35136 Federal Register / Vol. 74, No. 137 / Monday, July 20, 2009 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 090206146–91055–02] 

RIN 0648–AX32 

Taking and Importing Marine 

Mammals; Taking Marine Mammals 

Incidental to the Port of Anchorage 

Marine Terminal Redevelopment 

Project, Anchorage, Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS, upon application from 

the Port of Anchorage (POA) and the 

U.S. Department of Transportation 

Maritime Administration (MARAD), has 

issued regulations to govern the 

unintentional taking of marine 

mammals, by harassment, incidental to 

Phase II of the POA’s Marine Terminal 

Redevelopment Project (MTRP) for the 

period July 2009 through July 2014. 

These regulations, which allow for the 

issuance of annual ‘‘Letters of 

Authorization’’ (LOAs) for the 

incidental take of marine mammals 

during the described activities and 

specified time frames, prescribe the 

permissible methods of taking and other 

means of effecting the least adverse 

impact practicable on marine mammal 

species and their habitat, as well as 

requirements pertaining to the 

monitoring and reporting of such taking. 

DATES: Effective July 15, 2009 and is 

applicable to the POA and MARAD on 

July 15, 2009 through July 14, 2014, 

upon signature of this final rule. 

ADDRESSES: A copy of the POA/ 

MARAD’s application, NMFS’ Final 

Environmental Assessment (EA), 

Supplemental EA (SEA) and Findings of 

No Significant Impact (FONSIs) may be 

obtained by writing to P. Michael Payne, 

Chief, Permits, Conservation and 

Education Division, Office of Protected 

Resource, National Marine Fisheries 

Service, 1315 East–West Highway, 

Silver Spring, MD 20910–3225, 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 final rule may 

also be viewed, by appointment, during 

regular business hours at the above 

address. 

FOR FURTHER INFORMATION CONTACT: 

Jaclyn Daly, Office of Protected 

Resources, 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 

small numbers 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.’’ 

Summary of Request 

On November 20, 2008, NMFS 

received an application from the POA/ 

MARAD requesting regulations to take, 

by Level B harassment only, marine 

mammals incidental to certain 

construction activities associated with 

the MTRP. On January 9, 2009, the 

POA/MARAD also submitted a 

Demolition Plan which describes 

options of dock demolition and impacts 

to marine mammals from each option. 

As described in the application marine 

mammals may be harassed by noise 

from in–water pile driving. This final 

rule authorizes the take, by Level B 

harassment only, of the following 

marine mammals which could be 

present within the action area: Cook 

Inlet beluga whales (Delphinapterus 

leucas), harbor seals (Phoca vitulina), 

harbor porpoises (Phocoena phocoena), 

and killer whales (Orcinus orca). 

The proposed rule for this action 

listed in–water chipping, which would 

occur under Option 1 in the Demolition 

Plan, as an additional source of 

potential harassment; however, NMFS 

misunderstood specifics of the chipper 

hammer (i.e., the energy required to 

operate the hammer) and, upon 

clarification from the POA/MARAD, has 

now determined that dock demolition 

will not result in harassment to marine 

mammals given the implementation of 

the required mitigation measures (see 

Change in Rule Relative to the Proposed 

Rule). 

Description of the 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 

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. 

Located within the Municipality of 

Anchorage 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 usable 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 


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(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. 

In–water construction activities, 

specifically in–water pile driving, have 

the potential to harass marine mammals 

if they are exposed to sound levels at or 

above certain threshold levels. NMFS 

considered harassment from other 

activities (e.g., construction of dikes, 

discharge, settlement and compaction of 

fill material, installation of utilities, and 

paving within a 27–acre intertidal area) 

during Phase I of the MTRP and during 

the IHA issuance process and has 

determined that these activities would 

not result in take of marine mammals if 

certain operational procedures and 

mitigation measures were implemented 

by the POA. NMFS also considered 

noise impacts during dock demolition. 

NMFS concludes that in–water pile 

driving is the only activity which 

warrant an MMPA authorization. A 

complete description of the specified 

activities and affected environment can 

be found in the proposed rule Federal 

Register document for this action (74 FR 

18493, April 23, 2009). 

Change in Rule Relative to the 

Proposed Rule 

During review of the Demolition Plan, 

NMFS analyzed three proposed 

methods presented by the POA/ 

MARAD, including use of a chipping 

hammer and explosives. Because dock 

demolition will not occur for over one 

year, the POA/MARAD needs to retain 

a reasonable amount of variation in 

demolition methods to practicably 

submit bid contracts. NMFS now 

understands that its interpretation of the 

energy needed to operate the chipping 

hammer was inaccurate. The POA/ 

MARAD provided information that the 

chipping hammer operates at ‘‘19 

percent of the energy required for a 

vibratory pile driving hammer.’’ NMFS 

took this to mean 19 percent less energy 

(e..g, if the vibratory hammer works at 

100 horsepower, the chipping hammer 

works at 81 horsepower). Based on that 

interpretation, and given the lack of 

empirical sound source verification, 

NMFS implemented monitoring 

measures identical to vibratory pile 

driving (i.e., 1,300 m Level B 

harassment zone isopleth and 200 m 

safety zone). In fact, the chipping 

hammer operates at 19 percent of what 

is required for the vibratory hammer 

(e.g., using the 100 horsepower example 

above, the chipper hammer works at 19 

horsepower). Given that the chipping 

hammers requires 81 percent less energy 

than the vibratory hammer, NMFS has 

determined that monitoring the 1,300 m 

harassment isopleth during in–water 

chipping (if chosen as the method for 

demolition) is not necessary, as the 120 

dB isopleth from this activity would not 

extend this far out into Knik Arm. 

