18492 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules 

submitted as instructed in the 

ADDRESSES section. 

Lesley A. Field, 

Acting Chair, Cost Accounting Standards 

Board. 

Cost Accounting Standards Board 

Request for Information 

48 CFR 9903.201–1(b)(14) 

Exemption From Cost Accounting 

Standards for Contracts Executed and 

Performed Entirely Outside the United 

States 

Background 

Purpose 

48 CFR 9903.201–1(b) is a list of 

categories of contracts and subcontracts 

that are exempt from CAS requirements 

(CAS exemptions). Paragraph (14) of 

this provision provides an exemption 

for ‘‘[c]ontracts and subcontracts to be 

executed and performed entirely outside 

the United States, its territories, and 

possessions’’ (overseas exemption). The 

purpose of this request for information 

is to explore whether this CAS 

exemption should be retained, 

eliminated or revised. 

The History of the Exemption 

The original CAS Board (CASB) was 

established by Section 2168 of the 

Defense Production Act of 1950 (DPA). 

Section 2163, ‘‘Territorial application of 

Act,’’ of the DPA provided that Sections 

2061 through 2171 (which includes the 

authority for the CASB) ‘‘shall be 

applicable to the United States, its 

Territories and possessions, and the 

District of Columbia’’ (United States). 

Since the applicable DPA provisions 

were applicable only within the United 

States as defined, the CASB’s rules, 

regulations and CAS were only 

applicable within the United States, as 

specifically defined, and thus, they were 

not applicable overseas. 

On September 24, 1973, Defense 

Procurement Circular No. 115 amended 

ASPR (Armed Services Procurement 

Regulation) 3–1204 to provide for this 

CAS exemption in contracts as follows: 

3–1204 Contract Clause. The Cost 

Accounting Standards clause set forth in 

7–104.83 shall be inserted in all 

negotiated contracts exceeding 

$100,000, except when the price is 

based on established catalog or market 

prices of commercial items sold in 

substantial quantities to the general 

public or is set by law or regulation. In 

addition to the foregoing exceptions, the 

clause shall not be inserted in the 

following contacts: 

* * * * * 

(vi) contracts which are executed and 

performed in their entirety outside the 

United States, its territories and 

possessions [(overseas exemption)]. 

Additional historical background is 

provided in the SDP published at 70 FR 

53977 (September 13, 2005) which 

previously invited public comments on 

whether the overseas exemption should 

be revised or eliminated. 

In 1980, the CASB ceased to exist 

under the DPA. In the absence of the 

CASB, the Department of Defense (DOD) 

took over the responsibility for the 

administration of CAS. DOD 

administered CAS until the CASB was 

re-established in 1988 under the 

authority of the OFPP Act. 

In 1991, the re-established CASB 

reviewed the rules and regulations 

applicable to the administration of CAS. 

FAR 30.201–1(14), the exemption from 

CAS for contracts and subcontracts 

executed and performed entirely outside 

the United States, its territories and 

possessions, was part of that review. 

The re-established CASB retained the 

overseas exemption and incorporated it 

into its current recodified rules and 

regulations at 48 CFR 9903.201–1 on 

April 17, 1992 (57 FR 14148.) 

More recently, in response to the 2005 

SDP regarding the overseas exemption, 

the CASB received three public 

comments in response. All the 

comments offered arguments for why 

the CASB should retain the exemption; 

none of the comments supported any 

revision to, or an elimination of, the 

overseas exemption. After reviewing 

and discussing the comments to the 

SDP, the CASB discontinued its review 

of the overseas exemption. (73 FR 8259, 

February 13, 2008.) While the CASB did 

not agree with all of the views 

expressed, it did agree with the 

conclusion not to delete or revise the 

overseas exemption. 

Questions for Consideration 

The CASB is soliciting information 

and comments on the overseas 

exemption from interested parties. In 

framing your responses, be aware that 

contracts and subcontracts that are 

executed and performed entirely outside 

of the United States can be executed and 

performed by entities with a variety of 

legal statuses. The focus of this request 

for information is with respect to 

contracts that would be otherwise 

subject to CAS, but for the exemption 

because the contract is executed and 

performed entirely overseas. Thus, the 

class of affected contractors is likely to 

be U.S. concerns and other concerns 

authorized to do business in the United 

States. 

More specifically, the CASB is 

particularly interested in information 

and comments related to the following 

questions: 

1. What is your experience with the 

overseas exemption: 

a. As a procuring entity (e.g., 

procurement office, higher tier 

contractor) awarding contracts/ 

subcontracts; or 

b. As the contractor/subcontractor 

claiming the applicability of the 

overseas exemption? 

2. How often (number of actions, 

dollar amounts, by fiscal year) has the 

overseas exemption been claimed? 

3. If the overseas exemption is 

eliminated, what problems will that 

cause you: 

a. As a procuring entity (e.g., 

procurement office, higher tier 

contractor) awarding contracts/ 

subcontracts; or 

b. As the contractor/subcontractor 

claiming the applicability of the 

overseas exemption? 

