Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to City of Juneau Waterfront Improvement Project, 24490-24498 [2019-10973]

Download as PDF 24490 Federal Register / Vol. 84, No. 102 / Tuesday, May 28, 2019 / Notices mammals, by harassment, incidental to the Juneau dock and harbor waterfront improvement project. DATES: This authorization is effective from July 15, 2019, through July 14, 2020. FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected Resources, NMFS, (301) 427–8401. Electronic copies of the application and supporting documents, as well as the issued IHA, may be obtained online at: https://www.fisheries.noaa.gov/permit/ incidental-take-authorizations-undermarine-mammal-protection-act. In case of problems accessing these documents, please call the contact listed above. SUPPLEMENTARY INFORMATION: Juneau, Alaska, from June 15, 2019 to June 14, 2020. After receiving the revised project description and the revised IHA application, NMFS determined that the IHA application is adequate and complete on January 30, 2019. Neither the CBJ nor NMFS expect mortality or serious injury to result from this activity and, therefore, an IHA is appropriate. On April 17, 2019, CBJ sent a request to NMFS to change the IHA dates to cover the period between July 15, 2019, and July 14, 2020. NMFS has issued an IHA to CBJ for the take by Level B harassment of harbor seal (Phoca vitulina) incidental to its waterfront improvement project. Overview The purpose of the CBJ’s project is to improve the downtown waterfront area within Gastineau Channel in Juneau, Alaska, to accommodate the needs of the growing cruise ship visitor industry and its passengers while creating a waterfront that meets the expectations of a world-class facility. The project would meet the needs of an expanding cruise ship industry and its passengers by creating ample open space thereby decreasing congestion and improving pedestrian circulation. National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; issuance of an incidental harassment authorization. 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 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. 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 City and Borough of Juneau (CBJ), Alaska, to take small numbers of marine Summary of Request On October 25, 2018, City and Borough of Juneau (CBJ) submitted a request to NMFS requesting an IHA for the possible harassment of small numbers of harbor seals incidental to the City of Juneau Dock and Harbor waterfront improvement project in Categorical Exclusion B4 (incidental harassment authorizations with no anticipated serious injury or mortality) 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. Accordingly, NMFS has determined that the issuance of the proposed IHA qualifies to be categorically excluded from further NEPA review. Endangered Species Act (ESA) No incidental take of ESA-listed species is proposed for authorization or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action. Authorization As a result of these determinations, NMFS has issued an IHA to the Navy for conducting Portsmouth Naval Shipyard Dry Dock 1 Modification and Expansion in Kittery, Maine, between October 1, 2019, and September 30, 2010, provided the previously prescribed mitigation, monitoring, and reporting requirements are incorporated. Dated: May 21, 2019. Catherine Marzin, Acting Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2019–10980 Filed 5–24–19; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XG799 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to City of Juneau Waterfront Improvement Project AGENCY: jbell on DSK3GLQ082PROD with NOTICES SUMMARY: VerDate Sep<11>2014 20:49 May 24, 2019 Jkt 247001 PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 Description of Proposed Activity Dates and Duration Construction of the CBJ waterfront improvements project is planned to occur between May 15, 2019 and August 31, 2020. CBJ is requesting an IHA for one year with an effective date of July 15, 2019 as in-water work will not proceed until July 15 or later and it is anticipated all in-water work will be completed prior to July 15, 2020. Specified Geographic Region The project area is at downtown waterfront within the Gastineau Channel in Juneau, Alaska (Figure 1 of the IHA application). The channel separates Juneau on the mainland side from Douglas (now part of Juneau), on Douglas Island. The channel is navigable by large ships, only from the southeast, as far as the Douglas Bridge, which is approximately 0.5 mile north of the project area. The channel north of the bridge is navigable by smaller craft and only at high tide. The channel at the project area is approximately 0.7 mile wide. It is located within Section 23, Township 41 South, Range 67 East of the Copper River Meridian. Detailed Description of the CBJ Waterfront Improvement Project The proposed CBJ waterfront improvements project would construct a pile supported deck along the E:\FR\FM\28MYN1.SGM 28MYN1 24491 Federal Register / Vol. 84, No. 102 / Tuesday, May 28, 2019 / Notices waterfront to meet the needs of an expanding cruise ship industry and its passengers by creating ample open space thereby decreasing congestion and improving pedestrian circulation. More details of the CBJ waterfront improvement project are provided in the Federal Register notice for the proposed IHA (84 FR 7880; March 5, 2019) and are not repeated here. There is no change from the description of the project activities that is provided in the Federal Register notice for the proposed IHA. A list of pile driving and removal activities is provided in Table 1. The total number of days that involve inwater pile driving is estimated to be 82 days. TABLE 1—SUMMARY OF IN-WATER PILE DRIVING ACTIVITIES Total # piles Pile driving/removal duration (sec.) per pile (vibratory) or strikes per pile (impact) Method Pile type and size Vibratory pile removal ....................... Timber piles, unknown diameter but assumed to be no more than 14in. Steel piles, 16-in .............................. Steel piles, 16-in .............................. Steel piles, 18-in .............................. Steel piles, 18-in .............................. Steel piles, 18-in .............................. Steel piles, 18-in .............................. 100 10 900 10 *42 *42 *45 *45 87 87 5 5 5 5 5 5 5,400 150 5,400 150 5,400 900 9 9 9 9 18 18 .......................................................... 274 ........................ ........................ 82 Vibratory piling for supported dock ... Impact proofing for supported dock .. Vibratory piling for supported dock ... Impact proofing for supported dock .. Vibratory piling for temporary piles ... Vibratory pile removal for temporary piles. Total ........................................... # piles/day Work days * Vibratory driving and impact proofing will occur on separate days. jbell on DSK3GLQ082PROD with NOTICES Comments and Responses A notice of NMFS’ proposal to issue an IHA was published in the Federal Register on March 5, 2019 (84 FR 7880). During the 30-day public comment period, NMFS received a comment letter from the Marine Mammal Commission (Commission). Specific comments and responses are provided below. Comment 1: The Commission recommends that NMFS refrain from implementing its proposed renewal process and instead use abbreviated Federal Register notices and reference existing documents to streamline the IHA process. If NMFS adopts the proposed renewal process, the Commission recommends that NMFS provide the Commission and the public a legal analysis supporting its conclusion that the process is consistent with section 101(a)(5)(D) of the MMPA. Response: The notice of the proposed IHA expressly notifies the public that under certain, limited conditions an applicant could seek a renewal IHA for an additional year. The notice describes the conditions under which such a renewal request could be considered and expressly seeks public comment in the event such a renewal is sought. Additional reference to this solicitation of public comment has recently been added at the beginning of the Federal Register notices that consider renewals, requesting input specifically on the possible renewal itself. NMFS appreciates the streamlining achieved VerDate Sep<11>2014 20:49 May 24, 2019 Jkt 247001 by the use of abbreviated Federal Register 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. However, we believe our method for issuing renewals meets statutory requirements and maximizes efficiency. However, importantly, such renewals will 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 will consider only one renewal for a project at this time. In addition, notice of issuance or denial of a renewal IHA will be published in the Federal Register, as they are for all IHAs. The option for issuing renewal IHAs has been in NMFS’ 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 PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 any renewal is issued utilizing this process. Description of Marine Mammals in the Area of Specified Activities Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS’s Stock Assessment Reports (SAR; https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/marinemammal-stock-assessments). Table 2 lists all species with expected potential for occurrence in the Southeast Alaskan waters and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2018). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS’s SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats. E:\FR\FM\28MYN1.SGM 28MYN1 24492 Federal Register / Vol. 84, No. 102 / Tuesday, May 28, 2019 / Notices Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS’s stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS’s U.S. Alaska Marine Mammal SARs (Carretta et al., 2017). All values presented in Table 2 are the most recent available at the time of publication and are available in the 2017 SARs (Muto et al., 2018); and draft 2018 SARs (available online at: https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/draftmarine-mammal-stock-assessmentreports). TABLE 2—MARINE MAMMALS WITH POTENTIAL PRESENCE WITHIN THE PROPOSED PROJECT AREA Common name Scientific name ESA/ MMPA status; strategic (Y/N) 1 Stock Stock abundance (CV, Nmin, most recent abundance survey) 2 Annual M/SI 3 PBR Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) Family Balaenopteridae: Humpback whale .............. Family Delphinidae: Killer whale ....................... Megaptera novaneagliae ........ Central North Pacific .............. E/D; Y 10,103 (0.300, 7,890) ............. 82 8.5 Orcinus orca ........................... Eastern N. Pacific Northern Resident. Eastern N. Pacific Alaska Resident. N N 261 (NA, 261) ......................... 2,347 (NA, 2,347) ................... 1.96 24 0 1 9,478 (NA, 8,605) ................... 