Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Gustavus Ferry Terminal Improvements Project, 55348-55353 [2018-24064]

Download as PDF 55348 Federal Register / Vol. 83, No. 214 / Monday, November 5, 2018 / Notices Dated: October 29, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Scope of the Order IV. Discussion of the Methodology A. Comparisons to Normal Value 1. Determination of Comparison Method 2. Results of the Differential Pricing Analysis B. Product Comparisons C. Export Price and Constructed Export Price D. Normal Value 1. Home Market Viability and Selection of Comparison Market 2. Affiliated Party Transactions and Arm’sLength Test 3. Level of Trade E. Cost of Production Analysis 1. Calculation of COP 2. Test of Comparison Market Sales Prices 3. Results of the COP Test F. Calculation of NV Based on Comparison Market Prices G. Calculation of NV Based on CV H. Currency Conversion V. Recommendation [FR Doc. 2018–24144 Filed 11–2–18; 8:45 am] BILLING CODE 3510–DS–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration National Estuarine Research Reserve System Stewardship Division, Office for Coastal Management, National Ocean Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce. ACTION: Notice of approval for the Jacques Cousteau, New Jersey National Estuarine Research Reserve Management Plan revision. AGENCY: Under applicable Federal regulations, notice is hereby given that the Stewardship Division, Office for Coastal Management, National Ocean Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce approves the revised Management Plan for the Jacques Cousteau, New Jersey National Estuarine Research Reserve Management Plan. In accordance with applicable Federal regulations, the Jacques Cousteau Reserve revised its SUMMARY: VerDate Sep<11>2014 18:38 Nov 02, 2018 Jkt 247001 Management Plan, which will replace the plan previously approved in 2009. The revised Management Plan outlines the administrative structure; the research/monitoring, stewardship, education, and training programs of the Reserve; and the plans for future land acquisition and facility development to support Reserve operations. The Jacques Cousteau Reserve takes an integrated approach to management, linking research, education, coastal training, and stewardship functions. The Reserve has outlined how it will manage administration and its core program providing detailed actions that will enable it to accomplish specific goals and objectives. Since the last management plan, the reserve has: Developed core programs; expanded monitoring programs within Jacques Cousteau and its watershed; enhanced exhibits and trails; provided technical assistance to coastal communities throughout the state of New Jersey, conducted training workshops; implemented K–12 education programs; and built new and innovative partnerships with local, state, regional, and U.S. organizations and universities. On January 9, 2018, NOAA issued a notice of a thirty day public comment period for the Jacques Cousteau Reserve revised plan (83 FR 1027). Responses to the written and oral comments received, and an explanation of how comments were incorporated into the final revised plan, are available in Appendix D of the revised plan. The revised Management Plan will serve as the guiding document for the Jacques Cousteau Reserve. View the Jacques Cousteau Reserve Management Plan at URL: https://jcnerr.org/JCNERR_ REVISEDMGMTPLAN%202018. 2022.pdf. The impacts of the revised management plan have not changed and the initial Environmental Impact Statement (EIS) prepared at the time of designation is still valid. NOAA has made the determination that the revision of the management plan will not have a significant effect on the human environment and therefore qualifies for a categorical exclusion under NOAA Administrative Order 216–6. An environmental assessment will not be prepared. FOR FURTHER INFORMATION CONTACT: Nina Garfield at (240) 533–0817 or Erica Seiden at (240) 533–0781 of NOAA’s National Ocean Service, Stewardship Division, Office for Coastal Management, 1305 East-West Highway, N/ORM5, 10th floor, Silver Spring, MD 20910. PO 00000 Frm 00003 Fmt 4703 Sfmt 4703 Dated: October 25, 2018. Keelin Kuipers, Deputy Director, Office for Coastal Management, National Ocean Service, National Oceanic and Atmospheric Administration. [FR Doc. 2018–24196 Filed 11–2–18; 8:45 am] BILLING CODE 3510–08–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XG383 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Gustavus Ferry Terminal Improvements Project National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; issuance of an Incidental Harassment Authorization. AGENCY: 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 take small numbers of animals, by Level A and Level B harassment, incidental to the Gustavus Ferry Terminal Improvements project in Gustavus, Alaska SUMMARY: The authorization is effective from December 15, 2018, through December 14, 2019. FOR FURTHER INFORMATION CONTACT: Rob Pauline, Office of Protected Resources, NMFS, (301) 427–8401. Electronic copies of the application, supporting documents, as well as the issued IHA may be obtained online at: https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/incidentaltake-authorizations-constructionactivities. In case of problems accessing these documents, please call the contact listed above. SUPPLEMENTARY INFORMATION: DATES: Background The MMPA prohibits the ‘‘take’’ of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified E:\FR\FM\05NON1.SGM 05NON1 Federal Register / Vol. 83, No. 214 / Monday, November 5, 2018 / Notices 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 incidental take authorization may be 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) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stocks for taking for certain subsistence uses (referred to in shorthand as ‘‘mitigation’’); and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. The National Defense Authorization Act for Fiscal Year 2004 (NDAA)(Pub. L. 108–136) removed the ‘‘small numbers’’ and ‘‘specified geographical region’’ limitations indicated above and amended the definition of ‘‘harassment’’ as it applies to a ‘‘military readiness activity.’’ The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below. History of Request On July 31, 2015, NMFS received an application from the Alaska Department of Transportation and Public Facilities (ADOT&PF) requesting the take of marine mammals incidental to reconstructing the existing Gustavus Ferry Terminal in Gustavus, Alaska. NMFS published a notice of proposed IHA and request for comments in the Federal Register on June 23, 2016 (81 FR 40852). We subsequently published the final notice of our issuance of the IHA on April 10, 2017 (82 FR 17209), making the IHA effective from December 15, 2017 through December 14, 2018. In-water work associated with the project was expected to be completed within the one-year timeframe of the IHA. The specified activities were expected to result in the take of seven species of marine mammals including harbor seal (Phoca vitulina), Steller sea lion (Eumetopias jubatus), harbor porpoise (Phocoena phocoena), Dall’s porpoise (Phocoenoides dalli), killer whale (Orcinus orca), humpback whale (Megaptera novaeangliae), and minke whale (Balaenoptera acutorostrata). On May 8, 2018, ADOT&PF informed NMFS that work on the project would be postponed due to design revisions and local community considerations and that no work would be completed under the 2017–2018 IHA. ADOT&PF requested that a new IHA be issued that would be effective from December 15, 2018 through December 14, 2019. NMFS published a notice of a proposed IHA and request for comments in the Federal Register on August 9, 2018 (83 FR 39424). Under this IHA, ADOT&PF will conduct pile driving activities between the in water work window dates of March 1 through May 31, 2019, and September 1 through November 30, 2019. Although there were minor modifications to the work plan covered under the issued IHA, the number of authorized takes remains unchanged from those listed in the 2017–2018 Authorization. Description of the Specified Activities The 2018–2019 IHA covers the same in-water construction activities as those covered by the 2017–2018 IHA which was issued for the modernization of the Gustavus Ferry Terminal project. Minor revisions have been made to the number and types of piles that will be installed and removed. These revisions were described by NMFS in a notice of proposed IHA and request for comments published in the Federal Register on August 9, 2018 (83 FR 39424). Additionally, NMFS refers the reader to the documents related to the previously issued 2017–2018 IHA for more detailed description of the project activities. These previous documents include the Federal Register notice of the issuance of the 2017–2018 IHA for ADOT&PF’s Gustavus Ferry Terminal Improvements project (82 FR 17209; April 10, 2017), ADOT&PF’s application, the Federal Register notice of the proposed IHA (81 FR 40852; June 23, 2016) and all associated references and documents. A detailed description of the planned vibratory and impact pile driving activities at the ferry terminal improvements project is found in these documents. The description remains accurate with the exception of the minor modifications noted below. Differences between the 2017–2018 IHA and the issued 2018–2019 IHA are shown in Table 1. Generally speaking, pile driving and removal will occur over the same number of days (maximum of 50) with installation and removal of 16 additional piles over 21 additional hours for the 2018–2019 IHA. These changes represent a 3.5 percent increase in the number of piles installed and a 21.9 percent increase in the number of piles removed. The duration of impact driving will remain the same while the time spent vibratory driving will increase by 18.4 percent. The additional time required for vibratory driving is due to the increase in anticipated number of piles removed. Note that these changes will have a nominal impact on the calculated Level A harassment isopleths and no effect on Level B harassment isopleths. Therefore, the size of the Level A harassment and Level B harassment zones remains unchanged. TABLE 1—GUSTAVUS FERRY PILE INSTALLATION AND REMOVAL SUMMARY Pile size (Inches) # of piles—2017–2018 IHA 30 ....................................................................... 