Small Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Construction and Operation of a Liquefied Natural Gas Facility off Massachusetts, 31926-31934 [E9-15829]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 127 (Monday, July 6, 2009)]
[Notices]
[Pages 31926-31934]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-15829]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XO84


Small Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Construction and Operation 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 an incidental harassment authorization.

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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 and operations of an offshore 
liquefied natural gas (LNG) facility in Massachusetts Bay for a period 
of 1 year.

DATES: Effective July 1, 2009, through June 30, 2010.

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: https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. 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 https://www.regulations.gov by entering the search words ``Neptune LNG.''

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

[[Page 31927]]


SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, 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 MMPA authorization to take small numbers of several 
species of marine mammals, by Level B (behavioral) harassment, 
incidental to construction and operation of an offshore LNG facility. 
NMFS has already issued a 1-year IHA to Neptune for construction 
activities pursuant to section 101(a)(5)(D) of the MMPA (73 FR 33400, 
June 12, 2008), which is effective through June 30, 2009. This IHA will 
cover the completion of construction activities and operations for a 1-
year period.

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 
tran\SM\ission 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 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 harassment, incidental to 
construction of the facility and its pipeline and by the transport and 
regasification of LNG, Neptune has applied for an MMPA authorization. 
Detailed information on these activities can be found in the MARAD/USCG 
Final EIS on the Neptune Project (see ADDRESSES for availability). 
Detailed information on the LNG facility's construction and operations 
and noise generated from these activities was included in NMFS' Notice 
of Proposed IHA, which published in the Federal Register on May 8, 2009 
(74 FR 21648). No changes have been made to the proposed activities.

Comments and Responses

    A notice of receipt of Neptune's application and NMFS' proposal to 
issue an IHA to Neptune was published in the Federal Register on May 8, 
2009 (74 FR 21648). During the 30-day public comment period, NMFS 
received a letter from the Marine Mammal Commission, which recommended 
that NMFS issue the requested IHA, subject to the mitigation, 
monitoring, and reporting measures identified in the proposed IHA 
Federal Register notice (74 FR 21648, May 8, 2009). All measures 
proposed in the initial Federal Register notice are included in the 
authorization. No other comment letters were received for this action.

Description of Marine Mammals Affected by the Activity

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

[[Page 31928]]

al., 2009), which are available at: https://www.nefsc.noaa.gov/publications/tm/tm210/. A summary on several commonly sighted marine 
mammal species distribution and abundance in the vicinity of the action 
area was provided in the notice of a proposed IHA (74 FR 21648, May 8, 
2009).

Potential Effects of Noise on Marine Mammals

    The effects of sound on marine mammals are highly variable and can 
be categorized as follows (based on Richardson et al., 1995): (1) The 
sound 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 sound may be 
audible but not strong enough to elicit any overt behavioral response; 
(3) The sound 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 sound ceases; (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 sound 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 sound, it is possible that there could be 
sound-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 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 tissue associated with organs 
vital for hearing, sound production, respiration, and other functions. 
This trauma may include minor to severe hemorrhage.
    There are three general types of sounds recognized by NMFS: 
continuous, intermittent (or transient), and pulsive. Sounds of short 
duration that are produced intermittently or at regular intervals, such 
as sounds from pile driving, are classified as ``pulsed.'' Sounds 
produced for extended periods, such as sound from generators, are 
classified as ``continuous.'' Sounds from moving sources, such as 
ships, can be continuous, but for an animal at a given location, these 
sounds are ``transient'' (i.e., increasing in level as the ship 
approaches and then diminishing as it moves away).
    The only anticipated impact to marine mammals during construction 
and operation would be the short-term displacement of marine mammals 
from areas ensonified by sound generated by equipment operation and 
vessel movement (thruster use). The sound sources of potential concern 
are continuous and intermittent sound sources, including underwater 
noise generated during pipeline/flowline construction and operational 
underwater sound generated by regasification/offloading (continuous) 
and dynamic positioning of vessels using thrusters (intermittent). 
Neither the construction nor operation of the Port will cause pulsive 
sound activities, including pile driving, seismic activities, or 
blasting. Both continuous and intermittent sound sources are subject to 
NMFS' 120 dB re 1 microPa threshold for determining Level B harassment 
take levels from continuous underwater noise that may result in the 
disturbance of marine mammals.

