2010-31769. Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Operation and Maintenance of a Liquefied Natural Gas Facility Off Massachusetts

AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

NMFS has received a request from Neptune LNG LLC (Neptune) for authorization for the take of marine mammals, by harassment, incidental to port commissioning and operations, including maintenance and repair activities, at its Neptune Deepwater Port (the Port) in Massachusetts Bay for the period of July 2011 through July 2016. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is proposing regulations to govern that take and requests information, suggestions, and comments on these proposed regulations.

DATES:

Comments and information must be received no later than February 4, 2011.

ADDRESSES:

You may submit comments, identified by 0648-AX09, by any one of the following methods:

• Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal: http://www.regulations.gov.
• Hand delivery or mailing of paper, disk, or CD-ROM comments should be addressed to Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.

Comments regarding any aspect of the collection of information requirement contained in this proposed rule should be sent to NMFS via one of the means stated here and to the Office of Information and Regulatory Affairs, NEOB-10202, Office of Management and Budget (OMB), Attn: Desk Office, Washington, DC 20503, [e-mail].

Instructions: All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.

NMFS will accept anonymous comments (enter N/A in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT:

Candace Nachman, Office of Protected Resources, NMFS, [phone], ext 156.

SUPPLEMENTARY INFORMATION:

Availability

A copy of Neptune's application may be obtained by writing to the address specified above (see ADDRESSES), calling the contact listed above (see FOR FURTHER INFORMATION CONTACT), or visiting the Internet at: http://www.nmfs.noaa.gov/​pr/​permits/​incidental.htm. To help NMFS process and review comments more efficiently, please use only one method to submit comments.

The Final Environmental Impact Statement (Final EIS) on the Neptune Deepwater Port License Application authored by the Maritime Administration (MARAD) and U.S. Coast Guard (USCG) is available for viewing at http://www.regulations.gov by entering the search words “Neptune LNG.”

Background

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

Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:

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

Summary of Request

On December 14, 2009, NMFS received an application from Neptune for the taking, by harassment, of marine mammals incidental to port commissioning and operations, including maintenance and repair activities, at its Neptune Deepwater Port (Port) facility in Massachusetts Bay. NMFS reviewed Neptune's application and identified a number of issues requiring further clarification. After addressing comments from NMFS, Neptune modified its application and submitted a revised application on March 11, 2010. The March 11, 2010, application is the one available for public comment (see ADDRESSES) and which was considered by NMFS for these proposed regulations.

Neptune submitted its first complete application to NMFS on December 27, 2007, for the take of small numbers of marine mammals, by harassment, incidental to the construction phase of the Neptune LNG Port Facility. In June 2008, NMFS issued a 1-year Incidental Harassment Authorization (IHA) to Neptune for the construction of the Port (73 FR 33400, June 12, 2008). This authorization expired on June 30, 2009. NMFS issued a second 1-year IHA to Neptune for the completion of construction and beginning of Port operations on June 26, 2009 (74 FR 31926, July 6, 2009), which expired on June 30, 2010.

On July 12, 2010, NMFS issued a third IHA to Neptune based on the request in its March 11, 2010, application (75 FR 41440, July 16, 2010). This latest IHA is effective through July 11, 2011. During the period of this third IHA, Neptune intends to commission its second shuttle and regasification vessel (SRV) and conduct limited port operations. There is also a chance that some maintenance and repairs may be conducted on the Port facility.

During the period of these proposed regulations (July 2011-July 2016), Neptune intends to continue port operations and conduct maintenance and repairs, as needed. The Neptune Port is located approximately 22 mi (35 km) northeast of Boston, Massachusetts, in Federal waters approximately 260 ft (79 m) in depth. The purpose of the Port is to import liquefied natural gas (LNG) into the New England region. Take of marine mammals may occur during port operations from thruster use during maneuvering of the SRVs while docking and undocking, occasional weathervaning (turning of a vessel at anchor from one direction to another under the influence of wind or currents) at the Port, and during thruster use of dynamic positioning (DP) maintenance vessels should a major repair be necessary. Neptune has requested an authorization to take 12 marine mammal species by Level B harassment. The species are: North Atlantic right whale; humpback whale; fin whale; sei whale; minke whale; long-finned pilot whale; Atlantic white-sided dolphin; harbor porpoise; common dolphin; Risso's dolphin; bottlenose dolphin; and harbor seal. In the 2009 and 2010 IHAs, NMFS also authorized take of killer whales and gray seals. NMFS has preliminarily determined that it would be appropriate in this proposed rule to authorize take, by Level B harassment only, incidental to operations and maintenance activities of these two species as well.

Description of the Specified Activity

On March 23, 2007, Neptune received a license from MARAD to own, construct, and operate a deepwater port. The Port, which is located in Massachusetts Bay, consists of a submerged buoy system to dock specifically designed LNG carriers approximately 22 mi (35 km) northeast of Boston, Massachusetts, in Federal waters approximately 260 ft (79 m) in depth. The two buoys are separated from one another by a distance of approximately 2.1 mi (3.4 km). The locations of the Neptune Port and the associated pipeline are shown in Figure 2-1 in Neptune's application (see ADDRESSES).

All construction of the Neptune Port was completed in November 2009. The first SRV was commissioned in February-March 2010. Commissioning of the second SRV is scheduled to occur in early 2011 and so would occur under the current IHA. Between July 2011 and July 2016, (the requested time period for these proposed regulations), Neptune plans to continue Port operations and also plans to conduct any necessary maintenance and repairs of the Port facility.

Neptune will be capable of mooring LNG SRVs with a capacity of approximately 183,113 cubic yards (yd³; 140,000 cubic meters (m³)). Up to two SRVs will temporarily moor at the Port by means of a submerged unloading buoy system. Two separate buoys will allow natural gas to be delivered in a continuous flow, without interruption, by having a brief overlap between arriving and departing SRVs. The annual average throughput capacity will be around 500 million standard cubic feet per day (mmscfd) with an initial throughput of 400 mmscfd and a peak capacity of approximately 750 mmscfd.

The SRVs will be equipped to store, transport, and vaporize LNG and to odorize, meter and send out natural gas by means of two 16-in (40.6-cm) flexible risers and one 24-in (61-cm) subsea flowline. These risers and flowline will lead to a 24-in (61-cm) gas transmission pipeline connecting the deepwater port to the existing 30-in (76.2-cm) Algonquin Hubline^SM (Hubline^SM) located approximately 9 mi (14.5 km) west of the Neptune deepwater port location. The Port will have an expected operating life of approximately 25 years. Figure 1-1 of Neptune's application shows an isometric view of the Port (see ADDRESSES). The following subsections describe the operational activities for the Port.

Description of Port Operations

During Neptune Port operations, sound will be generated by the regasification of the LNG aboard the SRVs and the use of thrusters by vessels maneuvering and maintaining position at the port. Large construction-type DP vessels used for major repairs of the subsea pipeline or unloading facility may be another potential sound source, although these types of repairs are unlikely to occur. Of these potential operations and maintenance/repair sound sources, thruster use for DP is the most significant. The following text describes the activities that will occur at the port upon its commissioning.

(1) Vessel Activity

The SRVs will approach the Port using the Boston Harbor Traffic Separation Scheme (TSS), entering the TSS within the Great South Channel (GSC) and remaining in the TSS until they reach the Boston Harbor Precautionary Area. At the Boston Lighted Horn Buoy B (at the center of the Boston Harbor Precautionary Area), the SRV will be met by a pilot vessel and a support vessel. A pilot will board the SRV, and the support vessel will accompany the SRV to the port. SRVs carrying LNG typically travel at speeds up to 19.5 knots (36 km/hr); however, Neptune SRVs will reduce speed to 10 knots (18.5 km/hr) within the TSS year-round in the Off Race Point Seasonal Management Area (SMA) and will maintain a maximum of 10 knots (18.5 km/hr) when traveling to and from the buoys once exiting the shipping lanes at the Boston Harbor Precautionary Area. In addition, Neptune is committed to reducing speed to 10 knots (18.5 km/hr) in the GSC SMA from April 1 to July 31 each year.

To supply a continuous flow of natural gas into the pipeline, an average of about 50 roundtrip SRV transits will take place annually (one transit every 3.65 days). As an SRV approaches the Port, vessel speed will gradually be reduced. Upon arrival at the Port, one of the submerged unloading buoys will be located and retrieved from its submerged position by means of a winch and recovery line. The SRV is designed for operation in harsh environments and can connect to the unloading buoy in up to 11.5 ft (3.5 m) significant wave heights and remain operational in up to 36 ft (11 m) significant wave heights, providing high operational availability.

The vessel's aft/forward thrusters will be used intermittently. Neptune SRVs will use both bow and stern thrusters when approaching the unloading buoy and when docking the buoy inside the Submerged Turret Loading (STL) compartment, as well as when releasing the buoy after the regasifying process is finished. The thrusters will be energized for up to 2 hours during the docking process and up to 1 hour during the undocking/release process. When energized, the thrusters will rotate at a constant RPM with the blades set at zero pitch. There will be little cavitation when the thruster propellers idle in this mode. The sound levels in this operating mode are expected to be approximately 8 decibels (dB) less than at 100 percent load, based on measured data from other vessels.

When the thrusters are engaged, the pitch of the blades will be adjusted in short bursts for the amount of thrust needed. These short bursts will cause cavitation and elevated sound levels. The maximum sound level with two thrusters operating at 100 percent load will be 180 dB re 1 μPa at 1m. This is not the normal operating mode, but a worst-case scenario. Typically, thrusters are operated for only seconds at a time and not at continuous full loading. These thrusters will be engaged for no more than 20 minutes, in total, when docking at the buoy. The same applies for the undocking scenario.

During normal conditions, the vessel will be allowed to weathervane on the single-point mooring system. However, aft thrusters may be used under certain conditions to maintain the vessel's heading into the wind when competing tides operate to push the vessel broadside to the wind. Neptune has assumed a total of 200 hr/yr operating under these conditions. In these circumstances, the ambient sound will already be high because of the wind and associated wave sound.

(2) Regasification System

Once an SRV is connected to a buoy, the vaporization of LNG and send-out of natural gas can begin. Each SRV will be equipped with three vaporization units, each with the capacity to vaporize 250 mmscfd. Under normal operation, two units will be in service simultaneously. The third vaporization unit will be on standby mode, although all three units could operate simultaneously.

(3) Maintenance and Repairs

Routine maintenance activities typically are short in duration (several days or less) and require small vessels (less than 300 gross tons) to perform. Activities include attaching and detaching and/or cleaning the buoy pick up line to the STL buoy, performing surveys and inspections with a remotely operated vehicle, and cleaning or replacing parts (e.g., bulbs, batteries, etc.) on the floating navigation buoys. Every 7-10 years, Neptune will run an intelligent pig (a gauging/cleaning device) down the pipeline to assess its condition. This particular activity will require several larger, construction-type vessels and several weeks to complete.

Unplanned repairs can be either relatively minor, or in some cases, major, requiring several large, construction-type vessels and a mitigation program similar to that employed during the construction phase of the project. Minor repairs are typically shorter in duration and could include fixing flange or valve leaks, replacing faulty pressure transducers, or repairing a stuck valve. These kinds of repairs require one diver support vessel with three or four anchors to hold its position. Minor repairs could take from a few days to 1-2 weeks depending on the nature of the problem.

Major repairs are longer in duration and typically require large construction vessels similar to those used to install the pipeline and set the buoy and anchoring system. These vessels will typically mobilize from local ports or the Gulf of Mexico. Major repairs require upfront planning, equipment procurement, and mobilization of vessels and saturation divers. Examples of major repairs—although unlikely to occur—include damage to a riser or umbilical and their possible replacement, damage to the pipeline and manifolds, or anchor chain replacement. These types of repairs could take 1-4 weeks and possibly longer.

Operations Sound

The acoustic effects of using the thrusters for maneuvering at the unloading buoys were modeled by JASCO Research Limited (2005). The analysis assumed the use of four thrusters (two bow, two stern) at 100 percent power during all four seasons. The one-third (1/3)-octave band source levels for the thrusters ranged from 148.5 dB re 1 μPa at 1 m at 2,000 Hertz (Hz) to 174.5 dB re 1 µPa at 1 m at 10 Hz. Figures 1-2 through 1-5 in Neptune's application show the received sound level at 164-ft (50-m) depth at the south unloading buoy during each of the four seasons.

The acoustic effects of operating the regasification system at the unloading buoys were also modeled by JASCO Research Limited (2005). In addition, supplemental analysis was performed to assess the potential underwater acoustic impacts of using the two aft thrusters after mooring for maintaining the heading of the vessel in situations when competing tides operate to push the vessel broadside to the wind. Additionally, Samsung performed an underwater noise study on the newly constructed SRV, and an evaluation of these data was performed by JASCO Applied Sciences. Additional details of all the modeling analyses can be found in Appendices B and C of Neptune's application (see ADDRESSES). The loudest source of sound during operations at the port will be the use of thrusters for dynamic positioning.

Maintenance/Repair Sound

Acoustic modeling originally performed to predict received levels of underwater sound that could result from the construction of Neptune also could be applicable to major maintenance/repair during operations (see Appendices B and C in Neptune's application for a discussion of the acoustic modeling methodology employed). Activities considered to be potential sound sources during major maintenance/repair activities include excavation (jetting) of the flowline or main transmission pipeline routes and lowering of materials (pipe, anchors, and chains) to the sea floor. These analyses evaluated the potential impacts of construction of the flowline and pipeline using surrogate source levels for vessels that could be employed during Neptune's construction. One surrogate vessel used for modeling purposes was the Castoro II (and four accompanying vessels). Figures 1-6 and 1-7 in Neptune's application illustrate the worst-case received sound levels that would be associated with major maintenance/repair activities along the flowline between the two unloading buoys and along the pipeline route at the 164-ft (50-m) depth during the spring season if a vessel similar to the Castoro II were used.

Comments and Responses

On May 6, 2010, NMFS published a notice of a proposed IHA and a notice of receipt of an application for a Letter of Authorization (LOA) in the Federal Register (75 FR 24906) and requested comments and information from the public for 30 days. NMFS received only one comment letter from the Marine Mammal Commission (MMC). The MMC's comments noted the need for monitoring and mitigation and for the reinitiation of section 7 consultation under the Endangered Species Act (ESA). NMFS included the proposed monitoring and mitigation measures in the 2010 IHA and completed the required ESA section 7 consultation prior to issuance of the 2010 IHA. To see the full comments and responses, please refer to the IHA Federal Register notice of issuance (75 FR 41440, July 16, 2010).

Description of Marine Mammals in the Area of the Specified Activity

Massachusetts Bay (as well as the entire Atlantic Ocean) hosts a diverse assemblage of marine mammals, including the: North Atlantic right whale; blue whale; fin whale; sei whale; minke whale; humpback whale; killer whale; long-finned pilot whale; sperm whale; Atlantic white-beaked dolphin; Atlantic white-sided dolphin; bottlenose dolphin; common dolphin; harbor porpoise; Risso's dolphin; striped dolphin; gray seal; harbor seal; harp seal; and hooded seal. Table 3-1 in Neptune's application outlines the marine mammal species that occur in Massachusetts Bay and the likelihood of occurrence of each species. Of the species listed here, the North Atlantic right, blue, fin, sei, humpback, and sperm whales are all listed as endangered under the ESA and as depleted under the MMPA. The northern coastal stock of bottlenose dolphins is considered depleted under the MMPA. Certain stocks or populations of killer whales are listed as endangered under the ESA or depleted under the MMPA; however, none of those stocks or populations occurs in the proposed activity area.

Of these species, 14 are expected to occur in the area of Neptune's proposed operations. These species include: The North Atlantic right, humpback, fin, sei, minke, killer, and long-finned pilot whales; Atlantic white-sided, common, Risso's, and bottlenose dolphins; harbor porpoise; and harbor and gray seals. Neptune used information from the Cetacean and Turtle Assessment Program (CETAP; 1982) and the U.S. Navy's Marine Resource Assessment (MRA) for the Northeast Operating Areas (DoN, 2005; available on the Internet at: https://portal.navfac.navy.mil/​portal/​page/​portal/​navfac/​navfac_​ww_​pp/​navfac_​hq_​pp/​navfac_​environmental/​mra) to estimate densities of the species in the area. Nonetheless, NMFS used the data on cetacean distribution within Massachusetts Bay, such as those published by NOAA's National Centers for Coastal Ocean Science (NCCOS; 2006), to determine density estimates of several species of marine mammals in the vicinity of the project area. The explanation for those derivations and the actual density estimates are described later in this document (see the “Estimated Take by Incidental Harassment” section).

Blue and sperm whales are not commonly found in Massachusetts Bay. The sperm whale is generally a deepwater animal, and its distribution off the northeastern U.S. is concentrated around the 13,280-ft (4,048-m) depth contour, with sightings extending offshore beyond the 6,560-ft (2,000-m) depth contour. Sperm whales also can be seen in shallow water south of Cape Cod from May to November (CETAP, 1982). In the North Atlantic, blue whales are most commonly sighted in the waters off eastern Canada. Although they are rare in the shelf waters of the eastern U.S., occasional sightings of blue whales have been made off Cape Cod. Harp and hooded seals are seasonal visitors from much further north, seen mostly in the winter and early spring. Prior to 1990, harp and hooded seals were sighted only very occasionally in the Gulf of Maine, but recent sightings suggest increasing numbers of these species now visit these waters (Harris et al., 2001, 2002). However, these harp seal sightings are considered extralimital (Waring et al., 2009). While there have been some increased sightings of hooded seals off the east coast of the U.S., the southernmost portion of their spring migration is considered the Gulf of St. Lawrence (Waring et al., 2009). Therefore, their sightings in U.S. east coast waters are considered extralimital. Juveniles of a third seal species, the ringed seal, are seen on occasion as far south as Cape Cod in the winter, but this species is considered to be quite rare in these waters (Provincetown Center for Coastal Studies, 2005). Due to the rarity of these species in the proposed project area and the remote chance they would be affected by Neptune's proposed port operations, these species are not considered further in these proposed regulations.