24 ....................................................................... 18 ....................................................................... 16 ....................................................................... 12.75 .................................................................. Total installed/total Piles ............................ 14 ...................................................................... 40 ...................................................................... 0 ........................................................................ 0 ........................................................................ 3 install/16 remove ........................................... 57/73 ................................................................. Driving Time Duration 2017–2018 IHA (hours) Impact Driving .................................................... Vibratory Driving ................................................ Total ............................................................ 57 ...................................................................... 114 .................................................................... 171 .................................................................... VerDate Sep<11>2014 18:38 Nov 02, 2018 Jkt 247001 PO 00000 Frm 00004 Fmt 4703 Sfmt 4703 55349 # of piles—2018–2019 IHA 18. 34 install/12 remove. 4 remove. 4 install/4 remove. 3 install/9 remove. 59/89. 2018–2019 IHA (hours). 57. 135. 192. E:\FR\FM\05NON1.SGM 05NON1 55350 Federal Register / Vol. 83, No. 214 / Monday, November 5, 2018 / Notices A description of ADOT&PF’s planned project is provided in the Federal Register notice for proposed IHA (83 FR 39424; August 9, 2018). Since that time, no changes have been made to the planned activities. Therefore, a detailed description is not provided here. Please refer to that Federal Register notice and related documents for the description of the specific activity. Comments and Responses A notice of NMFS’ proposal to issue an IHA was published in the Federal Register on August 9, 2018 (83 FR 39424). That notice described ADOT&PF’s proposed activity, the marine mammal species that may be affected by the activity, and the anticipated effects on marine mammals. During the 30-day public comment period, NMFS received a single comment letter from the Marine Mammal Commission (Commission). Specific comments from the Commission’s letter and corresponding responses are provided below. Comment 1: The Commission wrote that in the original IHA application submitted in 2016, ADOT&PF proposed to use 154.3 decibels (dB) re 1 micropascal (mPa) at 10 meters (m) as the proxy source level (SL) for vibratory pile driving of 30-inch steel piles based on measurement of a single pile obtained at the ferry terminal in Kake, Alaska (McGillivray et al. 2015). The Commission noted that this measurement is much lower than other measurements obtained from vibratory pile driving of 30-in steel piles at other locations and lower than measurements obtained from another pile at Kake. The Commission asserts that the primary factor affecting the source level is the sediment composition, which at Kake consists of organic mud. However, Starkes and Stutes (2016) stated that geotechnical reports indicated that substrates at Kake and Gustavus differ and that substrates at Gustavus are composed primarily of sand and silty sands. The Commission recommended use of a mean of 166 dB re 1 mPa based on source levels obtained at other locations where the substrates are comprised of sand and silt rather than 157.7 dB re 1 mPa at 10 m NMFS adopted for Gustavus. The Commission also recommends that NMFS re-estimate the extents of the Level A and B harassment zones accordingly and increase the numbers of marine mammal takes appropriately. NMFS Response: As noted above, NMFS used a proxy source level of 157.7 dB re 1 mPa for vibratory driving of 30-in steel piles during the estimated take analysis used to develop the VerDate Sep<11>2014 18:38 Nov 02, 2018 Jkt 247001 original Gustavus IHA. ADOT&PF will be using the same type of vibratory hammers at Gustavus as were used at Kake while the pile types and sizes are comparable between the two sites. NMFS does not dispute that the SL used in the Gustavus analysis is generally lower than others that have been recorded across various sites. However, SLs for similar piles measured at different locations tend to cover a range of values. For example, SL measurements from Kodiak for vibratory driving of the same size and type of pile were even lower than those recorded at Kake, although the researchers speculated that the low values be due to the drilling/socketing of piles or sediment composition at Kodiak (Denes et al., 2017). For the Gustavus analysis, NMFS elected to use a value from the lower end of recorded ranges. In order to confirm that the SLs adopted by NMFS are appropriate for use at Gustavus, NMFS will require ADOT&PF to conduct sound source verification (SSV) testing. If the recorded SLs at Gustavus are appreciably greater than those measured at Kake, ADOT&PF will increase the shutdown and harassment zones as appropriate. Comment 2: The Commission recommends that NMFS require ADOT&PF to use at least three Protected Species Observers (PSO) to monitor the full extent of the Level B harassment zone during all vibratory pile-driving activities and ensure the numbers of animals taken are extrapolated to the full extent of the Level B harassment zone, if unable to be fully monitored. NMFS Response: NMFS believes that the existing Level B harassment zone can be adequately measured utilizing only two PSOs. The option of adding more PSOs was discussed with ADOT&PF. NMFS suggested that PSOs could be stationed on vessels or on nearby islands. However, due to the frequency, severity and unpredictability of weather in Icy Passage, ADOT&PF was reluctant to employ vessels for monitoring purposes since the safety of PSOs could be at risk. Additionally, island-based PSOs could be stranded on these uninhabited islands overnight, or longer, if retrieval vessels are unable to pick up observers due to weather conditions. NMFS concurred with these assessments. To estimate the total number of takes, NMFS will require ADOT&PF to extrapolate observed take numbers to cover the entire Level B harassment zone if portions cannot be monitored effectively by PSOs. Comment 3: The Commission recommends that NMFS (1) increase the numbers of Level A harassment takes for harbor seals, harbor porpoises, and PO 00000 Frm 00005 Fmt 4703 Sfmt 4703 Steller sea lions based on their residency patterns, social behavior, and potential to occur within the various Level A harassment zones and (2) reduce the size of the shutdown zone for Steller sea lions to reduce frequency of shutdowns. NMFS Response: NMFS discussed with ADOT&PF both increasing take of the species listed above and reducing the size of the Steller sea lion shutdown zone. Based on observational data collected by Gustavus, NMFS and the applicant believe that the existing take numbers are adequate. Note that ADOT&PF is currently required to shut down at 4 p.m., after which Steller sea lions are known to follow charter fishing vessels to the dock. Additionally, shutdown will occur when five or more Steller sea lions are observed following charter fishing vessels to the dock prior to 4 p.m. These are the conditions that would most likely result in take of Seller sea lions. Given these requirements, ADOT&PF and NMFS do not believe that the existing shutdown zone will result in a high rate of shutdowns. Comment 4: If NMFS does not follow the Commission’s recommendations, the Commission recommends that NMFS require ADOT&PF to cease its activities if authorized take limits are met. The Commission recommends that the authorization only be revised after a 30day public comment period is afforded for review of any revisions to the authorization issued in 2018. The Commission understands that in certain circumstances (e.g., unexpected impacts from El Nin˜o conditions) the numbers of authorized takes may not be sufficient. However, the Commission does not believe those types of unforeseeable circumstances should not be treated equally to those which arise from NMFS failing to authorize adequate numbers of takes. NMFS Response: NMFS believes that the number of takes authorized under this IHA is adequate to cover the action planned by ADOT&PF. As is the case for any IHA, if take numbers for one or more authorized species are exceeded, the applicant is required to cease inwater pile driving activities and contact NMFS. Furthermore, NMFS is requiring ADOT&PF to conduct SSV testing to confirm that measured sound source levels at the action site are similar to the values that were used to estimate take as well identify shutdown and harassment zone sizes. As noted in the IHA, NMFS will revise shutdown and harassment zone sizes if necessary based on SSV testing