31926 Federal Register / Vol. 74, No. 127 / Monday, July 6, 2009 / Notices 

Manufacturer/exporter 

Weighted average 

margin 

(percentage) 

Kolon Industries, Inc. ... 0.15% (de minimis) 

The Department will disclose to 

parties the calculations performed in 

connection with these preliminary 

results within five days of the date of 

publication of this notice. See 19 CFR 

351.224(b). Pursuant to 19 CFR 351.309, 

interested parties may submit case briefs 

not later than 30 days after the 

publication of this notice. Rebuttal 

briefs, limited to issues raised in the 

case briefs, may be filed not later than 

35 days after the date of publication of 

this notice. Parties who submit case 

briefs or rebuttal briefs in this 

proceeding are requested to submit with 

each argument: (1) A statement of the 

issue, (2) a brief summary of the 

argument; and (3) a table of authorities. 

Interested parties who wish to request 

a hearing or to participate if one is 

requested must submit a written request 

to the Assistant Secretary for Import 

Administration, Room 1870, within 30 

days of the date of publication of this 

notice. Requests should contain: (1) The 

party’s name, address and telephone 

number; (2) the number of participants; 

and (3) a list of the issues to be 

discussed. See 19 CFR 351.310(c). Issues 

raised in the hearing will be limited to 

those raised in the case briefs. The 

Department will issue the final results 

of this administrative review, including 

the results of its analysis of issues raised 

in any written briefs, not later than 120 

days after the publication of this notice, 

pursuant to section 751(a)(3)(A) of the 

Act. 

Assessment 

Pursuant to 19 CFR 351.212(b), the 

Department will determine, and CBP 

shall assess, antidumping duties on all 

appropriate entries. The Department 

will issue appropriate assessment 

instructions directly to CBP 15 days 

after the date of publication of the final 

results of this review. For assessment 

purposes, where possible, we calculated 

importer-specific ad valorem 

assessment rates for PET film from 

Korea based on the ratio of the total 

amount of the dumping duties 

calculated for the examined sales to the 

total entered value of those same sales. 

See 19 CFR 351.212(b). We will instruct 

CBP to assess antidumping duties on all 

appropriate entries covered by this 

review if any assessment rate calculated 

in the final results of this review is 

above de minimis. The final results of 

this review shall be the basis for the 

assessment of antidumping duties on 

entries of merchandise covered by the 

final results of these reviews and for 

future deposits of estimated duties, 

where applicable. 

Cash Deposit Requirements 

The following cash deposit 

requirements will be effective for all 

shipments of the subject merchandise 

entered, or withdrawn from warehouse, 

for consumption on or after the 

publication date of the final results of 

this administrative review, as provided 

for by section 751(a)(2)(C) of the Act: (1) 

The cash deposit rate for Kolon will be 

the rate established in the final results 

of review (except, if the rate is zero or 

de minimis, i.e., less than 0.5 percent, 

no cash deposit will be required for 

Kolon); (2) if the exporter is not a firm 

covered in this review or the less than 

fair value (LTFV) investigation, but the 

manufacturer is, the cash deposit rate 

will be the rate established for the most 

recent period for the manufacturer of 

the merchandise; and (3) if neither the 

exporter nor the manufacturer is a firm 

covered in this or any previous review, 

the cash deposit rate will be the allothers rate of 4.82 percent from the 

LTFV investigation. See Antidumping 

Duty Order and Amendment to Final 

Determination of Sales at Less Than 

Fair Value: Polyethylene Terephthalate 

Film, Sheet, and Strip from the Republic 

of Korea, 56 FR 25669 (June 5, 1991). 

Notification to Importers 

This notice also serves as a 

preliminary reminder to importers of 

their responsibility under 19 CFR 

351.402(f) to file a certificate regarding 

the reimbursement of antidumping 

duties prior to liquidation of the 

relevant entries during this review 

period. Failure to comply with this 

requirement could result in the 

Secretary’s presumption that 

reimbursement of antidumping duties 

occurred and the subsequent assessment 

of double antidumping duties. These 

preliminary results of administrative 

review are issued and this notice is 

published in accordance with sections 

751(a)(1) and 777(i)(1) of the Act. 

