[Federal Register Volume 74, Number 77 (Thursday, April 23, 2009)]
[Proposed Rules]
[Pages 18492-18516]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9369]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 090206146-9332-01]
RIN 0648-AX32


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to the Port of Anchorage Marine Terminal Redevelopment 
Project

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS has received an application from the Port of Anchorage

[[Page 18493]]

(herein after ``POA'') and the U.S. Department of Transportation 
Maritime Administration (herein after ``MARAD'') for issuance of 
regulations governing the take of small numbers of marine mammals 
incidental to the Port's Marine Terminal Redevelopment Project (herein 
after ``MTRP''), Anchorage, Alaska. The MTRP includes expanding the 
current POA by 135 acres and replacing and expanding the current dock 
to accommodate additional berths. Construction activities which have 
the potential to harass marine mammals include in-water pile driving 
and demolition of the existing dock. Species which could potentially be 
taken from the MTRP include the beluga whale (Delphinapterus leucas), 
harbor seal (Phoca vitulina), harbor porpoise (Phocoena phocoena), and 
killer whale (Orcinus orca).

DATES: Comments and information must be postmarked no later than May 
26, 2009.

ADDRESSES: You may submit comments by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: http://www.regulations.gov.
     Hand delivery or mailing of paper, disk, or CD-ROM 
comments should be addressed to 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.
    Instructions: A copy of the application containing a list of 
references used in this document, Demolition Plan, Final Marine Mammal 
Monitoring Report for 2008, the Final 2008 Environmental Assessment 
(EA), and the Draft Supplemental Environmental Assessment (SEA) may be 
obtained by writing to the above address, by telephoning the contact 
listed under FOR FURTHER INFORMATION CONTACT, or on the Internet at: 
http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. 
Documents cited in this proposed rule may also be viewed, by 
appointment, during regular business hours at the above address. To 
help NMFS process and review comments more efficiently, please use only 
one method to submit comments. Attachments to electronic comments will 
be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file 
formats only.
    All comments received are public record and will generally be 
posted to http://www.regulations.gov without change. All Personal 
Identifying Information (for example, name, address, etc.) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
Confidential Business Information or otherwise sensitive or protected 
information. To submit anonymous comments, enter N/A in the required 
fields.

FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, NMFS, 301-713-2289, ext 
151.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs 
the Secretary of Commerce to allow, upon request, the incidental, but 
not intentional, taking of marine mammals by U.S. citizens who engage 
in a specified activity (other than commercial fishing) if certain 
findings are made and regulations are issued or, if the taking is 
limited to harassment, notice of a proposed authorization is provided 
to the public for review. Except with respect to certain activities not 
pertinent here, the MMPA defines ``harassment'' as:
    any act of pursuit, torment, or annoyance which (I) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild [Level A harassment]; or (ii) has the potential to disturb a 
marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering 
[Level B harassment].
    Authorization for incidental takings may be granted for up to 5 
years 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 certain 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.''
    On July 14, 2008, NMFS issued a one-year incidental harassment 
authorization (IHA) to the POA/MARAD for takes of marine mammals 
incidental to the MTRP (73 FR 41318, July 18, 2008). Intent to 
promulgate regulations was included in the March 18, 2008 Federal 
Register notice for the proposed IHA (73 FR 14443, March 18, 2008); 
however, on November 20, 2008, NMFS received an updated application 
from the POA/MARAD specifically for regulations. The application 
included, among other things, information on the demolition process of 
the existing dock, detailed take calculations, results from marine 
mammal monitoring conducted under the IHA, results of a more robust 
acoustic study, and additional mitigation. NMFS published a notice of 
receipt of application and solicitation for public comments on the 
application (73 FR 77013, December 18, 2008). NMFS is now inviting 
comments on the following proposed regulations for taking of marine 
mammals as described in this notice.

Summary of Request

    On November 20, 2008, NMFS received an application from the POA/
MARAD for regulations and subsequent Letters of Authorization (LOAs) to 
take, by Level B harassment only, marine mammals incidental to the 
MTRP. The POA/MARAD have been in discussions with NMFS Office of 
Protected Resources Permits Division and Alaska Regional Office (AKR), 
Anchorage, since inception of the MTRP (2003) to ensure compliance with 
the MMPA and to reduce impact to marine mammals and their habitat. In 
2008, NMFS issued the POA/MARAD a one-year IHA authorizing incidental 
take of marine mammals from pile driving (73 FR 41318, July 18, 2008). 
The IHA, which expires on July 15, 2009, authorizes the take, by Level 
B harassment only, of 34 beluga whales, 20 harbor seals, 20 harbor 
porpoise, and 5 killer whales. To date, marine mammal observations 
(submitted by trained, NMFS approved observers on-site at the POA and a 
second independent scientific marine mammal monitoring team) indicate 
that the effects analysis in NMFS 2008 Environmental Assessment (EA) on 
the Issuance of an Incidental Harassment Authorization and Subsequent 
Rulemaking for Take of Small Numbers of Marine Mammals Incidental to 
the Port of Anchorage Terminal Redevelopment Project, Anchorage, Alaska 
is appropriate and justifiable as pile driving noise does not appear to 
impact beluga whale surface behavior (see Impacts to Marine Mammals). 
The POA/MARAD's LOA application, supporting documents, NMFS' 2008 EA 
and Supplemental EA (SEA) can be found on the NMFS Protected Resources 
Permits website at http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

Specified Activity

    According to the application, the MTRP is designed to upgrade and 
expand the existing POA facilities by removing and replacing aging and 
obsolete structures and providing

[[Page 18494]]

additional dock and backland areas, without disruption of maritime 
service during construction. The POA serves 85 percent of the 
population within the State of Alaska by providing 90 percent of all 
consumer goods and is an economic engine for the State of Alaska. The 
rehabilitation and expansion of the POA is critical to improving 
national defense capabilities and provides additional land and 
facilities necessary to support military deployments during and after 
construction. The POA is one of nineteen nationally designated 
Strategic Ports with direct calls scheduled by the Department of 
Defense for critical deployments in-and-out of Alaska's military bases 
and training facilities (Fort Greely, Eielson Air Force Base, Fort 
Wainwright, Fort Richardson, and Elmendorf Air Force Base [EAFB]) to 
Iraq, Afghanistan, and other defense theaters around the globe. POA 
operations began in the early 1960s with little build-up in the past 
fifty years and is currently under-serving Alaska's transportation 
system as its primary hub.
    Located within the Municipality of Anchorage (MOA) on Knik Arm in 
upper Cook Inlet, the existing 129-acre POA facility is currently 
operating at or above sustainable practicable capacity for the various 
types of cargo handled at the facility. In addition, the existing 
infrastructure and support facilities are substantially past their 
design life, have degraded to levels of marginal safety, and are in 
many cases functionally obsolete. The MTRP will replace, upgrade, and 
expand the current POA facility to address existing needs and projected 
future needs, allowing the POA to adequately support the economic 
growth of Anchorage and the State of Alaska through 2025 and beyond. 
Upon completion, the phased MTRP will add 135 acres of usuable land to 
the current 129 acre POA (total area of 264 acres). The completed 
marine terminal at the POA will include: seven modern dedicated ship 
berths; two dedicated barge berths; rail access and intertie to the 
Alaskan railbelt; roadway improvements; security and lighting 
improvements; slope stability improvements; drainage improvements; 
modern shore-side docking facilities; equipment to accommodate cruise 
passengers, bulk, break-bulk, roll on/roll off (RO-RO) and load on/load 
off (LO-LO) cargo, general cargo short-term storage, military queuing 
and staging, and petroleum, oils, and lubricants (POL) transfer and 
storage; and additional land area to support expanding military and 
commercial operations.
    Creation of over 65 of the 135 unimproved acres have been completed 
to date in preparation of accepting new container cranes and relocating 
shipping operations by the year 2010: thus far, 26.8 acres were added 
in 2006; 22.4 acres were added in 2007; and 18.4 acres were added in 
2008. Future efforts will add 8.4 acres in 2010; 14.15 acres will be 
added in 2011; 29.85 acres will be added in 2012; and 15.35 acres in 
2013. NMFS and environmental organizations have worked with the POA/
MARAD to ensure minimal impact to natural resources and were heavily 
involved in the U.S. Army Corps of Engineers (USACE) scoping process 
for issuance of the POA/MARAD's USACE Section 404/10 Permit POA-2003-
502-N (located in Appendix B of the LOA application). As a result, 
numerous mitigation measures to protect natural resources, including 
beluga whales, habitat, and fish are contained in that USACE permit.
    In a letter dated May 9, 2006, NMFS determined that non pile 
driving related in-water construction activities (i.e., construction of 
a dike, discharge, settlement and compaction of fill material, 
installation of utilities, and paving within a 27-acre intertidal area) 
would not result in takes of marine mammals and therefore did not 
require an MMPA authorization if certain operational procedures and 
mitigation measures were implemented by the POA/MARAD. In contrast, 
NMFS determined that an incidental take authorization was necessary for 
in-water pile driving operations and issued the aforementioned IHA in 
July 2008 after NMFS concluded that all required MMPA determinations 
were met. Marine mammal takes from in-water construction activities, 
specifically in-water pile driving and demolition of the existing dock 
structure, would be authorized by this proposed rulemaking.
     The POA/MARAD have submitted a detailed schedule of in-water 
construction activities. Please refer to Table 1-1 and Section 1.3.1. 
in the application for a description. In general, pile driving would 
occur from April to October/November when sea ice is absent but could 
start earlier or later depending on presence of sea ice. Pile driving 
cannot occur during winter months due to the danger of floating sea 
ice. NMFS suggested this option to the POA early in discussions about 
the MTRP but it is clear installing piles during winter is hazardous to 
workers' safety and could damage material. The schedule in Table 1-1 of 
the application may change slightly based on unanticipated construction 
delays. Potential causes of schedule delay might include: changes in 
planned construction sequencing due to changes in commercial or 
military maritime operations, changes in USACE harbor dredging 
schedules to maintain navigation, longer than anticipated settlement 
and consolidation time for foundation soils or other unanticipated site 
conditions, national security requirements prohibiting or delaying 
construction access, delays in steel production or longer than 
anticipated delivery or availability of construction materials, changes 
in planned funding or financing, prolonged work stoppages due to 
presence and protection of marine mammals or other regulatory actions 
affecting construction schedules, prolonged shut downs due to inclement 
weather, or other force majeure causes.

Pile Driving

Open Cell Sheet Pile Installation
    The new bulkhead waterfront structure will be comprised of 
conjoining face and tail sheet-pile cells, forming a row of U-shaped 
open cell sheet pile (OCSP) structures, with the face placed parallel 
to and approximately 400 ft (122 m) seaward of the existing dock face. 
The face of each OCSP cell is curved outward, creating a scalloped 
surface (see application for figures of sheet pile design). The 
finished marine terminal will abut and tie into the Flint Hills open 
cell sheet pile retaining wall currently on the adjacent Railroad 
property; however, the existing Flint Hills structure is not part of 
the MTRP.
    Individual face sheets are approximately 20 inches wide 
horizontally, 0.5-inch thick, and up to a maximum of 90 ft in vertical 
length; 17 sheets are required for each cell face. At each junction 
between cells, a tail wall is constructed and anchored to the face 
sheets with a wye connector. The tail walls are spaced 27.5 ft apart. 
The arc along the U-shaped face is approximately 28 ft. The face sheets 
will be up to 80 ft in length in the areas with -35 ft berths and up to 
90 ft long in the -45 ft berths. The tail wall sheets vary from 30 ft 
to 90 ft long, but generally are 70 ft for the primary tail walls and 
30 ft for the tail wall extensions. Approximately 30 linear ft of OCSP 
wall could be constructed in a 10-hour period.
    The face and immediately adjoining primary tail walls are installed 
using vibratory or impact pile driving procedures from either land-
based or barge-based pile driving equipment. The cell is then filled to 
design elevations with the earthen material, allowing the tail wall 
extensions to be installed with

[[Page 18495]]

land-based equipment. The dock face will be constructed in areas that 
are completely ``submerged'' (below low tide). Primary tail walls are 
installed in areas that are below low tide and in areas that are 
tidally influenced or ``intertidal'' (in-water during high tide and out 
of the water during low tide), and areas completely out-of water. Only 
driving piles installed in-water in the submerged and intertidal zones 
has the potential for impacting marine mammals.
    Two main methods used to install piles are impact and vibratory 
pile driving. An impact hammer is a large metal ram that is usually 
attached to a crane. A vertical support holds the pile in place and the 
ram is dropped or forced downward. The energy is then transferred to 
the pile which is driven into the seabed. The ram is typically lifted 
by mechanical, air steam, diesel, or hydraulic power sources. The POA/
MARAD have indicated that an impact hammer similar to Delmag D30-42 
diesel, 13,751 lb hammer with a maximum rated energy of 101 kilojoules 
(kj) will likely be used; however, this may be slightly altered based 
on the contractor. Driving piles using an impact hammer generally 
results in the greatest noise production; however, this noise is not 
constant and is considered as a ``multiple pulse'' source by NMFS. 
NMFS' current acoustic threshold for pulsed sounds (e.g., impact pile 
driving) is 180 and 190dB re 1 microPa for Level A harassment of 
cetaceans and pinnipeds, respectively, and 160 dB re 1 microPa for 
Level B harassment.
    Vibratory hammers install piles by applying a rapidly alternating 
force to the pile by rotating eccentric weights about shafts, resulting 
in a downward vibratory force on the pile. Vibratory hammers are 
attached to the pile head with a clamp and are usually hydraulically 
powered. The vertical vibration in the pile disturbs or ``liquifies'' 
the soil next to the pile causing the soil particles to lose their 
frictional grip on the pile. The pile moves downward under its own 
weight plus the weight of the hammer. This method is very effective for 
non-displacement piles such as sheet piles, H-beams, and open-end pile 
or caissons. NMFS has established a 180/190dB threshold for Level A 
harassment; however, no Level B threshold is currently implemented 
across the board due to the immense variability in acoustic behavioral 
studies. In the 2008 IHA, NMFS established a threshold of 120dB for 
vibratory pile driving; however, acoustic studies in Knik Arm provide 
overwhelming evidence that background levels around the POA are 
consistently at or above this level, in absence of POA related 
construction. Therefore, NMFS proposes to implement a 125dB threshold 
for Level B harassment for vibratory pile driving.
    The type of hammer used depends on subsurface conditions and the 
effort required to advance the sheet pile to final elevation. The 
difference between the top of adjacent sheets can be no more than 5 
feet at any time. This means that the sheets will be methodically 
driven in a stair-step pattern and the hammer will move back and forth 
along the cell until all sheets are driven to depth. This stair-step 
driving pattern results in short periods of driving. For the vibratory 
hammer, driving is in progress from less than 1 to approximately 3 
minutes followed by a minimum 1- to 5-minute period with no driving, 
while the vibratory hammer is moved and reset. When the impact hammer 
is being used, driving takes place from less than 1 to 20 minutes, 
followed by a period of no driving, while the hammer is moved and reset 
(between 1 and 15 minutes). Where driving conditions allow, two or 
three adjacent sheet piles may be driven simultaneously (the grips on 
the vibratory hammer allow one to three sheets to be driven at a time). 
Actual driving time is determined by local soil conditions. The 
estimated number of pile driving hours, by method, per year is outlined 
in Table 1. The POA/MARAD estimate that vibratory pile driving will be 
the main method of pile installation (75 percent of the time) but may 
use impact pile driving when substrate is too difficult for a vibratory 
hammer (25 percent of the time). The POA/MARAD's USACE permit and 
current IHA require that all piles be driven with the vibratory hammer 
and only use the impact hammer when vibratory methods are not 
sufficient to achieve proper depth.

     Table 1: Pile driving location, timeline, and estimated hours for the Port of Anchorage Marine Terminal
                                             Redevelopment Project.
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                                                                                       Hours of       Hours of
       Year                  Location                Pile Type          Number of   Vibratory Pile   Impact Pile
                                                                          Piles         Driving        Driving
----------------------------------------------------------------------------------------------------------------
2009                          Barge Berth             fender pile            11             8              3
                          North Extension                       OCSP      4,106           496            235
                                                   temporary pile           268            17              0
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                                                                                                           OCSP
                                                                                                    temporary
                                                                                                        pile
                                                                                                    fender pile
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Demolition of the Existing Dock

    Demolition of the existing, active dock is currently scheduled in 
two phases to begin in 2010 and could continue intermittently through 
2013, depending on the demolition approach and sequencing selected. 
Phase 1 of dock demolition, scheduled for 2010/2011, will focus on the 
northern portion of the existing dock (approximately 175,000 sq ft) and 
includes Terminals 2 and 3. Phase 2 would include the southern portion 
of the dock (approximately 225,000 sq ft) which is scheduled for 
demolition during 2011/2012. Phase 2 includes Terminal 1 and the 
petroleum, oils, and lubricants (POL) Terminal 1 and 2. The existing 
dock is inside the footprint of the planned MTRP; therefore, all 
concrete debris from demolition would be in areas already planned to be 
filled in during the construction of the new dock. All demolition 
activities would be subject to appropriate marine mammal mitigation 
measures (see Mitigation section).
    The existing dock encompasses approximately 400,000 sq ft of 
surface area and is comprised of an 18 to 24-inch thick steel 
reinforced concrete deck supported by over 4,000 steel piles. Select 
structural portions of the concrete deck are up to 3\1/2\ to 4 feet 
thick. Pile diameters range from 24 to 48 inches with a wall thickness 
of 7/16 inch and are filled with gravel. The existing dock structure 
includes three obsolete container cranes, a three-story combination 
administration building and warehouse at the southern portion of the 
dock, steel trestles, catwalks, fuel piping, and miscellaneous utility 
appurtenances. POA expansion activities will include the demolition of 
the existing dock structure to allow the placement of gravel fill to 
extend the functional wharf line approximately 400 feet beyond the 
existing dock face.
    The Port submitted a demolition plan to NMFS that outlines three 
possible methods for demolition and mitigation measures for each 
option. These include (1) in-water demolition by mechanical means using 
chipping hammers, (2) out-of-water demolition using mechanical means 
and explosives, and (3) out-of-water demolition by mechanical means 
only. Demolition approaches for removal of the existing dock structures 
were reviewed with regard to technical feasibility, cost, and ability 
to minimize Level B harassment takes of marine mammals. Although the 
most economical and fastest approach includes combining in-water 
mechanical means and blasting during winter months, the potential 
adverse effects to marine mammals of blasting in-water would 
necessitate extensive mitigation. Therefore, in-water blasting has been 
eliminated from further consideration.
    The specific method of choice cannot be determined at this time due 
to the need for flexibility in the construction bidding process and to 
facilitate integration of the demolition work into the other components 
of the MTRP, therefore, all three methods are proposed with 
appropriate, respective mitigation. A detailed description of 
methodology can be found in the POA/MARAD's Demolition Plan posted on 
the NMFS website listed above (see ADDRESSES) and are summarized here.