results without requiring a 30-day comment period. E:\FR\FM\05NON1.SGM 05NON1 Federal Register / Vol. 83, No. 214 / Monday, November 5, 2018 / Notices Comment 5: The Commission had previously recommended that NMFS make several general improvements for pile-driving authorizations. As part of this comment letter, the Commission indicated that NMFS should (1) incorporate the Commission’s various recommendations into its pile-driving assessment guidance, (2) finalize that guidance in the near term, including compiling source level data into a central database, and (3) make such guidance available on NMFS’s incidental take authorization website. NMFS Response: NMFS appreciates the Commission’s interest in improving pile-driving authorizations. NMFS has been developing pile-driving guidance documents that include many of the Commission’s recommendations. As soon as draft documents have been completed, they will be shared with the Commission. Once the guidance documents have been finalized, they will be posted on NMFS’s incidental take authorization website, as appropriate. Comment 6: The Commission recommends that NMFS require action proponents to provide proposed hydroacoustic monitoring plans when authorization applications are submitted and make those plans available for public comment. If such plans are not provided in a timely manner, at the very least, NMFS should provide them to the Commission for review sufficiently in advance of issuing the final authorization. NMFS Response: During the initial review period, NMFS requests that applicants provide basic information regarding proposed hydroacoustic monitoring plans as part of IHA applications. We also generally ask for comprehensive monitoring plans for review prior to publication of the final IHA. If NMFS has received the monitoring plan before publication of the final IHA, it is shared with the Commission and posted to our website. However, the MMPA does not require submission of the monitoring plan prior to publication of the final IHA. Under these conditions, NMFS indicates in the final IHA that a hydroacoustic monitoring plan must be submitted to NMFS and approved prior to initiation of the monitoring. NMFS will also share the plan with the Commission for review in such cases. Comment 7: The Commission recommends that NMFS, in lieu of adopting its proposed renewal process for extending authorizations beyond their original one-year period of validity without providing a new opportunity for public review and comment, use abbreviated Federal Register notices VerDate Sep<11>2014 18:38 Nov 02, 2018 Jkt 247001 and reference existing documents to streamline the incidental harassment authorization process. If NMFS adopts the proposed renewal process notwithstanding the Commission’s recommendation, the Commission further recommends that NMFS provide the Commission and the public with a legal analysis supporting its conclusion that the process is consistent with the requirements under section 101(a)(5)(D) of the MMPA. NMFS Response: NMFS appreciates the streamlining achieved by the use of abbreviated FR notices and intends to continue using them for proposed IHAs that include minor changes from previously issued IHAs, but which do not satisfy the renewal requirements. We believe our method for issuing renewals meets statutory requirements and maximizes efficiency. Importantly, such renewals would be limited to circumstances where: The activities are identical or nearly identical to those analyzed in the proposed IHA; monitoring does not indicate impacts that were not previously analyzed and authorized; and, the mitigation and monitoring requirements remain the same, all of which allow the public to comment on the appropriateness and effects of a renewal at the same time the public provides comments on the initial IHA. NMFS has, however, modified the language for future proposed IHAs to clarify that all IHAs, including renewal IHAs, are valid for no more than one year and that the agency would consider only one renewal for a project at this time. In addition, notice of issuance or denial of a renewal IHA would be published in the Federal Register, as they are for all IHAs. The option for issuing renewal IHAs has been in NMFS’s incidental take regulations since 1996. We will provide any additional information to the Commission and consider posting a description of the renewal process on our website before any renewal is issued utilizing this process. Description of Marine Mammals A description of the marine mammals in the area of the activities is found in these previous documents, which remains applicable to the issued 2018– 2019 IHA as well. In addition, NMFS has reviewed recent draft Stock Assessment Reports, information on relevant Unusual Mortality Events, and recent scientific literature, and determined that no new information affects our original analysis of impacts under the 2017–2018 IHA. PO 00000 Frm 00006 Fmt 4703 Sfmt 4703 55351 Potential Effects on Specified Activities on Marine Mammals and Their Habitat A description of the potential effects of the specified activities on marine mammals and their habitat may be found in these previous documents, which remains applicable to the issuance of the 2018–2019 IHA. There is no new information on potential effects. Estimated Take A detailed description of the methods and inputs used to estimate authorized take is found in these previous documents. The methods of estimating take for the 2018–2019 IHA are identical to those used in the 2017–2018 IHA. The source levels remain unchanged from the previously issued IHA, and NMFS’ 2016 acoustic technical guidance was used to address new acoustic thresholds in the notice of issuance of the 2017–2018 IHA. Specifically, local observational data was used to calculate daily take rates in the absence of density data. Since the number of pile-driving days (50) planned for both the 2017–2018 IHA and the 2018–2019 IHA are the same, the total estimated take projections will be identical. Description of Mitigation, Monitoring and Reporting Measures A description of mitigation, monitoring, and reporting measures is found in the previous documents, which are identical to those contained in the 2018–2019 IHA. The following measures would apply to ADOT&PF’s mitigation requirements: Establishment of Shutdown Zone— For all pile driving activities, ADOT&PF will establish a shutdown zone identical to those described in the initial Federal Register notice of issuance (82 FR 17209; April 10, 2017) The purpose of a shutdown zone is generally 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). In this case, shutdown zones are intended to contain areas in which sound pressure levels (SPLs) equal or exceed acoustic injury criteria for some authorized species, based on NMFS’ acoustic technical guidance published in the Federal Register on August 4, 2016 (81 FR 51693). Establishment of Monitoring Zones— ADOT&PF must establish Level A harassment zones. These zones include areas where animals may be exposed to sound levels that could result in permanent threshold shift (PTS). ADOT&PF will establish Level B harassment disturbance zones which are E:\FR\FM\05NON1.SGM 05NON1 55352 Federal Register / Vol. 83, No. 214 / Monday, November 5, 2018 / Notices areas where SPLs equal or exceed 160 dB rms for impact driving and 120 dB rms during vibratory driving. The Level A and Level B harassment zones are the same as those described in the initial Federal Register notice of issuance (82 FR 17209; April 10, 2017). Observation of monitoring zones enables observers to be aware of and communicate the presence of marine mammals in the project area and outside the shutdown zone and thus prepare for potential shutdowns of activity. NMFS has established monitoring protocols, including recording the number of animal observed in the Level A and Level B harassment zones. These protocols are described in the Federal Register notice of the issuance (82 FR 17209; April 10, 2017) and are based on the distance and size of the monitoring and shutdown zones. These same protocols are contained in this 2018– 2019 IHA. Shutdown, Level A harassment and Level B harassment zones are depicted in Table 2. TABLE 2—SHUTDOWN, LEVEL A HARASSMENT AND LEVEL B HARASSMENT ISOPLETHS ASSOCIATED WITH IMPACT AND VIBRATORY PILE DRIVING Shutdown zone—impact/ vibratory (meters) Species Steller Sea Lion ........................................................................................................................... Humpback whale ......................................................................................................................... Harbor Seal .................................................................................................................................. Harbor Porpoise ........................................................................................................................... Killer whale .................................................................................................................................. Minke whale ................................................................................................................................. Dall’s Porpoise ............................................................................................................................. Temporal and Seasonal Restrictions— Work may only occur during daylight hours, when visual monitoring of marine mammals can be conducted and all in-water construction will be limited to the periods between March 1 and May 31, 2019, and September 1 and November 30, 2019. Soft Start—The use of a soft-start procedure is believed to provide