measures shall be taken to 
minimize the chance of entanglement.
     For any material that has the potential to entangle marine 
mammals, such material shall be removed from the water immediately 
unless such action jeopardizes the safety of the vessel and crew as 
determined by the Captain of the vessel.
     In the event that a marine mammal becomes entangled, the 
marine mammal coordinator and/or protected species observer (PSO) will 
notify NMFS (if outside the SBNMS), and SBNMS staff (if inside the 
SBNMS) immediately so that a rescue effort may be initiated.
    (11) All maintenance/repair activities shall be scheduled to occur 
between May 1 and November 30; however, in the event of unplanned/
emergency repair work that cannot be scheduled during the preferred May 
through November work window, the following additional measures shall 
be followed for Pipeline Lateral maintenance and repair related 
activities between December and April:
     Between December 1 and April 30, if on-board PSOs do not 
have at least 0.5-mile visibility, they shall call for a shutdown. 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.
     Prior to leaving the dock to begin transit, the barge 
shall contact one of the PSOs on watch to receive an update of 
sightings within the visual observation area. If the PSO has observed a 
North Atlantic right whale within 30 minutes of the transit start, the 
vessel shall hold for 30 minutes and again get a clearance to leave 
from the PSOs on board. PSOs shall assess whale activity and visual 
observation ability at the time of the transit request to clear the 
barge for release.
     Transit route, destination, sea conditions and any marine 
mammal sightings/mitigation actions during watch shall be recorded in 
the log book. Any whale sightings within 1,000 meters of the vessel 
shall result in a high alert and slow speed of 4 knots or

[[Page 72696]]

less and a sighting within 750 meters shall result in idle speed and/or 
ceasing all movement.
     The material barges and tugs used in repair and 
maintenance shall transit from the operations dock to the work sites 
during daylight hours when possible provided the safety of the vessels 
is not compromised. Should transit at night be required, the maximum 
speed of the tug shall be 5 knots.
     All repair vessels must maintain a speed of 10 knots or 
less during daylight hours.
    All vessels shall operate at 5 knots or less at all times within 5 
km of the repair area.
Acoustic Monitoring Related Activities
    Vessels associated with maintaining the AB network operating as 
part of the mitigation/monitoring protocols shall adhere to the 
following speed restrictions and marine mammal monitoring requirements.
    (1) In accordance with 50 CFR 224.103 (c), all vessels associated 
with NEG Port activities shall not approach closer than 500 yards (460 
meters) to a North Atlantic right whale.
    (2) All vessels shall obtain the latest DMA or right whale sighting 
information via the NAVTEX, MSR, SAS, NOAA Weather Radio, or other 
available means prior to operations.

Mitigation Conclusions

    NMFS has carefully evaluated the applicant's proposed mitigation 
measures in the context of ensuring that NMFS prescribes the means of 
effecting the least practicable impact on the affected marine mammal 
species and stocks and their habitat. Our evaluation of potential 
measures included consideration of the following factors in relation to 
one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals.
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned.
     The practicability of the measure for applicant 
implementation.
    Any mitigation measure(s) prescribed by NMFS should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    (1) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    (2) A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to received 
levels of pile driving and pile removal or other activities expected to 
result in the take of marine mammals (this goal may contribute to 1, 
above, or to reducing harassment takes only).
    (3) A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to received 
levels of pile driving, or other activities expected to result in the 
take of marine mammals (this goal may contribute to a, above, or to 
reducing the severity of harassment takes only).
    (4) Avoidance or minimization of adverse effects to marine mammal 
habitat, paying special attention to the food base, activities that 
block or limit passage to or from biologically important areas, 
permanent destruction of habitat, or temporary destruction/disturbance 
of habitat during a biologically important time.
    (5) For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on our evaluation of the applicant's proposed measures that 
include vessel speed reduction, noise level related shutdown measures, 
and ramping up procedures, NMFS has preliminarily determined that the 
proposed mitigation measures provide the means of effecting the least 
practicable impact on marine mammals species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance.

Proposed Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must 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 IHAs 
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 proposed action area. 
Tetra Tech submitted a marine mammal monitoring plan as part of the IHA 
application. It can be found at https://www.nmfs.noaa.gov/pr/permits/incidental.htm. The plan may be modified or supplemented based on 
comments or new information received from the public during the public 
comment period.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    (1) An increase in the probability of detecting marine mammals, 
both within the mitigation zone (thus allowing for more effective 
implementation of the mitigation) and in general to generate more data 
to contribute to the analyses mentioned below;
    (2) An increase in our understanding of how many marine mammals are 
likely to be exposed to levels of pile driving that we associate with 
specific adverse effects, such as behavioral harassment, TTS, or PTS;
    (3) An increase in our understanding of how marine mammals respond 
to stimuli expected to result in take and how anticipated adverse 
effects on individuals (in different ways and to varying degrees) may 
impact the population, species, or stock (specifically through effects 
on annual rates of recruitment or survival) through any of the 
following methods:
    [ssquf] Behavioral observations in the presence of stimuli compared 
to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
    [ssquf] Physiological measurements in the presence of stimuli 
compared to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
    [ssquf] Distribution and/or abundance comparisons in times or areas 
with concentrated stimuli versus times or areas without stimuli;
    (4) An increased knowledge of the affected species; and
    (5) An increase in our understanding of the effectiveness of 
certain mitigation and monitoring measures.

Proposed Monitoring Measures

(a) Vessel-Based Visual Monitoring
    Vessel-based monitoring for marine mammals shall be done by trained 
look-outs during NEG LNG Port and Pipeline Lateral operations and 
maintenance and repair activities. The observers shall monitor the 
occurrence of marine mammals near the vessels during LNG Port and 
Pipeline Lateral related activities. Lookout duties include watching 
for and identifying marine mammals; recording their numbers, distances, 
and reactions to the activities; and documenting ``take by 
harassment.'' The vessel look-outs assigned to visually monitor for the 
presence of

[[Page 72697]]

marine mammals shall be provided with the following:
    (1) Recent NAVTEX, NOAA Weather Radio, SAS and/or acoustic 
monitoring buoy detection data;
    (2) Binoculars to support observations;
    (3) Marine mammal detection guide sheets; and
    (4) Sighting log.
(b) NEG LNG Port Operations
    All individuals onboard the EBRVs responsible for the navigation 
duties and any other personnel that could be assigned to monitor for 
marine mammals shall receive training on marine mammal sighting/
reporting and vessel strike avoidance measures.
    While an EBRV is navigating within the designated TSS, there shall 
be three people with look-out duties on or near the bridge of the ship 
including the Master, the Officer-of-the-Watch and the Helmsman-on-
watch. In addition to the standard watch procedures, while the EBRV is 
transiting within the designated TSS, maneuvering within the ATBA, and/
or while actively engaging in the use of thrusters, an additional look-
out shall be designated to exclusively and continuously monitor for 
marine mammals.
    All sightings of marine mammals by the designated look-out, 
individuals posted to navigational look-out duties, and/or any other 
crew member while the EBRV is transiting within the TSS, maneuvering 
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. The Master or Officer-of-the-Watch shall ensure 
the required reporting procedures are followed and the designated 
marine mammal look-out records all pertinent information relevant to 
the sighting.
    Visual sightings made by look-outs from the EBRVs shall be recorded 
using a standard sighting log form. Estimated locations shall be 
reported for each individual and/or group of individuals categorized by 
species when known. This data shall be entered into a database and a 
summary of monthly sighting activity shall be provided to NMFS. 
Estimates of take and copies of these log sheets shall also be included 
in the reports to NMFS.
(c) Planned and Unplanned Maintenance and Repair
    Two qualified and NMFS-approved PSOs shall be assigned to each 
vessel that will use DP systems during maintenance and repair related 
activities. PSOs shall operate individually in designated shifts to 
accommodate adequate rest schedules. Additional PSOs shall be assigned 
to additional vessels if AB data indicates that sound levels exceed 120 
dB re 1 [micro]Pa, further then 100 meters (328 feet) from these 
vessels.
    All PSOs shall receive NMFS-approved marine mammal observer 
training and be approved in advance by NMFS after review of their 
resume. All PSOs shall have direct field experience on marine mammal 
vessels and/or aerial surveys in the Atlantic Ocean/Gulf of Mexico.
    PSOs (one primary and one secondary) shall be 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 also assist with identification. Both PSOs shall have 
responsibility for monitoring for the presence of marine mammals and 
sea turtles. Specifically PSO's shall:
    (1) Monitor at all hours of the day, scanning the ocean surface by 
eye for a minimum of 40 minutes every hour.
    (2) Monitor the area where maintenance and repair work is conducted 
beginning at daybreak using 25x power binoculars and/or hand-held 
binoculars. Night vision devices must be provided as standard equipment 
for monitoring during low-light hours and at night.
    (3) Conduct general 360[deg] visual monitoring during any given 
watch period and target scanning by the observer shall occur when 
alerted of a whale presence.
    (4) Alert the vessel superintendent or construction crew supervisor 
of visual detections within 2 miles (3.31 kilometers) immediately.
    (5) Record all sightings on marine mammal field sighting logs. 
Specifically, all data shall be entered at the time of observation, 
notes of activities will be kept, and a daily report prepared and 
attached to the daily field sighting log form. The basic reporting 
requirements include the following:
     Beaufort sea state;
     Wind speed;
     Wind direction;
     Temperature;
     Precipitation;
     Glare;
     Percent cloud cover;
     Number of animals;
     Species;
     Position;
     Distance;
     Behavior;
     Direction of movement; and
     Apparent reaction to construction activity.
    In the event that a whale is visually observed within the 2-mile 
(3.31-kilometers) zone of influence (ZOI) of a DP vessel or other 
construction vessel that has shown to emit noise with source level in 
excess of 139 dB re 1 [micro]Pa @ 1 m, the PSO will notify the repair/
maintenance construction crew to minimize the use of thrusters until 
the animal has moved away, unless there are divers in the water or an 
ROV is deployed.
(d) Acoustic Monitoring
    Northeast Gateway shall deploy 10 ABs within the Separation Zone of 
the TSS for the operational life of the Project. The ABs shall be used 
to detect a calling North Atlantic right whale an average of 5 nm from 
each AB. The AB system shall be the primary detection mechanism that 
alerts the EBRV Master to the occurrence of right whales, heightens 
EBRV awareness, and triggers necessary mitigation actions as described 
above. Northeast Gateway shall conduct short-term passive acoustic 
monitoring to document sound levels during:
    (1) The initial operational events in the 2015-2016 winter heating 
season;
    (2) Regular deliveries outside the winter heating season should 
such deliveries occur; and
    (3) Scheduled and unscheduled maintenance and repair activities.
    Northeast Gateway shall conduct long-term monitoring of the noise 
environment in Massachusetts Bay in the vicinity of the NEG Port and 
Pipeline Lateral using marine autonomous recording units (MARUs) when 
there is anticipated to be more than 5 LNG shipments in a 30-day period 
or over 20 shipments in a six-month period.
    The acoustic data collected shall be analyzed to document the 
seasonal occurrences and overall distributions of whales (primarily 
fin, humpback and right whales) within approximately 10 nm of the NEG 
Port and shall measure and document the noise ``budget'' of 
Massachusetts Bay so as to eventually assist in determining whether or 
not an overall increase in noise in the Bay associated with the Project 
might be having a potentially negative impact on marine mammals.
    Northeast Gateway shall make all acoustic data, including data 
previously collected by the MARUs during prior construction, 
operations, and maintenance and repair activities, available to NOAA. 
Data storage will be the responsibility of NOAA.

