Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Erickson Residence Marine Access Project in Juneau, Alaska, 65360-65373 [2019-25688]

Download as PDF 65360 Federal Register / Vol. 84, No. 229 / Wednesday, November 27, 2019 / Notices DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [RTID 0648–XW012] Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Pacific Coast Groundfish Fishery; Applications for Exempted Fishing Permits (EFP) National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; request for comments. AGENCY: NMFS announces renewal request applications for three exempted fishing permits. The applications, submitted by the San Francisco Community Fishing Association, Scott Cook, and Real Good Fish, request exemptions from prohibitions to fish for rockfish species inside the non-trawl Rockfish Conservation Areas during the 2020 fishing year. All three applicants request to test hook-and-line gear that selectively harvests underutilized, midwater rockfish species while avoiding bottom-dwelling, overfished rockfish species. NMFS previously evaluated these projects and issued exempted fishing permits for these applicants for the 2019 fishing year. NMFS requests public comment on these applications for the 2020 fishing year. SUMMARY: Comments must be received by December 12, 2019. ADDRESSES: You may submit comments on this document, identified by NOAA– NMFS–2019–0133, by any of the following methods: • Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/ #!docketDetail;D=NOAA-NMFS-20190133, click the ‘‘Comment Now!’’ icon, complete the required fields, and enter or attach your comments. The EFP applications will be available under Supporting Documents through the same link. • Mail: Submit written comments to Lynn Massey, West Coast Region, NMFS, 501 W Ocean Blvd., Ste. 4200, Long Beach, CA 90802–4250. Instructions: Comments must be submitted by one of the above methods to ensure that the comments are received, documented, and considered by NMFS. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be DATES: VerDate Sep<11>2014 20:21 Nov 26, 2019 Jkt 250001 considered. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.) submitted voluntarily by the sender will be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter ‘‘N/A’’ in the required fields if you wish to remain anonymous). FOR FURTHER INFORMATION CONTACT: Lynn Massey, West Coast Region, NMFS, (562) 436–2462, lynn.massey@ noaa.gov. This action is authorized by the Pacific Coast Groundfish Fishery Management Plan and the regulations implementing the Magnuson-Stevens Fishery Conservation and Management Act at 50 CFR 600.745, which state that NMFS may issue exempted fishing permits (EFP) to authorize fishing activities that would otherwise be prohibited. At the June 2018 Pacific Fishery Management Council (Council) meeting, the Council voted to recommend the following three 2019 EFP projects to NMFS, and made the preliminary decision to recommend continuing the EFP projects in 2020: • Yellowtail Rockfish Jig Fishing for the 2019–2020 Fishing Seasons (San Francisco Community Fishing Association); • Commercial Midwater Hook-andLine Rockfish Fishing in the RCA off the Oregon Coast (Scott Cook); and, • Monterey Bay Regional Exempted Fishing Permit—Chilipepper Rockfish (Real Good Fish). NMFS published a description of the EFP projects in the Federal Register on September 6, 2018 (83 FR 45224), and solicited public comments through October 9, 2018. NMFS received one public comment in support of issuing the EFPs. At the November 2019 Council meeting, the Council confirmed its recommendation to renew all three EFP projects for the 2020 fishing year. All three EFP applicants request to continue testing hook-and-line gear that selectively targets underutilized, midwater rockfish species (e.g. yellowtail rockfish) while avoiding overfished, bottom-dwelling rockfish species (e.g. yelloweye rockfish). An EFP is necessary for these activities because they will all occur inside the non-trawl rockfish conservation area (RCA), which is closed to fishing with SUPPLEMENTARY INFORMATION: PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 non-trawl fixed gear to protect overfished groundfish stocks. The only requested change for 2020 was an additional exemption for the Real Good Fish EFP project, which would permit vessel participants to take an EFP trip without a vessel monitoring system (VMS). The primary purpose of VMS is to monitor vessel movement to ensure that vessels do not fish in restricted areas. The current EFP exempts vessels from a prohibition on fishing in a restricted area (i.e., the nontrawl RCA). In addition, there are no other closed areas near the area where vessels would conduct EFP fishing activity, and vessels are only permitted to conduct EFP fishing activities on EFP trips. For these reasons, it is not necessary to use VMS to monitor EFP vessel fishing activity inside the nontrawl RCA, or near the area where vessels would conduct EFP fishing activities. Therefore, NMFS does not expect any unintended biological impacts or enforcement issues if it issues this exemption. All EFP trips are still subject to specific catch limits and must carry an observer. All applicants will adhere to EFP setasides for targeted and incidental groundfish and other species, which the Council considered and approved for both the 2019 and 2020 fishing years at its June 2018 meeting. These EFP setasides are off the top deductions from the 2020 applicable annual catch limits (ACLs), meaning any landings and discards that occur under these EFPs would be accounted for within the applicable ACLs. Authority: 16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq. Dated: November 21, 2019. Jennifer M. Wallace, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 2019–25696 Filed 11–26–19; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XR029 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Erickson Residence Marine Access Project in Juneau, Alaska National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. AGENCY: E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 84, No. 229 / Wednesday, November 27, 2019 / Notices Notice; issuance of an incidental harassment authorization (IHA). ACTION: In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an IHA to Jim Erickson to incidentally harass, by Level A and Level B harassment, marine mammals during pile driving activities associated with the Erickson Residence Marine Access Project in Juneau, Alaska. SUMMARY: This Authorization is effective from January 1, 2020 through December 31, 2020. FOR FURTHER INFORMATION CONTACT: Amy Fowler, Office of Protected Resources, NMFS, (301) 427–8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, 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: DATES: Background The MMPA prohibits the ‘‘take’’ of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified 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 VerDate Sep<11>2014 20:21 Nov 26, 2019 Jkt 250001 pertaining to the mitigation, monitoring and reporting of such takings are set forth. Summary of Request On May 8, 2019, NMFS received a request from Jim Erickson for an IHA to take marine mammals incidental to pile driving activities associated with a dock replacement project in Auke Bay, north of Juneau, Alaska. The application was deemed adequate and complete on August 13, 2019. Mr. Erickson’s request was for take of a small number of eight species of marine mammal by Level A and Level B harassment. Neither Mr. Erickson nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate. Description of Activity Mr. Erickson plans to replace his private moorage facility in Auke Bay in Juneau, Alaska to provide a safer, more accessible and secure dock. Six 12- to 16-inch (in) timber piles will be removed using a vibratory hammer, and six steel pipe piles (four 12.75-in steel pipe piles and two 20-in steel pipe piles) will be installed using vibratory and impact hammers over the course of up to eight days. Of those eight days, impact pile driving may occur on up to four days and vibratory pile removal and installation may occur on up to six days. Drilling may be required to install the larger diameter steel piles. If required, drilling may occur on up to