additional protection to marine mammals by providing warning and/or giving marine mammals a chance to leave the area prior to the hammer operating at full capacity. For impact pile driving, contractors will be required to implement soft start procedures. Soft start is not required during vibratory pile driving and removal activities. Visual Marine Mammal Observation—Monitoring must be conducted by PSOs, who are trained biologists, with minimum qualifications described in the Federal Register notice of the issuance of the 2017–2018 IHA (82 FR 17209; April 4, 2017). In order to effectively monitor the pile driving monitoring zones, two MMOs must be positioned at the best practical vantage point(s). If waters exceed a sea-state which restricts the observers’ ability to make observations within the shutdown zone (e.g., excessive wind or fog), pile installation and removal will cease. Pile driving will not be initiated until the entire shutdown zone is visible. MMOs shall record specific information on the sighting forms as described in the Federal Register notice of the issuance of the 2017–2018 IHA (82 FR 17209; April 10, 2017). At the conclusion of the in-water construction work, ADOT&PF VerDate Sep<11>2014 18:38 Nov 02, 2018 Jkt 247001 will provide NMFS with a monitoring report which includes summaries of recorded takes and estimates of the number of marine mammals that may have been harassed. Determinations ADOT&PF plans to conduct in-water construction activities similar to those covered in the previous 2017–2018 IHA. As described above, the number of estimated takes of the same stocks of marine mammals is the same as those authorized in the 2017–2018 IHA that were found to meet the negligible impact and small numbers standards. Our analysis showed that less than 9.07 percent of the populations of affected stocks, with the exception of minke and killer whales, could be taken by harassment. For Northern resident and West Coast transient killer whales, the percentages, when instances of take are compared to abundance, are 48.2 percent and 51.8 percent, respectively. However, the takes estimated for these stocks (up to 126 instances assuming all takes are accrued to a single stock) are not likely to represent unique individuals. Instead, we anticipate that there will be multiple takes of a smaller number of individuals. The Northern resident killer whale stock are most commonly seen in the waters around the northern end of Vancouver Island, and in sheltered inlets along B.C.’s Central and North Coasts. They also range northward into Southeast Alaska in the winter months. Pile driving operations are not permitted from December through February. It is unlikely that such a large PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 25/10 550/20 100/10 100/20 25/10 550/20 100/20 Level A harassment zone—impact (meters) n/a n/a 285 630 n/a n/a 630 Level B harassment zone—impact/ vibratory (meters) 2,090/3,265 2,090/3,265 2,090/3,265 2,090/3,265 2,090/3,265 2,090/3,265 2,090/3,265 portion of Northern resident killer whales with ranges of this magnitude would be concentrated in and around Icy Passage. NMFS believes that small numbers of the West coast transient killer whale 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 planned project activity would be stationary. 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 Passage area because a sizable portion of the stock has either not been observed in Southeast Alaska or consistently remains far south of Icy Passage. There is no current abundance estimate for minke whale since population data on this species is dated. However, the authorized take of 42 minke whales may be considered small. A visual survey for cetaceans was conducted in the central-eastern Bering Sea in July-August 1999, and in the southeastern Bering Sea in 2000. Results of the surveys in 1999 and 2000 provide E:\FR\FM\05NON1.SGM 05NON1 Federal Register / Vol. 83, No. 214 / Monday, November 5, 2018 / Notices provisional abundance estimates of 810 and 1,003 minke whales in the centraleastern and southeastern Bering Sea, respectively (Moore et al., 2002). Additionally, line-transect surveys were conducted in shelf and nearshore waters in 2001–2003 from the Kenai Fjords in the Gulf of Alaska to the central Aleutian Islands. Minke whale abundance was estimated to be 1,233 for this area (Zerbini et al., 2006). However, these estimates cannot be used as an estimate of the entire Alaska stock of minke whales because only a portion of the stock’s range was surveyed. (Allen and Anglis 2012). Clearly, 42 authorized takes should be considered a small number, as it constitutes only 5.2 percent of the smallest abundance estimate generated during the surveys just described and each of these surveys represented only a portion of the minke whale range. Therefore, the number of individual animals authorized to be taken for all species are considered small relative to the relevant stocks or populations. The 2018–2019 IHA includes mitigation, monitoring, and reporting requirements that are identical to those depicted in the 2017–2018 IHA, and there is no new information suggesting that our analysis or findings should change. Based on the information contained here and in the referenced documents, NMFS has determined the following: (1) The required mitigation measures will effect the least practicable impact on marine mammal species or stocks and their habitat; (2) the authorized takes will have a negligible impact on the affected marine mammal species or stocks; (3) the authorized takes represent small numbers of marine mammals relative to the affected stock abundances; and (4) ADOT&PF’s activities will not have an unmitigable adverse impact on taking for subsistence purposes as no relevant subsistence uses of marine mammals are implicated by this action. Endangered Species Act (ESA) Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults internally whenever we propose to authorize take for endangered or threatened species. VerDate Sep<11>2014 18:38 Nov 02, 2018 Jkt 247001 In order to comply with the ESA, NMFS Alaska Regional Office (AKR) Protected Resources Division issued a Biological Opinion on March 21, 2017 under section 7 of the ESA, on the issuance of an IHA to ADOT&PF under section 101(a)(5)(D) of the MMPA. This consultation concluded that the project was likely to adversely affect but unlikely to jeopardize the continued existence of the threatened Mexico DPS of humpback whale (Megaptera novaeangliae) or the endangered western DPS of Steller sea lion (Eumatopias jubatus), or adversely modify designated critical habitat for Steller sea lions. In a memo dated June 13, 2018, NMFS AKR concluded that reinitiation of section 7 consultation is not necessary for the issuance of the 2018– 2019 IHA. The only modification to the project is a time shift of one year. No additional take has been requested by ADOT&PF or has been authorized by NMFS. All mitigation measures described in the Biological Opinion would be implemented to reduce harassment of marine mammals and document take of marine mammals. For these reasons, we anticipate no new or changed effects of the action beyond what was considered in the 2017 Biological Opinion. National Environmental Policy Act In compliance with NOAA policy, the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), and the Council on Environmental Quality Regulations (40 CFR parts 1500– 1508), NMFS determined the issuance of the IHA qualifies to be categorically excluded from further NEPA review. This action is consistent with categories of activities identified in CE B4 of the Companion Manual for NOAA Administrative Order 216–6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Authorization As a result of these determinations, we have issued an IHA to ADOT&PF for conducting the described construction activities related to city dock and ferry terminal improvements from December 15, 2018 through December 14, 2019, provided the previously described mitigation, monitoring, and reporting requirements are incorporated. PO 00000 Frm 00008 Fmt 4703 Sfmt 9990 55353 Dated: October 26, 2018. Catherine Marzin, Deputy Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2018–24064 Filed 11–2–18; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF DEFENSE Department of the Army, Corps of Engineers Inland Waterways Users Board; Notice of Federal Advisory Committee Meeting Department of the Army, U.S. Army Corps of Engineers, DoD. AGENCY: ACTION: Notice; correction. The notice of an open meeting scheduled for November 28, 2018 published in the Federal Register on October 26, 2018 has a new date. The meeting will be held on November 29, 2018. SUMMARY: The Inland Waterways Users Board will meet from 8:00 a.m. to 12:00 p.m. on November 29, 2018. Public registration will begin at 7:15 a.m. DATES: Mr. Mark R. Pointon, the Designated Federal Officer (DFO) for the committee, in writing at the Institute for Water Resources, U.S. Army Corps of Engineers, ATTN: CEIWR–GM, 7701 Telegraph Road, Casey Building, Alexandria, VA 22315–3868; by telephone at 703–428–6438; and by email at Mark.Pointon@usace.army.mil. Alternatively, contact Mr. Kenneth E. Lichtman, the Alternate Designated Federal Officer (ADFO), in writing at the Institute for Water Resources, U.S. Army Corps of Engineers, ATTN: CEIWR–GW, 7701 Telegraph Road, Casey Building, Alexandria, VA 22315–3868; by telephone at 703–428–8083; and by email at Kenneth.E.Lichtman@ usace.army.mil. FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: None. Brenda S. Bowen, Army Federal Register Liaison Officer. [FR Doc. 2018–24147 Filed 11–2–18; 8:45 am] BILLING CODE 3720–58–P E:\FR\FM\05NON1.SGM 05NON1

