Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to a Cruise Ship Terminal Project, 31352-31365 [2015-13134]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 80, Number 105 (Tuesday, June 2, 2015)]
[Notices]
[Pages 31352-31365]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-13134]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD808


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to a Cruise Ship Terminal Project

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that we have issued an incidental harassment authorization (IHA) to the 
Huna Totem Corporation (HTC) of Hoonah, Alaska to incidentally harass, 
by Level B harassment only, nine species of marine mammals during 
construction activities associated with the re-development of the 
cruise ship terminal at Hoonah, Alaska.

DATES: This authorization is effective from June 1, 2015 through 
October 31, 2015.

FOR FURTHER INFORMATION CONTACT: Robert Pauline, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

[[Page 31353]]

Availability

    An electronic copy of HTC's application and supporting documents, 
as well as a list of the references cited in this document, may be 
obtained by visiting the Internet at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing these 
documents, please call the contact listed above (see FOR FURTHER 
INFORMATION CONTACT).

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    Authorization for incidental takings shall be granted 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 subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
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.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the U.S. can apply for an authorization to 
incidentally take small numbers of marine mammals by harassment. 
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS' review 
of an application followed by a 30-day public notice and comment period 
on any proposed authorizations for the incidental harassment of marine 
mammals. Within 45 days of the close of the comment period, NMFS must 
either issue or deny the authorization. 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].''

Summary of Request

    On June 23, 2014 we received a request from HTC for the taking of 
marine mammals incidental to pile driving and falsework pile extraction 
associated with the re-development of the Icy Strait Point Cruise Ship 
Terminal in Hoonah, Alaska. HTC submitted a revised application on 
September 9, 2014. On February 26, 2015 the applicant submitted an 
addendum to the application describing modifications to the specified 
activity. NMFS determined that the application was adequate and 
complete on February 27, 2015. HTC proposes to conduct in-water work 
that may incidentally harass marine mammals (i.e., pile driving and 
falsework removal). In addition, the project would include associated 
upland improvements, which are not anticipated to have the potential to 
result in incidental take of marine mammals. This IHA would be valid 
from June 1 through October 31, 2015. However, all pile driving is 
expected to be completed by the end of September. October has been 
included only to cover any contingencies that may arise. Hereafter, use 
of the generic term ``pile driving'' may refer to both pile 
installation and falsework removal unless otherwise noted.
    The use of vibratory pile driving is expected to produce underwater 
sound at levels that have the potential to result in behavioral 
harassment of marine mammals. Species with the expected potential to be 
present during the project timeframe include the humpback whale 
(Megaptera novaeangliae), Steller sea lion (Eumatopius jubatus), harbor 
seal (Phoca vitulina), Dall's porpoise (Phocoenoides dalli), gray whale 
(Eschrichtius robustus), harbor porpoise (Phocoena phocoena), killer 
whale (Orcinus orca), minke whale (Balaenoptera acutorostrata), and 
Pacific white-sided dolphin (Lagenorhynchus obliquidens).

Description of the Specified Activity

Overview

    The project would construct a new cruise ship berth terminal and 
associated upland improvements at the existing facility in order to 
streamline cruise ship operations at the site by constructing a 
permanent cruise ship berth, renovating existing tourist facilities and 
constructing additional tourist facilities to support cruise ship 
terminal operations at the site. The existing facility requires the 
vessel to anchor offshore, and requires passengers to be lightered 
(ferried in a smaller boat) to shore, which causes a bottleneck in 
operations. The new terminal has been designed as a floating platform 
to disembark/embark passengers so that there is a fixed elevation 
between the dock surface and the ships gangways, and to provide 
passengers with direct access to shore.
    The project will require the installation of 104 steel pipe piles 
of varying diameters below the MHHW by impact driving, down-hole 
drilling and vibratory hammer. Piles will be set by vibratory hammer 
that will cease operation as soon as bedrock is encountered. Vibratory 
hammer time should be between 10 and 30 minutes per pile. It is 
estimated that each pile will need to be driven approximately 50 feet 
to hit bedrock. Piles will then be drilled into bedrock using a down-
hole drilling system with an under reaming bit for approximately 15 
feet. This process will take an estimated 3 hours. This is a low energy 
air-powered system that releases decreased acoustic energy compared to 
impact driving. Proofing or seating of the pile into the drilled socket 
would occur with either a vibratory or impact hammer depending on the 
rock encountered and will be selected in the field based on actual sub 
surface conditions.

Dates and Duration

    In-water work, which is work occurring below the mean higher high 
water (MHHW) will be limited to pile installation and falsework pile 
extraction. These activities will be limited to the period between June 
1 and October 31, 2015 to avoid the period (15 April to 31 May) when 
spawning herring are most likely to be present within the project area. 
HTC expects pile driving will occur on up to 103 days. However, all 
pile driving is expected to be completed by the end of September. 
October has been included only to cover any contingencies that may 
arise. The overall project, including work not anticipated to result in 
incidental take, was initiated in September 2014 and will run through 
May 2016.

Specific Geographic Region

    The existing Icy Strait Point site is located in Hoonah, Alaska. 
The project site is located at the junction of Icy Strait and Port 
Frederick, in the Baranof-Chichagof Islands watershed (HUC #19010203). 
Please see Sheet 1 of

[[Page 31354]]

Appendix A in the HTC application for details.

Detailed Description of Activities

    We provided a detailed description of the proposed action in our 
Federal Register notice announcing the proposed authorization (80 FR 
14945; March 20, 2015). Please refer to that document; we provide only 
summary information here. The proposed action would involve 
construction of a new cruise ship berth terminal and associated upland 
improvements at the existing facility. The existing facility is served 
by an approximately 100-foot by 25-foot excursion dock, with an 
approximately 140-foot walkway connecting to shoreline. There is also 
an existing 40-foot by 80-foot fishing pier which is connected to the 
shore by an approximately 120-foot walkway. The new terminal would 
consist of a floating pontoon, which would be connected to the shore 
via a new trestle and transfer span. The new terminal would also 
include two new mooring dolphins, two new breasting dolphins, and three 
or more new reaction dolphins. Each of these would be interconnected 
via pile-supported catwalks.
    In-water work (work below the MHHW) will be limited to pile 
installation. Over-water work will include construction and 
installation of the steel trestle and transfer span, construction of 
the over-water portions of the mooring, breasting, and reaction 
dolphins, and construction of the catwalk spans. The floating pontoon 
will be fabricated in a dry dock and floated into position.
    In-water and over-water components of the project would be 
constructed in areas with water depths ranging between MHHW and 
approximately -60 feet mean lower low water (MLLW). The majority of the 
in-water and over-water work including construction of the mooring, 
breasting, and reaction dolphins; catwalks, a portion of the transfer 
span and floating pontoon will be completed between approximately -25 
feet and -60 feet MLLW. A detailed description of in-water and over-
water project components may be found in Table 1 of the HTC 
Application.