However, NMFS has conservatively 

retained a 200 m safety zone for this 

activity. Therefore, given the required 

shut down mitigation, NMFS does not 

anticipate takes of marine mammals will 

occur from this activity. All analysis 

and proposed mitigation for Options 2 

and 3 of the Demolition Plan, as 

described in the proposed rule, remain 

accurate. 

Comments and Responses 

On April 23, 2009, NMFS published 

a notice of proposed rulemaking (74 FR 

18493) in the Federal Register on the 

POA/MARAD’s request to take marine 

mammals incidental to the MTRP and 

requested comments, information, and 

suggestions concerning the request. 

NMFS also made a Draft SEA available 

for public comment. While no 

comments were received specific to the 

Draft SEA, one commentor provided 

comments on the original EA and 

FONSI issued by NMFS on July 14, 

2008. While public comment was 

sought on the draft version of the SEA, 

NMFS found this set of comments to be 

directly relevant to the SEA, in that they 

primarily raised issues related to the 

effects of the underlying activity on the 

distinct population segment (DPS) of 

Cook Inlet beluga whales which are 

listed under the ESA. While comments 

on the prior FONSI are not relevant, as 

the agency would reach a new finding 

based on the analysis in this SEA, we 

summarize the relevant issues raised 

both on the prior EA and FONSI in the 

Final SEA as they relate to the scope 

and content of the analyses under 

consideration by NMFS. 

During the 30-day public comment 

period, The Humane Society of the 

United States (HSUS), the Center for 

Biological Diversity (CBD), and the 

Marine Mammal Commission 

(Commission) submitted comments on 

the proposed regulations. HSUS 

requests NMFS deny the permit and the 

Commission recommends that NMFS 

withdraw the proposed rule and refrain 

from authorizing the taking of Cook 

Inlet beluga whales at this time. For the 

reasons set forth in the proposed rule 

and this preamble, NMFS believes 

issuance of the authorization is 

appropriate. Following are the 

comments from the Commission and 

HSUS and NMFS’ responses. 

Comment 1: The Commission 

disagrees with NMFS’ finding that the 

MTRP will have a negligible impact on 

Cook Inlet beluga whales given that it 

will, in summary, result in increased 

noise and other types of disturbance, 

habitat degradation and destruction, and 

various other environmental concerns 

such as disturbance to potentially 

harmful bottom sediments from 

dredging, increased pollution, discharge 

of ballast water and other impacts 

associated with increased vessel traffic 

from an expanded port. In support of its 

comment, the Commission cites NMFS’ 

final rule listing Cook Inlet beluga 

whales as endangered, which identifies 

continued development along upper 

Cook Inlet and its cumulative impacts 

on important beluga whale habitat as 

one of several possible causes for the 

observed population trends. The 

Commission suggests that NMFS’ 

population viability analysis in the final 

rule listing the species indicates the 

status quo is already jeopardizing the 

continued existence of the species and 

says the population will continue to 

decline, eventually to extinction, if 

nothing is done to reverse the recent 

trends. Accordingly, the Commission 

recommends NMFS refrain from 

authorizing take of Cook Inlet beluga 

whales until the Agency has conducted 

more research to identify the factor(s) 

contributing to the decline and/or lack 

of recovery of the population, can 

discount the factors associated with port 

construction and use as significant 

contributors, and determine that, once 

mitigated, the MTRP will not have more 

than a negligible impact on beluga 

whales. 

Response: Section 4(a) of the ESA 

requires the Secretary of Commerce 

(Secretary), after receipt of a petition, to 

list a specified species, to determine 

whether any species is endangered or 

threatened based on any of five specific 

factors. NMFS’ final rule to list Cook 

Inlet beluga whales as endangered 

identified, among others, ‘‘the present or 

threatened destruction, modification, or 

curtailment of its habitat or range’’ as a 

factor contributing to the species 

endangered status. Specifically, NMFS 

cited oil and gas exploration, 

development, and production; and 

industrial activities that discharge or 

accidentally spill pollutants. NMFS 

therefore agrees that coastal 

development projects in Cook Inlet 

should be closely assessed with respect 

to beluga whale conservation and 

recovery. 

For this project, NMFS looked at the 

intensity of habitat destruction and 

modification and whether this, 

combined with all aspects of the project, 


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would have more than a negligible 

impact on Cook Inlet beluga whales. 

The thorough assessment of habitat loss 

and degradation from the MTRP can be 

found in Chapter 4 of the 2008 EA, 

which has been incorporated by 

reference into the 2009 SEA; habitat 

impacts were also addressed in the 

Federal Register notification of 

proposed rulemaking for this action. 

NMFS assessed not only the permanent 

loss of the proposed 135 acres of filled 

intertidal and sub–tidal habitat with 

respect to beluga whale prey, but also 

hydrodynamic shifts from expanded 

port completion, and habitat 

degradation from noise, dredging, and 

pollution. 

As NMFS’ 2008 Conservation Plan for 

the Cook Inlet Beluga Whale 

(Delphinapterus leucas) (herein after 

‘‘Conservation Plan’’) states, the primary 

concern relating to coastal development 

in Upper Cook Inlet 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. Sound 

propagation beyond NMFS Level B 

harassment thresholds (160dB for 

impact pile driving and 125 dB for 

vibratory pile driving) is not expected to 

extend beyond 300 and 1,300 m, 

respectively, while that area of Knik 

Arm extends approximately 4.17 km 

across and should allow for beluga 

passage to the primary feeding hotspots 

(15–17 miles north of the POA), as 

identified in the Conservation Plan. 