two days. Vibratory pile removal and installation, impact pile installation, and drilling would introduce underwater sounds at levels that may result in take, by Level A and Level B harassment, of marine mammals in Auke Bay. A detailed description of the planned project is provided in the Federal Register notice for the proposed IHA (84 FR 50387; September 25, 2019). Since that time, no changes have been made to the planned pile driving activities. Therefore, a detailed description is not provided here. Please refer to that Federal Register notice for the description of the specific activity. Comments and Responses A notice of NMFS’s proposal to issue an IHA to Mr. Erickson was published in the Federal Register on September 25, 2019 (84 FR 50387). That notice described, in detail, Mr. Erickson’s activity, the marine mammal species that may be affected by the activity, and the anticipated effects on marine mammals. During the 30-day public comment period, NMFS received a comment letter from the Marine PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 65361 Mammal Commission (Commission). The Commission recommended that NMFS issue the IHA, subject to the inclusion of the proposed mitigation, monitoring, and reporting measures. Comment 1: The Commission recommended that NMFS require Mr. Erickson to keep a running tally of the total (extrapolated) takes for each species to ensure takes remain within the authorized limits. Response: We agree that the applicant must ensure they do not exceed authorized takes. We have included in the authorization that the applicant must include extrapolation of the estimated takes by Level B harassment based on the number of observed exposures within the Level B harassment zone and the percentage of the Level B harassment zone that was not visible in the draft and final reports. Comment 2: The Commission noted that the Level A harassment takes were subtracted from the Level B harassment takes but that harbor seals and harbor porpoises may be taken by both types of harassment during the proposed activities. The Commission recommended that NMFS clarify that the number of Level A takes authorized could apply to either Level A or Level B harassment. Response: NMFS has noted in the Estimated Take section below that harbor seals and harbor porpoises taken by Level A harassment may also be taken by Level B harassment. Comment 3: The Commission noted that the source level used for impact installation of 12.75-in piles is from water depths less than 5 m (in Caltrans 2015) but water depths near Mr. Erickson’s dock range from approximately 2 to 13 m in depth. The Commission noted that source levels in deeper water may be 2 to 6 decibels (dB) greater than those in shallow water. As Caltrans (2015) does not include data for impact pile driving of 12-in steel pipe piles, the Commission recommended NMFS finish any outstanding internal reviews of source level data and make the source level data available to all NMFS analysts and relevant action proponents as soon as possible. Response: NMFS agrees that source levels in deeper water are greater than those of the same size piles in shallow water. However, absent specific data on source levels for 12-in steel pipe piles in deeper water, NMFS is using the best available data and is proceeding with the available Caltrans source levels for 12-in steel piles as proxy for Mr. Erickson’s 12.75-in piles. NMFS will make our comprehensive pile driving source level compendium available once the document is finalized. E:\FR\FM\27NON1.SGM 27NON1 65362 Federal Register / Vol. 84, No. 229 / Wednesday, November 27, 2019 / Notices Comment 4: The Commission recommended that NMFS refrain from using the proposed renewal process for Mr. Erickson’s authorization. The renewal process should be used sparingly and selectively, by limiting its use only to those proposed incidental harassment authorizations that are expected to have the lowest levels of impacts on marine mammals and that require the least complex analyses. If NMFS elects to use the renewal process frequently or for authorizations that require a more complex review or for which much new information has been generated the Commission recommended that NMFS provide the Commission and other reviewers the full 30-day comment period as set forth in section 101(a)(5)(D)(iii) of the MMPA. Response: We appreciate the Commission’s input and direct the reader to our recent response to a similar comment, which can be found at 84 FR 52464 (October 2, 2019), pg. 52466. Changes From the Proposed IHA to Final IHA NMFS has updated the pulse duration for impact driving of 12.75-in piles from 50 milliseconds (msec) to 100 msec, consistent with the NMFS 2018 Technical Guidance. As a result, the calculated Level A harassment zones from impact driving of 12.75-in piles have increased. Additionally, NMFS has revised the shutdown and monitoring zones for vibratory driving of 12.75-in piles and the monitoring zone for impact installation of 12.75-in piles to round up to the nearest 5 m. NMFS has also added requirements for Mr. Erickson to conduct pile installation and removal only during daylight hours and to delay pile installation and removal in times of poor visibility until the entire shutdown zone is visible. Finally, NMFS has added a requirement to report total takes extrapolated from observed takes and to provide field observation data sheets with the monitoring report. 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 (SARs; https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/marinemammal-stock-assessments) and more general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS’s website (https:// www.fisheries.noaa.gov/find-species). Table 1 lists all species with expected potential for occurrence in Auke Bay 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. 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 and U.S. Pacific SARs. All values presented in Table 1 are the most recent available at the time of publication and are available in the 2018 SARs (Muto et al., 2019; Caretta et al., 2019). TABLE 1—MARINE MAMMALS THAT COULD OCCUR IN THE PROJECT AREA Common name Scientific name ESA/ MMPA status; Strategic (Y/N) 1 Stock Stock abundance (CV, Nmin, most recent abundance survey) 2 PBR Annual M/SI 3 Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) Family Eschrichtiidae: Gray whale ......................... Eschrichtius robustus ................ Eastern North Pacific ................ -/-; N 26,960 (0.05, 25,849, 2016). Family Balaenopteridae (rorquals): Humpback whale ................ Minke whale ........................ Megaptera novaeangliae .......... Balaenoptera acutorostrada ..... Central North Pacific ................. Alaska ....................................... T/D; Y -/-; N Fin whale ............................ Balaenoptera physalus ............. Northeast Pacific ....................... E/D; Y 10,103 (0.3, 7,890, 2006) N/A (see SAR, N/A, see SAR). see SAR (see SAR, see SAR, 2013). 801 138 83 UND 26 0 5.1 0.6 Superfamily Odontoceti (toothed whales, dolphins, and porpoises) Family Delphinidae: Killer whale ......................... Killer whale ......................... Killer whale ......................... Family Phocoenidae (porpoises): Harbor porpoise .................. Dall’s porpoise .................... Orcinus orca ............................. Orcinus orca ............................. Orcinus orca ............................. Alaska Resident ........................ Northern Resident ..................... West Coast Transient ............... -/-; N -/-; N -/-; N 2,347 (N/A, 2347, 2012) 261 (N/A, 261, 2011) ...... 243 (N/A, 243, 2009) ...... 24 1.96 2.4 1 0 0 Phocoena phocoena ................. Phocoenoides dalli .................... Southeast Alaska ...................... Alaska ....................................... -/-; Y -/-; N 975 (0.10; 896; 2012) ..... 83,400 (0.097, N/A, 1991). 8.9 UND 34 38 Order Carnivora—Superfamily Pinnipedia Family Otariidae (eared seals and sea lions): VerDate Sep<11>2014 20:21 Nov 26, 2019 Jkt 250001 PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 65363 Federal Register / Vol. 84, No. 229 / Wednesday, November 27, 2019 / Notices TABLE 1—MARINE MAMMALS THAT COULD OCCUR IN THE PROJECT AREA—Continued Common name ESA/ MMPA status; Strategic (Y/N) 1 Scientific name Stock Steller sea lion .................... Eumetopias jubatus .................. Eastern DPS ............................. E/D; Y Steller sea lion .................... Eumetopias jubatus .................. Western DPS ............................ -/-; N California sea lion ............... Zalophus californianus .............. U.S. ........................................... -/-; N Family Phocidae (earless seals): Harbor seal ......................... Phoca vitulina ........................... Lynn Canal/Stephens Passage -/-; N Stock abundance (CV, Nmin, most recent abundance survey) 2 54,267 (see SAR, 54,267, 2017). 41,638 (see SAR, 41,638, 2015). 257,606 (N/A, 233,515, 2014). 9,478 (see SAR, 8,605, 2011). PBR Annual M/SI 3 326 252 2,498 108 14,011 > 321 155 50 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: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 3—These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases. Note—Italicized species are not expected to be taken or proposed for authorization. All species that could potentially occur in the area of the Erickson Residence are included in Table 1. However, the spatial and temporal occurrence of gray whales and fin whales in the area is such that take is not expected to occur, and they are not discussed further beyond the explanation provided here. Sightings of gray whales and fin whales are uncommon in the inland waters of southeast Alaska. These species are typically seen closer to the open waters of the Gulf of Alaska. Take of gray whales and fin whales was not requested and has not been authorized, and these species are not considered further in this document. A detailed description of the of the species likely to be affected by Mr. Erickson’s planned project, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the Federal Register notice for the proposed IHA (84 FR 50387; September 25, 2019); since that time, we are not aware of any changes in the status of these species and stocks; therefore, detailed descriptions are not provided here. Please refer to that Federal Register notice for these descriptions. Please also refer to NMFS’ website (https:// www.fisheries.noaa.gov/find-species) for generalized species accounts. Potential Effects of Specified Activities on Marine Mammals and Their Habitat The effects of underwater noise from pile installation and removal activities for the Erickson Residence Marine Access Project have the potential to result in behavioral harassment of marine mammals in the vicinity of the VerDate Sep<11>2014 20:21 Nov 26, 2019 Jkt 250001 action area. The Federal Register notice for the proposed IHA (84 FR 50387; September 25, 2019) included a discussion of the effects of anthropogenic noise on marine mammals, therefore that information is not repeated here; please refer to the Federal Register notice (84 FR 50387; September 25, 2019) for that information. Marine Mammal Habitat Effects The main impact associated with the Erickson Residence Marine Access Project would be temporarily elevated sound levels and the associated direct effects on marine mammals. The project would not result in permanent impacts to habitats used directly by marine mammals, such as haulout sites, but may have potential short-term impacts to food sources such as forage fish, and minor impacts to the immediate substrate during installation and removal of piles during the planned project. These potential effects are discussed in detail in the Federal Register notice for the proposed IHA (84 FR 50387; September 25, 2019), therefore that information is not repeated here; please refer to that Federal Register notice for that information. Estimated Take This section provides an estimate of the number of incidental takes authorized through this IHA, which will inform both NMFS’ consideration of ‘‘small numbers’’ 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 PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 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 primarily be by Level B harassment, as use of the vibratory and impact pile hammers and drill has the potential to result in disruption of behavioral patterns for individual marine mammals. There is also some potential for auditory injury (Level A harassment) to result, primarily for high frequency cetacean species and phocids because predicted auditory injury zones are larger than for other hearing groups. Auditory injury is unlikely to occur for other groups. The required mitigation and monitoring measures are expected to minimize the severity of such taking to the extent practicable. As described previously, no mortality is anticipated or authorized for this activity. Below we describe how the take is estimated. Generally speaking, 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. We note that while these basic factors can contribute to a basic E:\FR\FM\27NON1.SGM 27NON1 65364 Federal Register / Vol. 84, No. 229 / Wednesday, November 27, 2019 / Notices calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available (e.g., previous monitoring results or average group size). Below, we describe the factors considered here in more detail and present the authorized take. 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 permanent threshold shift (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 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. Mr. Erickson’s planned activity includes the use of continuous (vibratory pile driving and removal, drilling) and impulsive (impact pile driving) sources, and therefore the 120 and 160 dB re 1 mPa (rms) thresholds are applicable. Level A harassment for non-explosive sources—NMFS’ Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) (Technical Guidance, 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 nonimpulsive). Mr. Erickson’s planned activity includes the use of impulsive (impact pile driving) and non-impulsive (vibratory pile driving and removal, drilling) source. These thresholds are provided in Table 2. 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. TABLE 2—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT PTS onset acoustic thresholds * (received level) Hearing group Impulsive Low-Frequency (LF) Cetaceans ...................................... Mid-Frequency (MF) Cetaceans ...................................... High-Frequency (HF) Cetaceans ..................................... Phocid Pinnipeds (PW) (Underwater) ............................. Otariid Pinnipeds (OW) (Underwater) ............................. Cell Cell Cell Cell Cell 1: 3: 5: 7: 9: Lpk,flat: Lpk,flat: Lpk,flat: Lpk,flat: Lpk,flat: 219 230 202 218 232 dB; dB; dB; dB; dB; Non-impulsive LE,LF,24h: 183 dB ......................... LE,MF,24h: 185 dB ........................ LE,HF,24h: 155 dB ........................ LE,PW,24h: 185 dB ....................... LE,OW,24h: 203 dB ....................... Cell Cell Cell Cell Cell 2: LE,LF,24h: 199 dB. 4: LE,MF,24h: 198 dB. 6: LE,HF,24h: 173 dB. 8: LE,PW,24h: 201 dB. 10: LE,OW,24h: 219 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, which include source levels and transmission loss coefficient. The sound field in the project area is the existing background noise plus additional construction noise from the planned project. Marine mammals are expected to be affected via sound generated by the primary components of the project (i.e., impact pile driving, vibratory pile driving and removal). The area ensonified above the thresholds for harassment is governed by the VerDate Sep<11>2014 20:21 Nov 26, 2019 Jkt 250001 topography of Auke Bay and the various islands located within and around the bay. The eastern part of Auke Bay is acoustically shadowed by Auke Cape, while Portland Island, Coghlan Island, Suedla Island, and Spuhn Island would inhibit sound transmission from reaching the more open waters toward Mansfield Peninsula (see Figure 2 in the IHA application). Additionally, vessel traffic and other commercial and industrial activities in the project area may contribute to elevated background noise levels which may mask sounds produced by the project. The project includes vibratory removal of timber piles, vibratory and impact installation of steel pipe