Comments and Responses

    A notice of HTC's proposal to issue an IHA was published in the 
Federal Register on March 20, 2014 (80 FR 14945). During the 30-day 
public comment period, both the Marine Mammal Commission and the 
National Park Service submitted letters. These letters are available on 
the Internet www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. 
All comments specific to HTC's application that address the statutory 
and regulatory requirements or findings NMFS must make to issue an IHA 
are addressed in this section of the Federal Register notice.
    Comment 1: The Commission noted that NMFS did not provide estimated 
sound source levels and potential takings associated with the down-hole 
drilling system proposed by HTC. The Commission recommends that NMFS 
include the down-the-hole drilling system in its incidental harassment 
authorization and consult with either ME DOT or the associated NMFS 
analyst regarding the appropriate Level A and B harassment zones, which 
may have been updated with in-situ measurements and take a consistent 
approach for activities it proposes to authorize in the future, 
including the use of down-the-hole drilling systems and down-hole 
hammers.
    Response 1: Down-hole drilling is an uncommon activity that has not 
usually been included as part of IHA applications or authorizations. 
The ME DOT project referenced above utilized a down-hole hammer which 
is a separate and distinct methodology from down-hole drilling. While 
down[hyphen]hole drilling is a common pile installation methodology in 
cases where piles must be seated in difficult geologic substrates, 
there is no published literature NMFS is aware of regarding the 
underwater noise generated during this type of procedure. As part of a 
2013 ESA consultation for a proposed Alaska Department of 
Transportation Kodiak Ferry Dock Reconstruction project (PCTS# AKR-
2013-9277), NMFS estimated that underwater noise levels associated with 
down[hyphen]hole drilling would be analogous to use of a hydraulic 
hammer (hydro[hyphen]hammer), and estimated a maximum underwater noise 
generation of 165 dB (re: 1 [mu]Pa at 200 Hz) associated with these 
devices. However, this analysis did not take into account any 
additional noise[hyphen]attenuating conditions associated with the 
activity.
    The operation of the down[hyphen]hole drill at the Icy Strait point 
project area will occur within the enclosed pile at depths between 5 
and 35 feet below the mudline and the pile interior will be filled with 
air which will further attenuate any underwater noise generation. Based 
on the best available information, NMFS concludes that down[hyphen]hole 
drilling is not expected to result in underwater noise that would 
result in Level B harassment of marine mammals and, therefore, need not 
be included as part of this incidental harassment authorization.
    NMFS is aware of in situ studies planned for the future which will 
include hydroacoustic sound measurement sound associated with down-hole 
drilling. As this data becomes available it will be consistently 
incorporated into future authorizations.
    Comment 2: The Commission expressed concern that the most pertinent 
in-situ source level information was not used as part of the exposure 
analysis. It was noted more recent data from the Washington Department 
of Transportation (WSDOT) may be applicable to this proposed 
authorization.
    Response 2: NMFS has reviewed the available information and is 
satisfied that the referenced measurements from the California 
Department of Transportation (Caltrans) adequately represent the 
project and site characteristics. The Commission freely acknowledged 
that the extent of the Level B harassment zone will not likely be 
affected by use of a greater source level, given that the zone is 
constrained by surrounding land before reaching its maximum extent. 
Since the Level B harassment zone would remain unchanged, NMFS does not 
believe additional analysis is warranted.
    Comment 3: The Commission and NPS noted that older data were used 
to estimate the numbers of marine mammals that would be taken during 
the proposed activities. However, the Commission and NPS believe that 
more recent sources of data are available, and these sources should be 
considered. Further, to provide a more accurate assessment of the 
numbers of marine mammals that could potentially be harassed in the 
area, the Commission and NPS recommended that NMFS re-estimate the 
numbers of takes for humpback whales, Steller sea lions, harbor 
porpoises, harbor seals, killer whales, and Dall's porpoises.
    Response 3: NMFS has reviewed the more recent data and has revised 
its take estimates for the humpback whale, Steller sea lion, harbor 
porpoise, killer whale, and Dall's porpoise. See ``Estimated Take by 
Incidental Harassment'' section below. NMFS thanks NPS and the 
Commission for the information and will include the information when 
evaluating future IHA applications and issuing authorizations.
    Comment 4: The Commission noted that the numbers of takes were 
estimated for a four-month work window with pile driving occurring on 
only 20 days. However, a modification of the scheduling plan now shows 
that pile driving may occur on up to 103 days. The Commission expressed 
concern that, while some of the take

[[Page 31355]]

estimates may be reasonable for 20 days of pile driving, 103 days of 
driving would result in vastly underestimated take estimates.
    Response 4: The proposed notice of authorization published on March 
20, 2015 (80 FR 14945) indicated that in-water down-hole drilling and 
pile driving would occur on an estimated 20 days during the four month 
authorization period. It was estimated that there would be a maximum of 
100 hours of vibratory drilling time and 10 hours of impact hammer time 
for a total in-water work time of 110 hours. The applicant modified its 
schedule, resulting in up to 103 in-water work days. This means that 
the amount of drilling per day could range from 5.5 hours for 20 days 
of drilling to 1.07 hours over 103 days. However, the potential 
exposure time over the course of the project remains unchanged at 110 
hours. Note that in this case, potential takes were assessed on the 
basis of the number of animals reasonably believed to be potentially 
present in the region during the planned four-month period. So, takes 
were not assessed on basis of 20 days and, therefore, an expansion to 
103 days does not change the calculus.
    Comment 5: The Commission wrote that in situations where the 
estimated takes are less than the mean group size, takes should be 
increased to a minimum of mean group size. This approach is most 
pertinent to take estimates for gray whales and pacific white-sided 
dolphins.
    Response 5: NMFS agrees with this assessment and has revised the 
section containing take estimates accordingly.
    Comment 6: The Commission recommends NMFS review recent sightings 
and group size data for killer whales and Dall's porpoises and increase 
the number of takes for these two species appropriately.
    Response 6: NMFS agrees with the recommendation and has made 
revisions in the section containing updated take estimates.
    Comment 7: In the proposed authorization, NMFS required observers 
to monitor the Level A and B harassment zones 20 minutes before, 
during, and 30 minutes after pile driving and removal. It also required 
that operators implement delay, power-down, or shut-down procedures 
during pile removal or driving if an animal approaches the Level A 
harassment zone. The Commission recommends that NMFS require HTC to (1) 
monitor the harassment zones at least 30 minutes before, during, and 30 
minutes after the proposed pile-driving and -removal activities and (2) 
that after a delay, power down, or shutdown, not resume activities 
until the marine mammal (a) is observed to have left the Level A 
harassment zone or (2) has not been seen or otherwise detected within 
the Level A harassment zone for 15 minutes for small odontocetes and 30 
minutes for large and medium-sized whales.
    Response 7: NMFS agrees and has incorporated these changes into the 
section below on Mitigation and Monitoring.
    Comment 8: The proposed marine mammal monitoring protocol states: 
``If waters exceed a sea-state which restricts the observers' ability 
to make observations within the marine mammal buffer zone (the 100 
meter radius) (e.g., excessive wind or fog), impact pile installation 
will cease until conditions allow the resumption of monitoring.'' NPS 
notes that there is no similar allowance to cease operations if sea 
conditions/wind/visibility restrict observers' ability to make 
observations in the Level B harassment zone, and that observers may be 
unable to document Level B takes accurately if conditions are too poor 
to see the animal.
    Response 8: Level A harassment is not authorized in this case, and 
is practicably preventable under conditions where the sea-state does 
not restrict the ability to make observations. Therefore, we cannot 
allow impact driving to occur when a reasonably observable zone cannot 
be observed because of conditions. Given the sizable Level B harassment 
zone, there is no expectation that all Level B harassment would be 
observable or observed even under favorable sea-state conditions. 
Furthermore, shutting down operations every time a marine mammal is 
sighted in the larger Level B harassment zone is likely to 
significantly extend the length of certain projects, especially those 
situated in areas that frequently feature inclement weather and 
extension of a project timeline may expose marine mammals to additional 
risk of both Level A and Level B harassment.
    Comment 9: NPS notes that the Central North Pacific Stock of 
humpback whales is estimated at 10,103 individuals. This is the best 
estimate for Hawaii only and should be revised.
    Response 9: NMFS has incorporated the correct number (5,833) of 
humpback whales in the revised section on take estimates. where 
necessary.
    Comment 10: NPS notes that HTC's monitoring plan calls for a third 
observer who will ``monitor from a boat that is conducting a transect 
along the 2,150 meter limit of the Level B harassment zone,'' However, 
Appendix B, Fig B-3 of the Huna Totem application shows the boat 
transect covering a much broader area (all the way to the mouth of 
Excursion Inlet, also including Homeshore and all of Port Frederick). 
Why will the vessel-based observer monitor this broad area? It extends 
beyond the project area and may detract from the observer's ability to 
detect animals within the project area.
    Response 10: The Level B harassment zone for impact driving is 
2,154 m while the same zone for vibratory driving extends to 21.5 km. 
Figure B-2 accurately depicts the Level B harassment zone boundary for 
impact pile driving activities.
    Comment 11: NPS states that there is no data source, analysis, or 
modelling used to reach NMFS' conclusion that the potential for 
increased vessel interaction or collisions associated with the proposed 
action are expected to be insignificant.
    Response 11: There is little data available that could be used to 
model vessel interactions and strikes and these statements were 
provided as background information. The IHA is specifically concerned 
with only the proposed activity (in-water construction). Discussion of 
long-term increased potential for strike due to increased cruise ship 
traffic at the new terminal is outside the scope of analysis here.