NMFS considered all available studies 

investigating behavioral and TTS data 

on beluga whales, including data from 

monitoring reports under the POA/ 

MARAD’s current IHA, baseline 

environmental conditions (e.g., ambient 

sound levels, exposure to anthropogenic 

activities), and mitigation measures 

when analyzing the impacts on Cook 

Inlet beluga whales. Based on captive 

and field acoustic studies, it is possible 

that beluga whales may alter their 

behavior in response to noise from the 

MTRP; however, to date, the monitoring 

reports do not indicate short or long 

term change in behavior or habitat use. 

Surveys conducted before port 

construction began indicated that 79 

percent of all beluga whales entering 

Knik Arm utilized waters within the 

MTRP footprint (Markowitz et al. 2005). 

These surveys are ongoing, and after 5 

months of pile driving (July to 

November), there is no indication of a 

change in habitat use or restriction of 

beluga whale passage. Finally, over 90 

percent of Knik Arm remains 

undeveloped, and where development 

is prevalent, it is relatively confined to 

the lower portion of Knik Arm, away 

from primary beluga whale foraging 

hotspots. 

NMFS began working with the POA/ 

MARAD before the MTRP began and is 

requiring monitoring and mitigation 

measures beyond those previously 

recommended during the USACE’s 

scoping process for issuance of its 404 

Permit. In addition, the POA/MARAD 

has undertaken and continues dedicated 

fish and marine mammal monitoring 

studies and is developing an acoustic 

plan to further investigate beluga whale 

vocalization patterns in response to 

construction. 

Based on NMFS’ analysis of all 

impacts from the MTRP, as described in 

the Federal Register notices for this 

project, the 2008 EA, and the 2009 SEA, 

including analysis of the project design 

(e.g., limited to one side of Knik Arm), 

numerous fish surveys, habitat 

classification and hydrodynamic 

modeling studies, sediment analysis and 

beluga health assessments (with respect 

to contaminants), noise surveys 

conducted at and around the POA, and 

the incorporation of mitigation 

measures contained in these regulations 

and the POA/MARAD’s USACE 404 

Permit, NMFS has determined that the 

MTRP is not reasonably likely to 

adversely affect Cook Inlet beluga 

whales through effects on annual rates 

of recruitment or survival (i.e., 

negligible impact) and will not have an 

unmitigable adverse impact on the 

availability of Cook Inlet beluga whales 

for taking for subsistence uses should 

the current moratorium on harvest be 

lifted. Further, NMFS’ SEA and EA, 

which consider cumulative impacts, 

resulted in a FONSI for this action. 

Although there is some uncertainty 

with respect to Cook Inlet beluga 

population trends and causes, it does 

not prevent NMFS from making 

decisions based on the best information 

available. The MMPA directs NMFS to 

issue permits allowing incidental, but 

not intentional, taking, provided certain 

findings can be made, and the best 

available information indicates that the 

activity under consideration satisfies 

those conditions. 

NMFS thoroughly assessed the best 

available information, including 

monitoring reports collected under the 

IHA, and determined it sufficient to 

make an informed judgment about the 

effects of the MTRP on Cook Inlet 

belugas and the means to mitigate those 

effects. Nevertheless, there are efforts to 

improve understanding of the factors 

affecting recovery. Separating out what 

may very well be confounding factors 

can be extremely difficult. In Cook Inlet, 

NMFS conducts annual beluga whale 

aerial abundance surveys and 

investigates live stranding events and 

carcasses. Analysis of carcasses, 

including gross anatomy examinations; 

skin, tissue, blubber, blood, and organ 

sampling; and analysis of loads of 

contaminants, disease, and parasitism, 

will aid in determining the health of the 

environment beluga whales utilize and, 

possibly, the underlying causes of 

strandings. These and other efforts will 

continue to allow NMFS a better 

understanding of the factors limiting 

Cook Inlet beluga whale recovery. 

Specific to the MTRP, the POA/ 

MARAD have overseen extensive pre– 

construction and present day research 

in the form of marine mammal surveys 

and monitoring in order to assess both 

short term and long term impacts to 

beluga whales, as described in the 

proposed rule (73 FR 18493, April 23, 

2009). In addition, the POA/MARAD are 

preparing, with recommendations from 

NMFS, an acoustic plan to determine a 

sighting rate correction factor by 

comparing detection of vocal beluga 

whales from passive acoustic 

monitoring (PAM) to the rate of visual 

observations. In addition, this PAM 

study will continue to characterize 

sound levels around the POA during 

and in the absence of all construction 

activities. Further, independent acoustic 

studies have been proposed by Alaska 

Pacific University and scientists from 

other organizations to investigate beluga 

whale vocalizations in response to 

anthropogenic noise (these studies are 

independent of the MTRP and are not 

affiliated with the POA/MARAD). 

NMFS has determined that the research 

being conducted by the POA/MARAD is 

appropriate to determine levels of 

impacts specific to this project, and will 

continue to use data from other research 

to assess beluga whale stressors. 

Finally, NMFS disagrees that the 

status quo is jeopardizing the continued 

existence of the species. NMFS is 

mindful of the endangered status of the 

whales and is committed to promoting 

their conservation and recovery. In that 

regard, NMFS conducted its ESA 

consultation with the POA/MARAD and 

concluded, based on the best available 

information, that the MTRP is not likely 

to jeopardize the continued existence of 

Cook Inlet beluga whales. The 

associated incidental take statement 

contains reasonable and prudent 

measures to minimize the impact of the 

incidental take from the MTRP as well 

as terms and conditions to implement 

those measures. 

Comment 2: HSUS commented that it 

is not clear if marine mammal observers 


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(which are required under the POA’s 

IHA) noticed subtle startle responses 

which could be an indication of stress. 