In addition to the 16 cetacean species listed in Table 3-1 in Neptune's application, 10 other cetacean species have been recorded for Massachusetts as rare vagrants or from strandings (Cardoza et al., 1999). The following six species of beaked whale are all pelagic and recorded mostly as strandings: the northern bottlenose whale; Cuvier's beaked whale; Sowerby's beaked whale; Blainville's beaked whale; Gervais' beaked whale; and True's beaked whale. Vagrants include the beluga whale, a northern species with rare vagrants reported as far south as Long Island (Katona et al., 1993); the pantropical spotted dolphin and false killer whale, which are primarily tropical species with rare sightings in Massachusetts waters (Cardoza et al., 1999); and the pygmy sperm whale, which is generally an offshore species that occasionally wanders inshore. There have been occasional sightings of striped dolphins in the waters of the northeastern U.S. However, the majority of these sightings occurred in waters deeper than those of the Neptune Port project area (Waring et al., 2009). While some Atlantic white-beaked dolphins have been sighted in the western Gulf of Maine and off Cape Cod, their distribution in the area has been considered limited, mostly a factor of opportunistic feeding (Waring et al., 2009). Due to the rarity of these species in the proposed project area and the remote chance they would be affected by Neptune's proposed port operations, these species are not considered further in these proposed regulations.

Information on those species that may be impacted by this activity is provided in Neptune's application and sections 3.2.3 and 3.2.5 in the MARAD/USCG Final EIS on the Neptune LNG proposal (see ADDRESSES). Please refer to those documents for more information on these species. In addition, general information on these marine mammal species can also be found in the 2009 NMFS U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessment Report (SAR; Waring et al., 2009) and the 2010 Draft NMFS Atlantic and Gulf of Mexico Marine Mammal SAR (Waring et al., in prep.), which are available on the Internet at: http://www.nefsc.noaa.gov/​publications/​tm/​tm213/​ and http://www.nmfs.noaa.gov/​pr/​sars/​draft.htm,, respectively. A brief summary on several commonly sighted marine mammal species distribution and abundance in the vicinity of the action area is provided next.

Humpback Whale

The highest abundance for humpback whales is distributed primarily along a relatively narrow corridor following the 328-ft (100-m) isobath across the southern Gulf of Maine from the northwestern slope of Georges Bank, south to the GSC, 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 131- and 459-ft, 40- and 140-m, isobaths) off Cape Cod and Davis Bank, Stellwagen Basin and Tillies Basin and between the 164- and 656-ft (50- and 200-m) isobaths along the inner slope of Georges Bank. High abundance was also estimated for the waters around Platts Bank. In the summer months, abundance increases markedly over the shallow waters (< 164 ft, or < 50 m) of Stellwagen Bank, the waters (328-656 ft, 100-200 m) between Platts Bank and Jeffreys Ledge, the steep slopes (between the 98- and 525-ft isobaths, 30- and 160-m isobaths) of Phelps and Davis Bank north of the GSC towards Cape Cod, and between the 164- and 328-ft (50- and 100-m) 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 GSC. The best estimate of abundance for Gulf of Maine, formerly western North Atlantic, humpback whales is 847 animals (Waring et al., 2009). Current data suggest that the Gulf of Maine humpback whale stock is steadily increasing in size, which is consistent with an estimated average trend of 3.1 percent in the North Atlantic population overall for the period 1979-1993 (Stevick et al., 2003, cited in Waring et al., 2009).

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 328-ft (100-m) isobath along the northern edge of Georges Bank (between the 164- and 656-ft, 50- and 200-m, isobaths), and northward from the GSC (between the 164- and 525-ft, 50- and 160-m, 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 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 (328- to 525-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 3,985, which is the sum of the estimate derived from an August 2006 Gulf of Maine survey and the sum of the estimate derived from a July-August 2007 northern Labrador to Scotian Shelf survey (Waring et al., in prep.). Currently, there are insufficient data to determine population trends for this species.

Minke Whale

Like other piscivorus baleen whales, the highest abundance for minke whale is strongly associated with regions between the 164- and 328-ft (50- and 100-m) isobaths, but with a slightly stronger preference for the shallower waters along the slopes of Davis Bank, Phelps Bank, GSC, and Georges Shoals on Georges Bank. Minke whales are sighted in SBNMS in all seasons, with highest abundance estimated for the shallow waters (approximately 131 ft, 40 m) 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 of minke whales, which occurs from the western half of the Davis Strait to the Gulf of Mexico, is 8,987 animals, which is the sum of the estimate derived from an August 2006 Gulf of Maine survey and the sum of the estimate derived from a July-August 2007 northern Labrador to Scotian Shelf survey (Waring et al., in prep.). A population trend analysis for this species has not been conducted (Waring et al., in prep.).

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 (328- to 525-ft, 100- to 160-m, isobaths) on the northern edge of the GSC and deep waters (328-984 ft 100-300 m) parallel to the 328-ft (100-m) isobath of northern Georges Bank and Georges Basin. High abundance was also found in the shallowest waters (< 98 ft, <30 m) of Cape Cod Bay (CCB), 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 525- and 656-ft, 160- and 200-m, isobaths) and north of Georges Bank (Rogers, Crowell, and Georges Basins). Highest abundance is found north of the 328-ft (100-m isobath at the GSC 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, CCB, Scantum Basin, Jeffreys Ledge, and Cashes Ledge are 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. The highest rate of sighting within SBNMS occurs along the southern edge of the Bank.

The western North Atlantic population size was estimated to be at least 361 individuals in 2005 based on a census of individual whales identified using photo-identification techniques (Waring et al., in prep.). This value is a minimum and does not include animals that were alive prior to 2005 but not recorded in the individual sightings database as seen from December 1, 2004, to June 24, 2009. It also does not include some calves known to be born during 2005 or any other individual whale seen during 2005 but not yet entered into the catalog (Waring et al., in prep.). Examination of the minimum number alive population index calculated from the individual sightings database, as it existed on June 24, 2009, for the years 1990-2005 suggests a positive trend in population size. These data reveal a significant increase in the number of catalogued whales alive during this period but with significant variation due to apparent losses exceeding gains during 1998-1999. Mean growth rate for the period 1990-2005 was 2.1 percent (Waring et al., in prep.).

Long-finned Pilot Whale

The long-finned pilot whale is more generally found along the edge of the continental shelf (a depth of 328 to 3,280 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 into 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 Neptune Port facility, 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, GSC, and Gulf of Maine areas during the summer and early fall (May and October; NOAA, 1993). The best population estimate for the western North Atlantic stock of long-finned pilot whale is 12,619 individuals (Waring et al., in prep.). Currently, there are insufficient data to determine population trends for the long-finned pilot whale.

Sei Whale

The sei whale is the least likely of all the baleen whale species to occur near the Neptune Port. However, there were a couple of sightings in the general vicinity of the port facility during the construction phase (Neptune Marine Mammal Monitoring Weekly Reports, 2008). The Nova Scotia stock of sei whales ranges from the continental shelf waters of the northeastern U.S. and extends northeastward to south of Newfoundland. The southern portion of the species range during spring and summer includes the northern portions of the U.S. Atlantic Exclusive Economic Zone (i.e., the Gulf of Maine and Georges Bank). Sei whales are most abundant in U.S. waters during the spring, with sightings concentrated along the eastern margin of Georges Bank and into the Northeast Channel area and along the southwestern edge of Georges Bank in the area of Hydrographer Canyon (CETAP, 1982). The best estimate of abundance for this stock is 386 animals (Waring et al., 2009). A population trend analysis has not been done for this species.

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 on either side of the 328-ft (100-m) isobath along the northern edge of Georges Bank, and north from the GSC to Stellwagen Bank, Jeffreys Ledge, Platts Bank, and Cashes Ledge. In spring, high-use areas exist in the GSC, northern Georges Bank, the steeply sloping edge of Davis Bank, 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 occur along most of the northern edge of Georges Bank between the 164- and 656-ft (50- and 200-m) isobaths and northward from the GSC along the slopes of Davis Bank and Cape Cod. High 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 the most widespread distribution in spring is located mainly over the southern end of Stellwagen Bank. In winter, high sightings were recorded at the northern tip of Stellwagen Bank and Tillies Basin.

A comparison of spatial distribution patterns for all baleen whales and all porpoises and dolphins combined showed that both groups have very similar spatial patterns of high- and low-use areas. The baleen whales, whether piscivorus or planktivorous, are more concentrated than the dolphins and porpoises. They utilize a corridor that extends broadly along the most linear and steeply sloping edges in the southern Gulf of Maine indicated broadly by the 328-ft (100-m) 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-occurred, resulting in similar patterns of species richness primarily along the southern portion of the 328-ft (100-m) isobath extending northeast and northwest from the GSC. 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 63,368 (Waring et al., 2009). 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; NCCOS, 2006; Northeast Gateway Marine Mammal Monitoring Weekly Reports, 2007; Neptune Marine Mammal Monitoring Weekly Reports, 2008). 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 120,743 animals, and a trend analysis has not been conducted for this species (Waring et al., 2007). There are several stocks of bottlenose dolphins found along the eastern U.S. 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 9,604 animals (Waring et al., in prep.). 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 20,479 animals (Waring et al., 2009). 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 89,054 animals (Waring et al., 2009). A trend analysis has not been conducted for this species.

Harbor and Gray Seals

In the U.S. 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., 2007).

Along the southern New England and New York coasts, harbor seals occur seasonally from September through late May (Schneider and Payne, 1983). In recent years, their seasonal interval along the southern New England to New Jersey coasts 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). Between 1981 and 2001, the uncorrected counts of seals increased from 10,543 to 38,014, an annual rate of 6.6 percent (Gilbert et al., 2005, cited in Waring et al., 2009). However, present data are insufficient to calculate a minimum population estimate for this stock or to determine a population trend for this stock (Waring et al., in prep.).

Although gray seals are often seen off the coast from New England to Labrador, within 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 (Waring et al., 2007). Depending on the model used, the minimum estimate for the Canadian gray seal population ranged 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. (2009) note that gray seal abundance in the U.S. Atlantic is likely increasing, but the rate of increase is unknown.

Brief Background on Marine Mammal Hearing

When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data, Southall et al. (2007) designate “functional hearing groups” for marine mammals and estimate the lower and upper frequencies of functional hearing of the groups. The functional groups and the associated frequencies are indicated below (though animals are less sensitive to sounds at the outer edge of their functional range and most sensitive to sounds of frequencies within a smaller range somewhere in the middle of their functional hearing range):

• Low frequency cetaceans (13 species of mysticetes): functional hearing is estimated to occur between approximately 7 Hz and 22 kHz;
• Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): functional hearing is estimated to occur between approximately 150 Hz and 160 kHz;
• High frequency cetaceans (eight species of true porpoises, six species of river dolphins, Kogia, the franciscana, and four species of cephalorhynchids): functional hearing is estimated to occur between approximately 200 Hz and 180 kHz; and
• Pinnipeds in Water: functional hearing is estimated to occur between approximately 75 Hz and 75 kHz, with the greatest sensitivity between approximately 700 Hz and 20 kHz.

As mentioned previously in this document, 14 marine mammal species (12 cetacean and two pinniped species) are likely to occur in the Neptune Port area. Of the 12 cetacean species likely to occur in Neptune's project area, five are classified as low frequency cetaceans (i.e., North Atlantic right, humpback, fin, minke, and sei whales), six are classified as mid-frequency cetaceans (i.e., killer and pilot whales and bottlenose, common, Risso's, and Atlantic white-sided dolphins), and one is classified as a high-frequency cetacean (i.e., harbor porpoise) (Southall et al., 2007).

Potential Effects of the Specified Activity on Marine Mammals

Potential effects of Neptune's proposed port operations and maintenance/repair activities would most likely be acoustic in nature. LNG port operations and maintenance/repair activities introduce sound into the marine environment. Potential acoustic effects on marine mammals relate to sound produced by thrusters during maneuvering of the SRVs while docking and undocking, occasional weathervaning at the port, and during thruster use of DP maintenance vessels should a major repair be necessary. The potential effects of sound from the proposed activities associated with the Neptune Port might include one or more of the following: Tolerance; masking of natural sounds; behavioral disturbance; non-auditory physical effects; and, at least in theory, temporary or permanent hearing impairment (Richardson et al., 1995). However, for reasons discussed later in this document, it is unlikely that there would be any cases of temporary, or especially permanent, hearing impairment resulting from these activities. As outlined in previous NMFS documents, the effects of noise on marine mammals are highly variable, and can be categorized as follows (based on Richardson et al., 1995):

(1) The noise may be too weak to be heard at the location of the animal (i.e., lower than the prevailing ambient noise level, the hearing threshold of the animal at relevant frequencies, or both);

(2) The noise may be audible but not strong enough to elicit any overt behavioral response;

(3) The noise may elicit reactions of variable conspicuousness and variable relevance to the well being of the marine mammal; these can range from temporary alert responses to active avoidance reactions such as vacating an area at least until the noise event ceases but potentially for longer periods of time;

(4) Upon repeated exposure, a marine mammal may exhibit diminishing responsiveness (habituation), or disturbance effects may persist; the latter is most likely with sounds that are highly variable in characteristics, infrequent, and unpredictable in occurrence, and associated with situations that a marine mammal perceives as a threat;

(5) Any anthropogenic noise that is strong enough to be heard has the potential to reduce (mask) the ability of a marine mammal to hear natural sounds at similar frequencies, including calls from conspecifics, and underwater environmental sounds such as surf noise;

(6) If mammals remain in an area because it is important for feeding, breeding, or some other biologically important purpose even though there is chronic exposure to noise, it is possible that there could be noise-induced physiological stress; this might in turn have negative effects on the well-being or reproduction of the animals involved; and

(7) Very strong sounds have the potential to cause a temporary or permanent reduction in hearing sensitivity. In terrestrial mammals, and presumably marine mammals, received sound levels must far exceed the animal's hearing threshold for there to be any temporary threshold shift (TTS) in its hearing ability. For transient sounds, the sound level necessary to cause TTS is inversely related to the duration of the sound. Received sound levels must be even higher for there to be risk of permanent hearing impairment. In addition, intense acoustic or explosive events may cause trauma to tissues associated with organs vital for hearing, sound production, respiration and other functions. This trauma may include minor to severe hemorrhage.

Tolerance

Numerous studies have shown that underwater sounds from industry activities are often readily detectable by marine mammals in the water at distances of many kilometers. Numerous studies have also shown that marine mammals at distances more than a few kilometers away often show no apparent response to industry activities of various types (Miller et al., 2005). This is often true even in cases when the sounds must be readily audible to the animals based on measured received levels and the hearing sensitivity of that mammal group. Although various baleen whales, toothed whales, and (less frequently) pinnipeds have been shown to react behaviorally to underwater sound such as airgun pulses or vessels under some conditions, at other times, mammals of all three types have shown no overt reactions (e.g., Malme et al., 1986; Richardson et al., 1995; Madsen and Mohl, 2000; Croll et al., 2001; Jacobs and Terhune, 2002; Madsen et al., 2002; Miller et al., 2005). In general, pinnipeds and small odontocetes seem to be more tolerant of exposure to some types of underwater sound than are baleen whales. Richardson et al. (1995) found that vessel noise does not seem to strongly affect pinnipeds that are already in the water. Richardson et al. (1995) went on to explain that seals on haul-outs sometimes respond strongly to the presence of vessels and at other times appear to show considerable tolerance of vessels, and Brueggeman et al. (1992; cited in Richardson et al., 1995) observed ringed seals hauled out on ice pans displaying short-term escape reactions when a ship approached within 0.16-0.31 mi (0.25-0.5 km).

Masking

Masking is the obscuring of sounds of interest by other sounds, often at similar frequencies. Marine mammals are highly dependent on sound, and their ability to recognize sound signals amid other noise is important in communication, predator and prey detection, and, in the case of toothed whales, echolocation. Even in the absence of manmade sounds, the sea is usually noisy. Background ambient noise often interferes with or masks the ability of an animal to detect a sound signal even when that signal is above its absolute hearing threshold. Natural ambient noise includes contributions from wind, waves, precipitation, other animals, and (at frequencies above 30 kHz) thermal noise resulting from molecular agitation (Richardson et al., 1995). Background noise also can include sounds from human activities. Masking of natural sounds can result when human activities produce high levels of background noise. Conversely, if the background level of underwater noise is high (e.g., on a day with strong wind and high waves), an anthropogenic noise source will not be detectable as far away as would be possible under quieter conditions and will itself be masked. Ambient noise is highly variable on continental shelves (Thompson, 1965; Myrberg, 1978; Chapman et al., 1998; Desharnais et al., 1999). This inevitably results in a high degree of variability in the range at which marine mammals can detect anthropogenic sounds.

Although masking is a natural phenomenon to which marine mammals must adapt, the introduction of strong sounds into the sea at frequencies important to marine mammals increases the severity and frequency of occurrence of masking. For example, if a baleen whale is exposed to continuous low-frequency noise from an industrial source, this will reduce the size of the area around that whale within which it can hear the calls of another whale. In general, little is known about the importance to marine mammals of detecting sounds from conspecifics, predators, prey, or other natural sources. In the absence of much information about the importance of detecting these natural sounds, it is not possible to predict the impacts if marine mammals are unable to hear these sounds as often, or from as far away, because of masking by industrial noise (Richardson et al., 1995). In general, masking effects are expected to be less severe when sounds are transient than when they are continuous.

Although some degree of masking is inevitable when high levels of manmade broadband sounds are introduced into the sea, marine mammals have evolved systems and behavior that function to reduce the impacts of masking. Structured signals, such as the echolocation click sequences of small toothed whales, may be readily detected even in the presence of strong background noise because their frequency content and temporal features usually differ strongly from those of the background noise (Au and Moore, 1988, 1990). The components of background noise that are similar in frequency to the sound signal in question primarily determine the degree of masking of that signal. Low-frequency industrial noise, such as shipping, has little or no masking effect on high frequency echolocation sounds.

