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, 1703-1719 [2016-31948]

Download as PDF Federal Register / Vol. 82, No. 4 / Friday, January 6, 2017 / Notices sradovich on DSK3GMQ082PROD with NOTICES requirements pertaining to the mitigation, monitoring, and reporting of such taking are set forth. NMFS has defined ‘‘negligible impact’’ in 50 CFR 216.103 as ‘‘an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.’’ The NDAA of 2004 (Pub. L. 108–136) removed the ‘‘small numbers’’ and ‘‘specified geographical region’’ limitations indicated earlier and amended the definition of harassment as it applies to a ‘‘military readiness activity’’ to read as follows (Section 3(18)(B) of the MMPA): (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild (Level A Harassment); or (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered (Level B Harassment). 86 FWS has identified LRS WSEP missions as military readiness activities. On September 27, 2016, NMFS issued an incidental harassment authorization (IHA), similar to this request, for takes of marine mammals incidental to Long Range Strike Weapons System Evaluation Program (LRS WSEP) activities in the BSURE area of the PMRF off Kauai, Hawaii. 86 FWS complied with all conditions of the IHA issued, including submission of final reports. Based on these reports, NMFS has determined that impacts to marine mammals were not beyond those anticipated. Summary of Request On December 21, 2016, NMFS received an adequate and complete application from the 86 FWS requesting authorization for the take of marine mammals incidental to LRS WSEP activities in the Barking Sands Underwater Range Expansion (BSURE) area of the Pacific Missile Range Facility (PMRF) off Kauai, Hawaii for a period of five years. LRS WSEP activities have the potential to result in take of marine mammals in the waters of the PMRF. Therefore, 86 FWS requests authorization to take 16 species of marine mammals that may occur in this area. Specified Activities 86 FWS proposes actions that include LRS WSEP test missions that involve VerDate Sep<11>2014 18:06 Jan 05, 2017 Jkt 241001 the use of multiple types of live and inert munitions (bombs and missiles) detonated above, at, or slightly below the water surface. The ordnance may be delivered by multiple types of aircraft, including bombers and fighter aircraft. The actions include air-to-surface test missions of the Joint Air-to-Surface Stand-off Missile/Joint Air-to-Surface Stand-off Missile-Extended Range (JASSM/JASSM–ER), Small Diameter Bomb-I/II (SDB–I/II), High-speed AntiRadiation Missile (HARM), Joint Direct Attack Munition/Laser Joint Direct Attack Munition (JDAM/LJDAM), and Miniature Air-Launched Decoy (MALD). Net explosive weight of the live munitions ranges from 23 to 300 pounds. 86 FWS anticipates the ability to test approximately 110 munitions per year. Information Solicited Interested persons may submit information, suggestions, and comments concerning 86 FWS’s request (see ADDRESSES). Comments should be supported by data or literature citations as appropriate. We will consider all relevant information, suggestions, and comments related to the request during the development of proposed regulations governing the incidental taking of marine mammals by 86 FWS, if appropriate. Dated: December 27, 2016. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2016–31947 Filed 1–5–17; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [0648–XE753] 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 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; issuance of an incidental harassment authorization. AGENCY: In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that we have issued an incidental SUMMARY: PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 1703 harassment authorization (IHA) to Northeast Gateway® Energy BridgeTM, L.P. (Northeast Gateway or NEG) and Algonquin Gas Transmission, LLC (Algonquin) 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. DATES: This authorization is effective from December 22, 2016 through December 21, 2017. FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected Resources, NMFS, (301) 427–8401. SUPPLEMENTARY INFORMATION: Background Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional taking of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review. 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 E:\FR\FM\06JAN1.SGM 06JAN1 1704 Federal Register / Vol. 82, No. 4 / Friday, January 6, 2017 / Notices period, NMFS must either issue or deny the authorization. sradovich on DSK3GMQ082PROD with NOTICES Summary of Request On June 9, 2015, NMFS received an application from Excelerate Energy, L.P. (Excelerate) and Tetra Tech, Inc. (Tetra Tech), on behalf of NEG and Algonquin, for an annual IHA and a subsequent five-year letter of authorization (LOA) pursuant to a rulemaking under section 101(a)(5)(A), to take 14 species of marine mammals by Level B harassment incidental to operations, maintenance, and repair of the NEG Port and the Pipeline Lateral facilities in Massachusetts Bay. They are: North Atlantic right whale, humpback whale, fin whale, sei whale, minke whale, longfinned pilot whale, Atlantic white-sided dolphin, bottlenose dolphin, shortbeaked common dolphin, killer whale, Risso’s dolphin, harbor porpoise, harbor seal, and gray seal. Since the NEG 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 issued an IHA to NEG and Algonquin on December 22, 2015 (81 FR 744; January 7, 2016). The IHA is valid until December 22, 2016. In June 2016 NMFS learned that NEG and Algonquin are considering decommissioning the NEG Port in the foreseeable future. Upon discussion with Excelerate and Tetra Tech, it was agreed that instead of conducting a rulemaking for five years of incidental take authorization that may not be needed, NMFS would process another one-year IHA to NEG and Algonquin to cover marine mammal takes from its operations, maintenance, and repair work from December 23, 2016 through December 22, 2017. NMFS first issued an IHA to NEG 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 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). After that, NMFS issued two one-year IHAs to NEG and Algonquin to take marine mammals incidental to the operations of the NEG Port as well as maintenance and repair (79 FR 78806; December 31, 2014, 81 FR 744; January 7, 2016). VerDate Sep<11>2014 18:06 Jan 05, 2017 Jkt 241001 Description of the Specified Activity Comments and Responses The NEG and Algonquin activities include the following: NEG Port Operations: The NEG Port operations involve docking of NEG vessels and regasification of NEG for delivery to shore. Noises generated during these activities, especially from the NEG vessel’s dynamic positioning (DP) 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 occasionally at a location along the Pipeline Lateral in west Massachusetts Bay, as shown in Figure 2.1 of the 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, 2015 (81 FR 744; January 7, 2016), based on activities described on Excelerate and Tetra Tech’s marine mammal incidental take request submitted in June 2014 and on the Federal Register notice for the proposed IHA (78 FR 69049; November 18, 2013). The latest application submitted by Excelerate and Tetra Tech on June 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 NEG Port and Pipeline Lateral operations and maintenance and repair. Please refer to these documents for a detailed description of NEG and Algonquin’s proposed NEG Port and Pipeline Lateral operations and maintenance and repair activities. A notice of NMFS’ proposal to issue an IHA was published in the Federal Register on November 15, 2016 (81 FR 80016). During the 30-day public comment period, NMFS received a comment letter from the Marine Mammal Commission (Commission). Specific comments and responses are provided below. Comment 1: The Commission states that the method used to estimate the numbers of takes, which sums fractions of takes for each species across days, does not account for NMFS’s 24-hour reset policy. The Commission states that instead of summing fractions of takes across days and then rounding to estimate total takes, NMFS should have calculated a daily take estimate (determined by multiplying the estimated density of marine mammals in the area by the daily ensonified area) and then rounding that to a whole number before multiplying it by the number of days that activities would occur. Thus, the Commission recommends that NMFS (1) follow its policy of a 24-hour reset for enumerating the number of each species that could be taken, (2) apply standard rounding rules before summing the numbers of estimated takes across days, and (3) for species that have the potential to be taken but modelestimated or calculated takes round to zero, use group size to inform the take estimates—these methods should be used consistently for all future incidental take authorizations. Response: While for certain projects NMFS has rounded to the whole number for daily takes, the circumstance for projects like this one when the objective of take estimation is to provide more accurate assessments for potential impacts to marine mammals for the entire project, the rounding on a daily basis will introduce large errors into the process. In addition, while NMFS uses a 24-hour reset for its take calculation to ensure that individual animals are not counted as a take more than once per day, that fact does not make the calculation of take across the entire activity period inherently incorrect. There is no need for daily (24-hour) rounding in this case because there is no daily limit of takes, so long as total authorized takes of marine mammal are not exceeded. In short, the calculation of predicted take is not an exact science and there are arguments for taking different mathematical approaches in different situations, and for making qualitative adjustments in other situations. We PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 E:\FR\FM\06JAN1.SGM 06JAN1 Federal Register / Vol. 82, No. 4 / Friday, January 6, 2017 / Notices humpback whales is 823 animals (Waring et al., 2016). Description of Marine Mammals in the Area of the Specified Activities Marine mammal species that potentially occur in the vicinity of the Northeast Gateway facility include the North Atlantic right whale, humpback whale, fin whale, sei whale, minke whale, long-finned pilot whale, Atlantic white-sided dolphin, bottlenose dolphin, common dolphin, killer whale, Risso’s dolphin, harbor porpoise, harbor seal, and gray seal. General information on the distribution of these marine mammal species can be found in NMFS Stock Assessment Reports (Waring et al., 2016). This latter document is available at: http://www.nmfs.noaa.gov/ pr/sars/pdf/atlantic2015_final.pdf. Additional information regarding these species within the NEG’s action area is provided below, with a summary in Table 1. sradovich on DSK3GMQ082PROD with NOTICES believe, however, that the prediction for this action remains appropriate. Fin Whale Spatial patterns of habitat utilization by fin whales are very similar to those of humpback whales. Spring and summer high-use areas follow the 100m (328 ft) isobath along the northern edge of Georges Bank (between the 50and 200-m (164- and 656-ft) isobaths), and northward from the Great South Channel (between the 50- and 160-m, or 164- and 525-ft, isobaths). Waters around Cashes Ledge, Platts Bank, and Jeffreys Ledge are all high-use areas in the summer months. Stellwagen Bank is a high-use area for fin whales in all seasons, with highest abundance occurring over the southern Stellwagen Bank in the summer months. In fact, the southern portion of the Stellwagen Bank National Marine Sanctuary (SBNMS) is used more frequently than the northern portion in all months except winter, when high abundance is recorded over the northern tip of Stellwagen Bank. In addition to Stellwagen Bank, high abundance in winter is estimated for Jeffreys Ledge and the adjacent Porpoise Basin (100- to 160-m, 328- to 656-ft, isobaths), as well as Georges Basin and northern Georges Bank. The best estimate of abundance for the western North Atlantic stock of fin whales is 1,618 (Waring et al., 2016). Currently, there are insufficient data to determine population trends for this species. Humpback Whale The highest abundance for humpback whales is distributed primarily along a relatively narrow corridor following the 100-meter (m) (328-feet (ft)) isobath across the southern Gulf of Maine from the northwestern slope of Georges Bank, south to the Great South Channel, and northward alongside Cape Cod to Stellwagen Bank and Jeffreys Ledge. The relative abundance of whales increases in the spring with the highest occurrence along the slope waters (between the 40- and 140-m, or 131- and 459-ft, isobaths) off Cape Cod and Davis Bank, Stellwagen Basin and Tillies Basin and between the 50- and 200-m (164- and 656-ft) isobaths along the inner slope of Georges Bank. High abundance is also estimated for the waters around Platts Bank. In the summer months, abundance increases markedly over the shallow waters (<50 m, or <164 ft) of Stellwagen Bank, the waters (100–200 m or 328–656 ft) between Platts Bank and Jeffreys Ledge, the steep slopes (between the 30- and 160-m isobaths) of Phelps and Davis Bank north of the Great South Channel towards Cape Cod, and between the 50and 100-m (164- and 328-ft) isobath for almost the entire length of the steeply sloping northern edge of Georges Bank. This general distribution pattern persists in all seasons except winter, when humpbacks remain at high abundance in only a few locations including Porpoise and Neddick Basins adjacent to Jeffreys Ledge, northern Stellwagen Bank and Tillies Basin, and the Great South Channel. The best estimate of abundance for Gulf of Maine, formerly western North Atlantic, VerDate Sep<11>2014 18:06 Jan 05, 2017 Jkt 241001 Minke Whale Like other piscivorous baleen whales, highest abundance for minke whale is strongly associated with regions between the 50- and 100-m (164- and 328-ft) isobaths, but with a slightly stronger preference for the shallower waters along the slopes of Davis Bank, Phelps Bank, Great South Channel and Georges Shoals on Georges Bank. Minke whales are sighted in the SBNMS in all seasons, with highest abundance estimated for the shallow waters (approximately 40 m, or 131 ft) over southern Stellwagen Bank in the summer and fall months. Platts Bank, Cashes Ledge, Jeffreys Ledge, and the adjacent basins (Neddick, Porpoise and Scantium) also support high relative abundance. Very low densities of minke whales remain throughout most of the southern Gulf of Maine in winter. The best estimate of abundance for the Canadian East Coast stock, which occurs from the western half of the Davis Strait to the Gulf of Mexico, of minke whales is 20,741 animals (Waring et al., 2016). Currently, there are insufficient data to determine population trends for this species. PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 1705 North Atlantic Right Whale North Atlantic right whales are generally distributed widely across the southern Gulf of Maine in spring with highest abundance located over the deeper waters (100- to 160-m (328- to 525-ft) isobaths) on the northern edge of the Great South Channel and deep waters (100–300 m, 328–984 ft) parallel to the 100-m (328-ft) isobath of northern