Potential Impacts of Construction Activities

    Construction and operation of the Neptune Port will occur 
consecutively, with no overlap in activities. Sound from Port and 
pipeline construction will cause some possible disturbance to small 
numbers of both baleen and toothed whales. Additionally, harbor and 
gray seals may occur in the area and may experience some disturbance.
    The installation of the suction piles will produce only low levels 
of sound during the construction period and will not increase the 
numbers of animals affected. Modeling results indicate that noise 
levels would be below 90 dB re 1 microPa within 0.2 mi (0.3 km) of the 
source. Pipe-laying activities will generate continuous but transient 
sound and will likely result in variable sound levels during the 
construction period. Modeling conducted by JASCO Research Limited 
indicates that, depending on water depth, the 120-dB contour during 
pipe-laying activities would extend 3.9 km (2.1 nm) from the source and 
cover an area of 52 km\2\ (15 nm\2\). Additionally, the use of 
thrusters during maneuvering or under certain wind and tidal conditions 
will generate sound levels above the 120-dB threshold. The temporary 
elevation in the underwater sound levels may cause some species to 
temporarily disperse from or avoid construction areas, but they are 
expected to return shortly after construction is completed. The 
underwater sound generated by the use of the thrusters during 
maneuvering or under certain wind and tidal conditions is expected to 
have only minimal effects to individual marine mammals and is not 
expected to have a population-level effect to local marine mammal 
species or stocks because of the short-term and temporary nature of the 
activity.
    The likelihood of a vessel strike of a marine mammal during 
construction is low since construction vessels travel at very slow 
speeds. Any whales foraging near the bottom would be able to avoid 
collision or interaction with the equipment, and displacement would be 
temporary for the duration of the plow pass. No injury or mortality of 
marine mammals is expected as a result of construction of the Neptune 
Port facility.

Potential Impacts of Operational Activities

    During the operational life of the project, marine mammals will be 
exposed to intermittent sound from the use of thrusters positioning the 
carriers at the unloading buoys and the sounds associated with the 
regasification process. Under certain wind and tidal conditions, the 
two aft thrusters will be continuously operated to maintain the heading 
of the vessel into the wind when competing tides operate to push the 
vessel broadside to the wind. These activities will occur at each of 
the two fixed-location unloading buoys. The sound from the 
regasification process is low and will not reach levels of 120 dB re 1 
microPa. However, the brief bursts (10-30 min) of sound associated with 
the use of four thrusters to position the ships would have the 
potential to disturb marine mammals near the Port. The underwater sound 
generated by the use of the thrusters during maneuvering or under 
certain wind and tidal conditions is expected to have only minimal 
effects to individual marine

[[Page 31929]]

mammals and is not expected to have a population-level effect to local 
marine mammal species or stocks. One reason is the relatively short 
duration and infrequency of the use of thrusters (every 4-8 days and 
10-30 min each episode for maneuvering or intermittently to maintain 
heading during certain weather conditions when operations reach their 
peak. However, between July 2009 and June 2010, the period for this 
IHA, it is expected that only one to two shipments would occur, and 
they may be spaced even farther apart than every 4-8 days).
    The use of thrusters during dynamic positioning and the sounds 
produced during the regasification process may cause some behavioral 
harassment to marine mammals present in the project area. However, this 
harassment is expected to be short-term and minimal in nature. Any 
displacement from the Port location and surrounding areas is expected 
to be temporary. Additionally, the distribution of odontocetes in the 
area is patchy, the presence of baleen whales, especially North 
Atlantic right whales, is seasonal, and harbor and gray seals have been 
observed to habituate to human activities, including sound. No injury 
or mortality is expected as a result of operations at the Port.
    Using conservative estimates of both marine mammal densities in the 
Project area and the size of the 120-dB zone of influence (ZOI), the 
calculated number of individual marine mammals for each species that 
could potentially be harassed annually is small relative to the 
affected population sizes. Please see the ``Estimates of Take by 
Harassment'' section for the calculation of these numbers.