In-Water Demolition by Mechanical Means Only- Option 1

    Option 1, dock demolition by mechanical means, requires breaking or 
sawing the existing concrete away from the steel support structure and 
cutting or breaking the steel piles in summer and winter. Concrete 
demolition would be accomplished using hydraulic chipping hammers, 
concrete cutter jaws and crushers, and shears mounted to large tracked 
excavators. Additional equipment would be used to grab, cut, or load 
salvaged steel during demolition activities. Demolition of the 
reinforced concrete deck would be performed by excavators working from 
the surface of the deck. Large excavators with hydraulic hammers or 
concrete jaws would chip or break the concrete away from the steel 
support structure and internal reinforcing steel. The concrete would be 
broken into small pieces and dropped by gravity to the sea floor below, 
well within the final MTRP footprint. The concrete debris on the sea 
floor would be encapsulated with clean fill material and left in place. 
Alternately, a subcontractor may choose to saw cut the concrete deck 
into sections and use cranes or large excavators to remove the sections 
and transport them to shore for use as aggregate elsewhere in the MTRP. 
Deck demolition work would begin at the furthest point (waterside) 
moving toward the shore, and then along access trestles until the final 
demolition areas are accessible from land. Metal reinforcing steel 
debris would be segregated and removed with additional excavators and 
loaded into trucks for removal and recycling. The concrete deck 
demolition and salvaging of reinforcing steel could occur during any 
tidal stage. Although this option is considered ``in-water,'' the 
chipping hammer would not operate beneath the water's surface as the 
deck of the dock is not below water during any tidal stage.
    Steel piles would be cut or broken using heavy equipment as the 
concrete deck is removed or additional clean granular fill may be 
placed in the dock area, if necessary, to allow equipment access to 
remove the remaining steel piles from below the dock. During lower 
tides the steel piles would be cut using large track mounted excavators 
with shear attachments or simply bent and broken at least 10 feet below 
finish grade using excavators with buckets. An alternate access for 
removal of the steel pile would require use of a tug and barge to 
approach from the waterside and remove the steel pile after the deck 
demolition is complete. Salvaged portions of the piles would be removed 
for recycling. The concrete debris and remaining portions of steel pile 
would later be encapsulated with clean fill during the construction of 
the expanded wharf.
    Option 1 could be accomplished either in the winter or in the 
summer, but not both, with demolition during the winter being the 
preferred option. Total demolition activities for Phase 1 of this 
option (northern portion) are anticipated to continue for

[[Page 18497]]

approximately 960 hours (60 hours/week x 16 weeks). Demolition of Phase 
2 structures (southern portion) is anticipated to take approximately 
1,320 hours (60 hours/week x 22 weeks). Concrete demolition activities 
would be conducted continuously throughout each day; however, steel 
pile demolition may be limited to low tide cycles for ground access. It 
is assumed that both portions of work would be performed concurrently, 
although a portion of the concrete deck must be demolished before steel 
pile demolition can begin, and steel pile demolition may be limited to 
low tide intervals.
    If Option 1 is chosen, harassment to marine mammals could occur 
from chipping hammers transmitting sound into the water through the 
steel piles. Chipping is similar to vibratory pile driving in terms of 
sound type (i.e., non-pulse), but these hammers operate at 19% less 
horsepower (i.e., lower energy) than the vibratory hammer and therefore 
are quieter. In addition, because of the considerable structural mass 
of concrete that the vibrations would pass through prior to reaching 
the water, the energy is expected to attenuate to a minimal level. 
Other cutting tools, such as shears and cutter jaws, operate in short 
duration at low energy, and do not impart energy directly to the water 
column or sea floor. Despite demolition activities being quieter than 
pile driving, the POA/MARAD have proposed to implement the same 
harassment and safety zones as vibratory pile driving.

Out-of-Water Demolition by Mechanical and Blasting Means- Option 2

    Option 2 is comprised of two parts: (1) construct a dike (which 
acts like a cofferdam) around the existing dock during the summer; and 
(2) demolish the dock in the winter. The construction of a granular 
fill dike along the outer limits of the proposed POA expansion area 
would isolate the existing dock from marine waters allowing demolition 
to be accomplished out-of-water with a 300-foot land barrier to 
demolition activities. The dike constructed would be inside the 
footprint of the area already planned and permitted to be filled in 
with soil to build the future new dock. The sequence of the filling 
operations would simply be modified to construct the dike first, 
demolish the dock, and then complete the remainder of the fill. Dike 
construction would not result in any additional dewatering or habitat 
loss.
    De-watered dikes/cofferdams represent the most effective way of 
reducing sound created by impact pile-driving into the water column 
because the pile is completely decoupled from the surrounding water 
column. Phase 1 dike construction would begin in the spring to early 
summer 2011; Phase 2 dike construction would begin in spring or summer 
2012.
    This option would require the construction of approximately 2,600 
linear feet (LF) of granular fill dike prior to Phase 1 demolition and 
approximately 2,300 LF prior to Phase 2. The dike would be constructed 
to an elevation above the highest anticipated tide elevation, would be 
up to 100 feet wide at the top with approximately 2:1 side slopes. The 
dike would be constructed of clean granular fill placed by off-road 
dump trucks and bulldozers and compacted with vibratory rollers, 
similar to fill activities currently under way. After completion of the 
dike the contained water will be removed to a depth sufficient to 
access the limits of the demolition area from below. The proposed dike 
would be constructed in accordance with current permit conditions with 
regard to fish protection and provide fish escapement and/or rescue and 
release from entrapment. Summer construction of the dike would be 
necessary for proper fill placement and compaction and is anticipated 
to take approximately five months. After dike completion, the dock will 
be set back approximately 300 feet inland from the water line.
    Once the dike is completely constructed to accommodate a specific 
phase of demolition, the applicable concrete deck structure would then 
be demolished or partly demolished in sections using precision charges 
(blasting) to break or loosen the concrete. Blasting would expedite the 
demolition of the concrete structure and will allow for easier handling 
and removal of concrete and steel debris using mechanical equipment 
such as track mounted excavators and dump trucks working from an 
adjacent section of the deck structure or from below.
    Blasting would be out-of-water and entail a series of controlled 
events or shots to demolish the deck in a predetermined sequence of 
sections. It is anticipated that the dock would be segregated into 
approximately 30 linear foot sections and that there will be one 
blasting event for each section (i.e., 30 blasting events total). Each 
section would be broken up by a single shot event comprised of 
approximately 150 to 300 charges depending on the size of the section. 
The section would be prepared by drilling a series of 1-1/4 to 3-inch 
holes in a gridlike fashion throughout the section footprint. Grid 
spacing will vary from 2 to 6 feet based on location and concrete 
thickness. An explosive charge would be placed in each hole, wired to 
the detonator and covered. Each hole would contain 1/2 to 1 pound (lb) 
of explosive (no more than 1 lb of explosive would be used for each 
hole). Additionally, no more than 1 lb of explosives would be detonated 
within an 8 millisecond (ms) time period.
    On average, there would be one blasting event per day. Each blast 
is expected to last no more than 6 seconds. Between 50 and 75 blasting 
events are estimated for each demolition phase. The duration for 
mechanical means of demolition of concrete, reinforcing steel and pile, 
and salvaging is anticipated to be 720 hours (six 10-hour days for 3 
months) for Phase 1 and 840 hours (six 10-hour days for 3.5 months) for 
Phase 2. Therefore, using 75 blasts for six-second durations, each 
phase of demolition would include up to 450 seconds (7.5 minutes) of 
blasting over a 3 to 3.5 month period of time (Phase 1 and Phase 2, 
respectively).
    Noise generated at the immediate blast source during dock 
demolition activities is anticipated to be no greater than 110 dBA in 
air. This sound level is based upon the estimated charge size and 
configuration discussed above. The impulse sound is expected to 
dissipate rapidly from the source and all noise generated from blasting 
activities will conform to the City of Anchorage Noise Control 
Ordinance (see Appendix B in Demolition Plan). The Anchorage Noise 
Control Ordinance allows 100, 10, and 1 impulses (blast events) to 
sound limits of 125, 135, and 145 dBA, respectively, during a 24-hour 
period. Section 6.2.2 of the demolition plan discusses the anticipated 
work durations.
    As standard blasting contractor practice, prior to the commencement 
of blast demolition, a controlled test blast will be performed on a 
portion (approximately 1/8) of the first section to verify the blast 
design and to monitor ground vibration, air overpressure, and water 
overpressure. Three hydrophones would be used to measure water 
overpressures outside of the dike structure and three geophones would 
be used to measure air overpressure along the mainland. Data obtained 
from the test blast will be extrapolated to model a full section blast. 
If data from the test blast indicate a potential for noncompliance, the 
blast design would be modified and a new test blast would be performed. 
Data will also be collected during each section blast to verify 
conformance with all applicable sound and air overpressure requirements 
and to determine if demolition activities require modification. All 
blasting activities

[[Page 18498]]

would follow the procedures of an approved blasting plan, the 
applicable marine mammal harassment mitigation requirements, and the 
requirements of a health and safety plan outlining the specific 
requirements for notifying proper authorities, proper signage and 
safety equipment to be used, personal protective equipment, aircraft, 
vehicle and pedestrian control, and pre-blast communication. If any 
marine mammals are sighted within the area of the POA, blasting would 
be suspended (see Mitigation section); therefore, no marine mammals 
would be harassed from blasting.
    After a portion of the concrete deck is fully removed from the 
steel support piles, an excavator with a bucket and thumb or shear 
attachment would break or cut and remove the piles to a point at least 
10 feet below the design finish grade in the area of the existing dock. 
The removed portion of each pile would be salvaged for recycling and 
the remaining portion would be left in place and encapsulated in fill. 
For safety reasons, blasting would not occur at the same time as the 
mechanical salvaging or pile driving work.

Out-of-Water Demolition by Mechanical Means Only- Option 3

    Option 3 is similar to Option 2, except that blasting would not be 
a means used for demolition. Option 3 is comprised of two phases: (1) 
construct a dike around the existing dock in the summer; and (2) 
demolish the dock in the winter. Total demolition activities for Phase 
1 and Phase 2 would be anticipated to continue for the same time as 
Option 1 (i.e., 960 and 1,320 hours, respectively). Dike construction 
for Option 3 would follow the same process described in Option 2 above. 
All mechanical activities (e.g., chipping) would be done out-of-water 
with a 300 ft. land barrier between the dock and the water; therefore, 
this method of dock demolition is not likely to release noise into the 
marine environment above NMFS harassment threshold levels.

Other Activities

    The following activities are not expected to harass marine mammals 
as explained later in this document (see Effects to Marine Mammals 
section) but are part of the MTRP. Public comments received during the 
30-day Federal Register comment period for the 2008 IHA and the notice 
of receipt of application for LOAs addressed these activities and 
therefore they are described here.
Dredging
    In-water construction dredging is performed within the footprint of 
the OCSP structure prior to pile driving to remove soft sediments and 
provide a sound foundation for the steel retaining structure and fill. 
In some areas, additional construction dredging may be completed as 
needed to improve conditions for pile driving associated with 
installation of OCSP. Dredged materials will be transported 
approximately 3,000 ft offshore to the authorized disposal site 
currently used by USACE for harbor maintenance dredging. Dredged areas 
will be filled with clean granular fill using a barge or land-based 
methods within approximately seven days of dredging to prevent in-fill 
of the dredged areas with soft sediments. Construction dredge equipment 
will typically be standard-size, barge mounted, clamshell or hydraulic 
dipper dredge, with tugboat support for maneuvering and placement, and 
another barge and tugboat to transport dredged material to the disposal 
site. Alternative equipment may include a cutter-head hopper dredge. In 
2006, NMFS determined that dredging associated with the MTRP did not 
warrant an incidental take authorization provided the POA/MARAD follow 
certain operational procedures.
    Harbor dredging for ship navigation and channel maintenance located 
outside the construction footprint is completed by separate federal 
action (by USACE). The USACE Alaska District is authorized by Congress 
with federal oversight to maintain navigable conditions and continuous 
ship access to the POA at a nominal depth of -35 Mean Lower Low Water 
(MLLW) (35 ft below elevation zero); harbor maintenance dredging occurs 
regularly during the ice free season on a daily basis. USACE has also 
been authorized by Congress to widen the harbor area during POA 
construction to coincide with interim ship movements, to accommodate 
navigation at added berths, and deepen the harbor to -45 MLLW to 
accommodate larger vessels with deeper drafts. The estimated number of 
construction dredging hours, days and amount of cubic yards (cy) moved 
per year can be found in Section 2 of the application. USACE harbor 
maintenance dredging, transitional dredging, and harbor deepening are 
separate federal actions and are not part of this rulemaking; however, 
NMFS did address this federal action as part of its effects analysis 
under the NEPA.
Placement of Fill Material
    Approximately 9.5 million cy of suitably engineered and clean 
granular fill and common fill material would be placed behind vertical 
steel or rock-retaining features. The POA and MARAD, in cooperation 
with the adjacent Eglin Air Force Base (EAFB), would continue to use 
only certified clean government-furnished fill material from two borrow 
sites on EAFB. Some fill material may also be obtained from existing 
commercial sources as needed. Fill extraction, transport, off-loading, 
and final placement activities will be monitored and inspected to 
verify proper adherence to detailed specifications and permit 
requirements. Fill material is screened to ensure compliance with 
stringent specifications for grain size and samples are laboratory 
tested to ensure all material placed is contaminant-free and certified 
as fully suitable for the intended purpose. Fill extraction and 
transport operations will be ongoing throughout the five-year 
construction period.
    Common fill is placed in de-watered conditions where and when 
possible. Off-road trucks and bulldozers will deposit and spread the 
fill material up to and behind the OCSP face wall. Some fill may be 
imported from other sources, transported over water, and placed in-
water at the MTRP site by dump scows (barges capable of discharging 
fill material through the bottom of the vessel). Following placement of 
fill, a land-based vibratory probe, constructed from an H-pile, and a 
vibratory pile driving hammer will be used to densify deep soils. The 
probe is driven into the fill at evenly spaced locations to vibrate and 
consolidate deep fill. Fill material placed above elevation +30 ft will 
be compacted in layers while being placed using conventional sheepsfoot 
or vibratory compaction equipment. Compaction and consolidation 
equipment will be used intermittently. Large armor rock is placed in 
some areas for permanent erosion control. Liner rock will be placed on 
the temporary slopes exposed to tide and wave action at the end of 
interim construction phases for erosion protection. As with dredging, 
in 2006, NMFS determined that fill compaction and rock placement would 
not result in harassment to marine mammals if certain operational 
procedures were met; therefore, an incidental take authorization was 
not warranted.
Action Area
    Cook Inlet is a large tidal estuary that flows into the Gulf of 
Alaska, is roughly 20,000 km2, has 1,350 km of coastline

[[Page 18499]]