Agencies

[Federal Register Volume 83, Number 214 (Monday, November 5, 2018)]
[Notices]
[Pages 55348-55353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-24064]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG383


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Gustavus Ferry Terminal 
Improvements Project

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

ACTION: Notice; issuance of an Incidental Harassment Authorization.

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

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 
take small numbers of animals, by Level A and Level B harassment, 
incidental to the Gustavus Ferry Terminal Improvements project in 
Gustavus, Alaska

DATES: The authorization is effective from December 15, 2018, through 
December 14, 2019.

FOR FURTHER INFORMATION CONTACT: Rob Pauline, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application, 
supporting documents, as well as the issued IHA may be obtained online 
at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. In case of 
problems accessing these documents, please call the contact listed 
above.

SUPPLEMENTARY INFORMATION:

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified

[[Page 55349]]

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 incidental take authorization may be 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) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other means of effecting the least practicable adverse 
impact on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of such takings are set forth.
    The National Defense Authorization Act for Fiscal Year 2004 
(NDAA)(Pub. L. 108-136) removed the ``small numbers'' and ``specified 
geographical region'' limitations indicated above and amended the 
definition of ``harassment'' as it applies to a ``military readiness 
activity.'' The definitions of all applicable MMPA statutory terms 
cited above are included in the relevant sections below.

History of Request

    On July 31, 2015, NMFS received an application from the Alaska 
Department of Transportation and Public Facilities (ADOT&PF) requesting 
the take of marine mammals incidental to reconstructing the existing 
Gustavus Ferry Terminal in Gustavus, Alaska. NMFS published a notice of 
proposed IHA and request for comments in the Federal Register on June 
23, 2016 (81 FR 40852). We subsequently published the final notice of 
our issuance of the IHA on April 10, 2017 (82 FR 17209), making the IHA 
effective from December 15, 2017 through December 14, 2018. In-water 
work associated with the project was expected to be completed within 
the one-year timeframe of the IHA. The specified activities were 
expected to result in the take of seven species of marine mammals 
including harbor seal (Phoca vitulina), Steller sea lion (Eumetopias 
jubatus), harbor porpoise (Phocoena phocoena), Dall's porpoise 
(Phocoenoides dalli), killer whale (Orcinus orca), humpback whale 
(Megaptera novaeangliae), and minke whale (Balaenoptera acutorostrata).
    On May 8, 2018, ADOT&PF informed NMFS that work on the project 
would be postponed due to design revisions and local community 
considerations and that no work would be completed under the 2017-2018 
IHA. ADOT&PF requested that a new IHA be issued that would be effective 
from December 15, 2018 through December 14, 2019. NMFS published a 
notice of a proposed IHA and request for comments in the Federal 
Register on August 9, 2018 (83 FR 39424). Under this IHA, ADOT&PF will 
conduct pile driving activities between the in water work window dates 
of March 1 through May 31, 2019, and September 1 through November 30, 
2019. Although there were minor modifications to the work plan covered 
under the issued IHA, the number of authorized takes remains unchanged 
from those listed in the 2017-2018 Authorization.

Description of the Specified Activities

    The 2018-2019 IHA covers the same in-water construction activities 
as those covered by the 2017-2018 IHA which was issued for the 
modernization of the Gustavus Ferry Terminal project. Minor revisions 
have been made to the number and types of piles that will be installed 
and removed. These revisions were described by NMFS in a notice of 
proposed IHA and request for comments published in the Federal Register 
on August 9, 2018 (83 FR 39424). Additionally, NMFS refers the reader 
to the documents related to the previously issued 2017-2018 IHA for 
more detailed description of the project activities. These previous 
documents include the Federal Register notice of the issuance of the 
2017-2018 IHA for ADOT&PF's Gustavus Ferry Terminal Improvements 
project (82 FR 17209; April 10, 2017), ADOT&PF's application, the 
Federal Register notice of the proposed IHA (81 FR 40852; June 23, 
2016) and all associated references and documents. A detailed 
description of the planned vibratory and impact pile driving activities 
at the ferry terminal improvements project is found in these documents. 
The description remains accurate with the exception of the minor 
modifications noted below.
    Differences between the 2017-2018 IHA and the issued 2018-2019 IHA 
are shown in Table 1. Generally speaking, pile driving and removal will 
occur over the same number of days (maximum of 50) with installation 
and removal of 16 additional piles over 21 additional hours for the 
2018-2019 IHA. These changes represent a 3.5 percent increase in the 
number of piles installed and a 21.9 percent increase in the number of 
piles removed. The duration of impact driving will remain the same 
while the time spent vibratory driving will increase by 18.4 percent. 
The additional time required for vibratory driving is due to the 
increase in anticipated number of piles removed. Note that these 
changes will have a nominal impact on the calculated Level A harassment 
isopleths and no effect on Level B harassment isopleths. Therefore, the 
size of the Level A harassment and Level B harassment zones remains 
unchanged.

