Small Takes of Marine Mammals Incidental to Specified Activities: Taking Marine Mammals Incidental to Construction of a Liquefied Natural Gas Facility off Massachusetts

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Federal Register: June 12, 2008 (Volume 73, Number 114)

Notices

Page 33400-33411

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr12jn08-49

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XI16

Small Takes of Marine Mammals Incidental to Specified Activities;

Taking Marine Mammals Incidental to Construction of a Liquefied Natural

Gas Facility off Massachusetts

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; issuance of incidental harassment authorization.

SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) regulations, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to Neptune LNG, L.L.C.

(Neptune) to take, by harassment, small numbers of several species of marine mammals incidental to construction of an offshore liquefied natural gas (LNG) facility in Massachusetts Bay for a period of 1 year.

DATES: Effective July 1, 2008, through June 30, 2009.

ADDRESSES: A copy of the IHA and application are available by writing to P. Michael Payne, Chief, Permits, Conservation, and Education

Division, Office of Protected Resources, National Marine Fisheries

Service, 1315 East-West Highway, Silver Spring, MD 20910-3225 or by telephoning the contact listed here. A copy of the application containing a list of references used in this document may be obtained by writing to this address, by telephoning the contact listed here (FOR

FURTHER INFORMATION CONTACT) or online at: http://www.nmfs.noaa.gov/pr/ permits/incidental.htm. Documents cited in this notice may be viewed, by appointment, during regular business hours, at the aforementioned address.

The Maritime Administration (MARAD) and U.S. Coast Guard (USCG)

Final Environmental Impact Statement (Final EIS) on the Neptune LNG

Deepwater Port License Application is available for viewing at http:// dms.dot.gov under the docket number 22611.

FOR FURTHER INFORMATION CONTACT: Candace Nachman or Ken Hollingshead,

Office of Protected Resources, NMFS, (301) 713-2289.

SUPPLEMENTARY INFORMATION:

Background

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of \TM\all 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, notice of a proposed authorization is provided to the public for review.

Authorization for incidental takings may 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, and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking are set forth.

NMFS has defined ``negligible impact'' in 50 CFR 216.103 as: an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.

Section 101(a)(5)(D) of the MMPA establishes an expedited process by which citizens of the U.S. can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Except for certain categories of 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''

.

Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small numbers of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization.

Summary of Request

On December 27, 2007, NMFS received an application from Neptune requesting an IHA to take small numbers of several species of marine mammals, by Level B (behavioral) harassment, for a period of 1 year, incidental to construction of an offshore LNG facility in Massachusetts

Bay.

Description of the Project

On March 23, 2007, Neptune received a license to own, construct, and operate a deepwater port (Port or Neptune Port) from MARAD. The

Port, which will be located in Massachusetts Bay, will consist 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 will be separated by a distance of approximately 2.1 mi (3.4 km).

Neptune will be capable of mooring LNG shuttle and regasification vessels (SRVs) with a capacity of approximately 140,000 cubic meters

(m\3\). Up to two SRVs will temporarily moor at the proposed deepwater 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 proposed 24-in (61-cm) gas transmission pipeline connecting the deepwater port to the existing 30- in (76.2-cm) Algonquin Hubline\TM\ (Hubline\TM\) located approximately 9 mi (14.5 km) west of the proposed deepwater port location. The Port will have an expected operating life of approximately 20 years. Figure 1-1 of Neptune's application shows an isometric view of the Port.

On February 15, 2005, Neptune submitted an application to the USCG and MARAD under the Deepwater Port Act for all Federal authorizations required for a license to own, construct, and operate a deepwater port for the import and regasification of LNG off the coast of

Massachusetts. Because, as described later in this document, there is a potential for marine mammals to be taken by haras\TM\ent, incidental to construction of the facility and its pipeline, Neptune has applied for a 1-year IHA for activities commencing in July 2008. Detailed information on these activities can be found in the MARAD/USCG Final

EIS on the Neptune Project (see ADDRESSES for availability).

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Detailed information on the LNG facility's pipeline and port construction and noise generated from these activities was included in

NMFS' Notice of Proposed IHA, which published in the Federal Register on February 19, 2008 (73 FR 9092). No changes have been made to these proposed activities.

Comments and Responses

A notice of receipt and request for public comment on the application and proposed authorization was published on February 19, 2008 (73 FR 9092). During the 30-day public comment period, NMFS received the following comments from the Marine Mammal Commission

(MMC), the Whale Center of New England (WCNE), Nahant Safer Waters in

Massachusetts, Inc. (SWIM), and one private citizen.