(Rugh et al. 2000), and is generally divided into upper and lower 
regions by the East and West Forelands. Cook Inlet is comprised of 
large expanses of glacial flour deposits and extensive tidal mudflats 
and has an average depth of approximately 100 m. NMFS' Final Cook Inlet 
Beluga Whale Subsistence Harvest Supplemental Environmental Impact 
Statement (SEIS) provides a detailed description of Cook Inlet's 
climate, geology, water quality, and physical properties and is 
incorporated herein by reference. In summary, Cook Inlet is a 
seismically active region susceptible to earthquakes with magnitudes 
6.0 to 8.8; has some of the highest tides in North America, which are 
the driving force of surface circulation; and contains substantial 
quantities of mineral resources, including coal, oil, and natural gas. 
During winter months, sea, beach, and river ice are dominant physical 
forces within Cook Inlet. In upper Cook Inlet, sea ice generally forms 
in October to November, developing through February or March.
    Northern Cook Inlet bifurcates into Knik Arm to the north and 
Turnagain Arm to the east. Knik Arm is generally considered to begin at 
Point Woronzof, 7.4 km southwest of the POA. From Point Woronzof, Knik 
Arm extends more than 48 km in a north-northeasterly direction to the 
mouths of the Matanuska and Knik Rivers. Over 90 percent of Knik Arm 
remains undeveloped and where development is prevalent, it is 
relatively confined to the lower portion of Knik Arm. The primary 
concern for development, as stated in the NMFS 2008 Conservation Plan 
for the Cook Inlet Beluga Whale (Delphinapterus leucas) (herein after 
``Conservation Plan''), is that it may restrict passage of beluga 
whales along Knik Arm to important feeding areas. The MTRP footprint is 
restricted to the eastern side of Knik Arm with the new dock extending 
approximately 400 m seaward of the current dock.
    Point MacKenzie, is located on the west side of Knik Arm 
approximately 6.7 km from the POA. At Cairn Point, located just north 
of the POA, Knik Arm narrows to about 2.4 km before widening to as much 
as 8 km at the tidal flats northwest of Eagle Bay at the mouth of Eagle 
River. Cairn Point is the selected marine mammal monitoring site for an 
independent observer team to monitor marine mammals during the MTRP due 
to its elevation above construction activities and uninterrupted 
northern and southern view of Knik Arm. This monitoring station is 
located on EAFB; a long-term access agreement is in place with the 
military authorizing the station.
    Knik Arm consists of narrow channels flanked by large shallow tidal 
flats composed of sand, mud, or gravel, making it a poor acoustic 
environment (i.e., sound does not propagate far). Tides are 
semidiurnal, with two unequal high and low tides per tidal day (tidal 
day = 24 hours 50 minutes). Because of Knik Arm's predominantly shallow 
depths and narrow widths, tides near Anchorage are greater than in the 
main body of Cook Inlet. The tides at Anchorage can range about 40 ft, 
with an extreme observed high water of +34.6 ft and an extreme observed 
low water of -6.4 ft MLLW (NOAA 2008). Beluga whale movement is 
strongly correlated with the tides. Maximum current speeds in Knik Arm, 
observed during spring ebb tide, exceed 7 knots (12 ft/second), some of 
the fastest in the world.
    Approximately 60 percent of Knik Arm is exposed at MLLW. The 
intertidal areas of Knik Arm are mudflats, both vegetated and 
unvegetated, which primarily consist of fine, silt-size glacial flour. 
Freshwater sources often are glacially born waters, which carry high-
suspended sediment loads, as well as a variety of metals such as zinc, 
barium, mercury, and cadmium. Surface waters in Cook Inlet typically 
carry high silt and sediment loads, particularly during summer, making 
Knik Arm an extremely silty, turbid waterbody with low visibility 
through the water column. The Matanuska and Knik Rivers contribute the 
majority of fresh water and suspended sediment into the Knik Arm during 
summer months. Smaller rivers and creeks also enter along the sides of 
Knik Arm. Ship Creek, stocked with salmon twice each summer, serves as 
an important recreational fishing resource. Ship Creek flows into Knik 
Arm through the Anchorage industrial area; the mouth is approximately 
0.6 km south of the southern end of the MTRP footprint and abuts the 
Flint Hills railroad area where a sheet pile wall currently exists.
    There are prevalent, shallow intertidal and subtidal habitats 
directly surrounding the POA. Habitat surveys completed to date 
indicate that the area immediately around the POA supports a wide 
diversity of marine and anadromous fish species and provides migration, 
rearing, and foraging habitat. Recent surveys indicate that shallow 
waters along the tidal flats of Knik Arm are used by all five species 
of Pacific salmon, saffron cod, and a variety of prey species such as 
eulachon and longfin smelt (Pentec, 2004a, 2004b, 2005a, 2005b; 
Moulton, 1997). Many of these species are prone to recreational and 
commercial sport fishing and serve as prey for larger fish and marine 
mammals.
    Essential Fish Habitat (EFH) is located within the action area. EFH 
means those waters and substrate necessary to fish for spawning, 
breeding, feeding, or growth to maturity. The NMFS and the North 
Pacific Fishery Management Council identified EFH in upper Cook Inlet 
for anadromous Pacific salmon; however, no salmon species that would be 
adversely affected by the MTRP are listed under the ESA. Designated EFH 
present in the vicinity of the POA is for both juvenile and adult life 
stages of Pacific cod, walleye pollock, sculpins, and eulachon (also 
called hooligan and candlefish). In addition, all streams, lakes, 
ponds, wetlands, and other water bodies that currently support or 
historically supported anadromous fish species (e.g., salmon) are 
considered freshwater EFH. Marine EFH for salmon fisheries in Alaska 
include all estuarine and marine areas utilized by Pacific salmon of 
Alaska origin, extending from the influence of tidewater and tidally 
submerged habitats to the limits of the U.S. Exclusion Economic Zone 
(EEZ). Details of EFH and the life stage of these species can be found 
in at http://www.fakr.noaa.gov/habitat/efh.htm. The NMFS AKR Habitat 
Conservation Division provided numerous conservation mitigation 
recommendations during the USACE's permit scoping process authorizing 
MTRP construction activities. In addition, as required by the USACE 
permit, NMFS will be involved with all habitat related compensatory 
restoration and conservation projects (see Impacts to Habitat section).

Acoustic Environment

    Sound dissipates more rapidly in shallow waters and over soft 
bottoms (sand and mud). Much of upper Cook Inlet is characterized by 
its shallow depth and sand/mud bottoms, thereby making it a poor 
acoustic environment. Strong currents and winds in Knik Arm elevate 
ambient sound level compared to other portions of Cook Inlet. The 
development of Anchorage, an industrialized area, further increases 
background levels near the POA from commercial and recreation vessels, 
commercial, recreational and military air traffic, and airborne noise 
related to urbanized areas. For purposes of this document, all sound 
levels in this notice are provided as root mean square (rms) values and 
referenced to 1 microPa, unless otherwise noted.
    Underwater acoustical studies conducted in Knik Arm reveal that the 
area around the POA is a noisy

[[Page 18500]]

environment, with average ambient sound levels near or above 120 dB 
(Blackwell and Greene 2002; Blackwell 2005; URS 2007; Science Fishery 
Systems 2009). Tides and wind are the most influential in creating high 
ambient levels, with vessel and air traffic further increasing 
underwater sound levels. The lower range of broadband (10 to 10,000 
Hertz [Hz]) background sound levels, in the absence of pile driving, 
obtained during underwater measurements at Port MacKenzie, ranged from 
115 dB to 133 dB (Blackwell 2005). Background sound levels in the 
absence of pile driving measured during the 2007 acoustic study at the 
MTRP site resulted in most sound pressure levels (SPLs) exceeding 120 
dB with a maximum of 135 dB (URS 2007). Finally, a number of background 
noise recordings (n=25) were made during the 2008 acoustic study at the 
POA. Measurements ranged from 120 to 150 dB with a mean of 124 dB 
(Scientific Fisheries Systems, 2009). These measurements were not 
devoid of industrial sounds from maritime operations or on-going USACE 
maintenance dredging but pile driving from construction was not 
underway at the time of the study. Background levels were highest 
during the rising tide and during strong winds, especially when high 
winds generated breaking waves. Scientific Fisheries Systems (2009) 
recorded many instances of high background noise levels when wind 
speeds were at or above 3m/sec. Based on these data, noise levels 
around the POA are consistently near or above 120 dB with variability 
strongly correlated to wind and tide.
Marine Mammals Affected by the MTRP
    Marine mammals potentially affected by the MTRP are thoroughly 
described in the proposed and final Federal Register notices for the 
2008 IHA (73 FR 14443, March 18, 2007 and 73 FR 41318, July 15, 2008, 
respectively) and NMFS' 2008 EA. In summary, Cook Inlet is utilized by 
several species of marine mammals; however, most of these are confined 
to the lower Inlet and would not be affected by the MTRP. In Knik Arm, 
the Cook Inlet beluga whale is by far the most abundant marine mammal, 
especially during the non-winter months. Harbor seals, harbor porpoise, 
and killer whales are also found in the Inlet but they do not display a 
regular presence in Knik Arm. While Steller's sea lions (Eumetopias 
jubatus) are present in lower Cook Inlet, sightings in upper Cook Inlet 
are rare and there has never been a sighting reported in Knik Arm. 
Since 1999, only 4 Steller's sea lions have been reported in upper Cook 
Inlet. Two Steller's sea lions were sighted at the mouth of the Susitna 
River in 1999 and two adults were near the same locating in 2005 (B. 
Mahoney, pers. comm, June 20, 2008). Therefore, Steller's sea lions are 
not anticipated to be affected by the MTRP and will not be considered 
further. If, by chance, a marine mammal not authorized to be harassed 
is seen around the construction area, shut down would be required so as 
to avoid unlawful take.

Beluga Whales

Status and Abundance

    Beluga whales are circumpolar in distribution and occur in 
seasonally ice-covered arctic and subarctic waters. Beluga whales occur 
in marine waters around most of Alaska, except the Southeast panhandle 
region and the Aleutian Islands. This species comprises five distinct 
stocks: Beaufort Sea, eastern Chukchi Sea, eastern Bering Sea, Bristol 
Bay, and Cook Inlet (Hill and DeMaster, 1998). Of these, the Cook Inlet 
stock is the only stock that would be affected by the MTRP. This stock 
is considered to be the most isolated, based on the degree of genetic 
differentiation between it and the four other stocks (O=Corry-Crowe et 
al., 1997), suggesting the Alaska Peninsula may be an effective barrier 
to genetic exchange (Hobbs et al., 2006). Also supporting this find, is 
the lack of observations of beluga whales along the southern side of 
the Alaska Peninsula (Laidre et al., 2000). Murray and Fay (1979) 
postulated that this stock has been isolated for several thousand 
years, an idea which has since been corroborated by genetic data 
(O=Corry-Crowe et al., 1997).
    The Cook Inlet beluga whale population has declined significantly 
over the years. Historical data suggest this population once numbered 
around 1,300 (Calkins 1989). NMFS systematic aerial surveys documented 
a decline in abundance of nearly 50 percent between 1994 (653 whales) 
and 2008 (375 whales). Aerial annual abundance surveys conducted each 
June/July from 1999 to 2008 have resulted in abundance estimates of 
367, 435, 386, 313, 357, 366, 278, 302, 375, and 375 whales for each 
year, respectively (Hobbs et al., 2000; Rugh et. al., 2005; NMFS, 
unpubl. data). These estimates result in an overall decline of the 
population of 1.5 percent from 1999 to 2008 (note: 1999 was the first 
year beluga harvest was regulated).
    The Cook Inlet beluga whale was proposed for listing as endangered 
under the ESA on April 20, 2007 (72 FR 19854). On October 22, 2008, 
NMFS issued a final rule listing this population as endangered under 
the ESA (73 FR 69219). This listing status became effective on December 
22, 2008. Other major documents NMFS has recently produced on this 
species include the Conservation Plan and the Final Subsistence Harvest 
SEIS referenced earlier in this document. These documents can be found 
at http://www.fakr.noaa.gov/protectedresources/whales/beluga.htm.

Distribution

    Beluga whales generally occur in shallow, coastal waters, and while 
some populations make long seasonal migrations, Cook Inlet beluga 
whales reside in Cook Inlet year round. Data from satellite tagged 
whales documented that beluga whales concentrate in the upper Inlet at 
rivers and bays in the summer and fall, with a tendency to disperse 
offshore and move to mid-Inlet waters in the winter. Local knowledge 
and other historical evidence show that prior to the 1990s belugas were 
regularly seen in central and lower Cook Inlet waters, both nearshore 
and offshore (Calkins, 1983; Huntington 2000; Rugh et al., 2000). 
However, since the mid 1990s, distribution during the summer is 
confined to the upper Inlet with no sightings in the mid and lower 
Inlet. This constriction is likely a function of a reduced population 
seeking the highest quality habitat that offers the most abundant prey, 
most favorable feeding topography, the best calving areas, and the best 
protection from killer whale predation.
    From April through November whales concentrate at river mouths and 
tidal flat areas, moving in and out with the tides (Rugh et al., 2000). 
In Knik Arm, beluga whales generally are observed arriving in May and 
often use the area all summer, feeding on the various salmon runs and 
moving with the tides. There is more intensive use of Knik Arm in 
August and through the fall, coinciding with the coho run. During high 
tides, beluga whales are generally concentrated around prime feeding 
habitats (also known as ``hotspots'') in the upper reaches of the Arm, 
an area unaffected by the MTRP. They often retreat to the lower portion 
of Knik Arm during low tides gathering in Eagle Bay and elsewhere on 
the east side of Knik Arm (approximately 15 miles north of Anchorage) 
and sometimes in Goose Bay on the west side of Knik Arm (across from 
Eagle Bay). Beluga whales will often travel between these two areas 
(upper reaches of the Arm and the Bays) with the tide daily for a 
season

[[Page 18501]]

before traveling farther south past Anchorage and out of Knik Arm.
    Prey availability likely has the strongest influence on the 
distribution and relative abundance of beluga whales in Cook Inlet 
(Moore et al., 2000). There is repeated use of several areas of the 
upper Inlet for summer and fall feeding by beluga whales. The primary 
``hotspots'' for beluga feeding areas include the Big and Little 
Susitna Rivers, Eagle Bay to Eklutna River, Ivan Slough, Theodore 
River, Lewis River, and Chickaloon River and Bay. Only one hotspot, 
Eagle Bay to Eklutna River, is located in Knik Arm approximately 15 
miles north of the POA. Many of these areas are also popular fishing 
locations for humans. Beluga whales exhibit high site fidelity and may 
persist in an area with fluctuating fish runs or may tolerate certain 
levels of disturbance from boats or other anthropogenic activities in 
order to feed.

Feeding

    Beluga whales are opportunistic feeders known to prey on a wide 
variety of animals. They eat octopus, squid, crabs, shrimp, clams, 
mussels, snails, sandworms, and fish such as capelin, cod, herring, 
smelt, flounder, sole, sculpin, lamprey, lingcod and salmon (Perez 
1990; Haley 1986; Klinkhart 1966). Natives also report that Cook Inlet 
beluga whales feed on freshwater fish: trout, whitefish, northern pike, 
and grayling (Huntington, 2000), and tomcod during the spring (Fay et 
al., 1984). While beluga whales feed on a variety of prey, they focus 
on specific species when they are seasonally abundant. Increased 
foraging success results in a thick blubber layer that provides both 
energy and thermal protection. Native hunters in Cook Inlet report that 
beluga whale blubber is thinner in early spring than later in the 
summer. This suggests that their spring feeding in upper Cook Inlet, 
principally on fat-rich fish such as eulachon and salmon, is very 
important to the energetics of these animals. According to the 
Conservation Plan, Knik Arm is an important feeding area for beluga 
whales during much of the summer and fall, especially upper Knik Arm. 
Whales ascend to upper Knik Arm on the flooding tide, feed on salmon, 
then fall back with the outgoing tide to hold in water off and north of 
the Port of Anchorage.
    From late spring and throughout summer most beluga stomachs sampled 
contained Pacific salmon corresponding to the timing of fish runs in 
the area. Anadromous smolt and adult fish concentrate at river mouths 
and adjacent intertidal mudflats (Calkins 1989). Five Pacific salmon 
species: Chinook, pink, coho, sockeye, and chum spawn in rivers 
throughout Cook Inlet (Moulton 1997; Moore et al. 2000). Calkins (1989) 
recovered 13 salmon tags in the stomach of an adult beluga found dead 
in Turnagain Arm. Beluga hunters in Cook Inlet reported one whale 
having 19 adult Chinook salmon in its stomach (Huntington 2000). 
Salmon, overall, represent the highest percent frequency of occurrence 
of the prey species in Cook Inlet beluga stomachs. This suggests that 
their spring feeding in upper Cook Inlet, principally on fat-rich fish 
such as salmon and eulachon, is very important to the energetics of 
these animals.
    In the fall, as anadromous fish runs begin to decline, beluga 
whales return to consume fish species found in nearshore bays and 
estuaries (e.g., cod and bottom fish). Bottom fish include Pacific 
staghorn sculpin, starry flounder, and yellowfin sole. Stomach samples 
from Cook Inlet belugas are not available for winter months (December 
through March), although dive data from belugas tagged with satellite 
transmitters suggest whales feed in deeper waters during winter (Hobbs 
et al. 2005), possibly on such prey species as flatfish, cod, sculpin, 
and pollock.

Hearing

    Beluga whales are characterized as mid-frequency odontocetes but 
are able to hear an unusually wide range of frequencies, covering most 
natural and man-made sounds. The hearing frequency range of this 
species is believed to be between 40 Hz-150 kHz with keen hearing at 
10-100 kHz. Above 100 kHz, sensitivity drops off rapidly (Au, 1993) and 
below 16 kHz the decrease in sensitivity is more gradual at 
approximately 10 dB per octave (White et al., 1978; Awbrey et al., 
1988). Awbrey (1988) measured the low-frequency (i.e., octave intervals 
between 125 Hz and 8 kHz) underwater hearing sensitivity of three 
captive beluga whales in a quiet pool. At 8 kHz, the average hearing 
threshold of the three animals was 65 dB. Below 8 kHz, sensitivity 
decreased at approximately 11 dB per octave. At 125 Hz, the average 
hearing threshold was 120.6 dB (i.e., the received level had to be 
120.6 dB in order for the whale to hear the 125 Hz sound). Average MTRP 
construction related noises range between 0.1 and 15 kHz (see Table 6-2 
in application).

Habitat Classification

    NMFS has characterized beluga whale habitats into three categories, 
Type I-III, based on use and biological importance as part of its 
conservation strategy in the Conservation Plan. This habitat 
designation has been slightly modified from the 2006 Draft Conservation 
Plan, which described four habitat type designations, and is described 
in the 2008 EA. Type I habitat encompasses all of Cook Inlet northeast 
of a line three miles southwest of the Beluga River across to Pt. 
Possession. These areas are full of shallow tidal flats, river mouths 
or estuarine areas, and are important foraging, calving and/or nursery 
habitats. These areas are also important for other biological needs, 
such as molting or predator avoidance. Type I habitat hosts a 
concentrated population of beluga whales from spring to fall. The POA 
and the city of Anchorage are encompassed within the southern boundary 
of Type I habitat. Type II habitat includes areas of less concentrated 
spring and summer use, but known fall and winter use. This habitat is 
based on dispersed fall and winter feeding and transit areas in waters 
where whales typically occur in smaller densities or deeper waters. 
Type III habitat encompasses the remaining portion of Cook Inlet where 
belugas are infrequently observed, and areas which are not identified 
as Type I or II.
    Knik Arm, including the action area, fall into the Type I 
classification habitat; however, dedicated marine mammal monitoring 
survey reports and opportunistic sightings indicate that whales are 
using this lower portion of Knik Arm primarily as a passageway to 
discrete prime feeding area in the upper reaches of Knik Arm, with only 
opportunistic feeding observed. The primary ``hotspots'' for beluga 
whale feeding areas, as identified in the Conservation Plan, include 
the Big and Little Susitna Rivers, Eagle Bay to Eklutna River, Ivan 
Slough, Theodore River, Lewis River, and Chickaloon River and Bay. Of 
these, only one, Eagle Bay to Eklutna River, lie north of the POA. 
Beluga whales exhibit high site fidelity and may persist in an area 
with fluctuating fish runs or may tolerate certain levels of 
disturbance from boats or other anthropogenic activities in order to 
feed.

Harbor Seals

    Harbor seals are not listed as ``depleted'' under the MMPA or 
listed as ``threatened'' or ``endangered'' under the Endangered Species 
Act. They are important upper-trophic marine predators that occupy a 
broad range in Alaska from approximately 130[deg] W. to 172[deg] E. 
(over 3,500 km east to west) and from 61[deg] N. to 51[deg] N. (over 
1,000 km north to south). Currently, harbor seals in Alaska are divided 
into three stocks: Bering Sea, GOA, and Southeast Alaska.