Georges Bank and Georges Basin. High abundance is also found in the shallowest waters (<30 m, or <98 ft) of Cape Cod Bay, over Platts Bank and around Cashes Ledge. Lower relative abundance is estimated over deep-water basins including Wilkinson Basin, Rodgers Basin and Franklin Basin. In the summer months, right whales move almost entirely away from the coast to deep waters over basins in the central Gulf of Maine (Wilkinson Basin, Cashes Basin between the 160- and 200-m (525and 656-ft) isobaths) and north of Georges Bank (Rogers, Crowell and Georges Basins). Highest abundance is found north of the 100-m (328-ft) isobath at the Great South Channel and over the deep slope waters and basins along the northern edge of Georges Bank. The waters between Fippennies Ledge and Cashes Ledge are also estimated as high-use areas. In the fall months, right whales are sighted infrequently in the Gulf of Maine, with highest densities over Jeffreys Ledge and over deeper waters near Cashes Ledge and Wilkinson Basin. In winter, Cape Cod Bay, Scantum Basin, Jeffreys Ledge, and Cashes Ledge were the main highuse areas. Although SBNMS does not appear to support the highest abundance of right whales, sightings within SBNMS are reported for all four seasons, albeit at low relative abundance. Highest sighting within SBNMS occurred along the southern edge of the Bank. The western North Atlantic minimum stock size is based on a census of individual whales identified using photo-identification techniques. A review of the photo-ID recapture database as it existed on 20 October 2014 indicated that 476 individually recognized whales in the catalog were known to be alive during 2011. This number represents a minimum population size. This is a direct count and has no associated coefficient of variation (Waring et al., 2016). Examination of the minimum number alive population index calculated from the individual sightings database, as it existed on 20 October 2014, for the years 1990–2011 suggests a positive and slowly accelerating trend in population size. These data reveal a significant E:\FR\FM\06JAN1.SGM 06JAN1 1706 Federal Register / Vol. 82, No. 4 / Friday, January 6, 2017 / Notices increase in the number of catalogued whales with a geometric mean growth rate for the period of 2.8 percent (Waring et al., 2016). sradovich on DSK3GMQ082PROD with NOTICES Long-Finned Pilot Whale The long-finned pilot whale is more generally found along the edge of the continental shelf (a depth of 330 to 3,300 ft or 100 to 1,000 m), choosing areas of high relief or submerged banks in cold or temperate shoreline waters. This species is split between two subspecies: The Northern and Southern subspecies. The Southern subspecies is circumpolar with northern limits of Brazil and South Africa. The Northern subspecies, which could be encountered during operation of the NEG Port, ranges from North Carolina to Greenland (Reeves et al., 2002; Wilson and Ruff 1999). In the western North Atlantic, long-finned pilot whales are pelagic, occurring in especially high densities in winter and spring over the continental slope, then moving inshore and onto the shelf in summer and autumn following squid and mackerel populations (Reeves et al., 2002). They frequently travel into the central and northern Georges Bank, Great South Channel, and Gulf of Maine areas during the summer and early fall (May and October) (NOAA 1993). According to the species stock report, the population estimate for the Western North Atlantic long-finned pilot whale is 5,636 individuals (Waring et al., 2010). Currently, there are insufficient data to determine population trends for the long-finned pilot whale. Atlantic White-Sided Dolphin In spring, summer and fall, Atlantic white-sided dolphins are widespread throughout the southern Gulf of Maine, with the high-use areas widely located either side of the 100-m (328-ft) isobath along the northern edge of Georges Bank, and north from the Great South Channel to Stellwagen Bank, Jeffreys Ledge, Platts Bank and Cashes Ledge. In spring, high-use areas exist in the Great South Channel, northern Georges Bank, the steeply sloping edge of Davis Bank and Cape Cod, southern Stellwagen Bank and the waters between Jeffreys Ledge and Platts Bank. In summer, there is a shift and expansion of habitat toward the east and northeast. High-use areas are identified along most of the northern edge of Georges Bank between the 50- and 200-m (164- and 656-ft) isobaths and northward from the Great South Channel along the slopes of Davis Bank and Cape Cod. High numbers of sightings are also recorded over Truxton Swell, Wilkinson Basin, Cashes Ledge and the bathymetrically complex area northeast of Platts Bank. High numbers VerDate Sep<11>2014 18:06 Jan 05, 2017 Jkt 241001 of sightings of white-sided dolphin are recorded within SBNMS in all seasons, with highest density in summer and most widespread distributions in spring located mainly over the southern end of Stellwagen Bank. In winter, high numbers of sightings are recorded at the northern tip of Stellwagen Bank and Tillies Basin. A comparison of spatial distribution patterns for all baleen whales (Mysticeti) and all porpoises and dolphins combined show that both groups have very similar spatial patterns of high- and low-use areas. The baleen whales, whether piscivorous or planktivorous, are more concentrated than the dolphins and porpoises. They utilize a corridor that extended broadly along the most linear and steeply sloping edges in the southern Gulf of Maine indicated broadly by the 100-m (328-ft) isobath. Stellwagen Bank and Jeffreys Ledge support a high abundance of baleen whales throughout the year. Species richness maps indicate that high-use areas for individual whales and dolphin species co-occur, resulting in similar patterns of species richness primarily along the southern portion of the 100-m (328-ft) isobath extending northeast and northwest from the Great South Channel. The southern edge of Stellwagen Bank and the waters around the northern tip of Cape Cod are also highlighted as supporting high cetacean species richness. Intermediate to high numbers of species are also calculated for the waters surrounding Jeffreys Ledge, the entire Stellwagen Bank, Platts Bank, Fippennies Ledge and Cashes Ledge. The best estimate of abundance for the western North Atlantic stock of white-sided dolphins is 48,819 (Waring et al., 2016). A trend analysis has not been conducted for this species. Killer Whale, Common Dolphin, Bottlenose Dolphin, Risso’s Dolphin, and Harbor Porpoise Although these five species are some of the most widely distributed small cetacean species in the world (Jefferson et al., 1993), they are not commonly seen in the vicinity of the project area in Massachusetts Bay (Wiley et al., 1994; Northeast Gateway Marine Mammal Monitoring Weekly Reports 2007). The total number of killer whales off the eastern U.S. coast is unknown, and present data are insufficient to calculate a minimum population estimate or to determine the population trends for this stock (Blaylock et al., 1995). The best estimate of abundance for the western North Atlantic stock of common dolphins is 173,486 animals, and a trend analysis has not been PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 conducted for this species (Waring et al., 2016). There are several stocks of bottlenose dolphins found along the eastern United States from Maine to Florida. The stock that may occur in the area of the Neptune Port is the western North Atlantic coastal northern migratory stock of bottlenose dolphins. The best estimate of abundance for this stock is 11,548 animals (Waring et al., 2016). There are insufficient data to determine the population trend for this stock. The best estimate of abundance for the western North Atlantic stock of Risso’s dolphins is 18,250 animals (Waring et al., 2016). There are insufficient data to determine the population trend for this stock. The best estimate of abundance for the Gulf of Maine/Bay of Fundy stock of harbor porpoise is 79,833 animals (Waring et al., 2016). A trend analysis has not been conducted for this species. Harbor Seal and Gray Seal In the U.S. waters of the western North Atlantic, both harbor and gray seals are usually found from the coast of Maine south to southern New England and New York (Waring et al., 2010). Along the southern New England and New York coasts, harbor seals occur seasonally from September through late May (Schneider and Payne 1983). In recent years, their seasonal interval along the southern New England to New Jersey coasts has increased (deHart 2002). In U.S. waters, harbor seal breeding and pupping normally occur in waters north of the New Hampshire/ Maine border, although breeding has occurred as far south as Cape Cod in the early part of the 20th century (Temte et al., 1991; Katona et al., 1993). The best estimate of abundance for the western North Atlantic stock of harbor seals is 75,834 animals (Waring et al., 2016). Although gray seals are often seen off the coast from New England to Labrador, within the U.S. waters, only small numbers of gray seals have been observed pupping on several isolated islands along the Maine coast and in Nantucket-Vineyard Sound, Massachusetts (Katona et al., 1993; Rough, 1995). In the late 1990s, a yearround breeding population of approximately 400 gray seals was documented on outer Cape Cod and Muskeget Island (Warring et al., 2007). Depending on the model used, the minimum estimate for the Canadian gray seal population was estimated to range between 125,541 and 169,064 animals (Trzcinski et al., 2005, cited in Waring et al., 2009); however, present data are insufficient to calculate the minimum population estimate for U.S. waters. Waring et al. (2016) note that E:\FR\FM\06JAN1.SGM 06JAN1 1707 Federal Register / Vol. 82, No. 4 / Friday, January 6, 2017 / Notices gray seal abundance in the U.S. Atlantic is likely increasing, but the rate of increase is unknown. TABLE 1—MARINE MAMMAL SPECIES POTENTIALLY PRESENT IN REGION OF ACTIVITY Species ESA status MMPA status Abundance North Atlantic right whale ...................................... Humpback whale .................................................. Fin whale ............................................................... Sei whale .............................................................. Minke whale .......................................................... Long-finned pilot whale ......................................... Atlantic white-sided dolphin .................................. Bottlenose dolphin ................................................ Common dolphin ................................................... Killer whale ............................................................ Risso’s dolphin ...................................................... Harbor porpoise .................................................... Harbor Seal ........................................................... Gray seal ............................................................... Endangered ...... Endangered ...... Endangered ...... Endangered ...... Not listed .......... Not listed .......... Not listed .......... Not listed .......... Not listed .......... Not listed .......... Not listed .......... Not listed .......... Not listed .......... Not listed .......... Depleted ........... Depleted ........... Depleted ........... Depleted ........... Non-depleted .... Non-depleted .... Non-depleted .... Non-depleted .... Non-depleted .... Non-depleted .... Non-depleted .... Non-depleted .... Non-depleted .... Non-depleted .... 476 ................... 823 ................... 1618 ................. 357 ................... 20741 ............... 5636 ................. 48819 ............... 11548 ............... 173486 ............. Unknown ........... 18250 ............... 79833 ............... 75834 ............... Unknown ........... sradovich on DSK3GMQ082PROD with NOTICES 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 ‘‘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 VerDate Sep<11>2014 18:06 Jan 05, 2017 Jkt 241001 Range N. N. N. N. N. N. N. N. N. N. N. N. N. N. 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. NMFS (2016) designate ‘‘marine mammal hearing groups’’ for marine mammals and estimate the lower and upper frequencies of functional hearing of the groups. The marine mammal hearing groups and the associated frequencies are indicated below (though animals are less sensitive to sounds at the outer edge of their range and most sensitive to sounds of frequencies within a smaller range somewhere in the middle of their hearing range): Atlantic Atlantic Atlantic Atlantic Atlantic Atlantic Atlantic Atlantic Atlantic Atlantic Atlantic Atlantic Atlantic Atlantic ......... ......... ......... ......... ......... ......... ......... ......... ......... ......... ......... ......... ......... ......... Occurrence Occasional. Occasional. Occasional. Occasional. Occasional. Occasional. Occasional. Uncommon. Uncommon. Uncommon. Uncommon. Uncommon. Occasional. Occasional. 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 NEG 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; • Low frequency cetaceans (13 species of Schlundt et al., 2000; Finneran et al., mysticetes): Functional hearing is estimated 2002; 2005). TS can be permanent to occur between approximately 7 Hertz (Hz) (PTS), in which case the loss of hearing and 35 kilo Hertz (kHz); sensitivity is unrecoverable, or • Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed temporary (TTS), in which case the whales, and 19 species of beaked and animal’s hearing threshold will recover bottlenose whales): Functional hearing is over time (Southall et al., 2007). Since estimated to occur between approximately marine mammals depend on acoustic 150 Hz and 160 kHz; cues for vital biological functions, such • High frequency cetaceans (eight species as orientation, communication, finding of true porpoises, six species of river prey, and avoiding predators, marine dolphins, Kogia, the franciscana, and four mammals that suffer from PTS or TTS species of cephalorhynchids): Functional will have reduced fitness in survival hearing is estimated to occur between approximately 275 Hz and 160 kHz; and reproduction, either permanently or • Phocid pinnipeds (true seals): Functional temporarily. Repeated noise exposure hearing is estimated between 50 Hz to 86 that leads to TTS could cause PTS. kHz; and In addition, chronic exposure to • Otariid pinnipeds (sea lions and fur excessive, though not high-intensity, seals): Functional hearing is estimated noise could cause masking at particular between 60 Hz to 39 kHz. frequencies for marine mammals that utilize sound for vital biological Species found in the vicinity of the functions (Clark et al., 2009). Acoustic NEG Port and Pipeline Lateral masking can interfere with detection of operations and maintenance and repair acoustic signals such as communication area include five low-frequency calls, echolocation sounds, and cetacean species (North Atlantic right environmental sounds important to whale, humpback whale, fin whale, sei marine mammals. Therefore, under whale, and minke whale), six mid- PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 E:\FR\FM\06JAN1.SGM 06JAN1 sradovich on DSK3GMQ082PROD with NOTICES 1708 Federal Register / Vol. 82, No. 4 / Friday, January 6, 2017 / Notices 