155 0 Order Carnivora—Superfamily Pinnipedia Family Phocidae (earless seals): Harbor seal ....................... Phoca vitulina ......................... Lynn Canal/Stephens Passage. N 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds 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 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessmentreports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. All species that could potentially occur in the proposed survey areas are included in Table 2. However, the presence of humpback whale and killer whale are extremely rare, and the implementation of monitoring and mitigation measures are such that take is not expected to occur, and they are not discussed further beyond the explanation provided here. Although these two species have been sighted within the Gastineau Channel near the vicinity of the project area, CBJ proposes to implement strict monitoring and mitigation measures and implement shutdown to prevent any takes of these two species. Thus, the take of this marine mammal stock can be avoided, as their occurrence would be considered unlikely and mitigation and monitoring is expected to prevent take should they occur (see details in Mitigation section). jbell on DSK3GLQ082PROD with NOTICES Marine Mammal Hearing Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species VerDate Sep<11>2014 20:49 May 24, 2019 Jkt 247001 have equal hearing capabilities (e.g., Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. (2007) recommended that marine mammals be divided into functional hearing groups based on directly measured or estimated hearing ranges on the basis of available behavioral response data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data. Note that no direct measurements of hearing ability have been successfully completed for mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS (2016) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 decibel (dB) threshold from the normalized composite audiograms, with the exception for lower limits for lowfrequency cetaceans where the lower bound was deemed to be biologically implausible and the lower bound from Southall et al. (2007) retained. The functional groups and the associated frequencies are indicated below (note that these frequency ranges correspond to the range for the composite group, with the entire range not necessarily reflecting the capabilities of every species within that group): PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 • Low-frequency cetaceans (mysticetes): generalized hearing is estimated to occur between approximately 7 hertz (Hz) and 35 kilohertz (kHz); • Mid-frequency cetaceans (larger toothed whales, beaked whales, and most delphinids): Generalized hearing is estimated to occur between approximately 150 Hz and 160 kHz; • High-frequency cetaceans (porpoises, river dolphins, and members of the genera Kogia and Cephalorhynchus; including two members of the genus Lagenorhynchus, on the basis of recent echolocation data and genetic data): Generalized hearing is estimated to occur between approximately 275 Hz and 160 kHz; • Pinnipeds in water; Phocidae (true seals): Generalized hearing is estimated to occur between approximately 50 Hz to 86 kHz; and • Pinnipeds in water; Otariidae (eared seals): Generalized hearing is estimated to occur between 60 Hz and 39 kHz. The pinniped functional hearing group was modified from Southall et al. (2007) on the basis of data indicating that phocid species have consistently demonstrated an extended frequency range of hearing compared to otariids, especially in the higher frequency range E:\FR\FM\28MYN1.SGM 28MYN1 Federal Register / Vol. 84, No. 102 / Tuesday, May 28, 2019 / Notices (Hemila¨ et al., 2006; Kastelein et al., 2009; Reichmuth et al., 2013). For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. Three marine mammal species (two cetacean and one pinniped (i.e., harbor seal) species) have the reasonable potential to co-occur with the proposed construction activity. Please refer to Table 2. Of the cetacean species that may be present, one species is classified as low-frequency cetaceans (i.e., humpback whale) and one is classified as mid-frequency cetacean (i.e., killer whale). However, as mentioned earlier, monitoring and mitigation measures will be implemented to avoid the take of these cetacean species. jbell on DSK3GLQ082PROD with NOTICES Potential Effects of Specified Activities on Marine Mammals and Their Habitat This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The Estimated Take by Incidental Harassment section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The Negligible Impact Analysis and Determination section considers the content of this section, the Estimated Take by Incidental Harassment section, and the Mitigation section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks. Potential impacts to marine mammals from the proposed CBJ waterfront improvement project are from noise generated during in-water pile driving and pile removal activities. A detailed analysis of these effects is provided in the Federal Register notice of the proposed IHA (84 FR 7880; March 5, 2019) and is not repeated here. Estimated Take This section provides an estimate of the number of incidental takes authorized through this IHA, which will inform both NMFS’ consideration of whether the number of takes is ‘‘small’’ and the negligible impact determination. Harassment is the only type of take expected to result from these activities. VerDate Sep<11>2014 20:49 May 24, 2019 Jkt 247001 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). Authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to noise generated from vibratory pile driving and removal. Based on the nature of the activity and the anticipated effectiveness of the mitigation measures (i.e., shutdown measures—discussed in detail below in Proposed Mitigation section), Level A harassment is neither anticipated nor proposed to be authorized. As described previously, no mortality is anticipated or authorized for this activity. Below we describe how the take is estimated. Described in the most basic way, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. Below, we describe these components in more detail and present the take estimate. Acoustic Thresholds Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment). Level B Harassment for non-explosive sources—Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 24493 degrees by other factors related to the source (e.g., frequency, predictability, duty cycle), the environment (e.g., bathymetry), and the receiving animals (hearing, motivation, experience, demography, behavioral context) and can be difficult to predict (Southall et al., 2007, Ellison et al., 2012). Based on what the available science indicates and the practical need to use a threshold based on a factor that is both predictable and measurable for most activities, NMFS uses a generalized acoustic threshold based on received level to estimate the onset of behavioral harassment. NMFS predicts that marine mammals are likely to be behaviorally harassed in a manner we consider Level B harassment when exposed to underwater anthropogenic noise above received levels of 120 dB re 1 mPa (rms) for continuous (e.g. vibratory piledriving, drilling) and above 160 dB re 1 mPa (rms) for non-explosive impulsive (e.g., seismic airguns) or intermittent (e.g., scientific sonar) sources. Applicant’s proposed activity includes the generation of impulse (impact pile driving) and continuous (vibratory pile driving and removal) sources; and, therefore, both 160- and 120-dB re 1 mPa (rms) are used. Level A harassment for non-explosive sources—NMFS’ Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Technical Guidance, 2016 and 2018) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). Applicant’s proposed activity would generate and non-impulsive (vibratory pile driving and pile removal) noises. These thresholds were developed by compiling and synthesizing the best available science and soliciting input multiple times from both the public and peer reviewers to inform the final product and are provided in the table below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2018 Technical Guidance, which may be accessed at: https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/marinemammal-acoustic-technical-guidance. E:\FR\FM\28MYN1.SGM 28MYN1 24494 Federal Register / Vol. 84, No. 102 / Tuesday, May 28, 2019 / Notices TABLE 3—CURRENT ACOUSTIC EXPOSURE CRITERIA FOR NON-EXPLOSIVE SOUND UNDERWATER PTS onset thresholds Behavioral thresholds Hearing group Impulsive Low-Frequency (LF) Cetaceans ............ Mid-Frequency (MF) Cetaceans ............ High-Frequency (HF) Cetaceans ........... Phocid Pinnipeds (PW), (Underwater) ... Otariid Pinnipeds (OW), (Underwater) ... Lpk,flat: Lpk,flat: Lpk,flat: Lpk,flat: Lpk,flat: 219 230 202 218 232 dB, LE,LF,24h: 183 dB ........... dB, LE,MF,24h: 185 dB .......... dB, LE,HF,24h: 155 dB .......... dB LE,PW,24h: 185 dB .......... dB, LE,OW,24h: 203 dB ......... Non-impulsive Impulsive Non-impulsive LE,LF,24h: 199 dB LE,MF,24h: 198 dB. LE,HF,24h: 173 dB. LE,PW,24h: 201 dB. LE,OW,24h: 219 dB. Lrms,flat: 160 dB ... Lrms,flat: 120 dB * Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be considered. Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s. In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ‘‘flat’’ is being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be exceeded. Ensonified Area Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds. Source Levels Source levels for vibratory driving and removal of 16- and 18-inch (in) steel piles are based on measurement of vibratory pile removal of 16- and 24-in steel piles by the Navy in Puget Sound (NAVFAC 2015). The measured SPLrms at 10 meters (m) was 161 dB re 1 mPa. This source level is revised from the proposed IHA where a different measurement of 156.2 dB at 7 m from Kake, Alaska, was used. This change reflects our discussion with the Commission that the Kake’s measurement could be underestimated due to soft substrate. Source levels for impact pile driving of 16-in and 18-in steel piles are based on JASCO’s pile driving review for a 24in steel pile (Yurk et al., 2015). The values are 175 dB re 1 mPa2-s, 190 dB re 1 mPa, and 205 dB re 1 mPa for single strike SEL, SPLrms, and SPLpk, respectively. Source level for vibratory timber pile removal is based on measurements of vibratory pile removal at Port Townsend, Washington (WSDOT, 2011). The measured level was 150 dB re 1 mPa at 52 ft, and is corrected to 153 dB re 1 mPa at 10 m. A summary of the source levels are provided in Table 4. TABLE 4—SUMMARY OF IN-WATER PILE DRIVING SOURCE LEVELS [at 10 m from source] Pile type/size (inch) Vibratory driving/removal ................................ Vibratory removal ............................................ Impact pile driving (proof) ............................... Steel, 16- and 18-in ....................................... Timber ............................................................ Steel, 16- and 18-in ....................................... These source levels are used to compute the Level A harassment zones and to estimate the Level B harassment zones. For Level A harassment zones, since the peak source levels for both pile driving are below the injury thresholds, cumulative SEL were used to do the calculations using the NMFS acoustic guidance (NMFS 2018). jbell on DSK3GLQ082PROD with NOTICES SEL, dB re 1 μPa2-s Method Estimating Harassment Zones The Level B harassment ensonified areas for vibratory removal of timber piles are based on the above source level of 153 dBrms re 1 mPa at 10 m, applying practical spreading loss of 15*log(R) for transmission loss calculation. The derived distance to the 120-dB Level B zone is 1,585 m. For Level B harassment ensonified areas for vibratory pile driving and VerDate Sep<11>2014 20:49 May 24, 2019 Jkt 247001 removal of the 16- and 18-in steel piles, the distance is based on source level of 161 dB re 1 mPa at 10 m, applying practical spreading loss of 15*log(R) for transmission loss calculation. The derived distance to the 120-dB zone is 5,412 m. This is an increase from 1,585 m provided in the proposed IHA when a lower source level of 156.2 dB at 7 m was used. However, the land mass from the opposite shore intercept the sound propagation at about 2,000 m, therefore, the distance of 2,000 m is considered as the maximum distance for Level B harassment for vibratory pile driving of 16- and 18-in piles. For Level B harassment ensonified areas for impact proofing of 16-in and 18-in steel piles, the distance is based on source level of 190 dB re 1 mPa at 10 PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 SPLrms, dB re 1 μPa SPLpk, dB re 1 μPa 161 153 190 ........................ ........................ 205 161 153 175 m, applying practical spreading loss of 15*log(R) for transmission loss calculation. The derived distance to the 160-dB zone is 1,000 m. For Level A harassment, calculation is based on pile driving duration of each pile and the number of piles installed or removed per day, using NMFS optional spreadsheet. The modeled distances to Level A and Level B harassment zones for various marine mammals are provided in Table 5. As discussed above, the only marine mammal that could occur in the vicinity of the project area is the harbor seal (phocid), and, on rare occasions, humpback and killer whales (midfrequency cetacean). The inclusion of other marine mammal hearing groups in Table 5 is for information purposes. E:\FR\FM\28MYN1.SGM 28MYN1 24495 Federal Register / Vol. 84, No. 102 / Tuesday, May 28, 2019 / Notices TABLE 5—MODELED DISTANCES TO HARASSMENT ZONES Injury distance (m) Level B ZOI (m) Pile type, size & pile driving method LF cetacean Vibratory drive 16- & 18-in pile (5,400 s/ pile, 5 piles/day) ................................... Vibratory removal 16- & 18-in temporary pile (900 s/pile, 5 piles/day) ................. Vibratory removal timber pile (900 s/pile, 10 piles/day) ......................................... Impact proof of 16- & 18-in pile (150 strikes/pile, 5 piles/day) ........................ Marine Mammal Occurrence In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations. There are no reliable density estimates for marine mammals (harbor seal, humpback whale, and killer whale) in the project area. However, there are good observations of harbor seal numbers that generally occur in the project area. Harbor seals are residents in the project vicinity and observed within the action area on a regular basis. Typically there are one to two harbor seals present near the new Port of Juneau Cruise Ship Berths and can be found there year round. In addition, a smaller amount of harbor seals have been observed near the Douglas Island Pink and Chum, Inc. (DIPAC) salmon hatchery which is MF cetacean HF cetacean Phocid Otariid 8.8 0.8 13 5.3 0.4 2,000 2.7 0.2 3.9 1.6 0.1 2,000 3.7 0.3 5.4 2.2 0.2 1,585 241.4 8.6 287.6 129.2 9.4 1,000 approximately five km north of the project area. The applicant states that based on observations and discussion with the hatchery personnel, a maximum of 41 harbor seals have been observed transiting in nearby areas between the hatchery and the project area. This number in addition to the 1–2 resident harbor seals at the project area makes a total maximum harbor sea that could be affected by in-water pile driving during a typical day to be 43. Humpback whale and killer whale are rarely seen in the vicinity of the project area. CBJ will implement shutdown measures if these species are sighted moving towards the Level B harassment zone. Take Calculation and Estimation Here we describe how the information provided above is brought together to produce a quantitative take estimate. For harbor seal takes, the total take number is calculated as: Take = animal number in a typical day near the project area × operating days = 43 × 82 = 3,526 animals. However, 18 of these pile driving days will involve impact pile proofing that results in a larger Level A harassment zone (129 m). If a harbor seal would be missed during marine mammal monitoring and slip into the Level A harassment zone during impact pile proofing, Level A harassment could occur. Based on discussion with the Commission, we estimated that up to 4 individual harbor seals could be exposed by Level A harassment each day during these 18 days. Therefore, we estimate that 72 incidents of Level A harassment of harbor seal could occur. A summary of estimated takes in relation to population percentage is provided in Table 6. TABLE 6—ESTIMATED TAKE NUMBERS Estimated Level A take Species Harbor seal ...................................................................................................... jbell on DSK3GLQ082PROD with NOTICES 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 (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or VerDate Sep<11>2014 20:49 May 24, 2019 Jkt 247001 72 stocks and their habitat (50 CFR 216.104(a)(11)). In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors: (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 Estimated Level B take Estimated total take 3,454 3,526 Abundance 9,478 of effective implementation (probability implemented as planned); and (2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity. Mitigation for Marine Mammals and Their Habitat 1. Time Restriction. Work would occur only during daylight hours, when visual monitoring of marine mammals can be conducted. 2. Establishing and Monitoring Level A and Level B Harassment Zones and Shutdown Zones. E:\FR\FM\28MYN1.SGM 28MYN1 24496 Federal Register / Vol. 84, No. 102 / Tuesday, May 28, 2019 / Notices CBJ shall establish shutdown zones that encompass the distances within which marine mammals except harbor seal could be taken by Level B harassment (see Table 5 above). For harbor seals, CBJ shall establish shutdown zones that encompass the distances within which a seal could be taken by Level A harassment (see Table 5 above). For Level A harassment zones that are less than 10 m from the source, a minimum of 10 m distance should be established as a shutdown zone. A summary of shutdown zones is provided in Table 7. TABLE 7—SHUTDOWN ZONES FOR VARIOUS PILE DRIVING ACTIVITIES AND MARINE MAMMAL HEARING GROUPS Shutdown distance (m) Pile type, size & pile driving method Cetacean jbell on DSK3GLQ082PROD with NOTICES Vibratory drive and removal of 16- & 18-in steel piles ............................................................................................ Vibratory removal timber pile (900 s/pile, 10 piles/day) .......................................................................................... Impact proof of 16- & 18-in pile (150 strikes/pile, 5 piles/day) ............................................................................... CBJ shall also establish a Zone of Influence (ZOI) for harbor seals based on the Level B harassment zones for take monitoring where received underwater SPLs are higher than 160 dBrms re 1 mPa for impulsive noise sources (impact pile driving) and 120 dBrms re 1 mPa for continuous noise sources (vibratory pile driving and pile removal). For all other marine mammals, the ZOI is the same as the shutdown zones. NMFS-approved protected species observers (PSO) shall conduct an initial 30-minute survey of the shutdown zones to ensure that no marine mammals are seen within the zones before pile driving and pile removal of a pile segment begins. If marine mammals are found within the shutdown zone, pile driving of the segment would be delayed until they move out of the area. If a marine mammal is seen above water and then dives below, the contractor would wait 15 minutes. If no marine mammals are seen by the observer in that time it can be assumed that the animal has moved beyond the shutdown zone. 3. Soft-start. A ‘‘soft-start’’ technique is intended to allow marine mammals to vacate the area before the impact pile driver reaches full power. Whenever there has been downtime of 30 minutes or more without impact pile driving, the contractor will initiate the driving with ramp-up procedures described below. Soft start for impact hammers requires contractors to provide an initial set of three strikes from the impact hammer at 40 percent energy, followed by a 1minute waiting period, then two subsequent three-strike sets. Each day, CBJ will use the soft-start technique at the beginning of impact pile driving, or if impact pile driving has ceased for more than 30 minutes. 4. Shutdown Measures. CBJ shall implement shutdown measures if a marine mammal is detected within or enters a shutdown zone listed in Table 7. VerDate Sep<11>2014 20:49 May 24, 2019 Jkt 247001 Further, CBJ shall implement shutdown measures if the number of authorized takes for harbor seals reaches the limit under the IHA and if seals are sighted within the vicinity of the project area and are approaching the Level B harassment zone during in-water construction activities. Based on our evaluation of the required measures, NMFS has determined that the prescribed mitigation measures provide the means effecting the least practicable impact on the affected 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 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. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring. Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following: • Occurrence of marine mammal species or stocks in the area in which take is anticipated (e.g., presence, abundance, distribution, density); • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 2,000 1,585 1,000 Phocid 10 130 characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas); • Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors; • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks; • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat); and • Mitigation and monitoring effectiveness. Proposed Monitoring Measures CBJ shall employ NMFS-approved PSOs to conduct marine mammal monitoring for its waterfront improvement project at Juneau Dock and Harbor. The purposes of marine mammal monitoring are to implement mitigation measures and learn more about impacts to marine mammals from CBJ’s construction activities. The PSOs will observe and collect data on marine mammals in and around the project area for 30 minutes before, during, and for 30 minutes after all pile removal and pile installation work. NMFS-approved PSOs shall meet the following requirements: 1. Independent observers (i.e., not construction personnel) are required; 2. At least one observer must have prior experience working as an observer; 3. Other observers may substitute education (undergraduate degree in biological science or related field) or training for experience; 4. Where a team of three or more observers are required, one observer E:\FR\FM\28MYN1.SGM 28MYN1 jbell on DSK3GLQ082PROD with NOTICES Federal Register / Vol. 84, No. 102 / Tuesday, May 28, 2019 / Notices should be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer; and 5. NMFS will require submission and approval of observer CVs. Monitoring of marine mammals around the construction site shall be conducted using high-quality binoculars (e.g., Zeiss, 10 x 42 power). CBJ shall employ a minimum of 2 PSOs to observe and collect data on marine mammals in and around the pile driving vicinity. PSOs shall be placed at high evaluation locations such as the boardwalk and the observation deck of the City Library to conduct marine mammal monitoring. PSOs will work shifts of a maximum of four consecutive hours and will work no more than 12 hours in any 24-hour period. 