Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to the Port of Anchorage Marine Terminal Redevelopment Project, 18492-18516 [E9-9369]

Download as PDF 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. rwilkins on PROD1PC63 with PROPOSALS 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: * * * * * VerDate Nov<24>2008 16:23 Apr 22, 2009 Jkt 217001 (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 Frm 00016 Fmt 4702 Sfmt 4702 [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 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. PO 00000 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? [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 E:\FR\FM\23APP1.SGM 23APP1 rwilkins on PROD1PC63 with PROPOSALS Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules (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, VerDate Nov<24>2008 16:23 Apr 22, 2009 Jkt 217001 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, PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 18493 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 E:\FR\FM\23APP1.SGM 23APP1 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. VerDate Nov<24>2008 16:23 Apr 22, 2009 Jkt 217001 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 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 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 E:\FR\FM\23APP1.SGM 23APP1 18495 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules 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. 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 rwilkins on PROD1PC63 with PROPOSALS Year 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 VerDate Nov<24>2008 16:23 Apr 22, 2009 Jkt 217001 PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 E:\FR\FM\23APP1.SGM 23APP1 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 2,331 1053 rwilkins on PROD1PC63 with PROPOSALS TOTAL 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 VerDate Nov<24>2008 17:12 Apr 22, 2009 Jkt 217001 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 PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 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 E:\FR\FM\23APP1.SGM 23APP1 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules rwilkins on PROD1PC63 with PROPOSALS 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 VerDate Nov<24>2008 16:23 Apr 22, 2009 Jkt 217001 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 PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 18497 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 E:\FR\FM\23APP1.SGM 23APP1 18498 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules 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. rwilkins on PROD1PC63 with PROPOSALS 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. VerDate Nov<24>2008 16:23 Apr 22, 2009 Jkt 217001 Dredging Placement of Fill Material 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. 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. PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 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 E:\FR\FM\23APP1.SGM 23APP1 rwilkins on PROD1PC63 with PROPOSALS Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules (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 VerDate Nov<24>2008 16:23 Apr 22, 2009 Jkt 217001 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 PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 18499 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 E:\FR\FM\23APP1.SGM 23APP1 18500 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules rwilkins on PROD1PC63 with PROPOSALS 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 VerDate Nov<24>2008 16:23 Apr 22, 2009 Jkt 217001 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. 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. Beluga Whales Distribution 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 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 PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 E:\FR\FM\23APP1.SGM 23APP1 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules rwilkins on PROD1PC63 with PROPOSALS 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 VerDate Nov<24>2008 16:23 Apr 22, 2009 Jkt 217001 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 PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 18501 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. E:\FR\FM\23APP1.SGM 23APP1 rwilkins on PROD1PC63 with PROPOSALS 18502 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules 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 VerDate Nov<24>2008 16:23 Apr 22, 2009 Jkt 217001 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). PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 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., E:\FR\FM\23APP1.SGM 23APP1 18503 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules 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 Worst-Case Measured Level (dB rms) Description 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 Sheet pile- face wall, impact (deep hydrophone) N/A 100–4000 187 dB N/A <10m N/A 1,300 m 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; 6,000 200–400 2,000–7,000 2,500–4,000 8,000– 10,000 200–4,500 Not available 195 dB 1.8 5.7 57 N/A 161 188 182 195 dB dB dB dB N/A N/A N/A 1.7 N/A 2.4 1.3 5.4 1.1 23.8 13.2 54.1 60 N/A 747 N/A 175 dB 183 dB N/A N/A N/A 1.4 5.6 14.2 312 N/A 120dB at 107m 139 dB at 268m 139dB at 149m 148dB at 155m Temporary pipe pile, vibratory Hairpin, impact rwilkins on PROD1PC63 with PROPOSALS Sheet pile- tail wall, vibratory Sheet pile- tail wall, impact Wye pile, vibratory Wye pile, impact 144dB at 35m 143dB at 106m VerDate Nov<24>2008 17:12 Apr 22, 2009 Jkt 217001 PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 E:\FR\FM\23APP1.SGM 23APP1 rwilkins on PROD1PC63 with PROPOSALS 18504 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules 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 VerDate Nov<24>2008 16:23 Apr 22, 2009 Jkt 217001 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 PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 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 E:\FR\FM\23APP1.SGM 23APP1 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules rwilkins on PROD1PC63 with PROPOSALS 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’ VerDate Nov<24>2008 16:23 Apr 22, 2009 Jkt 217001 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 PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 18505 (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 E:\FR\FM\23APP1.SGM 23APP1 18506 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules rwilkins on PROD1PC63 with PROPOSALS 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 VerDate Nov<24>2008 16:23 Apr 22, 2009 Jkt 217001 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. PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 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 E:\FR\FM\23APP1.SGM 23APP1 rwilkins on PROD1PC63 with PROPOSALS Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules 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]) VerDate Nov<24>2008 16:23 Apr 22, 2009 Jkt 217001 (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 PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 18507 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 E:\FR\FM\23APP1.SGM 23APP1 rwilkins on PROD1PC63 with PROPOSALS 18508 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules 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 VerDate Nov<24>2008 16:23 Apr 22, 2009 Jkt 217001 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 PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 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 E:\FR\FM\23APP1.SGM 23APP1 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules rwilkins on PROD1PC63 with PROPOSALS 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). VerDate Nov<24>2008 17:12 Apr 22, 2009 Jkt 217001 PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 18509 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 E:\FR\FM\23APP1.SGM 23APP1 rwilkins on PROD1PC63 with PROPOSALS 18510 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules 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 VerDate Nov<24>2008 16:23 Apr 22, 2009 Jkt 217001 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. PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 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 E:\FR\FM\23APP1.SGM 23APP1 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules rwilkins on PROD1PC63 with PROPOSALS 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 VerDate Nov<24>2008 16:23 Apr 22, 2009 Jkt 217001 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. PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 18511 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 E:\FR\FM\23APP1.SGM 23APP1 18512 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules rwilkins on PROD1PC63 with PROPOSALS 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 VerDate Nov<24>2008 16:23 Apr 22, 2009 Jkt 217001 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 PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 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 E:\FR\FM\23APP1.SGM 23APP1 Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules 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. rwilkins on PROD1PC63 with PROPOSALS 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 VerDate Nov<24>2008 16:23 Apr 22, 2009 Jkt 217001 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 PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 18513 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 E:\FR\FM\23APP1.SGM 23APP1 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. Subparts A-T—[Reserved] List of Subjects in 50 CFR Part 217 § 217.201 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 rwilkins on PROD1PC63 with PROPOSALS 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. VerDate Nov<24>2008 16:23 Apr 22, 2009 Jkt 217001 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. 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 PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 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. E:\FR\FM\23APP1.SGM 23APP1 rwilkins on PROD1PC63 with PROPOSALS Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Proposed Rules (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] VerDate Nov<24>2008 16:23 Apr 22, 2009 Jkt 217001 § 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 PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 18515 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 E:\FR\FM\23APP1.SGM 23APP1 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. rwilkins on PROD1PC63 with PROPOSALS § 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 VerDate Nov<24>2008 16:23 Apr 22, 2009 Jkt 217001 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 PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 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 E:\FR\FM\23APP1.SGM 23APP1