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 decibel (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 DP thrusters, dredging and pipe laying associated with NEG Port and Pipeline Lateral maintenance and repair, and NEG 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 VerDate Sep<11>2014 18:06 Jan 05, 2017 Jkt 241001 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 microPascal (root-mean-square) (mPa (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 mPa (rms) for non-impulse noises (such as operating DP thrusters, dredging, pipe laying, and NEG regasification). No impulse noise is expected from the NEG and Algonquin’s NEG Port and Pipeline Lateral operation, maintenance, and repair activities. For the NEG Port and Pipeline Lateral operations and maintenance and repair activities, only the 120=dB re 1 mPa (rms) threshold is considered because only non-impulse noise sources would be generated. Potential Effects on Marine Mammal Habitat The 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 SBNMS. There is no critical habitat in the vicinity of the 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 NEG 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 (EBRV) 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 PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 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 Federal Register notice for the 2015 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 (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 ft 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 12ßC (53.6ßF) 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 × 1014 to 4.29 × 1015 cells per year. Assuming a dryweight biomass of 10¥10 to 10¥11 gramper cell (g/cell), an estimated 7.2 kilograms (kg) to 429 kg of biomass would be lost from Massachusetts Bay under the 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 E:\FR\FM\06JAN1.SGM 06JAN1 sradovich on DSK3GMQ082PROD with NOTICES Federal Register / Vol. 82, No. 4 / Friday, January 6, 2017 / Notices kg of small planktivorous fish, and up to 0.4 kg of large piscivorous fish (approximately equivalent to a single 1pound 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 × 103 organisms per m3. Applying this density, the water withdrawal volume under the activity would result in the entrainment of 2.2 × 1010 zooplankton individuals per trip or 1.5 × 1012 individuals per year. Assuming an average biomass of 0.63 × 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 9pound 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 activity were made based on actual monthly ichthyoplankton data collected in the port area from October 2005 through December 2009 and the 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 NEG 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 activity are cunner post yolk-sac larvae (33.3 million), yellowtail flounder/ Labridae eggs (27.4 million) and hake VerDate Sep<11>2014 18:06 Jan 05, 2017 Jkt 241001 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 NEG 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 ageone losses under the conditions when no NEG Port operation 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 ageone losses ranging from less than 1 haddock to 5,602 American sand lance. By comparison, equivalent age one losses under the 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 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 Port will require scheduled maintenance PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 1709 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 NEG 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 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 wateruse 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 NEG 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 NEG Port as necessary to support all such maintenance and repair scenarios. Therefore, NMFS considers that NEG Port maintenance and repair would E:\FR\FM\06JAN1.SGM 06JAN1 1710 Federal Register / Vol. 82, No. 4 / Friday, January 6, 2017 / Notices have negligible impacts to marine mammal habitat in the activity area. sradovich on DSK3GMQ082PROD with NOTICES Unanticipated Algonquin Pipeline Lateral Maintenance and Repair As stated earlier, proper care and maintenance of the 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 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 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 longterm consequences for individual marine mammals or their populations. 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. (a) General Marine Mammal Avoidance Measures All vessels shall utilize the International Maritime Organization (IMO)-approved Boston Traffic VerDate Sep<11>2014 18:06 Jan 05, 2017 Jkt 241001 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 SBNMS, EBRVs 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 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 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; and • The sighting shall be recorded in the sighting log by the designated lookout. 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 (yd, 460 m) to a North Atlantic right whale and 100 yd (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 visuallydetected North Atlantic right whales. In response to active right whale sightings and active acoustic detections, PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 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 (nmi) 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 autodetection 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°30′ N. 70°30′ W. 41°40′ N. 69°57′ W. 42°30′ N. 69°45′ W. 42°12′ N. 70°15′ W. 41°40′ N. 69°45′ W. 42°12′ N. 70°30′ W. 42°04.8′ N. 70°10′ W. 42°30′ N. 70°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°30′ N. 69°45′ W. 41°40′ N. 69°45′ W. E:\FR\FM\06JAN1.SGM 06JAN1 Federal Register / Vol. 82, No. 4 / Friday, January 6, 2017 / Notices 42°30′ N. 67°27′ W. 42°30′ N. 69°45′ W. 42°09′ N. 67°08.4′ W. 41°00′ N. 69°05′ W.; sradovich on DSK3GMQ082PROD with NOTICES (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°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; and (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 (mi) (8 km) 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 mi (3 km) from the NEG Port, speed will be reduced to 3 knots and to less than 1 knot at 1,640 ft (500 m) from the 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- VerDate Sep<11>2014 18:06 Jan 05, 2017 Jkt 241001 detected North Atlantic right whale and at least 100 yd (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 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 from 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 mPa 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 PO 00000 Frm 00027 Fmt 4703 Sfmt 4703 1711 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 mi (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 mPa 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 mi (0.8 km) 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 E:\FR\FM\06JAN1.SGM 06JAN1 sradovich on DSK3GMQ082PROD with NOTICES 1712 Federal Register / Vol. 82, No. 4 / Friday, January 6, 2017 / Notices 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 mPa @ 1 m or higher when a right whale is sighted within or approaching at 500 yd (457 meters) from the vessel. The source level of 139 dB corresponds to 120 dB received level at 500 yd (457 meters). Repair and maintenance work may resume after the marine mammal is positively reconfirmed outside the established zones (500 yd (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 mPa @ 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 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 1mPa @ 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; • 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; and VerDate Sep<11>2014 18:06 Jan 05, 2017 Jkt 241001 • 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 less and a sighting within 750 m 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; and • 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 PO 00000 Frm 00028 Fmt 4703 Sfmt 4703 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 yd (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 mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: • The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals. • The proven or likely efficacy of the specific measure to minimize adverse impacts as planned. • The practicability of the measure for applicant implementation. Based on our evaluation of the applicant’s mitigation measures, as well as other measures considered by NMFS, NMFS has determined that the mitigation measures provide the means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Monitoring and Reporting In order to issue an incidental take authorization (ITA) 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 ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. NE Gateway has provided marine mammal monitoring measures as part of the IHA application. It can be found at http://www.nmfs.noaa.gov/pr/permits/ incidental.htm. E:\FR\FM\06JAN1.SGM 06JAN1 Federal Register / Vol. 82, No. 4 / Friday, January 6, 2017 / Notices 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: • 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); • 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); and • 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. Monitoring Measures sradovich on DSK3GMQ082PROD with NOTICES (a) Vessel-Based Visual Monitoring Vessel-based monitoring for marine mammals shall be done by trained lookouts during NEG Port and Pipeline Lateral operations and maintenance and repair activities. The observers shall monitor the occurrence of marine mammals near the vessels during NEG 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 marine mammals shall be provided with the following: VerDate Sep<11>2014 18:06 Jan 05, 2017 Jkt 241001 (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 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 PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 1713 additional vessels if AB data indicates that sound levels exceed 120 dB re 1 mPa, further then 100 m (328 ft) from these vessels. All PSOs shall receive NMFSapproved 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° 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 mi (3.31 km) immediately; and (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-mi (3.31-km) ZOI E:\FR\FM\06JAN1.SGM 06JAN1 1714 Federal Register / Vol. 82, No. 4 / Friday, January 6, 2017 / Notices sradovich on DSK3GMQ082PROD with NOTICES of a DP vessel or other construction vessel that has shown to emit noise with source level in excess of 139 dB re 1 mPa @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 nmi 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 NEG shipments in a 30-day period or over 20 shipments in a 6month 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 nmi 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. (e) Acoustic Whale Detection and Response Plan NEG Port Operations (1) Ten ABs that have been deployed since 2007 shall be used to continuously VerDate Sep<11>2014 18:06 Jan 05, 2017 Jkt 241001 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 120dB 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. 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; and • Conclusion of any planned or unplanned/emergency repair and/or PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 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 issued 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; E:\FR\FM\06JAN1.SGM 06JAN1 sradovich on DSK3GMQ082PROD with NOTICES Federal Register / Vol. 82, No. 4 / Friday, January 6, 2017 / Notices • 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 incident to the Supervisor of the Incidental Take Program, Permits and Conservation Division, Office of Protected Resources, NMFS, and the NMFS Northeast Stranding VerDate Sep<11>2014 18:06 Jan 05, 2017 Jkt 241001 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 Port and Pipeline Lateral operation, maintenance and repair activities and monthly marine mammal observation memorandums (NEG 2010; 2015; 2016) indicate that only a small number of marine mammals were observed during these activities. Only one NEG Port operation occurred within the dates of the current IHA (starting December 23, 2015) and only one unidentified small whale was observed at a distance of 2 nmi from the NEG vessel on January 17, 2016. 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 NEG 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 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’’ PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 1715 section found earlier in this document. The potential effects of sound from the NEG 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. Hearing impairment (TTS and PTS) is highly unlikely to occur based on low noise source levels from the 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 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 mPa isopleth to indicate the onset of Level B harassment. 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 Port and 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 number of days such activities would occur during a yearlong period. For the NEG Port operations, the 120-dB ensonified area is 56.8 km2 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 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 km2. 