Description of Marine Mammals in the Area of the Specified Activity

    There are nine marine mammal species known to occur in the Icy 
Strait region of SE Alaska during the project's timeframe. These 
include the humpback whale, Steller sea lion, harbor seal, Dall's 
porpoise, gray whale, harbor porpoise, killer whale, minke whale, and 
Pacific white-sided dolphin.
    We have reviewed HTC's detailed species descriptions, including 
life history information, for accuracy and completeness and refer the 
reader to Section 3 of HTC's application as well as the proposed 
incidental harassment authorization published in the Federal Register 
(80 FR 14945) instead of reprinting the information here. Please also 
refer to NMFS' Web site (www.nmfs.noaa.gov/pr/species/mammals) for 
generalized species accounts which provide information regarding the 
biology and behavior of the marine resources that occur in SE Alaska. 
We provided additional information for the potentially affected stocks, 
including details of stock-wide status, trends, and threats, in our 
Federal Register notice of proposed authorization (80 FR 14945, March 
20, 2015). Note that the estimated population of humpback whales has

[[Page 31356]]

been updated from 10,103 to 5,833 to reflect more recent stock 
assessment report data.
    Table 1 lists the twelve marine mammal stocks that could occur in 
the vicinity of Icy Strait Point during the project timeframe and 
summarizes key information regarding stock status and abundance. 
Taxonomically, we follow Committee on Taxonomy (2014). Please see NMFS' 
Stock Assessment Reports (SAR), available at www.nmfs.noaa.gov/pr/sars, 
for more detailed accounts of these stocks' status and abundance.

                                        Table 1--List of Marine Mammal Species Under NMFS Jurisdiction That Occur
                                        in the Vicinity of the HTC Cruise Ship Terminal Re-Development Project *
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                                                                                                           Stock abundance (CV,
            Common name                     Stock             Scientific name          ESA status;          Nmin, most recent       Relative  occurrence
                                                                                    strategic Y/N \1\      abundance  survey) *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
                                                                  Family Eschrichtiidae
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Gray whale........................  Eastern North Pacific  Eschrichtius robustus  Not listed/N........  19,126 (0.071; 18,017;     Uncommon.
                                     Stock.                                                              2007).
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                                                            Family Balaenopteridae (rorquals)
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Humpback whale....................  Entire Central North   Megaptera              Endangered/Y........  5,833....................  Common.
                                     Pacific Stock.         novaeangliae.
Minke whale.......................  Gulf of Alaska and     Balaenoptera           Not listed/N........  1,233....................  Uncommon.
                                     Western Aleutians.     acutorostrata).
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                            Order Cetartiodactyla--Cetacea--Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
                                                                   Family Delphinidae
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Pacific white-sided dolphin.......  Entire North Pacific   Lagenorhynchus         Not listed/N........  26,880 (N/A; N/A; 1990)..  Uncommon.
                                     Stock.                 obliquidens.
Killer whale......................  AK Resident Stock....  Orcinus orca.........  Not listed/N........  2,347 (N/A; 2,347; 2012).  Common.
                                    GOA, Bering Sea,                                                    587 (N/A; 587; 2012).....  Uncommon.
                                     Aleutian Transient
                                     Stock.
                                    West Coat Transient                                                 354 (N/A; 243; 2009).....  Uncommon.
                                     Stock.
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                                                             Family Phocoenidae (porpoises)
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Harbor porpoise...................  Southeast Alaskan      Phocoena phocoena....  Not listed/S........  11,146 (0.242; 9,116;      Common.
                                     Stock.                                                              1997).
Dall's porpoise...................  Alaska...............  Phocoenoides dalli...  Not listed/NS.......  83,000 (0.097; N/A; 1993)  Common.
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                                                         Order Carnivora--Superfamily Pinnipedia
                                                      Family Otariidae (eared seals and sea lions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Steller Sea Lion..................  Eastern DPS..........  Eumatopius jubatus...  Not Listed \2\/S....  60,131-74,448 (36,551;     Common.
                                                                                                         2013).
                                    Western DPS..........                         Endangered/S........  55,422 (48,676; 2013)....  Common.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Family Phocidae (earless seals)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal.......................  Glacier Bay/Icy        Phoca vitulina.......  Not listed/NS.......  5,042 (4,735; 2007)......  Common.
                                     Strait Stock.
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* Estimated abundance numbers come primarily from NMFS 2014 Draft Alaska Marine Mammal Stock Assessment Report (Allen and Angliss 2014), with the
  exception of the abundance data for gray whale, which comes from the Draft 2013 Pacific Region Marine Mammal Stock Assessment Report (Carretta et al.
  2013).
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). Under the MMPA, a strategic stock is one for which
  the level of direct human-caused mortality exceeds potential biological removal (PBR) or which is determined to be declining and likely to be listed
  under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a
  strategic stock.
\2\ The eastern distinct population segment of the Steller sea lion, previously listed under the ESA as threatened, was delisted on December 4, 2013 (78
  FR 66140; November 4, 2013). This delisting action implies that the stock is no longer designated as depleted or as a strategic stock under the MMPA.

Potential Effects of the Specified Activity on Marine Mammals

    The Federal Register notice of proposed authorization (80 FR 14945, 
March 20, 2015), incorporated here by reference, provides a general 
background on sound relevant to the specified activity as well as a 
detailed description of marine mammal hearing and of the potential 
effects of these construction activities on marine mammals.

Anticipated Effects on Habitat

    We described potential impacts to marine mammal habitat in detail 
in our Federal Register notice of proposed authorization (80 FR 14945, 
March 20, 2015). In summary, the project activities would not modify 
existing marine

[[Page 31357]]

mammal habitat. The activities may cause some fish to leave the area of 
disturbance, thus temporarily impacting marine mammals' foraging 
opportunities in a limited portion of the foraging range; but, because 
of the short duration of the activities and the relatively small area 
of the habitat that may be affected, the impacts to marine mammal 
habitat are not expected to cause significant or long-term negative 
consequences for individual marine mammals or their populations

Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to such 
activity, ``and other means of effecting the least practicable impact 
on such species or stock and its habitat, paying particular attention 
to rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stock for taking'' for certain 
subsistence uses.
    Measurements from similar pile driving events were coupled with 
practical spreading loss to estimate zones of influence (ZOI; see 
``Estimated Take by Incidental Harassment''). ZOIs are often used to 
establish a mitigation zone around each pile (when deemed practicable) 
to prevent Level A harassment to marine mammals, and also provide 
estimates of the areas within which Level B harassment might occur. 
ZOIs may vary between different diameter piles and types of 
installation methods. In addition to the measures described later in 
this section, HTC will employ the following standard mitigation 
measures:
    (a) Conduct briefings between construction supervisors and crews, 
marine mammal monitoring team, and HTC staff prior to the start of all 
pile driving activity, and when new personnel join the work, in order 
to explain responsibilities, communication procedures, marine mammal 
monitoring protocol, and operational procedures.
    (b) For in-water heavy machinery work other than pile driving 
(using, e.g., standard barges, tug boats, barge-mounted excavators, or 
clamshell equipment used to place or remove material), if a marine 
mammal comes within 10 m, operations shall cease and vessels shall 
reduce speed to the minimum level required to maintain steerage and 
safe working conditions. This type of work could include the following 
activities: (1) Movement of the barge to the pile location or (2) 
positioning of the pile on the substrate via a crane (i.e., stabbing 
the pile).