[[Page 18502]]

While new genetic information has lead to a reassessment of this 
delineation, this has not been finalized. Harbor seals which could be 
affected by the MTRP belong to the GOA stock. Based on aerial GOA and 
Aleutian Islands surveys, in 1996 and 1999 respectively, the current 
abundance estimate for this stock is 45,975 (CV = 0.04) with a minimum 
population estimate of 44,453 (Angliss and Outlaw, 2006). Sources of 
anthropogenic caused mortality for this stock include interactions with 
fishing gear (mean annual mortality is approximately 24 animals), 
subsistence hunting (mean annual harvest from 2000-2004 equals 795), 
and, to a lesser degree, illegal intentional killing.
    Harbor seals haul out on rocks, reefs, beaches, and drifting 
glacial ice, and feed in marine, estuarine, and occasionally fresh 
waters (Fisher, 1952; Bigg, 1969, 1981). In Alaska, commonly eaten prey 
include walleye, pollock, Pacific cod, capelin, eulachon, Pacific 
herring, salmon, octopus, and squid. They are generally non-migratory, 
with local movements associated with such factors as tides, weather, 
season, food availability, and reproduction; however, some long-
distance movements have been recorded from tagged animals with 
juveniles traveling farther than adults (Lowry et al., 2001).
    The major haul-out sites for harbor seals are located in Lower Cook 
Inlet with the closest haul-out site to the POA approximately 40 kms 
(25 miles) south along Chickaloon Bay in the southern portion of 
Turnagain Arm. However, harbor seals are occasionally observed in Knik 
Arm and in the vicinity of the POA, primarily near the mouth of Ship 
Creek (NMML 2004; Rugh et al. 2004a, 2004b; LGL Alaska Research 
Associates, Inc. [LGL] Unpublished Data). From 2004-2005, 22 harbor 
seal sightings were reported over a 13-month period comprising 14,000 
survey hours (LGL, unpubl data). From these surveys, it is estimated 
that harbor seals occur in a density of approximately 1.7 animals per 
month in Knik Arm. In 2008, only one harbor seal was sighted from July 
to November by dedicated NMFS approved marine mammal observers (MMOs).
    Pinniped hearing is dependent upon the medium (i.e., air or water) 
in which they receive the sound. Most pinniped species have essentially 
flat audiograms from 1 kHz to 30 50 kHz with thresholds between 60 and 
85 dB re 1 microPa (M hl, 1968; Kastak and Schusterman, 1995; review by 
Richardson et al., 1995; Terhune and Turnbull, 1995; Kastelein et al., 
2005;). At frequencies below 1 kHz, thresholds increase with decreasing 
frequency (Kastak and Schusterman, 1998). For example, for a harbor 
seal, the 100-Hz threshold for hearing was 96 dB re 1 microPa (Kastak 
and Schusterman, 1995). Harbor seals' hearing thresholds in-water and 
in-air display the significant disparities between hearing capabilities 
with hearing 25 30 dB better underwater than in air (Kastak and 
Schusterman, 1994).

Harbor Porpoise

    Harbor porpoises are not listed as ``depleted'' under the MMPA or 
listed as ``threatened'' or ``endangered'' under the Endangered Species 
Act. They are found within Cook Inlet but in low abundance, especially 
in Knik Arm. Currently, the population estimate for the Gulf of Alaska 
harbor porpoise stock is 41,854 with a minimum population estimate of 
34,740 (Angliss and Outlaw, 2006). However, density of this species in 
Cook Inlet is only 7.2 per 1000 square kilometers (Dahlheim et al., 
2000). The highest monthly count in upper Cook Inlet between April and 
October is 18 (Ramos et al., 2006). Interactions with fisheries and 
entanglement in gear is the prime anthropogenic cause of mortality for 
this stock (mean annual mortality of 67.8) (Angliss and Outlaw, 2006). 
Harbor porpoises are not killed for subsistence reasons.
    Harbor porpoises have a wide hearing range and the highest upper-
frequency limit of all odontocetes studied. They have a hearing range 
of 250 Hz-180 kHz with maximum sensitivity between 16-140 kHz. There is 
no available data on high frequency cetacean reactions to impulsive 
sounds (e.g., impact pile driving); however, numerous studies have been 
conducted in the field (Culik et al., 2001; Olesiuk et al., 2002; 
Johnston, 2002) and laboratory (Kastelein et al., 1995, 1997, 2000) for 
non-pulse sounds. The results of these studies demonstrate the harbor 
porpoise is quite sensitive to a wide range of human sounds at very low 
exposure levels: approximately 90- 120 dB re: 1 microPa. However, most 
of these studies involved acoustic harassment devices (e.g., pingers) 
in the range of 10 kHz which is 6-7 kHz greater than most industrial 
sounds, including pile driving.

Killer Whales

    Killer whales in the Gulf of Alaska are divided into two ecotypes: 
resident and transient. Killer whales are relatively common in lower 
Cook Inlet (at least 100 sightings from 1975 to 2002), but in the upper 
Inlet, north of Kalgin Island, sightings are infrequent; 18 sightings 
have been reported from 1976-2003 with an average of 1 per year since 
the mid 1990s (Sheldon et al. 2003). Transient killer whales, the only 
ecotype sighted in Knik Arm, likely belong to the Gulf of Alaska, 
Aleutian Islands, Bering Sea Transient Stock. This stock is not listed 
as depleted under the MMPA or threatened or endangered under the ESA. 
Based on the 2006 NMFS stock assessment reports, the minimum population 
estimate for the Gulf of Alaska, Aleutian Islands, and Bering Sea 
transient stock of killer whales is 314 animals based on the count of 
individuals using photo-identification. Based on the rarity of killer 
whale sightings in Knik Arm, NMFS is proposing to authorize up to 5 
take per year of this species.
    Killer whales are considered the only natural predator of Cook 
Inlet beluga whales. Most observed killer whale/beluga interactions 
have occurred in the upper Inlet; however, these events appear to be 
random and are not considered an influential factor on beluga whale 
distribution (Hobbs et al., 2006). A decrease in killer whale prey 
comprised of seals and sea lions in the Gulf of Alaska could result in 
more killer whales moving from the southern portion of the Inlet to the 
northern portion in search of beluga prey.
    The hearing of killer whales is well developed and this species 
exhibits complex underwater communication structure. They have hearing 
ranges of 0.05 to 100 kHz which is lower than many other odontocetes. 
Peak sensitivity is around 15 kHz. Interestingly, mammal-eating killer 
whales (i.e., transients) limit their vocal communication and often 
travel in silence. This is in contrast to the very vocal fish eating 
(i.e., resident) killer whale pods who are constantly vocalizing. The 
difference for this behavior is that fish do not possess the advanced 
hearing capabilities as the marine mammals, who can hear or eavesdrop 
on mammal eating killer whale calls and escape from being prey (Deecke 
et al. 2005).

Harassment Isopleth Calculations

    In recent years, investigations into the role anthropogenic noise 
plays on impacting marine mammals (both behaviorally and physically) 
have increased dramatically. NMFS is in the process of developing 
guidelines for determining thresholds for acoustic harassment based on 
the best available science. In the interim, NMFS generally considers 
180 and 190 dB as the level at which cetaceans and pinnipeds, 
respectively, could be subjected to Level A (injurious) harassment, and 
Level B (behavioral) harassment is considered to have occurred when 
marine mammals are exposed to pulsed sounds (e.g.,

[[Page 18503]]

impact pile driving) at or above 160 dB, but below injurious 
thresholds. For purposes of these proposed regulations, NMFS considers 
125 dB to be the level at which Level B harassment from non-pulsed 
sounds (e.g., vibratory pile driving, chipping) could occur. The shift 
to 125 dB from the threshold of 120 dB used for the 2008 IHA is based 
on overwhelming evidence that noise levels around the POA are 
consistently near or above 120 dB due to wind and currents (Blackwell, 
2005; URS, 2007; Scientific Fishery Systems, 2009), as described in the 
Acoustic Environment section of this document. In other words, a sound 
that is as loud as or below ambient/background levels is likely not 
discernable to marine mammals and therefore, is not likely to have the 
potential to harass a marine mammal.
    The POA/MARAD's LOA application used preliminary ``worst-case'' 
measurements from the acoustic study to determine harassment level 
isopleths. In January 2009, NMFS received a report detailing the 
findings from the 2008 acoustical survey and supplemental information 
in response to NMFS' questions on the report in February 2009. After 
review of these documents, NMFS determined that the Level B harasssment 
isopleths identified in the application are not appropriate because 
NMFS' harassment thresholds, as described above, are based on rms 
values while the application identified isopleth distances based on 
peak values measured during impact pile driving and did not consider 
all measurements made during vibratory pile driving.
    It is apparent that noise levels in lower Knik Arm around the POA 
are highly variable and strongly correlated with wind and tide. The 
2008 survey collected sounds measurements over 14 days with varying 
results, both during and in absence of pile driving. The acoustic data 
were presented to NMFS in the following manner: (1) based on empirical 
measurements made at various locations during various types of pile 
driving, source levels were estimated; (2) from these estimated source 
levels, distances to the 180/190, 160, and 125 dB isopleths were 
calculated assuming a transmission loss of 20 log; and (3) background 
levels (in absence of pile driving) were provided from 25 recordings.
    According to supplemental information provided by the POA/MARAD, 
the worst-case measured sound levels from impact pile driving was 
during face wall sheet pile installation. Sound levels measured 148 dB 
at 355m, which equals a source level of 200 dB (Table 2). Based on this 
source level and given a 20 log transmission loss, the 160 dB isopleth 
would be 97 m. However, due to variability between the 2007 study, 
which identified the 160 dB isopleth to be 350m, NMFS is proposing to 
maintain the 350m isopleth distance for impact pile driving as 
contained in the IHA as this is more conservative. For vibratory pile 
driving, NMFS considered the average estimated source level of 187 dB, 
as described in the 2008 acoustic report, to calulate the 125 dB 
isopleth at 1,300 m. This isopleth distance is augmented by Blackwell 
(2005) who found that pile driving sound levels at Port MacKenzie did 
not change significantly between the 1300 m (4265 feet) and 1900 m 
(6234 feet) stations, which suggests that beyond approximately 1300 m, 
background sounds contributed more to received levels than vibratory 
pile driving. According to the supplemental information provided by the 
POA/MARAD, the 2008 survey also found that at various distances from 1 
to 4 km, recording devices failed to pick up vibratory pile driving 
noise. Therefore, NFMS considers the 1,300 m Level B harassment 
isopleth for vibratory pile driving to be appropriate.

             Table 2--Level A and B Harassment Isopleth Distances Based on Final Acoustic Monitoring Data (Scientific Fishery Systems 2009)
                                   Summary of Acoustic Measurements and Estimated Source Levels and Isopleth Distances
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                       Calculated   Calculated   Calculated   Calculated
                                                            Worst-Case       Frequency    Calculated  Distance to  Distance to  Distance to  Distance to
                      Description                         Measured Level    Range (Hz)      Source     190 dB rms   180 dB rms   160 dB rms   125 dB rms
                                                             (dB rms)                       Level         (m)          (m)          (m)          (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sheet pile- face wall, average vibratory                             N/A      100-4000       187 dB          N/A         <10m          N/A      1,300 m
Sheet pile- face wall, impact (deep hydrophone)           148 dB at 355m   8000-10,000       200 dB          3.1          9.7           97          N/A
Sheet pile- face wall, impact (shallow hydrophone)          157dB at 78m       10-200;       195 dB          1.8          5.7           57          N/A
                                                                                 6,000
Sheet pile- tail wall, vibratory                           120dB at 107m       200-400       161 dB          N/A          N/A          1.1           60
Sheet pile- tail wall, impact                             139 dB at 268m   2,000-7,000       188 dB          N/A          2.4         23.8          N/A
Wye pile, vibratory                                        139dB at 149m   2,500-4,000       182 dB          N/A          1.3         13.2          747
Wye pile, impact                                           148dB at 155m   8,000-10,000      195 dB          1.7          5.4         54.1          N/A
Temporary pipe pile, vibratory                              144dB at 35m     200-4,500       175 dB          N/A          N/A          5.6          312
Hairpin, impact                                            143dB at 106m           Not       183 dB          N/A          1.4         14.2          N/A
                                                                             available
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 18504]]

Take Calculations

    As discussed above, monitoring of marine mammal presence, behavior, 
group composition, etc., specifically for the MTRP began in 2005 and 
will continue 1-year post construction. Surveys purposely began 2 years 
before in-water work to estimate frequency at which beluga whales use 
the area around the POA and for what biological function (e.g., 
traveling, feeding, etc.) pre-disturbance. From 2005-2007, theodolite 
tracking and grid cell mapping were used to track whales. This system 
allowed documentation of whale group location and movements on a coarse 
scale (500 by 500 m grids) allowing the number of belugas present 
within the MTRP footprint, within a 1 x 6 km2 area around the POA 
(defined as the nearshore area), as well as within the entire visible 
area, to be calculated. A detailed description of those results can be 
found in the Federal Register documents prepared for issuance of the 
IHA and the associated EA. In summary, beluga whales were sighted 
during all months the MTRP will be conducting in-water activities 
(April-November) but most frequently in the nearshore area (i.e., the 
nearshore area had the highest density of whales when compared to other 
visible parts of the Arm), around low tide, and during the months of 
August and September, coinciding with salmon runs. These data augment 
those of the Hobbs et al. (2005) satellite tag study.
    To estimate the number of beluga whales taken by harassment level 
sounds from pile driving, the application uses the following parameters 
to calculate takes: (1) nearshore density data from the 2005-2007 POA 
surveys (Funk et al., 2005, Ramos et al., 2006, Cornick and Kendall 
2007); (2) estimated pile driving hours per year (for both impact and 
vibratory driving); (3) harassment isopleth distances based on 
preliminary results from the 2008 acoustic study; and (4) proposed 
mitigation requirements (e.g., no pile driving 2 hours either side of 
low tide). That is, the estimated number of beluga whales that could 
potentially be exposed to noise levels above the NMFS thresholds is 
calculated by multiplying the average nearshore density per month by 
the number of hours pile driving per month and then multiplied by the 
area of noise exposure. A low-tide correction factor was then applied 
as impact pile driving would take place during this time. The numbers 
of beluga whales were rounded up to the nearest whole number per month. 
The tables outlining number of beluga whales taken by year and type of 
pile driving can be found in Chapter 6 of the application.
    The area of noise exposure in km2 is calculated based upon the 
calculated harassment isopleth radii, as determined in the application, 
for each pile type and installation technique to the appropriate NMFS 
noise exposure threshold (160 dB for impact and 125 dB for vibratory 
pile driving). For simplification reasons, the calculated exposure area 
is equal to the area of a semi-circle (A = 3.14r2/2) radiating out from 
the pile location. However, this could be conservative as it assumes 
that noise from pile driving would radiate out spherically when, in 
fact, empirical measurements from the 2008 acoustic study indicate a 
directionality of noise propagation from pile driving (i.e., the 
loudest sound is straight out from the source, not up or down the Arm) 
(SFS, 2008).
    According to the application, the calculated number of beluga 
whales that could be exposed to noise from in-water vibratory pile 
driving for each month was determined from preliminary acoustic data 
and ranges from 4 to 22 in 2009; 3 to 13 in 2010; 2 to 14 in 2011; 3 to 
28 in 2012, 3 to 19 in 2013; and 1 to 3 in 2014. The total number for 
each year ranges from 10 in 2014 to 76 in 2012 (see Table 6.4 in 
application). In total, based on calculations in the application, 43 
whales (11.8%) - 78 whales (21.4%) per year could potentially be taken 
by pile driving operations assuming the population remains stable. 
However, the take estimates in the application are an overestimate from 
the actual number of whales that will actually be exposed to harassment 
level noise for the following reasons: (1) sound from pile driving is 
likely directional and not spherical; (2) the number of beluga whales 
potentially passing through the exposure area is based on the highest 
nearshore density but assumes density is distributed evenly throughout 
the entire area of noise exposure; (3) the POA/MARD have, and will 
likely continue, to implement shut down procedures even when not 
required by regulations; and (4) isopleth distances in the application 
were based on peak values (NMFS threshold levels are based on rms 
values) and did not consider all recordings; therefore, they are much 
larger than NMFS determined harassment (see Harassment Isopleth 
Calculations). Taking these factors into account, the POA/MARAD are 
requesting and NMFS is proposing, to authorize the harassment of up to 
34 beluga whales per year (9 percent), the current take level 
authorized in the 2008 IHA. Should the annual authorized take number be 
reached during the in-water work construction season, all pile driving 
and in-water chipping for demolition must be shut-down if a beluga 
whale is sighted approaching designated harassment or safety zones.
    Given that other marine mammals potentially affected by the POA's 
MTRP (i.e., harbor seals, harbor porpoise, and killer whales) are only 
sporadically sighted in lower Knik Arm, no calculated take estimates 
were derived. Based on scientific and anecdotal sighting data, NMFS is 
proposing to authorize the harassment of up to 20 harbor seals, 20 
harbor porpoises, and 5 killer whales per year. These takes represent 
essentially 0 percent of harbor seals and harbor porpoises as the 
population sizes of these affected stocks are 45,975 and 34,740, 
respectively. The taking of 5 killer whales represent 1.5% of the 
population of killer whales potentially found in upper Cook Inlet which 
has a stock size of 314 individuals. These proposed takes represent 
small numbers relative to the affected species and stocks.

Impacts to Marine Mammals

    In general, noise associated with coastal development has the 
potential to harass marine mammals present around the specific action 
area. Marine mammals use sound for vital life functions, and 
introducing sound into their environment could be disrupting to those 
behaviors. Sound (hearing and vocalization/echolocation) serves four 
main functions for odontocetes (toothed whales and dolphins). These 
include: (1) providing information about their environment; (2) 
communication; (3) enabling remote detection of prey; and (4) enabling 
detection of predators. Pinnipeds also use sound for these functions 
except they can not echolocate like odontocetes and therefore rely on 
sight and vibrassae for prey detection and information about their 
environment. The distances to which sounds are audible depend on source 
level and frequency, ambient noise levels, physical habitat 
characteristics (e.g., water temperature, depth, substrate type), and 
sensitivity of the receptor (Richardson et al., 1995). Impacts to 
marine mammals exposed to loud sounds include possible mortality 
(either directly from the noise or indirectly based on the reaction to 
the noise), injury and/or disturbance ranging from severe (e.g., 
permanent abandonment of vital habitat) to mild (e.g., startle). As 
stated, pile driving and in-water chipping (for demolition of the 
existing dock) could cause behavioral harassment; however, physical 
injury is not anticipated due to the nature of the

[[Page 18505]]

operations and mitigation measures (see Mitigation section). No Level A 
harassment (injury) or mortality is expected to occur.