piles, PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 and drilling. Source levels for these activities are based on reviews of measurements of the same or similar types and dimensions of piles available in the literature. Source levels for each activity are presented in Table 3 The source level for vibratory removal of timber piles is from in-water measurements generated by the Greenbusch Group (2018) from the Seattle Pier 62 project (83 FR 39709; April 10, 2018). Hydroacoustic monitoring results from Pier 62 determined unweighted rms ranging from 140 dB to 169 dB. NMFS analyzed source measurements at different distances for all 63 individual timber piles that were removed at Pier 62 and E:\FR\FM\27NON1.SGM 27NON1 65365 Federal Register / Vol. 84, No. 229 / Wednesday, November 27, 2019 / Notices normalized the values to 10 m. The results showed that the median is 152 dB SPLrms. There are no literature source levels for vibratory installation of 12.75-in steel piles so source levels from vibratory installation of 12-in steel piles from the Caltrans Compendium of Pile Driving Sound Data were used as a proxy (Caltrans 2015). Similarly, as no literature source levels exist for vibratory installation of 20-in steel piles, hydroacoustic measurements of vibratory installation of 24-in steel piles from the U.S. Navy’s Test Pile Project were used as a proxy (Navy, 2015). Source levels for impact installation of 12.75-in piles were determined by using Caltrans measurements of impact installation of 12-in steel piles as a proxy (Caltrans 2015). Source levels for impact installation of 20-in piles are from installation of 20-in piles in the Columbia River, in similar water depths (Yurk et al., 2016). Source levels for drilling are proxy from median measured source level from drilling of 24-in diameter piles at the Kodiak Ferry Terminal (Denes et al., 2016, Table 72). TABLE 3—SOUND SOURCE LEVELS FOR PILE SIZES AND DRIVING METHODS Pile size Source level (at 10 m) Method dB RMS Literature source dB Peak dB SEL 12.75-in steel ......................... Vibratory ............................... 155 171 155 20-in steel .............................. Vibratory ............................... 161 — — 12- to 16-in timber ................. 20-in steel .............................. Vibratory ............................... Drilling ................................... 152 166.2 — — — — 12.75-in steel ......................... Impact ................................... 177 192 — 20-in steel .............................. Impact ................................... 190 205 175 Caltrans 2015 (proxy from 12-in). Navy 2015 (proxy from 24-in). Greenbusch Group 2018. Denes et al., 2016 (proxy from 24-in). Caltrans 2015 (proxy from 12-in). Yurk et al., 2016. — indicates source level not reported. Transmission loss (TL) is the decrease in acoustic intensity as an acoustic pressure wave propagates out from a source. TL parameters vary with frequency, temperature, sea conditions, current, source and receiver depth, water depth, water chemistry, and bottom composition and topography. The general formula for underwater TL is: TL = B * Log10 (R 1/R 2), Where: TL = transmission loss in dB B = transmission loss coefficient R 1= the distance of the modeled SPL from the driven pile, and R 2= the distance from the driven pile of the initial measurement A practical spreading value of fifteen is often used under conditions, such as Auke Bay, where water increases with depth as the receiver moves away from the shoreline, resulting in an expected propagation environment that would lie between spherical and cylindrical spreading loss conditions. Practical spreading loss is assumed here. TABLE 4—PILE DRIVING SOURCE LEVELS AND DISTANCES TO LEVEL B HARASSMENT THRESHOLDS Source level at 10 m (dB re 1 μPa rms) Pile size and type Method 12.75-in steel .................................................. 20-in steel ....................................................... 12- to 16-in timber .......................................... 20-in steel ....................................................... 12.75-in steel .................................................. 20-in steel ....................................................... Vibratory ......................................................... Vibratory ......................................................... Vibratory ......................................................... Drilling ............................................................ Impact ............................................................. Impact ............................................................. When the NMFS Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that VerDate Sep<11>2014 20:21 Nov 26, 2019 Jkt 250001 isopleths produced are typically going to be overestimates of some degree, which may result in some degree of overestimate of Level A harassment take. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. For stationary sources (such as pile drivers), NMFS User Spreadsheet predicts the closest PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 155 161 152 166.2 177 190 Level B threshold (dB re 1 μPa rms) 120 120 120 120 160 160 Distance to level B threshold (m) 2,154 5,412 1,359 12,023 136 1,000 distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would not incur PTS. Inputs used in the User Spreadsheet, and the resulting isopleths are reported below (Table 5). Mr. Erickson anticipates that the number of piles installed or removed per day may vary due to environmental conditions and equipment availability. To calculate the Level A harassment isopleths in the User Spreadsheet, Mr. Erickson conservatively entered the maximum number of piles that may be installed in E:\FR\FM\27NON1.SGM 27NON1 65366 Federal Register / Vol. 84, No. 229 / Wednesday, November 27, 2019 / Notices a day and the maximum potential duration per pile. TABLE 5—USER SPREADSHEET INPUT PARAMETERS USED FOR CALCULATING LEVEL A HARASSMENT ISOPLETHS Weighting factor adjustment (kHz) Spreadsheet tab used Activity Timber vibratory removal. 12.75-in vibratory install. 20-in vibratory install DTH Drilling ............. 12.75-in impact ........ 20-in impact ............. Propagation (xLogR) Source level at 10 m Strike duration (sec) Strikes per pile Driving duration for single pile (hours) Max piles per day A.1 2.5 152 dB rms ............. 15 N/A N/A 0.25 6 A.1 2.5 155 dB rms ............. 15 N/A N/A 1 4 A.1 A.1 E.1 E.1 2.5 2.5 2 2 161 dB rms ............. 166.2 dB rms .......... 177 dB rms ............. 175 dB SEL ............ 15 15 15 15 N/A N/A 0.1 N/A N/A N/A 150 150 2 5 N/A N/A 2 2 4 2 N/A indicates not applicable TABLE 6—CALCULATED DISTANCES TO LEVEL A HARASSMENT ISOPLETHS Level A harassment zone (m) Activity LF cetaceans Timber vibratory removal ..................................................... 12.75-in vibratory install ....................................................... 20-in vibratory install ............................................................ DTH Drilling .......................................................................... 12.75-in impact .................................................................... 