Monitoring and Shutdown for Pile Driving

    The following measures apply to HTC's mitigation through shutdown 
and disturbance zones:
    Shutdown Zone--For all pile driving activities, HTC will establish 
a shutdown zone. Shutdown zones are intended to contain the area in 
which SPLs equal or exceed the 180/190 dB rms acoustic injury criteria, 
with the purpose being to define an area within which shutdown of 
activity would occur upon sighting of a marine mammal (or in 
anticipation of an animal entering the defined area), thus preventing 
injury of marine mammals. For vibratory driving, HTC's activities are 
not expected to produce sound at or above the 180 dB rms injury 
criterion (see ``Estimated Take by Incidental Harassment''). As 
described above, HTC would, however, implement a minimum shutdown zone 
of 10 m radius for all marine mammals around all vibratory pile driving 
and removal activity and 100 m radius around impact pile driving 
activity. These precautionary measures are intended to further reduce 
the unlikely possibility of injury from direct physical interaction 
with construction operations.
    Disturbance Zone--Disturbance zones are the areas in which SPLs 
equal or exceed 120 dB rms (for continuous sound) for pile driving 
installation and removal. Disturbance zones provide utility for 
monitoring conducted for mitigation purposes (i.e., shutdown zone 
monitoring) by establishing monitoring protocols for areas adjacent to 
the shutdown zones. Monitoring of disturbance zones enables observers 
to be aware of and communicate the presence of marine mammals in the 
project area but outside the shutdown zone and thus prepare for 
potential shutdowns of activity. However, the primary purpose of 
disturbance zone monitoring is for documenting incidents of Level B 
harassment; disturbance zone monitoring is discussed in greater detail 
later (see ``Monitoring and Reporting''). Nominal radial distances for 
disturbance zones are shown in Table 2. Given the size of the 
disturbance zone for vibratory pile driving, it is impossible to 
guarantee that all animals would be observed or to make comprehensive 
observations of fine-scale behavioral reactions to sound. We discuss 
monitoring objectives and protocols in greater depth in ``Monitoring 
and Reporting.''
    In order to document observed incidents of harassment, monitors 
record all marine mammal observations, regardless of location. The 
observer's location, as well as the location of the pile being driven, 
is known from a GPS. The location of the animal is estimated as a 
distance from the observer, which is then compared to the location from 
the pile and the estimated ZOIs for relevant activities (i.e., pile 
installation and removal). This information may then be used to 
extrapolate observed takes to reach an approximate understanding of 
actual total takes.
    Time Restrictions--Work would occur only during daylight hours, 
when visual monitoring of marine mammals can be conducted. In addition, 
all in-water construction will be limited to the period between June 1 
and October 31, 2015. However, all pile driving is expected to be 
completed by the end of September. October has only been included to 
cover any contingencies that may arise.
    Soft Start--The use of a soft start procedure is believed to 
provide additional protection to marine mammals by warning or providing 
a chance to leave the area prior to the hammer operating at full 
capacity, and typically involves a requirement to initiate sound from 
the hammer at reduced energy followed by a waiting period. This 
procedure is repeated two additional times. It is difficult to specify 
the reduction in energy for any given hammer because of variation 
across drivers and, for impact hammers, the actual number of strikes at 
reduced energy will vary because operating the hammer at less than full 
power results in ``bouncing'' of the hammer as it strikes the pile, 
resulting in multiple ``strikes.'' The project will utilize soft start 
techniques for both impact and vibratory pile driving. We require HTC 
to initiate sound from vibratory hammers for fifteen seconds at reduced 
energy followed by a thirty-second waiting period, with the procedure 
repeated two additional times. For impact driving, we require an 
initial set of three strikes from the impact hammer at reduced energy, 
followed by a thirty-second waiting period, then two subsequent three 
strike sets. Soft start will be required at the beginning of each day's 
pile driving work and at any time following a cessation of pile driving 
of 20 minutes or longer (specific to either vibratory or impact 
driving).
    Monitoring Protocols--Monitoring would be conducted before, during, 
and after pile driving and removal activities. In addition, observers 
shall record all incidents of marine mammal occurrence, regardless of 
distance from activity, and shall document any behavioral reactions in 
concert with distance from piles being driven. Observations made 
outside the

[[Page 31358]]

shutdown zone will not result in shutdown; that pile segment would be 
completed without cessation, unless the animal approaches or enters the 
shutdown zone, at which point all pile driving activities would be 
halted. Monitoring will take place from thirty minutes prior to 
initiation through thirty minutes post-completion of pile driving 
activities. Pile driving activities include the time to remove a single 
pile or series of piles, as long as the time elapsed between uses of 
the pile driving equipment is no more than thirty minutes. Please see 
the Marine Mammal Monitoring Plan (available at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm), developed by HTC with our 
approval, for full details of the monitoring protocols.
    The following additional measures apply to visual monitoring:
    (1) Monitoring will be conducted by qualified observers, who will 
be placed at the best vantage point(s) practicable to monitor for 
marine mammals and implement shutdown/delay procedures when applicable 
by calling for the shutdown to the hammer operator. Qualified observers 
are trained biologists, with the following minimum qualifications:
    (a) Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance; use of binoculars 
may be necessary to correctly identify the target;
    (b) Advanced education in biological science or related field 
(undergraduate degree or higher required);
    (c) Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience);
    (d) Experience or training in the field identification of marine 
mammals, including the identification of behaviors;
    (e) Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
    (f) Writing skills sufficient to prepare a report of observations 
including but not limited to the number and species of marine mammals 
observed; dates and times when in-water construction activities were 
conducted; dates and times when in-water construction activities were 
suspended to avoid potential incidental injury from construction sound 
of marine mammals observed within a defined shutdown zone; and marine 
mammal behavior; and
    (g) Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.
    (2) Prior to the start of pile driving activity, the shutdown zone 
will be monitored for 30 minutes to ensure that it is clear of marine 
mammals. Pile driving will only commence once observers have declared 
the shutdown zone clear of marine mammals; animals will be allowed to 
remain in the shutdown zone (i.e., must leave of their own volition) 
and their behavior will be monitored and documented. The shutdown zone 
may only be declared clear, and pile driving started, when the entire 
shutdown zone is visible (i.e., when not obscured by dark, rain, fog, 
etc.). In addition, if such conditions should arise during impact pile 
driving that is already underway, the activity would be halted.
    If a marine mammal approaches or enters the shutdown zone during 
the course of pile driving operations, activity will be halted and 
delayed until either the animal has voluntarily left and been visually 
confirmed beyond the shutdown zone or 15 minutes have passed for small 
odontocetes and pinnipeds and 30 minutes have passed for large and 
medium-sized whales without re-detection of the animal. Monitoring will 
be conducted throughout the time required to drive a pile.
    (3) The area within the Level B harassment threshold for impact 
driving (shown in Figure B-2 of Appendix B of the revised marine mammal 
monitoring plan) will be monitored by the field monitor stationed 
either on the pile driving rig or in the vicinity, and by a second 
qualified field monitor stationed on or in the vicinity of Halibut 
Island near the 2,154 meter limit of the Level B harassment zone for 
impact driving. A third qualified observer will also monitor from a 
boat that is conducting a transect along the 21,500 meter limit of the 
Level B harassment zone for vibratory driving. Marine mammal presence 
within this Level B harassment zone, if any, will be monitored, but 
impact pile driving activity will not be stopped if marine mammals are 
found to be present. Any marine mammal documented within the Level B 
harassment zone during impact driving would constitute a Level B take 
(harassment), and will be recorded and reported as such.

Mitigation

    We have carefully evaluated the HTC's proposed mitigation measures 
and considered their effectiveness in past implementation to determine 
whether they are likely to effect the least practicable impact on the 
affected marine mammal species and stocks and their habitat. Our 
evaluation of potential measures included consideration of the 
following factors in relation to one another: (1) The manner in which, 
and the degree to which, the successful implementation of the measure 
is expected to minimize adverse impacts to marine mammals, (2) the 
proven or likely efficacy of the specific measure to minimize adverse 
impacts as planned; and (3) the practicability of the measure for 
applicant implementation.
    Any mitigation measure(s) we prescribe should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    (1) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    (2) A reduction in the number (total number or number at 
biologically important time or location) of individual marine mammals 
exposed to stimuli expected to result in incidental take (this goal may 
contribute to 1, above, or to reducing takes by behavioral harassment 
only).
    (3) A reduction in the number (total number or number at 
biologically important time or location) of times any individual marine 
mammal would be exposed to stimuli expected to result in incidental 
take (this goal may contribute to 1, above, or to reducing takes by 
behavioral harassment only).
    (4) A reduction in the intensity of exposure to stimuli expected to 
result in incidental take (this goal may contribute to 1, above, or to 
reducing the severity of behavioral harassment only).
    (5) Avoidance or minimization of adverse effects to marine mammal 
habitat, paying particular attention to the prey base, blockage or 
limitation of passage to or from biologically important areas, 
permanent destruction of habitat, or temporary disturbance of habitat 
during a biologically important time.
    (6) For monitoring directly related to mitigation, an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on our evaluation of HTC's proposed measures, including 
information from monitoring of implementation of mitigation measures 
very similar to those described here under previous IHAs from other 
marine construction projects, we have determined that the proposed 
mitigation

[[Page 31359]]

measures provide the means of effecting the least practicable impact on 
marine mammal species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
incidental take authorizations must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the proposed action area.
    Any monitoring requirement we prescribe should improve our 
understanding of one or more of the following:
    (1) An increase in the probability of detecting marine mammals, 
both within the mitigation zone (thus allowing for more effective 
implementation of the mitigation) and in general to generate more data 
to contribute to the analyses mentioned below;
    (2) An increase in our understanding of how many marine mammals are 
likely to be exposed to levels of pile driving that we associate with 
specific adverse effects, such as behavioral harassment, TTS, or PTS;
    (3) An increase in our understanding of how marine mammals respond 
to stimuli expected to result in take and how anticipated adverse 
effects on individuals (in different ways and to varying degrees) may 
impact the population, species, or stock (specifically through effects 
on annual rates of recruitment or survival) through any of the 
following methods:
    [ssquf] Behavioral observations in the presence of stimuli compared 
to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
    [ssquf] Physiological measurements in the presence of stimuli 
compared to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
    [ssquf] Distribution and/or abundance comparisons in times or areas 
with concentrated stimuli versus times or areas without stimuli;
    (4) An increased knowledge of the affected species; and
    (5) An increase in our understanding of the effectiveness of 
certain mitigation and monitoring measures.
    HTC submitted a marine mammal monitoring plan as part of the IHA 
application for this project, which can be found on the Internet at 
www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. The plan may 
be modified or supplemented based on comments or new information 
received from the public during the public comment period.