Response: During all pile driving 

operations, the POA/MARAD are 

required to have NMFS approved 

marine mammal observers on site to 

inform construction workers of the 

presence of beluga whales around the 

POA, implement shut down procedures 

should a marine mammal enter into 

designated safety zones, and observe 

any responses, including subtle ones, of 

beluga whales when entering the waters 

around the POA. In addition, an 

independent marine mammal 

monitoring team is stationed atop Cairn 

Point to characterize beluga whale 

abundance and habitat use around the 

POA. This independent monitoring 

team currently consists of Alaska Pacific 

University graduate students with 

expertise in marine mammal science, 

including behavior. All marine mammal 

monitoring reports, from both teams, 

have reported zero reactions from 

beluga whales to POA expansion with 

the exception of three groups splitting 

when they approached a barge. These 

reports also indicate that beluga whales 

continue to use the waters around the 

POA for travel and foraging similar to 

use before construction (monitoring has 

been occurring since 2004). A summary 

of these reports can be found in the 

proposed rule Federal Register notice 

and the SEA prepared for this action. 

Quantifying marine mammal stress 

response is not possible without direct 

measurements such as those obtained 

from the collection of blood or feces; 

however, presence of observable 

reactions could be one indication that 

an animal is stressed. Further, NMFS 

acknowledged in its proposed rule for 

the proposed action that a stress 

response which is not associated with 

an observable reaction may occur. 

Monitoring reports indicate that beluga 

whales are not observably reacting to 

construction activities, including pile 

driving. While a stress response may be 

occurring, it is unlikely the degree of 

stress is one which is prohibiting 

recovery (i.e., the whales are not fleeing/ 

abandoning high quality habitat). 

NMFS has also considered the 

cumulative impact of multiple past, 

present, and foreseeable actions in its 

NEPA documents and has determined 

that any additional stress from these 

actions and the proposed action are not 

likely to result in an impact which 

could be considered significant due to 

mitigation measures (e.g., low tide 

impact pile driving restriction, shut 

down zones) and the nature of 

operations (e.g., the intermittent nature 

of pile driving, pile driving occurs at 

one side of Knik Arm which allows for 

a zone of passage where sound levels 

are below NMFS harassment threshold 

levels, etc). 

Comment 3: The CBD provided 

comments on the proposed rule which 

were identical to those submitted during 

the 30-day comment period on the 

proposed IHA in 2008. NMFS addressed 

these comments in the Notice of 

Issuance for that IHA (73 FR 41318, July 

18, 2008). In addition to those 

responses, NMFS notes that marine 

mammal monitoring reports collected 

under the IHA, as described in this 

document and the proposed rulemaking 

Federal Register notice, suggest that 

beluga whales are not behaviorally 

reacting to noise from pile driving nor 

are longer term changes in habitat use 

or use frequency obvious. These direct 

observations of beluga whale reactions 

to pile driving, and not inference from 

reactions to icebreaker ships or seismic 

surveys, support NMFS’ determination 

that the impacts from the MTRP to this 

species is negligible. NMFS will 

continue to review POA/MARAD 

monitoring reports and new literature 

and reports on the recovery status of 

Cook Inlet beluga whales in general. 

Potential Effects of Specified Activities 

on Marine Mammals 

The potential effects of the specified 

activity were fully described in NMFS’ 

Notice of Proposed Rulemaking (74 FR 

18493, April 23, 2009) and are 

summarized here. Noise generated from 

in–water pile has the potential to result 

in harassment of the aforementioned 

species if a marine mammal is present 

within specified distances during such 

activities. The specified activities will 

result in two types of noise: pulsed 

noise from impact pile driving and non– 

pulsed noise from vibratory pile driving. 

Again, NMFS has determined that in– 

water chipping associated with 

demolition of the dock will not result in 

harassment because the chipping 

hammer works at significantly reduced 

energy than a vibratory hammer (81 

percent less) and the POA/MARAD will 

continue to shut down if marine 

mammals enter the 200m safety zone 

during in–water chipping. 

The available scientific literature 

suggest that introduction of pile driving 

into the marine environment could 

result in short term behavioral and/or 

physiological marine mammal impacts 

such as: altered headings; increased 

swimming rates; changes in dive, 

surfacing, respiration, feeding, and 

vocalization patterns; masking, and 

hormonal stress production (Southall et 

al., 2007); however some field studies 

also suggest marine mammals do not 

observably respond to construction type 

sounds such as drilling (e.g., Richardson 

et al., 1990, 1991; Moulton et al., 2005). 

Observation data on marine mammal 

responses to pile driving, as required 

under the POA/MARAD’s current IHA, 

for these activities is summarized in the 

POA/MARAD’s application and NMFS’ 

proposed rulemaking. The potential 

effects described in the proposed rule 

are the same as those that would occur 

under this final rule. In summary, 

beluga whales are not noticeably 

reacting to MTRP construction activities 

and are not utilizing the habitat 

differently than when compared to pre 

in–water pile driving activity. NMFS 

anticipates that the total taking of 

marine mammals from the specified 

activities will have a negligible impact 

on the affected species or stock of 

marine mammals, 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. 

Numbers of Marine Mammals 

Estimated to be Taken by Harassment 

The marine mammal species 

authorized to be taken by Level B 

harassment incidental to the MTRP are 

Cook Inlet beluga whales, harbor seals, 

harbor porpoises, and killer whales. The 

number of Cook Inlet beluga whales 

authorized to be harassed each year, 

under annual LOAs, may vary slightly 

according to NMFS’ annual population 

estimates (generated from yearly aerial 

surveys) but will remain within 

numbers considered small relative to 

the population size. NMFS anticipates 

that take numbers will remain around 

take authorized in the 2008 IHA; 34 

whales per year. Take of harbor seals, 

harbor porpoise, and killer whales are 

likely to remain constant at 20, 20, and 

5 takes per year, all of which are 

considered small relative to the 

population sizes for each stock, as 

described in the proposed rule. 