Redundancy and context can also facilitate detection of weak signals. These phenomena may help marine mammals detect weak sounds in the presence of natural or manmade noise. Most masking studies in marine mammals present the test signal and the masking noise from the same direction. The sound localization abilities of marine mammals suggest that, if signal and noise come from different directions, masking would not be as severe as the usual types of masking studies might suggest (Richardson et al., 1995). The dominant background noise may be highly directional if it comes from a particular anthropogenic source such as a ship or industrial site. Directional hearing may significantly reduce the masking effects of these noises by improving the effective signal-to-noise ratio. In the cases of high-frequency hearing by the bottlenose dolphin, beluga whale, and killer whale, empirical evidence confirms that masking depends strongly on the relative directions of arrival of sound signals and the masking noise (Penner et al., 1986; Dubrovskiy, 1990; Bain et al., 1993; Bain and Dahlheim, 1994). Toothed whales, and probably other marine mammals as well, have additional capabilities besides directional hearing that can facilitate detection of sounds in the presence of background noise. There is evidence that some toothed whales can shift the dominant frequencies of their echolocation signals from a frequency range with a lot of ambient noise toward frequencies with less noise (Au et al., 1974, 1985; Moore and Pawloski, 1990; Thomas and Turl, 1990; Romanenko and Kitain, 1992; Lesage et al., 1999). A few marine mammal species are known to increase the source levels of their calls in the presence of elevated sound levels (Dahlheim, 1987; Au, 1993; Lesage et al., 1999; Terhune, 1999).

These data demonstrating adaptations for reduced masking pertain mainly to the very high frequency echolocation signals of toothed whales. There is less information about the existence of corresponding mechanisms at moderate or low frequencies or in other types of marine mammals. For example, Zaitseva et al. (1980) found that, for the bottlenose dolphin, the angular separation between a sound source and a masking noise source had little effect on the degree of masking when the sound frequency was 18 kHz, in contrast to the pronounced effect at higher frequencies. Directional hearing has been demonstrated at frequencies as low as 0.5-2 kHz in several marine mammals, including killer whales (Richardson et al., 1995). This ability may be useful in reducing masking at these frequencies. In summary, high levels of noise generated by anthropogenic activities may act to mask the detection of weaker biologically important sounds by some marine mammals. This masking may be more prominent for lower frequencies. For higher frequencies, such as that used in echolocation by toothed whales, several mechanisms are available that may allow them to reduce the effects of such masking.

Disturbance

Disturbance can induce a variety of effects, such as subtle changes in behavior, more conspicuous dramatic changes in activities, and displacement. Disturbance is one of the main concerns of the potential impacts of manmade noise on marine mammals. For many species and situations, there is no detailed information about reactions to noise. While there are no specific studies available on the reactions of marine mammals to sounds produced by a LNG facility, information from studies of marine mammal reactions to other types of continuous and transient anthropogenic sound (e.g., drillships) are described here as a proxy.

Behavioral reactions of marine mammals to sound are difficult to predict because they are dependent on numerous factors, including species, state of maturity, experience, current activity, reproductive state, time of day, and weather. If a marine mammal does react to an underwater sound by changing its behavior or moving a small distance, the impacts of that change may not be important to the individual, the stock, or the species as a whole. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on the animals could be important. Based on the literature reviewed in Richardson et al. (1995), it is apparent that most small and medium-sized toothed whales exposed to prolonged or repeated underwater sounds are unlikely to be displaced unless the overall received level is at least 140 dB re 1 µPa (rms). The limited available data indicate that the sperm whale is sometimes, though not always, more responsive to underwater sounds than other toothed whales. Baleen whales probably have better hearing sensitivities at lower sound frequencies, and in several studies have been shown to react to continuous sounds at received sound levels of approximately 120 dB re 1 µPa (rms). Toothed whales appear to exhibit a greater variety of reactions to manmade underwater noise than do baleen whales. Toothed whale reactions can vary from approaching vessels (e.g., to bow ride) to strong avoidance, while baleen whale reactions range from neutral (little or no change in behavior) to strong avoidance. In general, pinnipeds seem more tolerant of, or at least habituate more quickly to, potentially disturbing underwater noise than do cetaceans.

Baleen Whales—Baleen whales sometimes show behavioral changes in response to received broadband drillship noises of 120 dB (rms) or greater. On their summer range in the Beaufort Sea, bowhead whales (a species closely related to the right whale) were observed reacting to drillship noises within 2.5-5 mi (4-8 km) of the drillship at received levels 20 dB above ambient, or about 118 dB (Richardson et al., 1990). Reactions were stronger at the onset of the sound (Richardson et al., 1995). Migrating bowhead whales avoided an area with a radius of 6.2-12.4 mi (10-20 km around drillships and their associated support vessels, corresponding to a received noise level around 115 dB (Greene, 1987; Koski and Johnson, 1987; Hall et al., 1994; Davies, 1997; Schick and Urban, 2000). For gray whales off California, the predicted reaction zone around a semi-submersible drill rig was less than 0.62 mi (1 km), at received levels of approximately 120 dB (Malme et al., 1983, 1984). Humpback whales showed no obvious avoidance response to broadband drillship noises at a received level of 116 dB (Malme et al., 1985).

Reactions of baleen whales to boat noises include changes in swimming direction and speed, blow rate, and the frequency and kinds of vocalizations (Richardson et al., 1995). Baleen whales, especially minke whales, occasionally approach stationary or slow-moving boats, but more commonly avoid boats. Avoidance is strongest when boats approach directly or when vessel noise changes abruptly (Watkins, 1986; Beach and Weinrich, 1989). Humpback whales responded to boats at distances of at least 0.31-0.62 mi (0.5-1 km), and avoidance and other reactions have been noted in several areas at distances of several kilometers (Jurasz and Jurasz, 1979; Dean et al., 1985; Bauer, 1986; Bauer and Herman, 1986).

During some activities and at some locations, humpbacks exhibit little or no reaction to boats (Watkins, 1986). Some baleen whales seem to show habituation to frequent boat traffic. Over 25 years of observations in Cape Cod waters, minke whales' reactions to boats changed from frequent positive interactions (i.e., reactions of apparent curiosity or reactions that appeared to provide some reward to the animal) to a general lack of interest (i.e., ignored the stimuli), while humpback whales' reactions changed from being often negative to being often positive, and fin whales' reactions changed from being mostly negative (i.e., sudden changes from activity to inactivity or a display of agonistic responses) to being mostly uninterested (Watkins, 1986).

North Atlantic right whales also display variable responses to boats. There may be an initial orientation away from a boat, followed by a lack of observable reaction (Atkins and Swartz, 1989). A slowly moving boat can approach a right whale, but an abrupt change in course or engine speed usually elicits a reaction (Goodyear, 1989; Mayo and Marx, 1990; Gaskin, 1991). When approached by a boat, right whale mothers will interpose themselves between the vessel and calf and will maintain a low profile (Richardson et al., 1995). In a long-term study of baleen whale reactions to boats, while other baleen whale species appeared to habituate to boat presence over the 25-year period, right whales continued to show either uninterested or negative reactions to boats with no change over time (Watkins, 1986).

Biassoni et al. (2000) and Miller et al. (2000) reported behavioral observations for humpback whales exposed to a low-frequency sonar stimulus (160- to 330-Hz frequency band; 42-s tonal signal repeated every 6 min; source levels 170 to 200 dB) during playback experiments. Exposure to measured received levels ranging from 120 to 150 dB resulted in variability in humpback singing behavior. Croll et al. (2001) investigated responses of foraging fin and blue whales to the same low frequency active sonar stimulus off southern California. Playbacks and control intervals with no transmission were used to investigate behavior and distribution on time scales of several weeks and spatial scales of tens of kilometers. The general conclusion was that whales remained feeding within a region for which 12 to 30 percent of exposures exceeded 140 dB.

Frankel and Clark (1998) conducted playback experiments with wintering humpback whales using a single speaker producing a low-frequency “M-sequence” (sine wave with multiple-phase reversals) signal in the 60 to 90 Hz band with output of 172 dB at 1 m. For 11 playbacks, exposures were between 120 and 130 dB re 1 μPa (rms) and included sufficient information regarding individual responses. During eight of the trials, there were no measurable differences in tracks or bearings relative to control conditions, whereas on three occasions, whales either moved slightly away from (n = 1) or towards (n = 2) the playback speaker during exposure. The presence of the source vessel itself had a greater effect than did the M-sequence playback.

Finally, Nowacek et al. (2004) used controlled exposures to demonstrate behavioral reactions of North Atlantic right whales to various non-pulse sounds. Playback stimuli included ship noise, social sounds of conspecifics, and a complex, 18-min “alert” sound consisting of repetitions of three different artificial signals. Ten whales were tagged with calibrated instruments that measured received sound characteristics and concurrent animal movements in three dimensions. Five out of six exposed whales reacted strongly to alert signals at measured received levels between 130 and 150 dB (i.e., ceased foraging and swam rapidly to the surface). Two of these individuals were not exposed to ship noise, and the other four were exposed to both stimuli. These whales reacted mildly to conspecific signals. Seven whales, including the four exposed to the alert stimulus, had no measurable response to either ship sounds or actual vessel noise.

Odontocetes—In reviewing responses of cetaceans with best hearing (lowest auditory thresholds) in mid-frequency ranges, which includes toothed whales, Southall et al. (2007) reported that combined field and laboratory data for mid-frequency cetaceans exposed to non-pulse sounds did not lead to a clear conclusion about received levels coincident with various behavioral responses. In some settings, individuals in the field showed profound (significant) behavioral responses to exposures from 90 to 120 dB, while others failed to exhibit such responses for exposure to received levels from 120 to 150 dB. Contextual variables other than exposure received level, and probable species differences, are the likely reasons for this variability. Context, including the fact that captive subjects were often directly reinforced with food for tolerating noise exposure, may also explain why there was great disparity in results from field and laboratory conditions—exposures in captive settings generally exceeded 170 dB before inducing behavioral responses.

Dolphins and other toothed whales may show considerable tolerance of floating and bottom-founded drill rigs and their support vessels. Kapel (1979) reported many pilot whales within visual range of drillships and their support vessels off West Greenland. Beluga whales have been observed swimming within 328-492 ft (100-150 m) of an artificial island while drilling was underway (Fraker and Fraker, 1979, 1981) and within 1 mi (1.6 km) of the drillship Explorer I while the vessel was engaged in active drilling (Fraker and Fraker, 1981). Some belugas in Bristol Bay and Beaufort Sea, Alaska, when exposed to playbacks of drilling sounds, altered course to swim around the source, increased swimming speed, or reversed direction of travel (Stewart et al., 1982; Richardson et al., 1995). Reactions of beluga whales to semi-submersible drillship noise were less pronounced than were their reactions to motorboats with outboard engines. Captive belugas exposed to playbacks of recorded semi-submersible noise seemed quite tolerant of that sound (Thomas et al., 1990).

Morton and Symonds (2002) used census data on killer whales in British Columbia to evaluate avoidance of non-pulse acoustic harassment devices (AHDs). Avoidance ranges around the AHDs were about 2.5 mi (4 km). Also, there was a dramatic reduction in the number of days “resident” killer whales were sighted during AHD-active periods compared to pre- and post-exposure periods and a nearby control site.

Harbor porpoises off Vancouver Island, British Columbia, were found to be sensitive to the simulated sound of a 2-megawatt offshore wind turbine (Koschinski et al., 2003). The porpoises remained significantly further away from the sound source when it was active, and this effect was seen out to a distance of 197 ft (60 m). The device used in that study produced sounds in the frequency range of 30 to 800 Hz, with peak source levels of 128 dB re 1 μPa at 1 m at the 80- and 160-Hz frequencies.

Some species of small toothed cetaceans avoid boats when they are approached to within 0.31-0.93 mi (0.5-1.5 km), with occasional reports of avoidance at greater distances (Richardson et al., 1995). Some toothed whale species appear to be more responsive than others. Beaked whales and beluga whales seem especially responsive to boats. Dolphins may tolerate boats of all sizes, often approaching and riding the bow and stern waves (Shane et al., 1986). At other times, dolphin species that are known to be attracted to boats will avoid them. Such avoidance is often linked to previous boat-based harassment of the animals (Richardson et al., 1995). Coastal bottlenose dolphins that are the object of whale-watching activities have been observed to swim erratically (Acevedo, 1991), remain submerged for longer periods of time (Janik and Thompson, 1996; Nowacek et al., 2001), display less cohesiveness among group members (Cope et al., 1999), whistle more frequently (Scarpaci et al., 2000), and rest less often (Constantine et al., 2004) when boats were nearby. Pantropical spotted dolphins and spinner dolphins in the eastern Tropical Pacific, where they have been targeted by the tuna fishing industry because of their association with these fish, display avoidance of survey vessels up to 11.1 km (6.9 mi; Au and Perryman, 1982; Hewitt, 1985), whereas spinner dolphins in the Gulf of Mexico were observed bow riding the survey vessel in all 14 sightings of this species during one survey (Wursig et al., 1998).

Harbor porpoises tend to avoid boats. In the Bay of Fundy, Polacheck and Thorpe (1990) found harbor porpoises to be more likely to swim away from the transect line of their survey vessel than to swim toward it and more likely to head away from the vessel when they were within 1,312 ft (400 m). Similarly, off the west coast of North America, Barlow (1988) observed harbor porpoises avoiding a survey vessel by moving rapidly out of its path within 0.62 mi (1 km) of that vessel. Beluga whales are generally quite responsive to vessels. Belugas in Lancaster Sound in the Canadian Arctic showed dramatic reactions in response to icebreaking ships, with received levels of sound ranging from 101 dB to 136 dB re 1 μPa in the 20 to 1,000-Hz band at a depth of 66ft (20 m; Finley et al., 1990). Responses included emitting distinctive pulsive calls that were suggestive of excitement or alarm and rapid movement in what seemed to be a flight response. Reactions occurred out to 50 mi (80 km) from the ship. Another study found belugas to use higher-frequency calls, a greater redundancy in their calls (more calls emitted in a series), and a lower calling rate in the presence of vessels (Lesage et al., 1999). The level of response of belugas to vessels is thought to be partly a function of habituation. Sperm whales generally show no overt reactions to vessels unless approached within several hundred meters (Watkins and Schevill, 1975; Wursig et al., 1998; Magalhaes et al., 2002). Observed reactions include spending more (Richter et al., 2003) or less (Watkins and Schevill, 1975) time at the surface, increasing swimming speed, or changing heading (Papastavrou et al., 1989; Richter et al., 2003) and diving abruptly (Wursig et al., 1998).

Pinnipeds—Pinnipeds generally seem to be less responsive to exposure to industrial sound than most cetaceans. Pinniped responses to underwater sound from some types of industrial activities such as seismic exploration appear to be temporary and localized (Harris et al., 2001; Reiser et al., 2009).

Responses of pinnipeds to drilling noise have not been well studied. Richardson et al. (1995) summarizes the few available studies, which show ringed and bearded seals in the Arctic to be rather tolerant of drilling noise. Seals were often seen near active drillships and approached, to within 164 ft (50 m), a sound projector broadcasting low-frequency drilling sound.

Southall et al. (2007) reviewed literature describing responses of pinnipeds to non-pulsed sound and reported that the limited data suggest exposures between approximately 90 and 140 dB generally do not appear to induce strong behavioral responses in pinnipeds exposed to non-pulse sounds in water; no data exist regarding exposures at higher levels. It is important to note that among these studies, there are some apparent differences in responses between field and laboratory conditions. In contrast to the mid-frequency odontocetes, captive pinnipeds responded more strongly at lower levels than did animals in the field. Again, contextual issues are the likely cause of this difference.

Jacobs and Terhune (2002) observed harbor seal reactions to AHDs (source level in this study was 172 dB) deployed around aquaculture sites. Seals were generally unresponsive to sounds from the AHDs. During two specific events, individuals came within 141 and 144 ft (43 and 44 m) of active AHDs and failed to demonstrate any measurable behavioral response; estimated received levels based on the measures given were approximately 120 to 130 dB.

Costa et al. (2003) measured received noise levels from an Acoustic Thermometry of Ocean Climate (ATOC) program sound source off northern California using acoustic data loggers placed on translocated elephant seals. Subjects were captured on land, transported to sea, instrumented with archival acoustic tags, and released such that their transit would lead them near an active ATOC source (at 0.6 mi depth [939 m]; 75-Hz signal with 37.5-Hz bandwidth; 195 dB maximum source level, ramped up from 165 dB over 20 min) on their return to a haul-out site. Received exposure levels of the ATOC source for experimental subjects averaged 128 dB (range 118 to 137) in the 60- to 90-Hz band. None of the instrumented animals terminated dives or radically altered behavior upon exposure, but some statistically significant changes in diving parameters were documented in nine individuals. Translocated northern elephant seals exposed to this particular non-pulse source began to demonstrate subtle behavioral changes at exposure to received levels of approximately 120 to 140 dB.

Kastelein et al. (2006) exposed nine captive harbor seals in an approximately 82 × 98 ft (25 × 30 m) enclosure to non-pulse sounds used in underwater data communication systems (similar to acoustic modems). Test signals were frequency modulated tones, sweeps, and bands of noise with fundamental frequencies between 8 and 16 kHz; 128 to 130 [± 3] dB source levels; 1- to 2-s duration [60-80 percent duty cycle]; or 100 percent duty cycle. They recorded seal positions and the mean number of individual surfacing behaviors during control periods (no exposure), before exposure, and in 15-min experimental sessions (n = 7 exposures for each sound type). Seals generally swam away from each source at received levels of approximately 107 dB, avoiding it by approximately 16 ft (5 m), although they did not haul out of the water or change surfacing behavior. Seal reactions did not appear to wane over repeated exposure (i.e., there was no obvious habituation), and the colony of seals generally returned to baseline conditions following exposure. The seals were not reinforced with food for remaining in the sound field.

Reactions of harbor seals to the simulated noise of a 2-megawatt wind power generator were measured by Koschinski et al. (2003). Harbor seals surfaced significantly further away from the sound source when it was active and did not approach the sound source as closely. The device used in that study produced sounds in the frequency range of 30 to 800 Hz, with peak source levels of 128 dB re 1 μPa at 1 m at the 80- and 160-Hz frequencies.