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 E:\FR\FM\06JAN1.SGM 06JAN1 1716 Federal Register / Vol. 82, No. 4 / Friday, January 6, 2017 / Notices event were taken at the source. Measurements taken during EBRV transit were normalized to a distance of 328 ft (100 m) 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 sitespecific distances to the 120/160/180 dB isopleths: • Operations Position 1—Port (EBRV Operations): 70°36.261′ W and 42°23.790′ N; and • Operations Position 2—Boston TSS (EBRV Transit): 70°17.621′ W and 42°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 georeferenced 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° 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. TABLE 2—RADII OF 120 DB SPL ISOPLETHS FROM NEG PORT AND ALGONQUIN PIPELINE LATERAL OPERATIONS, MAINTENANCE, AND REPAIR ACTIVITIES Radius to 120 dB zone (m) Activities 120-dB ensonified area (km2) 4,250 3,500 56.8 40.7 One EBRV docking procedure with support vessel .................................................................................... Barge/tug (pulling & pushing)/construction vessel/barge @ mid-pipeline ................................................... sradovich on DSK3GMQ082PROD with NOTICES 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 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°36.261′ W and 42°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 mPa at a distance of 3,500 m. VerDate Sep<11>2014 18:06 Jan 05, 2017 Jkt 241001 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 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°46.755′ W and 42°28.764′ N; and • Construction Position 3. MidPipeline: 70°40.842′ W and 42°31.328′ N Sound propagation calculations were performed to determine the noise footprint of the construction activity. The results of the distances to the 120dB are shown in Table 2. PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 Since the issuance of an IHA to NEG on December 22, 2015, there was only one NEG delivery at the NEG Port in January 2015. NEG expects that when the Port is under full operation, it will receive up to 65 NEG 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 Densities The density calculation methodology applied to take estimates for this application is derived from the model results produced by Roberts et al. (2016) for the east coast region. These files are available Duke University’s Habitatbased Cetacean Density Models Web site: http://http://seamap.env.duke.edu/ models/Duke-EC-GOM-2015/. The estimated mean monthly abundance for each species for each month was an average of each month. Monthly values were not modeled for some species (e.g. killer whale), therefore, only the single value was reported. Estimates provided by the models are based on a grid cell size of 100 km2, therefore, model grid cell values were divided by 100 to determine animals per km2. Gray seal and harbor seal densities are not provided in the Roberts et al. (2016) models. Seal densities were derived from the Strategic Environmental E:\FR\FM\06JAN1.SGM 06JAN1 1717 Federal Register / Vol. 82, No. 4 / Friday, January 6, 2017 / Notices Research and Development Program (SERDP) using the Navy Oparea Density Estimate (NODE) model for the Northeast Opareas. (Best et al., 2012). A summary of the each species density is provided in Table 3 below. Marine Mammal Take Calculation Based on NEG Gateway’s expectations of up to 65 NEG shipments per year, and up to 14 days for NEG Port maintenance and up to 40 days for planned and unplanned Algonquin Pipeline Lateral repair, the total estimated takes in a TABLE 3—ESTIMATED SPECIES given year is calculated based on the DENSITIES following equation. [animals per km2] N = ANEG*D*65 + APort*D*14 + APipeline*D*40 Mean monthly Species Where N is the take number for a densities given species with average density of D. North Atlantic right whale ..... 0.000838 ANEG, APort, and APipeline are the 120-dB Fin whale .............................. 0.00225 ZOI during EMRV vessel docking for Humpback whale .................. 0.00502 regasification, NEG Port maintenance, Minke whale .......................... 0.00354 and Algonquin Pipeline Lateral repair, Sei whale .............................. 0.000025 Long-finned Pilot whale ........ 0.00135 respectively. In addition, numbers of Killer whale ........................... 0.0000089 some species that usually occur in Atlantic white-sided dolphin .. 0.0219 groups were adjusted to reflect the Bottlenose dolphin ................ 0.0113 average number of animals in a typical Common dolphin .................. 0.0025 group. A summary of expected takes is Risso’s dolphin ..................... 0.00025 provided in Table 4. Since it is very Harbor porpoise .................... 0.0804 likely that individual animals could be Gray seal .............................. 0.027 ‘‘taken’’ by harassment multiple times, Harbor seal ........................... 0.097 the 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 less. 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 determined that the takes of 7 killer whales and 159 gray seals represent a small fraction of the population and stocks of these species (Table 4). There is no danger of injury, death, or hearing impairment from the exposure to these noise levels. TABLE 4—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 exposure based on density Species Population/stock Right whale ...................................................... Fin whale ......................................................... Humpback whale ............................................. Sei whale ......................................................... Minke whale ..................................................... Long-finned pilot whale .................................... Killer whale ...................................................... Atlantic white-sided dolphin ............................. Bottlenose dolphin ........................................... Short-beaked common dolphin ........................ Risso’s dolphin ................................................. Harbor porpoise ............................................... Harbor seal ...................................................... Gray seal ......................................................... Western Atlantic .............................................. Western North Atlantic .................................... Gulf of Maine .................................................. Nova Scotia .................................................... Canadian East Coast ...................................... Western North Atlantic .................................... Western North Atlantic .................................... Western North Atlantic .................................... Western North Atlantic Southern Migratory .... Western North Atlantic .................................... Western North Atlantic .................................... Gulf of Maine/Bay of Fundy ............................ Western North Atlantic .................................... Western North Atlantic .................................... Population (%) Estimated take 5 13 30 1 21 8 1 129 67 15 2 474 571 159 5 13 30 3 21 15 7 129 67 40 18 474 571 159 1.36. 0.82. 3.59. 0.04. 0.10. 0.14. Unknown.* 0.26 0.58. 0.01. 0.01. 0.59. 0.75. Unknown.* * Killer whale and gray seal abundance information is not available. sradovich on DSK3GMQ082PROD with NOTICES Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing On August 4, 2016, NMFS released its Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Guidance). This new guidance established new thresholds for predicting auditory injury, which equates to Level A harassment under the MMPA. In the Federal Register notice (81 FR 51694), NMFS explained the approach it would take during a transition period, wherein we balance the need to consider this new best available science with the fact that some applicants have already VerDate Sep<11>2014 18:06 Jan 05, 2017 Jkt 241001 committed time and resources to the development of analyses based on our previous guidance and have constraints that preclude the recalculation of take estimates, as well as where the action is in the agency’s decision-making pipeline. In that Notice, we included a non-exhaustive list of factors that would inform the most appropriate approach for considering the new Guidance, including: the scope of effects; how far in the process the applicant has progressed; when the authorization is needed; the cost and complexity of the analysis; and the degree to which the guidance is expected to affect our analysis. PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 In this case, we performed an analysis using the new Guidance to calculate potential takes of marine mammal by Level A harassment. The results show that given the brief duration of the NEG operations, NEG Port maintenance, and Algonquin Pipeline Lateral repair activities, no marine mammals would be exposed to received noise levels that would cause auditory injury. Analysis and 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 E:\FR\FM\06JAN1.SGM 06JAN1 sradovich on DSK3GMQ082PROD with NOTICES 1718 Federal Register / Vol. 82, No. 4 / Friday, January 6, 2017 / Notices 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., populationlevel 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 4, given that the anticipated effects of NEG Port and Pipeline Lateral operations, maintenance, and repair activities on marine mammals (taking into account the prescribed 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 NEG 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 NEG shipments per year, and would require 14 days for NEG Port maintenance and up to 40 days for planned and unplanned Pipeline Lateral maintenance and repair, schedules of NEG 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 activities and short-term changes in behavior, falling within the MMPA definition of ‘‘Level B harassment.’’ VerDate Sep<11>2014 18:06 Jan 05, 2017 Jkt 241001 Mitigation measures, such as controlled vessel speed, dedicated marine mammal observers, and passive acoustic monitoring, will ensure that takes are limited to Level B harassment and that these takes are minimized. 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 action 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 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, as stated earlier, the NEG and Algonquin’s action would only involve short duration of elevated noise levels. In addition, based on prior monitoring reports, on average NEG only had one NEG delivery event per year, and this trend is likely to continue. Of note, although we have analyzed the impact of the authorized take on the stocks, the actual impacts to these species from the Northeast Gateway’s operations would likely be less than what are analyzed here. There are no known important areas for other species within the action area. Regarding adverse effects to marine mammal habitat, the major potential impact would be the loss of prey due to water intake for cooling during the NEG regasification process. Under the requested water-use scenario, it is estimated that a dry-weight biomass of 916.5 kg of zooplankton per year (including 9.2 kg of large piscivorous fish) would be lost per year. The amount of loss is minor relative to the total biomass of the trophic level in Massachusetts Bay. Based on the analysis contained herein of the likely effects of the specified activity on marine mammal species and stocks and their habitat, and taking into consideration the implementation of the prescribed monitoring and mitigation measures, NMFS finds that the total marine mammal take from NEG and Algonquin’s NEG Port and Pipeline Lateral operation, maintenance, and repair activities in Masschusetts Bay is not expected to adversely the annual rates of recruitment or survival, and PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 therefore will have a negligible impact on the affected marine mammal species or stocks. Small Numbers The requested takes represent less than 3.6 percent of all populations or stocks potentially impacted (see Table 4 in this document). These authorized take represent the maximum percentage of each species or stock that could be taken by behavioral harassment or TTS (Level B harassment). The numbers of marine mammals authorized to be taken are small proportions of the total populations of the affected species or stocks. 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 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 NEG 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 NEG 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 from what was originally evaluated for the NEG 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 under section 101(a)(5)(D) of the MMPA for the activities that include increased NEG Port and Pipeline Lateral maintenance and repair and water usage E:\FR\FM\06JAN1.SGM 06JAN1 Federal Register / Vol. 82, No. 4 / Friday, January 6, 2017 / Notices for the NEG Port operations this activity. A Biological Opinion was issued on November 21, 2014, and concluded that the 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 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 NEG 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 NEG 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 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 that the preparation of a new or supplemental NEPA document is not necessary. Authorization sradovich on DSK3GMQ082PROD with NOTICES As a result of these determinations, NMFS has issued an IHA to Northeast Gateway and Algonquin for activities associated with Northeast Gateway’s NEG Port and Algonquin’s Pipeline Lateral operations and maintenance and repair activities in the Massachusetts Bay, which also includes the mitigation, monitoring, and reporting requirements described in this Notice. Dated: December 28, 2016. Donna Wieting, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2016–31948 Filed 1–5–17; 8:45 am] BILLING CODE 3510–22–P VerDate Sep<11>2014 18:06 Jan 05, 2017 Jkt 241001 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XF134 New England Fishery Management Council; Public Meeting National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; public meeting. AGENCY: The New England Fishery Management Council (Council) is scheduling a public meeting of its Recreational Advisory Panel to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate. DATES: This meeting will be held on Wednesday, January 18, 2017, from 1:30 p.m. to 5:30 p.m. ADDRESSES: The meeting will be held at the Hilton Garden Inn, 5 Park Street, Freeport, ME 04032; telephone: (207) 865–1433. Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. FOR FURTHER INFORMATION CONTACT: Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465–0492. SUPPLEMENTARY INFORMATION: SUMMARY: Agenda The Recreational Advisory Panel plans to discuss Fishing Year (FY) 2017 Recreational Measures for Gulf of Maine cod and haddock. They will also receive an overview of recent recreational catch and effort data. The Panel will also discuss results from the bioeconomic model to evaluate options for management measures. They will make recommendations to the Groundfish Committee on FY 2017 recreational measures for Gulf of Maine cod and haddock. The Panel also plans to receive an overview and discuss the Council’s 2017 Groundfish Priorities and make recommendations to the Groundfish Committee, as appropriate. Other business will be discussed as necessary. Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 1719 that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council’s intent to take final action to address the emergency. Special Accommodations This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465–0492, at least 5 days prior to the meeting date. Authority: 16 U.S.C. 1801 et seq. Dated: January 3, 2017. Jeffrey N. Lonergan, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 2017–00048 Filed 1–5–17; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XF125 Mid-Atlantic Fishery Management Council (MAFMC); Public Meeting National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; public meeting. AGENCY: The Mid-Atlantic Fishery Management Council’s (MAFMC’s) Summer Flounder, Scup, and Black Sea Bass Monitoring Committee (MC) will hold a public meeting. DATES: The meeting will be held on Thursday, January 26, 2017, from 10 a.m. to 5 p.m. For agenda details, see SUPPLEMENTARY INFORMATION. ADDRESSES: The meeting will be held at the Royal Sonesta Harbor Court, 550 Light St, Baltimore, MD 21202; telephone: (410) 234–0550. Council address: Mid-Atlantic Fishery Management Council, 800 N. State Street, Suite 201, Dover, DE 19901; telephone: (302) 674–2331 or on their Web site at www.mafmc.org. FOR FURTHER INFORMATION CONTACT: Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526–5255. SUPPLEMENTARY INFORMATION: The Summer Flounder, Scup, and Black Sea Bass Monitoring Committee will meet to develop recommendations for commercial and recreational Annual Catch Limits (ACLs) and Annual Catch Targets (ACTs) for black sea bass for SUMMARY: E:\FR\FM\06JAN1.SGM 06JAN1