Visual Marine Mammal Observations

     Three individuals meeting the minimum qualifications 
identified in Appendix B of the monitoring plan submitted by HTC will 
monitor the Level A and B harassment zones during impact pile driving, 
and the Level B harassment zone during vibratory pile driving.
     During impact pile driving, the area within 100 meters of 
pile driving activity will be monitored and maintained as marine mammal 
buffer area in which pile installation will not commence or will be 
suspended temporarily if any marine mammals are observed within or 
approaching the area of potential disturbance. This area will be 
monitored by one qualified field monitor stationed either on the pile 
driving rig or in the immediate vicinity.
     The area within the Level B harassment threshold for 
impact driving (shown in Figure B-2 of Appendix B of the revised marine 
mammal monitoring plan) will be monitored by the field monitor 
stationed either on the pile driving rig or in the vicinity, and by a 
second qualified field monitor stationed on or in the vicinity of 
Halibut Island near the 2,150 meter limit of the Level B harassment 
zone. A third qualified observer will also monitor from a boat that is 
conducting a transect along the 2,154 meter limit of the Level B 
harassment zone. Marine mammal presence within this Level B harassment 
zone, if any, will be monitored, but impact pile driving activity will 
not be stopped if marine mammals are found to be present. Any marine 
mammal documented within the Level B harassment zone during impact 
driving would constitute a Level B take (harassment), and will be 
recorded and reported as such.
     During vibratory pile driving, the area within 10 meters 
of pile driving activity will be monitored and maintained as a marine 
mammal buffer area in which pile installation will not commence or will 
be suspended temporarily if any marine mammals are observed within or 
approaching the area of potential disturbance. The Level B harassment 
area will be monitored by three qualified observers (Figure B-3). One 
individual will be stationed either on the pile driving rig or in the 
immediate vicinity, a second individual will be stationed on either 
Halibut Island or a location in the vicinity, and a third observer will 
be located on a vessel that is conducting meander transects throughout 
the Level B harassment zone. The monitoring staff will record any 
presence of marine mammals by species, will document any behavioral 
responses noted, and record Level B takes when sightings overlap with 
pile installation activities.
     The individuals will scan the waters within each 
monitoring zone activity using binoculars (Vector 10X42 or equivalent), 
spotting scopes (Swarovski 20-60 zoom or equivalent), and visual 
observation.
     The area within which the Level A harassment thresholds 
could be exceeded (the 100 meter radius) will be maintained as a marine 
mammal exclusion zone, in which impact pile driving will be shut down 
immediately if any marine mammal is observed with the area.
     The area within which the Level B harassment thresholds 
could be exceeded during impact pile driving (Figure B-2) and vibratory 
pile driving (Figure B-3) will also be monitored for the presence of 
marine mammals during all impact and vibratory pile driving. Marine 
mammal presence within these zones, if any, will be monitored but pile 
driving activity will not be stopped if marine mammals were found to be 
present. Any marine mammal documented within the Level B harassment 
zone will constitute a Level B take, and will be recorded and used to 
document the number of take incidents.
     If waters exceed a sea-state which restricts the 
observers' ability to make observations within the marine mammal buffer 
zone (the 100 meter radius) (e.g. excessive wind or fog), impact pile 
installation will cease until conditions allow the resumption of 
monitoring.
     The waters will be scanned for 30 minutes before, during, 
and 30 minutes after any and all pile driving and removal activities.
     If marine mammals enter or are observed within the 
designated marine mammal buffer zone (the 100m radius) during or 30 
minutes prior to pile driving, the monitors will notify the on-site 
construction manager to not begin until the animal has moved outside 
the designated radius.
     If a marine mammal approaches the Level A harassment zone, 
HTC must implement delay, power-down, or shut-

[[Page 31360]]

down procedures during pile driving and removal. After a delay, power 
down, or shutdown, pile driving and removal activities will not resume 
until the marine mammal (a) is observed to have left the Level A 
harassment zone or (b) has not been seen or otherwise detected within 
the Level A harassment zone for 15 minutes for small odontocetes and 
pinnipeds and 30 minutes for large and medium-sized whales.
     The waters will continue to be scanned for at least 30 
minutes after pile driving has completed each day, and after each 
stoppage of 30 minutes or greater.

Data Collection

    We require that observers use approved data forms. Among other 
pieces of information, HTC will record detailed information about any 
implementation of shutdowns, including the distance of animals to the 
pile and description of specific actions that ensued and resulting 
behavior of the animal, if any. In addition, HTC will attempt to 
distinguish between the number of individual animals taken and the 
number of incidents of take. We require that, at a minimum, the 
following information be collected on the sighting forms:
     Date and time that monitored activity begins or ends;
     Construction activities occurring during each observation 
period;
     Weather parameters (e.g., percent cover, visibility);
     Water conditions (e.g., sea state, tide state);
     Species, numbers, and, if possible, sex and age class of 
marine mammals;
     Description of any observable marine mammal behavior 
patterns, including bearing and direction of travel and distance from 
pile driving activity;
     Distance from pile driving activities to marine mammals 
and distance from the marine mammals to the observation point;
     Locations of all marine mammal observations; and
     Other human activity in the area.

Reporting

    HTC would provide NMFS with a draft monitoring report within 90 
days of the conclusion of the proposed construction work. This report 
will detail the monitoring protocol, summarize the data recorded during 
monitoring, and estimate the number of marine mammals that may have 
been harassed. If no comments are received from NMFS within 30 days, 
the draft final report will constitute the final report. If comments 
are received, a final report must be submitted within 30 days after 
receipt of comments.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, 
section 3(18) of 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].''
    All anticipated takes would be by Level B harassment resulting from 
impact and vibratory pile driving/removal and involving temporary 
changes in behavior. Injurious or lethal takes are not expected due to 
the expected source levels and sound source characteristics associated 
with the activity, and the planned mitigation and monitoring measures 
are expected to further minimize the possibility of such take.
    If a marine mammal responds to a stimulus by changing its behavior 
(e.g., through relatively minor changes in locomotion direction/speed 
or vocalization behavior), the response may or may not constitute 
taking at the individual level, and is unlikely to affect the stock or 
the species as a whole. However, if a sound source displaces marine 
mammals from an important feeding or breeding area for a prolonged 
period, impacts on animals or on the stock or species could potentially 
be significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007). Given 
the many uncertainties in predicting the quantity and types of impacts 
of sound on marine mammals, it is common practice to estimate how many 
animals are likely to be present within a particular distance of a 
given activity, or exposed to a particular level of sound.
    This practice potentially overestimates the numbers of marine 
mammals taken because it is often difficult to distinguish between the 
individuals harassed and incidences of harassment. In particular, for 
stationary activities, it is more likely that some smaller number of 
individuals may accrue a number of incidences of harassment per 
individual than for each incidence to accrue to a new individual, 
especially if those individuals display some degree of residency or 
site fidelity and the impetus to use the site (e.g., because of 
foraging opportunities) is stronger than the deterrence presented by 
the harassing activity.
    HTC has requested authorization for the incidental taking of small 
numbers of humpback whale, Steller sea lion, harbor seal, Dall's 
porpoise, gray whale, harbor porpoise, killer whale (Orcinus orca), 
minke whale, and Pacific white-sided dolphin near Icy Strait Point that 
may result from vibratory and impact pile driving during construction 
activities associated with the re-development of the cruise ship 
terminal described previously in this document.
    In order to estimate the potential incidents of take that may occur 
incidental to the specified activity, we must first estimate the extent 
of the sound field that may be produced by the activity and then 
consider in combination with information about marine mammal density or 
abundance in the project area. We first provide information on 
applicable sound thresholds for determining effects to marine mammals 
before describing the information used in estimating the sound fields, 
the available marine mammal density or abundance information, and the 
method of estimating potential incidences of take. We provided detailed 
information on applicable sound thresholds for determining effects to 
marine mammals as well as describing the information used in estimating 
the sound fields, the available marine mammal density or abundance 
information, and the method of estimating potential incidences of take, 
in our Federal Register notice of proposed authorization (80 FR 14945; 
March 20, 2015). Due to more recent population and abundance estimates 
pointed out by the Commission and NPS, some of the take estimates have 
been revised and are described below (see also ``Comments and 
Responses'' above).