Ship and boat noise do not seem to have strong effects on seals in the water, but the data are limited. When in the water, seals appear to be much less apprehensive about approaching vessels. Some will approach a vessel out of apparent curiosity, including noisy vessels such as those operating seismic airgun arrays (Moulton and Lawson, 2002). Gray seals have been known to approach and follow fishing vessels in an effort to steal catch or the bait from traps. In contrast, seals hauled out on land often are quite responsive to nearby vessels. Terhune (1985) reported that northwest Atlantic harbor seals were extremely vigilant when hauled out and were wary of approaching (but less so passing) boats. Suryan and Harvey (1999) reported that Pacific harbor seals commonly left the shore when powerboat operators approached to observe the seals. Those seals detected a powerboat at a mean distance of 866 ft (264 m), and seals left the haul-out site when boats approached to within 472 ft (144 m).

Hearing Impairment and Other Physiological Effects

Temporary or permanent hearing impairment is a possibility when marine mammals are exposed to very strong sounds. Non-auditory physiological effects might also occur in marine mammals exposed to strong underwater sound. Possible types of non-auditory physiological effects or injuries that theoretically might occur in mammals close to a strong sound source include stress, neurological effects, bubble formation, and other types of organ or tissue damage. It is possible that some marine mammal species (i.e., beaked whales) may be especially susceptible to injury and/or stranding when exposed to strong pulsed sounds, particularly at higher frequencies. Non-auditory physiological effects are not anticipated to occur as a result of Port operations or maintenance, as none of the activities associated with the Neptune Port will generate sounds loud enough to cause such effects. The following subsections discuss in somewhat more detail the possibilities of TTS and permanent threshold shift (PTS).

TTS—TTS is the mildest form of hearing impairment that can occur during exposure to a strong sound (Kryter, 1985). While experiencing TTS, the hearing threshold rises and a sound must be stronger in order to be heard. At least in terrestrial mammals, TTS can last from minutes or hours to (in cases of strong TTS) days. For sound exposures at or somewhat above the TTS threshold, hearing sensitivity in both terrestrial and marine mammals recovers rapidly after exposure to the noise ends. Few data on sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals, and none of the published data concern TTS elicited by exposure to multiple pulses of sound.

Human non-impulsive noise exposure guidelines are based on exposures of equal energy (the same sound exposure level [SEL]) producing equal amounts of hearing impairment regardless of how the sound energy is distributed in time (NIOSH, 1998). Until recently, previous marine mammal TTS studies have also generally supported this equal energy relationship (Southall et al., 2007). Three newer studies, two by Mooney et al. (2009a, b) on a single bottlenose dolphin either exposed to playbacks of U.S. Navy mid-frequency active sonar or octave-band noise (4-8 kHz) and one by Kastak et al. (2007) on a single California sea lion exposed to airborne octave-band noise (centered at 2.5 kHz), concluded that for all noise exposure situations, the equal energy relationship may not be the best indicator to predict TTS onset levels. Generally, with sound exposures of equal energy, those that were quieter (lower sound pressure level [SPL]) with longer duration were found to induce TTS onset more than those of louder (higher SPL) and shorter duration. Given the available data, the received level of a single seismic pulse (with no frequency weighting) might need to be approximately 186 dB re 1 μPa²·s (i.e., 186 dB SEL) in order to produce brief, mild TTS. NMFS considers TTS to be a form of Level B harassment, which temporarily causes a shift in an animal's hearing, and the animal is able to recover. Data on TTS from continuous sound (such as that produced by Neptune's proposed Port activities) are limited, so the available data from seismic activities are used as a proxy. Exposure to several strong seismic pulses that each have received levels near 175-180 dB SEL might result in slight TTS in a small odontocete, assuming the TTS threshold is (to a first approximation) a function of the total received pulse energy. Given that the SPL is approximately 10-15 dB higher than the SEL value for the same pulse, an odontocete would need to be exposed to a sound level of 190 dB re 1 μPa (rms) in order to incur TTS.

TTS was measured in a single, captive bottlenose dolphin after exposure to a continuous tone with maximum SPLs at frequencies ranging from 4 to 11 kHz that were gradually increased in intensity to 179 dB re 1 μPa and in duration to 55 minutes (Nachtigall et al., 2003). No threshold shifts were measured at SPLs of 165 or 171 dB re 1 μPa. However, at 179 dB re 1 μPa, TTSs greater than 10 dB were measured during different trials with exposures ranging from 47 to 54 minutes. Hearing sensitivity apparently recovered within 45 minutes after noise exposure.

For baleen whales, there are no data, direct or indirect, on levels or properties of sound that are required to induce TTS. The frequencies to which baleen whales are most sensitive are lower than those to which odontocetes are most sensitive, and natural background noise levels at those low frequencies tend to be higher. Marine mammals can hear sounds at varying frequency levels. However, sounds that are produced in the frequency range at which an animal hears the best do not need to be as loud as sounds in less functional frequencies to be detected by the animal. As a result, auditory thresholds of baleen whales within their frequency band of best hearing are believed to be higher (less sensitive) than are those of odontocetes at their best frequencies (Clark and Ellison, 2004). Therefore, for a sound to be audible, baleen whales require sounds to be louder (i.e., higher dB levels) than odontocetes in the frequency ranges at which each group hears the best. Based on this information, it is suspected that received levels causing TTS onset may also be higher in baleen whales. Since current NMFS practice assumes the same thresholds for the onset of hearing impairment in both odontocetes and mysticetes, NMFS' onset of TTS threshold is likely conservative for mysticetes.

In free-ranging pinnipeds, TTS thresholds associated with exposure to brief pulses (single or multiple) of underwater sound have not been measured. However, systematic TTS studies on captive pinnipeds have been conducted (Bowles et al., 1999; Kastak et al., 1999, 2005, 2007; Schusterman et al., 2000; Finneran et al., 2003; Southall et al., 2007). Kastak et al. (1999) reported TTS of approximately 4-5 dB in three species of pinnipeds (harbor seal, Californian sea lion, and northern elephant seal) after underwater exposure for approximately 20 minutes to noise with frequencies ranging from 100-2,000 Hz at received levels 60-75 dB above hearing threshold. This approach allowed similar effective exposure conditions to each of the subjects, but resulted in variable absolute exposure values depending on subject and test frequency. Recovery to near baseline levels was reported within 24 hours of noise exposure (Kastak et al., 1999). Kastak et al. (2005) followed up on their previous work using higher sensitivity levels and longer exposure times (up to 50-min) and corroborated their previous findings. The sound exposures necessary to cause slight threshold shifts were also determined for two California sea lions and a juvenile elephant seal exposed to underwater sound for similar duration. The sound level necessary to cause TTS in pinnipeds depends on exposure duration, as in other mammals; with longer exposure, the level necessary to elicit TTS is reduced (Schusterman et al., 2000; Kastak et al., 2005, 2007). For very short exposures (e.g., to a single sound pulse), the level necessary to cause TTS is very high (Finneran et al., 2003). For pinnipeds exposed to in-air sounds, auditory fatigue has been measured in response to single pulses and to non-pulse noise (Southall et al., 2007), although high exposure levels were required to induce TTS-onset (SEL: 129 dB re: 20 μPa²·s; Bowles et al., unpub. data).

NMFS (1995, 2000) concluded that cetaceans and pinnipeds should not be exposed to pulsed underwater noise at received levels exceeding, respectively, 180 and 190 dB re 1 μPa (rms). The established 180- and 190-dB re 1 μPa (rms) criteria are not considered to be the levels above which TTS might occur. Rather, they are the received levels above which, in the view of a panel of bioacoustics specialists convened by NMFS before TTS measurements for marine mammals started to become available, one could not be certain that there would be no injurious effects, auditory or otherwise, to marine mammals. Since the modeled broadband source level for 100 percent thruster use during Port operations is 180 dB re 1 μPa at 1 m (rms), it is highly unlikely that marine mammals would be exposed to sound levels at the 180- or 190-dB thresholds, thereby reducing the risk of TTS to marine mammals in the area.

PTS—When PTS occurs, there is physical damage to the sound receptors in the ear. In some cases, there can be total or partial deafness, whereas in other cases, the animal has an impaired ability to hear sounds in specific frequency ranges.

There is no specific evidence that exposure to underwater industrial sounds can cause PTS in any marine mammal (see Southall et al., 2007). However, given the possibility that marine mammals might incur TTS, there has been further speculation about the possibility that some individuals occurring very close to industrial activities might incur PTS. Richardson et al. (1995) hypothesized that PTS caused by prolonged exposure to continuous anthropogenic sound is unlikely to occur in marine mammals, at least for sounds with source levels up to approximately 200 dB re 1 μPa at 1 m (rms). Single or occasional occurrences of mild TTS are not indicative of permanent auditory damage in terrestrial mammals. Relationships between TTS and PTS thresholds have not been studied in marine mammals but are assumed to be similar to those in humans and other terrestrial mammals. PTS might occur at a received sound level at least several decibels above that inducing mild TTS.

It is highly unlikely that marine mammals could receive sounds strong enough (and over a sufficient duration) to cause PTS (or even TTS) during the proposed Port operations and maintenance/repair activities. The modeled broadband source level for 100 percent thruster use during port operations is 180 dB re 1 μPa at 1 m (rms). This does not reach the threshold of 190 dB currently used for pinnipeds. The threshold for cetaceans is 180 dB; therefore, cetaceans would have to be immediately adjacent to the vessel even possibly incur hearing impairment. Based on this conclusion and the mitigation measures proposed for inclusion in the regulations (described later in this document in the “Proposed Mitigation” section), it is highly unlikely that any type of hearing impairment would occur as a result of Neptune's proposed activities.

Additionally, the potential effects to marine mammals described in this section of the document do not take into consideration the proposed monitoring and mitigation measures described later in this document (see the “Proposed Mitigation” and “Proposed Monitoring and Reporting” sections).

Anticipated Effects on Habitat

The primary potential impacts to marine mammals and other marine species are associated with elevated sound levels produced by the Port operations and maintenance/repair activities. However, other potential impacts from physical disturbance are also possible.

Potential Impacts From Repairs

Major repairs to the Neptune Port and pipeline may affect marine mammal habitat in several ways: Disturbing the seafloor; increasing turbidity slightly; and generating additional underwater sound in the area. Sediment transport modeling conducted by Neptune on construction procedures indicated that initial turbidity from installation of the pipeline could reach 100 milligrams per liter (mg/L), but will subside to 20 mg/L after 4 hours. Turbidity associated with the flowline and hot-tap will be considerably less and also will settle within hours of the work being completed. Therefore, any increase in turbidity from a major repair during operations is anticipated to be insignificant. Repair activities will not create long-term habitat changes, and marine mammals displaced by the disturbance to the seafloor are expected to return soon after the repair is completed.

During repair of the Neptune Port and pipeline, underwater sound levels will be temporarily elevated. These underwater sound levels will cause some marine species to temporarily disperse from or avoid repair areas, but they are expected to return shortly after the repair is completed.

Based on the foregoing, repair activities will not create long-term habitat changes, and marine mammals displaced by the disturbance to the seafloor are expected to return soon after repair activities cease. Marine mammals also could be indirectly affected if benthic prey species are displaced or destroyed by repair activities. However, affected benthic species are expected to recover soon after the completion of repairs and will represent only a small portion of food available to marine mammals in the area.

Potential Impacts From Operation

Operation of the Port will result in long-term, continued disturbance of the seafloor, regular withdrawal of seawater, and generation of underwater sound.

Seafloor Disturbance: The structures associated with the Port (flowline and pipeline, unloading buoys and chains, suction anchors) will be permanent modifications to the seafloor. Up to 63.7 acres (0.25 km²) of additional seafloor will be subject to disturbance due to chain and flexible riser sweep while the buoys are occupied by SRVs.

Ballast and Cooling Water Withdrawal: Withdrawal of ballast and cooling water at the Port as the SRV unloads cargo (approximately 2.39 million gallons [9 million liters] per day) could potentially entrain zooplankton and ichthyoplankton that serve as prey for some whale species. This estimate includes the combined seawater intake while two SRVs are moored at the Port (approximately 9 hr every 6 days). The estimated zooplankton abundance in the vicinity of the seawater intake ranges from 25.6-105 individuals per gallon (Libby et al., 2004). This means that the daily intake will remove approximately 61.2-251 million individual zooplankton per day, the equivalent of approximately 7.65-31.4 lbs (3.47-14.2 kg). Since zooplankton are short-lived species (e.g., most copepods live from 1 wk to several months), these amounts will be indistinguishable from natural variability.

In the long-term, approximately 64.6 acres (0.26 km²) of seafloor will be permanently disturbed to accommodate the Port (including the associated pipeline). The area disturbed because of long-term chain and riser sweep includes 63.7 acres (0.25 km²) of soft sediment. The area of disturbance will be similar in calm seas and in hurricane conditions. The chain weight will restrict the movement of the buoy or the vessel moored on the buoy. An additional 0.9 acre (0.004 km²) of soft sediments will be converted to hard substrate. The total affected area will be small compared to the soft sediments available in the proposed project area. Long-term disturbance from installation of the Port will comprise approximately 0.3 percent of the estimated 24,000 acres (97 km²) of similar bottom habitat surrounding the project area (northeast sector of Massachusetts Bay).

It is likely that displaced organisms will not return to the area of continual chain and riser sweep. A shift in benthic faunal community is expected in areas where soft sediment is converted to hard substrate (Algonquin Gas Transmission LLC, 2005). This impact will be beneficial for species that prefer hard-bottom structure and adverse for species that prefer soft sediment. Overall, because of the relatively small areas that will be affected compared to the overall size of Massachusetts Bay, impacts on soft-bottom communities are expected to be minimal.

Daily removal of seawater will reduce the food resources available for planktivorous organisms. The marine mammal species in the area have fairly broad diets and are not dependent on any single species for survival. Because of the relatively low biomass that will be entrained by the Port, the broad diet of the marine mammals in the area, and broad availability of organisms in the proposed project area, indirect impacts on the food web that result from entrainment of planktonic fish and shellfish eggs and larvae are expected to be minor and therefore should have minimal impact on affected marine mammal species or stocks.

Potential Impacts From Sound Generation

The groups of important fish, including those that constitute prey for some of the marine mammals found in the project area, that occur in the vicinity of the Neptune Port are comprised of species showing considerable diversity in hearing sensitivity, anatomical features related to sound detection (e.g., swim bladder, connections between swim bladder and ear), habitat preference, and life history. Neptune's application contains a discussion on sound production, sound detection, and variability of fish hearing sensitivities. Please refer to the application (see ADDRESSES) for the full discussion. A few summary paragraphs are provided here for reference.

Fishes produce sounds that are associated with behaviors that include territoriality, mate search, courtship, and aggression. It has also been speculated that sound production may provide the means for long distance communication and communication under poor underwater visibility conditions (Zelick et al., 1999), although the fact that fish communicate at low-frequency sound levels where the masking effects of ambient noise are naturally highest suggests that very long distance communication would rarely be possible. Fishes have evolved a diversity of sound generating organs and acoustic signals of various temporal and spectral contents. Fish sounds vary in structure, depending on the mechanism used to produce them (Hawkins, 1993). Generally, fish sounds are predominantly composed of low frequencies (less than 3 kHz).

Since objects in the water scatter sound, fish are able to detect these objects through monitoring the ambient noise. Therefore, fish are probably able to detect prey, predators, conspecifics, and physical features by listening to the environmental sounds (Hawkins, 1981). There are two sensory systems that enable fish to monitor the vibration-based information of their surroundings. The two sensory systems, the inner ear and the lateral line, constitute the acoustico-lateralis system.

Although the hearing sensitivities of very few fish species have been studied to date, it is becoming obvious that the intra- and inter-specific variability is considerable (Coombs, 1981). Nedwell et al. (2004) compiled and published available fish audiogram information. A noninvasive electrophysiological recording method known as auditory brainstem response (ABR) is now commonly used in the production of fish audiograms (Yan, 2004). Generally, most fish have their best hearing in the low-frequency range (i.e., less than 1 kHz). Even though some fish are able to detect sounds in the ultrasonic frequency range, the thresholds at these higher frequencies tend to be considerably higher than those at the lower end of the auditory frequency range. This generalization applies to fish species occurring in the Neptune Port area. Table 9-1 in Neptune's application (see ADDRESSES) outlines the measured auditory sensitivities of fish that are most relevant to the Neptune Port area.

Literature relating to the impacts of sound on marine fish species can be divided into the following categories: (1) Pathological effects; (2) physiological effects; and (3) behavioral effects. Pathological effects include lethal and sub-lethal physical damage to fish; physiological effects include primary and secondary stress responses; and behavioral effects include changes in exhibited behaviors of fish. Behavioral changes might be a direct reaction to a detected sound or a result of the anthropogenic sound masking natural sounds that the fish normally detect and to which they respond. The three types of effects are often interrelated in complex ways. For example, some physiological and behavioral effects could potentially lead to the ultimate pathological effect of mortality. Hastings and Popper (2005) reviewed what is known about the effects of sound on fishes and identified studies needed to address areas of uncertainty relative to measurement of sound and the responses of fishes. Popper et al. (2003/2004) also published a paper that reviews the effects of anthropogenic sound on the behavior and physiology of fishes.

The following discussions of the three primary types of potential effects on fish from exposure to sound consider continuous sound sources since, such sounds will be generated by the proposed activities associated with the Neptune Port; however, most research reported in the literature focuses on the effects of airguns, which produce pulsed sounds. A full discussion is provided in Neptune's application (see ADDRESSES), and a summary is provided here.

Potential effects of exposure to continuous sound on marine fish include TTS, physical damage to the ear region, physiological stress responses, and behavioral responses such as startle response, alarm response, avoidance, and perhaps lack of response due to masking of acoustic cues. Most of these effects appear to be either temporary or intermittent and therefore probably do not significantly impact the fish at a population level. The studies that resulted in physical damage to the fish ears used noise exposure levels and durations that were far more extreme than would be encountered under conditions similar to those expected at the Neptune Port.