Estimates of Take by Harassment

    Pipe-laying activities will generate continuous but transient sound 
and will likely result in variable sound levels during the construction 
period. Depending on water depth, the 120-dB contour during pipe-laying 
activities will extend from the source (the Port) out to 3.9 km (2.1 
nm) and cover an area of 52 km\2\ (15 nm\2\), and, for the flowline at 
the Port, the 120-dB contour will extend from the pipeline route out to 
4.2 km (2.3 nm) and cover an area of 49 km\2\ (14.3 nm2). (This 
information is different from what is contained in the March 23, 2007, 
application submitted by Neptune to NMFS. Neptune conducted its 
acoustic modeling in the very early planning stages of the project, 
when little information was available on the types of vessels that 
could potentially be used during construction. Since that time, a 
contractor was hired to construct the Port. The vessels to be used 
during Neptune Port construction are now estimated to generate 
broadband underwater source levels in the range of 180 dB re 1 Pa at 
1m, similar to several of the vessels modeled by JASCO for Neptune and 
not in the range of 200 dB re 1 microPa at 1m, which was also included 
in the original modeling as a worst case scenario. For more information 
on the modeling conducted by JASCO, please refer to Appendix B of 
Neptune's application.) Installation of the suction pile anchors at the 
Port will produce only low levels of underwater sound, with no source 
levels above 120-dB for continuous sound.
    In order to estimate the level of takes for the operation phase of 
this activity, NMFS has used the same ensonified zone as that described 
above for construction activities (i.e., 52 km\2\ [15 nm\2\]).
    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. Typically, this is determined by applying the modeled 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.
    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.
    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 the 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 
Cetacean and Turtles Assessment Program, the Canadian Department of 
Fisheries and Oceans, the Provincetown Center for Coastal Studies, 
International Fund for Animal Welfare, NEFSC, New England Aquarium, 
Woods Hole Oceanographic Institution, 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 was provided in the 
proposed IHA Federal Register notice (74 FR 21648, May 8, 2009). For a 
detailed description and calculation of the cetacean abundance data and 
SPUE,

[[Page 31930]]

refer to the NCCOS study (NCCOS, 2006). SPUE for the spring, summer, 
and fall 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, 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, 0.0407, and 0.1314 
n/km, respectively.
    In calculating the area density of these species from these linear 
density data, NMFS used 0.4 km (0.25 mi), which is a quarter the 
distance of the radius for visual monitoring (see the ``Mitigation and 
Monitoring Measures'' section later in this document), 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 for the 1-year IHA period for North Atlantic right, fin, 
humpback, minke, and pilot whales and Atlantic white-sided dolphins, 
within the 120-dB ZOI of the LNG Port facility area of approximately 52 
km\2\ (15 nm\2\) maximum ZOI, corrected for 50 percent underwater, are 
48, 57, 155, 35, 238, and 770, respectively. This estimate is based on 
an estimated 60 days of construction activities remaining for the 
period July until September, 2009, that will produce sounds of 120 dB 
or greater.
    Based on the same calculation method described above for Port 
construction, the estimated take numbers by Level B harassment for 
North Atlantic right, fin, humpback, minke, and pilot whales and 
Atlantic white-sided dolphins for the 1-year IHA period incidental to 
Port operations (which is expected to happen no more than twice during 
the effectiveness of this proposed IHA), operating the vessel's 
thrusters for dynamic positioning before offloading natural gas, 
corrected for 50 percent underwater, are 2, 2, 5, 1, 8, and 26, 
respectively.
    The total estimated take of these species as a result of both 
construction and operation of the Neptune Port facility from July 1, 
2009, through June 30, 2010, is: 50 North Atlantic right whales, 59 fin 
whales, 160 humpback whales, 36 minke whales, 246 pilot whales, and 796 
Atlantic white-sided dolphins. These numbers represent a maximum of 
15.4, 2.6, 18.9, 1.1, 0.8, and 1.3 percent of the populations for these 
species in the western North Atlantic, respectively. Since it is highly 
likely that individual animals will be ``taken'' by harassment multiple 
times (since 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) and the fact that the highest value SPUE for the 
season with the highest abundance of each species was used to determine 
relative abundance, these percentages are the upper boundary of the 
animal population that could be affected. Therefore, the actual number 
of individual animals being exposed or taken are expected to be far 
less.
    In addition, bottlenose dolphins, common 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. The 
numbers of estimated take of these species are not available because 
they are rare in the project area. The population estimates of these 
marine mammal species and stocks in the western North Atlantic basin 
are 81,588; 120,743; 89,700; 99,340; and 195,000 for bottlenose 
dolphins, common dolphins, harbor porpoises, harbor seals, and gray 
seals, respectively (Waring et al., 2007). No population estimate is 
available for the North Atlantic stock of killer whales, however, their 
occurrence within the proposed project area is rare. Since 
Massachusetts Bay represents only a small fraction of the western North 
Atlantic basin where these animals occur, and these animals do not 
regularly congregate in the vicinity of the project area, NMFS believes 
that only relatively small numbers of these marine mammal species would 
be potentially affected by the Neptune LNG deepwater project. 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 (18.9 percent for humpback whales and 15.4 percent for 
North Atlantic right whales and no more than 2.6 percent of any other 
species).