Hearing Impairment and Other Physical Effects

    Temporary or permanent hearing impairment is a possibility when 
marine mammals are exposed to very loud sounds. As stated previously, 
NMFS considers the Level A in-water harassment threshold to be 180/190 
dB for cetaceans and pinnipeds, respectively. The threshold for Level B 
harassment from pulsed noise (e.g, impact pile driving) is 160 dB and, 
specific to the MTRP, 125 dB from non-pulsed noise (e.g., vibratory 
pile driving, chipping).
    Several aspects of the planned monitoring and mitigation measures 
for the MTRP are designed to detect marine mammals occurring near pile 
driving and demolition activities, and to avoid exposing them to sound 
that could potentially cause hearing impairment (e.g., mandatory shut 
down zones) and minimize disturbance (e.g., shut down if allocated 
takes used, for large groups and groups with calves). In addition, 
marine mammals will be given a chance to leave the area during ``soft 
start'' and ``ramp-up'' procedures to avoid exposure to full energy 
pile driving. In those cases, the avoidance responses of the animals 
themselves will reduce or eliminate any possibility of hearing 
impairment. Hearing impairment is measured in two forms: temporary 
threshold shift and permanent threshold shift.
    Permanent Threshold Shift (PTS)
    When permanent threshold shift (PTS) occurs, there is physical 
damage to the sound receptors in the ear. In some cases, there can be 
total or partial deafness, whereas in other cases, the animal has an 
impaired ability to hear sounds in specific frequency ranges. PTS 
consists of non-recoverable physical damage to the sound receptors in 
the ear and is therefore classified as Level A harassment (injury) 
under the MMPA. There are no empirical data for onset of PTS in any 
marine mammal; therefore, PTS-onset must be estimated from temporary 
threshold shifts (TTS)-onset measurements and from the rate of TTS 
growth with increasing exposure levels above the level eliciting TTS-
onset. PTS is presumed to be likely if the hearing threshold is reduced 
by 40 dB (i.e., 40 dB of TTS) (Southall et al., 2007). PTS has never 
been measured in marine mammals despite some hearing threshold studies 
exposing beluga whales to pulses up to 208 dB (Finneran et al., 2002), 
28 dB louder than NMFS' current Level A harassment threshold. Based on 
TTS studies (discussed below), proposed mitigation measures, and source 
levels for the MTRP, NMFS does not expect that marine mammals will be 
exposed to levels that could elicit PTS (i.e., no Level A harassment is 
anticipated).

Temporary Threshold Shift (TTS)

    Temporary (auditory) threshold shift (TTS) is a slight, recoverable 
loss of hearing sensitivity. TTS is the mildest form of hearing 
impairment that can occur during exposure to a loud sound (Kryter, 
1985). The course and time of recovery generally depend on the amount 
of exposure to noise and the amount of shift incurred (Natchigall et 
al., 2003). Generally, the greater the threshold shift, the longer the 
recovery period (Mills et al., 1979). Southall et al. (2007) considers 
a 6 dB TTS (i.e., baseline thresholds are elevated by 6 dB) sufficient 
to be recognized as an unequivocal deviation and thus a sufficient 
definition of TTS-onset. Auditory fatigue (i.e., TTS) in mid-frequency 
cetaceans has been measured after exposure to tones, impulsive sounds, 
and octave-band noise. Because it is non-injurious, NMFS considers TTS 
as Level B harassment that is mediated by physiological effects on the 
auditory system; however, NMFS does not consider onset TTS to be the 
lowest level at which Level B Harassment may occur.
    While experiencing TTS, the hearing threshold rises and a sound 
must be louder in order to be heard. TTS can last from minutes or hours 
to (in cases of strong TTS) days. For sound exposures at or somewhat 
above the TTS-onset threshold, hearing sensitivity recovers rapidly 
after exposure to the noise ends. Few data on sound levels and 
durations necessary to elicit mild TTS have been obtained for marine 
mammals. For toothed whales exposed to single short pulses, the TTS 
threshold appears to be, to a first approximation, a function of the 
energy content of the pulse (Finneran et al., 2002).
    Laboratory experiments investigating TTS onset for belugas have 
been conducted for both pulse and non-pulse sounds. Finneran et al. 
(2000) exposed a trained captive beluga whale to a single pulse from an 
explosion simulator. No TTS threshold shifts were observed at the 
highest received exposure levels (approximately 199 dB; 179 dB re 1 
microPa2-s [SEL]); however, amplitudes at frequencies below 1 kHz were 
not produced accurately to represent predictions for the explosions. 
Another study was done using seismic waterguns with a single acoustic 
pulse (Finneran et al., 2002). Measured TTS was 7 and 6 dB in the 
beluga at 0.4 and 30 kHz, respectively, after exposure to intense 
single pulses at approximately 208 dB (186 dB re 1 microPa2-s [SEL]). 
Schludt et al. (2000) demonstrated temporary shifts in masked hearing 
thresholds for belugas occurring generally between 192 and 201 dB (192-
201 dB re 1 microPa2-s [SEL]) after exposure to intense, non-pulse, 1-s 
tones at 3, 10, and 20 kHz. TTS onset occurred at mean sound exposure 
level of 195 dB (195 dB re 1 microPa2- s [SEL]). At 0.4 kHz, no 
subjects exhibited shifts after exposures up to SPLs of 193 dB (195 dB 
re 1 microPa2- s [SEL]). Natchigall et al. (2003) measured TTS 
averaging 11 dB when exposed to sounds with a 7.5 kHz center frequency. 
No shifts were obtained at 165 dB or 171 dB (198 to 200 re 1 microPa2-s 
[SEL]), but when a fatiguing noise at 179 dB was presented, the animal 
showed the first TTS of 10.4 dB above baseline. Full auditory recovery 
occurred within 45 minutes following noise exposure. To date, no 
studies relating TTS onset to pile driving sounds have been conducted 
for any cetacean species.
    Because noise from pile driving would not be a one-time exposure, 
as with most human development and exploration activities, a time 
component must be incorporated into any effects analysis. Experiments 
with marine mammals show a nearly linear relationship between sound 
exposure level and duration of exposure: the longer an animal is 
exposed, the lower the level required to produce TTS (Kastak & 
Schusterman, 1999; Schlundt et al., 2000; Nachtigall et al., 2003). 
Beluga whales could be exposed to vibratory pile driving noise lasting 
from less than 1 minute up to approximately 3 minutes or up to 20 
minutes for impact driving (averaging 1.5 minutes for vibratory and 6 
minutes for impact pile driving). The hammers must then be re-set 
creating, at a minimum, a 1-15 minute break. Using auditory evoked 
potentials (AEP) methods, Natchigall et al. (2004) repeated his 2003 
study and found TTS of approximately 4 to 8 dB following nearly 50 
minutes of exposure to the same frequency noise (center frequency 7.5 
kHz) at 160 dB (193-195 dB re 1 microPa2-s [SEL]). TTS recovery 
occurred within minutes or tens of minutes. Based on data from the 
aforementioned studies, the fact that pile driving would only occur for 
a short intervals of time, and animals would not be exposed to sound 
levels at or above 180 dB due to proposed mitigation, NMFS anticipates 
that TTS, if it does occur, would not last more

[[Page 18506]]

than a few minutes and would likely not result in impacts to vital life 
functions such as communication and foraging.

Demolition Effects

    Demolition of the existing dock will require use of mechanical 
equipment such as hydraulic chipping hammers (in-water or out-of-water) 
and possibly the use of explosives (out-of-water only). The POA/MARAD 
have submitted a demolition plan outlining three options, as described 
above, for dock removal and proposed mitigation for each (available on 
the NMFS Permits website). Because the chosen method will not be 
decided until 2010, all three options, with associated mitigation, are 
included in the proposed rulemaking.
    Mechanical means of removing the dock is a component in all three 
options. The POA/MARAD have indicated that if the in-water dock 
demolition method is chosen (Option 1), it will likely occur during the 
winter, when beluga whales are least abundant, or in summer, but not in 
both seasons. Information on noise levels associated with the use of 
chipping hammers is currently not available for the unique waters of 
Knik Arm; however, the chipping hammer operates at 19% less horsepower 
than the vibratory hammers used during pile driving. Therefore, it can 
be assumed that sound transmission from this activity is less than that 
of pile driving. In addition, because of the considerable structural 
mass of concrete that the vibrations would pass through prior to 
reaching the water, the energy is expected to attenuate to a minimal 
level. Due to the lack of empirical acoustic propagation data, the POA/
MARAD have requested, and NMFS is proposing, to implement the same 
harassment and safety radii as vibratory pile driving. Based on this 
precautionary approach, considering the chipping hammer works at 19 
percent reduced energy and the concrete will absorb some sound, NMFS 
has preliminarily determined that marine mammals would not be exposed 
to levels inducing Level A harassment and behavioral harassment would 
be minimized, if not eliminated, due to implementing a 200 m shut-down 
zone.
    Option 2 in the demolition plan involves blasting, albeit out-of-
water. Because no in-water blasting is proposed, applying NMFS' 
harassment threshold criteria for this activity is not appropriate. 
Instead, the POA/MARAD and NMFS have considered sound transmission 
through the water's surface from out-of-water detonations.
    Little information is available for over-water sound levels from 
explosives near shore (out-of-water); however, two studies conducted by 
the California Department of Transportation (Caltrans) have measured 
in-water sound transmission resulting from out-of-water blasting.
    In 2003, Caltrans collected measurements of underwater SPLs during 
out-of-water controlled blasting operations as part of the construction 
of bridge pier footings on Yerba Buena Island for the San Francisco 
Oakland Bay Bridge, East Span Seismic Safety Project (Caltrans, 2004). 
In-water SPLs were measured during out-of-water blasts for two 
different piers approximately, from the centerline, 80 m (262 ft) and 
30 m (98 ft) from the shoreline. Results varied at each pier for each 
blast; however, in general, SPLs measured at 10- 20 m ranged from 170 
to 183 dB (based on a 35 millisecond (msec) time constant) for the pier 
80 m from the shoreline and 177 to 198 dB [189 to 212 dB(peak)] for the 
pier 30 m from shore. It should be noted that rms SPLss reported using 
the 35-msec time constant was found to be 3-5 dB higher than ``true'' 
rms SPL measured over the duration of the impulse, which is about 1 to 
2 seconds in duration; therefore, the SPLs provided above should be 
considered conservative. Data from blasting events at both piers 
indicated that underwater SPLs appeared to increase as blasting was 
conducted at lower elevations; putting the blast closer to the water.
    Dewatered cofferdams represent the most effective way of reducing 
construction/ demolition created noise into the water column because 
all operations are completely decoupled from the surrounding water 
column. The POA/MARAD would create a dike which acts like a cofferdam 
as in the Caltrans project. The out-of-water blasting at the POA would 
occur 91m (300 ft) from shore and the blasts would be confined (unlike 
Caltrans); therefore, sound levels in water would likely be similar or 
less than the results from the Caltrans pier located 80m from the 
shoreline but likely not greater. Based on Caltran results, no Level A 
harassment is likely to occur and the POA/MARAD have agreed, as 
suggested by NMFS, to not conduct any blasting if any marine mammal, is 
within visible range of the POA. MMOs would begin scanning for marine 
mammals thirty minutes prior to detonation with high power binoculars 
and the naked eye. Should any marine mammal be sighted, blasting will 
be delayed. Therefore, NMFS anticipates no harassment from out-of-water 
blasting will occur.

Non-auditory Physiological Effects

    Non-auditory physiological effects or injuries that theoretically 
might occur in marine mammals exposed to strong underwater sound 
include stress, neurological effects, bubble formation, resonance 
effects, and other types of organ or tissue damage. Due to proposed 
mitigation measures (e.g., mandatory shut downs) marine mammals would 
not be exposed to sound at or above 180 dB and likely less than that as 
sound studies indicate the 180/190 dB threshold is approximately 0-20 m 
from pile driving and NMFS is proposing a 200m shut down zone. 
Therefore, it is not expected that severe physiological effects from 
exposure to sound would be expected; however, a hormonal stress 
response is possible. Romano et al. (2004) demonstrated that belugas 
exposed to seismic water gun and (or) single pure tones (SPLs up to 201 
dB) resembling sonar pings showed increased stress hormone levels of 
norepinephrine, epinephrine, and dopamine. While RLs would not be as 
strong as the ones in that study, a stress response would not be 
unexpected. Studies have also demonstrated that reactions of animals to 
sounds could result in physical injury. It has recently been reported 
that stranded deep diving marine mammals displayed physical attributes 
similar to the bends (e.g., in vivo gas bubble formation) (Ferndandez 
et al., 2005, 2006). Marine mammals may experience these symptoms if 
surfacing rapidly from deep dives in response to loud sounds. However, 
because Knik Arm is a shallow water estuary, marine mammals found there 
are not considered deep divers, and due to proposed mitigation 
measures, non-auditory physiological impacts, other than stress, are 
not expected.
    Several aspects of the planned monitoring and mitigation measures 
for the MTRP are designed to detect marine mammals occurring near pile 
driving and to avoid the chance of them being exposed to sound levels 
which could result in injury or mortality (see Mitigation section). 
NMFS does not expect Level A harassment to occur.

Behavioral Effects

    Behavioral responses of marine mammals to noise are highly variable 
and depend on a suite of internal and external factors which in turn 
results in varying degrees of significance (NRC, 2003; Southall et al., 
2007). Internal factors include: (1) individual hearing sensitivity, 
activity pattern, and motivational and behavioral state (e.g., feeding, 
traveling) at the time it recieves the stimulus; (2) past exposure of 
the

[[Page 18507]]

animal to the noise, which may lead to habituation or sensitization; 
(3) individual noise tolerance; and (4) demographic factors such as 
age, sex, and presence of dependent offspring. External factors 
include: (1) non-acoustic characteristics of the sound source (e.g., if 
it is moving or stationary); (2) environmental variables (e.g., 
substrate) which influence sound transmission; and (3) habitat 
characteristics and location (e.g., open ocean vs. confined area). The 
marine mammal species or stock that could be most affected from the 
MTRP is the beluga whale. There are no consistent observed threshold 
levels at which beluga whales, and marine mammals in general, respond 
to an introduced sound. Beluga whale responses to sound stimuli have 
been noted to be highly dependent upon behavioral state and motivation 
to remain or leave an area. Few field studies involving stationary 
industrial sounds have been conducted on beluga whales. Reactions of 
belugas in those studies varied. For example, in Awbrey and Stewart 
(1983) (as summarized in Southall et al., 2007), recordings of noise 
from SEDCO 708 drilling platform (non-pulse) were projected underwater 
at a source level of 163 dB. Beluga whales less than 1.5 km from the 
source usually reacted to onset of the noise by swimming away (RLs 
approximately 115.4 dB). In two instances groups of whales that were at 
least 3.5 km from the noise source when playback started continued to 
approach (RLs approximately 109.8 dB). One group approached within 300 
m (RLs approximately 125.8 dB) before all or part turned back. The 
other group submerged and passed within 15m of the projector (RL 
approximately 145.3 dB). Richardson et al. (1990), as summarized in 
Southall et al., 2007, played back drilling platform sounds (source 
level: 163 dB) while approximately 100 belugas were in the area of 
several hundred to meters to several hundred kilometers. No obvious 
reactions were noted; however, moderate changes in behavior from three 
groups swimming within 200 m of the sound projector were observed.
    TTS experiments have also documented behavioral responses by 
trained belugas. These responses included reluctance to return to 
experimental stations when exposed to watergun pulse sounds projected 
4.5m from the subject at approximately 185.3 dB (171 dB re 1 microPa2-s 
[SEL]) (Finneran et al., 2002) and behavioral changes when exposed to 
sounds from the explosion simulator at approximately 200 dB (177 dB re 
1 microPa2-s [SEL]) (Finneran et al., 2000). In a non-pulse exposure 
experiment (i.e., 1 s tones), belugas displayed altered behavior when 
exposed to 180 196 dB (180-196 dB re 1 microPa2-s [SEL]) (Schlundt et 
al., 2000).
    Masking of whale calls or other sounds potentially relevant to 
whale vital functions may occur. Southall et al. (2007) defines 
auditory masking as the partial or complete reduction in the audibility 
of signals due to the presence of interfering noise with the degree of 
masking depending on the spectral, temporal, and spatial relationships 
between signals and masking noise as well as the respective received 
levels. Masking occurs when the background noise is elevated to a level 
which reduces an animal's ability to detect relevant sounds. Belugas 
are known to increase their levels of vocalization as a function of 
background noise by increasing call repetition and amplitude, shift to 
higher frequencies, and change structure of call content (Lesage et 
al., 1999; Scheifele et al., 2005; McIwem, 2006). Another adaptive 
method to combat masking was demonstrated in a beluga whale which 
reflected its sonar signal off the water surface to ensonify to an 
object on which it was trained to echolocate (Au et al., 1987). Due to 
the low frequencies of construction noise, intermittent nature of pile 
driving, and the ability of belugas to adapt vocally to increased 
background noise, it is anticipated that masking, and therefore 
interruption of behaviors such as feeding and communication, will be 
minimized.
    Many marine mammals, including beluga whales, perform vital 
functions (e.g., feeding, resting, traveling, socializing) on a diel 
(i.e., 24 hr) cycle. Repeated or sustained disruption of these 
functions is more likely to have a demonstrable impact than a single 
exposure (Southall et al., 2007). However, it is possible that marine 
mammals exposed to repetitious construction sounds from the proposed 
construction activities will become habituated and tolerant after 
initial exposure to these sounds, as demonstrated by beluga vessel 
tolerance (Richardson et al., 1995, Blackwell and Green, 2002). 
Habituation is found to be common in marine mammals faced with 
introduced sounds into their environment. For example, bowhead whales 
(Balaena mysticetus) have continued to use pathways where drilling 
ships are working (RLs: 131 dB) so that they can continue their 
eastward migration (Richardson et al., 1991). In addition, harbor 
porpoise, dolphins, and seals have become habituated to acoustic 
harassment deterrent devices such as pingers and ``seal bombs'' after 
repeated exposure (Mate and Harvey, 1987; Cox et al., 2001).
    The monitoring program implemented by the POA/MARAD, with guidance 
and approval from NMFS, is designed to determine acute behavioral 
reactions of marine mammals in response to MTRP activities as well as 
implement shut down mitigation measures. To do this, marine mammal 
observers (MMOs) are stationed at the Port of Anchorage near pile 
driving operations to make observations and call to hammer operators of 
presence of marine mammals and if shut down is required. From July to 
November 2008, MMOs were on site all days in-water pile driving 
occurred (6-7 days per week). Reports indicate that 431 beluga whales 
(231 adults, 101 juveniles, 43 calves, 56 unknown age) and 1 harbor 
seal were sighted by MMOs stationed at the POA from July- November 
2008. Of the 431 whales sighted, 267 entered into the harassment or 
safety zone; however, pile driving was not always taking place due to 
either non-mandatory, early shut-down or in-water pile driving not 
being conducted. This trend of using the east side of Knik Arm is 
consistent with marine mammal survey reports from 2005-2007. The POA/
MARAD have consistently shut down operations if whales were sighted 
within or approaching the POA; therefore, only 8 beluga whales have 
entered into the designated harassment zones when pile driving was 
actually occurring. Traveling was the most common behavior detected 
followed by possibly feeding and resting/milling, also augmenting data 
collected from 2005-2007.
    Out of 59 group sightings totaling 431 beluga whales, only 3 groups 
demonstrated an observed change in behavior. On all 3 occasions, the 
group split in two due to presence of a barge or a boat. Beluga whales 
were not observed to change swim speeds and while heading sometime did 
change, this could not be attributed directly to pile driving.
     In addition to the goals above, the monitoring plan is designed to 
determine how this multi-year project is affecting beluga whale 
abundance and habitat use in this area in the long term. In accordance 
with conditions in the current IHA and the POA/MARAD's USACE 404(b) 
Permit, an independent MMO team is located atop Cairn Point and reports 
on (1) the frequency at which beluga whales are present in the MTRP 
footprint; (2) habitat use, behavior, direction of travel, and group 
composition; and (3) observed reactions or changes in behavior of 
marine