The known effects of underwater noise on fish have been reviewed. Noise levels needed to cause temporary hearing loss and damage to hearing are higher and last longer than noise that will be produced at Neptune. The situation for disturbance responses is less clear. Fish do react to underwater noise from vessels and move out of the way, move to deeper depths, or change their schooling behavior. The received levels at which fish react are not known and in fact are somewhat variable depending upon circumstances and species. In order to assess the possible effects of underwater project noise, it is best to examine project noise in relation to continuous noises routinely produced by other projects and activities such as shipping, fishing, etc.

The two long-term sources of continuous noise associated with the project are the ship transits between the Boston shipping lanes and the unloading buoys and the regasification process at the carriers when moored to the unloading buoys. Noise levels associated with these two activities are relatively low and are unlikely to have any effect on prey species in the area. One other activity expected to produce short periods of continuous noise is the carrier maneuvering bouts at the Port. Although this activity is louder, it is still less than the noise levels associated with large ships at cruising speed. The carrier maneuvering using the ship's thrusters would produce short periods of louder noise for 10-30 minutes every 4-8 days. On average, these thruster noises would be heard about 20 hr/yr. Even in the unlikely event that these two activities caused disturbance to marine fish, the short periods of time involved serve to minimize the effects.

In conclusion, NMFS has preliminarily determined that Neptune's proposed port operations and maintenance/repair activities are not expected to have any habitat-related effects that could cause significant or long-term consequences for individual marine mammals or on the food sources that they utilize.

Proposed Mitigation

In order to issue an incidental take authorization (ITA) under section 101(a)(5)(A) of the MMPA, NMFS must, where applicable, set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (where relevant).

Neptune proposed several mitigation measures in the application (see ADDRESSES). After a review of these measures, NMFS determined that some additional measures should also be proposed in order to effect the least practicable adverse impact on the species or stock and its habitat. Both sets of measures are discussed next. These measures are the same ones that were proposed in the 2010 IHA Federal Register notice (75 FR 24906, May 6, 2010) and that are currently required to be implemented by Neptune in the 2010 IHA (75 FR 41440, July 16, 2010).

Mitigation Measures Proposed in Neptune's Application

Neptune submitted a “Marine Mammal Detection, Monitoring, and Response Plan for the Operations Phase” (the Plan) as part of its MMPA application (Appendix D of the application; see ADDRESSES). The measures, which include safety zones and vessel speed reductions, are fully described in the Plan and summarized here. The 500 yd (457 m) safety zone for North Atlantic right whales is based on the approach regulation found at 50 CFR 224.103. The 100 yd (91 m) safety zone for other marine mammal species was taken from measures included in the 2007 Biological Opinion completed by NMFS' Northeast Regional Office. Any maintenance and/or repairs needed will be scheduled in advance during the May 1 to November 30 seasonal window, whenever possible, so that disturbance to North Atlantic right whales will be largely avoided. If the repair cannot be scheduled during this time frame, additional mitigation measures are proposed for inclusion in these regulations and described in part (2) of this subsection.

(1) Mitigation Measures for Major Repairs (May 1 to November 30)

(A) During repairs, if a marine mammal is detected within 0.5 mi (0.8 km) of the repair vessel, the vessel superintendent or on-deck supervisor will be notified immediately. The vessel's crew will be put on a heightened state of alert. The marine mammal will be monitored constantly to determine if it is moving toward the repair area.

(B) Repair vessels will cease any movement in the area if a marine mammal other than a right whale is sighted within or approaching to a distance of 100 yd (91 m) from the operating repair vessel. Repair vessels will cease any movement in the area if a right whale is sighted within or approaching to a distance of 500 yd (457 m) from the operating vessel. Vessels transiting the repair area, such as pipe haul barge tugs, will also be required to maintain these separation distances.

(C) Repair vessels will cease all sound emitting activities if a marine mammal other than a right whale is sighted within or approaching to a distance of 100 yd (91 m) or if a right whale is sighted within or approaching to a distance of 500 yd (457 m), from the operating repair vessel. The back-calculated source level, based on the most conservative cylindrical model of acoustic energy spreading, is estimated to be 139 dB re 1 μPa.

(D) Repair activities may resume after the marine mammal is positively reconfirmed outside the established zones (either 500 yd (457 m) or 100 yd (91 m), depending upon species).

(E) While under way, all repair vessels will remain 500 yd (457 m) away from right whales and 100 yd (91 m) away from all other marine mammals, unless constrained by human safety concerns or navigational constraints.

(F) All repair vessels 300 gross tons or greater will maintain a speed of 10 knots (18.5 km/hr) or less. Vessels less than 300 gross tons carrying supplies or crew between the shore and the repair site will contact the Mandatory Ship Reporting System, the USCG, or the protected species observers (PSOs) at the repair site before leaving shore for reports of recent right whale sightings or active Dynamic Management Areas (DMAs) and, consistent with navigation safety, restrict speeds to 10 knots (18.5 km/hr) or less within 5 mi (8 km) of any recent sighting location and within any existing DMA.

(G) Vessels transiting through the Cape Cod Canal and CCB between January 1 and May 15 will reduce speeds to 10 knots (18.5 km/hr) or less, follow the recommended routes charted by NOAA to reduce interactions between right whales and shipping traffic, and avoid aggregations of right whales in the eastern portion of CCB.

(2) Additional Port and Pipeline Major Repair Measures (December 1 to April 30)

If unplanned/emergency repair activities cannot be conducted between May 1 and November 30, Neptune has proposed to implement the following additional mitigation measures:

(A) If on-board PSOs do not have at least 0.5-mi (0.8-km) visibility, they shall call for a shutdown of repair activities. If dive operations are in progress, then they shall be halted and divers brought on board until visibility is adequate to see a 0.5-mi (0.8-km) range. At the time of shutdown, the use of thrusters must be minimized to the lowest level needed to maintain personnel safety. If there are potential safety problems due to the shutdown, the captain will decide what operations can safely be shut down and will document such activities in the data log.

(B) Prior to leaving the dock to begin transit, the barge will contact one of the PSOs on watch to receive an update of sightings within the visual observation area (within 0.6 mi (1 km) of the Port). If the PSO has observed a North Atlantic right whale within 30 minutes of the transit start, the vessel will hold for 30 minutes and again seek clearance to leave from the PSOs on board. PSOs will assess whale activity and visual observation ability at the time of the transit request to clear the barge for release and will grant clearance if no North Atlantic right whales have been sighted in the last 30 minutes in the visual observation area.

(C) Neptune or its contractor shall provide a half-day training course to designated crew members assigned to the transit barges and other support vessels who will have responsibilities for watching for marine mammals. This course shall cover topics including, but not limited to, descriptions of the marine mammals found in the area, mitigation and monitoring requirements contained in the LOA, sighting log requirements, and procedures for reporting injured or dead marine mammals. These designated crew members will be required to keep watch on the bridge and immediately notify the navigator of any whale sightings. All watch crew members will sign into a bridge log book upon start and end of watch. Transit route, destination, sea conditions, and any protected species sightings/mitigation actions during watch will be recorded in the log book. Any whale sightings within 3,281 ft (1,000 m) of the vessel will result in a high alert and slow speed of 4 knots (7.4 km/hr) or less. A sighting within 2,461 ft (750 m) will result in idle speed and/or ceasing all movement.

(D) The material barges and tugs used for repair work shall transit from the operations dock to the work sites during daylight hours, when possible, provided the safety of the vessels is not compromised. Should transit at night be required, the maximum speed of the tug will be 5 knots (9.3 km/hr).

(E) Consistent with navigation safety, all repair vessels must maintain a speed of 10 knots (18.5 km/hr) or less during daylight hours. All vessels will operate at 5 knots (9.3 km/hr) or less at all times within 3.1 mi (5 km) of the repair area.

(3) Speed Restrictions in Seasonal Management Areas (SMAs)

Repair vessels and SRVs will transit at 10 knots (18.5 km/hr) or less in the following seasons and areas, which either correspond to or are more restrictive than the times and areas in NMFS' final rule (73 FR 60173, October 10, 2008) to implement speed restrictions to reduce the likelihood and severity of ship strikes of right whales:

• CCB SMA from January 1 through May 15, which includes all waters in CCB, extending to all shorelines of the Bay, with a northern boundary of 42°12′ N. latitude;
• Off Race Point SMA year round, which is bounded by straight lines connecting the following coordinates in the order stated: 42°30′ N. 69°45′ W.; thence to 42°30′ N. 70°30′ W.; thence to 42°12′ N. 70°30′ W.; thence to 42°12′ N. 70°12′ W.; thence to 42°04′56.5″; N. 70°12′ W.; thence along mean high water line and inshore limits of COLREGS limit to a latitude of 41°40′ N.; thence due east to 41°41′ N. 69°45′ W.; thence back to starting point; and
• GSC SMA from April 1 through July 31, which is bounded by straight lines connecting the following coordinates in the order stated:

42°30′ N. 69°45′ W.

41°40′ N. 69°45′ W.

41°00′ N. 69°05′ W.

42°09′ N. 67°08′24″ W.

42°30′ N. 67°27′ W.

42°30′ N. 69°45′ W.

(4) Additional Mitigation Measures

(A) In approaching and departing from the Neptune Port, SRVs shall use the Boston TSS starting and ending at the entrance to the GSC. Upon entering the TSS, the SRV shall go into a “heightened awareness” mode of operation, which is outlined in great detail in the Plan (see Neptune's application).

(B) In the event that a whale is visually observed within 0.6 mi (1 km) of the Port or a confirmed acoustic detection is reported on either of the two auto-detection buoys (ABs; more information on the acoustic devices is contained in the “Proposed Monitoring and Reporting” section later in this document) closest to the Port, departing SRVs shall delay their departure from the Port, unless extraordinary circumstances, defined in the Plan, require that the departure is not delayed. The departure delay shall continue until either the observed whale has been visually (during daylight hours) confirmed as more than 0.6 mi (1 km) from the Port or 30 minutes have passed without another confirmed detection either acoustically within the acoustic detection range of the two ABs closest to the Port or visually within 0.6 mi (1 km) from Neptune.

(C) SRVs that are approaching or departing from the Port and are within the Area to be Avoided (ATBA) surrounding Neptune shall remain at least 0.6 mi (1 km) away from any visually detected right whales and at least 100 yd (91 m) away from all other visually detected whales unless extraordinary circumstances, as defined in Section 1.2 of the Plan in Neptune's application, require that the vessel stay its course. The ATBA is defined in 33 CFR 150.940. It is the largest area of the Port marked on nautical charts, and it is enforceable by the USCG in accordance with the 150.900 regulations. The Vessel Master shall designate at least one lookout to be exclusively and continuously monitoring for the presence of marine mammals at all times while the SRV is approaching or departing Neptune.

(D) Neptune will ensure that other vessels providing support to Neptune operations during regasification activities that are approaching or departing from the Port and are within the ATBA shall be operated so as to remain at least 0.6 mi (1 km) away from any visually detected right whales and at least 100 yd (91 m) from all other visually detected whales.

Additional Mitigation Measures Proposed by NMFS

In addition to the mitigation measures proposed in Neptune's application, NMFS proposes the following measures be included in these proposed regulations in order to ensure the least practicable adverse impact on the affected species or stocks:

(1) Neptune must immediately suspend any repair and maintenance or operations activities if a dead or injured marine mammal is found in the vicinity of the project area, and the death or injury of the animal could be attributable to the LNG facility activities. Upon finding a dead or injured marine mammal, Neptune must contact NMFS, the Northeast Stranding and Disentanglement Program, and the USCG. NMFS will review the documentation submitted by the PSO and attempt to attribute a cause of death. Activities will not resume until review and approval has been given by NMFS.

(2) PSOs will direct a moving vessel to slow to idle if a baleen whale is seen less than 0.6 mi (1 km) from the vessel.

(3) Use of lights during repair or maintenance activities shall be limited to areas where work is actually occurring, and all other lights must be extinguished. Lights must be downshielded to illuminate the deck and shall not intentionally illuminate surrounding waters, so as not to attract whales or their prey to the area.

Proposed Mitigation Conclusions

NMFS has carefully evaluated the applicant's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:

• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation.

Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, NMFS has preliminarily determined that the mitigation measures proposed above from both NMFS and Neptune (hereinafter the “proposed 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.

The proposed rule comment period will afford the public an opportunity to submit recommendations, views, and/or concerns regarding this action and the proposed mitigation measures. While NMFS has determined preliminarily that the proposed mitigation measures presented in this document will effect the least practicable adverse impact on the affected species or stocks and their habitat, NMFS will consider all public comments to help inform our final decision. Consequently, the proposed mitigation measures may be refined, modified, removed, or added to prior to the issuance of the final rule based on public comments received, and where appropriate, further analysis of any additional mitigation measures.

Proposed Monitoring and Reporting

In order to issue an ITA for an activity, section 101(a)(5)(A) of the MMPA states that NMFS must, where applicable, set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area.

Neptune proposed both visual and acoustic monitoring programs in the Plan contained in the application. The Plan may be modified or supplemented based on comments or new information received from the public during the public comment period. Summaries of those plans, as well as the proposed reporting, are contained next.

Passive Acoustic Monitoring

Neptune LNG will deploy and maintain a passive acoustic detection network along a portion of the TSS and in the vicinity of Neptune. This network will consist of autonomous recording units (ARUs) and near-real-time ABs. To develop, implement, collect, and analyze the acoustic data obtained from deployment of the ARUs and ABs, as well as to prepare reports and maintain the passive acoustic detection network, Neptune LNG has engaged the Cornell University Bioacoustic Research Program (BRP) in Ithaca, New York, and the Woods Hole Oceanographic Institution (WHOI) in Woods Hole, Massachusetts.

During June 2008, an array of 19 passive seafloor ARUs was deployed by BRP for Neptune. The layout of the array centered on the terminal site and was used to monitor the noise environment in Massachusetts Bay in the vicinity of Neptune during construction of the Port and associated pipeline lateral. The ARUs were not designed to provide real-time or near-real-time information about vocalizing whales. Rather, archival noise data collected from the ARU array were used for the purpose of understanding the seasonal occurrences and overall distributions of whales (primarily North Atlantic right whales) within approximately 11.5 mi (18.5 km) of the Neptune Port. Neptune LNG will maintain these ARUs in the same configuration for a period of five years during full operation of the Neptune Port in order to monitor the actual acoustic output of port operations and to alert NOAA to any unanticipated effects of port operations, such as large scale abandonment by marine mammals of the area. To further assist in evaluations of Neptune's acoustic output, source levels associated with DP of SRVs at the buoys will be estimated using empirical measurements collected from the passive detection network.

In addition to the ARUs, Neptune LNG has deployed 10 ABs within the Separation Zone of the TSS for the operational life of the Port. The purpose of the AB array is to detect the presence of vocalizing North Atlantic right whales. Each AB has an average detection range of 5.8 mi (9.3 km) from the AB, although detection ranges will vary based on ambient underwater conditions. The AB system will be the primary detection mechanism that alerts the SRV Master to the occurrence of right whales in the TSS and triggers heightened SRV awareness. The configurations of the ARU array and AB network (see Figure 3 in the Plan in Neptune's application) were based upon the configurations developed and recommended by NOAA personnel.

Each AB deployed in the TSS will continuously screen the low-frequency acoustic environment (less than 1,000 Hz) for right whale contact calls occurring within an approximately 5.8-mi (9.3-km) radius from each buoy (the ABs' detection range) and rank detections on a scale from 1 to 10. Each AB shall transmit all detection data in near-real-time for detections of rank greater than or equal to 6 via Iridium satellite link to the BRP server website every 20 minutes. This 20-minute transmission schedule was determined by consideration of a combination of factors including the tendency of right whale calls to occur in clusters (leading to a sampling logic of listening for other calls rather than transmitting immediately upon detection of a possible call) and the amount of battery power required to complete a satellite transmission. Additional details on the protocol can be found in Neptune's application.

Some additional passive acoustic monitoring is proposed for repair activities that occur between May 1 and November 30 in any given year in order to better detect right whales in the area of repair work and to collect additional data on the noise levels produced during repair and maintenance activities. Neptune shall work with NOAA (NMFS and SBNMS) to install a passive acoustic system to detect and provide early warnings for potential occurrence of right whales in the vicinity of the repair area. The number of passive acoustic detection buoys installed around the activity site will 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. Neptune shall provide NMFS with empirically measured source level data for all sources of noise associated with LNG port maintenance and repair activities. Measurements should be carefully coordinated with noise-producing activities and should be collected from platforms that are as close as possible to noise producing activities.

Lastly, to further assist in evaluations of the Neptune Port's operational acoustic output, source levels associated with dynamic positioning of SRVs at the buoys will be estimated using empirical measurements collected from a platform positioned as close as practicable to thrusters while in use.

Visual Monitoring

(1) Maintenance and Repair Activities

During maintenance- and repair-related activities, Neptune LNG shall employ two qualified PSOs on each vessel that has a DP system. All PSOs must receive training and be approved in advance by NOAA after a review of their qualifications. Qualifications for these PSOs shall include direct field experience on a marine mammal observation vessel and/or aerial surveys in the Atlantic Ocean/Gulf of Mexico. The PSOs (one primary and one secondary) are responsible for visually locating marine mammals at the ocean's surface and, to the extent possible, identifying the species. The primary PSO shall act as the identification specialist, and the secondary PSO will serve as data recorder and will assist with identification. Both PSOs shall have responsibility for monitoring for the presence of marine mammals.

The PSOs shall monitor the area where maintenance and repair work is conducted beginning at daybreak using the naked eye, hand-held binoculars, and/or power binoculars (e.g, Big Eyes). The PSOs shall scan the ocean surface by eye for a minimum of 40 minutes every hour. All sightings must be recorded on marine mammal field sighting logs.