[[Page 72698]]

(e) Acoustic Whale Detection and Response Plan

NEG Port Operations

    (1) Ten ABs that have been deployed since 2007 shall be used to 
continuously screen the low-frequency acoustic environment (less than 
1,000 Hertz) for right whale contact calls occurring within an 
approximately 5-nm radius from each buoy (the AB's detection range).
    (2) Once a confirmed detection is made, the Master of any EBRVs 
operating in the area will be alerted immediately.
    NEG Port and Pipeline Lateral Planned and Unplanned/Emergency 
Repair and Maintenance Activities
    (1) If the repair/maintenance work is located outside of the 
detectible range of the 10 project area ABs, Northeast Gateway and 
Algonquin shall consult with NOAA (NMFS and SBNMS) to determine if the 
work to be conducted warrants the temporary installation of an 
additional AB(s) to help detect and provide early warnings for 
potential occurrence of right whales in the vicinity of the repair 
area.
    (2) The number of ABs installed around the activity site 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.
    (3) Should acoustic monitoring be deemed necessary during a planned 
or unplanned/emergency repair and/or maintenance event, active 
monitoring for right whale calls shall begin 24 hours prior to the 
start of activities.
    (4) Source level data from the acoustic recording units deployed in 
the NEG Port and/or Pipeline Lateral maintenance and repair area shall 
be provided to NMFS.

Proposed Reporting Measures

    (a) Throughout NEG Port and Pipeline Lateral operations, Northeast 
Gateway and Algonquin shall provide a monthly Monitoring Report. The 
Monitoring Report shall include:
     Both copies of the raw visual EBRV lookout sighting 
information of marine mammals that occurred within 2 miles of the EBRV 
while the vessel transits within the TSS, maneuvers within the ATBA, 
and/or when actively engaging in the use of thrusters, and a summary of 
the data collected by the look-outs over each reporting period.
     Copies of the raw PSO sightings information on marine 
mammals gathered during pipeline repair or maintenance activities. This 
visual sighting data shall then be correlated to periods of thruster 
activity to provide estimates of marine mammal takes (per species/
species class) that took place during each reporting period.
     Conclusion of any planned or unplanned/emergency repair 
and/or maintenance period, a report shall be submitted to NMFS 
summarizing the repair/maintenance activities, marine mammal sightings 
(both visual and acoustic), empirical source-level measurements taken 
during the repair work, and any mitigation measures taken.
    (b) During the maintenance and repair of NEG Port and Pipeline 
Lateral components, weekly status reports shall be provided to NOAA 
(both NMFS and SBNMS) using standardized reporting forms. The weekly 
reports shall include data collected for each distinct marine mammal 
species observed in the repair/maintenance area during the period that 
maintenance and repair activities were taking place. The weekly reports 
shall include the following information:
     Location (in longitude and latitude coordinates), time, 
and the nature of the maintenance and repair activities;
     Indication of whether a DP system was operated, and if so, 
the number of thrusters being 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 
maintenance and repair activities;
     Changes, if any, in marine mammal behaviors during the 
observation;
     A description of any mitigation measures (power-down, 
shutdown, etc.) implemented;
     Weather condition (Beaufort sea state, wind speed, wind 
direction, ambient temperature, precipitation, and percent cloud cover 
etc.);
     Condition of the observation (visibility and glare); and
     Details of passive acoustic detections and any action 
taken in response to those detections.
(d) Injured/Dead Protected Species Reporting
    In the unanticipated event that survey operations clearly cause the 
take of a marine mammal in a manner prohibited by the proposed IHA, 
such as an injury (Level A harassment), serious injury or mortality 
(e.g., ship-strike, gear interaction, and/or entanglement), NEG and/or 
Algonquin shall immediately cease activities and immediately report the 
incident to the Supervisor of the Incidental Take Program, Permits and 
Conservation Division, Office of Protected Resources, NMFS and the 
Northeast Regional Stranding Coordinators. The report must include the 
following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     The name and type of vessel involved;
     The vessel's speed during and leading up to the incident;
     Description of the incident;
     Status of all sound source use in the 24 hours preceding 
the incident;
     Water depth;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
     Description of marine mammal observations in the 24 hours 
preceding the incident;
     Species identification or description of the animal(s) 
involved;
     The fate of the animal(s); and
     Photographs or video footage of the animal (if equipment 
is available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS shall work with NEG and/or 
Algonquin to determine what is necessary to minimize the likelihood of 
further prohibited take and ensure Marine Mammal Protection Act (MMPA) 
compliance. NEG and/or Algonquin may not resume their activities until 
notified by NMFS via letter, email, or telephone.
    In the event that NEG and/or Algonquin discovers an injured or dead 
marine mammal, and the lead PSO determines that the cause of the injury 
or death is unknown and the death is relatively recent (i.e., in less 
than a moderate state of decomposition as described in the next 
paragraph), NEG and/or Algonquin will immediately (i.e., within 24 
hours of the discovery) report the incident to the Supervisor of the 
Incidental Take Program, Permits and Conservation Division, Office of 
Protected Resources, NMFS, and the NMFS Northeast Stranding 
Coordinators. The report must include the same information identified 
above. Activities may continue while NMFS reviews the circumstances of 
the incident. NMFS will work with NEG and/or Algonquin to determine 
whether modifications in the activities are appropriate.
    In the event that NEG or Algonquin discovers an injured or dead 
marine mammal, and the lead PSO determines that the injury or death is 
not associated with or related to the activities authorized (if the IHA 
is issued) (e.g., previously wounded animal, carcass with moderate to 
advanced decomposition, or scavenger damage), NEG and/or Algonquin 
shall report the

[[Page 72699]]

incident to the Supervisor of the Incidental Take Program, Permits and 
Conservation Division, Office of Protected Resources, NMFS, and the 
NMFS Northeast Stranding Coordinators, within 24 hours of the 
discovery. NEG and/or Algonquin shall provide photographs or video 
footage (if available) or other documentation of the stranded animal 
sighting to NMFS and the Marine Mammal Stranding Network. NEG and/or 
Algonquin can continue its operations under such a case.