[[Page 18508]]

mammals in response to in-water activities occurring at the time of 
sighting. This team is present eight hours per day/four days per week, 
during two tide cycles per observation day and will continue through 
the MTRP and 1-year post construction. Marine mammal monitoring around 
the POA began in 2004 for the Knik Arm Crossing Project and continued 
into 2005 through the present for the MTRP. This scientific monitoring 
program will continue until 1-yr post completion of the new POA 
terminal. To investigate possible impacts other than acute behavioral 
changes, data from the 2008 monitoring reports gathered by the 
scientific monitoring team were averaged with the total whales sighted 
per hour from 2004-2006 for August and September and 2004-2007 for 
October and November. For all months, except October, the average 
number of whales sighted per hour was higher when the 2008 data were 
added. While the October average in 2008 was higher than 2005 and 2006, 
it was not higher than 2004 and 2007. Overall sighting rate by .09 
whales/hour when compared to those two years. Additionally, the 
monitoring reports from MMOs on-site (i.e., those that implement 
mitigation shut-down procedures) consistently reported that whales did 
not change behavior when pile driving was occurring. Whales were often 
reported to be swimming at slow or normal speeds and behaviors were 
categorized, from the most common, as traveling, suspected feeding, or 
milling. The final monitoring report summarizing sightings from both 
MMOs stationed at the POA and the independent observer team at Cairn 
Point from July to November can be found on the NMFS Permits website 
(see ADDRESSES).
    There were no available data on beluga whale responses to pile 
driving before in-water pile driving began for the MTRP; therefore, 
NMFS used the best available science which investigated similar sounds 
involving mid frequency cetaceans to assess potential impacts to beluga 
whales when exposed to pile driving during its impacts analysis for 
issuance of the IHA in 2008. In general, scientific literature suggests 
the following reactions are the most common in such cases: altered 
headings, increased swimming rates, changes in dive, surfacing, 
respiration, and feeding patterns, and changes in vocalizations. NMFS 
acknowledges these reactions are possible; however, also notes that, to 
date, all monitoring reports show no apparent behavioral reaction of 
Cook Inlet beluga whales to pile driving. There could be a number of 
reasons for this, including, but not limited to: (1) Cook Inlet beluga 
whales have demonstrated a tolerance to commercial vessel traffic and 
industrialization around the POA and therefore, may simply be 
habituated to such noise; (2) Cook Inlet is a naturally noisy 
environment due to strong winds and tides; (3) pile driving is 
intermittent in nature and a stationary source which may alleviate 
stress and reactions; and (4) the mitigation measures set by NMFS and 
implemented by the POA/MARAD are appropriate and effective to minimize 
harassment. The POA/MARAD are currently undertaking a study to 
investigate the vocal repertoire of beluga whales in response to pile 
driving as changes in vocalization patterns can not be determined from 
sighting data. Opportunistic sightings reports (often reported by tug/
vessel crew, POA workers, and the public) and those from MMOs under the 
current IHA describe accounts of beluga whales vocalizing around tugs/
barges as it resonates through the hulls, swimming near and around 
ships, and feeding around working vessels/newly filled land. While 
animals will be exposed to greater than background noise levels from 
pile driving, background sound levels in Knik Arm are already higher 
than most other marine and estuarine systems due to strong currents and 
eddies, recreational vessel traffic, and commercial shipping traffic 
entering and leaving the POA (Blackwell and Greene, 2002; Scientific 
Fishery Systems, 2008). Again, to date, all monitoring reports indicate 
no change in frequency, habitat use, or behavior of whales exposed to 
pile driving activities.
    As in the 2008 IHA, NMFS is proposing to implement the following 
mitigation measure into regulations to ensure that exposure to pile 
driving does not result in decreased reproductive success or 
survivorship: shut down if a beluga whale calf or group with a calf is 
sighted approaching or within the harassment isopleths. Scientific 
literature suggests that mammal calves are believed to be more 
susceptible to anthropogenic stressors (e.g., noise) than adults. 
Frankel and Clark (1998) investigated the relative importance of 
natural factors such as demographic composition of humpback whale pods 
in response to low frequency (75Hz with a 30Hz bandwidth) M-sequenced 
source signal transmitted from a 4-element hydrophone array (elements 
were placed at depths of 10, 20, 40, and 80m). They determined that two 
natural variables, the number of adults in a pod and the presence of a 
calf, had the greatest effect upon whale behavior in response to 
playbacks. Pods with calves had higher blow rates, longer times at the 
surface, and a higher ratio of time at the surface to time submerged. 
The presence of a calf; however, did not affect whale speed, whale 
bearings, or relative orientation to the playback vessel. While no data 
on the vocal responses of beluga whales mother/calf pairs in response 
to anthropogenic sound are available, Van Parijs and Corkeron (2001) 
determined that Indo-Pacific humpback dolphin mother/calf pairs 
increased vocal behaviors when vessel passed with 1.5 m more than 
groups without calves. The authors concluded that mother/calf pairs 
appear to be more disturbed than animals of other social/age classes 
and that mother/calf pairs exhibit an increased need to establish vocal 
contact after such disturbance. McIwem (2006) suggested that pile 
driving operations should be avoided when bottlenose dolphins are 
calving as lactating females and young calves are likely to be 
particularly vulnerable to such sound. Based on these studies, NMFS has 
determined that the aforementioned mitigation measure will further 
ensure a negligible impact on beluga whales.There is no evidence to 
suggest that construction or other maritime activities (shipping, 
maintenance dredging) at the POA are affecting beluga whale use as 
evidenced by their relatively consistent seasonal abundance, use 
patterns, including the presence of calves in the area since 2004 (Funk 
et al., 2005; Ramos et al. 2006; Markowitz and McGuire, 2007; Cornick 
and Kendall, 2008; Cornick and Saxon-Kendall, 2009; ICRC, 2009). 
Monitoring reports indicate that beluga whales are primarily transiting 
through the POA area while opportunistically foraging, and POA/MARAD 
construction activities are not blocking this transit or displacing 
belugas from Knik Arm. Furthermore, NMFS does not anticipate that more 
serious effects (e.g., neurological effects, organ/tissue damage) would 
occur. Proposed mitigation measures would require shut down if a marine 
mammal is seen approaching within 200m of the pile driver or chipping 
hammer. Given that the 180 and 190 dB isopleths are within 20m, NMFS 
considers this shut down zone more than adequate to eliminate chance of 
physiological impairments. In addition, there is no evidence of 
injuries occurring in marine mammals exposed to sound from pile driving 
and there have been no direct studies of the potential for pile driving 
to elicit any of those effects. Therefore, no Level A

[[Page 18509]]

harassment (injury) is expected nor would any be authorized. For these 
and the other reasons listed above, the MTRP is expected to have a 
negligible impact on Cook Inlet beluga whales.

Impacts to Other Marine Mammals

    Harbor seals, harbor porpoise, and killer whales could also 
potentially be impacted from the MTRP; however, these species rarely 
occur in upper Cook Inlet, hence exposure to harassment level sounds 
from the MTRP would be minimal and therefore have a negligible impact. 
If present, hauled out harbor seals may flush into the water from in-
air noise, disturbing their resting and warming behaviors. In addition, 
some may be displaced or alter dive patterns if in water during pile 
driving. However, reactions may be minimized by the fact that seals in 
the area haul out in the presence of other anthropengic noise (e.g., 
aircraft/shipping/vehicular traffic, crane operations, etc.) and are 
likely habituated to noise around the POA. Blackwell et al., 2004 
investigated disturbance to hauled-out ringed seals during pile driving 
at Northstar Island. Unweighted peak and rms SPLs and SELs in air were 
112 dB re 20 mPa2-s and 96 dB re 20 mPa2-s, and 90 dB re 20 mPa2-s, 
respectively. During 55 hrs of observation, 23 observed seals exhibited 
little or no reaction to any industrial noise except approaching Bell 
212 helicopters. Ringed seals swam in open water near the island 
throughout construction activities and as close as 46 m from the pipe-
driving operation. It is hypothesized that the seals around Northstar 
Island were habituated to industrial sounds.
    Harbor porpoise and killer whale behavioral reactions would likely 
be similar to those discussed in published literature (e.g., change in 
direction, diving behavior, etc.). Harbor porpoises have specialized 
hearing in higher frequency ranges outside of most industrial sounds; 
therefore, noise in lower frequency ranges must be louder in order to 
be heard. However, while construction will emit low frequency sounds 
outside of harbor porpoise peak sensitivity range, these animals have 
elicited behavioral responses to simulated wind turbine noise, also 
outside peak sensitivity range (max. Energy between 30-800 Hz; spectral 
density source levels of 128 dB at 80 and 160Hz) (Koschinski et al., 
2003). During this study, animals were sighted at greater ranges during 
playbacks of simulated wind turbine noise and observed animals more 
frequently used echolocation signals. NMFS has determined that similar 
reactions may occur; however, due to the low abundance and rare 
occurrence of harbor porpoise and killer whales in Knik Arm and the 
intermittent nature of pile driving, any impacts from noise on their 
behavior is expected to be minimal and therefore negligible.

Impacts to Fish and Marine Mammal Habitat

    The primary beluga whale habitat related concern for coastal 
development (not specific to the POA), as stated in the Conservation 
Plan, is restricting beluga whale passage along Knik Arm. The new dock 
face will extend approximately 400 ft from the current dock. No 
structures will be constructed which expand across the Arm or beyond 
the new dock location; therefore, it is not expected that beluga 
whales' access to the primary hotspots will be limited. To date, NMFS 
approved observers have reported that beluga whales continue to use 
areas within the MTRP footprint and are not behaviorally reacting to 
exposure to pile driving noise. Additionally, habitat use has remained 
unchanged. Pre-MTRP construction, marine mammal surveys along Knik Arm 
and pre in-water pile driving surveys report that traveling followed by 
opportunistic feeding were the primary beluga whale behaviors around 
the POA. Reports required under the 2008 IHA show the same trend in 
whale behavior. In addition, NMFS researchers observed beluga whales 
feeding off the newly filled North Backlands area further indicating 
that POA/MARAD expansion construction is not eliminating foraging 
opportunities. Based on these data and the fact MMOs are not observing 
acute behavioral reactions to pile driving, NMFS anticipates that 
beluga whales would not alter their behavior in a way that prevents 
them from entering and/or transiting throughout Knik Arm.
    The primary aquatic habitat resource losses associated with the 
MTRP are the loss and degradation of intertidal and nearshore habitat, 
including essential fish habitat (EFH). Loss of habitat will adversely 
affect fish since the area to be filled is a nursery area, and placing 
fill in waters where fish are present can kill, injure, and isolate 
fish in the discharge area. Beluga whales' diet is primarily comprised 
of fish, therefore, this habitat loss could result in impacts to beluga 
whales. Fish habitats, including EFH, in upper Cook Inlet have not been 
studied comprehensively, but the studies completed to date indicate 
that the area immediately around the MTRP supports a wide diversity of 
marine and anadromous fish species, in particular providing migrating, 
rearing, and foraging habitat (Houghton et al., 2005). Intertidal and 
nearshore subtidal waters are used by juvenile and adult salmonids for 
refuge from the strong currents, as a migration corridor for adult 
salmonids, and as rearing and migratory habitat for several streams 
that drain into Knik Arm. Therefore, the elimination of this habitat 
and alteration of hydrology would adversely impact fish, especially 
juveniles and smolt taking refuge in the area to be filled; however, 
based on the following reasons, these changes are not likely to 
appreciably reduce prey availability to marine mammals, particularly 
beluga whales.
    The project area is located approximately 2000 feet (609.4 m) north 
of the mouth of Ship Creek, a stocked creek, and the proposed action 
would remove most of the remaining intertidal and shallow subtidal 
waters north of the mouth to Cairn Point. If a decrease in fish 
abundance occurs to a certain degree, this could likely result in 
decreased foraging opportunities for belugas and increased beluga 
energy expenditure to find prey. However, juvenile chinook salmon 
sampled between Cairn Point and Point Woronzof were primarily of Ship 
Creek hatchery origin. Juvenile salmonids are reared at the hatchery 
for two years prior to release at the smolt stage. Smolts released from 
the hatchery are ready for out migration and it is believed that the 
smolts reside in the Ship Creek area for a limited period before 
migrating elsewhere in the Knik Arm and/or Cook Inlet estuaries. 
Because this creek is stocked, fish would be replenished from the 
hatchery. Furthermore, the area directly surrounding the Port is not 
considered a foraging hotspot, unlike the upper reaches of Knik Arm.
    Further, design of the sheet pile wall may provide some refuge for 
fish which could enhance survival. The face of each sheet-pile cell is 
curved outward, creating a scalloped surface. Fender pile and fender-
system structural components would protrude from the face of the sheet 
pile approximately eight feet, which would provide some limited fish 
refuge. In addition, the Port is evaluating various methods for 
constructing joint systems between OCSP cells that would provide open 
water areas along the face of the dock by leaving a space between the 
construction joints in the sheet pile wall. These breaks in the sheet 
pile wall profile would create alcoves with armor rock slopes of 
varying sizes and shapes that would provide refuge opportunities for 
salmonids. To offset direct habitat loss and degradation, the Port is 
required to carry out certain mitigation

[[Page 18510]]

procedures as condition in the Army Corps of Engineers' Permit No. POA-
2003-502-N. For all construction seasons, including 2008, these 
include, but are not limited to: (1) no in water fill placement or pile 
driving activities shall occur within a one week period following smolt 
releases from the Ship Creek hatchery; (2) fill material shall consist 
of clean fill, free of unsuitable material (e.g., trash, debris, 
asphalt, etc.), and free of toxic pollutants; and (3) the Municipality 
of Anchorage, in collaboration with the Corps, would execute 
compensatory mitigation projects that will contribute toward offsetting 
the functional losses attributed to the Project. These projects would 
support salmon populations through restoration, enhancement, creation 
and/or preservation (listed in order of priority) of existing nearby 
estuarine and associated lower riparian habitats.
    Public comments received on two Federal Register documents related 
to the MTRP- the proposed IHA issuance notice and notification of 
receipt for rulemaking/LOAs-identified concerns over other habitat 
related issues (i.e., pollution and increased dredging needs). NMFS 
analyzed these issues during its ``negligible impact'' determination 
decision process for the POA/MARAD's current IHA and the 2008 EA. This 
analysis is further supplemented here.
    The Conservation Plan identifies pollution and dredging in relation 
to health and subsistence use of beluga whales. Exposure to pollution 
is a concern for many species which inhabit anthropogenically 
influenced areas. Pollutants may enter Cook Inlet via wastewater, 
runoff, and accidental petroleum and other product spills. The city of 
Anchorage and lower Knik Arm is the most highly industialized area of 
Cook Inlet; however, pollution levels in beluga whales are lower than 
those in other populations of beluga whales. As summarized in the 
Conservation Plan, beluga whale tissue samples have been analyzed for 
polychlorinated bipheny (PCBs), chlorinated pesticides (such as DDT), 
and heavy metals. PCBs and DDT may impair marine mammal health and 
reproductive abilities. Cook Inlet beluga whales had much lower 
concentrations of PCBs and DDT than Saint Lawrence river beluga whales 
and about 1/2 the concentration of those pollutants than other Arctic 
Alaska populations. Also examined were concentrations of various 
substances stored in the liver. Cadmium and mercury were lower in the 
Cook Inlet population than in the Arctic Alaska populations, while 
levels of methylmercury were similar to other Arctic Alaska 
populations. Copper levels were two to three times higher in the Cook 
Inlet animals than in the Arctic Alaska animals and similar to the 
Hudson Bay animals; however, the copper levels found in the livers of 
Cook Inlet belugas were not high enough to be a health issue (Becker et 
al., 2000).
    As a result of POA expansion, dredging needs are altered from the 
current nominal depth of -35 ft MLLW to -45 ft MLLW and therefore NMFS 
has analyzed the potential for impact to marine mammals from this 
change in dredging needs in addition to POA/MARAD operated construction 
dredging. The Conservation Plan states that direct chemical analysis of 
dredging sediments found that compounds such as pesticides, PCBs, and 
petroleum hydrocarbons in Cook Inlet were well below detection limits 
while levels of arsenic, barium, chromium, and lead were well below 
management levels. Other compounds such as cadmium, mercury, and silver 
were not detected at all. In addition, hydrological models indicate 
that, overall, the POA expansion appears to have less potential for 
sedimentation than the existing port since the MTRP moves the dock face 
out into deeper water and into a higher flow regime area (Erbesole and 
Raad, 2004) leading to a possible decrease in dredging needs.
    The POA/MARAD continue to operate under applicable federal, state, 
and local environmental laws and is conducting the port expansion 
process in the same manner. The POA/MARAD have obtained a USACE 404/10 
Permit (August 2005/2007), Alaska Department of Environmental 
Conservation/ Division of Water Quality Section 104 Permit (July 21, 
2006), and Alaska Department of Natural Resources/Coastal Management 
Program Final Consistency Concurrence (July 7, 2006). These permits and 
concurrences were issued pertaining to water quality and other natural 
resources. In particular, the USACE permit contains numerous mitigation 
measures related to preventing and minimizing impact to wetlands and 
aquatic and aviary organisms from general development activities such 
as discharge, fill, and gravel extraction as well as establishes 
requirements to compensate for resources losses important to the human 
and aquatic environment. Many of these mitigation measures and 
conditions were suggested by NMFS, the EPA, US. Fish and Wildlife 
Service and other environmental agencies early in the MTRP's 
developmental stage.