(2) Operations

While an SRV is navigating within the designated TSS, three people have lookout duties on or near the bridge of the ship including the SRV Master, the Officer-of-the-Watch, and the Helmsman on watch. In addition to standard watch procedures, while the SRV is within the ATBA and/or while actively engaging in the use of thrusters, an additional lookout shall be designated to exclusively and continuously monitor for marine mammals. Once the SRV is moored and regasification activities have begun, the vessel is no longer considered to be in “heightened awareness” status. However, when regasification activities conclude and the SRV prepares to depart from Neptune, the Master shall once again ensure that the responsibilities as defined in the Plan are carried out. All sightings of marine mammals by the designated lookout, individuals posted to navigational lookout duties, and/or any other crew member while the SRV is within the TSS, in transit to the ATBA, within the ATBA, and/or when actively engaging in the use of thrusters shall be immediately reported to the Officer-of-the-Watch who shall then alert the Master.

Reporting Measures

Since the Neptune Port is within the Mandatory Ship Reporting Area (MSRA), all SRVs transiting to and from Neptune shall report their activities to the mandatory reporting section of the USCG to remain apprised of North Atlantic right whale movements within the area. All vessels entering and exiting the MSRA shall report their activities to WHALESNORTH. Vessel operators shall contact the USCG by standard procedures promulgated through the Notice to Mariner system.

For any repair work associated with the pipeline lateral or other port components, Neptune LNG shall notify the appropriate NOAA personnel as soon as practicable after it is determined that repair work must be conducted. During maintenance and repair of the pipeline lateral or other port components, weekly status reports must be provided to NOAA. The weekly report must include data collected for each distinct marine mammal species observed in the project area during the period of the repair activity. The weekly reports shall include the following:

• The location, time, and nature of the pipeline lateral repair activities;
• Whether the DP system was operated and, if so, the number of thrusters used and the time and duration of DP operation;
• Marine mammals observed in the area (number, species, age group, and initial behavior);
• The distance of observed marine mammals from the repair activities;
• Observed marine mammal behaviors during the sighting;
• Whether any mitigation measures were implemented;
• Weather conditions (sea state, wind speed, wind direction, ambient temperature, precipitation, and percent cloud cover, etc.);
• Condition of the marine mammal observation (visibility and glare); and
• Details of passive acoustic detections and any action taken in response to those detections.

For minor repairs and maintenance activities, the following protocols will be followed:

• All vessel crew members will be trained in marine mammal identification and avoidance procedures;
• Repair vessels will notify designated NOAA personnel when and where the repair/maintenance work is to take place along with a tentative schedule and description of the work;
• Vessel crews will record/document any marine mammal sighting(s) during the work period; and
• At the conclusion of the repair/maintenance work, a report will be delivered to designated NOAA personnel describing any marine mammal sightings, the type of work taking place when the sighting occurred, and any avoidance actions taken during the repair/maintenance work.

During all phases of project repair/maintenance activities and operation, sightings of any injured or dead marine mammals will be reported immediately to the USCG, NMFS, and the Northeast Stranding and Disentanglement Program, regardless of whether the injury or death is caused by project activities. Sightings of injured or dead marine mammals not associated with project activities can be reported to the USCG on VHF Channel 16 or to NMFS Stranding and Entanglement Hotline. In addition, if the injury or death was caused by a project vessel (e.g., SRV, support vessel, or repair/maintenance vessel), USCG must be notified immediately, and a full report must be provided to NMFS, Northeast Regional Office, and NMFS, Office of Protected Resources. The report must include the following information: (1) The time, date, and location (latitude/longitude) of the incident; (2) the name and type of vessel involved; (3) the vessel's speed during the incident; (4) a description of the incident; (5) water depth; (6) environmental conditions (e.g., wind speed and direction, sea state, cloud cover, and visibility); (7) the species identification or description of the animal; (8) the fate of the animal; and (9) photographs or video footage of the animal (if equipment is available). Activities will not resume until review and approval has been given by NMFS.

An annual report on marine mammal monitoring and mitigation will be submitted to NMFS, Office of Protected Resources, and NMFS, Northeast Regional Office, on August 1 of each year. The annual report shall cover the time period of July 1 through June 30 of each year of activity. The weekly and annual reports should include data collected for each distinct marine mammal species observed in the project area in Massachusetts Bay during the period of LNG facility operations and repair/maintenance activities. Description of marine mammal behavior, overall numbers of individuals observed, frequency of observation, and any behavioral changes and the context of the changes relative to operation and repair/maintenance activities shall also be included in the annual reports. Additional information that will be recorded during operation and repair/maintenance activities and contained in the reports include: date and time of marine mammal detections (visually or acoustically), weather conditions, species identification, approximate distance from the source, activity of the vessel or at the construction site when a marine mammal is sighted, and whether thrusters were in use and, if so, how many at the time of the sighting.

In addition to annual reports, NMFS proposes to require Neptune to submit a draft comprehensive final report to NMFS, Office of Protected Resources, and NMFS, Northeast Regional Office, 180 days prior to the expiration of the regulations. This comprehensive technical report will provide full documentation of methods, results, and interpretation of all monitoring during the first 41/2 years of the LOA. A revised final comprehensive technical report, including all monitoring results during the entire period of the LOAs will be due 90 days after the end of the period of effectiveness of the regulations.

General Conclusions Drawn From Previous Monitoring Reports

Throughout the construction period, Neptune submitted weekly reports on marine mammal sightings in the area. While it is difficult to draw biological conclusions from these reports, NMFS can make some general conclusions. Data gathered by PSOs is generally useful to indicate the presence or absence of marine mammals (often to a species level) within the safety zones (and sometimes without) and to document the implementation of mitigation measures. Though it is by no means conclusory, it is worth noting that no instances of obvious behavioral disturbance as a result of Neptune's activities were observed by the PSOs. Of course, these observations only cover the animals that were at the surface and within the distance that the PSOs could see. Based on the number of sightings contained in the weekly reports, it appears that NMFS' estimated take levels are accurate. No SRVs have yet arrived at the Port for regasification; therefore, there are no reports describing the results of the visual monitoring program for this phase of the project. However, it is anticipated that visual observations will be able to continue as they were during construction.

As described previously in this document, Neptune was required to maintain an acoustic array to monitor calling North Atlantic right whales (humpback and fin whale calls were also able to be detected). Cornell BRP analyzed the data and submitted a report covering the initial construction phase of the project, which occurred in 2008. While acoustic data can only be collected if the animals are actively calling, the report indicates that humpback and fin whales were heard calling on at least some of the ARUs on all construction days, and right whale calls were heard only 28 percent of the time during active construction days. The passive acoustic arrays will remain deployed during the time frame of these proposed regulations in order to obtain information during the operational phase of the Port facility.

Adaptive Management

The final regulations governing the take of marine mammals incidental to operation and repair/maintenance activities at the Neptune Port will contain an adaptive management component. In accordance with 50 CFR 216.105(c), regulations for the proposed activity must be based on the best available information. As new information is developed, through monitoring, reporting, or research, the regulations may be modified, in whole or in part, after notice and opportunity for public review. The use of adaptive management will allow NMFS to consider new information from different sources to determine if mitigation or monitoring measures should be modified (including additions or deletions) if new data suggest that such modifications are appropriate for subsequent LOAs.

The following are some of the possible sources of applicable data:

• Results from Neptune's monitoring from the previous year;
• Results from general marine mammal and sound research; or
• Any information which reveals that marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs.

If, during the effective dates of the regulations, new information is presented from monitoring, reporting, or research, these regulations may be modified, in whole, or in part after notice and opportunity of public review, as allowed for in 50 CFR 216.105(c). In addition, LOAs shall be withdrawn or suspended if, after notice and opportunity for public comment, the Assistant Administrator finds, among other things, the regulations are not being substantially complied with or the taking allowed is having more than a negligible impact on the species or stock, as allowed for in 50 CFR 216.106(e). That is, should substantial changes in marine mammal populations in the project area occur or monitoring and reporting show that the Port operations are having more than a negligible impact on marine mammals, then NMFS reserves the right to modify the regulations and/or withdraw or suspend LOAs after public review.

Estimated Take by Incidental Harassment

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

For continuous sounds, such as those produced by Neptune's proposed activities, NMFS uses a received level of 120-dB (rms) to indicate the onset of Level B harassment. The basis for Neptune's “take” estimate is the number of marine mammals that potentially could be exposed to sound levels in excess of 120 dB. This has been determined by applying the modeled zone of influence (ZOI; e.g., the area ensonified by the 120-dB contour) to the seasonal use (density) of the area by marine mammals and correcting for seasonal duration of sound-generating activities and estimated duration of individual activities when the maximum sound-generating activities are intermittent to occasional. Nearly all of the required information is readily available in the MARAD/USCG Final EIS, with the exception of marine mammal density estimates for the project area. In the case of data gaps, a conservative approach was used to ensure that the potential number of takes is not underestimated, as described next.

In 2009, Neptune contracted JASCO to conduct sound source measurement tests on the SRV while using the thrusters at full power. The reports are contained in Appendix C of Neptune's application (see ADDRESSES). The results for the use of both bow thrusters at 100 percent power indicate that the 120-dB radius is estimated to be 1.9 mi (3 km), creating a maximum ZOI of 11.2 mi² (29 km²). Since thruster use will be intermittent during the docking and regasification activities, this zone presents a realistic representation of the amount of area that could potentially be ensonified for a short period of time to dock the SRV to the Port.

Other vessels would be required for use during maintenance and repair activities at the Port facility. Sounds generated during those activities would be similar to or less than those generated during original construction of the facility. Therefore, NMFS has used the 120-dB contour estimated for construction in the previous IHAs (see 74 FR 21648, May 8, 2009) for repair and maintenance activities. Depending on water depth, the 120-dB contour during repair and maintenance activities will extend from the source (the Port) out to 2.4 mi (3.9 km) and cover an area of 20.1 mi² (52 km²).

NMFS recognizes that baleen whale species other than North Atlantic right whales have been sighted in the project area from May to November. However, the occurrence and abundance of fin, humpback, and minke whales is not well documented within the project area. Nonetheless, NMFS used the data on cetacean distribution within Massachusetts Bay, such as those published by the NCCOS (2006), to determine potential takes of marine mammals in the vicinity of the project area. Neptune presented density estimates using the CETAP (1982) and U.S. Navy MRA (2005) data. The NCCOS (2006) report uses information from these sources; however, it also includes information from some other studies. Therefore, NMFS used density information for the species that are included in the NCCOS (2006) report. These species include: North Atlantic right, fin, humpback, minke, pilot, and sei whales and Atlantic white-sided dolphins.

The NCCOS study used cetacean sightings from two sources: (1) the North Atlantic Right Whale Consortium (NARWC) sightings database held at the University of Rhode Island (Kenney, 2001); and (2) the Manomet Bird Observatory (MBO) database, held at NMFS' Northeast Fisheries Science Center (NEFSC). The NARWC data contained survey efforts and sightings data from ship and aerial surveys and opportunistic sources between 1970 and 2005. The main data contributors included: the CETAP, the Canadian Department of Fisheries and Oceans, the Provincetown Center for Coastal Studies, International Fund for Animal Welfare, NEFSC, New England Aquarium, WHOI, and the University of Rhode Island. A total of 406,293 mi (653,725 km) of survey track and 34,589 cetacean observations were provisionally selected for the NCCOS study in order to minimize bias from uneven allocation of survey effort in both time and space. The sightings-per-unit-effort (SPUE) was calculated for all cetacean species by month covering the southern Gulf of Maine study area, which also includes the project area (NCCOS, 2006).

The MBO's Cetacean and Seabird Assessment Program (CSAP) was contracted from 1980 to 1988 by NEFSC to provide an assessment of the relative abundance and distribution of cetaceans, seabirds, and marine turtles in the shelf waters of the northeastern U.S. (MBO, 1987). The CSAP program was designed to be completely compatible with NEFSC databases so that marine mammal data could be compared directly with fisheries data throughout the time series during which both types of information were gathered. A total of 8,383 mi (5,210 km) of survey distance and 636 cetacean observations from the MBO data were included in the NCCOS analysis. Combined valid survey effort for the NCCOS studies included 913,840 mi (567,955 km) of survey track for small cetaceans (dolphins and porpoises) and 1,060,226 mi (658,935 km) for large cetaceans (whales) in the southern Gulf of Maine. The NCCOS study then combined these two data sets by extracting cetacean sighting records, updating database field names to match the NARWC database, creating geometry to represent survey tracklines and applying a set of data selection criteria designed to minimize uncertainty and bias in the data used.

Based on the comprehensiveness and total coverage of the NCCOS cetacean distribution and abundance study, NMFS calculated the estimated take number of marine mammals based on the most recent NCCOS report published in December, 2006. A summary of seasonal cetacean distribution and abundance in the project area is provided previously in this document, in the “Description of Marine Mammals in the Area of the Specified Activity” section. For a detailed description and calculation of the cetacean abundance data and SPUE, refer to the NCCOS study (NCCOS, 2006). SPUE for all four seasons were analyzed, and the highest value SPUE for the season with the highest abundance of each species was used to determine relative abundance. Based on the data, the relative abundance of North Atlantic right, fin, humpback, minke, sei, and pilot whales and Atlantic white-sided dolphins, as calculated by SPUE in number of animals per square kilometer, is 0.0082, 0.0097, 0.0265, 0.0059, 0.0084, 0.0407, and 0.1314 n/km, respectively. Table 1 in this document outlines the density, abundance, take estimates, and percent of population for the 14 species for which NMFS is proposing to authorize Level B harassment.

In calculating the area density of these species from these linear density data, NMFS used 0.25 mi (0.4 km) as a conservative hypothetical strip width (W). Thus the area density (D) of these species in the project area can be obtained by the following formula:

D = SPUE/2W.

Based on the calculation, the estimated take numbers by Level B harassment on an annual basis for North Atlantic right, fin, humpback, minke, sei, and pilot whales and Atlantic white-sided dolphins, within the 120-dB ZOI of the LNG Port facility area of approximately 11.2 mi² (29 km²) maximum ZOI, corrected for 50 percent underwater, are 22, 26, 72, 16, 6, 111, and 357, respectively. This estimate is based on an estimated 50 SRV trips annually (for all of these species except for sei whales) that will produce sounds of 120 dB or greater. This estimate is based on an estimated 12.5 SRV trips annually that will produce sounds of 120 dB or greater for sei whales. Sei whales only occur in the area in the spring. Therefore, shipments during the other three months will not result in the take of sei whales. For this reason, take from shipment operations has only been calculated at a quarter of the rate of the other species.

Based on the same calculation method described above for Port operations (but using the 120-dB ZOI of approximately 20.1 mi² (52 km²)), the estimated take numbers by Level B harassment on an annual basis for North Atlantic right, fin, humpback, minke, sei, and pilot whales and Atlantic white-sided dolphins incidental to Port maintenance and repair activities, corrected for 50 percent underwater, are 11, 13, 36, 8, 11, 56, and 179, respectively. These numbers are based on 14 days of repair and maintenance activities occurring annually. It is unlikely that this much repair and maintenance work would be required each year.

The total estimated annual take of these species as a result of both operations and repair and maintenance activities of the Neptune Port facility is: 33 North Atlantic right whales; 39 fin whales; 108 humpback whales; 24 minke whales; 17 sei whales; 166 long-finned pilot whales; and 536 Atlantic white-sided dolphins. These numbers represent a maximum of 9.9, 1.8, 12.8, 0.7, 4.4, 0.5, and 0.8 percent of the populations for these species or stocks in the western North Atlantic, respectively. It is likely that individual animals will be “taken” by harassment multiple times (because certain individuals may occur in the area more than once while other individuals of the population or stock may not enter the proposed project area). Additionally, the highest value SPUE for the season with the highest abundance of each species was used to determine relative abundance. Moreover, it is not expected that Neptune will have 50 SRV transits and LNG deliveries in the first year or two of operations. Therefore, these percentages represent the upper boundary of the animal population that could be affected. Thus, the actual number of individual animals being exposed or taken is expected to be far less, especially in the first couple of years of operation.

In addition, bottlenose dolphins, common dolphins, Risso's dolphins, killer whales, harbor porpoises, harbor seals, and gray seals could also be taken by Level B harassment as a result of the deepwater LNG port project. Because these species are less likely to occur in the area, and there are no density estimates specific to this particular area, NMFS based the take estimates on one or two encounters with typical group size. Therefore, NMFS estimates that up to approximately 10 bottlenose dolphins, 20 common dolphins, 20 Risso's dolphins, 20 killer whales, 5 harbor porpoises, 15 harbor seals, and 15 gray seals could be exposed to continuous noise at or above 120 dB re 1 μPa rms incidental to operations and repair and maintenance activities annually, respectively.

Because Massachusetts Bay represents only a small fraction of the western North Atlantic basin where these animals occur NMFS has preliminarily determined that only small numbers of the marine mammal species or stocks in the area would be potentially affected by the Neptune LNG deepwater project. The take estimates presented in this section of the document do not take into consideration the mitigation and monitoring measures that are proposed for inclusion in the regulations (if issued).

Table 1—Density Estimates, Population Abundance Estimates, Total Annual Proposed Take (When Combine Takes From Operation and Maintenance/Repair Activities), and Percentage of Population That May Be Taken for the Potentially Affected Species

Species	SPUE (n/km)	Abundance 1	Abundance 2	Total annual proposed take	Percentage of stock or population
North Atlantic right whale	0.0082	345	361	33	9.1-9.6
Fin whale	0.0097	2,269	3,985	39	1-1.7
Humpback whale	0.0265	847	847	108	12.8
Minke whale	0.0059	3,312	8,987	24	0.3-0.7
Sei whale	0.0084	386	386	17	4.4
Long-finned pilot whale	0.0407	31,139	12,619	167	0.5-1.3
Atlantic white-sided dolphin	0.1314	63,368	63,368	536	0.8
Bottlenose dolphin	NA	7,489	9,604	10	0.1
Common dolphin	NA	120,743	120,743	20	0.02
Risso's dolphin	NA	20,479	20,479	20	0.1
Killer whale	NA	NA	NA	20	NA
Harbor porpoise	NA	89,054	89,054	5	0.01
Harbor seal	NA	99,340	NA	15	0.02
Gray seal	NA	125,541-169,064	125,541-169,064	15	0.01
1 Abundance estimates in 2009 NMFS Atlantic and Gulf of Mexico SAR;2 Abundance estimates in 2010 Draft NMFS Atlantic and Gulf of Mexico SAR; NA = Not Available

Negligible Impact and Small Numbers Analysis and Preliminary Determination

NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” In making a negligible impact determination, NMFS considers a variety of factors, including but not limited to: (1) The number of anticipated mortalities; (2) the number and nature of anticipated injuries; (3) the number, nature, intensity, and duration of Level B harassment; and (4) the context in which the takes occur.