6. PSOs shall collect the following information during marine mammal monitoring: • Date and time that monitored activity begins and ends for each day conducted (monitoring period); • Construction activities occurring during each daily observation period, including how many and what type of piles driven; • Deviation from initial proposal in pile numbers, pile types, average driving times, etc.; • Weather parameters in each monitoring period (e.g., wind speed, percent cloud cover, visibility); • Water conditions in each monitoring period (e.g., sea state, tide state); • For each marine mammal sighting: Æ Species, numbers, and, if possible, sex and age class of marine mammals; Æ Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity; Æ Location and distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point; and Æ Estimated amount of time that the animals remained in the Level B zone; • Description of implementation of mitigation measures within each monitoring period (e.g., shutdown or delay); • Other human activity in the area within each monitoring period To verify the required monitoring distance, the shutdown zones and ZOIs will be determined by using a range finder or hand-held global positioning system device. CBJ is required to submit a draft monitoring report within 90 days after completion of the construction work or VerDate Sep<11>2014 20:49 May 24, 2019 Jkt 247001 the expiration of the IHA (if issued), whichever comes earlier. In the case if CBJ intends to renew the IHA (if issued) in a subsequent year, a monitoring report should be submitted 60 days before the expiration of the current IHA (if issued). This report would detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed. NMFS would have an opportunity to provide comments on the report, and if NMFS has comments, CBJ would address the comments and submit a final report to NMFS within 30 days. In addition, NMFS would require CBJ to notify NMFS’ Office of Protected Resources and NMFS’ Alaska Stranding Coordinator within 48 hours of sighting an injured or dead marine mammal in the construction site. CBJ shall provide NMFS and the Stranding Network with the species or description of the animal(s), the condition of the animal(s) (including carcass condition, if the animal is dead), location, time of first discovery, observed behaviors (if alive), and photo or video (if available). In the event that CBJ finds an injured or dead marine mammal that is not in the construction area, CBJ would report the same information as listed above to NMFS as soon as operationally feasible. Negligible Impact Analysis and Determinations NMFS has defined negligible impact 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 (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., populationlevel effects). An estimate of the number of 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 harassment, NMFS considers other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS’s implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 24497 ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels). Although some individual harbor seals are estimated to experience Level A harassment in the form of PTS if they stay within the Level A harassment zone during the entire pile driving for the day, the degree of injury is expected to be mild and is not likely to affect the reproduction or survival of the individual animals. It is expected that, if hearing impairment occurs, most likely the affected animal would lose a few dB in its hearing sensitivity, which in most cases is not likely to affect its survival and recruitment. Hearing impairment that might occur for these individual animals would be limited to the dominant frequency of the noise sources, i.e., in the low-frequency region below 2 kHz. Nevertheless, as for all marine mammal species, it is known that in general these seals will avoid areas where sound levels could cause hearing impairment. Therefore it is not likely that an animal would stay in an area with intense noise that could cause severe levels of hearing damage. Under the majority of the circumstances, anticipated takes are expected to be limited to short-term Level B harassment. Harbor seals present in the vicinity of the action area and taken by Level B harassment would most likely show overt brief disturbance (startle reaction) and avoidance of the area from elevated noise levels during pile driving and pile removal. Given the limited estimated number of incidents of Level A and Level B harassment and the limited, short-term nature of the responses by the individuals, the impacts of the estimated take cannot be reasonably expected to, and are not reasonably likely to, rise to the level that they would adversely affect the species at the population level, through effects on annual rates of recruitment or survival. There are no known important habitats, such as rookeries or haulouts, in the vicinity of the CBJ’s waterfront improvement construction project. The project also is not expected to have significant adverse effects on affected marine mammals’ habitat, including prey, as analyzed in detail in the ‘‘Anticipated Effects on Marine Mammal Habitat’’ section. In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not E:\FR\FM\28MYN1.SGM 28MYN1 24498 Federal Register / Vol. 84, No. 102 / Tuesday, May 28, 2019 / Notices jbell on DSK3GLQ082PROD with NOTICES expected to adversely affect the species or stock through effects on annual rates of recruitment or survival: • No mortality is anticipated or authorized; • Some individual harbor seals are anticipated to experience a mild level of PTS, but the degree of PTS is not expected to affect their fitness; • Most adverse effects to harbor seals are temporary behavioral harassment; and • No biologically important area is present in or near the proposed construction 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 proposed monitoring and mitigation measures, NMFS finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks. Small Numbers As noted above, only small numbers of incidental take may be authorized under Section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, NMFS compares the number of individuals anticipated to be taken to the most appropriate estimation of the relevant species or stock size in our determination of whether an authorization would be limited to small numbers of marine mammals. The estimated take of harbor seal would be 35 percent of the population, if each single take were a unique individual. However, this is highly unlikely because the harbor seal in the vicinity of the project area shows site fidelity to small areas for periods of time that can extend between seasons. As discussed earlier, there are one to two resident harbor seals in the project vicinity and are observed within the action area on a regular basis. In addition, a smaller amount of harbor seals have been observed near the DIPAC salmon hatchery which is approximately 5 km north of the project area. Therefore, the total maximum number of individual harbor seals at the project area that could be affect by inwater pile driving during a typical day is assumed to be 43 individuals. Based on the analysis contained herein of the proposed activity (including the prescribed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of each species or stock will be taken relative to VerDate Sep<11>2014 20:49 May 24, 2019 Jkt 247001 the population size of the affected species or stocks. Unmitigable Adverse Impact Subsistence Analysis and Determination The proposed construction project will occur near but not overlap the subsistence areas in Juneau. The Alaska Department of Fish and Game (ADF&G) was contacted by CBJ regarding subsistence uses in Gastineau Channel and it was confirmed that Gastineau Channel is not a subsistence use area for harbor seals (CBJ, 2018). Therefore, the proposed project will not adversely impact the availability of any marine mammal species or stocks that are commonly used for subsistence purposes in the Juneau area. Based on the analysis contained herein of the likely effects of the specified activity on subsistence activities, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the proposed activity will not have unmitigable adverse impact on subsistence use of marine mammals in the project area. National Environmental Policy Act To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216–6A, NMFS must review our proposed action (i.e., the issuance of an incidental harassment authorization) with respect to potential impacts on the human environment. This action is consistent with categories of activities identified in Categorical Exclusion B4 (incidental harassment authorizations with no anticipated serious injury or mortality) 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. Accordingly, NMFS has determined that the issuance of the proposed IHA qualifies to be categorically excluded from further NEPA review. Endangered Species Act (ESA) No incidental take of ESA-listed species is authorized or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action. PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 Authorization As a result of these determinations, NMFS has issued an IHA to the City and Borough of Juneau for the Juneau Dock and Harbor waterfront improvement project in Juneau, Alaska, provided the previously described mitigation, monitoring, and reporting requirements are incorporated. Dated: May 21, 2019. Catherine Marzin, Acting Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2019–10973 Filed 5–24–19; 8:45 am] BILLING CODE 3510–22–P BUREAU OF CONSUMER FINANCIAL PROTECTION [Docket No. CFPB–2019–0027] Agency Information Collection Activities: Comment Request Bureau of Consumer Financial Protection. ACTION: Notice and request for comment. AGENCY: In accordance with the Paperwork Reduction Act of 1995 (PRA), the Bureau of Consumer Financial Protection (Bureau) is requesting to renew the Office of Management and Budget (OMB) approval for an existing information collection, titled, ‘‘Truth In Lending Act (Regulation Z) 12 CFR 1026.’’ DATES: Written comments are encouraged and must be received on or before July 29, 2019 to be assured of consideration. SUMMARY: You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods: • Electronic: Go to http:// www.regulations.gov. Follow the instructions for submitting comments. • Email: PRA_Comments@cfpb.gov. Include Docket No. CFPB–2019–0027 in the subject line of the message. • Mail: Comment Intake, Bureau of Consumer Financial Protection (Attention: PRA Office), 1700 G Street NW, Washington, DC 20552. • Hand Delivery/Courier: Comment Intake, Bureau of Consumer Financial Protection Bureau (Attention: PRA Office), 1700 G Street NW, Washington, DC 20552. Please note that comments submitted after the comment period will not be accepted. In general, all comments received will become public records, including any personal information provided. Sensitive personal ADDRESSES: E:\FR\FM\28MYN1.SGM 28MYN1