Comment 1: The MMC recommends issuance of the IHA provided that all mitigation, monitoring, and reporting measures identified in the proposed IHA Federal Register notice (73 FR 9092, February 19, 2008) are included in the authorization.

Response: NMFS agrees with the MMC's recommendation. All measures proposed in the initial Federal Register notice are included in the authorization.

Comment 2: The MMC recommends that the beginning of construction activities in 2009 be postponed until June 1 instead of beginning on

May 1. The MMC notes that NMFS' proposed vessel speed limits in the area from January 1 to May 15, to reduce the likelihood of vessel collisions with the North Atlantic right whale, indicate that right whales may be present into the middle of May. Delaying construction until June 1 will allow a two-week buffer to increase the likelihood that all right whales have left the area.

Response: The authorization requires Neptune to employ both a visual monitoring program and a passive acoustic monitoring (PAM) program for detection of North Atlantic right whales and other marine mammals in the vicinity of construction activities. Both of these programs were developed in accordance with recommendations made by the

NMFS Northeast Region during its section 7 consultation under the

Endangered Species Act (ESA) and by the Stellwagen Bank National Marine

Sanctuary (SBNMS). All construction activities will be conducted under a level of heightened awareness if a North Atlantic right whale is acoustically detected by the PAM devices. Construction will cease if a whale is detected either visually within 500 yards (457 m) of construction activities or acoustically and will not resume until the animal is known to have left the area. Therefore, NMFS believes that the use of this dual monitoring program will reduce the potential for impacts to the North Atlantic right whale to the lowest level practicable, even with construction activities resuming on May 1, 2009.

Comment 3: The MMC notes that construction activities producing loud noises could occur at night and under poor sighting conditions when visual detections of animals would be impaired. Even under good sighting conditions, observers are unlikely to see all whales or protected species in the immediate vicinity of the construction site.

The MMC states that the use of PAM provides additional, but limited, means of detection of vocalizing marine mammals in the vicinity. The

MMC recommends that a real-time passive acoustic array be used at all times during the construction period as a supplement to visual monitoring efforts.

Response: NFMS agrees with the MMC that PAM should be used at all times during the construction period. A detailed description of how PAM will be used to assist visual monitoring is provided in the draft

Prevention, Monitoring, and Mitigation Plan for the Construction Phase:

Neptune Project, Massachusetts Bay (Neptune, 2008). The PAM primarily serves as an early warning and supplemental measure for marine mammal visual monitoring provided by two marine mammal observers (MMOs) on each construction vessel. The PAM will be a near real-time system.

Neptune will equip MMOs with night vision devices for marine mammal monitoring during low-light hours.

Comment 4: The MMC and WCNE both concur with NMFS' finding in the proposed IHA Federal Register notice that the take numbers requested in

Neptune's application seem a bit low (73 FR 9092, February 19, 2008).

Therefore, the MMC recommends that NMFS reanalyze marine mammal density in the area, the area to be ensonified to 160 dB, and the number of days that construction activities will occur to derive more accurate estimates of the numbers of marine mammals likely to be taken incidental to construction.

Response: NMFS recalculated the cetacean density data and estimated take number based on the compilation of a large number of databases published by the National Centers for Coastal Ocean Science (NCCOS, 2006). The recalculated density numbers were then multiplied by the area to be ensonified to 120 dB, which is used as the threshold for estimating the onset of Level B (behavioral) haras\TM\ent for continuous sounds. The number of days that construction activities will occur were also included. Please refer to the ``Estimates of Take by

Harassment'' section found later in this document for a detailed description of how the new take numbers were calculated.

Comment 5: The WCNE questions why only acoustic models were used to determine the zone of influence (ZOI) created by construction activities for this project. Referring to the Northeast Gateway LNG

Port (NEG or NEG Port), the WCNE states that there was a significant amount of data gathered on the sounds created by, and the zone of impact from that project, through the use of required passive acoustic arrays. The WCNE suggests that these data should be analyzed and made available to test whether the ZOI suggested by Neptune's acoustic models are supported. Until such actual results are available and analyzed, the WCNE suggests that no action should take place on the current permit application.