No injuries or mortalities are anticipated to occur as a result of Neptune's proposed port operation and maintenance and repair activities, and none are proposed to be authorized by NMFS. Additionally, animals in the area are not anticipated to incur any hearing impairment (i.e., TTS, a Level B harassment, or PTS, a Level A [injury] harassment), as the modeling results for the SRV indicate a source level of 180 dB (rms), which is below the threshold used by NMFS for acoustic injury to marine mammals. All takes are anticipated to be by Level B behavioral harassment only. Certain species may have a behavioral reaction (e.g., increased swim speed, avoidance of the area, etc.) to the sound emitted during the operations and maintenance activities. Table 1 in this document outlines the number of Level B harassment takes that are anticipated as a result of the proposed activities. These takes are anticipated to be of low intensity due to the low level of sound emitted by the activities themselves. The activities could occur year-round. However, operations are not anticipated to occur on successive days. Should repair or maintenance work be required, this could occur on successive days but likely only for 1-2 weeks. The activities do not occur in any critical habitat for the affected species, although there is some nearby for North Atlantic right whales. Maintenance and repair activities will be conducted to avoid times of year when that species is most likely to be in the area.

While some of the species occur in the proposed project area year-round, some species only occur in the area during certain seasons. For example, sei whales are only anticipated in the area during the spring. Therefore, if shipments and/or maintenance/repair activities occur in other seasons, the likelihood of sei whales being affected is quite low. Additionally, any repairs that can be scheduled in advance will be scheduled to avoid the peak time that North Atlantic right whales occur in the area, which usually is during the early spring. North Atlantic right, humpback, and minke whales are not expected in the project area in the winter. During the winter, a large portion of the North Atlantic right whale population occurs in the southeastern U.S. calving grounds (i.e., South Carolina, Georgia, and northern Florida). The fact that certain activities will occur during times when certain species are not commonly found in the area will help reduce the amount of Level B harassment for these species.

Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hr cycle). Behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall et al., 2007). Consequently, a behavioral response lasting less than one day and not recurring on subsequent days is not considered particularly severe unless it could directly affect reproduction or survival (Southall et al., 2007). Operational activities are not anticipated to occur at the Port on consecutive days. Once Neptune is at full operations, SRV shipments would occur every 4-8 days, with thruster use needed for a couple of hours during each shipment. Therefore, Neptune will not be creating increased sound levels in the marine environment for several days at a time.

Of the 14 marine mammal species likely to occur in the area, four are listed as endangered under the ESA: North Atlantic right, humpback, fin, and sei whales. These four species, as well as the northern coastal stock of bottlenose dolphin, are also considered depleted under the MMPA. As stated previously in this document, the affected humpback and North Atlantic right whale populations have been increasing in recent years. However, there is insufficient data to determine population trends for the other depleted species in the proposed project area. There is currently no designated critical habitat or known reproductive areas for any of these species in or near the proposed project area. However, there are several well known North Atlantic right whale feeding grounds in the CCB and GSC. As mentioned previously, to the greatest extent practicable, all maintenance/repair work will be scheduled during the May 1 to November 30 time frame to avoid peak right whale feeding in these areas, which occur close to the Neptune Port. No mortality or injury is expected to occur and due to the nature, degree, and context of the Level B harassment anticipated, the activity is not expected to impact rates of recruitment or survival.

The population estimates for the species that may be taken by harassment from the most recent U.S. Atlantic SARs were provided earlier in this document (see the “Description of Marine Mammals in the Area of the Specified Activity” section). From the most conservative estimates of both marine mammal densities in the project area and the size of the 120-dB ZOI, the maximum calculated number of individual marine mammals for each species that could potentially be harassed annually is small relative to the overall population sizes (12.8 percent for humpback whales, 9.1-9.6 percent for North Atlantic right whales, and no more than 4.4 percent of any other species).

As stated previously, NMFS' practice has been to apply the 120 dB re 1 µPa (rms) received level threshold for underwater continuous sound levels to determine whether take by Level B harassment occurs. However, not all animals react to sounds at this low level, and many will not show strong reactions (and in some cases any reaction) until sounds are much stronger. Southall et al. (2007) provide a severity scale for ranking observed behavioral responses of both free-ranging marine mammals and laboratory subjects to various types of anthropogenic sound (see Table 4 in Southall et al. (2007)). Tables 15, 17, 19, and 21 in Southall et al. (2007) outline the numbers of low-frequency, mid-frequency, and high-frequency cetaceans and pinnipeds in water, respectively, reported as having behavioral responses to non-pulses in 10-dB received level increments. These tables illustrate, especially for cetaceans, that more intense observed behavioral responses did not occur until sounds were higher than 120 dB (rms). Many of the animals had no observable response at all when exposed to anthropogenic sound at levels of 120 dB (rms) or even higher.

The take estimates presented in this document are likely an overestimate of the actual number of animals that may be taken by Level B harassment in any given year. First, NMFS used the highest value SPUE for the season with the highest abundance of each species to determine relative abundance from the NCCOS (2006) report. However, the SPUE quantiles used in that report had very large ranges. For example, for humpback whales, NMFS used the SPUE quantile with a value of 0.1-11.8 but used 11.8 as the SPUE to determine density. In most cases, the highest value SPUE in any given quantile is many magnitudes larger than the minimum value in that particular quantile. Second, the estimates assume that repairs will be required every year, which may not be the case. For the reasons discussed in this section of the document (and elsewhere), the proposed take estimates presented by NMFS are likely an overestimate.

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 preliminarily finds that operation, including repair and maintenance activities, of the Neptune Port will result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking from Neptune's proposed activities will have a negligible impact on the affected species or stocks.

Impact on Availability of Affected Species or Stock for Taking for Subsistence Uses

There are no relevant subsistence uses of marine mammals implicated by this action. 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)

On January 12, 2007, NMFS concluded consultation with MARAD and USCG under section 7 of the ESA on the proposed construction and operation of the Neptune LNG facility and issued a Biological Opinion. The finding of that consultation was that the construction and operation of the Neptune LNG terminal may adversely affect, but is not likely to jeopardize, the continued existence of northern right, humpback, and fin whales, and is not likely to adversely affect sperm, sei, or blue whales and Kemp's ridley, loggerhead, green, or leatherback sea turtles.

On March 2, 2010, MARAD and USCG sent a letter to NMFS requesting reinitiation of the section 7 consultation. MARAD and USCG determined that certain routine planned operations and maintenance activities, inspections, surveys, and unplanned repair work on the Neptune Deepwater Port pipelines and flowlines, as well as any other Neptune Deepwater Port component (including buoys, risers/umbilicals, mooring systems, and sub-sea manifolds), may constitute a modification not previously considered in the 2007 Biological Opinion. Construction of the Port facility has been completed, and, therefore, is no longer part of the proposed action. On July 12, 2010, NMFS' Northeast Regional Office issued a Biological Opinion, which concludes that the operation of the Neptune LNG deepwater port, including required maintenance and repair work, is likely to adversely affect, but is not likely to jeopardize the continued existence of the North Atlantic right, humpback, fin, and sei whales. NMFS reached this conclusion after reviewing the best available information on the status of endangered and threatened species under NMFS jurisdiction, the environmental baseline for the action area, the effects of the action, and the cumulative effects in the action area. Although MARAD served as the lead Federal agency for the section 7 consultation, the Biological Opinion also considered the effects of permits issued by the Army Corps of Engineers, the Federal Energy Regulatory Commission, and the Environmental Protection Agency for various portions of the maintenance and operation of the Port and associated pipeline, as well as NMFS' issuance of authorizations to Neptune under the MMPA for the take of marine mammals incidental to Port operations and maintenance/repairs. NMFS has preliminarily determined that issuance of these regulations and subsequent LOAs will not have any impacts beyond those analyzed in the 2010 Biological Opinion. NMFS' Northeast Regional Office will issue an Incidental Take Statement upon issuance of the LOA.

National Environmental Policy Act (NEPA)

MARAD and the USCG released a Final EIS/Environmental Impact Report (EIR) for the proposed Neptune LNG Deepwater Port (see ADDRESSES). A notice of availability of the Final EIS/EIR was published by MARAD on November 2, 2006 (71 FR 64606). The Final EIS/EIR provides detailed information on the proposed project facilities, construction methods, and analysis of potential impacts on marine mammals.

NMFS was a cooperating agency in the preparation of the Draft and Final EISs based on a Memorandum of Understanding related to the Licensing of Deepwater Ports entered into by the U.S. Department of Commerce along with 10 other government agencies. On June 3, 2008, NMFS adopted the USCG and MARAD FEIS and issued a separate Record of Decision for issuance of authorizations pursuant to sections 101(a)(5)(A) and (D) of the MMPA for the construction and operation of the Neptune LNG Port facility. NMFS is currently reviewing the FEIS to ensure that the analysis contained in that document accurately describes and analyzes the impacts to the human environment of NMFS' action of issuing an MMPA authorization for the operation and repair and maintenance of the Neptune Port. This review will be completed prior to the issuance of final regulations for this action.

Information Solicited

NMFS requests interested persons to submit comments, information, and suggestions concerning the request and the content of the proposed regulations to authorize the taking (see ADDRESSES). Prior to submitting comments, NMFS recommends readers review NMFS' responses to comments made previously for this action (see 73 FR 33400, June 12, 2008; 74 FR 31926, July 6, 2009; 75 FR 41440, July 16, 2010).

Classification

OMB has determined that this proposed rule is not significant for purposes of Executive Order 12866.

Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. Neptune LNG LLC is the only entity that would be subject to the requirements in these proposed regulations. Neptune is one of several companies at GDF SUEZ Energy North America (GSENA), which itself is a business division of GDF SUEZ Energy Europe & International. GSENA has more than 2,000 employees in North America alone. Therefore, it is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Because of this certification, a regulatory flexibility analysis is not required and none has been prepared.

Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid OMB control number. This proposed rule contains collection-of-information requirements subject to the provisions of the PRA. These requirements have been approved by OMB under control number 0648-0151 and include applications for regulations, subsequent LOAs, and reports. Send comments regarding any aspect of this data collection, including suggestions for reducing the burden, to NMFS and the OMB Desk Officer (see ADDRESSES).

List of Subjects in 50 CFR Part 217

• Exports
• Fish
• Imports
• Indians
• Labeling
• Marine mammals
• Penalties
• Reporting and recordkeeping requirements
• Seafood
• Transportation

Dated: December 14, 2010.

Samuel D. Rauch III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

For reasons set forth in the preamble, 50 CFR part 217 is proposed to be amended as follows:

PART 217—REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS INCIDENTAL TO SPECIFIED ACTIVITIES

1. The authority citation for part 217 continues to read as follows:

Authority: 16 U.S.C. 1361 et seq.

2. Subpart R is added to part 217 to read as follows:

Subpart R—Taking of Marine Mammals Incidental to Operation and Maintenance of a Liquefied Natural Gas Facility Off Massachusetts

217.170

Specified activity and specified geographical region.

217.171

Effective dates.

217.172

Permissible methods of taking.

217.173

Prohibitions.

217.174

Mitigation.

217.175

Requirements for monitoring and reporting.

217.176

Applications for Letters of Authorization.

217.177

Letters of Authorization.

217.178

Renewal of Letters of Authorization and Adaptive Management.

217.179

Modifications of Letters of Authorization.

Subpart R—Taking of Marine Mammals Incidental to Operation and Maintenance of a Liquefied Natural Gas Facility Off Massachusetts

§ 217.170

Specified activity and specified geographical region.

(a) Regulations in this subpart apply only to Neptune LNG LLC (Neptune) and those persons it authorizes to conduct activities on its behalf for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occur incidental to commissioning and operation, including maintenance and repair activities, at the Neptune Deepwater Port (Port).

(b) The taking of marine mammals by Neptune may be authorized in a Letter of Authorization only if it occurs at the Neptune Deepwater Port within Outer Continental Shelf blocks NK 19-04 6525 and NK 19-04 6575, which are located at approximately 42°28′09″ N. lat and 70°36′22″ W. long.

§ 217.171

Effective dates.

Regulations in this subpart become effective upon issuance of the final rule.

§ 217.172

Permissible methods of taking.

(a) Under Letters of Authorization issued pursuant to §§ 216.106 and 217.177 of this chapter, the Holder of the Letter of Authorization (hereinafter “Neptune”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.170(b), provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate Letter of Authorization.

(b) The incidental take of marine mammals under the activities identified in § 217.170(a) is limited to the following species and is limited to Level B Harassment:

(1) Mysticetes:

(i) North Atlantic right whale (Eubalaena glacialis)—165 (an average of 33 annually)

(ii) Fin whale (Balaenoptera physalus)—195 (an average of 39 annually)

(iii) Humpback whale (Megaptera novaeangliae)—540 (an average of 108 annually)

(iv) Minke whale (Balaenoptera acutorostrata)—120 (an average of 24 annually)

(v) Sei whale (Balaenoptera borealis)—85 (an average of 17 annually)

(2) Odontocetes:

(i) Long-finned pilot whale (Globicephala melas)—835 (an average of 167 annually)

(ii) Atlantic white-sided dolphin (Lagenorhynchus acutus)—2,680 (an average of 536 annually)

(iii) Bottlenose dolphin (Tursiops truncatus)—50 (an average of 10 annually)

(iv) Common dolphin (Delphinus delphis)—100 (an average of 20 annually)

(v) Risso's dolphin (Grampus griseus)—100 (an average of 20 annually)

(vi) Killer whale (Orcinus orca)—100 (an average of 20 annually)

(vii) Harbor porpoise (Phocoena phocoena)—25 (an average of 5 annually)

(3) Pinnipeds:

(i) Harbor seal (Phoca vitulina)—75 (an average of 15 annually)

(ii) Gray seal (Halichoerus grypus)—75 (an average of 15 annually)

§ 217.173

Prohibitions.

Notwithstanding takings contemplated in § 217.170 and authorized by a Letter of Authorization issued under §§ 216.106 and 217.177, no person in connection with the activities described in § 217.170 may:

(a) Take any marine mammal not specified in § 217.172(b);

(b) Take any marine mammal specified in § 217.172(b) other than by incidental, unintentional Level B Harassment;

(c) Take a marine mammal specified in § 217.172(b) if such taking results in more than a negligible impact on the species or stocks of such marine mammal; or

(d) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a Letter of Authorization issued under §§ 216.106 and 217.177.

§ 217.174

Mitigation.

(a) When conducting the activities identified in § 217.170(a), the mitigation measures contained in the Letter of Authorization issued under §§ 216.106 and 217.177 must be implemented. These mitigation measures include but are not limited to:

(1) Major Repairs (May 1-November 30):

(i) During repairs, if a marine mammal is detected within 0.5 mi (0.8 km) of the repair vessel, the vessel superintendent or on-deck supervisor shall be notified immediately. The vessel's crew will be put on a heightened state of alert. The marine mammal will be monitored constantly to determine if it is moving toward the repair area.

(ii) Repair vessels shall cease any movement in the area if a marine mammal other than a right whale is sighted within or approaching to a distance of 100 yd (91 m) from the operating repair vessel. Repair vessels shall cease any movement in the construction area if a right whale is sighted within or approaching to a distance of 500 yd (457 m) from the operating vessel. Vessels transiting the repair area, such as pipe haul barge tugs, shall also be required to maintain these separation distances.

(iii) Repair vessels shall cease all sound emitting activities if a marine mammal other than a right whale is sighted within or approaching to a distance of 100 yd (91 m) or if a right whale is sighted within or approaching to a distance of 500 yd (457 m), from the operating repair vessel. The back-calculated source level, based on the most conservative cylindrical model of acoustic energy spreading, is estimated to be 139 dB re 1 μPa.

(iv) Repair activities may resume after the marine mammal is positively reconfirmed outside the established zones (either 500 yd (457 m) or 100 yd (91 m), depending upon species).

(v) While under way, all repair vessels shall remain 500 yd (457 m) away from right whales and 100 yd (91 m) away from all other marine mammals, unless constrained by human safety concerns or navigational constraints.

(vi) All repair vessels 300 gross tons or greater must maintain a speed of 10 knots (18.5 km/hr) or less. Vessels less than 300 gross tons carrying supplies or crew between the shore and the repair site must contact the Mandatory Ship Reporting System, the U.S. Coast Guard (USCG), or the protected species observers (PSOs) at the repair site before leaving shore for reports of recent right whale sightings or active Dynamic Management Areas (DMAs) and, consistent with navigation safety, restrict speeds to 10 knots (18.5 km/hr) or less within 5 mi (8 km) of any recent sighting location and within any existing DMA.

(vii) Vessels transiting through the Cape Cod Canal and Cape Cod Bay (CCB) between January 1 and May 15 must reduce speeds to 10 knots (18.5 km/hr) or less, follow the recommended routes charted by NOAA to reduce interactions between right whales and shipping traffic, and avoid aggregations of right whales in the eastern portion of CCB.

(2) Major Repairs (December 1-April 30): If unplanned/emergency repair activities cannot be conducted between May 1 and November 30, then Neptune shall implement the following mitigation measures in addition to those listed in § 217.174(a)(1)(i)-(vii):

(i) If on-board PSOs do not have at least 0.5-mi (0.8-km) visibility, they shall call for a shutdown of repair activities. If dive operations are in progress, then they shall be halted and divers brought on board until visibility is adequate to see a 0.5-mi (0.8-km) range. At the time of shutdown, the use of thrusters must be minimized to the lowest level needed to maintain personnel safety. If there are potential safety problems due to the shutdown, the captain must decide what operations can safely be shut down and shall document such activities in the data log.