20-in impact ......................................................................... Marine Mammal Occurrence and Take Calculation and Estimation In this section we provide the information about the presence, density, or group dynamics of marine mammals and describe how it is brought together with the information above to produce a quantitative take estimate. When available, peer-reviewed scientific publications were used to estimate marine mammal abundance in the project area. However, scientific surveys and resulting data such as population estimates, densities, and other quantitative information are lacking for most marine mammal populations and most areas of southeast Alaska, including Auke Bay. Therefore, Mr. Erickson gathered qualitative information from discussions with knowledgeable local people in the Auke Bay area, including biologists, the harbormaster, a tour operator, and other individuals familiar with marine mammals in the Auke Bay area. Here we describe how the information provided above is brought together to produce a quantitative take estimate. Because reliable densities are not available, the applicant requests take based on the maximum number of animals that may occur in the harbor per day multiplied by the number of days of the activity. VerDate Sep<11>2014 20:21 Nov 26, 2019 Jkt 250001 MF cetaceans HF cetaceans 0.2 0.6 1.5 6.2 2.2 4.7 3.3 10.1 25.4 104.1 72.6 156.1 2.2 6.9 17.2 70.4 60.9 131.1 Steller Sea Lion Steller sea lions are common within Auke Bay but generally only occur in the area during winter. Most individuals that frequent Auke Bay haul out at Benjamin Island in Lynn Canal. The Auke Bay boating community observes Steller sea lions transiting between Auke Bay and Benjamin Island regularly during winter. Steller sea lions are not known to haul out on any beaches or structures within Auke Bay, but animals have been observed foraging within Auke Bay, and may rest in large raft groups in the water. Groups as large as 121 individuals have been observed in Auke Bay (Ridgway pers. observ.). Mr. Erickson estimates that one large group (121 individuals) may be exposed to project-related underwater noise daily on 8 days of pile installation and removal activities, for a total of 968 exposures. As stated above, approximately 18.1 percent of Steller sea lions present in Auke Bay are expected to belong to the wDPS, for a total of 175 exposures of wDPS Steller sea lions and 793 exposures of eDPS Steller sea lions. The largest Level A harassment zone for otariid pinnipeds extends 5.1 m from the source (Table 6). Mr. Erickson is planning to implement a minimum shutdown zone of 10 m during all pile driving activities, (see Mitigation section), which is expected to eliminate the potential for Level A take of Steller PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 Phocids 1.4 4.2 10.5 42.8 32.6 70.1 Otariids 0.1 0.3 0.7 3.0 2.4 5.1 sea lions. Therefore, no takes of Steller sea lions by Level A harassment were requested and no takes by Level A harassment have been authorized. California Sea Lion California sea lions are rare in Southeast Alaska, but a single California sea lion was observed hauled out in Statter Harbor in September of 2017. While Statter Harbor is acoustically shadowed by the topography of Auke Bay and will not be ensonified above the Level B behavioral harassment threshold, a California sea lion could enter the Level B harassment zone within Auke Bay to forage. Therefore, Mr. Erickson estimates that a single California sea lion may enter the Level B harassment zone on each of the eight days of pile driving, for a total of eight exposures. The largest Level A harassment zone for otariid pinnipeds extends 5.1 m from the source (Table 6). Mr. Erickson is planning to implement a minimum shutdown zone of 10 m during all pile driving activities, (see Mitigation section), which is expected to eliminate the potential for Level A take of California sea lions. Therefore, no takes of California sea lions by Level A harassment were requested or authorized. Harbor Seal Harbor seals are commonly sighted in the waters of the inside passages E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 84, No. 229 / Wednesday, November 27, 2019 / Notices throughout southeast Alaska. Seals occur year-round within the project area and are regularly sighted in Auke Bay, including Statter Harbor. Up to 52 seals have been observed hauled out on a dock at Fisherman’s Bend within Statter Harbor (Ridgway unpubl. data) which is acoustically sheltered from the planned pile driving activities, but it is assumed that these animals may leave the dock to forage within Auke Bay and may be exposed to noise levels in excess of the Level B harassment thresholds upon entering the water. Mr. Erickson estimates up to 52 harbor seals could be exposed to elevated sound levels on each day of pile driving, for a total of 416 exposures. The largest Level A harassment zone for phocid pinnipeds results from impact installation of 20-in piles and extends 70.1 m from the pile (Table 6). There are no haulouts located within the Level A harassment zone and although it is unlikely that harbor seals will enter this area without detection while pile driving activities are underway, it is possible that harbor seals may approach and enter the Level A harassment zone undetected. Mr. Erickson has observed up to four harbor seals in the water near the existing dock. Therefore, Mr. Erickson estimates that up to four harbor seals may approach the site within 70 m of the source each day. Impact pile driving is expected to occur on up to four days. For this reason, NMFS authorized take of 16 harbor seals by Level A harassment. Harbor seals taken by Level A harassment may also be taken by Level B harassment. Harbor Porpoise Although there have been no systematic studies or observations of harbor porpoises specific to Auke Bay, there is the potential for them to occur within the project area. Abundance data for harbor porpoises in southeast Alaska were collected during 18 seasonal surveys spanning 22 years, from 1991 to 2012. During that study, a total of 398 harbor porpoises were observed in the northern inland waters of southeast Alaska, including Lynn Canal (Dahlheim et al., 2015). Mean group size of harbor porpoises in southeast Alaska varies by season. In the fall, mean group size was determined to be 1.88 harbor porpoises (Dahlheim et al., 2009). However, groups of five to six harbor porpoises have been observed in Auke Bay (B. Lambert, pers. comm.). Therefore, Mr. Erickson estimates that up to six harbor porpoises may enter the Level B harassment zone on each of the eight days of pile driving, for a total of 48 exposures. VerDate Sep<11>2014 20:21 Nov 26, 2019 Jkt 250001 The largest Level A harassment zone extends 156.1 m from the source (Table 6). Mr. Erickson is planning to implement shutdown zones that encompass the Level A harassment zones (see Mitigation section). However, harbor porpoises are known to be an inconspicuous species and are challenging for protected species observers (PSOs) to sight, making any approach to a specific area potentially difficult to detect. Because harbor porpoises move quickly and elusively, it is possible that they may enter the Level A harassment zone without detection. Mr. Erickson estimates that one pair of harbor porpoises may enter the Level A harassment zone on each of the four days of impact pile driving for a total of eight potential takes by Level A harassment. Harbor porpoises taken by Level A harassment may also be taken by Level B harassment. Dall’s Porpoise Dall’s porpoises are not expected to occur within Auke Bay because the shallow water habitat of the bay is atypical of areas where Dall’s porpoises usually occur. However, Dall’s porpoises may opportunistically inhabit nearshore habitat. The largest group of Dall’s porpoises observed in Auke Bay was 10 individuals in 1994. Therefore, Mr. Erickson estimates that one group of ten Dall’s porpoises may enter the Level B harassment zone once during construction, for a total of ten exposures. Mr. Erickson is required to implement shutdown zones for porpoises that encompass the Level A harassment zones for each pile driving activities. The largest Level A harassment zone for Dall’s porpoise extends 156.1 m from the source during impact installation of 20-in steel piles (Table 6). Given the larger group size and more conspicuous rooster-tail generated by swimming Dall’s porpoises, which makes them more noticeable than harbor porpoises, PSOs are expected to detect Dall’s porpoises prior to them entering the Level A harassment zone. Therefore, takes of Dall’s porpoises by Level A harassment have not been requested and have not been authorized. Killer Whale Killer whales are known visitors of the Lynn Canal area, and occasionally enter Auke Bay. Oceanus Alaska compiled sightings records reported by Juneau residents and reported an average of 25 killer whales in the area per year between 2010 and 2017. Killer whales in the project area may be of the Northern Resident, Alaska Resident, or West Coast Transient stocks. The Alaska PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 65367 Resident group AG pod is known to frequent the Juneau Area in groups of up to 25 individuals (B. Lambert, pers. comm.). Mr. Erickson estimates