Response: The acoustic array in place in Massachusetts Bay near the

NEG Port and the site of construction for Neptune has not been used for sound source verification of vessel noise and other acoustic activities that occurred last year during construction of the NEG Port. Similarly, they were not used to validate the ZOI around the NEG Port construction site. NMFS has determined that in the absence of any in-water measurements, acoustic models must be used to determine the ZOI. The modeling conducted very early in the planning stages for the project, before a company had been contracted to perform the Neptune Port construction, most likely overestimates the 120-dB ZOI. In a letter submitted by Neptune to NMFS on May 28, 2008, Neptune indicated that certain vessels were used in the modeling as worst case examples. The pipeline construction company now under contract to construct the

Neptune Port will not be using a vessel such as the Britoil 51, which was used in the modeling and shown to have a broadband source level of 199.7 dB re 1 microPa at 1m. Construction will involve vessels closer in characteristics to other vessels that were modeled, creating an area of 120-dB ensonification of approximately 52 km\2\ (15 nm\2\), not the maximum of approximately 161 km\2\ (47 nm\2\) predicted in the original modeling.

Comment 6: The WCNE states that in their research efforts on northern Stellwagen Bank in 2006, they identified over 250 individual humpback whales, including 33 mother-calf pairs using standard photo- identification techniques, and even that number is considered an underestimate by the WCNE. Similar numbers, with

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similar effort, were identified by the WCNE in 2007. Given the proximity of the project to Stellwagen Bank, the WCNE states that it is possible for any of these animals on any given day to be exposed to project noise of over 120 dB or to other related activities which could disturb them.

Response: NMFS believes a small number of humpback whales might be incidentally taken by Level B harassment if they happen to occur in the

ZOI where noise from construction activities reach over 120 dB.

However, the maximum size of the ZOI has been recalculated to be 52 km\2\ (15 nm\2\) with a vessel's dynamic positioning thrusters being operated at the surface. This maximum ZOI would only occur inside the

SBNMS' western boundary, in an area that is still northwest of

Stellwagen Bank. In addition, between the proposed project are and

Stellwagen Bank, there is a steep drop off from the 50-m isobath where construction noise would not propagate as far when compared to at the surface, where the maximum ZOI could occur. Therefore, the identification of 250 individual humpback whales in the northern

Stellwagen Bank by the WCNE does not mean that individuals on the Bank would be harassed. To the contrary, the fact that the majority of whales occur within the SBNMS, especially gathering around the

Stellwagen Bank, means that fewer whales would be taken by Level B harassment in the vicinity of the project area, which is outside the

Sanctuary's boundaries.

Comment 7: Citing the WCNE's own research on humpback whales in the

SBNMS and other studies (cited as Seipt et al., 1989), the WCNE states that a more realistic upper bound of the number of animals that may be taken during any given year by the project is more likely to be up to 400 individuals each of humpback, fin, and minke whales, each of which may be taken multiple times on multiple days (no calculation provided).

Response: NMFS cannot evaluate whether the WCNE's estimated take numbers are scientifically supported because the WCNE did not provide any valid calculation indicating how these numbers were assessed. The photo-identification of 250 humpback whales (including 33 mother-calf pairs) in the northern Stellwagen Bank, as mentioned in the previous

Comment, does not support the WCNE's take estimate. The research conducted by Seipt et al. (1990), titled ``Population Characteristics of Individual Fin Whales, Balaenoptera physalus, in Massachusetts Bay, 1980-1987,'' was published in the Fishery Bulletin in 1990. While the study described the use of photo-identification technology on fin whale population studies in Massachusetts Bay and presented fin whale sighting and resighting data between 1980 and 1987, it did not provide any population estimate or density assessment of the species in the study area. Therefore, NMFS does not believe these data can be used for fin whale take estimates in the proposed project area.

In addition, NMFS' own population assessment of the Gulf of Maine humpback stock is 847 whales (Waring et al., 2007). The WCNE's estimated annual take of 400 humpback whales (47 percent of the population) within a maximum 120 dB re 1 microPa ZOI of 52 km\2\ (15 nm\2\) is not scientifically supportable. Likewise, the WCNE's estimated annual take numbers of 400 fin whales, which accounts for 18 percent of the Western North Atlantic population of 2,269 whales

(Waring et al., 2007); and 400 minke whales, which is 12 percent of the

Canadian East Coast population of 3,312 whales (which are mostly sighted off Nova Scotia and New Brunswick, Canada; Waring et al., 2007); are not good estimates because no valid calculations were provided on how these numbers were derived.

Comment 8: Although the data on the number of right whales that use the area, especially during the winter and early spring, are limited, the WCNE indicates that the data they do have suggests the project site is one of the more frequently used sites within their study area, and acoustic detections of whales in the past two years have been numerous.