Marine Mammal Monitoring Report From Previous IHA

    Prior marine mammal monitoring during NEG's LNG Port and Algonquin 
Pipeline Lateral operation, maintenance and repair activities and 
monthly marine mammal observation memorandums (NEG 2010; 2015) indicate 
that only a small number of marine mammals were observed during these 
activities. Only one LNG Port operation occurred within the dates of 
the current IHA (December 22, 2014 through December 21, 2015) and no 
marine mammal was observed during the LNG Port operation period on 
December 31, 2014. No other NEG Port and Pipeline Lateral related 
activity occurred during this period.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment]. Only take by Level B harassment is 
anticipated as a result of NEG's operation and maintenance and repair 
activities. Anticipated take of marine mammals is associated with 
operation of dynamic positioning during the docking of the LNG vessels 
and positioning of maintenance and dive vessels, and by operations of 
certain machinery during maintenance and repair activities. The 
regasification process itself is an activity that does not rise to the 
level of taking, as the modeled source level for this activity is 108 
dB. Certain species may have a behavioral reaction to the sound emitted 
during the activities. Hearing impairment is not anticipated. 
Additionally, vessel strikes are not anticipated, especially because of 
the speed restriction measures that are proposed that were described 
earlier in this document.
    The full suite of potential impacts to marine mammals was described 
in detail in the ``Potential Effects of the Specified Activity on 
Marine Mammals'' section found earlier in this document. The potential 
effects of sound from the proposed NEG and Algonquin LNG Port and 
Pipeline Lateral operations, maintenance and repair activities might 
include one or more of the following: masking of natural sounds and 
behavioral disturbance (Richardson et al. 1995). As discussed earlier 
in this document, the most common impact will likely be from behavioral 
disturbance, including avoidance of the ensonified area or changes in 
speed, direction, and/or diving profile of the animal. For reasons 
discussed previously in this document, hearing impairment (TTS and PTS) 
is highly unlikely to occur based on low noise source levels from the 
proposed activities that would preclude marine mammals from being 
exposed to noise levels high enough to cause hearing impairment.
    For non-pulse sounds, such as those produced by operating dynamic 
positioning (DP) thruster during vessel docking and supporting 
underwater construction and repair activities and the operations of 
various machineries that produces non-pulse noises, NMFS uses the 120 
dB (rms) re 1 [mu]Pa isopleth to indicate the onset of Level B 
harassment.

NEG Port and Algonquin Pipeline Lateral Activities Acoustic Footprints

I. NEG Port Operations
    For the purposes of understanding the noise footprint of operations 
at the NEG Port, measurements taken to capture operational noise 
(docking, undocking, regasification, and EBRV thruster use) during the 
2006 Gulf of Mexico field event were taken at the source. Measurements 
taken during EBRV transit were normalized to a distance of 328 feet 
(100 meters) to serve as a basis for modeling sound propagation at the 
NEG Port site in Massachusetts Bay.
    Sound propagation calculations for operational activities were then 
completed at two positions in Massachusetts Bay to determine site-
specific distances to the 120/160/180 dB isopleths:

 Operations Position 1--Port (EBRV Operations): 70[deg]36.261' 
W. and 42[deg]23.790' N.
 Operations Position 2--Boston TSS (EBRV Transit): 
70[deg]17.621' W. and 42[deg]17.539' N.

    At each of these locations sound propagation calculations were 
performed to determine the noise footprint of the operation activity at 
each of the specified locations. Updated acoustic modeling was 
completed using Tetra Tech's underwater sound propagation program which 
utilizes a version of the publicly available Range Dependent Acoustic 
Model (RAM). Based on the U.S. Navy's Standard Split-Step Fourier 
Parabolic Equation, this modeling methodology considers range and depth 
along with a geo-referenced dataset to automatically retrieve the time 
of year information, bathymetry, and seafloor geoacoustic properties 
along the given propagation transects radiating from the sound source. 
The calculation methodology assumes that outgoing energy dominates over 
scattered energy, and computes the solution for the outgoing wave 
equation. An approximation is used to provide two-dimensional 
transmission loss values in range and depth, i.e., computation of the 
transmission loss as a function of range and depth within a given 
radial plane is carried out independently of neighboring radials, 
reflecting the assumption that sound propagation is predominantly away 
from the source. Transects were run along compass points at angular 
directions ranging from 0 to 360[deg] in 5 degree increments. The 
received underwater sound levels at any location within the region of 
interest are computed from the \1/3\-octave band source levels by 
subtracting the numerically modelled transmission loss at each \1/3\-
octave band center frequency and summing across all frequencies to 
obtain a broadband value. The resultant underwater sound pressure 
levels to the 120 dB isopleth is presented in Table 2.

[[Page 72700]]



 Table 2--Radii of 120-dB SPL Isopleths From NEG and Algonquin LNG Port
   and Pipeline Lateral Operations, Maintenance, and Repair Activities
------------------------------------------------------------------------
                                   Radius to 120-dB    120-dB ensonified
           Activities                  zone (m)          area (km\2\)
------------------------------------------------------------------------
One EBRV docking procedure with                4,250                56.8
 support vessel.................
Barge/tug (pulling & pushing)/                 3,500                40.7
 construction vessel/barge @ mid-
 pipeline.......................
------------------------------------------------------------------------

II. NEG Port Maintenance and Repair
    Modeling analysis conducted for the construction of the NEG Port 
concluded that the only underwater noise of critical concern during NEG 
Port construction would be from vessel noises such as turning screws, 
engine noise, noise of operating machinery, and thruster use. To 
confirm these modeled results and better understand the noise footprint 
associated with construction activities at the NEG Port, field 
measurements were taken of various construction activities during the 
2007 NEG Port and Algonquin Pipeline Lateral Construction period. 
Measurements were taken and normalized as described to establish the 
``loudest'' potential construction measurement event. One position 
within Massachusetts Bay was then used to determine site-specific 
distances to the 120/180 dB isopleths for NEG Port maintenance and 
repair activities:

 Construction Position 1. Port: 70[deg]36.261' W. and 
42[deg]23.790' N.
    Sound propagation calculations were performed to determine the 
noise footprint of the construction activity. The results showed that 
the estimated distance from the loudest source involved in construction 
activities fell to 120 dB re 1 [micro]Pa at a distance of 3,500 m.
III. Algonquin Pipeline Lateral Operation and Maintenance Activities
    Modeling analysis conducted during the NEG Port and Pipeline 
Lateral construction concluded that the only underwater noise of 
critical concern during such activities would be from vessel noises 
such as turning screws, engine noise, noise of operating machinery, and 
thruster use. As with construction noise at the NEG Port, to confirm 
modeled results and better understand the noise footprint associated 
with construction activities along the Algonquin Pipeline Lateral, 
field measurements were taken of various construction activities during 
the 2007 NEG Port and Algonquin Pipeline Lateral construction period. 
Measurements were taken and normalized to establish the ``loudest'' 
potential construction measurement event. Two positions within 
Massachusetts Bay were then used to determine site-specific distances 
to the 120/160/180 dB isopleths:

 Construction Position 2. PLEM: 70[deg]46.755' W. and 
42[deg]28.764' N.
 Construction Position 3. Mid-Pipeline: 70[deg]40.842' W. and 
42[deg]31.328' N.

    Sound propagation calculations were performed to determine the 
noise footprint of the construction activity. The results of the 
distances to the 120-dB are shown in Table 2.
    The basis for Northeast Gateway and Algonquin's ``take'' estimate 
is the number of marine mammals that would be exposed to sound levels 
in excess of 120-dB, which is the threshold used by NMFS for non-pulse 
sounds. For the NEG LNG Port and Algonquin Pipeline Lateral operations 
and maintenance and repair activities, the take estimates are 
determined by multiplying the 120-dB ensonified area by local marine 
mammal density estimates, and then multiplying by the estimated dates 
such activities would occur during a year-long period. For the NEG Port 
operations, the 120-dB ensonified area is 56.8 km\2\ for a single visit 
during docking when running DP system. Although two EBRV docking with 
simultaneous DP system running was modeled, this situation would not 
occur in reality. For NEG Port and Algonquin Pipeline Lateral 
maintenance and repair activities, modeling based on the empirical 
measurements showed that the distance of the 120-dB radius is expected 
to be 3.5 km, making a maximum 120-dB ZOI of approximately 40.7 km\2\.
    Since the issuance of an IHA to NEG on December 19, 2014, there was 
only one LNG delivery at the NEG Port which occurred on December 31, 
2014. NEG expects that when the Port is under full operation, it will 
receive up to 65 LNG shipments per year, and would require 14 days for 
NEG Port maintenance and up to 40 days for planned and unplanned 
Algonquin Pipeline Lateral maintenance and repair.

Marine Mammal Take Estimates

    NMFS recognizes that baleen whale species other than North Atlantic 
right whales have been sighted in the project area from May to 
November. However, the occurrence and abundance of fin, humpback, and 
minke whales is not well documented within the project area. 
Nonetheless, NMFS uses the data on cetacean distribution within 
Massachusetts Bay, such as those published by the National Centers for 
Coastal Ocean Science (NCCOS 2006), to estimate potential takes of 
marine mammals species in the vicinity of project area.
    The NCCOS study used cetacean sightings from two sources: (1) The 
North Atlantic Right Whale Consortium (NARWC) sightings database held 
at the University of Rhode Island (Kenney, 2001); and (2) the Manomet 
Bird Observatory (MBO) database, held at NMFS Northeast Fisheries 
Science Center (NEFSC). The NARWC data contained survey efforts and 
sightings data from ship and aerial surveys and opportunistic sources 
between 1970 and 2005. The main data contributors included: Cetacean 
and Turtles Assessment Program (CETAP), Canadian Department of 
Fisheries and Oceans, PCCS, International Fund for Animal Welfare, 
NOAA's NEFSC, New England Aquarium, Woods Hole Oceanographic 
Institution, and the University of Rhode Island. A total of 653,725 km 
(406,293 mi) of survey track and 34,589 cetacean observations were 
provisionally selected for the NCCOS study in order to minimize bias 
from uneven allocation of survey effort in both time and space. The 
sightings-per-unit-effort (SPUE) was calculated for all cetacean 
species by month covering the southern Gulf of Maine study area, which 
also includes the project area (NCCOS, 2006).
    The MBO's Cetacean and Seabird Assessment Program (CSAP) was 
contracted from 1980 to 1988 by NMFS NEFSC to provide an assessment of 
the relative abundance and distribution of cetaceans, seabirds, and 
marine turtles in the shelf waters of the northeastern United States 
(MBO, 1987). The CSAP program was designed to be completely compatible 
with NMFS NEFSC databases so that marine mammal data could be compared 
directly with fisheries data throughout the time series during which 
both types of information were gathered. A total of 5,210 km (8,383 mi) 
of survey distance and 636 cetacean observations from the MBO data were 
included in the NCCOS