Potential Impact of the Activity on Habitat

Potential Impact on Habitat from Construction

    Construction of the Neptune Port and pipeline will affect marine 
mammal habitat in several ways: seafloor disturbance, increased 
turbidity, and generation of additional underwater sound in the area. 
Proposed construction activities will temporarily disturb 418 acres 
(1.7 km\2\) of seafloor (11 acres (0.04 km\2\) at the Port, 85 acres 
(0.3 km\2\) along the pipeline route, and an estimated 322 acres (1.3 
km\2\) due to anchoring of construction and installation vessels). Of 
the proposed construction activities, pipeline installation, including 
trenching, plowing, jetting, and backfill, is expected to generate the 
most disturbance of bottom sediments. Sediment transport modeling 
conducted by Neptune indicates that initial turbidity from pipeline 
installation 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. Resettled sediments also will 
constitute to seafloor disturbance. When re-suspended sediments 
resettle, they reduce growth, reproduction, and survival rates of 
benthic organisms, and in extreme cases, smother benthic flora and 
fauna. Plankton will not be affected by resettled sediment. The project 
area is largely devoid of vegetation and consists of sand, silt, clay, 
or mixtures of the three.
    Recovery of soft-bottom benthic communities impacted by project 
installation is expected to be similar to the recovery of the soft 
habitat associated with the construction of the Hubline\SM\ (Algonquin 
Gas Transmission L.L.C., 2004). Post-construction monitoring of the 
Hubline\SM\ indicates that areas that were bucket-dredged showed the 
least disturbance. Displaced organisms will return shortly after 
construction ceases, and disrupted communities will easily re-colonize 
from surrounding communities of similar organisms. Similarly, 
disturbance to hard-bottom pebble/cobble and piled boulder habitat is 
not expected to be significant. Some organisms could be temporarily 
displaced from existing shelter, thereby exposing them to increased 
predation, but the overall structural integrity of these areas will not 
be reduced (Auster and Langton, 1998).
    Short-term impacts on phytoplankton, zooplankton (holoplankton), 
and planktonic fish and shellfish eggs and larvae (meroplankton) will 
occur as a result of the project. Turbidity associated with Port and 
pipeline installation will result in temporary direct impacts on 
productivity, growth, and development. Phytoplankton and zooplankton 
abundance will be greatest during the summer construction schedule. 
Fish eggs and larvae are present in the project area throughout

[[Page 31931]]

the year. Different species of fish and invertebrate eggs and larvae 
will be affected by the different construction schedules.
    The temporary disturbance of benthic habitat from trenching for and 
burial of the tran\SM\ission pipeline will result in direct, minor, 
adverse impacts from the dispersion of fish from the area and the 
burying or crushing of shellfish. In the short-term, there will be a 
temporary, indirect, and beneficial impact from exposing benthic food 
sources. Seafloor disturbance could also occur as a result of 
resettling of suspended sediments during installation and construction 
of the proposed Port and pipeline. Redeposited sediments will 
potentially reduce viability of demersal fish eggs and growth, 
reproduction, and survival rates of benthic shellfish. In extreme 
cases, resettled sediments could \SM\other benthic shellfish, although 
many will be able to burrow vertically through resettled sediments.
    Based on the foregoing, construction activities will not create 
long-term habitat changes, and marine mammals displaced by the 
disturbance to the seafloor are expected to return soon after 
construction ceases. Marine mammals also could be indirectly affected 
if benthic prey species were displaced or destroyed by construction 
activities. However, affected species are expected to recover soon 
after construction ceases and will represent only a small portion of 
food available to marine mammals in the area.