Agencies

[Federal Register Volume 82, Number 4 (Friday, January 6, 2017)]
[Notices]
[Pages 1703-1719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31948]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[0648-XE753]


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; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that we have issued an incidental harassment authorization (IHA) to 
Northeast Gateway[supreg] Energy BridgeTM, L.P. (Northeast 
Gateway or NEG) and Algonquin Gas Transmission, LLC (Algonquin) 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.

DATES: This authorization is effective from December 22, 2016 through 
December 21, 2017.

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

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (Secretary) to allow, upon request, 
the incidental, but not intentional taking of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region if certain findings are 
made and regulations are issued or, if the taking is limited to 
harassment, a notice of a proposed authorization is provided to the 
public for review.
    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

[[Page 1704]]

period, NMFS must either issue or deny the authorization.

Summary of Request

    On June 9, 2015, NMFS received an application from Excelerate 
Energy, L.P. (Excelerate) and Tetra Tech, Inc. (Tetra Tech), on behalf 
of NEG and Algonquin, for an annual IHA and a subsequent five-year 
letter of authorization (LOA) pursuant to a rulemaking under section 
101(a)(5)(A), to take 14 species of marine mammals by Level B 
harassment incidental to operations, maintenance, and repair of the NEG 
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 the NEG 
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 issued an IHA to NEG 
and Algonquin on December 22, 2015 (81 FR 744; January 7, 2016). The 
IHA is valid until December 22, 2016. In June 2016 NMFS learned that 
NEG and Algonquin are considering decommissioning the NEG Port in the 
foreseeable future. Upon discussion with Excelerate and Tetra Tech, it 
was agreed that instead of conducting a rulemaking for five years of 
incidental take authorization that may not be needed, NMFS would 
process another one-year IHA to NEG and Algonquin to cover marine 
mammal takes from its operations, maintenance, and repair work from 
December 23, 2016 through December 22, 2017.
    NMFS first issued an IHA to NEG 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 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). After that, NMFS 
issued two one-year IHAs to NEG and Algonquin to take marine mammals 
incidental to the operations of the NEG Port as well as maintenance and 
repair (79 FR 78806; December 31, 2014, 81 FR 744; January 7, 2016).