The WCNE believes it is likely that whales which use Jeffreys Ledge in the fall and Cape Cod Bay (CCB) in the spring transit through the project site. In fall 2007, the WCNE identified over 70 right whales on

Jeffreys Ledge in October through December; over 100 individuals were seen in CCB in spring 2007. Hence, the WCNE states that an appropriate estimate of North Atlantic right whales to be harassed by the proposed project would be 100 individuals annually; although if managing conservatively, the actual number might be somewhat higher (no references provided).

Response: Data sets used by the NCCOS (2006), which include survey efforts and sightings data from ship and aerial surveys and opportunistic sources between 1970 and 2005 from a wide range of sources, indicate that right whales spend most of their time across the southern Gulf of Maine in CCB in spring, with highest abundance located over the deeper waters on the northern edge of the Great South Channel and deep waters parallel to the 100-m (328-ft) isobath of northern

Georges Bank and Georges Basin. The data collected by the WCNE focused on CCB, which is 30 40 mi (48 64 km) southeast of the proposed project area, and Jeffreys Ledge, which is approximately 12-14 mi (19-22.5 km) northeast of the proposed project area at its southwestern most point.

Both areas have different oceanographic features and ecological characteristics and are more important habitat for right whales than the project area. In addition, Weinrich et al. (2006), in their report on the distribution of baleen whales in the Neptune proposed LNG project area, state:

North Atlantic right whales are sporadic visitors to the study area [Neptune project area] during the April to November period.

Right whales typically aggregate in [CCB] during the late winter and early spring (Mayo and Marx, 1990), then move east to the Great

South Channel during the spring (Kenney and Wishner, 1995). They then move east along the northern edge of Georges Bank, and into the

Bay of Fundy and Nova Scotian shelf during the summer and early fall

(Kraus et al., 1988; Winn et al., 1986; Baumgartner et al., 2003).

Once they leave the Bay of Fundy, pregnant females migrate to the coastal waters of the southern U.S. to calve, while the distribution of much of the rest of the population remains unknown (Winn et al., 1986). Recent work on Jeffreys Ledge, immediately to the north of

Cape Ann, has indicated that significant numbers of right whales may use the area as a feeding habitat from October through at least

December (Weinrich et al., 2000; Weinrich and Sardi, 2004;

Unpublished data).

Right whale sighting plots presented in this report support this statement, and it is consistent with the survey data published in the

NCCOS (2006) report, which indicates that right whales do not use the proposed project area regularly, especially during the months for which construction activities are planned. Weekly construction reports submitted by NEG indicated only one visual sighting of a North Atlantic right whale in the NEG project area (which is just south of the Neptune

Port) in the month of December. The authorization issued to Neptune does not allow for any construction activities from December 1 through

April 30. An acoustic array near the NEG Port construction site detected 11 North Atlantic right whale calls in September, two in

October, and two in December. Barring weather delays, construction activities at the Neptune Port in 2008 should be completed in early

October. Therefore, NMFS does not believe that the WCNE's estimated annual take of 100 North Atlantic right whales by the proposed project is reasonable, especially given that the WCNE did not provide the calculation

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regarding how this take number was assessed.

Comment 9: The WCNE points out that special attention should be given to project activities occurring in the fall. This is a particularly sensitive time for endangered humpback and fin whales, which have been exploiting a new prey source annually since 2000, within the proposed project area, as supported by the studies conducted by Weinrich and Sardi (2005) and as noted in the Neptune LNG Final EIS

(USCG and MARAD, 2006). The WCNE states that heavy industrial activity during these months would result in either take levels of these species at far greater levels than during any other month or in habitat displacement altogether. The WCNE notes that while they did see both species feeding in the NEG construction area in fall 2007, there were fewer whales, and those whales were resident for shorter periods, than in the previous three years. Since the WCNE does not have annual measurements of prey biomass, they state that it is possible that this is merely related to annual fluctuations in food availability.

Response: NMFS reviewed the Weinrich and Sardi (2005) report on the distribution of baleen whales in the waters surrounding the Neptune LNG project, but we did not find that the report contained any quantitative analysis of the cetacean density data showing that there is a statistical significance of baleen whales' use of the proposed project area on a seasonal or monthly basis. The cetacean sighting data, plotted in an area that includes most of the SBNMS, part of

Massachusetts Bay, the west terminal portion of the Boston Traffic

Separation Scheme (TSS), and the proposed project area, clearly show that most humpback, fin, and minke whales were sighted within the SBNMS

(Weinrich and Sardi, 2005). NMFS recognizes that there is a potential for take of small numbers of marine mammals by Level B harassment as a result of this project; however, NMFS does not agree with the WCNE that there would be takes at far greater levels during the fall months for humpback and fin whales, as strict monitoring and mitigation measures, described in the ``Marine Mammal Mitigation, Monitoring, and

Reporting'' section later in this document, will be implemented to keep the impacts to the lowest level practicable.