Potential Effects on Marine Mammal 

Habitat 

The potential effects of the specified 

activity on marine mammal habitat were 

also fully described in NMFS’ Notice of 

Proposed Rulemaking (74 FR 18493, 

April 23, 2009) and are summarized 

here. Impacts on marine mammal 

habitat are part of the consideration in 

making a finding of negligible impact on 

the species and stocks of marine 

mammals. Habitat includes, but is not 

limited to, rookeries, mating grounds, 

feeding areas, and areas of similar 

significance. Upon completion, the 

MTRP will create an additional 135 

acres of useable land by filling intertidal 


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and subtidal habitat, some of which has 

already been completed. The area to be 

filled is considered rearing and nursery 

habitat for numerous marine mammal 

prey species and NMFS considered the 

permanent loss and degradation of this 

habitat in this regard when analyzing for 

a negligible impact determination. 

Based on scientific fish and habitat 

studies conducted around the POA, the 

design plan of the new port, marine 

mammal monitoring reports (and NMFS 

scientists observations of beluga whales 

feeding around the newly filled 

backlands area), and the POA/MARAD’s 

U.S. Army Corps of Engineer’s 404/10 

Permit habitat mitigation, conservation, 

and restoration requirements, NMFS has 

determined that marine mammal prey 

abundance will not be affected to a level 

which would negatively impact marine 

mammal food resources. 

Potential Effects of Specified Activities 

on Subsistence Needs 

The potential effects of the specified 

activity on subsistence needs were also 

fully described in NMFS’ Notice of 

Proposed Rulemaking (74 FR 18493, 

April 23, 2009) and are summarized 

here. Currently, no subsistence hunting 

of beluga whales is occurring. 

Traditionally, no subsistence hunting 

took place within the action area and 

given the urbanization of Anchorage 

and the presence of commercial and 

recreational use of waters near the POA, 

it is unlikely hunting would actually 

occur here in the future. Therefore, the 

MTRP will not have a direct impact on 

actual hunting location should the hunt 

occur in the future. In addition, no 

indirect impacts (i.e., availability of 

beluga whales reduced due to the 

MTRP) are anticipated. NMFS, through 

its project analysis, has determined that 

any harassment from the MTRP to 

marine mammals, including Cook Inlet 

beluga whales, will be short–term and 

limited to changes in behavior and 

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 which could decrease 

population levels, impact habitat or 

prey abundance to a level which could 

negatively impact population growth, or 

result in changes in distribution, as 

indicated by the first year of monitoring 

reports under the POA/MARAD’s IHA. 

Therefore, NMFS has determined that 

the issuance of these regulations will 

not have an unmitigable adverse impact 

on the availability of marine mammal 

stocks for subsistence uses. 

Mitigation 

To minimize impacts on marine 

mammals present within the action 

area, the POA/MARAD, in collaboration 

with NMFS, has prepared the following 

mitigation measures, which are 

incorporated into these regulations. 

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 that 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 2007 and 2008, the POA/MARAD 

conducted sound studies to obtain 

reliable estimates of distances for 190 

(pinniped Level A (injury) threshold), 

180 (cetacean Level A threshold), 160 

(impact pile driving Level B harassment 

threshold) 120 dB (in 2008) and 125 dB 

(in 2009) (vibratory pile driving Level B 

harassment threshold) isopleths. There 

was some discretion between these two 

studies; therefore, NMFS extrapolated 

the more conservative isopleths from 

each study to identify Level B 

harassment radii. Therefore, based on 

NMFS’ analysis of the acoustic data, the 

Level A and Level B harassment 

isopleth distances are 10 m (190 dB); 20 

m (180 dB); 350 m (160 dB); and 1,300 

m (125dB). Although the 190 and 180 

dB isopleths are within 20 m for both 

types of pile driving, NMFS has 

established a conservative 200 m 

mandatory shut–down safety zone 

which would require the POA to shut– 

down in–water pile driving or chipping 

any time a marine mammal enters this 

zone. 

Shut–down for Large Groups 

To reduce the chance of the POA 

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, the 

presence of calves within any 

harassment isopleth will require shut– 

down. If a calf is sighted approaching or 

within any harassment zone, 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. 


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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 

sightibility 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 of that species entering into 

the Level B harassment isopleths will 

trigger mandatory shut–down. 

Use of Impact Pile Driving Hammers 

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 

noise from vibratory hammers for 15 

seconds at reduced energy followed by 

1-minute waiting period. The procedure 

will be repeated two additional times. If 

an impact hammer is used, contractors 

will be required to provide an initial set 

of three strikes from the impact hammer 

at 40 percent energy, followed by a one 

minute waiting period, then two 

subsequent 3 strike sets (NMFS, 2003). 

If any marine mammal is sighted within 

the 200 m safety zone prior to pile– 

driving, or during the soft start, the 

hammer operator (or other authorized 

individual) will delay pile–driving until 

the animal has moved outside the 200 

m safety zone. Furthermore, if any 

marine mammal is sighted within or 

approaching a Level B harassment zone 

prior to beginning pile driving, 

operations will be delayed until the 

animals move outside the zone in order 

to minimize harassment. Pile–driving 

will resume only after a qualified 

observer determines that the marine 

mammal has moved outside the 200m 

safety or Level B harassment zone, or 

after 15 minutes have elapsed since the 

last sighting of the marine mammal 

within the safety zone. 