Dated: June 30, 2009. 

John M. Andersen, 

Acting Deputy Assistant Secretary for 

Antidumping and Countervailing Duty 

Operations. 

[FR Doc. E9–15961 Filed 7–2–09; 8:45 am] 

BILLING CODE 3510–DS–P 

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. 

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 EastWest 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#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 http:// 

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. 

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Federal Register / Vol. 74, No. 127 / Monday, July 6, 2009 / Notices 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 (m3). 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 

HublineSM (HublineSM) 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, longfinned 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 

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31928 Federal Register / Vol. 74, No. 127 / Monday, July 6, 2009 / Notices 

al., 2009), which are available at: http:// 

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 μPa 

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 

μPa 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 km2 (15 

nm2). 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 μPa. 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 

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Federal Register / Vol. 74, No. 127 / Monday, July 6, 2009 / Notices 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 km2 (15 nm2), 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 km2

(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 μPa 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 km2 [15 

nm2]). 

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, 

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31930 Federal Register / Vol. 74, No. 127 / Monday, July 6, 2009 / Notices 

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 km2 (15 nm2) 

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 km2) of seafloor 

(11 acres (0.04 km2) at the Port, 85 acres 

(0.3 km2) along the pipeline route, and 

an estimated 322 acres (1.3 km2) 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 

HublineSM (Algonquin Gas 

Transmission L.L.C., 2004). Postconstruction monitoring of the 

HublineSM 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 

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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 tranSMission 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 SMother 

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 km2) of additional seafloor 

will be subject to disturbance due to 

chain and flexible riser sweep while the 

buoys are occupied by SRVs. 

Ballast and Cooling Water 

Withdrawal: Withdrawal of ballast and 

cooling water at the Port as the SRV 

unloads cargo (approximately 2.39 

million gallons 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 km2) of seafloor will be 

permanently disturbed to accommodate 

the Port (including the associated 

pipeline). The area disturbed because of 

long-term chain and riser sweep 

includes 63.7 acres (0.25 km2) of soft 

sediment. 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 km2) of soft sediments will 

be converted to hard substrate. The total 

affected area will be small compared to 

the soft sediments available in the 

proposed project area. Long-term 

disturbance from installation of the Port 

will comprise approximately 0.3 percent 

of the estimated 24,000 acres (97 km2) 

of similar bottom habitat surrounding 

the project area (northeast sector of 

Massachusetts Bay). 

It is likely that displaced organisms 

will not return to the area of continual 

chain and riser sweep. A shift in benthic 

faunal community is expected in areas 

where soft sediment is converted to 

hard substrate (Algonquin Gas 

TranSMission LLC, 2005). This impact 

will be beneficial for species that prefer 

hard-bottom structure and adverse for 

species that prefer soft sediment. 

Overall, because of the relatively small 

areas that will be affected, 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 

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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 μPa 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 μPa. 

(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 (SMA) from 

November 15 through April 15, which is 

bounded by the shoreline, 31° 27’ N. 

(i.e., the northern edge of the Mandatory 

Ship Reporting System (MSRS) 

boundary) to the north, 29° 45’ N. to the 

south, and 80° 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° 

12’ N. latitude; 

• Off Race Point SMA year round, 

which is bounded by straight lines 

connecting the following coordinates in 

the order stated: 42° 30’ N. 69° 45’ W.; 

thence to 42° 30’ N. 70° 30’ W.; thence 

to 42° 12’ N. 70° 30’ W.; thence to 42° 

12’ N. 70° 12’ W.; thence to 42° 04’ 

56.5’’ N. 70° 12’ W.; thence along mean 

high water line and inshore limits of 

COLREGS limit to a latitude of 41° 40’ 

N.; thence due east to 41° 41’ N. 69° 45’ 

W.; thence back to starting point; and 

• Great South Channel (GSC) SMA 

from April 1 through July 31, which is 

bounded by straight lines connecting 

the following coordinates in the order 

stated: 

42° 30’ N. 69° 45’ W. 