Agencies

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


=======================================================================
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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

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


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

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

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

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

[[Page 18493]]

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

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

ADDRESSES: You may submit comments by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: http://www.regulations.gov.
     Hand delivery or mailing of paper, disk, or CD-ROM 
comments should be addressed to P. Michael Payne, Chief, Permits, 
Conservation and Education Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East-West Highway, Silver 
Spring, MD 20910-3225.
    Instructions: A copy of the application containing a list of 
references used in this document, Demolition Plan, Final Marine Mammal 
Monitoring Report for 2008, the Final 2008 Environmental Assessment 
(EA), and the Draft Supplemental Environmental Assessment (SEA) may be 
obtained by writing to the above address, by telephoning the contact 
listed under FOR FURTHER INFORMATION CONTACT, or on the Internet at: 
http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. 
Documents cited in this proposed rule may also be viewed, by 
appointment, during regular business hours at the above address. To 
help NMFS process and review comments more efficiently, please use only 
one method to submit comments. Attachments to electronic comments will 
be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file 
formats only.
    All comments received are public record and will generally be 
posted to http://www.regulations.gov without change. All Personal 
Identifying Information (for example, name, address, etc.) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
Confidential Business Information or otherwise sensitive or protected 
information. To submit anonymous comments, enter N/A in the required 
fields.