Agencies

[Federal Register Volume 84, Number 102 (Tuesday, May 28, 2019)]
[Notices]
[Pages 24490-24498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10973]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG799


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to City of Juneau Waterfront 
Improvement 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 
City and Borough of Juneau (CBJ), Alaska, to take small numbers of 
marine mammals, by harassment, incidental to the Juneau dock and harbor 
waterfront improvement project.

DATES: This authorization is effective from July 15, 2019, through July 
14, 2020.

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as the issued IHA, may be obtained 
online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. 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 
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.

Summary of Request

    On October 25, 2018, City and Borough of Juneau (CBJ) submitted a 
request to NMFS requesting an IHA for the possible harassment of small 
numbers of harbor seals incidental to the City of Juneau Dock and 
Harbor waterfront improvement project in Juneau, Alaska, from June 15, 
2019 to June 14, 2020. After receiving the revised project description 
and the revised IHA application, NMFS determined that the IHA 
application is adequate and complete on January 30, 2019. Neither the 
CBJ nor NMFS expect mortality or serious injury to result from this 
activity and, therefore, an IHA is appropriate. On April 17, 2019, CBJ 
sent a request to NMFS to change the IHA dates to cover the period 
between July 15, 2019, and July 14, 2020. NMFS has issued an IHA to CBJ 
for the take by Level B harassment of harbor seal (Phoca vitulina) 
incidental to its waterfront improvement project.

Description of Proposed Activity

Overview

    The purpose of the CBJ's project is to improve the downtown 
waterfront area within Gastineau Channel in Juneau, Alaska, to 
accommodate the needs of the growing cruise ship visitor industry and 
its passengers while creating a waterfront that meets the expectations 
of a world-class facility. The project would meet the needs of an 
expanding cruise ship industry and its passengers by creating ample 
open space thereby decreasing congestion and improving pedestrian 
circulation.

Dates and Duration

    Construction of the CBJ waterfront improvements project is planned 
to occur between May 15, 2019 and August 31, 2020. CBJ is requesting an 
IHA for one year with an effective date of July 15, 2019 as in-water 
work will not proceed until July 15 or later and it is anticipated all 
in-water work will be completed prior to July 15, 2020.

Specified Geographic Region

    The project area is at downtown waterfront within the Gastineau 
Channel in Juneau, Alaska (Figure 1 of the IHA application). The 
channel separates Juneau on the mainland side from Douglas (now part of 
Juneau), on Douglas Island. The channel is navigable by large ships, 
only from the southeast, as far as the Douglas Bridge, which is 
approximately 0.5 mile north of the project area. The channel north of 
the bridge is navigable by smaller craft and only at high tide. The 
channel at the project area is approximately 0.7 mile wide. It is 
located within Section 23, Township 41 South, Range 67 East of the 
Copper River Meridian.

Detailed Description of the CBJ Waterfront Improvement Project

    The proposed CBJ waterfront improvements project would construct a 
pile supported deck along the

[[Page 24491]]

waterfront to meet the needs of an expanding cruise ship industry and 
its passengers by creating ample open space thereby decreasing 
congestion and improving pedestrian circulation. More details of the 
CBJ waterfront improvement project are provided in the Federal Register 
notice for the proposed IHA (84 FR 7880; March 5, 2019) and are not 
repeated here. There is no change from the description of the project 
activities that is provided in the Federal Register notice for the 
proposed IHA.
    A list of pile driving and removal activities is provided in Table 
1. The total number of days that involve in-water pile driving is 
estimated to be 82 days.

                                                  Table 1--Summary of In-Water Pile Driving Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                           Pile driving/
                                                                                                                              removal
                                                                                                                             duration
                                                                                                                            (sec.) per
                    Method                                 Pile type and size              Total # piles    # piles/day        pile          Work days
                                                                                                                          (vibratory) or
                                                                                                                            strikes per
                                                                                                                           pile (impact)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory pile removal.......................  Timber piles, unknown diameter but                    100              10             900              10
                                                assumed to be no more than 14-in.
Vibratory piling for supported dock..........  Steel piles, 16-in.......................             *42               5           5,400               9
Impact proofing for supported dock...........  Steel piles, 16-in.......................             *42               5             150               9
Vibratory piling for supported dock..........  Steel piles, 18-in.......................             *45               5           5,400               9
Impact proofing for supported dock...........  Steel piles, 18-in.......................             *45               5             150               9
Vibratory piling for temporary piles.........  Steel piles, 18-in.......................              87               5           5,400              18
Vibratory pile removal for temporary piles...  Steel piles, 18-in.......................              87               5             900              18
                                              ----------------------------------------------------------------------------------------------------------
    Total....................................  .........................................             274  ..............  ..............              82
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Vibratory driving and impact proofing will occur on separate days.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the 
Federal Register on March 5, 2019 (84 FR 7880). During the 30-day 
public comment period, NMFS received a comment letter from the Marine 
Mammal Commission (Commission). Specific comments and responses are 
provided below.
    Comment 1: The Commission recommends that NMFS refrain from 
implementing its proposed renewal process and instead use abbreviated 
Federal Register notices and reference existing documents to streamline 
the IHA process. If NMFS adopts the proposed renewal process, the 
Commission recommends that NMFS provide the Commission and the public a 
legal analysis supporting its conclusion that the process is consistent 
with section 101(a)(5)(D) of the MMPA.
    Response: The notice of the proposed IHA expressly notifies the 
public that under certain, limited conditions an applicant could seek a 
renewal IHA for an additional year. The notice describes the conditions 
under which such a renewal request could be considered and expressly 
seeks public comment in the event such a renewal is sought. Additional 
reference to this solicitation of public comment has recently been 
added at the beginning of the Federal Register notices that consider 
renewals, requesting input specifically on the possible renewal itself. 
NMFS appreciates the streamlining achieved by the use of abbreviated 
Federal Register 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. However, we believe 
our method for issuing renewals meets statutory requirements and 
maximizes efficiency. However, importantly, such renewals will 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 will consider only one renewal for a 
project at this time. In addition, notice of issuance or denial of a 
renewal IHA will be published in the Federal Register, as they are for 
all IHAs. The option for issuing renewal IHAs has been in NMFS' 
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 in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS's Stock Assessment Reports (SAR; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments).
    Table 2 lists all species with expected potential for occurrence in 
the Southeast Alaskan waters and summarizes information related to the 
population or stock, including regulatory status under the MMPA and ESA 
and potential biological removal (PBR), where known. For taxonomy, we 
follow Committee on Taxonomy (2018). PBR is defined by the MMPA as the 
maximum number of animals, not including natural mortalities, that may 
be removed from a marine mammal stock while allowing that stock to 
reach or maintain its optimum sustainable population (as described in 
NMFS's SARs). While no mortality is anticipated or authorized here, PBR 
and annual serious injury and mortality from anthropogenic sources are 
included here as gross indicators of the status of the species and 
other threats.

[[Page 24492]]

    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's U.S. Alaska Marine Mammal SARs (Carretta et al., 2017). All 
values presented in Table 2 are the most recent available at the time 
of publication and are available in the 2017 SARs (Muto et al., 2018); 
and draft 2018 SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

                                    Table 2--Marine Mammals With Potential Presence Within the Proposed Project Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        ESA/ MMPA  status;   Stock abundance  (CV,
             Common name                  Scientific name               Stock             strategic  (Y/N)     Nmin, most recent       PBR     Annual  M/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenopteridae:
    Humpback whale..................  Megaptera novaneagliae.  Central North Pacific..  E/D; Y              10,103 (0.300, 7,890).         82        8.5
Family Delphinidae:
    Killer whale....................  Orcinus orca...........  Eastern N. Pacific       N                   261 (NA, 261).........       1.96          0
                                                                Northern Resident.      N                   2,347 (NA, 2,347).....         24          1
                                                               Eastern N. Pacific
                                                                Alaska Resident.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Harbor seal.....................  Phoca vitulina.........  Lynn Canal/Stephens      N                   9,478 (NA, 8,605).....        155          0
                                                                Passage.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds 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\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.