Demolition Mitigation 

Table 7–1 in the Demolition Plan 

outlines all mitigation measures for each 

proposed option as described in the 

Specified Activities section of this 

document. Should chipping in–water be 

the chosen method for demolition (i.e., 

Option 1), the POA will abide by the 

safety shut down zone (200 m) 

established for pile driving. Other 

mitigation including poor weather 

delays, large group shut–downs, and 

calf shut–downs will also be 

implemented for in–water chipping 

should animals enter within 200 m of 

the operating chipping hammer. 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 POA. Blasting will be 

delayed if weather does not allow for 

adequate sighting conditions. Starting 

one–half hour prior to each out–of– 

water blasting event, MMOs at the 

MTRP site will systematically scan the 

waters around the port as far as the eye 

can see, by unaided eyed and high– 

powered binoculars, for signs of marine 

mammals. If marine mammals are 

observed, blasting will be suspended 

and will not resume until the animal 

has left the view area or has not been 

re–sighted for 15 minutes. 

For in–water heavy–machinery 

operations, including dike construction, 

in–water fill placement, crushing, 

shearing, marine vessel operation, and 

steel recovery, a safety zone of 50 m is 

established. That is, if a marine mammal 

comes within 50 m of the machinery, 

operations cease and vessels slow to a 

reduced speed while still maintaining 

control of the vessel and safe working 

conditions to avoid physical injury. 

Notification of Commencement and 

Marine Mammal Sightings 

The POA/MARAD shall formally 

notify the NMFS Permits Division and 

AKR prior to the seasonal 

commencement of pile driving and shall 

provide monthly monitoring reports of 

all marine mammal sightings once pile 

driving begins. The POA/MARAD shall 

continue the formalized marine– 

mammal sighting and notification 

procedure for all POA users, visitors, 

tenants, or contractors prior to and after 

construction activities. The notification 

procedure shall clearly identify roles 

and responsibilities for reporting all 

marine mammal sightings. The POA/ 

MARAD will forward documentation of 

all reported marine mammal sightings to 

the NMFS. 

Public Outreach 

The POA/MARAD shall maintain 

whale–notification signage in the 

waterfront viewing areas near the Ship 

Creek public boat launch and within the 

secured port entrance that is visible to 

all POA users. This signage shall 

continue to provide information on the 

beluga whale notification procedures for 

reporting beluga whale sightings to the 

NMFS. 

Marine Mammal Monitoring 

The POA/MARAD will conduct 

marine mammal monitoring similar to 

that conducted during the effective 

dates of their IHA, set to expire July 14, 

2009, to assess short–term impacts and 

ensure long–term, non–neglible impacts 

are not occurring from the MTRP. The 

monitoring plan is described, in detail, 

in their application and in the proposed 

rulemaking Federal Register notice. In 

summary, the POA/MARAD will 

conduct the following monitoring under 

the regulations. 

Visual Monitoring 

Monitoring for marine mammals will 

take place concurrent with all pile 

driving activities and 30 minutes prior 

to pile driving commencement. One to 

two trained observer(s) will be placed at 

the POA at the best vantage point(s) 

practicable to monitor for marine 

mammals and will implement shut– 

down/delay procedures when 

applicable by calling for shut–down to 

the hammer operator. The observer(s) 

will have no other construction related 

tasks while conducting monitoring. 

Each observer will be properly trained 

in marine mammal species detection, 

identification and distance estimation 

and will be equipped with binoculars. 

At the time of each sighting, the pile 

hammer operator must be immediately 

notified that there are beluga whales in 

the area, their location and direction of 

travel, and if shut–down is necessary. 

Prior to the start of seasonal pile 

driving activities, the POA 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’s trained 

marine mammal observers responsible 

for monitoring the harassment zones 

and implementing mitigation measures, 

an independent beluga whale 


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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 

will 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 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 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 

determine the proportion of beluga 

whales missed from visual surveys. It 

will also further characterize the 

acoustical environment around the POA 

during and in absence of pile driving. 

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 by the 10th of the 

following month that include all marine 

mammal sightings sheets from the 

previous month and as summary of pile 

driving hours, by type, take numbers, 

and marine mammal reactions, if any. 

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. An annual 

report, as required in 50 CFR 217.205, 

must be submitted to NMFS at the time 

of application of renewal of annual 

LOAs. This report shall summarize all 

monitoring and taking for that year. A 

final report must be submitted to NMFS 

upon application for future 

authorization or, if no future 

authorizations are requested, no later 

than 90 days post expiration of these 

regulations. This report must summarize 

the findings made in all previous 

reports and assess any short and/or long 

term impacts to marine mammals at the 

POA. 

ESA 

On October 22, 2008, NMFS 

published a final rule listing Cook Inlet 

beluga whales as endangered under the 

ESA (73 FR 62919). The POA and 

MARAD, in collaboration with the 

USACE, have prepared a Biological 

Assessment and requested Section 7 

consultation initiation, as required 

under the ESA, to continue with the 

MTRP. Because NMFS’ action of 

issuance of regulations and subsequent 

LOAs authorizing harassment to marine 

mammals is a separate federal action, on 

March 24, 2009, NMFS requested 

consultation under Section 7 of the 

ESA. Consultation was initiated on May 

11, 2009. On July 13, 2009, NMFS 

issued a Biological Opinion which 

concluded that, after review of the 

current status of the Cook Inlet beluga 

whale, the environmental baseline for 

the action area, the biological and 

physical impacts of the MTRP, and 

cumulative effects, the MTRP is not 

likely to jeopardize the continued 

existence of the Cook Inlet beluga 

whale. 