Impacts to Subsistence Hunting

    The subsistence beluga harvest transcends the nutritional and 
economic value of the whale and is an integral part of the cultural 
identity of the region's Alaska Native communities. Inedible parts of 
the whale provide Native artisans with materials for cultural 
handicrafts, and the hunting itself perpetuates Native traditions by 
transmitting traditional skills and knowledge to younger generations 
(NOAA 2007). However, due to dramatic decreases in Cook Inlet beluga 
whale populations, on May 21, 1999, a temporary moratorium on beluga 
whale harvest was set in place in 1999 (Public Law No. 106-31, section 
3022, 113 Statute [Stat.] 57, 100) from such date until October 1, 
2000. This moratorium was extended indefinitely on December 21, 2000 
(Public Law No. 106-553, section 1(a) (2), 114 Stat. 2762). NMFS has 
entered into a co-management agreement for beluga whale subsistence 
harvest. No hunt has been conducted since 2005 and on October 15, 2008, 
NMFS published final regulations establishing long-term limits on the 
maximum number of Cook Inlet beluga whales that may be taken by Alaska 
Natives for subsistence and handicraft purposes (73 FR 60976). These 
rules effectively state that no harvest will be conducted until 2012, 
at which time the possibility of a harvest will be re-evaluated based 
on beluga whale population trends.
    NMFS anticipates that any harassment to marine mammals, including 
Cook Inlet beluga whales, would be short-term and be limited to changes 
in behavior and mild stress responses. NMFS does not anticipate that 
the authorized taking of affected species or stocks will result in 
changes in reproduction, survival, or longevity rates, impact 
population levels, or result in changes in distribution. Therefore, 
NMFS has preliminarily determined that the proposed regulations will 
not have an unmitigable adverse impact on the availability of marine 
mammal stocks for subsistence uses.

Mitigation

    A goal of the Conservation Plan is to mitigate effects of 
anthropogenic activities, including noise and habitat degradation. The 
POA/MARAD's USACE permit contains numerous mitigation measures to 
reduce impacts on natural resources. MMPA authorizations also mitigate 
for impacts to marine mammals and habitat, mainly in the form of noise 
and exposure mitigation. Noise mitigation has been considered to 
safeguard marine

[[Page 18511]]

mammals and may fulfill two tasks: First, to avoid physical damage and 
death to marine animals; second, to avoid or reduce disturbance to 
marine animals and maintain the significance of an impact area for 
marine animals (Nehls et al., 2007). Mitigation measures in the current 
IHA would be in effect for regulations; however, the harassment zone 
for vibratory pile driving would extend to the 125 dB isopleth instead 
of the 120 dB isopleth. This small change is justified by the acoustic 
studies which reports that background levels in Knik Arm around the POA 
are consistently above 120d B and, even in absence of pile driving, it 
was difficult to obtain measurements at 120 dB across the Arm (see 
Acoustic Environment).
    NMFS recommended numerous mitigation measures during the scoping 
process for issuance of the POA/MARAD's USACE permit. These conditions 
were incorporated into that permit. During the 2008 IHA application 
process, NMFS Permits Division added further conditions requiring pile 
driving shut down if beluga whale calves were sighted or if groups 
comprising 5 or more whales were sighted to minimize harassment 
potential and ensure that the MTRP would have a negligible impact on 
Cook Inlet beluga whales. NMFS requires monthly monitoring reports to 
ensure that pile driving activities are not resulting in behavioral 
reactions beyond those anticipated and requires reports from the 
scientific monitoring team atop Cairn Point to monitor for long term 
impact. These mitigation, monitoring, and reporting requirements 
support NMFS' negligible impact determination. For regulations, the 
proposed mitigation measures are as follows:

Scheduling of Construction Activities During Low Use Period of Beluga 
Whales Around the POA-Tidal Restrictions

    Tides have been shown to be an important physical characteristic in 
determining beluga movement within Knik Arm. Most beluga whales are 
expected to be foraging well north of the POA during the flood and high 
tide. However, these northern areas are exposed during the ebb and low 
tide; therefore, animals move south toward Eagle Bay and sometimes as 
far south as the Knik Arm entrance to avoid being stranded on mudflats. 
Based on the beluga whale monitoring studies conducted at the POA since 
2005, beluga whale sightings often varied significantly with tide 
height at and around the POA (Funk et al., 2005, Ramos et al., 2005, 
Markowitz and McGuire, 2007). Beluga whales were most often sighted 
during the period around low tide and, as the tide flooded, they 
typically moved into the upper reaches of the Arm. Opportunistic 
sighting data also support that highest beluga whale use near the POA 
is around low tide (NMFS, unpubl. data).
    Due to this tidally influenced habitat use, impact pile driving, 
excluding work when the entire pile is out of the water due to 
shoreline elevation or tidal stage, shall not occur within two hours of 
either side of each low tide (i.e., from two hours before low tide 
until two hours after low tide). For example, if low tide is at 1 p.m., 
impact pile driving will not occur from 11 a.m. to 3 p.m. Vibratory 
pile driving will be allowed to commence/continue during this time 
because its characteristics (non-pulse sound type and lower source 
level) are expected to elicit less overt behavioral reactions.

Establishment of pile driving safety zones and shut-down requirements

    NMFS acknowledges that shut-down of reduced energy vibratory pile 
driving during the ``stabbing'' phase of sheet pile installation may 
not be practicable due to concerns the sheet pile may break free and 
result in a safety and navigational hazard. Therefore, the following 
shut-down requirements apply to all pile driving except during the 
``stabbing'' phase of the installation process.

Safety Zones

    In 2008, the POA/MARAD contracted an outside company to determine 
reliable estimates of distances for 190 (pinniped Level A (injury) 
threshold), 180 (cetacean Level A threshold), 160 (impact pile driving 
Level B harassment threshold) and 125 dB (vibratory pile driving Level 
B harassment threshold) isopleths. Based on NMFS' analysis of the 
acoustic data, it has been determined that these isopleth distances are 
10; 20; 350; and 1,300 m, respectively. Although the 190 and 180 dB 
isopleths are within 20m for both types of pile driving, NMFS is 
establishing a conservative 200m mandatory shut-down safety zone which 
would require the POA/MARAD to shut-down anytime a marine mammal enters 
this zone.

Shut-Down for Large Groups

    To reduce the chance of the POA/MARAD reaching or exceeding 
authorized take and to minimize harassment to beluga whales, if a group 
of more than five beluga whales is sighted within the relevant Level B 
harassment isopleth, shut-down is required.

Shut-down for Calves

    Marine mammal calves could be more susceptible to loud 
anthropogenic noise than juveniles or adults; therefore, presence of 
calves within any harassment isopleth will require shut-down. If a calf 
is sighted approaching or within any harassment zone, any type of pile 
driving will cease and not be resumed until the calf is confirmed to be 
out of the harassment zone and on a path away from such zone. If a calf 
or the group with a calf is not re-sighted within 15 minutes, pile 
driving may resume.

Heavy machinery shut-downs

    For other in-water heavy machinery operations other than pile 
driving, if a marine mammal comes within 50 m of operations, they will 
cease and vessels will slow to a reduced speed while still maintaining 
control of the vessel and safe working conditions. Such operations 
include port operated dredges, water based dump-scows (barges capable 
of discharging material through the bottom), standard barges, tug boats 
to position and move barges, barge mounted hydraulic excavators or 
clamshell equipment used to place or remove material.

In-water pile driving and chipping weather delays

    Adequate visibility is essential to beluga whale monitoring and 
determining take numbers. In-water pile driving will not occur when 
weather conditions restrict clear, visible detection of all waters 
within the Level B harassment zones or 200 m safety zone. Such 
conditions that can impair sightability and require in-water pile 
driving delays include, but are not limited to, fog and a rough sea 
state.

Exceedence of Take

    If maximum authorized take is reached or exceeded for the year for 
any marine mammal species, any marine mammal entering into the Level B 
harassment isopleths will trigger mandatory shut-down.

Use of Impact Pile Driving

    In-water piles will be driven with a vibratory hammer to the 
maximum extent possible (i.e., until a desired depth is achieved or to 
refusal) prior to using an impact hammer.

Soft Start to Pile Driving Activities

    A ``soft start'' technique will be used at the beginning of each 
pile installation to allow any marine mammal that may be in the 
immediate area to leave before pile driving reaches full energy. The 
soft start requires contractors to initiate

[[Page 18512]]

noise from vibratory hammers for 15 seconds at reduced energy followed 
by 1-minute waiting period. The procedure will be repeated two 
additional times. If an impact hammer is used, contractors will be 
required to provide an initial set of three strikes from the impact 
hammer at 40 percent energy, followed by a one minute waiting period, 
then two subsequent 3 strike sets (NMFS, 2003). If any marine mammal is 
sighted within the 200 m safety zone prior to pile-driving, or during 
the soft start, the hammer operator (or other authorized individual) 
will delay pile-driving until the animal has moved outside the 200 m 
safety zone. Furthermore, if any marine mammal is sighted within or 
approaching a Level B harassment zone prior to beginning pile driving, 
operations will be delayed until the animals move outside the zone in 
order to minimize harassment. Pile-driving will resume only after a 
qualified observer determines that the marine mammal has moved outside 
the 200m safety or Level B harassment zone, or after 15 minutes have 
elapsed since the last sighting of the marine mammal within the safety 
zone.

Demolition Mitigation

    Table 7-1 in the Demolition Plan outlines all mitigation measures 
for each proposed option as described in the Specified Activities 
section of this document. Should chipping in-water be the chosen method 
for demolition (i.e., Option 1), the POA/MARAD will abide by the safety 
and harassment radii established for vibratory pile driving, despite 
the chipping hammer working at 19 percent reduced energy than that of a 
vibratory hammer. Therefore, NMFS considers this harassment and safety 
zone to be conservative. Other mitigation including poor weather 
delays, large group shut-downs, calf shut-downs will also be 
implemented for in-water chipping. Marine mammal observers will begin 
searching for animals 30 minutes prior to the start of all in-water 
chipping operations.
    If Option 2 is chosen, no blasting will occur if a marine mammal is 
located anywhere within any visible area around the Point. Although no 
blasting will occur in-water, no detonation will occur if a marine 
mammal is sighted anywhere within the visible area. As with pile 
driving and chipping, blasting will be delayed if weather does not 
allow for adequate sighting conditions. Starting one-half hour prior to 
each out-of-water blasting event, MMOs at the MTRP site will 
systematically scan the POA and Knik Arm waters as far as the eye can 
see, by unaided eyed and high-powered binoculars, for signs of marine 
mammals. If marine mammals are observed, blasting will be suspended and 
will not resume until the animal has left the view area or has not been 
re-sighted for 15 minutes.
    For in-water heavy-machinery operations, including dike 
construction, in-water fill placement, crushing, shearing, marine 
vessel operation, and steel recovery, a safety zone of 50 m would be 
established. That is, if a marine mammal comes within 50 m of the 
machinery, operations cease and vessels slow to a reduced speed while 
still maintaining control of the vessel and safe working conditions to 
avoid physical injury.

Notification of Commencement and Marine Mammal Sightings

    The POA/MARAD shall formally notify the NMFS' Permits Division and 
AKR prior to the seasonal commencement of pile driving and shall 
provide monthly monitoring reports of all marine mammal sightings once 
pile driving begins. The POA/MARAD shall continue the formalized 
marine-mammal sighting and notification procedure for all POA users, 
visitors, tenants, or contractors prior to and after construction 
activities. The notification procedure shall clearly identify roles and 
responsibilities for reporting all marine mammal sightings. The POA/
MARAD will forward documentation of all reported marine mammal 
sightings to the NMFS.

Public Outreach

    The POA/MARAD shall maintain whale-notification signage in the 
waterfront viewing areas near the Ship Creek public boat launch and 
within the secured port entrance that is visible to all POA users. This 
signage shall continue to provide information on the beluga whale 
notification procedures for reporting beluga whale sightings to the 
NMFS.

Proposed Monitoring

    Marine mammal monitoring for mitigation implementation will be 
conducted by trained, dedicated observers at the POA during all times 
in-water pile driving is taking place and thirty minutes before pile 
driving commences to ensure no marine mammals are within the Level B 
harassment or shut down zones. All marine mammal sightings will be 
documented on NMFS approved marine mammal sighting sheets.

Marine Mammal Monitoring

    Monitoring for marine mammals will take place concurrent with all 
pile driving activities and 30 minutes prior to pile driving 
commencement. One to two trained observer(s) will be placed at the POA 
at the best vantage point(s) practicable to monitor for marine mammals 
and will implement shut-down/delay procedures when applicable by 
calling for shut-down to the hammer operator. The observer(s) will have 
no other construction related tasks while conducting monitoring. Each 
observer will be properly trained in marine mammal species detection, 
identification and distance estimation and will be equipped with 
binoculars. At the time of each sighting, the pile hammer operator must 
be immediately notified that there are beluga whales in the area, their 
location and direction of travel, and if shut-down is necessary.
    Prior to the start of seasonal pile driving activities, the POA/
MARAD will require construction supervisors and crews, the marine 
mammal monitoring team, the acoustical monitoring team (described 
below), and all MTRP managers to attend a briefing on responsibilities 
of each party, defining chains of command, discussing communication 
procedures, providing overview of monitoring purposes, and reviewing 
operational procedures regarding beluga whales.
    In addition to the POA/MARAD's trained marine mammal observers 
responsible for monitoring the harassment zones and implementing 
mitigation measures, an independent beluga whale monitoring team, 
consisting of one to two land based observers, shall report on (1) the 
frequency at which beluga whales are present in the project footprint; 
(2) habitat use, behavior, and group composition near the POA and 
correlate those data with construction activities; and (3) observed 
reactions of beluga whales in terms of behavior and movement during 
each sighting. It is likely that these observers will monitor for 
beluga whales 8 hours per day/ 4 days per week but scheduling may 
change. These observers will work in collaboration with the POA/MARAD 
to immediately communicate any presence of beluga whales or other 
marine mammals in the area prior to or during pile driving. The POA/
MARAD will keep this monitoring team informed of all schedules for that 
day (e.g., beginning vibratory pile driving at 0900 for 2 hours) and 
any changes throughout the day.

Acoustic Monitoring

    The POA/MARAD shall install hydrophones (or employ other effective 
methodologies to the maximum extent possible) necessary to detect and 
localize passing whales and to

[[Page 18513]]

determine the proportion of beluga whales missed from visual surveys. 
This study will be coordinated with NMFS and the independent beluga 
whale monitoring program to correlate construction and operationally 
generated noise exposures with beluga whale presence, absence, and any 
altered behavior observed during construction and operations.

Reporting

    The POA/MARAD are responsible for submitting monthly marine mammal 
monitoring reports that include all POA observer marine mammal 
sightings sheets from the previous month and proposes to continue this 
requirement. The sighting sheets have been approved by NMFS and require 
the following details, if able to be determined: group size, group 
composition (i.e., adult, juvenile, calf); behavior, location at time 
of first sighting and last sighting; time of day first sighted, time 
last sighted; approach distance to pile driving hammer; and note if 
shut-down/delay occurred and for how long. If shut-down or delay is not 
implemented, an explanation of why will be provided (e.g., no in-water 
work, outside of harassment zone, entered harassment zone but shut-down 
restriction requirements not met (e.g., no beluga whale calves, small 
group, ``stabbing'' phase)). In addition, the report will note what 
type of pile driving and other activities were occurring at and during 
time of each sighting and location of each observer. The monthly 
report, due to NMFS OPR and AKR no later than the 10th of the following 
month, will include all sighting sheets from the previous two months. 
The independent beluga whale monitoring team shall supply their monthly 
reports to NMFS; however, a time frame for submitting these reports is 
not specified.

Adaptive Management

    In accordance with 50 CFR 216.105(c), regulations for the proposed 
activity must be based on the best available information. As new 
information is developed, through monitoring, reporting, or research, 
the regulations may be modified, in whole or in part, after notice and 
opportunity for public review. NMFS has and will continue to conduct 
June/July aerial surveys to estimate Cook Inlet beluga whale population 
size. Should these surveys find a dramatic increase or decrease in 
population size, NMFS may amend the number of whales authorized to be 
taken appropriately.
    If, during the effective dates of the regulations, new information 
is presented from monitoring, reporting, or research, regulations may 
be modified, in whole, or in part after notice and opportunity of 
public review, as allowed for in 50 CFR 216.105(c). In addition, LOAs 
shall be withdrawn or suspended if, after notice and opportunity for 
public comment, the Assistant Administrator finds, among other things, 
the taking allowed in having more than negligible impact on the species 
or stock or an unmitigable adverse impact on the availability of the 
species or stock for subsistence uses, as allowed for in 50 CFR 
216.106(e). That is, should substantial changes in beluga whale 
population occur, or monitoring and reporting show that the MTRP is 
having more than a negligible impact on marine mammals, then NMFS 
reserves the right to modify regulations and/or withdrawal or suspend 
LOAs after public review.