[[Page 31361]]



                                Table 2--Distances to Relevant Sound Thresholds *
----------------------------------------------------------------------------------------------------------------
              Distance to threshold                   190 dB          180 dB          160 dB          120 dB
----------------------------------------------------------------------------------------------------------------
Vibratory Driving...............................  ..............  ..............             n/a         21.5 km
Impact Driving..................................          21.5 m           100 m         2,154 m  ..............
----------------------------------------------------------------------------------------------------------------
* SPLs used for calculations were: 195 dB for impact driving, 170 dB for vibratory diving.

    According to the Caltrans (2012) compendium, there is an average 
sound pressure level of 195 dB rms for impact driving of 60-in pile and 
170 dB rms reported for 72-in steel pipe pile vibratory driving. Based 
on the formula listed above, it has been determined that the 190 dB rms 
Level A harassment (injury) threshold for underwater noise for pinniped 
species could be exceeded at a distance of up to approximately 22 
meters during impact pile driving activities, and the 180 dB rms Level 
A harassment (injury) threshold for cetacean species could be exceeded 
at a distance of up to approximately 100 meters during impact pile 
driving activities. Additionally, the 160 dB rms Level B harassment 
(behavioral disruption) threshold for impulsive source underwater noise 
for pinniped and cetacean species could be exceeded at a distance of up 
to approximately 2,150 meters during impact pile driving and the 120 dB 
Level B harassment threshold could be exceeded at 21,544 meters during 
vibratory driving as is shown in Table 2.
    Note that the actual area ensonified by pile driving activities is 
significantly constrained by local topography relative to the threshold 
radius depicted in Table 2. This is represented in in the monitoring 
plan submitted by HTC in Appendix B, Figure B-1.
    The estimated takes for several species has been revised after 
receiving comments from the Commission and NPS and these revisions are 
described below.
    Humpback whale--There are no density estimates of humpback whales 
available in the action area. The best available information on the 
distribution of these marine mammals in the study area is data obtained 
from a National Park Service humpback whale study. Neilson et al. 
(2014) documented a total of 237 individual humpback whales (including 
10 mother-calf pairs) in Glacier Bay and adjacent waters of Icy Strait 
in the 2013 peak survey period between June and August. This is the 
highest yearly count of individual humpback whales since the survey 
began in 1985. Of these 237 whales, 148 were documented as remaining in 
the vicinity for a period greater than 20 days. One year later in the 
Icy Strait sub-area of the 2014 NPS survey, 202 humpback whales were 
counted. Because whales move freely back and forth between Glacier Bay 
and Icy Strait, NMFS used the higher total survey count of 237 whales 
from 2013, or an average of almost 79 whales per month, to estimate 
exposure. Given that the period of active pile driving will be up to 
four months (June through September), a worst-case estimate would 
predict that up to 316 (79*4) Level B takes of humpback whale could 
occur as a result of the proposed action. This estimate is likely 
conservative given that action area for this project is smaller than 
the overall survey area and smaller than the portion of the survey 
conducted in Icy Strait.
    Steller sea lion--Womble et al. (2009) conducted mean monthly 
counted of Steller sea lions at multiple haulout sites in Southeast 
Alaska between 2001 and 2004. The haulout site nearest to Hoonah was 
Rocky Island which featured monthly averages of 2 sea lions or less for 
June, July and August while 174 were sighted in September. Barlow et 
al. (in press) reported number of sightings, numbers of individuals, 
and sightings per unit effort data from opportunistic marine mammal 
surveys conducted in Glacier Bay and Icy Strait between 2005 and 2014. 
Steller sea lions were observed at relatively high densities around 
Point Adolphus and other locations in Icy Strait and in various places 
inside Glacier Bay. The highest count of observed individuals was 395 
sea lions between June and August of 2008, which equates to 132 
sightings per month. Since the authorization period is four months, 
this estimate would mean that up to 528 (132*4) individual Level B 
takes of Steller sea lions could occur as a result of pile driving 
activities. This figure is within the range of findings published in 
the 2009 study by Womble et al.
    Harbor seal--A recent study by Barlow et al. (in press) of Glacier 
Bay and Icy Strait determined that an average of 26 sightings occurred 
each month between June and August of 2014. This would result in an 
estimated 104 takes during the July through August authorization 
period. While the harbor seal population has notably declined in the 
Glacier Bay area between 1992 and 2009 (Womble et al. 2013, 2010), 
these seals are not uncommon in the Icy Strait and Port Frederick area. 
As such, there exists the possibility of numerous repeated takes of the 
same animal. Therefore, NMFS believes that the original conservative 
estimate of 480 harbor seal takes is more realistic for this species.
    Dall's porpoise--The Barlow et al. (in press) study documented 9 
individual Dall's porpoises in Glacier Bay across three months in 2007, 
for an average of 3 sightings per month. Based on this data, a worst-
case estimate would mean that up to 12 (3*4) individual Level B takes 
of Dall's porpoise could occur as a result of pile driving activities. 
However, Dahlheim et al. (2008) recorded 346 sightings of Dall's 
porpoise in Southeast Alaska during the summer (June/July) of 2007, 
resulting in an average of 173 observations per month. Over a four-
month activity period (4*173) this would result in an estimated 692 
takes during the authorization period. Dahlheim et al. (2008) also 
reported that high concentrations of this porpoise were encountered in 
Icy Strait. Given the broader geographic focus of Barlow et al. (in 
press) and the high concentrations of Dall's porpoise reported in the 
Icy Strait area by Dahlheim et al. (2008), NMFS believes that an 
estimate of 692 takes of Dall's porpoise is based on the best available 
information and is appropriate for this authorization.
    Gray whale--Gray whales are not common in Icy Strait during the 
summer months. The Barlow et al. (in press) study documented only 3 
whales, each occurring in a different year, over the course of the ten 
year study period. The Commission suggested NMFS increase allowed take 
to reflect the mean group size. Gray whales usually occur in groups of 
1 to 3. NMFS will conservatively assume that during every month of the 
activity period a single group of 3 whales may occur in the Level B 
harassment zone (3*4), which would result in a conservative estimate of 
12 gray whale takes during the Authorization.
    Harbor porpoise--Harbor porpoises are known to occur regularly in 
the Icy Strait area. Dahlheim (2015) indicated that 332 resident harbor 
porpoises occur in the Icy Strait area, and are known to use the Port 
Frederick area as part of