Description of the Specified Activity

    The NEG and Algonquin activities include the following:
    NEG Port Operations: The NEG Port operations involve docking of NEG 
vessels and regasification of NEG for delivery to shore. Noises 
generated during these activities, especially from the NEG vessel's 
dynamic positioning (DP) 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 occasionally at a location along the Pipeline Lateral 
in west Massachusetts Bay, as shown in Figure 2.1 of the 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, 2015 (81 FR 744; January 7, 2016), based on activities 
described on Excelerate and Tetra Tech's marine mammal incidental take 
request submitted in June 2014 and on the Federal Register notice for 
the proposed IHA (78 FR 69049; November 18, 2013). The latest 
application submitted by Excelerate and Tetra Tech on June 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 NEG Port and Pipeline Lateral operations and 
maintenance and repair. Please refer to these documents for a detailed 
description of NEG and Algonquin's proposed NEG Port and Pipeline 
Lateral operations and maintenance and repair activities.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the 
Federal Register on November 15, 2016 (81 FR 80016). During the 30-day 
public comment period, NMFS received a comment letter from the Marine 
Mammal Commission (Commission). Specific comments and responses are 
provided below.
    Comment 1: The Commission states that the method used to estimate 
the numbers of takes, which sums fractions of takes for each species 
across days, does not account for NMFS's 24-hour reset policy. The 
Commission states that instead of summing fractions of takes across 
days and then rounding to estimate total takes, NMFS should have 
calculated a daily take estimate (determined by multiplying the 
estimated density of marine mammals in the area by the daily ensonified 
area) and then rounding that to a whole number before multiplying it by 
the number of days that activities would occur. Thus, the Commission 
recommends that NMFS (1) follow its policy of a 24-hour reset for 
enumerating the number of each species that could be taken, (2) apply 
standard rounding rules before summing the numbers of estimated takes 
across days, and (3) for species that have the potential to be taken 
but model-estimated or calculated takes round to zero, use group size 
to inform the take estimates--these methods should be used consistently 
for all future incidental take authorizations.
    Response: While for certain projects NMFS has rounded to the whole 
number for daily takes, the circumstance for projects like this one 
when the objective of take estimation is to provide more accurate 
assessments for potential impacts to marine mammals for the entire 
project, the rounding on a daily basis will introduce large errors into 
the process. In addition, while NMFS uses a 24-hour reset for its take 
calculation to ensure that individual animals are not counted as a take 
more than once per day, that fact does not make the calculation of take 
across the entire activity period inherently incorrect. There is no 
need for daily (24-hour) rounding in this case because there is no 
daily limit of takes, so long as total authorized takes of marine 
mammal are not exceeded. In short, the calculation of predicted take is 
not an exact science and there are arguments for taking different 
mathematical approaches in different situations, and for making 
qualitative adjustments in other situations. We

[[Page 1705]]

believe, however, that the prediction for this action remains 
appropriate.

Description of Marine Mammals in the Area of the Specified Activities

    Marine mammal species that potentially occur in the vicinity of the 
Northeast Gateway facility include the North Atlantic right whale, 
humpback whale, fin whale, sei whale, minke whale, long-finned pilot 
whale, Atlantic white-sided dolphin, bottlenose dolphin, common 
dolphin, killer whale, Risso's dolphin, harbor porpoise, harbor seal, 
and gray seal. General information on the distribution of these marine 
mammal species can be found in NMFS Stock Assessment Reports (Waring et 
al., 2016). This latter document is available at: http://www.nmfs.noaa.gov/pr/sars/pdf/atlantic2015_final.pdf. Additional 
information regarding these species within the NEG's action area is 
provided below, with a summary in Table 1.

Humpback Whale

    The highest abundance for humpback whales is distributed primarily 
along a relatively narrow corridor following the 100-meter (m) (328-
feet (ft)) isobath across the southern Gulf of Maine from the 
northwestern slope of Georges Bank, south to the Great South Channel, 
and northward alongside Cape Cod to Stellwagen Bank and Jeffreys Ledge. 
The relative abundance of whales increases in the spring with the 
highest occurrence along the slope waters (between the 40- and 140-m, 
or 131- and 459-ft, isobaths) off Cape Cod and Davis Bank, Stellwagen 
Basin and Tillies Basin and between the 50- and 200-m (164- and 656-ft) 
isobaths along the inner slope of Georges Bank. High abundance is also 
estimated for the waters around Platts Bank. In the summer months, 
abundance increases markedly over the shallow waters (<50 m, or <164 
ft) of Stellwagen Bank, the waters (100-200 m or 328-656 ft) between 
Platts Bank and Jeffreys Ledge, the steep slopes (between the 30- and 
160-m isobaths) of Phelps and Davis Bank north of the Great South 
Channel towards Cape Cod, and between the 50- and 100-m (164- and 328-
ft) isobath for almost the entire length of the steeply sloping 
northern edge of Georges Bank. This general distribution pattern 
persists in all seasons except winter, when humpbacks remain at high 
abundance in only a few locations including Porpoise and Neddick Basins 
adjacent to Jeffreys Ledge, northern Stellwagen Bank and Tillies Basin, 
and the Great South Channel. The best estimate of abundance for Gulf of 
Maine, formerly western North Atlantic, humpback whales is 823 animals 
(Waring et al., 2016).

Fin Whale

    Spatial patterns of habitat utilization by fin whales are very 
similar to those of humpback whales. Spring and summer high-use areas 
follow the 100-m (328 ft) isobath along the northern edge of Georges 
Bank (between the 50- and 200-m (164- and 656-ft) isobaths), and 
northward from the Great South Channel (between the 50- and 160-m, or 
164- and 525-ft, isobaths). Waters around Cashes Ledge, Platts Bank, 
and Jeffreys Ledge are all high-use areas in the summer months. 
Stellwagen Bank is a high-use area for fin whales in all seasons, with 
highest abundance occurring over the southern Stellwagen Bank in the 
summer months. In fact, the southern portion of the Stellwagen Bank 
National Marine Sanctuary (SBNMS) is used more frequently than the 
northern portion in all months except winter, when high abundance is 
recorded over the northern tip of Stellwagen Bank. In addition to 
Stellwagen Bank, high abundance in winter is estimated for Jeffreys 
Ledge and the adjacent Porpoise Basin (100- to 160-m, 328- to 656-ft, 
isobaths), as well as Georges Basin and northern Georges Bank. The best 
estimate of abundance for the western North Atlantic stock of fin 
whales is 1,618 (Waring et al., 2016). Currently, there are 
insufficient data to determine population trends for this species.

Minke Whale

    Like other piscivorous baleen whales, highest abundance for minke 
whale is strongly associated with regions between the 50- and 100-m 
(164- and 328-ft) isobaths, but with a slightly stronger preference for 
the shallower waters along the slopes of Davis Bank, Phelps Bank, Great 
South Channel and Georges Shoals on Georges Bank. Minke whales are 
sighted in the SBNMS in all seasons, with highest abundance estimated 
for the shallow waters (approximately 40 m, or 131 ft) over southern 
Stellwagen Bank in the summer and fall months. Platts Bank, Cashes 
Ledge, Jeffreys Ledge, and the adjacent basins (Neddick, Porpoise and 
Scantium) also support high relative abundance. Very low densities of 
minke whales remain throughout most of the southern Gulf of Maine in 
winter. The best estimate of abundance for the Canadian East Coast 
stock, which occurs from the western half of the Davis Strait to the 
Gulf of Mexico, of minke whales is 20,741 animals (Waring et al., 
2016). Currently, there are insufficient data to determine population 
trends for this species.

North Atlantic Right Whale

    North Atlantic right whales are generally distributed widely across 
the southern Gulf of Maine in spring with highest abundance located 
over the deeper waters (100- to 160-m (328- to 525-ft) isobaths) on the 
northern edge of the Great South Channel and deep waters (100-300 m, 
328-984 ft) parallel to the 100-m (328-ft) isobath of northern Georges 
Bank and Georges Basin. High abundance is also found in the shallowest 
waters (<30 m, or <98 ft) of Cape Cod Bay, over Platts Bank and around 
Cashes Ledge. Lower relative abundance is estimated over deep-water 
basins including Wilkinson Basin, Rodgers Basin and Franklin Basin. In 
the summer months, right whales move almost entirely away from the 
coast to deep waters over basins in the central Gulf of Maine 
(Wilkinson Basin, Cashes Basin between the 160- and 200-m (525- and 
656-ft) isobaths) and north of Georges Bank (Rogers, Crowell and 
Georges Basins). Highest abundance is found north of the 100-m (328-ft) 
isobath at the Great South Channel and over the deep slope waters and 
basins along the northern edge of Georges Bank. The waters between 
Fippennies Ledge and Cashes Ledge are also estimated as high-use areas. 
In the fall months, right whales are sighted infrequently in the Gulf 
of Maine, with highest densities over Jeffreys Ledge and over deeper 
waters near Cashes Ledge and Wilkinson Basin. In winter, Cape Cod Bay, 
Scantum Basin, Jeffreys Ledge, and Cashes Ledge were the main high-use 
areas. Although SBNMS does not appear to support the highest abundance 
of right whales, sightings within SBNMS are reported for all four 
seasons, albeit at low relative abundance. Highest sighting within 
SBNMS occurred along the southern edge of the Bank.
    The western North Atlantic minimum stock size is based on a census 
of individual whales identified using photo-identification techniques. 
A review of the photo-ID recapture database as it existed on 20 October 
2014 indicated that 476 individually recognized whales in the catalog 
were known to be alive during 2011. This number represents a minimum 
population size. This is a direct count and has no associated 
coefficient of variation (Waring et al., 2016). Examination of the 
minimum number alive population index calculated from the individual 
sightings database, as it existed on 20 October 2014, for the years 
1990-2011 suggests a positive and slowly accelerating trend in 
population size. These data reveal a significant

[[Page 1706]]

increase in the number of catalogued whales with a geometric mean 
growth rate for the period of 2.8 percent (Waring et al., 2016).

Long-Finned Pilot Whale

    The long-finned pilot whale is more generally found along the edge 
of the continental shelf (a depth of 330 to 3,300 ft or 100 to 1,000 
m), choosing areas of high relief or submerged banks in cold or 
temperate shoreline waters. This species is split between two 
subspecies: The Northern and Southern subspecies. The Southern 
subspecies is circumpolar with northern limits of Brazil and South 
Africa. The Northern subspecies, which could be encountered during 
operation of the NEG Port, ranges from North Carolina to Greenland 
(Reeves et al., 2002; Wilson and Ruff 1999). In the western North 
Atlantic, long-finned pilot whales are pelagic, occurring in especially 
high densities in winter and spring over the continental slope, then 
moving inshore and onto the shelf in summer and autumn following squid 
and mackerel populations (Reeves et al., 2002). They frequently travel 
into the central and northern Georges Bank, Great South Channel, and 
Gulf of Maine areas during the summer and early fall (May and October) 
(NOAA 1993). According to the species stock report, the population 
estimate for the Western North Atlantic long-finned pilot whale is 
5,636 individuals (Waring et al., 2010). Currently, there are 
insufficient data to determine population trends for the long-finned 
pilot whale.