Preliminary Determinations

    Based on the proposed activity, implementing mitigation and 
monitoring (both visual and acoustical), the best scientific 
information available, and data contained in the POA/MARAD's monitoring 
reports submitted under the IHA, NMFS has preliminarily determined that 
the MTRP will have a negligible impact on affected marine mammals 
species or stocks and will not have an unmitigible adverse impact on 
their availability for taking for subsistence uses.

ESA

    Since issuance of the 2008 IHA, Cook Inlet beluga whales have 
become listed as endangered under the ESA. In accordance with Section 7 
of this Act, the POA/MARAD have requested formal consultation with 
NMFS. In addition, NMFS Permits Division has also requested 
consultation with NMFS Endangered Species Division for issuance of 
regulations which may adversely affect beluga whales. Consultation will 
be completed before NMFS issues final regulations.

NEPA

    NMFS has, through NOAA Administrative Order (NAO) 216-6, 
established agency procedures for complying with NEPA and the 
implementing regulations issued by the Council on Environmental 
Quality. As previously discussed, NMFS prepared an EA for issuance of 
the 2008 IHA and the proposed regulations. The EA addresses both short 
and long term impacts from the duration of the construction and impacts 
from operations (e.g., increased commercial vessel traffic). However, 
because the POA/MARAD have supplied more information on take numbers, 
acoustic environment, and the demolition process, NMFS has prepared a 
draft supplemental EA to further analyze the impacts of the MTRP on 
affected marine mammal species. One comment received during the 30-day 
public comment period on the application suggested that NMFS defer 
publication of a proposed incidental take rule until it completes a 
supplemental EA. It is NMFS practice to complete all NEPA requirements 
before issuing regulations and will continue to do so. The draft 
supplemental EA will be available on the NMFS Permits website upon 
publication of this notice.

Request for Comments

    NMFS is soliciting comments on its proposal to issue 5-year 
regulations and subsequent LOAs to allow the taking of marine mammals, 
including beluga whales, incidental to MTRP related activities. NMFS 
addressed public comments in its Federal Register Notice of Issuance 
(73 FR 41318, July 18, 2008) for the IHA and requests that these 
comments and responses be reviewed before submitting any additional 
comments. NMFS is particularly interesting in comments addressing the 
following topics: information addressing the potential effect of 
repeated exposure to construction noise or other stressful stimuli on 
marine mammal reproduction, recruitment, and survivorship rates; 
additional or alternative proposed mitigation measures; information 
regarding cetacean habituation to acoustic stimuli, and information on 
potential habitat impacts as it relates to marine mammals. In addition, 
NMFS requests comments on potential subsistence use impacts. Prior to 
submitting comments, NMFS recommends reviewing the POA/MARAD's LOA 
application, demolition plan, NMFS' 2008 EA and 2009 Draft SEA on the 
NMFS' Permits website (see ADDRESSES) and NMFS' response to public 
comments in the Federal Register Notice of Issuance for the 2008 IHA as 
those documents contain information relevant to this action.

Classification

    Pursuant to the procedures established to implement section 6 of 
Executive Order 12866, the Office of Management and Budget has 
determined that this proposed rule is not significant. Pursuant to 
section 605(b) of the Regulatory Flexibility Act, the Chief Counsel for 
Regulation of the Department of Commerce has certified to the Chief 
Counsel for Advocacy of the Small Business Administration that this 
proposed rule, if adopted, would not

[[Page 18514]]

have a significant economic impact on a substantial number of small 
entities. Two entities will be subject to the requirements in the 
proposed rulemaking: the U.S. Department of Transportation Maritime 
Administration (MARAD) and the Port of Anchorage. The MARAD is an 
agency of the federal government, which is not a small governmental 
jurisdiction, small organization, or small business. The Port of 
Anchorage is owned by the Municipality of Anchorage, which, according 
to the U.S. Census Bureau, had an estimated population in 2007 of 
approximately 279,000. Therefore, it is not a small governmental 
jurisdiction, small organization, or small business.

List of Subjects in 50 CFR Part 217

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

    Dated: April 15, 2009
Samuel D. Rauch,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For reasons set forth in the preamble, NMFS proposes to amend 50 
CFR Chapter II by adding Part 217 to read as follows:

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

Subparts A-T--[Reserved]
Subpart U--Taking of Marine Mammals Incidental to the Port of Anchorage 
Marine Terminal Redevelopment Project
Sec.
217.200 Specified activity and specified geographical region.
217.201 Effective dates.
217.202 Permissible methods of taking.
217.203 Prohibitions.
217.204 Mitigation.
217.205 Requirements for monitoring and reporting.
217.206 Applications for Letters of Authorization.
217.207 Letters of Authorization.
217.208 Renewal of Letters of Authorization.
217.209 Modifications of Letters of Authorization.

    Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

Subparts A-T--[Reserved]

Subpart U--Taking of Marine Mammals Incidental to the Port of 
Anchorage Marine Terminal Redevelopment Project


Sec.  217.200  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the incidental taking 
of those marine mammals specified in Sec.  217.202(b) by the Port of 
Anchorage and the U.S. Department Maritime Administration (MARAD), and 
those persons it authorizes to engage in in-water pile driving 
operations and in-water chipping at the Port of Anchorage, Alaska.


Sec.  217.201  Effective dates.

    Regulations in this subpart are effective from July 15, 2009, 
through July 14, 2014.


Sec.  217.202  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec.  216.106 
and 217.207 of this chapter, the Port of Anchorage and MARAD, and 
persons under their authority, may incidentally, but not intentionally, 
take marine mammals by harassment, within the area described in Sec.  
217.200, provided the activity is in compliance with all terms, 
conditions, and requirements of these regulations and the appropriate 
Letter of Authorization.
    (b) The taking of marine mammals under a Letter of Authorization is 
limited to the incidental take, by Level B harassment only, of the 
following species under the activities identified in Sec.  217.200(a): 
Cook Inlet beluga whales (Delphinapterus leucas), harbor seals (Phoca 
vitulina), harbor porpoises (Phocoena phocoena), and killer whales 
(Orcinus orca).


Sec.  217.203  Prohibitions.

    Notwithstanding takings contemplated in Sec.  217.202(b) and 
authorized by a Letter of Authorization issued under Sec. Sec.  216.106 
and 217.207 of this chapter, no person in connection with the 
activities described in Sec.  217.200 may:
    (a) Take any marine mammal not specified in Sec.  217.202(b);
    (b) Take any marine mammal specified in Sec.  217.202(b) other than 
by incidental, unintentional Level B harassment;
    (c) Take a marine mammal specified in Sec.  217.202(b) if such 
taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a Letter of Authorization issued under 
Sec. Sec.  216.106 and 217.207 of this chapter.


Sec.  217.204  Mitigation.

    (a) When conducting operations identified in Sec.  217.200(a), the 
mitigation measures contained in the Letter of Authorization issued 
under Sec. Sec.  216.106 and 217.207 of this chapter must be 
implemented. These mitigation measures are:
    (1) Through monitoring described under Sec.  217.205, the Holder of 
a Letter of Authorization will ensure that no marine mammal is 
subjected to a SPL of 180 dB re: 1 microPa or greater. If a marine 
mammal is detected within or approaching 200m prior to in-water pile 
driving or chipping, those operations shall be immediately delayed or 
suspended until the marine mammal moves outside these designated zones 
or the animal is not detected within 15 minutes of the last sighting.
    (2) If a beluga whale is detected within or approaching the area 
subjected to SPLs at or above 160 dB prior to in-water impact pile 
driving, operations shall be delayed or suspended until the whale moves 
outside these designated zones or the animal is not detected within 15 
minutes of the last sighting.
    (3) If a beluga whale is detected within or approaching the area 
subjected to SPLs at or above 125 dB prior to in-water vibratory pile 
driving or chipping, operations shall be delayed or suspended until the 
whale moves outside these designated zones or the animal is not 
detected within 15 minutes of the last sighting.
    (4) A ``soft start'' technique shall be used at the beginning of 
each day's in-water pile driving activities or if pile driving has 
ceased for more than one hour to allow any marine mammal that may be in 
the immediate area to leave before piling driving reaches full energy. 
For vibratory hammers, the soft start requires the holder of the Letter 
of Authorization to initiate noise from the hammers for 15 seconds at 
reduced energy followed by 1-minute waiting period and repeat the 
procedure two additional times. If an impact hammer is used, the soft 
start requires an initial set of three strikes from the impact hammer 
at 40 percent energy, followed by a one minute waiting period, then two 
subsequent 3 strike sets.
    (5) In-water pile driving or chipping shall not occur when 
conditions restrict clear, visible detection of all waters within 
harassment zones. Such conditions that can impair sightability include, 
but are not limited to, fog and rough sea state.

[[Page 18515]]

    (6) In-water impact pile driving shall not occur during the period 
from two hours before low tide until two hours after low tide.
    (7) The following measures apply to all in-water pile driving, 
except during the ``stabbing'' phase, and all in-water chipping 
associated with demolition of the existing dock:
    (i) No in-water pile driving (impact or vibratory) or chipping 
shall occur if any marine mammal is located within 200m of the hammer 
in any direction. If any marine mammal is sighted within or approaching 
this 200m safety zone, pile-driving or chipping must be suspended until 
the animal has moved outside the 200m safety zone or the animal is not 
resighted within 15 minutes.
    (ii) If a group of more than 5 beluga whales is sighted within the 
Level B harassment isopleths, in-water pile driving or chipping shall 
cease. If the group is not re-sighted within 15 minutes, pile driving 
or chipping may resume.
    (iii) If a beluga whale calf or group with a calf is sighted within 
or approaching a harassment zone, in-water pile driving and chipping 
shall cease and shall not be resumed until the calf or group is 
confirmed to be outside of the harassment zone and moving along a 
trajectory away from such zone. If the calf or group with a calf is not 
re-sighted within 15 minutes, pile driving or chipping may resume.
    (8) If maximum authorized take is reached or exceeded, any marine 
mammal entering into the harassment or safety isopleths will trigger 
mandatory in-water pile driving shut down.
    (9) For Port of Anchorage operated in-water heavy machinery work 
other than pile driving or chipping (i.e., dredging, dump scowles, tug 
boats used to move barges, barge mounted hydraulic excavators, or 
clamshell equipment used to place or remove material), if a marine 
mammal comes within 50 m, those operations will cease and vessels will 
reduce to the slowest speed practicable while still maintaining control 
of the vessel and safe working conditions.
    (10) In the event the Port of Anchorage conducts out-of-water 
blasting, detonation of charges will be delayed if a marine mammal is 
detected anywhere within a visible distance from the detonation site.
    (11) Additional mitigation measures as contained in a Letter of 
Authorization.
    (b) [Reserved]


Sec.  217.205  Requirements for monitoring and reporting.

    (a) The Holder of a Letter of Authorization issued pursuant to 
Sec. Sec.  216.106 and 217.207 of this chapter for activities described 
in Sec.  217.200(a) is required to cooperate with NMFS, and any other 
Federal, state or local agency with authority to monitor the impacts of 
the activity on marine mammals. Unless specified otherwise in the 
Letter of Authorization, the Holder of the Letter of Authorization must 
notify the Administrator, Alaska Region, NMFS, by letter, e-mail, or 
telephone, at least 2 weeks prior to commencement of seasonal 
activities and dock demolition possibly involving the taking of marine 
mammals. If the activity identified in Sec.  217.200(a) is thought to 
have resulted in the mortality or injury of any marine mammals or in 
any take of marine mammals not identified in Sec.  217.202(b), the 
Holder of the Letter of Authorization must notify the Director, Office 
of Protected Resources, NMFS, or designee, by e-mail or telephone (301-
713-2289), within 24 hours of the discovery of the injured or dead 
animal.
    (b) The Holder of a Letters of Authorization must designate 
qualified, on-site individuals approved in advance by NMFS, as 
specified in the Letter of Authorization, to:
    (1) Conduct visual marine mammal monitoring at the Port of 
Anchorage beginning 30 minutes prior to and during all in-water pile 
driving or chipping and out-of-water blasting.
    (2) Record the following information on NMFS-approved marine mammal 
sighting sheets whenever a marine mammal is detected:
    (i) Date and time of initial sighting to end of sighting, tidal 
stage, and weather conditions (including Beaufort Sea State);
    (ii) Species, number, group composition (i.e., age class), initial 
and closest distance to pile driving hammer, and behavior (e.g., 
activity, group cohesiveness, direction and speed of travel, etc.) of 
animals throughout duration of sighting;
    (iii) Any discrete behavioral reactions to in-water work;
    (iv) The number (by species) of marine mammals that have been 
taken;
    (v) Pile driving, chipping, or out of water blasting activities 
occurring at the time of sighting and if and why shut down was or was 
not implemented.
    (3) Employ a marine mammal monitoring team separate from the on-
site marine mammal observers (MMOs), to characterize beluga whale 
abundance, movements, behavior, and habitat use around the Port of 
Anchorage and observe, analyze, and document potential changes in 
behavior in response to in-water construction work. This monitoring 
team is not required to be present during all in-water pile driving 
operations but will continue monitoring one-year post in-water 
construction. The on-site MMOs and this marine mammal monitoring team 
shall remain in contact to alert each other to marine mammal presence 
when both teams are working.
    (c) The Holder of a Letters of Authorization must conduct 
additional monitoring as required under an annual Letter of 
Authorization.
    (d) The Holder of a Letter of Authorization shall submit a monthly 
report to NMFS' Headquarters Permits, Education and Conservation 
Division and the Alaska Region, Anchorage for all months in-water pile 
driving or chipping takes place. This report must contain the 
information listed in paragraph (b)(2) of this section.
    (e) An annual report must be submitted at the time of application 
for renewal of the Letter of Authorization.
    (f) A final report must be submitted at least 180 days prior to 
expiration of these regulations. This report will:
    (1) Summarize the activities undertaken and the results reported in 
all previous reports;
    (2) Assess the impacts to marine mammals from the port expansion 
project; and
    (3) Assess the cumulative impacts on marine mammals.


Sec.  217.206  Applications for Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the U.S. citizen (as defined by Sec.  216.103) conducting 
the activity identified in Sec.  217.200(a) (the Port of Anchorage and 
MARAD) must apply for and obtain either an initial Letter of 
Authorization in accordance with Sec.  217.207 or a renewal under Sec.  
217.208.
    (b) The application must be submitted to NMFS at least 60 days 
before the expiration of the initial or current Letter of 
Authorization.
    (c) Applications for a Letter of Authorization and for renewals of 
Letters of Authorization must include the following:
    (1) Name of the U.S. citizen requesting the authorization,
    (2) The date(s), duration, and the specified geographic region 
where the activities specified in Sec.  217.200 will occur; and
    (3) The most current population estimate of Cook Inlet beluga 
whales and the estimated percentage of marine mammal populations 
potentially affected for the 12-month period of

[[Page 18516]]

effectiveness of the Letter of Authorization;
    (4) A summary of take levels, monitoring efforts and findings at 
the Port of Anchorage to date.
    (d) The National Marine Fisheries Service will review an 
application for a Letter of Authorization in accordance with Sec.  
217.206 and, if adequate and complete, issue a Letter of Authorization.


Sec.  217.207  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but must be renewed annually subject to annual renewal 
conditions in Sec.  217.208.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking; and
    (2) Requirements for mitigation, monitoring and reporting, 
including, but not limited to, means of effecting the least practicable 
adverse impact on the species, its habitat, and on the availability of 
the species for subsistence uses.
    (c) Issuance and renewal of the Letter of Authorization will be 
based on a determination that the total number of marine mammals taken 
by the activity as a whole will have no more than a negligible impact 
on the affected species or stock of marine mammal(s), and that the 
total taking will not have an unmitigable adverse impact on the 
availability of species or stocks of marine mammals for taking for 
subsistence uses.
    (d) Notice of issuance or denial of an application for a Letter of 
Authorization will be published in the Federal Register within 30 days 
of a determination.


Sec.  217.208  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec.  216.106 and Sec.  
217.207 of this chapter for the activity identified in Sec.  217.200(a) 
will be renewed annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  217.206 will be undertaken and that 
there will not be a substantial modification to the described work, 
mitigation or monitoring undertaken during the upcoming 12 months;
    (2) Timely receipt of the monitoring reports required under Sec.  
217.205(d) and (e), and the Letter of Authorization issued under Sec.  
217.207, which has been reviewed and accepted by NMFS; and
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec. Sec.  217.204 and 217.205 and 
the Letter of Authorization issued under Sec. Sec.  216.106 and 217.207 
of this chapter, were undertaken and will be undertaken during the 
upcoming annual period of validity of a renewed Letter of 
Authorization; and
    (4) A determination by NMFS that the number of marine mammals taken 
during the period of the Letter of Authorization will be small, that 
the total taking of marine mammals by the activities specified in Sec.  
217.200(a), as a whole will have no more than a negligible impact on 
the species or stock of affected marine mammal(s), and that the total 
taking will not have an unmitigable adverse impact on the availability 
of species or stocks of marine mammals for subsistence uses.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec.  216.106 and 217.208 of this chapter indicates that a 
substantial modification to the described work, mitigation or 
monitoring undertaken during the upcoming season will occur, NMFS will 
provide the public a period of 30 days for review and comment on the 
request.
    (c) Notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register within 30 days 
of a determination.


Sec.  217.209  Modifications of Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant to Sec. Sec.  216.106 
and 217.207 of this chapter and subject to the provisions of this 
subpart, shall be made until after notification and an opportunity for 
public comment has been provided. For purposes of this paragraph, a 
renewal of a Letter of Authorization under Sec.  217.208, without 
modification (except for the period of validity), is not considered a 
substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species 
or stocks of marine mammals specified in Sec.  217.202(b), a Letter of 
Authorization issued pursuant to Sec. Sec.  216.106 and 217.207 of this 
chapter may be substantively modified without prior notification and an 
opportunity for public comment. Notification will be published in the 
Federal Register within 30 days subsequent to the action.
[FR Doc. E9-9369 Filed 4-22-09; 8:45 am]
BILLING CODE 3510-22-S