Comment 10: The WCNE states that whales would be harassed not just by exposure to sound sources of over 120 dB re 1 microPa, but they may also be disturbed by multiple boats in a limited area. The WCNE cites studies conducted by Borgaard et al. (1999) and Stone and Tasker (2006) on whales affected by continuous activity from dredging coupled with vessel traffic and seismic activities. The WCNE states that in its comments regarding the NEG IHA application in 2007, they recommended that if in the first year [of the project] abundance of any of the key species are notably lower than that of previous years, the IHA should stipulate that project operations should cease until it can be determined if that change was related to project activities or other ecological factors. The WCNE notes that abundance was lower, and they believe that the full impact of the project cannot be assessed until the underlying reasons for the lower whale use can be determined.

Response: It is true that marine mammals may be disturbed by multiple boats in a limited area, especially within the Boston TSS.

However, this concern is not related to the issuance of this IHA since the construction of a deepwater LNG facility would only increase vessel traffic in the vicinity by a very small amount, about 1.5 percent

(NMFS, 2007). The study by Borgaard et al. (1999) cited by the WCNE was focused on the effects of large scale industrial activity, which involved dredging and blasting, on large cetaceans in Bull Arm, Trinity

Bay, Newfoundland from 1992 through 1995. The research indicates that humpback whales were more affected by continuous activity from dredging, coupled with vessel traffic, but appeared tolerant of transient blasting and frequent vessel traffic. Individually-identified minke whales were resighted in the industrialized area and appeared tolerant of vessel traffic. Stone and Tasker (2006) in their research analyzed the effects of airgun seismic surveys on marine mammals in UK waters. The airgun used in seismic surveys produces impulse sounds, which is fundamentally different sound in acoustic characteristics from the intermittent noises produced during the proposed deepwater LNG port construction. No blasting will occur during Port construction.

The weekly construction reports submitted by NEG to NMFS during its construction phase do not indicate any large or long-term reactions of marine mammals to the presence of the construction or support vessels.

When animals were detected within the ZOI, mitigation measures to reduce the ZOI were implemented immediately. The IHA is issued for a duration of 1 year. NMFS will evaluate any new scientific information that may surface during the project period and assess any impacts that may result due to the deepwater port construction and operation. Based on the new information and monitoring reports, NMFS will determine whether any additional monitoring or mitigation measures are warranted for future authorizations.

Comment 11: The WCNE notes that Neptune's application falsely states, ``Pinnipeds are unlikely to be present during summer and will not be affected.'' The WCNE states that they have many sighting records of harbor seals at sea in the project area during the summer months.

Hence, they need to be included in any IHA request for the area during summer.

Response: NMFS concurs with the WCNE's assertion that harbor seals should be included in the take authorization. Harbor seals have been added to the IHA (see the ``Marine Mammals Affected by the Activity'' and ``Estimates of Take by Harassment'' sections later in the document).

Comment 12: The WCNE requests that Neptune withdraw the IHA application and resubmit it with more realistic numbers, such as those posed by the WCNE above (i.e., 400 humpback, 400 fin, 400 minke, and 100 North Atlantic right whales, all of which may be taken multiple times over multiple days). They also suggest that Neptune be required to obtain a Letter of Authorization (LOA), rather than an IHA. The WCNE feels that the take levels they posed are more realistic, and coupled with the possibility of displacing animals from preferred food sources, seem to them to be ``well above'' the levels of ``incidental harassment'' for which the permit category is intended.

Response: NMFS has revised the incidental harassment take estimates for project construction. The development of these numbers is explained in the ``Estimates of Take by Harassment'' section found later in this document. Also, as stated in responses above, NMFS does not believe the

WCNE's estimated take numbers are scientifically supported, especially given that the WCNE did not provide any valid calculations indicating how these numbers were assessed. NMFS has defined ``incidental harassment'' in 50 CFR 216.103 as ''...an accidental taking. This does not mean that the taking is unexpected, but rather it includes those takings that are infrequent, unavoidable, or accidental.'' NMFS believes that incidental harassment of marine mammals near the Neptune

Port construction site will be infrequent.