4. How does the overseas exemption 

help, or not help, to implement the 

CASB’s mandate ‘‘to achieve uniformity 

and consistency in the cost accounting 

standards governing measurement, 

assignment, and allocation of costs to 

contracts with the United States’’? 

5. What are the arguments for, and 

against, the requirement in the overseas 

exemption to require execution of the 

contract overseas? 

6. What are the arguments for, and 

against, the requirement in the overseas 

exemption to require performance of the 

contract overseas? 

[FR Doc. E9–9359 Filed 4–22–09; 8:45 am] 

BILLING CODE 3110–01–P 

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. 

SUMMARY: NMFS has received an 

application from the Port of Anchorage 


rwilkins on PROD1PC63 with PROPOSALS
Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules 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 oneyear 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 


rwilkins on PROD1PC63 with PROPOSALS
18494 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules 

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 inwater 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 


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Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules 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 nondisplacement 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. 

Year Location Pile Type Number of 

Piles 

Hours of 

Vibratory Pile 

Driving 

Hours of 

Impact 

Pile 

Driving 

2009 Barge Berth 

North Extension 

fender pile 

OCSP 

temporary pile 

11 

4,106 

268 

8 

496 

17 

3 

235 

0 

2010 North Extension 

South Extension 

fender pile 

OCSP 

temporary pile 

fender pile 

82 

1,831 

145 

36 

46 

216 

9 

20 

15 

103 

0 

7 

2011 North Replacement OCSP 

temporary pile 

2,718 

145 

325 

9 

155 

0 

2012 North Replacement 

South Replacement 

OCSP 

temporary pile 

OCSP 

temporary pile 

2,718 

145 

3,034 

163 

325 

9 

366 

10 

155 

0 

173 

0 

2013 North Replacement 

South Replacement 

fender pile 

OCSP 

temporary pile 

94 

3,034 

163 

53 

366 

10 

18 

173 

0 

Prior to July 15, 2014 South Replacement fender pile 41 23 8 


rwilkins on PROD1PC63 with PROPOSALS
18496 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules 

TABLE 1: PILE DRIVING LOCATION, TIMELINE, AND ESTIMATED HOURS FOR THE PORT OF ANCHORAGE MARINE TERMINAL

REDEVELOPMENT PROJECT.—Continued 

Year Location Pile Type Number of 

Piles 

Hours of 

Vibratory Pile 

Driving 

Hours of 

Impact 

Pile 

Driving 

Post July 15, 2014 South Replacement fender pile 41 23 8 

TOTAL 2,331 1053 

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 31⁄2 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) outof-water demolition using mechanical 

means and explosives, and (3) out-ofwater 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 


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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., nonpulse), 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 piledriving 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 sixsecond 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 


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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 standardsize, 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 rockretaining 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 inwater 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 


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(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 northnortheasterly 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 highsuspended 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 


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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 nonwinter 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 icecovered 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=CorryCrowe 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 


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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 lowfrequency (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° W. to 

172° E. (over 3,500 km east to west) and 

from 61° N. to 51° N. (over 1,000 km 

north to south). Currently, harbor seals 

in Alaska are divided into three stocks: 

Bering Sea, GOA, and Southeast Alaska. 


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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 photoidentification. 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., 


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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 nonpulsed 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 

Description 

Worst-Case 

Measured Level 

(dB rms) 

Frequency 

Range (Hz) 

Calculated 

Source 

Level 

Calculated 

Distance to 

190 dB 

rms (m) 

Calculated 

Distance to 

180 dB 

rms (m) 

Calculated 

Distance to 

160 dB 

rms (m) 

Calculated 

Distance to 

125 dB 

rms (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; 

6,000 

195 dB 1.8 5.7 57 N/A 

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 

available 

183 dB N/A 1.4 14.2 N/A 


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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 


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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 nonpulsed 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 TTSonset. 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 midfrequency 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 μPa2–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 μPa2–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 


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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, nonauditory 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 


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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) nonacoustic 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 μPa2–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 μPa2–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 μPa2–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 shutdown 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 


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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 IndoPacific 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 SaxonKendall, 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 


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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 inair 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 


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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 reevaluated 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 


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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 shutdown. 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 


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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 piledriving, 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 outof-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 highpowered 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 marinemammal 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 shutdown/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 


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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 


rwilkins on PROD1PC63 with PROPOSALS
18514 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules 

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 

§ 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 

§ 217.202(b) by the Port of Anchorage 

and the U.S. Department Maritime 

Administration (MARAD), and those 

persons it authorizes to engage in inwater pile driving operations and inwater chipping at the Port of Anchorage, 

Alaska. 

§ 217.201 Effective dates. 

Regulations in this subpart are 

effective from July 15, 2009, through 

July 14, 2014. 