Atlantic White-Sided Dolphin

    In spring, summer and fall, Atlantic white-sided dolphins are 
widespread throughout the southern Gulf of Maine, with the high-use 
areas widely located either side of the 100-m (328-ft) isobath along 
the northern edge of Georges Bank, and north from the Great South 
Channel to Stellwagen Bank, Jeffreys Ledge, Platts Bank and Cashes 
Ledge. In spring, high-use areas exist in the Great South Channel, 
northern Georges Bank, the steeply sloping edge of Davis Bank and Cape 
Cod, southern Stellwagen Bank and the waters between Jeffreys Ledge and 
Platts Bank. In summer, there is a shift and expansion of habitat 
toward the east and northeast. High-use areas are identified along most 
of the northern edge of Georges Bank between the 50- and 200-m (164- 
and 656-ft) isobaths and northward from the Great South Channel along 
the slopes of Davis Bank and Cape Cod. High numbers of sightings are 
also recorded over Truxton Swell, Wilkinson Basin, Cashes Ledge and the 
bathymetrically complex area northeast of Platts Bank. High numbers of 
sightings of white-sided dolphin are recorded within SBNMS in all 
seasons, with highest density in summer and most widespread 
distributions in spring located mainly over the southern end of 
Stellwagen Bank. In winter, high numbers of sightings are recorded at 
the northern tip of Stellwagen Bank and Tillies Basin.
    A comparison of spatial distribution patterns for all baleen whales 
(Mysticeti) and all porpoises and dolphins combined show that both 
groups have very similar spatial patterns of high- and low-use areas. 
The baleen whales, whether piscivorous or planktivorous, are more 
concentrated than the dolphins and porpoises. They utilize a corridor 
that extended broadly along the most linear and steeply sloping edges 
in the southern Gulf of Maine indicated broadly by the 100-m (328-ft) 
isobath. Stellwagen Bank and Jeffreys Ledge support a high abundance of 
baleen whales throughout the year. Species richness maps indicate that 
high-use areas for individual whales and dolphin species co-occur, 
resulting in similar patterns of species richness primarily along the 
southern portion of the 100-m (328-ft) isobath extending northeast and 
northwest from the Great South Channel. The southern edge of Stellwagen 
Bank and the waters around the northern tip of Cape Cod are also 
highlighted as supporting high cetacean species richness. Intermediate 
to high numbers of species are also calculated for the waters 
surrounding Jeffreys Ledge, the entire Stellwagen Bank, Platts Bank, 
Fippennies Ledge and Cashes Ledge. The best estimate of abundance for 
the western North Atlantic stock of white-sided dolphins is 48,819 
(Waring et al., 2016). A trend analysis has not been conducted for this 
species.

Killer Whale, Common Dolphin, Bottlenose Dolphin, Risso's Dolphin, and 
Harbor Porpoise

    Although these five species are some of the most widely distributed 
small cetacean species in the world (Jefferson et al., 1993), they are 
not commonly seen in the vicinity of the project area in Massachusetts 
Bay (Wiley et al., 1994; Northeast Gateway Marine Mammal Monitoring 
Weekly Reports 2007). The total number of killer whales off the eastern 
U.S. coast is unknown, and present data are insufficient to calculate a 
minimum population estimate or to determine the population trends for 
this stock (Blaylock et al., 1995). The best estimate of abundance for 
the western North Atlantic stock of common dolphins is 173,486 animals, 
and a trend analysis has not been conducted for this species (Waring et 
al., 2016). There are several stocks of bottlenose dolphins found along 
the eastern United States from Maine to Florida. The stock that may 
occur in the area of the Neptune Port is the western North Atlantic 
coastal northern migratory stock of bottlenose dolphins. The best 
estimate of abundance for this stock is 11,548 animals (Waring et al., 
2016). There are insufficient data to determine the population trend 
for this stock. The best estimate of abundance for the western North 
Atlantic stock of Risso's dolphins is 18,250 animals (Waring et al., 
2016). There are insufficient data to determine the population trend 
for this stock. The best estimate of abundance for the Gulf of Maine/
Bay of Fundy stock of harbor porpoise is 79,833 animals (Waring et al., 
2016). A trend analysis has not been conducted for this species.

Harbor Seal and Gray Seal

    In the U.S. waters of the western North Atlantic, both harbor and 
gray seals are usually found from the coast of Maine south to southern 
New England and New York (Waring et al., 2010).
    Along the southern New England and New York coasts, harbor seals 
occur seasonally from September through late May (Schneider and Payne 
1983). In recent years, their seasonal interval along the southern New 
England to New Jersey coasts has increased (deHart 2002). In U.S. 
waters, harbor seal breeding and pupping normally occur in waters north 
of the New Hampshire/Maine border, although breeding has occurred as 
far south as Cape Cod in the early part of the 20th century (Temte et 
al., 1991; Katona et al., 1993). The best estimate of abundance for the 
western North Atlantic stock of harbor seals is 75,834 animals (Waring 
et al., 2016). Although gray seals are often seen off the coast from 
New England to Labrador, within the U.S. waters, only small numbers of 
gray seals have been observed pupping on several isolated islands along 
the Maine coast and in Nantucket-Vineyard Sound, Massachusetts (Katona 
et al., 1993; Rough, 1995). In the late 1990s, a year-round breeding 
population of approximately 400 gray seals was documented on outer Cape 
Cod and Muskeget Island (Warring et al., 2007). Depending on the model 
used, the minimum estimate for the Canadian gray seal population was 
estimated to range between 125,541 and 169,064 animals (Trzcinski et 
al., 2005, cited in Waring et al., 2009); however, present data are 
insufficient to calculate the minimum population estimate for U.S. 
waters. Waring et al. (2016) note that

[[Page 1707]]

gray seal abundance in the U.S. Atlantic is likely increasing, but the 
rate of increase is unknown.

                                        Table 1--Marine Mammal Species Potentially Present in Region of Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
            Species                     ESA status              MMPA status              Abundance                 Range                Occurrence
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale.....  Endangered.............  Depleted..............  476...................  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..........  5636..................  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.
--------------------------------------------------------------------------------------------------------------------------------------------------------

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 ``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. NMFS 
(2016) designate ``marine mammal hearing groups'' for marine mammals 
and estimate the lower and upper frequencies of functional hearing of 
the groups. The marine mammal hearing groups and the associated 
frequencies are indicated below (though animals are less sensitive to 
sounds at the outer edge of their range and most sensitive to sounds of 
frequencies within a smaller range somewhere in the middle of their 
hearing range):

     Low frequency cetaceans (13 species of mysticetes): 
Functional hearing is estimated to occur between approximately 7 
Hertz (Hz) and 35 kilo Hertz (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 275 Hz and 160 kHz;
     Phocid pinnipeds (true seals): Functional hearing is 
estimated between 50 Hz to 86 kHz; and
     Otariid pinnipeds (sea lions and fur seals): Functional 
hearing is estimated between 60 Hz to 39 kHz.

    Species found in the vicinity of the NEG Port and Pipeline Lateral 
operations and maintenance and repair area include five low-frequency 
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 NEG 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

[[Page 1708]]

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 decibel (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 DP thrusters, dredging and pipe laying associated with NEG 
Port and Pipeline Lateral maintenance and repair, and NEG 
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 microPascal (root-mean-
square) ([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 NEG 
regasification). No impulse noise is expected from the NEG and 
Algonquin's NEG Port and Pipeline Lateral operation, maintenance, and 
repair activities. For the NEG Port and 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 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 SBNMS. There is no critical 
habitat in the vicinity of the 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 NEG 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 (EBRV) 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 Federal Register notice 
for the 2015 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 
(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 ft 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[ordm]C 
(53.6[ordm]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 gramper cell (g/cell), an 
estimated 7.2 kilograms (kg) to 429 kg of biomass would be lost from 
Massachusetts Bay under the 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

[[Page 1709]]

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 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 activity were made 
based on actual monthly ichthyoplankton data collected in the port area 
from October 2005 through December 2009 and the 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 NEG 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 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 NEG 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 operation 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 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 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 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 NEG 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 
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 water-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 NEG 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 NEG Port as necessary to support all such maintenance 
and repair scenarios. Therefore, NMFS considers that NEG Port 
maintenance and repair would

[[Page 1710]]

have negligible impacts to marine mammal habitat in the activity area.

Unanticipated Algonquin Pipeline Lateral Maintenance and Repair

    As stated earlier, proper care and maintenance of the 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 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 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.

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.

(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 SBNMS, EBRVs 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 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 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; and
     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 (yd, 460 m) to a North Atlantic right whale and 100 yd (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 (nmi) 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.

[[Page 1711]]

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; and
    (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 (mi) (8 km) 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 mi (3 km) from the NEG Port, speed will be reduced to 3 
knots and to less than 1 knot at 1,640 ft (500 m) from the 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 yd (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 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 from 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 mi (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 mi 
(0.8 km) 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

[[Page 1712]]

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 m or higher when a right whale is sighted within or 
approaching at 500 yd (457 meters) from the vessel. The source level of 
139 dB corresponds to 120 dB received level at 500 yd (457 meters). 
Repair and maintenance work may resume after the marine mammal is 
positively reconfirmed outside the established zones (500 yd (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 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 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 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;
     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; and
     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 less and a 
sighting within 750 m 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; and
     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 yd (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 mitigation measures and considered 
a range of other measures in the context of ensuring that NMFS 
prescribes the means of effecting the least practicable impact on the 
affected marine mammal species and stocks and their habitat. Our 
evaluation of potential measures included consideration of the 
following factors in relation to one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals.
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned.
     The practicability of the measure for applicant 
implementation.
    Based on our evaluation of the applicant's mitigation measures, as 
well as other measures considered by NMFS, NMFS has determined that the 
mitigation measures provide the means of effecting the least 
practicable adverse impact on marine mammal species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance.

Monitoring and Reporting

    In order to issue an incidental take authorization (ITA) 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 ITAs must include the suggested 
means of accomplishing the necessary monitoring and reporting that will 
result in increased knowledge of the species and of the level of taking 
or impacts on populations of marine mammals that are expected to be 
present in the action area. NE Gateway has provided marine mammal 
monitoring measures as part of the IHA application. It can be found at 
http://www.nmfs.noaa.gov/pr/permits/incidental.htm.