Comment 13: The WCNE states that they would also be amenable to

NMFS issuing the IHA as requested by Neptune in their application to allow

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the annual take of two North Atlantic right whales, one minke whale, two fin whales, three humpback whales, and the other take levels requested in the application. The WCNE states, ``If this option is taken, we would strongly urge that the permit include an explicit statement of the maximum number of annual violations that can take place before ALL port construction or operations must cease ANY activity which is likely to harass a marine mammal, either by exposing to sounds above 120 dB or by resulting in a behavioral disturbance, including displacement.'' In order to determine when such a violation occurs, the WCNE requests that Neptune produce real-time, daily plots of sound levels as detected by the acoustic arrays, which can be plotted against independent sightings of marine mammals, as well as all of the acoustic detections of marine mammals by Neptune's array.

Response: The numbers cited by the WCNE from the Neptune application were requests for Port operations, not construction. The requested take numbers for construction in Neptune's application are slightly higher (but only by a few individuals for each species). In its proposed IHA Federal Register notice (73 FR 9092, February 19, 2008), NMFS indicated that the take levels requested by Neptune in its application for construction were too low. NMFS reevaluated species density, the area to be ensonified to 120 dB, and number of days of construction to develop more realistic take levels (see the ``Estimates of Take by Harassm>ent'' section found later in this document).

The taking of marine mammals in a manner not described in the IHA is strictly prohibited. Any violation of the IHA is subject to prosecution; therefore, NMFS does not include ``a maximum number'' of violations that may be committed before enforcement action is taken against the holder. To this end, the IHA issued to Neptune contains the following conditions:

The taking, by incidental Level B harassment only, is limited to the species listed [in the IHA]. The taking by Level A harassment, injury, or death of these species, or the taking of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this Authorization; and

Any person who violates any provision of this IHA is subject to civil and criminal penalties, permit sanctions, and forfeiture as authorized under the MMPA.

Comment 14: The WCNE urges that there be an explicit stipulation that blasting activities are specifically not covered by the IHA, and such activities would require applying for a new permit and a new public review process.

Response: NMFS concurs with the WCNE. The IHA does not authorize blasting to be used for port construction at the Neptune site. If, during the course of the construction, an unexpected need for blasting arises, the blasting cannot take place until a blasting plan is submitted to the Federal Energy Regulatory Commission (FERC) and a

Blasting Mitigation Plan prepared in consultation with NOAA for submittal to, and approval by, FERC. A new application would need to be submitted to NMFS and reviewed in the same manner as the original IHA application.

Comment 15: SWIM notes that the endangered whales that frequent the waters of Massachusetts Bay are utterly dependent upon their hearing and their acoustic ``sonar'' for navigation, finding food, and survival, and that these animals do not remain wholly in the bounds of the SBNMS. SWIM endorses the comments made by the WCNE.

Response: NMFS analyzed the distribution of endangered whales in

Massachusetts Bay and determined that \TM\all numbers of these populations may be impacted by port construction activities but also determined that the activities would have a negligible impact. Several mitigation and monitoring measures are required by the IHA to reduce the impact to the lowest level practicable (see the ``Marine Mammal

Mitigation, Monitoring, and Reporting'' section later in this document). Responses to the comments submitted by the WCNE have been provided previously.

Comment 16: One commenter opposed the issuance of permits that allows the killing of marine mammals.

Response: NMFS does not believe that the authorized activities will result in the death (or injury) of any marine mammals, nor does this

IHA authorize any marine mammal mortality (or injury).

Marine Mammals Affected by the Activity

Marine mammal species that could occur within the Neptune facility impact area include several species of cetaceans and pinnipeds: North

Atlantic right, blue, fin, sei, minke, humpback, killer, long-finned pilot, and sperm whales, Atlantic white-beaked, Atlantic white-sided, bottlenose, common, Risso's, and striped dolphins, harbor porpoise, and gray, harbor, harp, and hooded seals. Table 3-1 in the IHA application outlines the marine mammal species that occur in Massachusetts Bay and the likelihood of occurrence of each species. Information on those species that may be impacted by this activity are discussed in detail in the MARAD/USCG Final EIS on the Neptune LNG proposal. Please refer to that document for more information on these species and potential impacts from construction of this LNG facility. In addition, general information on these marine mammal species can also be found in the

NMFS U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments

(Waring et al., 2007), which is available at: http:// www.nefsc.noaa.gov/nefsc/publications/tm/tm205/. An updated summary on several commonly sighted marine mammal species distribution and abundance in the vicinity of the action area is provided below.