41° 40’ N. 69° 45’ W. 

41° 00’ N. 69° 05’ W. 

42° 09’ N. 67° 08’ 24’’ W. 

42° 30’ N. 67° 27’ W. 

42° 30’ N. 69° 45’ W. 

(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 

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timely decisions and undertake steps to 

minimize the potential for collisions 

between these marine mammals and 

construction vessels. An array of autodetection 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 SMAs 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 yearround 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, 

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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 

DEPARTMENT OF DEFENSE 

Department of the Army; Corps of 

Engineers 

Intent To Prepare an Environmental 

Impact Statement for Whittier Harbor 

Navigation Improvements Feasibility 

Study 

AGENCY: Department of the Army, U.S. 

Army Corps of Engineers, DoD. 

ACTION: Notice of intent. 

SUMMARY: The U.S. Army Corps of 

Engineers (USACE) announces its 

intention to prepare an Environmental 

Impact Statement (EIS) to study the 

feasibility of expanding the existing 

moorage capacity for vessels at Whittier, 

AK. This study will be performed 

through partnership of USACE and the 

City of Whittier. The existing moorage at 

Whittier is at maximum capacity, 

resulting in overcrowded and unsafe 

conditions for harbor users. 

Additionally, the City will be unable to 

meet the growing moorage demands of 

commercial, charter, recreation, and 

subsistence vessels in the near future. 

The EIS will address potential 

environmental impacts of the 

construction, operation, and 

maintenance of the new and existing 

harbor. USACE has held scoping 

meetings in Whittier and Anchorage, 

AK, in an effort to better define the 

issues associated with Whittier Harbor. 

Scoping will be ongoing throughout the 

feasibility study process. 

DATES: Letters to interested parties will 

be mailed in July 2009, to solicit public 

comment on the feasibility study. 

Accompanying the letter will be a 

summary of comments received as a 

result of scoping meetings held on 

February 19, 2009 in Whittier, AK and 

May 7, 2009 in Anchorage, AK. 

Subsequent meetings will be held as 

necessary and advertised in local 

newspapers. 

ADDRESSES: Please direct comments or 

suggestions on the scope of the EIS to: 

Mr. Michael Salyer, NEPA Coordinator, 

U.S. Army Corps of Engineers, Alaska 

District, EN–CW–ER, P.O Box 6898, 

Elmendorf AFB, AK 99506–0898; 

Phone: 907–753–2690; Fax: (907) 753– 

2625, e-mail 

michael.9.salyer@usace.army.mil 

(please use ‘‘NOI Comments on Whittier 

Harbor’’ for the subject). 

FOR FURTHER INFORMATION CONTACT: For 

information or questions concerning the 

proposed project, contact: Mr. Bruce 

Sexauer, Plan Formulator, U.S. Army 

Corps of Engineers, Alaska District, EN– 

CW–PF, P.O. Box 6898, Elmendorf AFB, 

AK 99506–0898; Phone: 907–753–5619; 

Fax: (907) 753–2625; e-mail: 

Bruce.R.Sexauer@usace.army.mil. 

SUPPLEMENTARY INFORMATION: 

Background: The City of Whittier was 

incorporated in 1969. Whittier Harbor 

was constructed in 1970 and was 

expanded to its existing configuration in 

1980. The harbor accommodates a large 

array of commercial, charter, 

government, recreation, and subsistence 

vessels. 

This project was authorized by 

general language in section 5007 of 

Public Law 119–114, the Water 

Resources Development Act of 2007. 

Purpose and Need for Agency Action: 

The existing Whittier Harbor is utilized 

beyond its capacity. The town of 

Whittier needs to expand the existing 

mstockstill on PROD1PC66 with NOTICES