[[Page 72701]]

analysis. Combined valid survey effort for the NCCOS studies included 
567,955 km (913,840 mi) of survey track for small cetaceans (dolphins 
and porpoises) and 658,935 km (1,060,226 mi) for large cetaceans 
(whales) in the southern Gulf of Maine. The NCCOS study then combined 
these two data sets by extracting cetacean sighting records, updating 
database field names to match the NARWC database, creating geometry to 
represent survey tracklines and applying a set of data selection 
criteria designed to minimize uncertainty and bias in the data used.
    Owing to the comprehensiveness and total coverage of the NCCOS 
cetacean distribution and abundance study, NMFS calculated the 
estimated take number of marine mammals based on the most recent NCCOS 
report published in December 2006. A summary of seasonal cetacean 
distribution and abundance in the project area is provided in the 2013 
Federal Register notice for the proposed IHA (78 FR 69049; November 18, 
2013). For a detailed description and calculation of the cetacean 
abundance data and SPUE, please refer to the NCCOS study (NCCOS, 2006). 
These data show that the relative abundance of North Atlantic right, 
fin, humpback, minke, sei, and pilot whales, and Atlantic white-sided 
dolphins for all seasons, as calculated by SPUE in number of animals 
per kilometer, is 0.0082, 0.0097, 0.0118, 0.0059, 0.0084, 0.0407, and 
0.1314 n/km, respectively.
    In calculating the area density of these species from these linear 
density data, NMFS used 0.5 mi (0.825 km) as the hypothetical strip 
width (W). This strip width is based on the distance of visibility used 
in the NARWC data that was part of the NCCOS (2006) study. However, 
those surveys used a strip transect instead of a line transect 
methodology. Therefore, in order to obtain a strip width, one must 
divide the visibility or transect value in half. A 0.825 km 
hypothetical strip width was chosen for density calculation, which 
roughly equals to 0.5 mi as half the distance of the radius for visual 
monitoring. The hypothetical strip width used in the analysis is less 
than half of that derived from the NARWC data. Therefore, the analysis 
provided here is more protective in calculating marine mammal densities 
in the area. Based on this information, the area density (D) of these 
species in the project area can be obtained by the following formula:

D = SPUE/2W

    where D is marine mammal density in the area, and W is the strip 
width. For example, the take calculation for the North Atlantic 
right whale is:

0.0082/(2*0.825)*(65*56.8+14*40.7+40*40.7) = 29.

    Based on this calculation method, the estimated take numbers per 
year for North Atlantic right, fin, humpback, sei, minke, and pilot 
whales, and Atlantic white-sided dolphins by the NEG Port facility 
operations (maximum 65 visits per year), NEG Port maintenance and 
repair (up to 14 days per year), and Algonquin Pipeline Lateral 
operation and maintenance (up to 40 days per year), are 29, 35, 42, 30, 
21, 145, and 469, respectively (Table 3). Since it is very likely that 
individual animals could be ``taken'' by harassment multiple times, 
these percentages are the upper boundary of the animal population that 
could be affected. The actual number of individual animals being 
exposed or taken would likely be far less. There is no danger of 
injury, death, or hearing impairment from the exposure to these noise 
levels.

  Table 3--Estimated Annual Takes of Marine Mammals From the NEG Port and Algonquin Pipeline Lateral Operations
                           and Maintenance and Repair Activities in Massachusetts Bay
----------------------------------------------------------------------------------------------------------------
                                                                       Number of
                Species                       Population/stock           takes              % Population
----------------------------------------------------------------------------------------------------------------
Right whale............................  Western Atlantic.........              29  6.29
Fin whale..............................  Western North Atlantic...              35  2.14
Humpback whale.........................  Gulf of Maine............              42  5.12
Sei whale..............................  Nova Scotia..............              30  8.40
Minke whale............................  Canadian East Coast......              21  0.10
Long-finned pilot whale................  Western North Atlantic...             145  0.67
Atlantic white-sided dolphin...........  Western North Atlantic...             469  0.96
Bottlenose dolphin.....................  Western North Atlantic                 20  0.17
                                          Southern Migratory.
Short-beaked common dolphin............  Western North Atlantic...              40  0.02
Risso's dolphin........................  Western North Atlantic...              40  0.22
Killer whale...........................  Western North Atlantic...              10  Unknown *
Harbor porpoise........................  Gulf of Maine/Bay of                   20  0.03
                                          Fundy.
Harbor seal............................  Western North Atlantic...              60  0.08
Gray seal..............................  Western North Atlantic...              30  Unknown *
----------------------------------------------------------------------------------------------------------------
* Killer whale and gray seal abundance information is not available.

    In addition, bottlenose dolphins, common dolphins, killer whales, 
Risso's dolphins, harbor porpoises, harbor seals, and gray seals could 
also be taken by Level B harassment as a result of deepwater NEG Port 
and Algonquin Pipeline Lateral operations and maintenance and repair. 
Since these species are less likely to occur in the area, and there are 
no density estimates specific to this particular area, NMFS based their 
sighting occurrence in the vicinity of the project area (SBNMS 2015). 
Therefore, NMFS estimates that up to approximately 20 bottlenose 
dolphins, 40 short-beaked common dolphins, 40 Risso's dolphins, 10 
killer whales, 20 harbor porpoises, 60 harbor seals, and 30 gray seals 
could be exposed to continuous noise at or above 120 dB re 1 [micro]Pa 
rms incidental to operations during the one year period of the IHA, 
respectively. Since no population/stock estimates for killer whale and 
gray seal is available, the percentage of estimated takes for these 
species is unknown. Nevertheless, since Massachusetts Bay represents 
only a small fraction of the western North Atlantic basin where these 
animals occur NMFS has preliminarily determined that the takes of 10 
killer whales and 30 gray seals represent a small fraction of the 
population and stocks of these species (Table 3).

[[Page 72702]]

Analysis and Preliminary Determinations

Negligible Impact

    Negligible impact is ``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'' (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of Level B harassment takes, 
alone, is not enough information on which to base an impact 
determination. In addition to considering estimates of the number of 
marine mammals that might be ``taken'' through behavioral harassment, 
NMFS must consider other factors, such as the likely nature of any 
responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, migration, etc.), as 
well as the number and nature of estimated Level A harassment takes, 
the number of estimated mortalities, effects on habitat, and the status 
of the species.
    To avoid repetition, this introductory discussion of our analyses 
applies to all the species listed in Table 5, given that the 
anticipated effects of NE Gateway LNG Port and Algonquin Pipeline 
Lateral operations, maintenance, and repair activities on marine 
mammals (taking into account the proposed mitigation) are expected to 
be relatively similar in nature. Where there are meaningful differences 
between species or stocks, or groups of species, in anticipated 
individual responses to activities, impact of expected take on the 
population due to differences in population status, or impacts on 
habitat, they are described separately in the analysis below.
    No injuries or mortalities are anticipated to occur as a result of 
NE Gateway and Algonquin's proposed Port and Pipeline Lateral 
operations, maintenance, and repair activities, and none are 
authorized. Additionally, animals in the area are not expected to incur 
hearing impairment (i.e., TTS or PTS) or non-auditory physiological 
effects. The takes that are anticipated and authorized are expected to 
be limited to short-term Level B behavioral harassment. While NEG 
expects that when the Port is under full operation, it will receive up 
to 65 LNG shipments per year, and would require 14 days for NEG Port 
maintenance and up to 40 days for planned and unplanned Algonquin 
Pipeline Lateral maintenance and repair, schedules of LNG delivery 
would occur throughout the year, which include seasons certain marine 
mammals may not be present in the area.
    Effects on marine mammals are generally expected to be restricted 
to avoidance of a limited area around NEG's proposed activities and 
short-term changes in behavior, falling within the MMPA definition of 
``Level B harassment.'' Mitigation measures, such as controlled vessel 
speed, dedicated marine mammal observers, and passive acoustic 
monitoring, will ensure that takes are within the level being analyzed. 
In all cases, the effects are expected to be short-term, with no 
lasting biological consequence.
    Of the 14 marine mammal species likely to occur in the proposed 
marine survey area, North Atlantic right, humpback, fin, and sei whales 
are listed as endangered under the ESA. These species are also 
designated as ``depleted'' under the MMPA. None of the other species 
that may occur in the project area are listed as threatened or 
endangered under the ESA or designated as depleted under the MMPA.
    The project area of the NEG and Algonquin's proposed activities is 
a biologically important area (BIA) for feeding for the North Atlantic 
right whale in February to April, humpback whale in March to December, 
fin whale year-round, and minke whale in March to November (LaBrecque 
et al. 2015). However, prior monitoring reports show that most of the 
LNG deliveries occur during late fall through the winter months between 
late November and January. Therefore, the actual impacts to these 
species from the NE Gateway's proposed operations would likely be much 
less than what are analyzed here. The proposed project area is not a 
BIA for the rest of the 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 proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from NEG and Algonquin's proposed LNG Port and Pipeline 
Lateral operation, maintenance, and repair activities in Masschusetts 
Bay are not expected to have adversely affect the affected species or 
stocks through impacts on annual rates of recruitment or survival, and 
therefore will have a negligible impact on the affected marine mammal 
species or stocks.