Humpback Whale

The highest abundance for humpback whales was distributed primarily along a relatively narrow corridor following the 100-m (328 ft) isobath across the southern Gulf of Maine from the northwestern slope of

Georges Bank, south to the Great South Channel, and northward alongside

Cape Cod to Stellwagen Bank and Jeffreys Ledge. The relative abundance of whales increased in the spring with the highest occurrence along the slope waters (between the 40- and 140-m, 131- and 459-ft, isobaths) off

Cape Cod and Davis Bank, Stellwagen Basin and Tillies Basin and between the 50- and 200-m (164- and 656-ft) isobaths along the inner slope of

Georges Bank. High abundance was also estimated for the waters around

Platts Bank. In the summer months, abundance increased markedly over the shallow waters (Southeast U.S. Seasonal Management Area (SMA) from

November 15 through April 15, which is bounded by the shoreline, 31[deg] 27' N. (i.e., the northern edge of the Mandatory Ship Reporting

System (MSRS) boundary) to the north, 29[deg] 45' N. to the south, and 80[deg] 51.6' W. (i.e., the eastern edge of the MSRS boundary);

Mid-Atlantic SMAs from November 1 through April 30, which encompass the waters within a 30 nm (55.6 km) area with an epicenter at the midpoint of the COLREG demarcation line crossing the entry into the following designated ports or bays: (a) Ports of New York/New Jersey;

(b) Delaware Bay (Ports of Philadelphia and Wilmington); (c) Entrance to the Chesapeake Bay (Ports of Hampton Roads and Baltimore) (d) Ports of Morehead City and Beaufort, North Carolina; (e) Port of Wilmington,

North Carolina; (f) Port of Georgetown, South Carolina; (g) Port of

Charleston, South Carolina; and (h) Port of Savannah, Georgia;

CCB SMA from January 1 through May 15, which includes all waters in CCB, extending to all shorelines of the Bay, with a northern boundary of 42[deg] 12' N.;

Off Race Point SMA year round, which is bounded by straight lines connecting the following coordinates in the order stated: 42[deg] 30' N. 70[deg] 30' W. 42[deg] 30' N. 69[deg] 45' W. 41[deg] 40' N. 69[deg] 45' W. 41[deg] 40' N. 69[deg] 57' W. 42[deg] 04.8' N. 70[deg] 10' W. 42[deg] 12' N. 70[deg] 15' W. 42[deg] 12' N. 70[deg] 30' W. 42[deg] 30' N. 70[deg] 30' W.; and

Great South Channel SMA from April 1 through July 31, which is bounded by straight lines connecting the following coordinates in the order stated: 42[deg] 30' N. 69[deg] 45' W. 42[deg] 30' N. 67[deg] 27' W. 42[deg] 09' N. 67[deg] 08.4' W. 41[deg] 00' N. 69[deg] 05' W. 41[deg] 40' N. 69[deg] 45' W. 42[deg] 30' N. 69[deg] 45' W.

PAM Program

In addition to visual monitoring, Neptune will utilize a PAM system to aid in the monitoring and detection of vocalizing marine mammals in the project area. Neptune has engaged personnel from NMFS and the SBNMS regarding available passive acoustic technology that could be used to enhance the PAM program.

The PAM system will be capable of detecting, localizing (range and bearing), and classifying marine mammals in near real-time. When combined with an action and communication plan, Neptune will have the capability to make timely decisions and undertake steps to minimize the potential for collisions between marine mammals and construction vessels. The PAM system for the Neptune project involves the installation of an array of auto-detection monitoring buoys moored at regular intervals in a circle surrounding the site of the terminal and associated pipeline construction. Buoys will be arranged to maximize auto detection and provide localization capability. With the existing technology, this would require six buoys moored every 5 nm (9.3 km) to provide some overlap in coverage. The buoys are designed to monitor the sound output from construction activities to ensure predicted levels are not exceeded and to detect the presence of vocally active marine mammals. Passive acoustic devices will be actively monitored for detections by a NMFS-approved bioacoustic technician.

Other Measures

Mesh grates will be used during flooding and hydrostatic testing of the pipeline and flowlines to minimize impingement and entrainment of marine mammals. Operations involving

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excessively noisy equipment will ``ramp-up'' sound sources, as long as this does not jeopardize the safety of vessels or construction workers, allowing whales a chance to leave the area before sounds reach maximum levels. Contractors will be required to utilize vessel-quieting technologies that minimize sound. Contractors will be required to maintain individual Spill Prevention, Control, and Containment Plans in place for construction vessels during construction.