(ii) Prior to leaving the dock to begin transit, the barge must 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 seek clearance to leave from the PSOs on board. PSOs will assess whale activity and visual observation ability at the time of the transit request to clear the barge for release and will grant clearance if no North Atlantic right whales have been sighted in the last 30 minutes in the visual observation area.

(iii) Neptune or its contractor shall provide a half-day training course to designated crew members assigned to the transit barges and other support vessels who will have responsibilities for watching for marine mammals. This course shall cover topics including, but not limited to, descriptions of the marine mammals found in the area, mitigation and monitoring requirements contained in the Letter of Authorization, sighting log requirements, and procedures for reporting injured or dead marine mammals. These designated crew members shall be required to keep watch on the bridge and immediately notify the navigator of any whale sightings. All watch crew members shall sign into a bridge log book upon start and end of watch. Transit route, destination, sea conditions, and any protected species sightings/mitigation actions during watch shall be recorded in the log book. Any whale sightings within 3,281 ft (1,000 m) of the vessel shall result in a high alert and slow speed of 4 knots (7.4 km/hr) or less. A sighting within 2,461 ft (750 m) shall result in idle speed and/or ceasing all movement.

(iv) The material barges and tugs used for repair work shall transit from the operations dock to the work sites during daylight hours, when possible, provided the safety of the vessels is not compromised. Should transit at night be required, the maximum speed of the tug shall be 5 knots (9.3 km/hr).

(v) Consistent with navigation safety, all repair vessels must maintain a speed of 10 knots (18.5 km/hr) or less during daylight hours. All vessels shall operate at 5 knots (9.3 km/hr) or less at all times within 3.1 mi (5 km) of the repair area.

(3) Speed Restrictions in Seasonal Management Areas (SMAs): Repair vessels and shuttle regasification vessels (SRVs) shall transit at 10 knots (18.5 km/hr) or less in the following seasons and areas, which either correspond to or are more restrictive than the times and areas in NMFS' final rule (73 FR 60173, October 10, 2008) to implement speed restrictions to reduce the likelihood and severity of ship strikes of right whales:

(i) CCB SMA from January 1 through May 15, which includes all waters in CCB, extending to all shorelines of the Bay, with a northern boundary of 42°12′ N. latitude;

(ii) Off Race Point SMA year round, which is bounded by straight lines connecting the following coordinates in the order stated: 42°30′ N. 69°45′ W.; thence to 42°30′ N. 70°30′ W.; thence to 42°12′ N. 70°30′ W.; thence to 42°12′ N. 70°12′ W.; thence to 42°04′56.5″ N. 70°12′ W.; thence along mean high water line and inshore limits of COLREGS limit to a latitude of 41°40′ N.; thence due east to 41°41′ N. 69°45′ W.; thence back to starting point; and

(iii) Great South Channel (GSC) SMA from April 1 through July 31, which is bounded by straight lines connecting the following coordinates in the order stated:

42°30′ N. 69°45′ W.

41°40′ N. 69°45′ W.

41°00′ N. 69°05′ W.

42°09′ N. 67°08′24″ W.

42°30′ N. 67°27′ W.

42°30′ N. 69°45′ W.

(4) Additional Mitigation Measures:

(i) In approaching and departing from the Neptune Port, SRVs shall use the Boston Traffic Separation Scheme (TSS) starting and ending at the entrance to the GSC. Upon entering the TSS, the SRV shall go into a “heightened awareness” mode of operation.

(ii) In the event that a whale is visually observed within 0.6 mi (1 km) of the Port or a confirmed acoustic detection is reported on either of the two auto-detection buoys (ABs) closest to the Port, departing SRVs shall delay their departure from the Port, unless extraordinary circumstances, defined in the Marine Mammal Detection, Monitoring, and Response Plan (the Plan), require that the departure is not delayed. The departure delay shall continue until either the observed whale has been visually (during daylight hours) confirmed as more than 0.6 mi (1 km) from the Port or 30 minutes have passed without another confirmed detection either acoustically within the acoustic detection range of the two ABs closest to the Port or visually within 0.6 mi (1 km) from Neptune.

(iii) SRVs that are approaching or departing from the Port and are within the Area to be Avoided (ATBA) surrounding Neptune shall remain at least 0.6 mi (1 km) away from any visually detected right whales and at least 100 yd (91 m) away from all other visually detected whales unless extraordinary circumstances, as defined in Section 1.2 of the Plan, require that the vessel stay its course. The ATBA is defined in 33 CFR 150.940. It is the largest area of the Port marked on nautical charts, and it is enforceable by the USCG in accordance with the 150.900 regulations. The Vessel Master shall designate at least one lookout to be exclusively and continuously monitoring for the presence of marine mammals at all times while the SRV is approaching or departing Neptune.

(vi) Neptune shall ensure that other vessels providing support to Port operations during regasification activities that are approaching or departing from the Port and are within the ATBA shall be operated so as to remain at least 0.6 mi (1 km) away from any visually detected right whales and at least 100 yd (91 m) from all other visually detected whales.

(v) PSOs shall direct a moving vessel to slow to idle if a baleen whale is seen less than 0.6 mi (1 km) from the vessel.

(vi) Use of lights during repair or maintenance activities shall be limited to areas where work is actually occurring, and all other lights must be extinguished. Lights must be downshielded to illuminate the deck and shall not intentionally illuminate surrounding waters, so as not to attract whales or their prey to the area.

(vii) Neptune must immediately suspend any repair and maintenance or operations activities if a dead or injured marine mammal is found in the vicinity of the project area, and the death or injury of the animal could be attributable to the Port facility activities. Upon finding a dead or injured marine mammal, Neptune must contact NMFS, the Northeast Stranding and Disentanglement Program, and the USCG. NMFS will review the documentation submitted by the PSO and attempt to attribute a cause of death. Activities shall not resume until review and approval has been given by NMFS.

(5) Additional mitigation measures as contained in a Letter of Authorization issued under §§ 216.106 and 217.177.

(b) [Reserved]

§ 217.175

Requirements for monitoring and reporting.

(a) Visual Monitoring Program:

(1) Neptune shall employ two (2) PSOs (who must be approved by NMFS after a review of their qualifications) during maintenance- and repair-related activities on each vessel that has a dynamic positioning system. All PSOs must receive NMFS-approved PSO training and be approved in advance by NMFS after a review of their qualifications.

(2) Qualifications for these PSOs shall include direct field experience on a marine mammal observation vessel and/or aerial surveys in the Atlantic Ocean/Gulf of Mexico.

(3) The PSOs (one primary and one secondary) are responsible for visually locating marine mammals at the ocean's surface and, to the extent possible, identifying the species. The primary PSO shall act as the identification specialist, and the secondary PSO shall serve as data recorder and also assist with identification. Both PSOs shall have responsibility for monitoring for the presence of marine mammals.

(4) The PSOs shall monitor the maintenance/repair area beginning at daybreak using the naked eye, hand-held binoculars, and/or power binoculars.

(5) The PSOs shall scan the ocean surface by eye for a minimum of 40 minutes every hour. All sightings must be recorded in marine mammal field sighting logs. Observations of marine mammals shall be identified to the species or the lowest taxonomic level possible, and their relative position in relation to the vessel shall be recorded.

(6) While a SRV is navigating within the designated TSS, three people have lookout duties on or near the bridge of the ship including the SRV Master, the Officer-of-the-Watch, and the Helmsman on watch.

(7) In addition to standard watch procedures, while the SRV is within the ATBA and/or while actively engaging in the use of thrusters, an additional lookout shall be designated to exclusively and continuously monitor for marine mammals. Once the SRV is moored and regasification activities have begun, the vessel is no longer considered in “heightened awareness” status.

(8) At the conclusion of regasification activities, when the SRV is prepared to depart from the Port, the Master shall once again ensure that the responsibilities as defined in the Plan are carried out. All sightings of marine mammals by the designated lookout, individuals posted to navigational lookout duties, and/or any other crew member while the SRV is within the TSS, in transit to the ATBA, within the ATBA, and/or when actively engaging in the use of thrusters shall be immediately reported to the Officer-of-the-Watch who shall then alert the Master.

(b) Passive Acoustic Monitoring (PAM) Program:

(1) Neptune shall work with NMFS, Stellwagen Bank National Marine Sanctuary (SBNMS), and other scientists to monitor an array of passive acoustic buoys in the Boston TSS that meets the criteria specified in the recommendations developed by NOAA through consultation with the USCG under the National Marine Sanctuary Act (NMSA). The system shall provide near real-time information on the presence of vocalizing whales in the shipping lanes.

(2) Neptune shall work with NMFS, SBNMS, and other scientists to monitor the archival array of acoustic recording units (ARUs), or “pop-ups,” around the Port that meets the criteria specified in the program developed by NOAA in consultation with the USCG under the NMSA. The ARUs shall remain in place for 5 years following initiation of operations to monitor the actual acoustic output of port operations and alert NOAA to any unanticipated adverse effects of port operations, such as large-scale abandonment of the area or greater acoustic impacts than predicted through modeling.

(3) Passive acoustic devices shall be actively monitored for detections by a NMFS-approved bioacoustic technician.

(4) Repair Activity PAM Measures: PAM, in addition to that required in this section of these regulations, is required for repair activities that occur between May 1 and November 30 in any given year in order to better detect right whales in the area of repair work and to collect additional data on the noise levels produced during repair and maintenance activities.

(i) Neptune shall work with NOAA (NMFS and SBNMS) to install and maintain a passive acoustic system to detect and provide early warnings for potential occurrence of right whales in the vicinity of the repair area. The number of passive acoustic detection buoys installed around the activity site 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.

(ii) Neptune shall provide NMFS with empirically measured source level data for all sources of noise associated with Port maintenance and repair activities. Measurements shall be carefully coordinated with noise-producing activities and should be collected from platforms that are as close as possible to noise producing activities.

(5) SRV Regasification PAM Measures: Source levels associated with dynamic positioning of SRVs at the buoys shall be estimated using empirical measurements collected from a platform positioned as close as practicable to thrusters while in use.

(c) Neptune must implement the following reporting requirements:

(1) Because the Port is within the Mandatory Ship Reporting Area (MSRA), all SRVs transiting to and from the Port must 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 must report their activities to WHALESNORTH. Any North Atlantic right whale sightings must be reported to the NMFS Sighting Advisory System.

(2) Repair Work Reports. (i) For any repair work associated with the pipeline lateral or other port components, Neptune shall notify the appropriate NOAA personnel as soon as practicable after it is determined that repair work must be conducted.

(ii) During maintenance and repair of the pipeline lateral or other port components, weekly status reports must be provided to NOAA. The weekly report must include data collected for each distinct marine mammal species observed in the project area during the period of the repair activity. The weekly reports shall include the following:

(A) The location, time, and nature of the pipeline lateral activities;

(B) Whether the dynamic position (DP) system was operated and, if so, the number of thrusters used and the time and duration of DP operation;

(C) Marine mammals observed in the area (number, species, age group, and initial behavior);

(D) The distance of observed marine mammals from the repair activities;

(E) Observed marine mammal behaviors during the sighting;

(F) Whether any mitigation measures were implemented;

(G) Weather conditions (sea state, wind speed, wind direction, ambient temperature, precipitation, and percent cloud cover, etc.);

(H) Condition of the marine mammal observation (visibility and glare); and

(I) Details of passive acoustic detections and any action taken in response to those detections.

(iii) For all minor repair work, Neptune must notify NOAA regarding when and where the repair/maintenance work is to take place along with a tentative schedule and description of the work. Vessel crews shall record/document any marine mammal sightings during the work period.

(iv) At the conclusion of all minor repair work, Neptune shall provide NOAA with a report describing any marine mammal sightings, the type of work taking place when the sighting occurred, and any avoidance actions taken during the repair/maintenance work.

(3) Incident Reports. During all phases of project repair/maintenance activities and operation, sightings of any injured or dead marine mammals must be reported immediately to the Chief, Permits, Conservation and Education Division or staff member and the Northeast Stranding and Disentanglement Program, regardless of whether the injury or death is caused by project activities. If the injury or death was caused by a project vessel (e.g., SRV, support vessel, or construction vessel), the USCG must be notified immediately, and a full report must be provided to NMFS. Activities will not resume until review and approval has been given by NMFS. The report must include the following information:

(i) Time, date, and location (latitude/longitude) of the incident;

(ii) The name and type of vessel involved;

(iii) The vessel's speed during the incident;

(iv) Description of the incident;

(v) Water depth;

(vi) Environmental conditions (e.g., wind speed and direction, sea state, cloud cover, and visibility);

(vii) Species identification or description of the animal;

(viii) The fate of the animal; and

(ix) Photographs or video footage of the animal (if equipment is available).

(4) Annual Reports. (i) An annual report on marine mammal monitoring and mitigation shall be submitted to NMFS, Office of Protected Resources, and NMFS, Northeast Regional Office (specific contact information to be provided in Letter of Authorization), on August 1 of each year. The annual report shall cover the time period of July 1 through June 30 of each year of activity.

(ii) The annual report shall include data collected for each distinct marine mammal species observed in the project area in the Massachusetts Bay during the period of Port operations and repair/maintenance activities. Description of marine mammal behavior, overall numbers of individuals observed, frequency of observation, and any behavioral changes and the context of the changes relative to operation and repair/maintenance activities shall also be included in the annual report. Additional information that shall be recorded during operations and repair/maintenance activities and contained in the reports include: date and time of marine mammal detections (visually or acoustically), weather conditions, species identification, approximate distance from the source, activity of the vessel when a marine mammal is sighted, and whether thrusters were in use and, if so, how many at the time of the sighting.

(5) Five-Year Comprehensive Report. (i) Neptune shall submit a draft comprehensive final report to NMFS, Office of Protected Resources, and NMFS, Northeast Regional Office (specific contact information to be provided in Letter of Authorization), 180 days prior to the expiration of the regulations. This comprehensive technical report shall provide full documentation of methods, results, and interpretation of all monitoring during the first four-and-a-half years of the LOA.

(ii) Neptune shall submit a revised final comprehensive technical report, including all monitoring results during the entire period of the LOAs, 90 days after the end of the period of effectiveness of the regulations to NMFS, Office of Protected Resources, and NMFS, Northeast Regional Office (specific contact information to be provided in Letter of Authorization).

§ 217.176

Applications for Letters of Authorization.

(a) To incidentally take marine mammals pursuant to these regulations, the U.S. Citizen (as defined by § 216.103) conducting the activity identified in § 217.170(a) (i.e., Neptune) must apply for and obtain either an initial Letter of Authorization in accordance with § 217.177 or a renewal under § 217.178.

(b) [Reserved]

§ 217.177

Letters of Authorization.

(a) A Letter of Authorization, unless suspended or revoked, shall be valid for a period of time not to exceed the period of validity of this subpart.

(b) The Letter of Authorization shall set forth:

(1) Permissible methods of incidental taking;

(2) Means of effecting the least practicable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses (i.e., mitigation); and

(3) Requirements for mitigation, monitoring and reporting.

(c) Issuance and renewal of the Letter of Authorization shall be based on a determination that the total number of marine mammals taken by the activity as a whole will have no more than a negligible impact on the affected species or stock of marine mammal(s).

§ 217.178

Renewal of Letters of Authorization and adaptive management.

(a) A Letter of Authorization issued under § 216.106 and § 217.177 for the activity identified in § 217.170(a) shall be renewed upon request by the applicant or determination by NMFS and the applicant that modifications are appropriate pursuant to the adaptive management component of these regulations, provided that:

(1) NMFS is notified that the activity described in the application submitted under § 217.176 will be undertaken and that there will not be a substantial modification to the described work, mitigation or monitoring undertaken during the upcoming 12 months;

(2) NMFS receives the monitoring reports required under § 217.175(c)(1)-(4); and

(3) NMFS determines that the mitigation, monitoring and reporting measures required under §§ 217.174 and 217.175 and the Letter of Authorization issued under §§ 216.106 and 217.177 were undertaken and will be undertaken during the upcoming annual period of validity of a renewed Letter of Authorization.

(b) If either a request for a renewal of a Letter of Authorization issued under §§ 216.106 and 217.178 or a determination by NMFS and the applicant that modifications are appropriate pursuant to the adaptive management component of these regulations indicates that a substantial modification, as determined by NMFS, to the described work, mitigation or monitoring undertaken during the upcoming season will occur, NMFS will provide the public a period of 30 days for review and comment on the request. Review and comment on renewals of Letters of Authorization are restricted to:

(1) New cited information and data indicating that the determinations made in this document are in need of reconsideration, and

(2) Proposed substantive changes to the mitigation and monitoring requirements contained in these regulations or in the current Letter of Authorization.

(c) A notice of issuance or denial of a renewal of a Letter of Authorization will be published in the Federal Register.

(d) Adaptive Management—NMFS may modify or augment the existing mitigation or monitoring measures (after consulting with Neptune regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of mitigation and monitoring set forth in the preamble of these regulations. Below are some of the possible sources of new data that could contribute to the decision to modify the mitigation or monitoring measures:

(1) Results from Neptune's monitoring from the previous year;

(2) Results from general marine mammal and sound research; or

(3) Any information which reveals that marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs.

§ 217.179

Modifications of Letters of Authorization.

(a) Except as provided in paragraph (b) of this section, no substantive modification (including withdrawal or suspension) to the Letter of Authorization issued by NMFS, pursuant to §§ 216.106 and 217.177 and subject to the provisions of this subpart shall be made until after notification and an opportunity for public comment has been provided. For purposes of this paragraph, a renewal of a Letter of Authorization under § 217.178, without modification (except for the period of validity), is not considered a substantive modification.

(b) If the Assistant Administrator determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 217.172(b), a Letter of Authorization issued pursuant to §§ 216.106 and 217.177 may be substantively modified without prior notification and an opportunity for public comment. Notification will be published in the Federal Register within 30 days subsequent to the action.