      Table 1--Gustavus Ferry Pile Installation and Removal Summary
------------------------------------------------------------------------
                                   # of piles--2017-   # of piles--2018-
       Pile size (Inches)              2018 IHA            2019 IHA
 
------------------------------------------------------------------------
30..............................  14................  18.
24..............................  40................  34 install/12
                                                       remove.
18..............................  0.................  4 remove.
16..............................  0.................  4 install/4
                                                       remove.
12.75...........................  3 install/16        3 install/9
                                   remove.             remove.
    Total installed/total Piles.  57/73.............  59/89.
------------------------------------------------------------------------
Driving Time Duration             2017-2018 IHA       2018-2019 IHA
                                   (hours).            (hours).
------------------------------------------------------------------------
Impact Driving..................  57................  57.
Vibratory Driving...............  114...............  135.
    Total.......................  171...............  192.
------------------------------------------------------------------------


[[Page 55350]]

    A description of ADOT&PF's planned project is provided in the 
Federal Register notice for proposed IHA (83 FR 39424; August 9, 2018). 
Since that time, no changes have been made to the planned activities. 
Therefore, a detailed description is not provided here. Please refer to 
that Federal Register notice and related documents for the description 
of the specific activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the 
Federal Register on August 9, 2018 (83 FR 39424). That notice described 
ADOT&PF's proposed activity, the marine mammal species that may be 
affected by the activity, and the anticipated effects on marine 
mammals. During the 30-day public comment period, NMFS received a 
single comment letter from the Marine Mammal Commission (Commission). 
Specific comments from the Commission's letter and corresponding 
responses are provided below.
    Comment 1: The Commission wrote that in the original IHA 
application submitted in 2016, ADOT&PF proposed to use 154.3 decibels 
(dB) re 1 micropascal ([micro]Pa) at 10 meters (m) as the proxy source 
level (SL) for vibratory pile driving of 30-inch steel piles based on 
measurement of a single pile obtained at the ferry terminal in Kake, 
Alaska (McGillivray et al. 2015). The Commission noted that this 
measurement is much lower than other measurements obtained from 
vibratory pile driving of 30-in steel piles at other locations and 
lower than measurements obtained from another pile at Kake. The 
Commission asserts that the primary factor affecting the source level 
is the sediment composition, which at Kake consists of organic mud. 
However, Starkes and Stutes (2016) stated that geotechnical reports 
indicated that substrates at Kake and Gustavus differ and that 
substrates at Gustavus are composed primarily of sand and silty sands. 
The Commission recommended use of a mean of 166 dB re 1 [micro]Pa based 
on source levels obtained at other locations where the substrates are 
comprised of sand and silt rather than 157.7 dB re 1 [micro]Pa at 10 m 
NMFS adopted for Gustavus. The Commission also recommends that NMFS re-
estimate the extents of the Level A and B harassment zones accordingly 
and increase the numbers of marine mammal takes appropriately.
    NMFS Response: As noted above, NMFS used a proxy source level of 
157.7 dB re 1 [mu]Pa for vibratory driving of 30-in steel piles during 
the estimated take analysis used to develop the original Gustavus IHA. 
ADOT&PF will be using the same type of vibratory hammers at Gustavus as 
were used at Kake while the pile types and sizes are comparable between 
the two sites. NMFS does not dispute that the SL used in the Gustavus 
analysis is generally lower than others that have been recorded across 
various sites. However, SLs for similar piles measured at different 
locations tend to cover a range of values. For example, SL measurements 
from Kodiak for vibratory driving of the same size and type of pile 
were even lower than those recorded at Kake, although the researchers 
speculated that the low values be due to the drilling/socketing of 
piles or sediment composition at Kodiak (Denes et al., 2017). For the 
Gustavus analysis, NMFS elected to use a value from the lower end of 
recorded ranges. In order to confirm that the SLs adopted by NMFS are 
appropriate for use at Gustavus, NMFS will require ADOT&PF to conduct 
sound source verification (SSV) testing. If the recorded SLs at 
Gustavus are appreciably greater than those measured at Kake, ADOT&PF 
will increase the shutdown and harassment zones as appropriate.
    Comment 2: The Commission recommends that NMFS require ADOT&PF to 
use at least three Protected Species Observers (PSO) to monitor the 
full extent of the Level B harassment zone during all vibratory pile-
driving activities and ensure the numbers of animals taken are 
extrapolated to the full extent of the Level B harassment zone, if 
unable to be fully monitored.
    NMFS Response: NMFS believes that the existing Level B harassment 
zone can be adequately measured utilizing only two PSOs. The option of 
adding more PSOs was discussed with ADOT&PF. NMFS suggested that PSOs 
could be stationed on vessels or on nearby islands. However, due to the 
frequency, severity and unpredictability of weather in Icy Passage, 
ADOT&PF was reluctant to employ vessels for monitoring purposes since 
the safety of PSOs could be at risk. Additionally, island-based PSOs 
could be stranded on these uninhabited islands overnight, or longer, if 
retrieval vessels are unable to pick up observers due to weather 
conditions. NMFS concurred with these assessments. To estimate the 
total number of takes, NMFS will require ADOT&PF to extrapolate 
observed take numbers to cover the entire Level B harassment zone if 
portions cannot be monitored effectively by PSOs.
    Comment 3: The Commission recommends that NMFS (1) increase the 
numbers of Level A harassment takes for harbor seals, harbor porpoises, 
and Steller sea lions based on their residency patterns, social 
behavior, and potential to occur within the various Level A harassment 
zones and (2) reduce the size of the shutdown zone for Steller sea 
lions to reduce frequency of shutdowns.
    NMFS Response: NMFS discussed with ADOT&PF both increasing take of 
the species listed above and reducing the size of the Steller sea lion 
shutdown zone. Based on observational data collected by Gustavus, NMFS 
and the applicant believe that the existing take numbers are adequate. 
Note that ADOT&PF is currently required to shut down at 4 p.m., after 
which Steller sea lions are known to follow charter fishing vessels to 
the dock. Additionally, shutdown will occur when five or more Steller 
sea lions are observed following charter fishing vessels to the dock 
prior to 4 p.m. These are the conditions that would most likely result 
in take of Seller sea lions. Given these requirements, ADOT&PF and NMFS 
do not believe that the existing shutdown zone will result in a high 
rate of shutdowns.
    Comment 4: If NMFS does not follow the Commission's 
recommendations, the Commission recommends that NMFS require ADOT&PF to 
cease its activities if authorized take limits are met. The Commission 
recommends that the authorization only be revised after a 30-day public 
comment period is afforded for review of any revisions to the 
authorization issued in 2018. The Commission understands that in 
certain circumstances (e.g., unexpected impacts from El Ni[ntilde]o 
conditions) the numbers of authorized takes may not be sufficient. 
However, the Commission does not believe those types of unforeseeable 
circumstances should not be treated equally to those which arise from 
NMFS failing to authorize adequate numbers of takes.
    NMFS Response: NMFS believes that the number of takes authorized 
under this IHA is adequate to cover the action planned by ADOT&PF. As 
is the case for any IHA, if take numbers for one or more authorized 
species are exceeded, the applicant is required to cease in-water pile 
driving activities and contact NMFS. Furthermore, NMFS is requiring 
ADOT&PF to conduct SSV testing to confirm that measured sound source 
levels at the action site are similar to the values that were used to 
estimate take as well identify shutdown and harassment zone sizes. As 
noted in the IHA, NMFS will revise shutdown and harassment zone sizes 
if necessary based on SSV testing results without requiring a 30-day 
comment period.