Small Numbers

    The requested takes represent less than 8.4% of all populations or 
stocks potentially impacted (see Table 5 in this document). These take 
estimates represent the percentage of each species or stock that could 
be taken by Level B behavioral harassment and TTS (Level B harassment). 
The numbers of marine mammals estimated to be taken are small 
proportions of the total populations of the affected species or stocks. 
In addition, the mitigation and monitoring measures (described 
previously in this document) prescribed in the IHA are expected to 
reduce even further any potential disturbance to marine mammals.
    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 small numbers of marine mammals will be taken 
relative to the populations of the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no subsistence uses of marine mammals in the proposed 
project area; and, thus, no subsistence uses impacted by this action. 
Therefore, NMFS has determined that the total taking of affected 
species or stocks would not have an unmitigable adverse impact on the 
availability of such species or stocks for taking for subsistence 
purposes.

Endangered Species Act (ESA)

    Our November 18, 2013, Federal Register notice of the proposed IHA 
described the history and status of Endangered Species Act (ESA) 
compliance for the NE Gateway LNG facility (78 FR 69049). As explained 
in that notice, the biological opinions for construction and operation 
of the facility only analyzed impacts on ESA-listed species from 
activities under the initial construction period and during operations, 
and did not take into consideration potential impacts to marine mammals 
that could result from the subsequent LNG Port and Pipeline Lateral 
maintenance and repair activities. In addition, NEG also revealed that 
significantly more water usage and vessel operating air emissions are 
needed xfrom what was originally evaluated for the LNG Port operation. 
NMFS PR1 initiated consultation with NMFS Greater Atlantic Region 
Fisheries Office under section 7 of the ESA on the proposed issuance of 
an IHA to NEG

[[Page 72703]]

under section 101(a)(5)(D) of the MMPA for the proposed activities that 
include increased NEG Port and Algonquin Pipeline Lateral maintenance 
and repair and water usage for the LNG Port operations this activity. A 
Biological Opinion was issued on November 21, 2014, and concluded that 
the proposed action may adversely affect but is not likely to 
jeopardize the continued existence of ESA-listed right, humpback, fin, 
and sei whales.
    NMFS' Permits and Conservation Division has preliminarily 
determined that the activities described in here are the same as those 
analyzed in the November 21, 2014, Biological Opinion. Therefore, a new 
consultation is not required for issuance of this IHA.

National Environmental Policy Act

    MARAD and the USCG released a Final EIS/Environmental Impact Report 
(EIR) for the proposed Northeast Gateway Port and Pipeline Lateral. 
NMFS was a cooperating agency (as defined by the Council on 
Environmental Quality (40 CFR 1501.6)) in the preparation of the Draft 
and Final EISs. NMFS reviewed the Final EIS and adopted it on May 4, 
2007. NMFS issued a separate Record of Decision for issuance of 
authorizations pursuant to section 101(a)(5) of the MMPA for the 
construction and operation of the Northeast Gateway's LNG Port Facility 
in Massachusetts Bay.
    We have reviewed the NEG's application for a renewed IHA for 
ongoing activities for 2015-16 and the 2014-15 monitoring report. Based 
on that review, we have determined that the proposed action is very 
similar to that considered in the previous IHA. In addition, no 
significant new circumstances or information relevant to environmental 
concerns have been identified. Thus, we have determined preliminarily 
that the preparation of a new or supplemental NEPA document is not 
necessary.

Proposed Incidental Harassment Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to Northeast Gateway and Algonquin for activities 
associated with Northeast Gateway's LNG Port and Algonquin's Pipeline 
Lateral operations and maintenance and repair activities in the 
Massachusetts Bay, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated. The proposed 
IHA language is provided next.
    (1) This Authorization is valid from December 22, 2015, through 
December 21, 2016.
    (2) This Authorization is valid only for activities associated with 
Northeast Gateway's LNG Port and Algonquin's Pipeline Lateral 
operations and maintenance and repair activities in the Massachusetts 
Bay. The specific area of the activities is shown in Figure 2-1 of the 
Excelerate Energy, L.P. and Tetra Tech, Inc.'s IHA application.
    (3)(a) The species authorized for incidental harassment takings, 
Level B harassment only, are: Right whales (Eubalaena glacialis); fin 
whales (Balaenoptera physalus); humpback whales (Megaptera 
novaeangliae); minke whales (B. acutorostrata); sei whales (B. 
borealis); long-finned pilot whales (Globicephala melas); Atlantic 
white-sided dolphins (Lagenorhynchus acutus); bottlenose dolphins 
(Tursiops truncatus); short-beaked common dolphins (Delphinus delphis); 
Risso's dolphin (Grampus griseus); killer whales (Orcinus orca); harbor 
porpoises (Phocoena phocoena); harbor seals (Phoca vitulina); and gray 
seals (Halichoerus grypus).
    (3)(b) The authorization for taking by harassment is limited to the 
following acoustic sources and from the following activities:
    (i) NEG Port operations;
    (ii) NEG Port maintenance and repair; and
    (iii) Algonquin Pipeline Lateral operations and maintenance.
    (3)(c) The taking of any marine mammal in a manner prohibited under 
this Authorization must be reported within 24 hours of the taking to 
the National Marine Fisheries Service (NMFS) Greater Atlantic Regional 
Administrator or his designee, NMFS Headquarter Chief of the Permits 
and Conservation Division, Office of Protected Resources, NMFS, at 
(301-427-8401), or her designee (301-427-8418).
    (4) Prohibitions
    (a) The taking, by incidental harassment only, is limited to the 
species listed under condition 3(a) above and by the numbers listed in 
Table 5. The taking by Level A harassment, injury or death of these 
species or the taking by harassment, injury or death of any other 
species of marine mammal is prohibited and may result in the 
modification, suspension, or revocation of this Authorization.
    (5) Mitigation
    The holder of this authorization is required to implement the 
following mitigation measures:
    (a) General Marine Mammal Avoidance Measures
    (i) All vessels shall utilize the International Maritime 
Organization (IMO)-approved Boston Traffic Separation Scheme (TSS) on 
their approach to and departure from the NEG Port and/or the repair/
maintenance area at the earliest practicable point of transit in order 
to avoid the risk of whale strikes.
    (ii) Upon entering the TSS and areas where North Atlantic right 
whales are known to occur, including the Great South Channel Seasonal 
Management Area (GSC-SMA) and the SBNMS, the EBRV shall go into 
``Heightened Awareness'' as described below.
    (A) Prior to entering and navigating the modified TSS the Master of 
the vessel shall:
    (I) Consult Navigational Telex (NAVTEX), NOAA Weather Radio, the 
NOAA Right Whale Sighting Advisory System (SAS) or other means to 
obtain current right whale sighting information as well as the most 
recent Cornell acoustic monitoring buoy data for the potential presence 
of marine mammals;
    (II) Post a look-out to visually monitor for the presence of marine 
mammals;
    (III) Provide the US Coast Guard (USCG) the required 96-hour 
notification of an arriving EBRV to allow the NEG Port Manager to 
notify Cornell of vessel arrival.
    (B) The look-out shall concentrate his/her observation efforts 
within the 2-mile radius zone of influence (ZOI) from the maneuvering 
EBRV.
    (C) If marine mammal detection was reported by NAVTEX, NOAA Weather 
Radio, SAS and/or an acoustic monitoring buoy, the look-out shall 
concentrate visual monitoring efforts towards the areas of the most 
recent detection.
    (D) If the look-out (or any other member of the crew) visually 
detects a marine mammal within the 2-mile radius ZOI of a maneuvering 
EBRV, he/she will take the following actions:
    (I) The Officer-of-the-Watch shall be notified immediately; who 
shall then relay the sighting information to the Master of the vessel 
to ensure action(s) can be taken to avoid physical contact with marine 
mammals.
    (II) The sighting shall be recorded in the sighting log by the 
designated look-out.
    (III) In accordance with 50 CFR 224.103(c), all vessels associated 
with NEG Port and Pipeline Lateral activities shall not approach closer 
than 500 yards (460 m) to a North Atlantic right whale and 100 yards 
(91 m) to other whales to the extent physically feasible given 
navigational constraints. In addition, when approaching and departing 
the project area, vessels shall be operated so as to remain at least 1 
km away from any visually-detected North Atlantic right whales.