    All species that could potentially occur in the proposed survey 
areas are included in Table 2. However, the presence of humpback whale 
and killer whale are extremely rare, and the implementation of 
monitoring and mitigation measures are such that take is not expected 
to occur, and they are not discussed further beyond the explanation 
provided here. Although these two species have been sighted within the 
Gastineau Channel near the vicinity of the project area, CBJ proposes 
to implement strict monitoring and mitigation measures and implement 
shutdown to prevent any takes of these two species. Thus, the take of 
this marine mammal stock can be avoided, as their occurrence would be 
considered unlikely and mitigation and monitoring is expected to 
prevent take should they occur (see details in Mitigation section).

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2016) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. The functional groups and 
the associated frequencies are indicated below (note that these 
frequency ranges correspond to the range for the composite group, with 
the entire range not necessarily reflecting the capabilities of every 
species within that group):
     Low-frequency cetaceans (mysticetes): generalized hearing 
is estimated to occur between approximately 7 hertz (Hz) and 35 
kilohertz (kHz);
     Mid-frequency cetaceans (larger toothed whales, beaked 
whales, and most delphinids): Generalized hearing is estimated to occur 
between approximately 150 Hz and 160 kHz;
     High-frequency cetaceans (porpoises, river dolphins, and 
members of the genera Kogia and Cephalorhynchus; including two members 
of the genus Lagenorhynchus, on the basis of recent echolocation data 
and genetic data): Generalized hearing is estimated to occur between 
approximately 275 Hz and 160 kHz;
     Pinnipeds in water; Phocidae (true seals): Generalized 
hearing is estimated to occur between approximately 50 Hz to 86 kHz; 
and
     Pinnipeds in water; Otariidae (eared seals): Generalized 
hearing is estimated to occur between 60 Hz and 39 kHz.
    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range

[[Page 24493]]

(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth et al., 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Three marine mammal species (two cetacean and one pinniped (i.e., 
harbor seal) species) have the reasonable potential to co-occur with 
the proposed construction activity. Please refer to Table 2. Of the 
cetacean species that may be present, one species is classified as low-
frequency cetaceans (i.e., humpback whale) and one is classified as 
mid-frequency cetacean (i.e., killer whale). However, as mentioned 
earlier, monitoring and mitigation measures will be implemented to 
avoid the take of these cetacean species.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The Estimated Take by Incidental Harassment section 
later in this document includes a quantitative analysis of the number 
of individuals that are expected to be taken by this activity. The 
Negligible Impact Analysis and Determination section considers the 
content of this section, the Estimated Take by Incidental Harassment 
section, and the Mitigation section, to draw conclusions regarding the 
likely impacts of these activities on the reproductive success or 
survivorship of individuals and how those impacts on individuals are 
likely to impact marine mammal species or stocks.
    Potential impacts to marine mammals from the proposed CBJ 
waterfront improvement project are from noise generated during in-water 
pile driving and pile removal activities. A detailed analysis of these 
effects is provided in the Federal Register notice of the proposed IHA 
(84 FR 7880; March 5, 2019) and is not repeated here.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform both NMFS' consideration 
of whether the number of takes is ``small'' and the negligible impact 
determination.
    Harassment is the only type of take expected to result from these 
activities. 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).
    Authorized takes would be by Level B harassment only, in the form 
of disruption of behavioral patterns for individual marine mammals 
resulting from exposure to noise generated from vibratory pile driving 
and removal. Based on the nature of the activity and the anticipated 
effectiveness of the mitigation measures (i.e., shutdown measures--
discussed in detail below in Proposed Mitigation section), Level A 
harassment is neither anticipated nor proposed to be authorized.
    As described previously, no mortality is anticipated or authorized 
for this activity. Below we describe how the take is estimated.
    Described in the most basic way, we estimate take by considering: 
(1) Acoustic thresholds above which NMFS believes the best available 
science indicates marine mammals will be behaviorally harassed or incur 
some degree of permanent hearing impairment; (2) the area or volume of 
water that will be ensonified above these levels in a day; (3) the 
density or occurrence of marine mammals within these ensonified areas; 
and, (4) and the number of days of activities. Below, we describe these 
components in more detail and present the take estimate.

Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic 
thresholds that identify the received level of underwater sound above 
which exposed marine mammals would be reasonably expected to be 
behaviorally harassed (equated to Level B harassment) or to incur PTS 
of some degree (equated to Level A harassment).
    Level B Harassment for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2012). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals are 
likely to be behaviorally harassed in a manner we consider Level B 
harassment when exposed to underwater anthropogenic noise above 
received levels of 120 dB re 1 [mu]Pa (rms) for continuous (e.g. 
vibratory pile-driving, drilling) and above 160 dB re 1 [mu]Pa (rms) 
for non-explosive impulsive (e.g., seismic airguns) or intermittent 
(e.g., scientific sonar) sources.
    Applicant's proposed activity includes the generation of impulse 
(impact pile driving) and continuous (vibratory pile driving and 
removal) sources; and, therefore, both 160- and 120-dB re 1 [mu]Pa 
(rms) are used.
    Level A harassment for non-explosive sources--NMFS' Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine 
Mammal Hearing (Technical Guidance, 2016 and 2018) identifies dual 
criteria to assess auditory injury (Level A harassment) to five 
different marine mammal groups (based on hearing sensitivity) as a 
result of exposure to noise from two different types of sources 
(impulsive or non-impulsive). Applicant's proposed activity would 
generate and non-impulsive (vibratory pile driving and pile removal) 
noises.
    These thresholds were developed by compiling and synthesizing the 
best available science and soliciting input multiple times from both 
the public and peer reviewers to inform the final product and are 
provided in the table below. The references, analysis, and methodology 
used in the development of the thresholds are described in NMFS 2018 
Technical Guidance, which may be accessed at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

[[Page 24494]]



                                     Table 3--Current Acoustic Exposure Criteria for Non-Explosive Sound Underwater
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      PTS onset thresholds                                      Behavioral thresholds
           Hearing group            --------------------------------------------------------------------------------------------------------------------
                                            Impulsive                Non-impulsive                    Impulsive                    Non-impulsive
--------------------------------------------------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans.......  Lpk,flat: 219 dB,       LE,LF,24h: 199 dB............  Lrms,flat: 160 dB............  Lrms,flat: 120 dB
                                      LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans.......  Lpk,flat: 230 dB,       LE,MF,24h: 198 dB............
                                      LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans......  Lpk,flat: 202 dB,       LE,HF,24h: 173 dB............
                                      LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW), (Underwater)  Lpk,flat: 218 dB        LE,PW,24h: 201 dB............
                                      LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW),              Lpk,flat: 232 dB,       LE,OW,24h: 219 dB............
 (Underwater).                        LE,OW,24h: 203 dB.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive
  sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be
  considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has a reference value of 1[mu]Pa2s. In this
  Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by
  ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ``flat'' is being included to
  indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative
  sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
  and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways
  (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which
  these acoustic thresholds will be exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into identifying the area ensonified above the 
acoustic thresholds.
Source Levels
    Source levels for vibratory driving and removal of 16- and 18-inch 
(in) steel piles are based on measurement of vibratory pile removal of 
16- and 24-in steel piles by the Navy in Puget Sound (NAVFAC 2015). The 
measured SPLrms at 10 meters (m) was 161 dB re 1 [micro]Pa. 
This source level is revised from the proposed IHA where a different 
measurement of 156.2 dB at 7 m from Kake, Alaska, was used. This change 
reflects our discussion with the Commission that the Kake's measurement 
could be underestimated due to soft substrate.
    Source levels for impact pile driving of 16-in and 18-in steel 
piles are based on JASCO's pile driving review for a 24-in steel pile 
(Yurk et al., 2015). The values are 175 dB re 1 [micro]Pa\2\-s, 190 dB 
re 1 [micro]Pa, and 205 dB re 1 [micro]Pa for single strike SEL, 
SPLrms, and SPLpk, respectively.
    Source level for vibratory timber pile removal is based on 
measurements of vibratory pile removal at Port Townsend, Washington 
(WSDOT, 2011). The measured level was 150 dB re 1 [micro]Pa at 52 ft, 
and is corrected to 153 dB re 1 [micro]Pa at 10 m.
A summary of the source levels are provided in Table 4.