Potential Impact on Habitat 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 
km\2\) 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 per day) could potentially entrain zooplankton and 
ichthyoplankton that serve as prey for 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.
    Underwater Sound: During operation of the Port, underwater sound 
will principally be generated by use of thrusters when SRVs are mooring 
at the unloading buoy and at other times for maintaining position under 
certain wind and tidal conditions. Thruster use will be intermittent, 
equating to about 20 hr/yr when the Port is fully operational and 
should equate to less than 1 hr during the period of effectiveness for 
this proposed IHA.
    In the long-term, approximately 64.6 acres (0.26 km\2\) 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 km\2\) of soft sediment. This 
area 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 km\2\) 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 
km\2\) 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 Tran\SM\ission 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, 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, 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.

Mitigation and Monitoring Measures

    For the Neptune LNG Port construction and operation activities, 
NMFS is requiring the following monitoring and mitigation measures.

Port Construction Minimization Measures

(1) General
    Construction activities will be limited to a May through November 
time frame so that acoustic disturbance to the endangered North 
Atlantic right whale can largely be avoided.
(2) Visual Monitoring Program
    The Neptune Project will employ two marine mammal observers (MMOs) 
on each lay barge, bury barge, and diving support vessel for visual 
shipboard surveys during construction activities. Qualifications for 
these individuals will include direct field experience on a marine 
mammal/sea turtle observation vessel and/or aerial surveys in the 
Atlantic Ocean and/or Gulf of Mexico. The observers (one primary, one 
secondary) are responsible for visually locating marine mammals at the 
ocean's surface, and, to the extent possible, identifying the species. 
Both observers will have responsibility for monitoring for the presence 
of marine mammals. The primary observer will act as the identification 
specialist, and the secondary observer will serve as data recorder and 
also assist with identification. All observers must receive NMFS-
approved MMO training and be approved in advance by NMFS after review 
of their qualifications.
    The MMOs will be on duty at all times when each vessel is moving 
and at selected periods when construction vessels are idle, including 
when other vessels move around the construction lay barge. The MMOs 
will monitor the construction area beginning at daybreak using 25x 
power binoculars and/or hand-held binoculars, resulting in a 
conservative effective search range of 0.5 mi (0.8 km) during clear 
weather conditions for the shipboard observers. The MMO will scan the 
ocean surface by eye for a minimum of 40 min/hr. All sightings will be 
recorded in marine mammal field sighting logs. Observations of marine 
mammals will be identified to species or the lowest taxonomic level and 
their relative position will be recorded. Night vision

[[Page 31932]]