[[Page 72704]]

    (IV) In response to active right whale sightings and active 
acoustic detections, and taking into account exceptional circumstances, 
EBRVs, repair and maintenance vessels shall take appropriate actions to 
minimize the risk of striking whales. Specifically vessels shall:
    (A) Respond to active right whale sightings and/or DMAs reported on 
the Mandatory Ship Reporting (MSR) or SAS by concentrating monitoring 
efforts towards the area of most recent detection and reducing speed to 
10 knots or less if the vessel is within the boundaries of a DMA (50 
CFR 224.105) or within the circular area centered on an area 8 nm in 
radius from a sighting location;
    (B) Respond to active acoustic detections by concentrating 
monitoring efforts towards the area of most recent detection and 
reducing speed to 10 knots or less within an area 5 nm in radius 
centered on the detecting AB; and
    (C) Respond to additional sightings made by the designated look-
outs within a 2-mile radius of the vessel by slowing the vessel to 10 
knots or less and concentrating monitoring efforts towards the area of 
most recent sighting.
    (V) All vessels operated under NEG and Algonquin must follow the 
established specific speed restrictions when calling at the NEG Port. 
The specific speed restrictions required for all vessels (i.e., EBRVs 
and vessels associated with maintenance and repair) consist of the 
following:
    (A) Vessels shall reduce their maximum transit speed while in the 
TSS from 12 knots or less to 10 knots or less from March 1 to April 30 
in all waters bounded by straight lines connecting the following points 
in the order stated below unless an emergency situation dictates for an 
alternate speed. This area shall hereafter be referred to as the Off 
Race Point Seasonal Management Area (ORP-SMA) and tracks NMFS 
regulations at 50 CFR 224.105:


42[deg]30' N. 70[deg]30' W.       41[deg]40' N. 69[deg]57' W.
42[deg]30' N. 69[deg]45' W.       42[deg]12' N. 70[deg]15' W.
41[deg]40' N. 69[deg]45' W.       42[deg]12' N. 70[deg]30' W.
42[deg]04.8' N. 70[deg]10' W.     42[deg]30' N. 70[deg]30' W.
 


    (B) Vessels shall reduce their maximum transit speed while in the 
TSS to 10 knots or less unless an emergency situation dictates for an 
alternate speed from April 1 to July 31 in all waters bounded by 
straight lines connecting the following points in the order stated 
below. This area shall hereafter be referred to as the GSC-SMA and 
tracks NMFS regulations at 50 CFR 224.105:

42[deg]30' N. 69[deg]45' W.       41[deg]40' N. 69[deg]45' W.
42[deg]30' N. 67[deg]27' W.       42[deg]30' N. 69[deg]45' W.
42[deg]09' N. 67[deg]08.4' W.     41[deg]00' N. 69[deg]05' W.
 


    (C) Vessels are not expected to transit the Cape Cod Bay or the 
Cape Cod Canal; however, in the event that transit through the Cape Cod 
Bay or the Cape Cod Canal is required, vessels shall reduce maximum 
transit speed to 10 knots or less from January 1 to May 15 in all 
waters in Cape Cod Bay, extending to all shorelines of Cape Cod Bay, 
with a northern boundary of 42[deg]12' N. latitude and the Cape Cod 
Canal. This area shall hereafter be referred to as the Cape Cod Bay 
Seasonal Management Area (CCB-SMA).
    (D) All Vessels transiting to and from the project area 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.
    (E) All Vessels greater than or equal to 300 gross tons (GT) shall 
maintain a speed of 10 knots or less, unless an emergency situation 
requires speeds greater than 10 knots.
    (F) All Vessels less than 300 GT traveling between the shore and 
the project area that are not generally restricted to 10 knots will 
contact the Mandatory Ship Reporting (MSR) system, the USCG, or the 
project site before leaving shore for reports of active DMAs and/or 
recent right whale sightings and, consistent with navigation safety, 
restrict speeds to 10 knots or less within 5 miles (8 kilometers) of 
any sighting location, when traveling in any of the seasonal management 
areas (SMAs) or when traveling in any active dynamic management area 
(DMA).
(b) NEG Port-Specific Operations
    (i) In addition to the general marine mammal avoidance requirements 
identified in (5)(a) above, vessels calling on the NEG Port must comply 
with the following additional requirements:
    (A) EBRVs shall travel at 10 knots maximum speed when transiting 
to/from the TSS or to/from the NEG Port/Pipeline Lateral area. For 
EBRVs, at 1.86 miles (3 km) from the NEG Port, speed will be reduced to 
3 knots and to less than 1 knot at 1,640 ft (500 m) from the NEG buoys, 
unless an emergency situation dictates the need for an alternate speed.
    (B) EBRVs that are approaching or departing from the NEG Port and 
are within the ATBA5 surrounding the NEG Port, shall remain at least 1 
km away from any visually-detected North Atlantic right whale and at 
least 100 yards (91 m) away from all other visually-detected whales 
unless an emergency situation requires that the vessel stay its course. 
During EBRV maneuvering, the Vessel Master shall designate at least one 
look-out to be exclusively and continuously monitoring for the presence 
of marine mammals at all times while the EBRV is approaching or 
departing from the NEG Port.
    (C) During NEG Port operations, in the event that a whale is 
visually observed within 1 km of the NEG Port or a confirmed acoustic 
detection is reported on either of the two ABs closest to the NEG Port 
(western-most in the TSS array), departing EBRVs shall delay their 
departure from the NEG Port, unless an emergency situation requires 
that departure is not delayed. This departure delay shall continue 
until either the observed whale has been visually (during daylight 
hours) confirmed as more than 1 km from the NEG Port or 30 minutes have 
passed without another confirmed detection either acoustically within 
the acoustic detection range of the two ABs closest to the NEG Port, or 
visually within 1 km from the NEG Port.
    (ii) Vessel captains shall focus on reducing dynamic positioning 
(DP) thruster power to the maximum extent practicable, taking into 
account vessel and Port safety, during the operation activities. Vessel 
captains will shut down thrusters whenever they are not needed.
(c) Planned and Unplanned Maintenance and Repair Activities
    (i) NEG Port
    (A) The Northeast Gateway shall conduct empirical source level 
measurements on all noise emitting construction equipment and all 
vessels that are involved in maintenance/repair work.
    (B) If dynamic positioning (DP) systems are to be employed and/or 
activities will emit noise with a source level of 139 dB re 1 [mu]Pa at 
1 m, activities shall be conducted in accordance with the requirements 
for DP systems listed in (5)(b)(ii).
    (C) Northeast Gateway shall provide the NMFS Headquarters Office of 
the Protected Resources, NMFS Northeast Region Ship Strike Coordinator, 
and SBNMS with a minimum of 30 days notice prior to any planned repair 
and/or maintenance activity. For any

[[Page 72705]]