[[Page 55351]]

    Comment 5: The Commission had previously recommended that NMFS make 
several general improvements for pile-driving authorizations. As part 
of this comment letter, the Commission indicated that NMFS should (1) 
incorporate the Commission's various recommendations into its pile-
driving assessment guidance, (2) finalize that guidance in the near 
term, including compiling source level data into a central database, 
and (3) make such guidance available on NMFS's incidental take 
authorization website.
    NMFS Response: NMFS appreciates the Commission's interest in 
improving pile-driving authorizations. NMFS has been developing pile-
driving guidance documents that include many of the Commission's 
recommendations. As soon as draft documents have been completed, they 
will be shared with the Commission. Once the guidance documents have 
been finalized, they will be posted on NMFS's incidental take 
authorization website, as appropriate.
    Comment 6: The Commission recommends that NMFS require action 
proponents to provide proposed hydroacoustic monitoring plans when 
authorization applications are submitted and make those plans available 
for public comment. If such plans are not provided in a timely manner, 
at the very least, NMFS should provide them to the Commission for 
review sufficiently in advance of issuing the final authorization.
    NMFS Response: During the initial review period, NMFS requests that 
applicants provide basic information regarding proposed hydroacoustic 
monitoring plans as part of IHA applications. We also generally ask for 
comprehensive monitoring plans for review prior to publication of the 
final IHA. If NMFS has received the monitoring plan before publication 
of the final IHA, it is shared with the Commission and posted to our 
website. However, the MMPA does not require submission of the 
monitoring plan prior to publication of the final IHA. Under these 
conditions, NMFS indicates in the final IHA that a hydroacoustic 
monitoring plan must be submitted to NMFS and approved prior to 
initiation of the monitoring. NMFS will also share the plan with the 
Commission for review in such cases.
    Comment 7: The Commission recommends that NMFS, in lieu of adopting 
its proposed renewal process for extending authorizations beyond their 
original one-year period of validity without providing a new 
opportunity for public review and comment, use abbreviated Federal 
Register notices and reference existing documents to streamline the 
incidental harassment authorization process. If NMFS adopts the 
proposed renewal process notwithstanding the Commission's 
recommendation, the Commission further recommends that NMFS provide the 
Commission and the public with a legal analysis supporting its 
conclusion that the process is consistent with the requirements under 
section 101(a)(5)(D) of the MMPA.
    NMFS Response: NMFS appreciates the streamlining achieved by the 
use of abbreviated FR notices and intends to continue using them for 
proposed IHAs that include minor changes from previously issued IHAs, 
but which do not satisfy the renewal requirements.
    We believe our method for issuing renewals meets statutory 
requirements and maximizes efficiency. Importantly, such renewals would 
be limited to circumstances where: The activities are identical or 
nearly identical to those analyzed in the proposed IHA; monitoring does 
not indicate impacts that were not previously analyzed and authorized; 
and, the mitigation and monitoring requirements remain the same, all of 
which allow the public to comment on the appropriateness and effects of 
a renewal at the same time the public provides comments on the initial 
IHA. NMFS has, however, modified the language for future proposed IHAs 
to clarify that all IHAs, including renewal IHAs, are valid for no more 
than one year and that the agency would consider only one renewal for a 
project at this time. In addition, notice of issuance or denial of a 
renewal IHA would be published in the Federal Register, as they are for 
all IHAs. The option for issuing renewal IHAs has been in NMFS's 
incidental take regulations since 1996. We will provide any additional 
information to the Commission and consider posting a description of the 
renewal process on our website before any renewal is issued utilizing 
this process.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
is found in these previous documents, which remains applicable to the 
issued 2018-2019 IHA as well. In addition, NMFS has reviewed recent 
draft Stock Assessment Reports, information on relevant Unusual 
Mortality Events, and recent scientific literature, and determined that 
no new information affects our original analysis of impacts under the 
2017-2018 IHA.

Potential Effects on Specified Activities on Marine Mammals and Their 
Habitat

    A description of the potential effects of the specified activities 
on marine mammals and their habitat may be found in these previous 
documents, which remains applicable to the issuance of the 2018-2019 
IHA. There is no new information on potential effects.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
authorized take is found in these previous documents. The methods of 
estimating take for the 2018-2019 IHA are identical to those used in 
the 2017-2018 IHA. The source levels remain unchanged from the 
previously issued IHA, and NMFS' 2016 acoustic technical guidance was 
used to address new acoustic thresholds in the notice of issuance of 
the 2017-2018 IHA. Specifically, local observational data was used to 
calculate daily take rates in the absence of density data. Since the 
number of pile-driving days (50) planned for both the 2017-2018 IHA and 
the 2018-2019 IHA are the same, the total estimated take projections 
will be identical.

Description of Mitigation, Monitoring and Reporting Measures

    A description of mitigation, monitoring, and reporting measures is 
found in the previous documents, which are identical to those contained 
in the 2018-2019 IHA. The following measures would apply to ADOT&PF's 
mitigation requirements:
    Establishment of Shutdown Zone--For all pile driving activities, 
ADOT&PF will establish a shutdown zone identical to those described in 
the initial Federal Register notice of issuance (82 FR 17209; April 10, 
2017) The purpose of a shutdown zone is generally 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). In 
this case, shutdown zones are intended to contain areas in which sound 
pressure levels (SPLs) equal or exceed acoustic injury criteria for 
some authorized species, based on NMFS' acoustic technical guidance 
published in the Federal Register on August 4, 2016 (81 FR 51693).
    Establishment of Monitoring Zones--ADOT&PF must establish Level A 
harassment zones. These zones include areas where animals may be 
exposed to sound levels that could result in permanent threshold shift 
(PTS). ADOT&PF will establish Level B harassment disturbance zones 
which are

[[Page 55352]]

areas where SPLs equal or exceed 160 dB rms for impact driving and 120 
dB rms during vibratory driving. The Level A and Level B harassment 
zones are the same as those described in the initial Federal Register 
notice of issuance (82 FR 17209; April 10, 2017). Observation of 
monitoring zones enables observers to be aware of and communicate the 
presence of marine mammals in the project area and outside the shutdown 
zone and thus prepare for potential shutdowns of activity. NMFS has 
established monitoring protocols, including recording the number of 
animal observed in the Level A and Level B harassment zones. These 
protocols are described in the Federal Register notice of the issuance 
(82 FR 17209; April 10, 2017) and are based on the distance and size of 
the monitoring and shutdown zones. These same protocols are contained 
in this 2018-2019 IHA. Shutdown, Level A harassment and Level B 
harassment zones are depicted in Table 2.