devices will be standard equipment for monitoring during low-light 
hours and at night.
    During all phases of construction, MMOs will be required to scan 
for and report all marine mammal sightings to the vessel captain. The 
captain will then alert the environmental coordinator that a marine 
mammal is near the construction area. The MMO will have the authority 
to bring the vessel to idle or to temporarily suspend operations if a 
baleen whale is seen within 0.6 mi (1 km) of the moving pipelay vessel 
or construction area. The MMO or environmental coordinator will 
determine whether there is a potential for harm to an individual animal 
and will be charged with responsibility for determining when it is safe 
to resume activity. A vessel will not increase power again until the 
marine mammal(s) leave(s) the area or has/have not been sighted for 30 
min. The vessel will then power up slowly.
    Construction and support vessels are required to display lights 
when operating at night, and deck lights are required to illuminate 
work areas. However, use of lights 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.
(3) Distance and Noise Level for Cut-Off
    (a) During construction, if a marine mammal is detected within 0.5 
mi (0.8 km) of a construction 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 construction area. 
The observer is required to report all North Atlantic right whale 
sightings to NMFS, as soon as possible.
    (b) Construction vessels will cease any movement in the 
construction 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 construction vessel. Construction vessels will 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 
construction vessel. Vessels transiting the construction area such as 
pipe haul barge tugs will also be required to maintain these separation 
distances.
    (c) Construction vessels will cease all activities that emit sounds 
reaching a received level of 120 dB re 1 microPa or higher at 100 yd 
(91 m) if a marine mammal other than a right whale is sighted within or 
approaching to this distance, or if a right whale is sighted within or 
approaching to a distance of 500 yd (457 m), from the operating 
construction 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 microPa.
    (d) Construction 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).
(4) Vessel Strike Avoidance
    (a) While under way, all construction vessels will remain 0.6 mi (1 
km) away from right whales and all other whales to the extent possible 
and 100 yd (91 m) away from all other marine mammals to the extent 
physically feasible given navigational constraints.
    (b) MMOs 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.
    (c) All construction 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 
construction site must contact the appropriate authority or the 
construction site before leaving shore for reports of recent right 
whale sighting 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.
    (d) Vessels transiting through the Cape Cod Canal and Cape Cod Bay 
(CCB) between January 1 and May 15 will reduce speeds to 10 knots (18.5 
km/hr) or less, follow the recommended routes charted by NOAA to reduce 
interactions between right whales and shipping traffic, and avoid 
aggregations of right whales in the eastern portion of CCB. To the 
extent practicable, pipe deliveries will be avoided during the January 
to May time frame. In the unlikely event the Canal is closed during 
construction, the pipe haul barges will transit around Cape Cod 
following the Boston Traffic Separation Scheme (TSS) and all measures 
for the SRVs when transiting to the Port.
    (e) Construction and support vessels will transit at 10 knots 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:
     Southeast U.S. Seasonal Management Area (\SM\A) 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 \SM\As 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 \SM\A from January 1 through May 15, which includes 
all waters in CCB, extending to all shorelines of the Bay, with a 
northern boundary of 42[deg] 12' N. latitude;
     Off Race Point \SM\A year round, which is bounded by 
straight lines connecting the following coordinates in the order 
stated: 42[deg] 30' N. 69[deg] 45' W.; thence to 42[deg] 30' N. 70[deg] 
30' W.; thence to 42[deg] 12' N. 70[deg] 30' W.; thence to 42[deg] 12' 
N. 70[deg] 12' W.; thence to 42[deg] 04' 56.5'' N. 70[deg] 12' W.; 
thence along mean high water line and inshore limits of COLREGS limit 
to a latitude of 41[deg] 40' N.; thence due east to 41[deg] 41' N. 
69[deg] 45' W.; thence back to starting point; and
     Great South Channel (GSC) \SM\A from April 1 through July 
31, which is bounded by straight lines connecting the following 
coordinates in the order stated:
    42[deg] 30' N. 69[deg] 45' W.
    41[deg] 40' N. 69[deg] 45' W.
    41[deg] 00' N. 69[deg] 05' W.
    42[deg] 09' N. 67[deg] 08' 24'' W.
    42[deg] 30' N. 67[deg] 27' W.
    42[deg] 30' N. 69[deg] 45' W.
(5) Passive Acoustic Monitoring (PAM) Program
    In addition to visual monitoring, Neptune will utilize a PAM system 
to aid in the monitoring and detection of North Atlantic right whales 
in the project construction area. The PAM system will be capable of 
detecting and localizing (range and bearing) North Atlantic right 
whales in real-time with the use of six strategically placed acoustic 
bouys. When combined with the action and communication plan, Neptune 
has the capability to make

[[Page 31933]]

timely decisions and undertake steps to minimize the potential for 
collisions between these marine mammals and construction vessels. An 
array of auto-detection monitoring buoys moored at regular intervals in 
a circle surrounding the site of the terminal and associated pipeline 
construction were installed in 2008 and will be redeployed for the 2009 
construction season. Passive acoustic devices are actively monitored 
for detections by a NMFS-approved bioacoustic technician.
    Nineteen permanent archival acoustic recording units (ARUs) or pop-
ups have been arranged around the Port and pipeline to maximize auto 
detection and to provide localization capability. The buoys are 
designed to monitor the sound output from construction activities to 
assess construction impacts on marine mammals and to aid in the 
estimation of takes during the construction period.
(6) Other Measures
    Operations involving excessively noisy equipment must ``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 are required to 
utilize vessel-quieting technologies that minimize sound. Contractors 
are 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.