unplanned/emergency repair/maintenance activity, Northeast Gateway 
shall notify the agencies as soon as it determines that repair work 
must be conducted. Northeast Gateway shall continue to keep the 
agencies apprised of repair work plans as further details (e.g., the 
time, location, and nature of the repair) become available. A final 
notification shall be provided to agencies 72 hours prior to crews 
being deployed into the field.
    (ii) Pipeline Lateral
    (A) Pipeline maintenance/repair vessels less than 300 GT traveling 
between the shore and the maintenance/repair area that are not 
generally restricted to 10 knots shall contact the MSR system, the 
USCG, or the project site before leaving shore for reports of active 
DMAs and/or recent right whale sightings and, consistent with 
navigation safety, restrict speeds to 10 knots or less within 5 miles 
(8 km) of any sighting location, when travelling in any of the seasonal 
management areas (SMAs) as defined above.
    (B) Maintenance/repair vessels greater than 300 GT shall not exceed 
10 knots, unless an emergency situation that requires speeds greater 
than 10 knots.
    (C) Planned maintenance and repair activities shall be restricted 
to the period between May 1 and November 30.
    (D) Unplanned/emergency maintenance and repair activities shall be 
conducted utilizing anchor-moored dive vessel whenever operationally 
possible.
    (E) Algonquin shall also provide the NMFS Office of the Protected 
Resources, NMFS Northeast Region Ship Strike Coordinator, and 
Stellwagen Bank National Marine Sanctuary (SBNMS) with a minimum of 30-
day notice prior to any planned repair and/or maintenance activity. For 
any unplanned/emergency repair/maintenance activity, Northeast Gateway 
shall notify the agencies as soon as it determines that repair work 
must be conducted. Algonquin shall continue to keep the agencies 
apprised of repair work plans as further details (e.g., the time, 
location, and nature of the repair) become available. A final 
notification shall be provided to agencies 72 hours prior to crews 
being deployed into the field.
    (F) If dynamic positioning (DP) systems are to be employed and/or 
activities will emit noise with a source level of 139 dB re 1 [mu]Pa at 
1 m, activities shall be conducted in accordance with the requirements 
for DP systems listed in (5)(b)(ii).
    (G) In the event that a whale is visually observed within 0.5 mile 
(0.8 kilometers) of a repair or maintenance vessel, the vessel 
superintendent or on-deck supervisor shall be notified immediately. The 
vessel's crew shall be put on a heightened state of alert and the 
marine mammal shall be monitored constantly to determine if it is 
moving toward the repair or maintenance area.
    (H) Repair/maintenance vessel(s) must cease any movement and/or 
cease all activities that emit noises with source level of 139 dB re 1 
[mu]Pa @ 1 m or higher when a right whale is sighted within or 
approaching at 500 yd (457 m) from the vessel. Repair and maintenance 
work may resume after the marine mammal is positively reconfirmed 
outside the established zones (500 yd [457 m]) or 30 minutes have 
passed without a redetection. Any vessels transiting the maintenance 
area, such as barges or tugs, must also maintain these separation 
distances.
    (I) Repair/maintenance vessel(s) must cease any movement and/or 
cease all activities that emit noises with source level of 139 dB re 1 
[mu]Pa @ 1 m or higher when a marine mammal other than a right whale is 
sighted within or approaching at 100 yd (91 m) from the vessel. Repair 
and maintenance work may resume after the marine mammal is positively 
reconfirmed outside the established zones (100 yd [91 m]) or 30 minutes 
have passed without a redetection. Any vessels transiting the 
maintenance area, such as barges or tugs, must also maintain these 
separation distances.
    (J) Algonquin and associated contractors shall also comply with the 
following:
    (I) Operations involving excessively noisy equipment (source level 
exceeding 139 dB re 1[mu]Pa @ 1 m) shall ``ramp-up'' sound sources, 
allowing whales a chance to leave the area before sounds reach maximum 
levels. In addition, Northeast Gateway, Algonquin, and other associated 
contractors shall maintain equipment to manufacturers' specifications, 
including any sound-muffling devices or engine covers in order to 
minimize noise effects. Noisy construction equipment shall only be used 
as needed and equipment shall be turned off when not in operation.
    (II) Any material that has the potential to entangle marine mammals 
(e.g., anchor lines, cables, rope or other construction debris) shall 
only be deployed as needed and measures shall be taken to minimize the 
chance of entanglement.
    (III) For any material that has the potential to entangle marine 
mammals, such material shall be removed from the water immediately 
unless such action jeopardizes the safety of the vessel and crew as 
determined by the Captain of the vessel.
    (IV) In the event that a marine mammal becomes entangled, the 
marine mammal coordinator and/or PSO will notify NMFS (if outside the 
SBNMS), and SBNMS staff (if inside the SBNMS) immediately so that a 
rescue effort may be initiated.
    (K) All maintenance/repair activities shall be scheduled to occur 
between May 1 and November 30; however, in the event of unplanned/
emergency repair work that cannot be scheduled during the preferred May 
through November work window, the following additional measures shall 
be followed for Pipeline Lateral maintenance and repair related 
activities between December and April:
    (I) Between December 1 and April 30, if on-board PSOs do not have 
at least 0.5-mile visibility, they shall call for a shutdown. 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.
    (II) Prior to leaving the dock to begin transit, the barge shall 
contact one of the PSOs on watch to receive an update of sightings 
within the visual observation area. If the PSO has observed a North 
Atlantic right whale within 30 minutes of the transit start, the vessel 
shall hold for 30 minutes and again get a clearance to leave from the 
PSOs on board. PSOs shall assess whale activity and visual observation 
ability at the time of the transit request to clear the barge for 
release.
    (III) Transit route, destination, sea conditions and any marine 
mammal sightings/mitigation actions during watch shall be recorded in 
the log book. Any whale sightings within 1,000 m of the vessel shall 
result in a high alert and slow speed of 4 knots or less and a sighting 
within 750 m shall result in idle speed and/or ceasing all movement.
    (IV) The material barges and tugs used in repair and maintenance 
shall transit from the operations dock to the work sites during 
daylight hours when possible provided the safety of the vessels is not 
compromised. Should transit at night be required, the maximum speed of 
the tug shall be 5 knots.
    (V) All repair vessels must maintain a speed of 10 knots or less 
during daylight hours. All vessels shall operate at 5 knots or less at 
all times within 5 km of the repair area.

[[Page 72706]]

(d) Acoustic Monitoring Related Activities
    (i) Vessels associated with maintaining the AB network operating as 
part of the mitigation/monitoring protocols shall adhere to the 
following speed restrictions and marine mammal monitoring requirements.
    (A) In accordance with NOAA Regulation 50 CFR 224.103 (c), all 
vessels associated with NEG Port activities shall not approach closer 
than 500 yards (460 meters) to a North Atlantic right whale.
    (B) All vessels shall obtain the latest DMA or right whale sighting 
information via the NAVTEX, MSR, SAS, NOAA Weather Radio, or other 
available means prior to operations to determine if there are right 
whales present in the operational area.
    (6) Monitoring
(a) Vessel-Based Visual Monitoring
    (i) Vessel-based monitoring for marine mammals shall be done by 
trained look-outs during NEG LNG Port and Pipeline Lateral operations 
and maintenance and repair activities. The observers shall monitor the 
occurrence of marine mammals near the vessels during LNG Port and 
Pipeline Lateral related activities. Lookout duties include watching 
for and identifying marine mammals; recording their numbers, distances, 
and reactions to the activities; and documenting ``take by 
harassment.''
    (ii) The vessel look-outs assigned to visually monitor for the 
presence of marine mammals shall be provided with the following:
    (A) Recent NAVTEX, NOAA Weather Radio, SAS and/or acoustic 
monitoring buoy detection data;
    (B) Binoculars to support observations;
    (C) Marine mammal detection guide sheets; and
    (D) Sighting log.
(b) NEG LNG Port Operations
    (i) All individuals onboard the EBRVs responsible for the 
navigation duties and any other personnel that could be assigned to 
monitor for marine mammals shall receive training on marine mammal 
sighting/reporting and vessel strike avoidance measures.
    (ii) While an EBRV is navigating within the designated TSS, there 
shall be three people with look-out duties on or near the bridge of the 
ship including the Master, the Officer-of-the-Watch and the Helmsman-
on-watch. In addition to the standard watch procedures, while the EBRV 
is transiting within the designated TSS, maneuvering within the Area to 
be Avoided (ATBA), and/or while actively engaging in the use of 
thrusters, an additional look-out shall be designated to exclusively 
and continuously monitor for marine mammals.
    (iii) All sightings of marine mammals by the designated look-out, 
individuals posted to navigational look-out duties and/or any other 
crew member while the EBRV is transiting within the TSS, maneuvering 
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. The Master or Officer-of-the-Watch shall ensure 
the required reporting procedures are followed and the designated 
marine mammal look-out records all pertinent information relevant to 
the sighting.
    (iv) Visual sightings made by look-outs from the EBRVs shall be 
recorded using a standard sighting log form. Estimated locations shall 
be reported for each individual and/or group of individuals categorized 
by species when known. This data shall be entered into a database and a 
summary of monthly sighting activity shall be provided to NMFS. 
Estimates of take and copies of these log sheets shall also be included 
in the reports to NMFS.
(c) Planned and Unplanned Maintenance and Repair
    (i) Two (2) qualified and NMFS-approved protected species observers 
(PSOs) shall be assigned to each vessel that will use dynamic 
positioning (DP) systems during maintenance and repair related 
activities. PSOs shall operate individually in designated shifts to 
accommodate adequate rest schedules. Additional PSOs shall be assigned 
to additional vessels if auto-detection buoy (AB) data indicates that 
sound levels exceed 120 dB re 1 [micro]Pa, further then 100 meters (328 
feet) from these vessels.
    (ii) All PSOs shall receive NMFS-approved marine mammal observer 
training and be approved in advance by NMFS after review of their 
resume. All PSOs shall have direct field experience on marine mammal 
vessels and/or aerial surveys in the Atlantic Ocean/Gulf of Mexico.
    (iii) PSOs (one primary and one secondary) shall be 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 also assist with identification. Both PSOs shall have 
responsibility for monitoring for the presence of marine mammals and 
sea turtles. Specifically PSO's shall:
    (A) Monitor at all hours of the day, scanning the ocean surface by 
eye for a minimum of 40 minutes every hour.
    (B) Monitor the area where maintenance and repair work is conducted 
beginning at daybreak using 25x power binoculars and/or hand-held 
binoculars. Night vision devices must be provided as standard equipment 
for monitoring during low-light hours and at night.
    (C) Conduct general 360[deg] visual monitoring during any given 
watch period and target scanning by the observer shall occur when 
alerted of a whale presence.
    (D) Alert the vessel superintendent or construction crew supervisor 
of visual detections within 2 miles (3.31 kilometers) immediately.
    (E) Record all sightings on marine mammal field sighting logs. 
Specifically, all data shall be entered at the time of observation, 
notes of activities will be kept, and a daily report prepared and 
attached to the daily field sighting log form. The basic reporting 
requirements include the following:
     Beaufort sea state;
     Wind speed;
     Wind direction;
     Temperature;
     Precipitation;
     Glare;
     Percent cloud cover;
     Number of animals;
     Species;
     Position;
     Distance;
     Behavior;
     Direction of movement; and
     Apparent reaction to construction activity.
    (iv) In the event that a whale is visually observed within the 2-
mile (3.31-kilometers) zone of influence (ZOI) of a DP vessel or other 
construction vessel that has shown to emit noise with source level in 
excess of 139 dB re 1 [micro]Pa @ 1 m, the PSO will notify the repair/
maintenance construction crew to minimize the use of thrusters until 
the animal has moved away, unless there are divers in the water or an 
ROV is deployed.
(d) Acoustic Monitoring
    (i) Northeast Gateway shall deploy 10 ABs within the Separation 
Zone of the TSS for the operational life of the Project.
    (ii) The ABs shall be used to detect a calling North Atlantic right 
whale an average of 5 nm from each AB. The AB system shall be the 
primary detection mechanism that alerts the EBRV Master to the 
occurrence of right whales, heightens EBRV awareness, and triggers 
necessary mitigation actions as described in section (5) above.