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. In 

2008, NMFS prepared an EA on its 

issuance of incidental take 

authorizations for the duration of the 

MTRP. In 2009, NMFS prepared and 

solicited public comments on a draft 

SEA for its issuance of such 

authorizations, including these 

regulations. NMFS finalized this SEA on 

July 14, 2009 and has therefore 

complied with NEPA and its 

implementing regulations. 

Determinations 

Based on the information provided in 

the POA/MARAD application, NMFS’ 

EA and SEA, this document, the public 

comments submitted on the application 

and proposed rule, and the POA/ 

MARAD’s comprehensive monitoring 

reports of the activities through 2009, 

NMFS has determined that the MTRP, 

specifically pile driving and dock 

demolition, will result in no more than 

Level B harassment of small numbers of 

Cook Inlet beluga whales, harbor seals, 

harbor porpoises, and killer whales. 

NMFS has determined that the impacts 

associated with the MTRP will be 

limited to short term and localized 

changes in behavior and possibly TTS, 

masking, and stress hormone 

production. However, the manner and 

number of taking will have no more 

than a negligible impact on the affected 

species and stocks. No take by serious 

injury and/or death is anticipated, and 

the potential for permanent hearing 

impairment is unlikely. The level of 

harassment will be at the lowest 

practicable due to incorporation of the 

mitigation measures mentioned 

previously in this document. NMFS’ 

regulations for this project prescribe the 

means of effecting the least practicable 

adverse impact on marine mammals and 

their habitat and set forth requirements 

pertaining to the monitoring and 

reporting of that taking. Additionally, 

the taking of any marine mammal, 

including Cook Inlet beluga whales, will 

not have an unmitigable adverse impact 

on the availability of marine mammal 

stocks for subsistence use due to the 

reasons described in this document and 

the proposed rule. 

Classification 

The Office of Management and Budget 

has determined that this final rule is not 

significant for purposes of Executive 

Order 12866. 

Good cause exists to waive the 30-day 

delay in effectiveness for this final rule 

pursuant to 5 U.S.C. 553. The MTRP is 

an ongoing project under construction 

by the federal government through the 

USDOT Maritime Administration, with 

both federal and state/local funding and 

is currently operating under an IHA and 

USACE 404 permits. The MARAD and 

POA have ongoing and extensive 

mitigation measures in place to protect 

marine mammals (as required by the 

current permits) and no time is 

necessary to develop or initiate the 

measures required under regulations as 

final regulations do not constitute 

substantial changes to the IHA 

requirements. The construction season 

in Anchorage is very short and limited 

by frozen soils, ice in Knik Arm, and 

lack of daylight in the winter months. A 

30-day delay is a significant percentage 

of the available window to complete in– 

water projects. The POA and MARAD 

have indicated that a delay of 30 days 

would result in immediate and direct 

costs at minimum of $65,000 per day 

and one time sum of $285,000. In 

addition, delay costs will accumulate 

through the rest of the program due to 

increasing construction costs for follow– 

on work (e.g., installation of utilities, 


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installation of dock cap, and paving) 

that would be rescheduled due to delay 

in completion of the basic waterfront 

structure, and, as one of 19 U.S. 

strategic ports, delay in continuing the 

2009 construction at the waterfront 

negatively impacts military deployment 

logistics capabilities and costs to and 

from five Alaskan installations and 

remote training grounds: Elmendorf 

AFB, Fort Richardson, Eielson AFB and 

Ft. Greely. Therefore, delay in 

operations would also result in direct 

impacts to military readiness activities. 

In summary, any delay in the 

implementation of these regulations 

would result in both economic loss and 

national security implication; therefore, 

these measures will become effective 

upon signature of the final rule. NMFS 

could not undertake this action sooner 

because the applicants did not provide 

information regarding the MTRP until 

May 8, 2009; therefore, NMFS was 

unable to initiate Section 7 consultation 

until May 11, 2009. NMFS issued the 

Biological Opinion on July 13, 2009. 

At the proposed rule stage, the Chief 

Counsel for Regulation of the 

Department of Commerce certified to 

the Chief Counsel for Advocacy of the 

Small Business Administration that this 

rule, if adopted, would not have a 

significant economic impact on a 

substantial number of small entities 

since it would have no effect, directly or 

indirectly, on small businesses. Because 

of this certification, a regulatory 

flexibility analysis is not required, and 

none has been prepared. 

List of Subjects in 50 CFR Part 217 

Exports, Fish, Imports, Indians, 

Labeling, Marine mammals, Penalties, 

Reporting and recordkeeping 

requirements, Seafood, Transportation. 

Dated: July 14, 2009. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

■ For reasons set forth in the preamble, 

NMFS amends 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 activities 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 through T [Reserved] 

Subpart U––Taking Of Marine 

Mammals Incidental To The Port of 

Anchorage Marine Terminal 

Redevelopment Project 

§ 217.200 Specified activities 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 of 

Transportation Maritime Administration 

(MARAD), and those persons it 

authorizes to engage in construction 

activities associated with the Port of 

Anchorage Marine Terminal 

Redevelopment Project, specifically in– 

water pile driving, at the Port of 

Anchorage, Alaska. 

(b) [Reserved] 

§ 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 of this 

chapter and § 217.207, 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). 

(c) The taking by injury or death of 

the species listed in paragraph (b) of this 

section or the taking by Level B 

harassment, injury or death of any other 

marine mammal species is prohibited 

and may result in the modification, 

suspension, or revocation of a Letter of 

Authorization. 

§ 217.203 Prohibitions. 

Notwithstanding takings 

contemplated in § 217.202(b) and 

authorized by a Letter of Authorization 

issued under § 216.106 of this chapter 

and § 217.207, 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 of this chapter 

and § 217.207. 