Table 2--Shutdown, Level A Harassment and Level B Harassment Isopleths Associated with Impact and Vibratory Pile
                                                     Driving
----------------------------------------------------------------------------------------------------------------
                                                                                                      Level B
                                                                  Shutdown zone--     Level A       harassment
                             Species                                  impact/       harassment     zone--impact/
                                                                     vibratory     zone--impact      vibratory
                                                                     (meters)        (meters)        (meters)
----------------------------------------------------------------------------------------------------------------
Steller Sea Lion................................................           25/10             n/a     2,090/3,265
Humpback whale..................................................          550/20             n/a     2,090/3,265
Harbor Seal.....................................................          100/10             285     2,090/3,265
Harbor Porpoise.................................................          100/20             630     2,090/3,265
Killer whale....................................................           25/10             n/a     2,090/3,265
Minke whale.....................................................          550/20             n/a     2,090/3,265
Dall's Porpoise.................................................          100/20             630     2,090/3,265
----------------------------------------------------------------------------------------------------------------

    Temporal and Seasonal Restrictions--Work may only occur during 
daylight hours, when visual monitoring of marine mammals can be 
conducted and all in-water construction will be limited to the periods 
between March 1 and May 31, 2019, and September 1 and November 30, 
2019.
    Soft Start--The use of a soft-start procedure is believed to 
provide additional protection to marine mammals by providing warning 
and/or giving marine mammals a chance to leave the area prior to the 
hammer operating at full capacity. For impact pile driving, contractors 
will be required to implement soft start procedures. Soft start is not 
required during vibratory pile driving and removal activities.
    Visual Marine Mammal Observation--Monitoring must be conducted by 
PSOs, who are trained biologists, with minimum qualifications described 
in the Federal Register notice of the issuance of the 2017-2018 IHA (82 
FR 17209; April 4, 2017). In order to effectively monitor the pile 
driving monitoring zones, two MMOs must be positioned at the best 
practical vantage point(s). If waters exceed a sea-state which 
restricts the observers' ability to make observations within the 
shutdown zone (e.g., excessive wind or fog), pile installation and 
removal will cease. Pile driving will not be initiated until the entire 
shutdown zone is visible. MMOs shall record specific information on the 
sighting forms as described in the Federal Register notice of the 
issuance of the 2017-2018 IHA (82 FR 17209; April 10, 2017). At the 
conclusion of the in-water construction work, ADOT&PF will provide NMFS 
with a monitoring report which includes summaries of recorded takes and 
estimates of the number of marine mammals that may have been harassed.

Determinations

    ADOT&PF plans to conduct in-water construction activities similar 
to those covered in the previous 2017-2018 IHA. As described above, the 
number of estimated takes of the same stocks of marine mammals is the 
same as those authorized in the 2017-2018 IHA that were found to meet 
the negligible impact and small numbers standards. Our analysis showed 
that less than 9.07 percent of the populations of affected stocks, with 
the exception of minke and killer whales, could be taken by harassment. 
For Northern resident and West Coast transient killer whales, the 
percentages, when instances of take are compared to abundance, are 48.2 
percent and 51.8 percent, respectively. However, the takes estimated 
for these stocks (up to 126 instances assuming all takes are accrued to 
a single stock) are not likely to represent unique individuals. 
Instead, we anticipate that there will be multiple takes of a smaller 
number of individuals.
    The Northern resident killer whale stock are most commonly seen in 
the waters around the northern end of Vancouver Island, and in 
sheltered inlets along B.C.'s Central and North Coasts. They also range 
northward into Southeast Alaska in the winter months. Pile driving 
operations are not permitted from December through February. It is 
unlikely that such a large portion of Northern resident killer whales 
with ranges of this magnitude would be concentrated in and around Icy 
Passage.
    NMFS believes that small numbers of the West coast transient killer 
whale 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 planned project activity would be stationary. 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 
Passage area because a sizable portion of the stock has either not been 
observed in Southeast Alaska or consistently remains far south of Icy 
Passage.
    There is no current abundance estimate for minke whale since 
population data on this species is dated. However, the authorized take 
of 42 minke whales may be considered small. A visual survey for 
cetaceans was conducted in the central-eastern Bering Sea in July-
August 1999, and in the southeastern Bering Sea in 2000. Results of the 
surveys in 1999 and 2000 provide

[[Page 55353]]

provisional abundance estimates of 810 and 1,003 minke whales in the 
central-eastern and southeastern Bering Sea, respectively (Moore et 
al., 2002). Additionally, line-transect surveys were conducted in shelf 
and nearshore waters in 2001-2003 from the Kenai Fjords in the Gulf of 
Alaska to the central Aleutian Islands. Minke whale abundance was 
estimated to be 1,233 for this area (Zerbini et al., 2006). However, 
these estimates cannot be used as an estimate of the entire Alaska 
stock of minke whales because only a portion of the stock's range was 
surveyed. (Allen and Anglis 2012). Clearly, 42 authorized takes should 
be considered a small number, as it constitutes only 5.2 percent of the 
smallest abundance estimate generated during the surveys just described 
and each of these surveys represented only a portion of the minke whale 
range.
    Therefore, the number of individual animals authorized to be taken 
for all species are considered small relative to the relevant stocks or 
populations.
    The 2018-2019 IHA includes mitigation, monitoring, and reporting 
requirements that are identical to those depicted in the 2017-2018 IHA, 
and there is no new information suggesting that our analysis or 
findings should change.
    Based on the information contained here and in the referenced 
documents, NMFS has determined the following: (1) The required 
mitigation measures will effect the least practicable impact on marine 
mammal species or stocks and their habitat; (2) the authorized takes 
will have a negligible impact on the affected marine mammal species or 
stocks; (3) the authorized takes represent small numbers of marine 
mammals relative to the affected stock abundances; and (4) ADOT&PF's 
activities will not have an unmitigable adverse impact on taking for 
subsistence purposes as no relevant subsistence uses of marine mammals 
are implicated by this action.

Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species.
    In order to comply with the ESA, NMFS Alaska Regional Office (AKR) 
Protected Resources Division issued a Biological Opinion on March 21, 
2017 under section 7 of the ESA, on the issuance of an IHA to ADOT&PF 
under section 101(a)(5)(D) of the MMPA. This consultation concluded 
that the project was likely to adversely affect but unlikely to 
jeopardize the continued existence of the threatened Mexico DPS of 
humpback whale (Megaptera novaeangliae) or the endangered western DPS 
of Steller sea lion (Eumatopias jubatus), or adversely modify 
designated critical habitat for Steller sea lions. In a memo dated June 
13, 2018, NMFS AKR concluded that re-initiation of section 7 
consultation is not necessary for the issuance of the 2018-2019 IHA. 
The only modification to the project is a time shift of one year. No 
additional take has been requested by ADOT&PF or has been authorized by 
NMFS. All mitigation measures described in the Biological Opinion would 
be implemented to reduce harassment of marine mammals and document take 
of marine mammals. For these reasons, we anticipate no new or changed 
effects of the action beyond what was considered in the 2017 Biological 
Opinion.

National Environmental Policy Act

    In compliance with NOAA policy, the National Environmental Policy 
Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), and the Council on 
Environmental Quality Regulations (40 CFR parts 1500-1508), NMFS 
determined the issuance of the IHA qualifies to be categorically 
excluded from further NEPA review. This action is consistent with 
categories of activities identified in CE B4 of the Companion Manual 
for NOAA Administrative Order 216-6A, which do not individually or 
cumulatively have the potential for significant impacts on the quality 
of the human environment and for which we have not identified any 
extraordinary circumstances that would preclude this categorical 
exclusion.

Authorization

    As a result of these determinations, we have issued an IHA to 
ADOT&PF for conducting the described construction activities related to 
city dock and ferry terminal improvements from December 15, 2018 
through December 14, 2019, provided the previously described 
mitigation, monitoring, and reporting requirements are incorporated.

    Dated: October 26, 2018.
Catherine Marzin,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2018-24064 Filed 11-2-18; 8:45 am]
BILLING CODE 3510-22-P