[[Page 1713]]

    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:
     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);
     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); and
     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.

Monitoring Measures

(a) Vessel-Based Visual Monitoring
    Vessel-based monitoring for marine mammals shall be done by trained 
look-outs during NEG Port and Pipeline Lateral operations and 
maintenance and repair activities. The observers shall monitor the 
occurrence of marine mammals near the vessels during NEG 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 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 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 m (328 ft) 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 mi (3.31 km) immediately; and
    (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-mi 
(3.31-km) ZOI

[[Page 1714]]

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 nmi 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 NEG shipments in a 30-day period 
or over 20 shipments in a 6-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 nmi 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.
(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.

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; and
     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 issued 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;

[[Page 1715]]

     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 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 Port and Pipeline Lateral 
operation, maintenance and repair activities and monthly marine mammal 
observation memorandums (NEG 2010; 2015; 2016) indicate that only a 
small number of marine mammals were observed during these activities. 
Only one NEG Port operation occurred within the dates of the current 
IHA (starting December 23, 2015) and only one unidentified small whale 
was observed at a distance of 2 nmi from the NEG vessel on January 17, 
2016. 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 NEG 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 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 NEG 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. Hearing impairment (TTS 
and PTS) is highly unlikely to occur based on low noise source levels 
from the 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 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.
    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 Port and 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 number of days 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 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\.

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

[[Page 1716]]

event were taken at the source. Measurements taken during EBRV transit 
were normalized to a distance of 328 ft (100 m) 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; and
     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.

   Table 2--Radii of 120 dB SPL Isopleths From NEG Port and Algonquin
     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 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 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; and
     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.
    Since the issuance of an IHA to NEG on December 22, 2015, there was 
only one NEG delivery at the NEG Port in January 2015. NEG expects that 
when the Port is under full operation, it will receive up to 65 NEG 
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 Densities

    The density calculation methodology applied to take estimates for 
this application is derived from the model results produced by Roberts 
et al. (2016) for the east coast region. These files are available Duke 
University's Habitat-based Cetacean Density Models Web site: http://
http://seamap.env.duke.edu/models/Duke-EC-GOM-2015/. The estimated mean 
monthly abundance for each species for each month was an average of 
each month. Monthly values were not modeled for some species (e.g. 
killer whale), therefore, only the single value was reported. Estimates 
provided by the models are based on a grid cell size of 100 km\2\, 
therefore, model grid cell values were divided by 100 to determine 
animals per km\2\. Gray seal and harbor seal densities are not provided 
in the Roberts et al. (2016) models. Seal densities were derived from 
the Strategic Environmental

[[Page 1717]]

Research and Development Program (SERDP) using the Navy Oparea Density 
Estimate (NODE) model for the Northeast Opareas. (Best et al., 2012). A 
summary of the each species density is provided in Table 3 below.

                  Table 3--Estimated Species Densities
                           [animals per km\2\]
------------------------------------------------------------------------
                                                           Mean monthly
                         Species                             densities
------------------------------------------------------------------------
North Atlantic right whale..............................        0.000838
Fin whale...............................................         0.00225
Humpback whale..........................................         0.00502
Minke whale.............................................         0.00354
Sei whale...............................................        0.000025
Long-finned Pilot whale.................................         0.00135
Killer whale............................................       0.0000089
Atlantic white-sided dolphin............................          0.0219
Bottlenose dolphin......................................          0.0113
Common dolphin..........................................          0.0025
Risso's dolphin.........................................         0.00025
Harbor porpoise.........................................          0.0804
Gray seal...............................................           0.027
Harbor seal.............................................           0.097
------------------------------------------------------------------------

Marine Mammal Take Calculation

    Based on NEG Gateway's expectations of up to 65 NEG shipments per 
year, and up to 14 days for NEG Port maintenance and up to 40 days for 
planned and unplanned Algonquin Pipeline Lateral repair, the total 
estimated takes in a given year is calculated based on the following 
equation.

N = ANEG*D*65 + APort*D*14 + 
APipeline*D*40

    Where N is the take number for a given species with average density 
of D. ANEG, APort, and APipeline are 
the 120-dB ZOI during EMRV vessel docking for regasification, NEG Port 
maintenance, and Algonquin Pipeline Lateral repair, respectively. In 
addition, numbers of some species that usually occur in groups were 
adjusted to reflect the average number of animals in a typical group. A 
summary of expected takes is provided in Table 4. Since it is very 
likely that individual animals could be ``taken'' by harassment 
multiple times, the 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 less. 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 
determined that the takes of 7 killer whales and 159 gray seals 
represent a small fraction of the population and stocks of these 
species (Table 4). There is no danger of injury, death, or hearing 
impairment from the exposure to these noise levels.

  Table 4--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
                                                              exposure
              Species                  Population/stock       based on     Estimated take      Population (%)
                                                               density
----------------------------------------------------------------------------------------------------------------
Right whale.......................  Western Atlantic.....               5               5  1.36.
Fin whale.........................  Western North                      13              13  0.82.
                                     Atlantic.
Humpback whale....................  Gulf of Maine........              30              30  3.59.
Sei whale.........................  Nova Scotia..........               1               3  0.04.
Minke whale.......................  Canadian East Coast..              21              21  0.10.
Long-finned pilot whale...........  Western North                       8              15  0.14.
                                     Atlantic.
Killer whale......................  Western North                       1               7  Unknown.*
                                     Atlantic.
Atlantic white-sided dolphin......  Western North                     129             129  0.26
                                     Atlantic.
Bottlenose dolphin................  Western North                      67              67  0.58.
                                     Atlantic Southern
                                     Migratory.
Short-beaked common dolphin.......  Western North                      15              40  0.01.
                                     Atlantic.
Risso's dolphin...................  Western North                       2              18  0.01.
                                     Atlantic.
Harbor porpoise...................  Gulf of Maine/Bay of              474             474  0.59.
                                     Fundy.
Harbor seal.......................  Western North                     571             571  0.75.
                                     Atlantic.
Gray seal.........................  Western North                     159             159  Unknown.*
                                     Atlantic.
----------------------------------------------------------------------------------------------------------------
* Killer whale and gray seal abundance information is not available.

Technical Guidance for Assessing the Effects of Anthropogenic Sound on 
Marine Mammal Hearing

    On August 4, 2016, NMFS released its Technical Guidance for 
Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing 
(Guidance). This new guidance established new thresholds for predicting 
auditory injury, which equates to Level A harassment under the MMPA. In 
the Federal Register notice (81 FR 51694), NMFS explained the approach 
it would take during a transition period, wherein we balance the need 
to consider this new best available science with the fact that some 
applicants have already committed time and resources to the development 
of analyses based on our previous guidance and have constraints that 
preclude the recalculation of take estimates, as well as where the 
action is in the agency's decision-making pipeline. In that Notice, we 
included a non-exhaustive list of factors that would inform the most 
appropriate approach for considering the new Guidance, including: the 
scope of effects; how far in the process the applicant has progressed; 
when the authorization is needed; the cost and complexity of the 
analysis; and the degree to which the guidance is expected to affect 
our analysis.
    In this case, we performed an analysis using the new Guidance to 
calculate potential takes of marine mammal by Level A harassment. The 
results show that given the brief duration of the NEG operations, NEG 
Port maintenance, and Algonquin Pipeline Lateral repair activities, no 
marine mammals would be exposed to received noise levels that would 
cause auditory injury.

Analysis and 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

[[Page 1718]]

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 4, given that the 
anticipated effects of NEG Port and Pipeline Lateral operations, 
maintenance, and repair activities on marine mammals (taking into 
account the prescribed 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 
NEG 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 NEG shipments per year, and would 
require 14 days for NEG Port maintenance and up to 40 days for planned 
and unplanned Pipeline Lateral maintenance and repair, schedules of NEG 
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 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 limited to Level B harassment and that these 
takes are minimized. 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 action 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 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, as stated earlier, the NEG and Algonquin's 
action would only involve short duration of elevated noise levels. In 
addition, based on prior monitoring reports, on average NEG only had 
one NEG delivery event per year, and this trend is likely to continue. 
Of note, although we have analyzed the impact of the authorized take on 
the stocks, the actual impacts to these species from the Northeast 
Gateway's operations would likely be less than what are analyzed here. 
There are no known important areas for other species within the action 
area.
    Regarding adverse effects to marine mammal habitat, the major 
potential impact would be the loss of prey due to water intake for 
cooling during the NEG regasification process. Under the requested 
water-use scenario, it is estimated that a dry-weight biomass of 916.5 
kg of zooplankton per year (including 9.2 kg of large piscivorous fish) 
would be lost per year. The amount of loss is minor relative to the 
total biomass of the trophic level in Massachusetts Bay.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammal species and stocks and their 
habitat, and taking into consideration the implementation of the 
prescribed monitoring and mitigation measures, NMFS finds that the 
total marine mammal take from NEG and Algonquin's NEG Port and Pipeline 
Lateral operation, maintenance, and repair activities in Masschusetts 
Bay is not expected to adversely the 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 3.6 percent of all 
populations or stocks potentially impacted (see Table 4 in this 
document). These authorized take represent the maximum percentage of 
each species or stock that could be taken by behavioral harassment or 
TTS (Level B harassment). The numbers of marine mammals authorized to 
be taken are small proportions of the total populations of the affected 
species or stocks.
    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 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 NEG 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 NEG 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 from what was originally evaluated for the NEG 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 under section 101(a)(5)(D) of the MMPA for the activities 
that include increased NEG Port and Pipeline Lateral maintenance and 
repair and water usage

[[Page 1719]]

for the NEG Port operations this activity. A Biological Opinion was 
issued on November 21, 2014, and concluded that the 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 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 NEG 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 
NEG 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 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 that the preparation of a new 
or supplemental NEPA document is not necessary.

Authorization

    As a result of these determinations, NMFS has issued an IHA to 
Northeast Gateway and Algonquin for activities associated with 
Northeast Gateway's NEG Port and Algonquin's Pipeline Lateral 
operations and maintenance and repair activities in the Massachusetts 
Bay, which also includes the mitigation, monitoring, and reporting 
requirements described in this Notice.

    Dated: December 28, 2016.
Donna Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2016-31948 Filed 1-5-17; 8:45 am]
 BILLING CODE 3510-22-P