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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - RIN 0648-XQ80

# AGENCY:

National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.

# ACTION:

Notice of issuance of a Letter of Authorization.

# SUMMARY:

In accordance with the Marine Mammal Protection Act (MMPA), as amended, and implementing regulations, notification is hereby given that a Letter of Authorization (LOA) has been issued to the Port of Anchorage (POA) and the U.S. Department of Transportation Maritime Administration (MAARD), to take four species of marine mammals incidental to the POA's Marine Terminal Redevelopment Project.

# DATES:

Effective July 15, 2009, through July 14, 2010.

# ADDRESSES:

                        The LOA and supporting documentation are available for review by writing to P. Michael Payne, Chief, Permits, Conservation, and Education Division, Office of Protected Resources,                               ( print page 47926)                            National Marine Fisheries Service (NMFS), 1315 East-West Highway, Silver Spring, MD 20910-3225 or by telephoning one of the contacts listed below. Documents cited in this notice may be viewed, by appointment, during regular business hours, at the aforementioned address and at the Alaska Regional Office, 222 West 7th Avenue, Anchorage, AK 99513.                    

# FOR FURTHER INFORMATION CONTACT:

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

# SUPPLEMENTARY INFORMATION:

## Background

                    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361*et seq.*) directs the National Marine Fisheries Service (NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and regulations are issued. Under the MMPA, the term “taking” means to harass, hunt, capture, or kill or to attempt to harass, hunt, capture, or kill marine mammals.                

Authorization may be granted for periods up to 5 years if NMFS finds, after notification and opportunity for public comment, that the taking will have a negligible impact on the species or stock(s) of marine mammals and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses. In addition, NMFS must prescribe regulations that include permissible methods of taking and other means effecting the least practicable adverse impact on the species and its habitat and on the availability of the species for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance. The regulations must include requirements for monitoring and reporting of such taking. 

                    Regulations governing the taking of Cook Inlet beluga whales (                    *Delphinapterus leucas*), harbor porpoises (                    *Phocoena phocoena*), killer whales (                    *Orcinus orca*), and harbor seals (                    *Phoca vitulina*), by harassment, incidental to in-water pile driving were issued on July 15, 2009 (74 FR 35136), and remain in effect until July 14, 2014. For detailed information on this action, please refer to that document. These regulations include mitigation, monitoring, and reporting requirements for the incidental take of marine mammals during the specified activity.                

Consistent with the regulations and associated rule making, NMFS has issued an LOA to the POA authorizing the incidental take of the four marine mammal species listed above that may result from in-water pile driving and chipping associated with the MTRP. Analysis of effects on those marine mammals and their availability for subsistence uses can be found in the final rule cited above for this action. Issuance of the LOA is based on a finding made in the preamble to the final rule that the total taking by these activities (with mitigation, monitoring, and reporting requirements) will have no more than a negligible impact on the affected species or stocks and will not have an unmitigable adverse impact on their availability for taking for subsistence uses. NMFS further finds the POA will satisfy the requirements in the regulations and LOA, as it has done in a prior take authorization.

As stated in the regulations and LOA, take of marine mammals will be minimized through implementation of the following mitigation measures: (1) if a marine mammal is detected within or approaching the Level A or impact and vibratory pile driving Level B harassment isopleths (200 m, 350m and 1,300 m, respectively) 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) in-water impact pile driving shall not occur during the period from two hours before low tide until two hours after low tide; (3) 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; (4) in-water pile driving or chipping shall not occur when conditions restrict clear, visible detection of all waters within harassment zones; (5) 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; (6) if a group of more than 5 beluga whales or group with a calf is sighted within the Level B harassment isopleths, in-water pile driving shall be suspended; and (7) for operated in-water heavy machinery work other than pile driving or chipping (i.e., dredging, dump scowles, linetug 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.

NMFS-approved marine mammal observers (MMOs) will be stationed at the port during all in-water pile driving and chipping. In addition, the POA and MARAD shall employ a scientific marine mammal monitoring team separate from the on-site 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. 

The POA and MARAD shall submit monthly reports, due the 10th of each month, summarizing all in-water construction activities and marine mammal monitoring sighting sheets. In addition, an annual report shall be due sixty days before expiration of the LOA. This report shall summarize monthly reports and any apparent long or short term impacts the MTRP may be having on marine mammals. This LOA will be renewed annually based on review of the annual monitoring report.

Dated: September 10, 2009.

James H. Lecky,

Office of Protected Resources, National Marine Fisheries Service.

[FR Doc. E9-22501 Filed 9-17-09; 8:45 am]

BILLING CODE 3510-22-S