Port Operation Minimization Measures

(1) Visual Monitoring and Vessel Strike Avoidance
    Prior to entering areas where right whales are known to occur, 
including the GSC and the Stellwagen Bank National Marine Sanctuary, 
SRV operators will consult NAVTEX, NOAA Weather Radio, NOAA's Right 
Whale Sighting Advisory System (SAS), or other means to obtain the 
latest Dynamic Management Area (DMA) information. Vessel operators will 
also receive active detections from the passive acoustic array prior to 
and during transit through the northern leg of the Boston Harbor TSS 
where the buoys are installed.
    In response to active DMAs or acoustic detections, SRVs will take 
appropriate actions to minimize the risk of striking whales, including 
reducing speed to 10 knots (18.5 km/hr) maximum and posting additional 
observers. Designated crew members will undergo NMFS-approved training 
regarding marine mammal presence and collision avoidance procedures.
    Vessels approaching and departing the port from LNG supply 
locations will enter the Boston Harbor TSS as soon as practicable and 
remain in the TSS until the Boston Harbor Precautionary Area. SRVs and 
support vessels will travel at 10 knots (18.5 km/hr) maximum when 
transiting to/from the port outside of the TSS. SRVs will abide by the 
same restrictions as required in the ``Vessel Strike Avoidance'' 
subsection for ``Port Construction Minimization Measures'' in the Off 
Race Point and GSC \SM\As for operations unless hydrographic, 
meteorological, or traffic conditions dictate an alternative speed to 
maintain the safety and maneuverability of the vessel. In such cases 
where speeds in excess of the 10-knot (18.5 km/hr) speed maximums are 
required, the reasons for the deviation, the speed at which the vessel 
is operated, the area, and the time and duration of such deviation will 
be documented in the logbook of the vessel and reported to NMFS' 
Northeast Region Ship Strike Coordinator.
    All vessels will comply with the year-round MSRS. If whales are 
seen within 0.6 mi (1 km) of the buoy, then the SRVs will wait until 
the whale(s) leave(s) the area before departing.
(2) PAM Program
    The array of auto-detection monitoring buoys described previously 
in the ``Passive Acoustic Monitoring (PAM) Program'' subsection of this 
document will be monitored during the LNG Port operations and will 
provide near real-time information on the presence of vocalizing whales 
in the shipping lanes. Additionally, the ARUs, discussed in that 
subsection, will be in place for 5 years following initiation of 
operations to monitor the actual acoustic output of port operations and 
to 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.

Reporting Requirements

    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. Any 
right whale sightings will be reported to the NMFS SAS.
    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. 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 should include data collected for 
each distinct marine mammal species observed in the project area in the 
Massachusetts Bay during the period of LNG facility construction and 
operations. 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 and 
operation 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,

[[Page 31934]]

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.

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. Issuance of this IHA will not have any impacts 
beyond those analyzed in that consultation.

National Environmental Policy Act

    MARAD and the USCG released a Final EIS/Environmental Impact Report 
(EIR) 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/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.

Determinations

    NMFS has determined that the impact of construction and operation 
of the Neptune Port Project may result, at worst, in a temporary 
modification in behavior of small numbers of certain species of marine 
mammals that may be in close proximity to the Neptune LNG facility and 
associated pipeline during its construction and operation. 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 as there is no such uses of these species or 
stocks in the project area.
    This determination is supported by measures described earlier in 
this document under ``Mitigation and Monitoring Measures,'' ``Reporting 
Requirements,'' 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 sound source levels (and 
consequently small zone of impact for hearing-related effects). 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 facility during construction and operation, the estimated number 
of marine mammals to be harassed is small.

Authorization

    As a result of these determinations, NMFS has issued an IHA to 
Neptune for the taking (by Level B harassment only) incidental to 
construction and operation of the Neptune Port provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: June 26, 2009.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E9-15829 Filed 7-2-09; 8:45 am]
BILLING CODE 3510-22-S