[[Page 31362]]

their core range. The population has been declining across Southeast 
Alaska since the early 1990's (Dahlheim et al. 2012). During a 2014 
survey Barlow et al. (in press) observed 462 harbor porpoises in the 
Glacier Bay and Icy Strait area during a three-month summer survey 
period. This was the highest number observed during the 10 year study, 
with an average of 154 porpoise per month. Given that harbor porpoise 
are known to frequent this area, NMFS has revised its take estimates. 
NMFS will assume that all 322 resident harbor porpoises will occur in 
the Level B harassment area each month (322*4) resulting in 1,288 
takes.
    Killer whale--Killer whales occur commonly in the waters of the 
action area, and could include members of several designated stocks 
that may occur in the vicinity of the proposed project area. Whales are 
known to use the Icy Strait corridor to enter and exit inland waters 
and are observed in every month of the year, with certain pods being 
observed inside Port Frederick passing directly in front of Hoonah 
(Dahlheim 2015).
    NMFS examined only summer and fall (no spring) results from a line-
transect survey by Dalheim et al. (2008) and determined the maximum 
number of combined resident and transient killer whales. During a 
single two-month survey period (September/October) of 1992, 173 
resident whales were observed, or an average of 87 per month. The 
greatest number of transient sightings occurred in 1993 with 32 
sightings over two months for an average of 16 sightings per month. 
Combining maximum resident and transient whales sighting per month 
(87+16) results in a monthly average of 103 and a total take estimate 
of (103*4) 412 killer whales over the 4 month activity period. Mean 
group size for resident killer whales in summer was greatest in 2004 at 
45. For transients the mean group average also peaked during the same 
year at 15. Recent information provided by Dahlheim (2015) indicated 
that group sizes for specific resident killer whale pods found in the 
Icy Strait area ranged from 42 to 79. Using the best information 
available, NMFS has estimated take at 412 killer whales which allows 
for Level B take of several large pods of killer whales during the 
authorization period and also account for multiple repeated counts of 
pods.
    Minke whale--The original take estimate provided in the Federal 
Register (80 FR 14945) requesting public comments remains unchanged as 
no comments were received regarding Minke whales.
    Pacific white-sided dolphin--Dalheim et al. 2008 did not observe 
Pacific white-sided dolphins during the summer season during the final 
years (2006, 2007) of a survey run in the years 1991 through 2007. 
These dolphins were observed intermittently during the years 1992 and 
1993 when there were 39 and 122 sightings, respectively. However, 
members of this species have not been observed in Frederick Strait 
since the early 1990's. The Commission recommended utilizing a mean 
group size when estimating take for this species if it is anticipated 
to be encountered in low numbers. The mean group size ranged from 19.5 
(1992) to 152.5(1996). As part of a conservative approach, NMFS will 
authorize Level B take of 153 white-sided dolphins.

        Table 3--Estimated Numbers of Incidences That Marine Mammals May Be Exposed to Level B Harassment
----------------------------------------------------------------------------------------------------------------
                                                                  Total proposed
                             Species                                authorized       Abundance     Percentage of
                                                                     takes ***                      total stock
----------------------------------------------------------------------------------------------------------------
Humpback whale--CNP Stock (Southeast Alaska aggregation)........             316   5,833 (2,251)      5.4 (14.0)
Steller sea lion (Eastern DPS)..................................             528          36,551          * 14.4
Steller sea lion (Western DPS)..................................  ..............          48,676           * 1.1
Harbor seal.....................................................             480           5,042             9.5
Dall's porpoise.................................................             692          83,400           <0.01
Gray whale......................................................              12          19,126           <0.01
Harbor porpoise.................................................            1288          11,146            11.5
Killer whale (AK Resident Stock; GOA, Aleutian Islands, Bering               412        ** 3,288        \+\ 12.5
 Sea Transient Stock; West Coast Transient Stock)...............
Minke whale.....................................................               8           1,233           <0.01
Pacific white-sided dolphin.....................................             153          26,880           <0.01
----------------------------------------------------------------------------------------------------------------
* These percentages assume a worst-case, unlikely scenario in which all 528 estimated takes accrue to a single
  Steller sea lion DPSs.
** Combined populations of AK Resident Stock; GOA, Aleutian Islands, Bering Sea Transient Stock; and West Coast
  Transient Stock.
*** Note that these numbers assume that every modeled take happens to a different animal, which is unlikely, as
  both individuals and groups of marine mammals are observed utilizing the same geographic location repeatedly.
\+\ See Small Numbers section for further explanation.

Analyses and Determinations

Negligible Impact Analysis

    Negligible impact is ``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'' (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of Level B harassment takes, 
alone, is not enough information on which to base an impact 
determination. In addition to considering estimates of the number of 
marine mammals that might be ``taken'' through behavioral harassment, 
NMFS must consider other factors, such as the likely nature of any 
responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, migration, etc.), as 
well as the number and nature of estimated Level A harassment takes, 
the number of estimated mortalities, effects on habitat, and the status 
of the species.
    To avoid repetition, the discussion of our analyses applies to all 
the species listed in Table 3, given that the anticipated effects of 
this pile driving project on marine mammals are expected to be 
relatively similar in nature. There is no information about the size, 
status, or structure of any species or stock that would lead to a 
different analysis for this activity, else species-specific factors 
would be identified and analyzed.
    Pile driving activities associated with the cruise ship terminal 
re-development, as outlined previously, have the potential to disturb 
or displace marine mammals. Specifically, the specified activities may 
result in take, in

[[Page 31363]]

the form of Level B harassment (behavioral disturbance) only, from 
underwater sounds generated from pile driving. Potential takes could 
occur if individuals of these species are present in the ensonified 
zone when pile driving is happening.
    No injury, serious injury, or mortality is anticipated given the 
nature of the activity and measures designed to minimize the 
possibility of injury to marine mammals. The potential for these 
outcomes is minimized through the construction method and the 
implementation of the planned mitigation measures. Specifically, 
vibratory hammers will be the primary method of installation, though 
impact driving may be used for brief, irregular periods. Vibratory 
driving does not have significant potential to cause injury to marine 
mammals due to the relatively low source levels produced (site-specific 
acoustic monitoring data show no source level measurements above 180 dB 
rms) and the lack of potentially injurious source characteristics. 
Impact pile driving produces short, sharp pulses with higher peak 
levels and much sharper rise time to reach those peaks. When impact 
driving is necessary, required measures (implementation of shutdown 
zones) significantly reduce any possibility of injury. Given sufficient 
``notice'' through use of soft start (for impact driving), marine 
mammals are expected to move away from a sound source that is annoying 
prior to its becoming potentially injurious. The likelihood that marine 
mammal detection ability by trained observers is high under the 
environmental conditions described for Icy Strait Point further enables 
the implementation of shutdowns to avoid injury, serious injury, or 
mortality.
    HTC's proposed activities are localized and of short duration. The 
entire project area is limited to the Icy Strait cruise ship terminal 
area and its immediate surroundings. The project will require the 
installation of a total of approximately 104 steel pipe piles of 
varying diameters below the MHHW. Piles that will be used include 24-
inch, 30-inch, 42-inch, and 60-inch steel pipe piles. Total impact 
hammer time would not exceed 5 minutes per pile for 104 piles resulting 
in less than 10 hours of driving time. Total vibratory hammer time 
would not exceed 5 hours on any one given day over the course of an 
estimated 103 driving days, nor would it exceed more than 100 hours 
over a four-month period. These localized and short-term noise 
exposures may cause brief startle reactions or short-term behavioral 
modification by the animals. These reactions and behavioral changes are 
expected to subside quickly when the exposures cease. Moreover, the 
proposed mitigation and monitoring measures are expected to reduce 
potential exposures and behavioral modifications even further. 
Additionally, no important feeding and/or reproductive areas for marine 
mammals are known to be near the proposed action area. Therefore, the 
take resulting from the proposed HTC re-development of the Icy Strait 
Point Cruise Ship Terminal is not reasonably expected to and is not 
reasonably likely to adversely affect the marine mammal species or 
stocks through effects on annual rates of recruitment or survival.
    The project also is not expected to have significant adverse 
effects on affected marine mammals' habitat, as analyzed in detail in 
the ``Anticipated Effects on Marine Mammal Habitat'' section. The 
project activities would not modify existing marine mammal habitat. The 
activities may cause some fish to leave the area of disturbance, thus 
temporarily impacting marine mammals' foraging opportunities in a 
limited portion of the foraging range; but, because of the short 
duration of the activities and the relatively small area of the habitat 
that may be affected, the impacts to marine mammal habitat are not 
expected to cause significant or long-term negative consequences.
    Effects on individuals that are taken by Level B harassment, on the 
basis of reports in the literature as well as monitoring from other 
similar activities, will likely be limited to reactions such as 
increased swimming speeds, increased surfacing time, or decreased 
foraging (if such activity were occurring) (e.g., Thorson and Reyff, 
2006; HDR, 2012; Lerma, 2014). Most likely, individuals will simply 
move away from the sound source and be temporarily displaced from the 
areas of pile driving, although even this reaction has been observed 
primarily only in association with impact pile driving. In response to 
vibratory driving, pinnipeds (which may become somewhat habituated to 
human activity in industrial or urban waterways) have been observed to 
orient towards and sometimes move towards the sound. The pile driving 
activities analyzed here are similar to, or less impactful than, 
numerous construction activities conducted in other similar locations, 
which have taken place with no reported injuries or mortality to marine 
mammals, and no known long-term adverse consequences from behavioral 
harassment. Repeated exposures of individuals to levels of sound that 
may cause Level B harassment are unlikely to result in hearing 
impairment or to significantly disrupt foraging behavior. Thus, even 
repeated Level B harassment of some small subset of the overall stock 
is unlikely to result in any significant realized decrease in fitness 
for the affected individuals, and thus would not result in any adverse 
impact to the stock as a whole. Level B harassment will be reduced to 
the level of least practicable impact through use of mitigation 
measures described herein and, if sound produced by project activities 
is sufficiently disturbing, animals are likely to simply avoid the 
project area while the activity is occurring.
    In summary, this negligible impact analysis is founded on the 
following factors: (1) The possibility of injury, serious injury, or 
mortality may reasonably be considered discountable; (2) the 
anticipated incidents of Level B harassment consist of, at worst, 
temporary modifications in behavior; (3) the absence of any significant 
habitat within the project area, including rookeries, significant haul-
outs, or known areas or features of special significance for foraging 
or reproduction; (4) the presumed efficacy of the proposed mitigation 
measures in reducing the effects of the specified activity to the level 
of least practicable impact. In combination, we believe that these 
factors, as well as the available body of evidence from other similar 
activities, demonstrate that the potential effects of the specified 
activity will have only short-term effects on individuals. The 
specified activity is not expected to impact rates of recruitment or 
survival and will therefore not result in population-level impacts.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
HTC's re-development of the Icy Strait Point Cruise Ship Terminal will 
have a negligible impact on the affected marine mammal species or 
stocks.