[[Page 72707]]

    (iii) Northeast Gateway shall conduct short-term passive acoustic 
monitoring to document sound levels during the initial operational 
events in the 2015-2016 winter heating season, and during both regular 
deliveries outside the winter heating season should such deliveries 
occur, and during scheduled and unscheduled maintenance and repair 
activities.
    (iv) Northeast Gateway shall conduct long-term monitoring of the 
noise environment in Massachusetts Bay in the vicinity of the NEG Port 
and Pipeline Lateral using marine autonomous recording units (MARUs) 
when there is anticipated to be more than 5 LNG shipments in a 30-day 
period or over 20 shipments in a six-month period.
    (v) The acoustic data collected in 6(d)(ii) shall be analyzed to 
document the seasonal occurrences and overall distributions of whales 
(primarily fin, humpback and right whales) within approximately 10 nm 
of the NEG Port and shall measure and document the noise ``budget'' of 
Massachusetts Bay so as to eventually assist in determining whether or 
not an overall increase in noise in the Bay associated with the Project 
might be having a potentially negative impact on marine mammals.
    (vi) Northeast Gateway shall make all acoustic data, including data 
previously collected by the MARUs during prior construction, 
operations, and maintenance and repair activities, available to NOAA. 
Data storage will be the responsibility of NOAA.
    (e) Acoustic Whale Detection and Response Plan
    (i) NEG Port Operations
    (A) Ten (10) ABs that have been deployed since 2007 shall be used 
to continuously screen the low-frequency acoustic environment (less 
than 1,000 Hertz) for right whale contact calls occurring within an 
approximately 5-nm radius from each buoy (the AB's detection range).
    (B) Once a confirmed detection is made, the Master of any EBRVs 
operating in the area will be alerted immediately.
    (ii) NEG Port and Pipeline Lateral Planned and Unplanned/Emergency 
Repair and Maintenance Activities
    (A) If the repair/maintenance work is located outside of the 
detectible range of the 10 project area ABs, Northeast Gateway and 
Algonquin shall consult with NOAA (NMFS and SBNMS) to determine if the 
work to be conducted warrants the temporary installation of an 
additional AB(s) to help detect and provide early warnings for 
potential occurrence of right whales in the vicinity of the repair 
area.
    (B) The number of ABs installed around the activity site 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.
    (C) Should acoustic monitoring be deemed necessary during a planned 
or unplanned/emergency repair and/or maintenance event, active 
monitoring for right whale calls shall begin 24 hours prior to the 
start of activities.
    (D) Revised noise level data from the acoustic recording units 
deployed in the NEG Port and/or Pipeline Lateral maintenance and repair 
area shall be provided to NMFS.
    (7) Reporting
    (a) Throughout NEG Port and Pipeline Lateral operations, Northeast 
Gateway and Algonquin shall provide a monthly Monitoring Report. The 
Monitoring Report shall include:
    (i) Both copies of the raw visual EBRV lookout sighting information 
of marine mammals that occurred within 2 miles of the EBRV while the 
vessel transits within the TSS, maneuvers within the ATBA, and/or when 
actively engaging in the use of thrusters, and a summary of the data 
collected by the look-outs over each reporting period.
    (ii) Copies of the raw PSO sightings information on marine mammals 
gathered during pipeline repair or maintenance activities. This visual 
sighting data shall then be correlated to periods of thruster activity 
to provide estimates of marine mammal takes (per species/species class) 
that took place during each reporting period.
    (iii) Conclusion of any planned or unplanned/emergency repair and/
or maintenance period, a report shall be submitted to NMFS summarizing 
the repair/maintenance activities, marine mammal sightings (both visual 
and acoustic), empirical source-level measurements taken during the 
repair work, and any mitigation measures taken.
    (b) During the maintenance and repair of NEG Port components, 
weekly status reports shall be provided to NOAA (both NMFS and SBNMS) 
using standardized reporting forms. The weekly reports shall include 
data collected for each distinct marine mammal species observed in the 
repair/maintenance area during the period that maintenance and repair 
activities were taking place. The weekly reports shall include the 
following information:
    (i) Location (in longitude and latitude coordinates), time, and the 
nature of the maintenance and repair activities;
    (ii) Indication of whether a DP system was operated, and if so, the 
number of thrusters being used and the time and duration of DP 
operation;
    (iii) Marine mammals observed in the area (number, species, age 
group, and initial behavior);
    (iv) The distance of observed marine mammals from the maintenance 
and repair activities;
    (v) Changes, if any, in marine mammal behaviors during the 
observation;
    (vi) A description of any mitigation measures (power-down, 
shutdown, etc.) implemented;
    (vii) Weather condition (Beaufort sea state, wind speed, wind 
direction, ambient temperature, precipitation, and percent cloud cover 
etc.);
    (viii) Condition of the observation (visibility and glare); and
    (ix) Details of passive acoustic detections and any action taken in 
response to those detections.
    (d) Injured/Dead Protected Species Reporting
    (i) In the unanticipated event that survey operations clearly cause 
the take of a marine mammal in a manner prohibited by the proposed IHA, 
such as an injury (Level A harassment), serious injury or mortality 
(e.g., ship-strike, gear interaction, and/or entanglement), NEG and/or 
Algonquin shall immediately cease activities and immediately report the 
incident to the Chief, Permits and Conservation Division, Office of 
Protected Resources, NMFS, at and the Greater Atlantic Regional 
Stranding Coordinators or by phone at 978-281-9300. The report must 
include the following information:
    (A) Time, date, and location (latitude/longitude) of the incident;
    (B) The name and type of vessel involved;
    (C) The vessel's speed during and leading up to the incident;
    (D) Description of the incident;
    (E) Status of all sound source use in the 24 hours preceding the 
incident;
    (F) Water depth;
    (G) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    (H) Description of marine mammal observations in the 24 hours 
preceding the incident;
    (I) Species identification or description of the animal(s) 
involved;
    (J) The fate of the animal(s); and
    (K) Photographs or video footage of the animal (if equipment is 
available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS shall work with NEG and/or 
Algonquin to determine what is necessary to minimize the likelihood of 
further prohibited take and ensure

[[Page 72708]]

MMPA compliance. NEG and/or Algonquin may not resume their activities 
until notified by NMFS via letter, email, or telephone.
    (ii) In the event that NEG and/or Algonquin discovers an injured or 
dead marine mammal, and the lead PSO determines that the cause of the 
injury or death is unknown and the death is relatively recent (i.e., in 
less than a moderate state of decomposition as described in the next 
paragraph), NEG and/or Algonquin will immediately report the incident 
to the Chief, Permits and Conservation Division, Office of Protected 
Resources, NMFS, at 301-427-8401, and/or by email to 
Jolie.Harrison@noaa.gov and Shane.Guan@noaa.gov and the NMFS Greater 
Atlantic Stranding Coordinators by phone at 978-281-9300, within 24 
hours of the discovery. The report must include the same information 
identified above. Activities may continue while NMFS reviews the 
circumstances of the incident. NMFS will work with NEG and/or Algonquin 
to determine whether modifications in the activities are appropriate.
    (iii) In the event that NEG or Algonquin discovers an injured or 
dead marine mammal, and the lead PSO determines that the injury or 
death is not associated with or related to the activities authorized 
(if the IHA is issued) (e.g., previously wounded animal, carcass with 
moderate to advanced decomposition, or scavenger damage), NEG and/or 
Algonquin shall report the incident to the Chief, Permits and 
Conservation Division, Office of Protected Resources, NMFS, at 301-427-
8401, and/or by email to Jolie.Harrison@noaa.gov and 
Shane.Guan@noaa.gov and the NMFS Greater Atlantic Stranding 
Coordinators by phone at 978-281-9300, within 24 hours of the 
discovery. NEG and/or Algonquin shall provide photographs or video 
footage (if available) or other documentation of the stranded animal 
sighting to NMFS and the Marine Mammal Stranding Network. NEG and/or 
Algonquin can continue its operations under such a case.
    (8) This Authorization may be modified, suspended, or withdrawn if 
the holder fails to abide by the conditions prescribed herein or if 
NMFS determines that the authorized taking is having more than a 
negligible impact on the species or stock of affected marine mammals.
    (9) A copy of this Authorization and the Incidental Take Statement 
must be in the possession of each survey vessel operator taking marine 
mammals under the authority of this Incidental Harassment 
Authorization.
    (10) Northeast Gateway and Algonquin are required to comply with 
the Terms and Conditions of the Incidental Take Statement corresponding 
to NMFS' Biological Opinion.

Request for Public Comments

    NMFS requests comment on our analysis, the draft authorization for 
an IHA, the receipt of notice for a rulemaking, and any other aspect of 
the Notice of Proposed IHA for Northeast Gateway and Algonquin's 
proposed LNG Port and Pipeline Lateral operations, maintenance, and 
repair activities in the Massachusetts Bay. Please include with your 
comments any supporting data or literature citations to help inform our 
final decision on Northeast Gateway and Algonquin's request for an MMPA 
authorization.

    Dated: November 12, 2015.
Donna Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2015-29642 Filed 11-19-15; 8:45 am]
BILLING CODE 3510-22-P