An environmental coordinator with experience coordinating projects to monitor and minimize impacts to marine mammals will be onsite to coordinate all issues concerning marine protected species, following all of the latest real-time marine mammal movements. The coordinator will work to ensure that environmental standards are adhered to and adverse interactions between project equipment and marine mammals do not occur.

Reporting

During construction, weekly status reports will be provided to NMFS utilizing standardized reporting forms. In addition, the Neptune Port

Project area is within the Mandatory Ship Reporting Area (MSRA), so all construction and support vessels will 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 will report their activities to WHALESNORTH.

During all phases of project construction, sightings of any injured or dead marine mammals will be reported immediately to the USCG and NMFS, regardless of whether the injury or death is caused by project activities. Any right whale sightings will be reported to the NMFS

Sighting Advisory System.

Sightings of injured or dead marine mammals not associated with project activities can be reported to the USCG on VHF Channel 16 or to

NMFS Stranding and Entanglement Hotline. In addition, if the injury or death was caused by a project vessel (e.g., SRV, support vessel, or construction vessel), USCG must be notified immediately, and a full report must be provided to NMFS, Northeast Regional Office. The report must include the following information: (1) the time, date, and location (latitude/longitude) of the incident; (2) the name and type of vessel involved; (3) the vessel's speed during the incident; (4) a description of the incident; (5) water depth; (6) environmental conditions (e.g., wind speed and direction, sea state, cloud cover, and visibility); (7) the species identification or description of the animal; and (8) the fate of the animal.

An annual report on marine mammal monitoring and mitigation will be submitted to NMFS Office of Protected Resources and NMFS Northeast

Regional Office within 90 days after the expiration of the IHA. The weekly reports and the annual report must include data collected for each distinct marine mammal species observed in the project area in

Massachusetts Bay during the period of Port construction. 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 construction activities shall also be included in the annual report. Additional information that will be recorded during construction 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 or not thrusters were in use and how many at the time of the sighting.

ESA

On January 12, 2007, NMFS concluded consultation with MARAD and the

USCG under section 7 of the ESA on the proposed construction and operation of the Neptune LNG facility. The finding of that consultation was that the construction and operation of the Neptune LNG terminal 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. Because the issuance of an IHA to Neptune under section 101(a)(5)(D) of the MMPA is a Federal action, NMFS also conducted a section 7 consultation, and it was determined that issuance of the IHA will not have effects on listed species beyond what was previously analyzed.

National Environmental Policy Act

MARAD and the USCG released a Final EIS for the proposed Neptune

LNG Deepwater Port. A notice of availability was published by MARAD on

November 2, 2006 (71 FR 64606). The Final EIS provides detailed information on the proposed project facilities, construction methods, and analysis of potential impacts on marine mammals. The Final EIS is incorporated as part of the MMPA record of decision (ROD) for this action.

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. NMFS has adopted the

USCG and MARAD FEIS and issued a separate ROD for issuance of the IHA.

Determinations

NMFS has determined that the impact of construction of the Neptune

Port Project may result, at worst, in a temporary modification in behavior of \TM\all numbers of certain species of marine mammals that may be in close proximity to the Neptune LNG facility and associated pipeline during its construction. These activities are expected to result in some local short-term displacement, resulting in no more than a negligible impact on the affected species or stocks of marine mammals. The provision requiring that the activity not have an unmitigable adverse impact on the availability of the affected species or stock for subsistence use does not apply for this action.

These determinations are supported by measures described earlier in this document under ``Marine Mammal Mitigation, Monitoring, and

Reporting'' and MARAD's ROD (and NMFS' Biological Opinion on this action). As a result of the described mitigation measures, no take by injury or death is requested, anticipated, or authorized, and the potential for temporary or permanent hearing impairment is very unlikely due to the relatively low noise levels (and consequently

\TM\all ZOI). The likelihood of such effects will be avoided through the incorporation of the shut-down mitigation measures mentioned in this document. While the number of marine mammals that may be harassed will depend on the distribution and abundance of marine mammals in the vicinity of the Port construction, the estimated number of marine mammals to be harassed is small relative to overall population sizes.

Authorization

As a result of these determinations, NMFS has issued an IHA to

Neptune for the taking (by Level B harassment only) during construction of the Neptune Port provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.

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Dated: June 6, 2008.

James H. Lecky,

Director, Office of Protected Resources, National Marine Fisheries

Service.

FR Doc. E8-13264 Filed 6-11-08; 8:45 am

BILLING CODE 3510-22-S

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