Small Numbers Analysis

    Table 3 demonstrates the number of animals that could be exposed to 
received noise levels that could cause Level B behavioral harassment 
for the proposed work associated with the re-development of the Icy 
Strait Point Cruise Ship Terminal in Hoonah, Alaska. The analyses 
provided represents between <0.01% to 14.4% of the stocks of humpback 
whale, Steller sea lion, harbor seal, Dall's porpoise, gray whale, 
harbor porpoise, minke

[[Page 31364]]

whale, and Pacific white-sided dolphin that could be affected by Level 
B behavioral harassment. NMFS therefore concludes that small numbers of 
these stocks will be taken relative to the total populations of the 
affected species or stocks.
    As explained previously, we are proposing to authorize 412 takes 
(Level B harassment only) of killer whales from three stocks of killer 
whales that are known to occur in the Icy Strait area: (1) Alaska 
resident stock with an estimated population of 2,347; (2) Gulf of 
Alaska, Aleutian Islands, and Bering Sea transient stock with an 
estimated population of 587; and (3) West Coast transient stock with an 
estimated population of 354. Given that all three stocks occur in the 
Icy Strait Area, the 412 proposed takes will most likely be apportioned 
among the three stocks. As described in the estimated take section, 
based on sightings data, NMFS expects approximately 348 takes (87 per 
month * 4 months) of the resident stock to occur and 64 (16 per month * 
4 months) of the two transient stocks to occur. These numbers are small 
relative to the population sizes of the resident and transient stocks. 
Furthermore, NMFS notes that the number of takes proposed to be 
authorized represents the estimated incidents of take, not the number 
of individuals taken. More likely, fewer individuals would be taken, 
but a subset would be taken more than one time during the duration of 
the Authorization.
    Specific resident pods are frequently encountered throughout Icy 
Strait according to Dalheim (2015). These would be the AG pod numbering 
a minimum of 42 whales and the AF pod with a minimum count of 79 
whales. Whales from these two pods have been seen in the area every 
month of the year and the Icy Strait corridor is a major route for them 
both entering and exiting inland waters. The AG pod, specifically, has 
been observed on numerous occasions inside Port Frederick, passing 
directly off shore of Hoonah. As such, many of the anticipated takes 
are likely to be repeated takes of the same animals from AG and AF 
pods. However, even in a worst-case scenario in which all 412 takes 
came from the resident stock, the number of takes would still be small 
compared to the population size (approximately 17.6%).
    As stated above, the anticipated number of takes attributable to 
the transient stocks (64) is small compared to the population sizes of 
both the West coast transient stock and the Gulf of Alaska, Aleutian 
Islands, and Bering Sea transient stock. Further, NMFS also believes 
that small numbers of the West Coast transient stock would be taken 
based on the limited region of exposure in comparison with the known 
distribution of the transient stock. The West Coast transient stock 
ranges from Southeast Alaska to California while the proposed project 
activity would be stationary. As described in the Description of Marine 
Mammals in the Area of the Specified Activity section in our Federal 
Register notice announcing the proposed authorization (80 FR 14945; 
March 20, 2015), a notable percentage of West Coast transient whales 
have never been observed in Southeast Alaska. Only 155 West Coast 
transient killer whales have been identified as occurring in Southeast 
Alaska according to Dahlheim and White (2010). The same study 
identified three pods of transients, equivalent to 19 animals, that 
remained almost exclusively in the southern part of Southeast Alaska 
(i.e. Clarence Strait and Sumner Strait). This information indicates 
that only a small subset of the entire West Coast Transient stock would 
be at risk for take in the Icy Strait area because a sizable portion of 
the stock has either not been observed in Southeast Alaska or 
consistently remains far south of Icy Strait. Similarly, only a very 
small number of Gulf of Alaska, Aleutian Islands, and Bering Sea 
transient killer whales have been observed in Southeast Alaska with 
sightings being an uncommon occurrence (Dalheim 2015). Whales from this 
stock occur mainly from Prince William Sound through the Aleutian 
Islands and Bering Sea and are spread across a vast area.
    In summary, NMFS concludes that small numbers of each of the three 
stocks of killer whales known to occur in the Icy Strait region will be 
taken relative to the population sizes of the affected stocks. This 
conclusion is based on the small likelihood that all of the incidents 
of take would come from only one stock; the reduced percentage of 
transient stocks of killer whales likely to be found in the Icy Strait 
area due to the wide geographic distribution of these two stocks; and 
the likelihood of repeated exposures of both transient and resident 
whales, especially among the two resident pods identified as commonly 
frequenting the waters near the action area.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, which are expected to reduce the number of marine mammals 
potentially affected by the proposed action, NMFS finds that small 
numbers of marine mammals will be taken relative to the populations of 
the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no subsistence uses of marine mammals in the proposed 
project area; and, thus, no subsistence uses impacted by this action. 
The nearest locations where subsistence hunting may occur are at Eagle 
Point, located approximately 10 miles distant from the Icy Strait 
Cruise Terminal project site and at Flynn Cove, located approximately 
7.5 miles from the project site. Peak subsistence hunting months are 
March, May, and October and the pile driving is slated to occur in the 
June to September timeframe. Therefore, NMFS has determined that the 
total taking of affected species or stocks would not have an 
unmitigable adverse impact on the availability of such species or 
stocks for taking for subsistence purposes.

Endangered Species Act (ESA)

    There are two marine mammal species that are listed as endangered 
under the ESA with confirmed or possible occurrence in the study area: 
humpback whale and Steller sea lion (Western DPS). NMFS' Permits and 
Conservation Division initiated consultation with NMFS' Protected 
Resources Division under section 7 of the ESA on the issuance of an IHA 
to HTC under section 101(a)(5)(D) of the MMPA for this activity. NMFS' 
Protected Resources Division concluded that the proposed action is 
likely to adversely affect, but not likely to jeopardize these species.

National Environmental Policy Act (NEPA)

    NMFS has prepared an Environmental Assessment (EA) in accordance 
with the National Environmental Policy Act (NEPA) which considered 
comments submitted in response to this notice as part of that process. 
The EA and Finding of No Significant Impact (FONSI) are posted at 
https://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.

Authorization

    As a result of these determinations, we have issued an IHA to HTC 
for conducting the described activities at Icy Strait Point, Alaska, 
from June 1, 2015 through October 31, 2015 provided the previously 
described mitigation, monitoring, and reporting requirements are 
incorporated.


[[Page 31365]]


    Dated: May 22, 2015.
Perry Gayaldo,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2015-13134 Filed 6-1-15; 8:45 am]
 BILLING CODE 3510-22-P