§ 217.202 Permissible methods of taking. 

(a) Under Letters of Authorization 

issued pursuant to § 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 § 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 

§ 217.200(a): Cook Inlet beluga whales 

(Delphinapterus leucas), harbor seals 

(Phoca vitulina), harbor porpoises 

(Phocoena phocoena), and killer whales 

(Orcinus orca). 

§ 217.203 Prohibitions. 

Notwithstanding takings 

contemplated in § 217.202(b) and 

authorized by a Letter of Authorization 

issued under §§ 216.106 and 217.207 of 

this chapter, no person in connection 

with the activities described in 

§ 217.200 may: 

(a) Take any marine mammal not 

specified in § 217.202(b); 

(b) Take any marine mammal 

specified in § 217.202(b) other than by 

incidental, unintentional Level B 

harassment; 

(c) Take a marine mammal specified 

in § 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 §§ 216.106 and 217.207 of 

this chapter. 

§ 217.204 Mitigation. 

(a) When conducting operations 

identified in § 217.200(a), the mitigation 

measures contained in the Letter of 

Authorization issued under §§ 216.106 

and 217.207 of this chapter must be 

implemented. These mitigation 

measures are: 

(1) Through monitoring described 

under § 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 inwater 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. 


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(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, piledriving 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, inwater 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 resighted 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 inwater 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] 

§ 217.205 Requirements for monitoring 

and reporting. 

(a) The Holder of a Letter of 

Authorization issued pursuant to 

§§ 216.106 and 217.207 of this chapter 

for activities described in § 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 

§ 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 § 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 onsite 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. 

§ 217.206 Applications for Letters of 

Authorization. 

(a) To incidentally take marine 

mammals pursuant to these regulations, 

the U.S. citizen (as defined by 

§ 216.103) conducting the activity 

identified in § 217.200(a) (the Port of 

Anchorage and MARAD) must apply for 

and obtain either an initial Letter of 

Authorization in accordance with 

§ 217.207 or a renewal under § 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 § 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 


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18516 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules 

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 § 217.206 and, if adequate and 

complete, issue a Letter of 

Authorization. 

§ 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 § 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. 

§ 217.208 Renewal of Letters of 

Authorization. 

(a) A Letter of Authorization issued 

under § 216.106 and § 217.207 of this 

chapter for the activity identified in 

§ 217.200(a) will be renewed annually 

upon: 

(1) Notification to NMFS that the 

activity described in the application 

submitted under § 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 § 217.205(d) and 

(e), and the Letter of Authorization 

issued under § 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 §§ 217.204 and 

217.205 and the Letter of Authorization 

issued under §§ 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 § 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 

§§ 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. 

§ 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 §§ 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 § 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 wellbeing of the species or stocks of marine 

mammals specified in § 217.202(b), a 

Letter of Authorization issued pursuant 

to §§ 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 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 223 and 224 

[Docket No. 080229341–9330–02] 

RIN 0648–XF89 

Endangered and Threatened Wildlife 

and Plants: Proposed Endangered, 

Threatened, and Not Warranted Status 

for Distinct Population Segments of 

Rockfish in Puget Sound 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; 12–month 

petition finding; request for comments. 

SUMMARY: We, the NMFS, have 

completed Endangered Species Act 

(ESA) status reviews for five species of 

rockfish (Sebastes spp.) occurring in 

Puget Sound, Washington, in response 

to a petition submitted by Mr. Sam 

Wright of Olympia, Washington, to list 

these species in Puget Sound as 

threatened or endangered species. We 

reviewed best available scientific and 

commercial information on the status of 

these five stocks and considered 

whether they are in danger of extinction 

throughout all or a significant portion of 

their ranges, or are likely to become 

endangered within the foreseeable 

future throughout all or a significant 

portion of their ranges. For bocaccio (S. 

paucispinis), we have determined that 

the members of this species in the 

Georgia Basin are a distinct population 

segment (DPS) and are endangered 

throughout all of their range. We 

propose to list this bocaccio DPS as 

endangered. We have determined that 

yelloweye rockfish (S. ruberrimus) and 

canary rockfish (S. pinniger) in the 

Georgia Basin are DPSs and are likely to 

become endangered within the 

foreseeable future throughout all of their 

range. We propose to list the Georgia 

Basin DPSs of yelloweye and canary 

rockfish as threatened. We determined 

that populations of greenstriped 

rockfish (S. elongatus) and redstripe 

rockfish (S. proriger) occurring in Puget 

Sound Proper are DPSs but are not in 

danger of extinction throughout all or a 

significant portion of their ranges or 

likely to become so in the foreseeable 

future. We find that listing the 

greenstriped rockfish Puget Sound 

Proper DPS and the redstripe rockfish 

Puget Sound Proper DPS is not 

warranted at this time. 

Any protective regulations 

determined to be necessary and 


rwilkins on PROD1PC63 with PROPOSALS