§ 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 

of this chapter and § 217.207, 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 sound 

pressure levels of 190 or 180 dB re: 1 

microPa or greater for pinnipeds and 

cetaceans, respectively. If a marine 

mammal is detected within or 

approaching a distance 200 m from in– 

water pile driving or in–water chipping, 

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 marine mammal is detected 

within or approaching the Level B 

harassment zone designated for impact 

pile driving (350 m) prior to in–water 

impact pile driving, operations shall not 

commence until the animal moves 

outside this zone or it is not detected 

within 15 minutes of the last sighting. 

(3) If a marine mammal is detected 

within or approaching the Level B 

harassment zone designated for 

vibratory pile driving (1,300 m) prior to 

in–water vibratory pile driving, 

operations shall not commence until the 

marine mammal moves outside this 


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zone or it is not detected within 15 

minutes of the last sighting. 

(4) A ’’soft start’’ technique shall be 

used at the beginning of each day’s in– 

water pile driving activities or if pile 

driving has ceased for more than one 

hour to allow any marine mammal that 

may be in the immediate area to leave 

before piling driving reaches full energy. 

For vibratory hammers, the soft start 

requires the holder of the Letter of 

Authorization to initiate noise from the 

hammers for 15 seconds at reduced 

energy followed by 1-minute waiting 

period and repeat the procedure two 

additional times. If an impact hammer 

is used, the soft start requires an initial 

set of three strikes from the impact 

hammer at 40 percent energy, followed 

by a one minute waiting period, then 

two subsequent 3 strike sets. 

(5) In–water pile driving or chipping 

shall not occur when conditions restrict 

clear, visible detection of all waters 

within the appropriate harassment 

zones or the 200 m safety zone. Such 

conditions that can impair sightibility 

include, but are not limited to, fog and 

rough sea state. 

(6) 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. 

(7) In–water impact pile driving shall 

not occur during the period from two 

hours before low tide until two hours 

after low tide. 

(8) The following measures apply to 

all in–water pile driving, except during 

the ‘‘stabbing’’ phase, and all in–water 

chipping associated with demolition of 

the existing dock: 

(i) No in–water pile driving (impact or 

vibratory) or chipping shall occur if any 

marine mammal is located within 200m 

of the hammer in any direction. If any 

marine mammal is sighted within or 

approaching this 200m safety zone, 

pile–driving or chipping must be 

suspended until the animal has moved 

outside the 200m safety zone or the 

animal is not resighted within 15 

minutes. 

(ii) If a group of more than 5 beluga 

whales is sighted within the Level B 

harassment isopleths, in–water pile 

driving shall be suspended. If the group 

is not re–sighted within 15 minutes, pile 

driving may resume. 

(iii) If a beluga whale calf or group 

with a calf is sighted within or 

approaching a harassment zone, in– 

water pile driving shall cease and shall 

not be resumed until the calf or group 

is confirmed to be outside of the 

harassment zone and moving along a 

trajectory away from such zone. If the 

calf or group with a calf is not re– 

sighted within 15 minutes, pile driving 

may resume. 

(9) If maximum authorized take is 

reached or exceeded for a particular 

species, any marine mammal of that 

species entering into the harassment or 

safety isopleths will trigger mandatory 

in–water pile driving shut down. 

(10) For Port of Anchorage operated 

in–water heavy machinery work other 

than pile driving or chipping (i.e., 

dredging, dump scowles, tug boats used 

to move barges, barge mounted 

hydraulic excavators, or clamshell 

equipment used to place or remove 

material), if a marine mammal comes 

within 50 m, those operations will cease 

and vessels will reduce to the slowest 

speed practicable while still 

maintaining control of the vessel and 

safe working conditions. 

(11) 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. 

(12) 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 of this chapter and § 217.207, 

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 marine mammal observers 

(MMOs), 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, 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 scientific marine 

mammal monitoring team separate from 

the on–site MMOs to characterize 

beluga whale abundance, movements, 

behavior, and habitat use around the 

Port of Anchorage and observe, analyze, 

and document potential changes in 

behavior in response to in–water 

construction work. This monitoring 

team is not required to be present 

during all in–water pile driving 

operations but will continue monitoring 

one-year post in–water construction. 

The on–site MMOs and this marine 

mammal monitoring team shall remain 

in contact to alert each other to marine 

mammal presence when both teams are 

working. 

(c) The Holder of a Letter 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 a Letter of Authorization. 

This report will summarize all in–water 

construction activities and marine 

mammal monitoring from January 1– 

December 31, annually, and any 

discernable short or long term impacts 

from the Marine Terminal Expansion 

Project. 

(f) A final report must be submitted to 

NMFS upon application for a 

subsequent incidental take 


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Federal Register / Vol. 74, No. 137 / Monday, July 20, 2009 / Rules and Regulations 35145 

authorization or, if no future 

authorization is requested, no later than 

90 days post 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 

of this chapter) 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 

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 this section 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 of a Letter of 

Authorization will be based on the 

determination that the number of 

marine mammals taken during the 

period the Letter of Authorization is 

valid will be small, that the total taking 

of marine mammals by the activities 

specified in § 217.200(a) 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. 

(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 of this chapter and 

§ 217.207 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 of this chapter 

and § 217.207, 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) 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 of this chapter and this 

section 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 of this chapter 

and § 217.207 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 well– 

being of the species or stocks of marine 

mammals specified in § 217.202(b), a 

Letter of Authorization issued pursuant 

to § 216.106 of this chapter and 

§ 217.207 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. E9–17185 Filed 7–15–09; 4:15 pm] 

BILLING CODE 3510–22–S 


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