                             Table 4--Summary of In-Water Pile Driving Source Levels
                                              [at 10 m from source]
----------------------------------------------------------------------------------------------------------------
                                                                   SEL, dB re 1    SPLrms, dB re  SPLpk, dB re 1
                Method                    Pile type/size (inch)   [micro]Pa\2\-s    1 [micro]Pa      [micro]Pa
----------------------------------------------------------------------------------------------------------------
Vibratory driving/removal.............  Steel, 16- and 18-in....             161             161  ..............
Vibratory removal.....................  Timber..................             153             153  ..............
Impact pile driving (proof)...........  Steel, 16- and 18-in....             175             190             205
----------------------------------------------------------------------------------------------------------------

    These source levels are used to compute the Level A harassment 
zones and to estimate the Level B harassment zones. For Level A 
harassment zones, since the peak source levels for both pile driving 
are below the injury thresholds, cumulative SEL were used to do the 
calculations using the NMFS acoustic guidance (NMFS 2018).

Estimating Harassment Zones

    The Level B harassment ensonified areas for vibratory removal of 
timber piles are based on the above source level of 153 
dBrms re 1 [micro]Pa at 10 m, applying practical spreading 
loss of 15*log(R) for transmission loss calculation. The derived 
distance to the 120-dB Level B zone is 1,585 m.
    For Level B harassment ensonified areas for vibratory pile driving 
and removal of the 16- and 18-in steel piles, the distance is based on 
source level of 161 dB re 1 [micro]Pa at 10 m, applying practical 
spreading loss of 15*log(R) for transmission loss calculation. The 
derived distance to the 120-dB zone is 5,412 m. This is an increase 
from 1,585 m provided in the proposed IHA when a lower source level of 
156.2 dB at 7 m was used. However, the land mass from the opposite 
shore intercept the sound propagation at about 2,000 m, therefore, the 
distance of 2,000 m is considered as the maximum distance for Level B 
harassment for vibratory pile driving of 16- and 18-in piles.
    For Level B harassment ensonified areas for impact proofing of 16-
in and 18-in steel piles, the distance is based on source level of 190 
dB re 1 [micro]Pa at 10 m, applying practical spreading loss of 
15*log(R) for transmission loss calculation. The derived distance to 
the 160-dB zone is 1,000 m.
    For Level A harassment, calculation is based on pile driving 
duration of each pile and the number of piles installed or removed per 
day, using NMFS optional spreadsheet.
    The modeled distances to Level A and Level B harassment zones for 
various marine mammals are provided in Table 5. As discussed above, the 
only marine mammal that could occur in the vicinity of the project area 
is the harbor seal (phocid), and, on rare occasions, humpback and 
killer whales (mid-frequency cetacean). The inclusion of other marine 
mammal hearing groups in Table 5 is for information purposes.

[[Page 24495]]



                                                     Table 5--Modeled Distances to Harassment Zones
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Injury distance (m)
          Pile type, size & pile driving method          --------------------------------------------------------------------------------   Level B ZOI
                                                            LF cetacean     MF cetacean     HF cetacean       Phocid          Otariid           (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory drive 16- & 18-in pile (5,400 s/pile, 5 piles/             8.8             0.8              13             5.3             0.4           2,000
 day)...................................................
Vibratory removal 16- & 18-in temporary pile (900 s/                 2.7             0.2             3.9             1.6             0.1           2,000
 pile, 5 piles/day).....................................
Vibratory removal timber pile (900 s/pile, 10 piles/day)             3.7             0.3             5.4             2.2             0.2           1,585
Impact proof of 16- & 18-in pile (150 strikes/pile, 5              241.4             8.6           287.6           129.2             9.4           1,000
 piles/day).............................................
--------------------------------------------------------------------------------------------------------------------------------------------------------

Marine Mammal Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.
    There are no reliable density estimates for marine mammals (harbor 
seal, humpback whale, and killer whale) in the project area. However, 
there are good observations of harbor seal numbers that generally occur 
in the project area.
    Harbor seals are residents in the project vicinity and observed 
within the action area on a regular basis. Typically there are one to 
two harbor seals present near the new Port of Juneau Cruise Ship Berths 
and can be found there year round. In addition, a smaller amount of 
harbor seals have been observed near the Douglas Island Pink and Chum, 
Inc. (DIPAC) salmon hatchery which is approximately five km north of 
the project area. The applicant states that based on observations and 
discussion with the hatchery personnel, a maximum of 41 harbor seals 
have been observed transiting in nearby areas between the hatchery and 
the project area. This number in addition to the 1-2 resident harbor 
seals at the project area makes a total maximum harbor sea that could 
be affected by in-water pile driving during a typical day to be 43.
    Humpback whale and killer whale are rarely seen in the vicinity of 
the project area. CBJ will implement shutdown measures if these species 
are sighted moving towards the Level B harassment zone.

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate.
    For harbor seal takes, the total take number is calculated as: Take 
= animal number in a typical day near the project area x operating days 
= 43 x 82 = 3,526 animals. However, 18 of these pile driving days will 
involve impact pile proofing that results in a larger Level A 
harassment zone (129 m). If a harbor seal would be missed during marine 
mammal monitoring and slip into the Level A harassment zone during 
impact pile proofing, Level A harassment could occur. Based on 
discussion with the Commission, we estimated that up to 4 individual 
harbor seals could be exposed by Level A harassment each day during 
these 18 days. Therefore, we estimate that 72 incidents of Level A 
harassment of harbor seal could occur.
A summary of estimated takes in relation to population percentage is 
provided in Table 6.

                                         Table 6--Estimated Take Numbers
----------------------------------------------------------------------------------------------------------------
                                                     Estimated       Estimated       Estimated
                     Species                       Level A take    Level B take     total take       Abundance
----------------------------------------------------------------------------------------------------------------
Harbor seal.....................................              72           3,454           3,526           9,478
----------------------------------------------------------------------------------------------------------------

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 (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting such 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned) the likelihood of effective implementation (probability 
implemented as planned); and
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.

Mitigation for Marine Mammals and Their Habitat

    1. Time Restriction.
    Work would occur only during daylight hours, when visual monitoring 
of marine mammals can be conducted.
    2. Establishing and Monitoring Level A and Level B Harassment Zones 
and Shutdown Zones.

[[Page 24496]]

    CBJ shall establish shutdown zones that encompass the distances 
within which marine mammals except harbor seal could be taken by Level 
B harassment (see Table 5 above).
    For harbor seals, CBJ shall establish shutdown zones that encompass 
the distances within which a seal could be taken by Level A harassment 
(see Table 5 above). For Level A harassment zones that are less than 10 
m from the source, a minimum of 10 m distance should be established as 
a shutdown zone.
    A summary of shutdown zones is provided in Table 7.

 Table 7--Shutdown Zones for Various Pile Driving Activities and Marine
                          Mammal Hearing Groups
------------------------------------------------------------------------
                                               Shutdown distance (m)
  Pile type, size & pile driving method  -------------------------------
                                             Cetacean         Phocid
------------------------------------------------------------------------
Vibratory drive and removal of 16- & 18-           2,000              10
 in steel piles.........................
Vibratory removal timber pile (900 s/              1,585
 pile, 10 piles/day)....................
Impact proof of 16- & 18-in pile (150              1,000             130
 strikes/pile, 5 piles/day).............
------------------------------------------------------------------------

    CBJ shall also establish a Zone of Influence (ZOI) for harbor seals 
based on the Level B harassment zones for take monitoring where 
received underwater SPLs are higher than 160 dBrms re 1 
[micro]Pa for impulsive noise sources (impact pile driving) and 120 
dBrms re 1 [micro]Pa for continuous noise sources (vibratory 
pile driving and pile removal). For all other marine mammals, the ZOI 
is the same as the shutdown zones.
    NMFS-approved protected species observers (PSO) shall conduct an 
initial 30-minute survey of the shutdown zones to ensure that no marine 
mammals are seen within the zones before pile driving and pile removal 
of a pile segment begins. If marine mammals are found within the 
shutdown zone, pile driving of the segment would be delayed until they 
move out of the area. If a marine mammal is seen above water and then 
dives below, the contractor would wait 15 minutes. If no marine mammals 
are seen by the observer in that time it can be assumed that the animal 
has moved beyond the shutdown zone.
    3. Soft-start.
    A ``soft-start'' technique is intended to allow marine mammals to 
vacate the area before the impact pile driver reaches full power. 
Whenever there has been downtime of 30 minutes or more without impact 
pile driving, the contractor will initiate the driving with ramp-up 
procedures described below.
    Soft start for impact hammers requires contractors to provide an 
initial set of three strikes from the impact hammer at 40 percent 
energy, followed by a 1-minute waiting period, then two subsequent 
three-strike sets. Each day, CBJ will use the soft-start technique at 
the beginning of impact pile driving, or if impact pile driving has 
ceased for more than 30 minutes.
    4. Shutdown Measures.
    CBJ shall implement shutdown measures if a marine mammal is 
detected within or enters a shutdown zone listed in Table 7.
    Further, CBJ shall implement shutdown measures if the number of 
authorized takes for harbor seals reaches the limit under the IHA and 
if seals are sighted within the vicinity of the project area and are 
approaching the Level B harassment zone during in-water construction 
activities.
    Based on our evaluation of the required measures, NMFS has 
determined that the prescribed mitigation measures provide the means 
effecting the least practicable impact on the affected 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 
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. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.