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

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs 
the Secretary of Commerce to allow, upon request, the incidental, but 
not intentional, taking of marine mammals by U.S. citizens who engage 
in a specified activity (other than commercial fishing) if certain 
findings are made and regulations are issued or, if the taking is 
limited to harassment, notice of a proposed authorization is provided 
to the public for review. Except with respect to certain activities not 
pertinent here, the MMPA defines ``harassment'' as:
    any act of pursuit, torment, or annoyance which (I) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild [Level A harassment]; or (ii) has the potential to disturb a 
marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering 
[Level B harassment].
    Authorization for incidental takings may be granted for up to 5 
years if NMFS finds that the taking will have a negligible impact on 
the species or stock(s), will not have an unmitigable adverse impact on 
the availability of the species or stock(s) for certain subsistence 
uses, and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such taking 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as: ``an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    On July 14, 2008, NMFS issued a one-year incidental harassment 
authorization (IHA) to the POA/MARAD for takes of marine mammals 
incidental to the MTRP (73 FR 41318, July 18, 2008). Intent to 
promulgate regulations was included in the March 18, 2008 Federal 
Register notice for the proposed IHA (73 FR 14443, March 18, 2008); 
however, on November 20, 2008, NMFS received an updated application 
from the POA/MARAD specifically for regulations. The application 
included, among other things, information on the demolition process of 
the existing dock, detailed take calculations, results from marine 
mammal monitoring conducted under the IHA, results of a more robust 
acoustic study, and additional mitigation. NMFS published a notice of 
receipt of application and solicitation for public comments on the 
application (73 FR 77013, December 18, 2008). NMFS is now inviting 
comments on the following proposed regulations for taking of marine 
mammals as described in this notice.

Summary of Request

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

Specified Activity

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

[[Page 18494]]

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

Pile Driving

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

[[Page 18495]]

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

     Table 1: Pile driving location, timeline, and estimated hours for the Port of Anchorage Marine Terminal
                                             Redevelopment Project.
----------------------------------------------------------------------------------------------------------------
                                                                                       Hours of       Hours of
       Year                  Location                Pile Type          Number of   Vibratory Pile   Impact Pile
                                                                          Piles         Driving        Driving
----------------------------------------------------------------------------------------------------------------
2009                          Barge Berth             fender pile            11             8              3
                          North Extension                       OCSP      4,106           496            235
                                                   temporary pile           268            17              0
---------------------------------------------------------------------------------------------------
                                                                                                           OCSP
                                                                                                    temporary
                                                                                                        pile
                                                                                                    fender pile
---------------------------------------------------------------------------------------------------
 
---------------------------------------------------------------------------------------------------
 
 
 
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[[Page 18496]]

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Demolition of the Existing Dock

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

In-Water Demolition by Mechanical Means Only- Option 1

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

[[Page 18497]]

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

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

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

[[Page 18498]]

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

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

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

Other Activities

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

[[Page 18499]]

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

Acoustic Environment

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

[[Page 18500]]

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

Beluga Whales

Status and Abundance

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

Distribution

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

[[Page 18501]]

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

Feeding

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

Hearing

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

Habitat Classification

    NMFS has characterized beluga whale habitats into three categories, 
Type I-III, based on use and biological importance as part of its 
conservation strategy in the Conservation Plan. This habitat 
designation has been slightly modified from the 2006 Draft Conservation 
Plan, which described four habitat type designations, and is described 
in the 2008 EA. Type I habitat encompasses all of Cook Inlet northeast 
of a line three miles southwest of the Beluga River across to Pt. 
Possession. These areas are full of shallow tidal flats, river mouths 
or estuarine areas, and are important foraging, calving and/or nursery 
habitats. These areas are also important for other biological needs, 
such as molting or predator avoidance. Type I habitat hosts a 
concentrated population of beluga whales from spring to fall. The POA 
and the city of Anchorage are encompassed within the southern boundary 
of Type I habitat. Type II habitat includes areas of less concentrated 
spring and summer use, but known fall and winter use. This habitat is 
based on dispersed fall and winter feeding and transit areas in waters 
where whales typically occur in smaller densities o