Proposed Monitoring Measures

    CBJ shall employ NMFS-approved PSOs to conduct marine mammal 
monitoring for its waterfront improvement project at Juneau Dock and 
Harbor. The purposes of marine mammal monitoring are to implement 
mitigation measures and learn more about impacts to marine mammals from 
CBJ's construction activities. The PSOs will observe and collect data 
on marine mammals in and around the project area for 30 minutes before, 
during, and for 30 minutes after all pile removal and pile installation 
work. NMFS-approved PSOs shall meet the following requirements:
    1. Independent observers (i.e., not construction personnel) are 
required;
    2. At least one observer must have prior experience working as an 
observer;
    3. Other observers may substitute education (undergraduate degree 
in biological science or related field) or training for experience;
    4. Where a team of three or more observers are required, one 
observer

[[Page 24497]]

should be designated as lead observer or monitoring coordinator. The 
lead observer must have prior experience working as an observer; and
    5. NMFS will require submission and approval of observer CVs.
    Monitoring of marine mammals around the construction site shall be 
conducted using high-quality binoculars (e.g., Zeiss, 10 x 42 power).
    CBJ shall employ a minimum of 2 PSOs to observe and collect data on 
marine mammals in and around the pile driving vicinity.
    PSOs shall be placed at high evaluation locations such as the 
boardwalk and the observation deck of the City Library to conduct 
marine mammal monitoring.
    PSOs will work shifts of a maximum of four consecutive hours and 
will work no more than 12 hours in any 24-hour period.
    6. PSOs shall collect the following information during marine 
mammal monitoring:
     Date and time that monitored activity begins and ends for 
each day conducted (monitoring period);
     Construction activities occurring during each daily 
observation period, including how many and what type of piles driven;
     Deviation from initial proposal in pile numbers, pile 
types, average driving times, etc.;
     Weather parameters in each monitoring period (e.g., wind 
speed, percent cloud cover, visibility);
     Water conditions in each monitoring period (e.g., sea 
state, tide state);
     For each marine mammal sighting:
    [cir] Species, numbers, and, if possible, sex and age class of 
marine mammals;
    [cir] Description of any observable marine mammal behavior 
patterns, including bearing and direction of travel and distance from 
pile driving activity;
    [cir] Location and distance from pile driving activities to marine 
mammals and distance from the marine mammals to the observation point; 
and
    [cir] Estimated amount of time that the animals remained in the 
Level B zone;
     Description of implementation of mitigation measures 
within each monitoring period (e.g., shutdown or delay);
     Other human activity in the area within each monitoring 
period
    To verify the required monitoring distance, the shutdown zones and 
ZOIs will be determined by using a range finder or hand-held global 
positioning system device.
    CBJ is required to submit a draft monitoring report within 90 days 
after completion of the construction work or the expiration of the IHA 
(if issued), whichever comes earlier. In the case if CBJ intends to 
renew the IHA (if issued) in a subsequent year, a monitoring report 
should be submitted 60 days before the expiration of the current IHA 
(if issued). This report would detail the monitoring protocol, 
summarize the data recorded during monitoring, and estimate the number 
of marine mammals that may have been harassed. NMFS would have an 
opportunity to provide comments on the report, and if NMFS has 
comments, CBJ would address the comments and submit a final report to 
NMFS within 30 days.
    In addition, NMFS would require CBJ to notify NMFS' Office of 
Protected Resources and NMFS' Alaska Stranding Coordinator within 48 
hours of sighting an injured or dead marine mammal in the construction 
site. CBJ shall provide NMFS and the Stranding Network with the species 
or description of the animal(s), the condition of the animal(s) 
(including carcass condition, if the animal is dead), location, time of 
first discovery, observed behaviors (if alive), and photo or video (if 
available).
    In the event that CBJ finds an injured or dead marine mammal that 
is not in the construction area, CBJ would report the same information 
as listed above to NMFS as soon as operationally feasible.

Negligible Impact Analysis and Determinations

    NMFS has defined negligible impact 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 (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 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 harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    Although some individual harbor seals are estimated to experience 
Level A harassment in the form of PTS if they stay within the Level A 
harassment zone during the entire pile driving for the day, the degree 
of injury is expected to be mild and is not likely to affect the 
reproduction or survival of the individual animals. It is expected 
that, if hearing impairment occurs, most likely the affected animal 
would lose a few dB in its hearing sensitivity, which in most cases is 
not likely to affect its survival and recruitment. Hearing impairment 
that might occur for these individual animals would be limited to the 
dominant frequency of the noise sources, i.e., in the low-frequency 
region below 2 kHz. Nevertheless, as for all marine mammal species, it 
is known that in general these seals will avoid areas where sound 
levels could cause hearing impairment. Therefore it is not likely that 
an animal would stay in an area with intense noise that could cause 
severe levels of hearing damage.
    Under the majority of the circumstances, anticipated takes are 
expected to be limited to short-term Level B harassment. Harbor seals 
present in the vicinity of the action area and taken by Level B 
harassment would most likely show overt brief disturbance (startle 
reaction) and avoidance of the area from elevated noise levels during 
pile driving and pile removal. Given the limited estimated number of 
incidents of Level A and Level B harassment and the limited, short-term 
nature of the responses by the individuals, the impacts of the 
estimated take cannot be reasonably expected to, and are not reasonably 
likely to, rise to the level that they would adversely affect the 
species at the population level, through effects on annual rates of 
recruitment or survival.
    There are no known important habitats, such as rookeries or 
haulouts, in the vicinity of the CBJ's waterfront improvement 
construction project. The project also is not expected to have 
significant adverse effects on affected marine mammals' habitat, 
including prey, as analyzed in detail in the ``Anticipated Effects on 
Marine Mammal Habitat'' section.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not

[[Page 24498]]

expected to adversely affect the species or stock through effects on 
annual rates of recruitment or survival:
     No mortality is anticipated or authorized;
     Some individual harbor seals are anticipated to experience 
a mild level of PTS, but the degree of PTS is not expected to affect 
their fitness;
     Most adverse effects to harbor seals are temporary 
behavioral harassment; and
     No biologically important area is present in or near the 
proposed construction 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 proposed monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
the proposed activity will have a negligible impact on all affected 
marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Section 101(a)(5)(D) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, NMFS compares the number of 
individuals anticipated to be taken to the most appropriate estimation 
of the relevant species or stock size in our determination of whether 
an authorization would be limited to small numbers of marine mammals.
    The estimated take of harbor seal would be 35 percent of the 
population, if each single take were a unique individual. However, this 
is highly unlikely because the harbor seal in the vicinity of the 
project area shows site fidelity to small areas for periods of time 
that can extend between seasons. As discussed earlier, there are one to 
two resident harbor seals in the project vicinity and are observed 
within the action area on a regular basis. In addition, a smaller 
amount of harbor seals have been observed near the DIPAC salmon 
hatchery which is approximately 5 km north of the project area. 
Therefore, the total maximum number of individual harbor seals at the 
project area that could be affect by in-water pile driving during a 
typical day is assumed to be 43 individuals.
    Based on the analysis contained herein of the proposed activity 
(including the prescribed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
each species or stock will be taken relative to the population size of 
the affected species or stocks.

Unmitigable Adverse Impact Subsistence Analysis and Determination

    The proposed construction project will occur near but not overlap 
the subsistence areas in Juneau. The Alaska Department of Fish and Game 
(ADF&G) was contacted by CBJ regarding subsistence uses in Gastineau 
Channel and it was confirmed that Gastineau Channel is not a 
subsistence use area for harbor seals (CBJ, 2018). Therefore, the 
proposed project will not adversely impact the availability of any 
marine mammal species or stocks that are commonly used for subsistence 
purposes in the Juneau area.
    Based on the analysis contained herein of the likely effects of the 
specified activity on subsistence activities, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the proposed activity will not have 
unmitigable adverse impact on subsistence use of marine mammals in the 
project area.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an 
incidental harassment authorization) with respect to potential impacts 
on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental harassment authorizations with 
no anticipated serious injury or mortality) 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. Accordingly, NMFS has determined that the issuance of the 
proposed IHA qualifies to be categorically excluded from further NEPA 
review.

Endangered Species Act (ESA)

    No incidental take of ESA-listed species is authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal consultation under section 7 of the ESA is not required for this 
action.

Authorization

    As a result of these determinations, NMFS has issued an IHA to the 
City and Borough of Juneau for the Juneau Dock and Harbor waterfront 
improvement project in Juneau, Alaska, provided the previously 
described mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: May 21, 2019.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2019-10973 Filed 5-24-19; 8:45 am]
 BILLING CODE 3510-22-P