that one group of up to 25 killer whales may enter the Level B harassment zone during the eight days of pile driving for a total of 25 exposures. Mr. Erickson is required to implement shutdown zones that encompass the largest Level A harassment zones for killer whales during all pile driving activities. Killer whales are generally conspicuous and PSOs are expected to detect killer whales and implement a shutdown before the animals enter the Level A harassment zone. Therefore, takes by Level A harassment have not been requested and have not been authorized. Humpback Whale Use of Auke Bay by humpback whales is intermittent and irregular year-round. During winter, researchers have documented 1 to 19 individual humpback whales per month in waters close to the project area, including Lynn Canal (Moran et al., 2018a; Straley et al., 2018). Group sizes in southeast Alaska generally range from one to four individuals (Dahlheim et al., 2009). Mr. Erickson estimates that one group of up to four individuals may be present in the Level B harassment zone per day during the eight days of pile driving, for a total of 32 takes by Level B harassment. The largest Level A harassment zone for humpback whales extends 131.1 m from the source during impact installation of 20-in piles (Table 6). Given the irregular and small presence of humpback whales in Auke Bay, along with the fact that PSOs are expected to detect humpback whales before they enter the Level A harassment zone and implement shutdowns to prevent take by Level A harassment, no Level A takes have been requested or authorized. Minke Whale Dedicated surveys for cetaceans in southeast Alaska found that minke whales were scattered throughout inland waters from Glacier Bay and Icy Strait to Clarence Strait, with small concentrations near the entrance of Glacier Bay. All sightings were of single minke whales, except for a single sighting of multiple minke whales. Surveys took place in spring, summer, and fall, and minke whales were present in low numbers in all seasons and years (Dahlheim et al., 2009). Anecdotal reports have not included minke whales near Auke Bay. However, minke whales are distributed throughout a wide variety of habitats and have been E:\FR\FM\27NON1.SGM 27NON1 65368 Federal Register / Vol. 84, No. 229 / Wednesday, November 27, 2019 / Notices observed in nearby Glacier Bay, indicating they may potentially occur within the Level B harassment zone. Therefore, Mr. Erickson estimates that one minke whale may enter the Level B harassment zone once during the eight days of pile driving activities, for a total of one take by Level B harassment. The Level A harassment zones for minke whales are the same as for humpback whales, and the shutdown protocols will be the same as well. Therefore, given the low occurrence of minke whales combined with the mitigation, takes by Level A harassment have not been requested or authorized. TABLE 7—AUTHORIZED TAKE BY LEVEL A AND LEVEL B HARASSMENT, BY SPECIES AND STOCK Stock abundance a Common name Stock Humpback whale ................ Minke Whale ....................... Killer whale .......................... Central North Pacific .......... Alaska ................................. Alaska Resident ................. Northern Resident .............. West Coast Transient ......... Southeast Alaska ............... Alaska ................................. Western U.S. ...................... Eastern U.S. ....................... U.S. .................................... Lynn Canal/Stephens Passage. Harbor porpoise .................. Dall’s porpoise .................... Steller sea lion .................... California sea lion ............... Harbor seal ......................... Level A 10,103 N/A 2,347 261 243 975 83,400 54,267 41,638 257,606 9,478 Total authorized take Level B 0 0 0 32 1 25 b 32 8 0 0 0 0 16 40 10 175 793 8 400 48 10 c 175 793 8 416 1 25 Authorized take as percentage of stock 0.32 N/A d 1.06 d 9.58 d 10.3 4.92 < 0.1 0.32 1.90 < 0.01 4.39 a Stock or DPS size is Nbest according to NMFS 2018 Draft Stock Assessment Reports. ESA section 7 consultation purposes, 6.1 percent are designated to the Mexico DPS and the remaining are designated to the Hawaii DPS; therefore, we assigned 2 Level B takes to the Mexico DPS. c Based on numbers reported in Hastings et al. (2019) and in consultation with the Alaska Regional Office, we used an 18.1 percent distinction factor to determine the number of animals potentially from the western DPS. d These percentages assume all 25 takes may occur to each individual stock, thus the percentage of one or more stocks are likely inflated as the takes would be divided among multiple stocks. b For 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 VerDate Sep<11>2014 20:21 Nov 26, 2019 Jkt 250001 stocks, and their habitat, as well as subsistence uses. 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 In addition to the measures described later in this section, Mr. Erickson is required to employ the following standard mitigation measures: • Conduct briefings between construction supervisors and crews and the marine mammal monitoring team prior to the start of all pile driving activity, and when new personnel join the work, to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures; PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 • For in-water heavy machinery work other than pile driving (e.g., standard barges, etc.), if a marine mammal comes within 10 m, operations must cease and vessels must reduce speed to the minimum level required to maintain steerage and safe working conditions. This type of work could include the following activities: (1) Movement of the barge to the pile location; or (2) positioning of the pile on the substrate via a crane (i.e., stabbing the pile); • Work may only occur during daylight hours, when visual monitoring of marine mammals can be conducted; • For those marine mammals for which Level B harassment take has not been requested, in-water pile installation/removal and drilling must shut down immediately if such species are observed within or on a path towards the monitoring zone (i.e., Level B harassment zone); and • If take reaches the authorized limit for an authorized species, pile installation and removal must be stopped as these species approach the Level B harassment zone to avoid additional take. Establishment of Shutdown Zone for Level A Harassment—For all pile driving/removal and drilling activities, Mr. Erickson must establish a shutdown zone. The purpose of a shutdown zone is generally to define an area within which shutdown of activity would occur upon sighting of a marine E:\FR\FM\27NON1.SGM 27NON1 65369 Federal Register / Vol. 84, No. 229 / Wednesday, November 27, 2019 / Notices mammal (or in anticipation of an animal entering the defined area). These shutdown zones would be used to prevent incidental Level A exposures from impact pile driving for Steller sea lions, California sea lions, Dall’s porpoises, killer whales, humpback whales, and minke whales, and to reduce the potential for such take for harbor seals and harbor porpoises. During all pile driving and removal activities, a minimum shutdown zone of 10 m must be enforced (Table 8). Shutdown zones for each specific activity are based on the Level A harassment zones and therefore vary by pile-size, type, driving method, and marine mammal hearing group (Table 8). If poor environmental conditions restrict full visibility of the shutdown zone(s), pile driving must be delayed until the entire shutdown zone is visible. TABLE 8—SHUTDOWN ZONES FOR PILE DRIVING ACTIVITIES Shutdown zone (m) Activity LF cetaceans Vibratory Timber Pile Removal ............................................ Vibratory Pile Driving (12.75-in) ........................................... Vibratory Pile Driving (20-in) ................................................ Drilling .................................................................................. Impact Pile Driving 12.75-in ................................................. Impact Pile Driving 20-in ...................................................... MF cetaceans HF cetaceans 10 10 10 10 10 10 10 15 30 105 75 160 10 10 20 75 65 135 Establishment of Monitoring Zones for Level B Harassment—Mr. Erickson is required to establish monitoring zones to correlate with Level B disturbance zones or zones of influence which are areas where SPLs are equal to or exceed the 160 dB rms threshold for impact driving and the 120 dB rms threshold during vibratory driving and drilling. Monitoring zones provide utility for observing by establishing monitoring protocols for areas adjacent to the shutdown zones. Monitoring zones enable observers to be aware of and communicate the presence of marine mammals in the project area outside the shutdown zone and thus prepare for a potential cease of activity should the animal enter the shutdown zone. The required monitoring zones are described in Table 9. Should PSOs determine the monitoring zone cannot be effectively observed in its entirety, Level B harassment exposures must be recorded and extrapolated based upon the number of observed takes and the percentage of the Level B zone that was not visible. Soft Start—The use of soft-start procedures are believed to provide additional protection to marine mammals by providing warning and/or giving marine mammals a chance to leave the area prior to the hammer operating at full capacity. For impact pile driving, contractors are required to provide an initial set of strikes from the hammer at reduced energy, with each strike followed by a 30-second waiting period. This procedure must be conducted a total of three times before impact pile driving begins. Soft start must be implemented at the start of each day’s impact pile driving and at any time following cessation of impact pile driving for a period of thirty minutes or longer. Soft start is not required during vibratory pile driving and removal activities. Pre-Activity Monitoring—Prior to the start of daily in-water construction activity, or whenever a break in pile driving/removal or drilling of 30 minutes or longer occurs, PSOs must observe the shutdown and monitoring zones for a period of 30 minutes. The shutdown zone is considered cleared when a marine mammal has not been TABLE 9—MARINE MAMMAL observed within the zone for a 30MONITORING ZONES minute period. If a marine mammal is observed within the shutdown zone, a Monitoring soft-start cannot proceed until the Activity zone (m) animal has left the zone or has not been observed for 15 minutes. If the Level B Impact installation of 12.75-in harassment zone has been observed for piles ....................................... 140 30 minutes and non-permitted species Impact installation of 20-in piles 1,000 are not present within the zone, soft Vibratory timber pile removal ... 1,360 start procedures can commence and Vibratory installation of 21.75-in work can continue even if visibility piles ....................................... 2,155 becomes impaired within the Level B Vibratory installation of 20-in monitoring zone. If a marine mammal piles ....................................... 5,415 permitted for Level B take is present in Drilling ....................................... 12,100 the Level B harassment zone, activities VerDate Sep<11>2014 20:21 Nov 26, 2019 Jkt 250001 PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 Phocid pinnipeds Otariid pinnipeds 10 10 15 45 35 75 10 10 10 10 10 10 may begin and Level B take must be recorded. As stated above, if the entire Level B zone is not visible at the start of construction, piling or drilling activities can begin. If work ceases for more than 30 minutes, the pre-activity monitoring of both the Level B and shutdown zone must commence. Based on our evaluation of the applicant’s planned measures, NMFS has determined that the required 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 planned 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 E:\FR\FM\27NON1.SGM 27NON1 65370 Federal Register / Vol. 84, No. 229 / Wednesday, November 27, 2019 / Notices 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. Marine Mammal Visual Monitoring Monitoring must be conducted by NMFS-approved observers. Trained observers must be placed from the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator. Observer training must be provided prior to project start, and shall include instruction on species identification (sufficient to distinguish the species in the project area), description and categorization of observed behaviors and interpretation of behaviors that may be construed as being reactions to the specified activity, proper completion of data forms, and other basic components of biological monitoring, including tracking of observed animals or groups of animals such that repeat sound exposures may be attributed to individuals (to the extent possible). Monitoring must be conducted beginning 30 minutes before, during, and continuing through 30 minutes after pile driving/removal and drilling activities. In addition, observers must record all incidents of marine mammal occurrence, regardless of distance from activity, and must document any behavioral reactions in concert with distance from piles being driven or removed. Pile driving/removal and VerDate Sep<11>2014 20:21 Nov 26, 2019 Jkt 250001 drilling activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than 30 minutes. At least two PSOs must be on duty during all pile driving activities. One PSO must be stationed at the dock site to allow full monitoring of the waters within the shutdown zones and the closest waters of the Level B harassment monitoring zones. An additional PSO must be positioned in a vessel in Auke Bay to observe the larger monitoring zones. Most of the shoreline of Auke Bay is privately owned and unavailable for PSOs to access. Additionally, PSOs cannot be stationed on the shore of the various islands in Auke Bay due to safety concerns. Therefore, a vesselbased PSO is the most practicable position for this project. Potential PSO locations are shown in Figure 2 in Mr. Erickson’s Marine Mammal Monitoring Plan. PSOs must scan the waters using binoculars, and/or spotting scopes, and must use a handheld GPS or rangefinder device to verify the distance to each sighting from the project site. All PSOs must be trained in marine mammal identification and behaviors and are required to have no other project-related tasks while conducting monitoring. In addition, monitoring must be conducted by qualified observers, placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown/delay procedures when applicable by calling for the shutdown to the hammer operator. Mr. Erickson must adhere to the following observer qualifications: (i) Independent observers (i.e., not construction personnel) are required; (ii) At least one observer must have prior experience working as an observer; (iii) Other observers may substitute education (degree in biological science or related field) or training for experience; and (iv) Mr. Erickson must submit observer CVs for approval by NMFS. Additional standard observer qualifications include: • Ability to conduct field observations and collect data according to assigned protocols; • Experience or training in the field identification of marine mammals, including the identification of behaviors; • Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations; • Writing skills sufficient to prepare a report of observations including but not PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates and times when in-water construction activities were suspended to avoid potential incidental injury from construction sound of marine mammals observed within a defined shutdown zone; and marine mammal behavior; and • Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary. A draft marine mammal monitoring report must be submitted to NMFS within 90 days after the completion of pile driving and removal and drilling activities. It must include an overall description of work completed, a narrative regarding marine mammal sightings, and associated PSO data sheets. Specifically, the report must include: • Date and time that monitored activity begins or ends; • Construction activities occurring during each observation period; • Weather parameters (e.g., percent cover, visibility); • Water conditions (e.g., sea state, tide state); • Species, numbers, and, if possible, sex and age class of marine mammals observed; • Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity; • Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point; • Locations of all marine mammal observations; • Other human activity in the area; and • A summary of the total number of individuals of each species detected within the Level B Harassment Zone, and estimated as taken if correction factor appropriate, and the total number of individuals of each species detected within the Level A Harassment Zone and the average amount of time that they remained in that zone. If no comments are received from NMFS within 30 days, the draft final report will constitute the final report. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments. In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (if issued), such E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 84, No. 229 / Wednesday, November 27, 2019 / Notices as an injury, serious injury or mortality, Mr. Erickson must immediately cease the specified activities and report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the Alaska Regional Stranding Coordinator. The report must include the following information: • Description of the incident; • Environmental conditions (e.g., Beaufort sea state, visibility); • Description of all marine mammal observations in the 24 hours preceding the incident; • Species identification or description of the animal(s) involved; • Fate of the animal(s); and • Photographs or video footage of the animal(s) (if equipment is available). Activities must not resume until NMFS is able to review the circumstances of the prohibited take. NMFS would work with Mr. Erickson to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Mr. Erickson would not be able to resume pile driving activities until notified by NMFS via letter, email, or telephone. In the event that Mr. Erickson discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition as described in the next paragraph), Mr. Erickson must immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the NMFS Alaska Stranding Hotline and/or by email to the Alaska Regional Stranding Coordinator. The report must include the same information identified in the paragraph above. Activities would be able to continue while NMFS reviews the circumstances of the incident. NMFS would work with Mr. Erickson to determine whether modifications in the activities are appropriate. In the event that Mr. Erickson discovers an injured or dead marine mammal and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), Mr. Erickson must report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the NMFS Alaska Stranding Hotline and/or by email to the Alaska Regional Stranding Coordinator, within 24 hours of the discovery. Mr. Erickson must VerDate Sep<11>2014 20:21 Nov 26, 2019 Jkt 250001 provide photographs, video footage (if available), or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. Negligible Impact Analysis and Determination 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 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). Pile driving/removal and drilling activities associated with the project as outlined previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level A harassment and Level B harassment from underwater sounds generated from pile driving and removal. Potential takes could occur if individuals of these species are present in zones ensonified above the thresholds for Level A or Level B harassment identified above when these activities are underway. The takes from Level A and Level B harassment would be due to potential behavioral disturbance, temporary threshold shift (TTS), and PTS. No mortality is anticipated given the nature of the activity and measures designed to minimize the possibility of injury to PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 65371 marine mammals. Level A harassment is only anticipated for harbor porpoise and harbor seal. The potential for harassment is minimized through the construction method and the implementation of the planned mitigation measures (see Mitigation section). Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (e.g., Thorson and Reyff 2006; HDR, Inc. 2012; Lerma 2014; ABR 2016). Most likely for pile driving, individuals will simply move away from the sound source and be temporarily displaced from the areas of pile driving and drilling, although even this reaction has been observed primarily only in association with impact pile driving. The pile driving activities analyzed here are similar to, or less impactful than, numerous other construction activities conducted in southeast Alaska, which have taken place with no known longterm adverse consequences from behavioral harassment. Level B harassment will be reduced to the level of least practicable adverse impact through use of mitigation measures described herein and, if sound produced by project activities is sufficiently disturbing, animals are likely to simply avoid the area while the activity is occurring. While vibratory driving and drilling associated with the planned project may produce sound at distances of many kilometers from the project site, thus intruding on some habitat, the project site itself is located in a busy harbor and the majority of sound fields produced by the specified activities are close to the harbor. Therefore, we expect that animals annoyed by project sound would simply avoid the area and use more-preferred habitats. In addition to the expected effects resulting from authorized Level B harassment, we anticipate that harbor porpoises and harbor seals may sustain some limited Level A harassment in the form of auditory injury. However, given the relatively small size of the Level A harassment zones and the anticipated effectiveness of mitigation, animals in these locations that experience PTS would likely only receive slight PTS, i.e. minor degradation of hearing capabilities within regions of hearing that align most completely with the energy produced by pile driving, i.e. the low-frequency region below 2 kHz, not severe hearing impairment or impairment in the regions of greatest E:\FR\FM\27NON1.SGM 27NON1 65372 Federal Register / Vol. 84, No. 229 / Wednesday, November 27, 2019 / Notices hearing sensitivity. If hearing impairment occurs, it is most likely that the affected animal would lose a few decibels in its hearing sensitivity, which in most cases is not likely to meaningfully affect its ability to forage and communicate with conspecifics. As described above, we expect that marine mammals would be likely to move away from a sound source that represents an aversive stimulus, especially at levels that would be expected to result in PTS, given sufficient notice through use of soft start. Nearly all inland waters of southeast Alaska, including Auke Bay, are included in the southeast Alaska humpback whale feeding BIA (Ferguson et al., 2015), though humpback whale distribution in southeast Alaska varies by season and waterway (Dahlheim et al., 2009). Humpback whales are present within Auke Bay intermittently and in low numbers. The area of the BIA that may be affected by the planned project is small relative to the overall area of the BIA, and the area of suitable humpback whale habitat that is not included in the BIA. The southeast Alaska humpback whale feeding BIA is active between March and November. While the exact timing of the planned project is unknown, Mr. Erickson’s pile driving activities are expected to take only eight days. If the project were to occur between March and November, the days of activity represent a small fraction of the time the BIA is active and, thus, even if humpback whale feeding behaviors were interrupted by the activity, the disturbance would be shortterm and alternative habitat and foraging opportunities are available nearby. Further, only a very small portion of the humpback stock is expected to enter the area and potentially be disturbed. Therefore, any adverse effects on humpback whales resulting from disturbances occurring in the southeast Alaska humpback whale feeding BIA are expected to be shortterm and minor and not adversely impact reproduction or survival, much less the stock. The project also is not expected to have significant adverse effects on affected marine mammals’ habitat. The project activities would not modify existing marine mammal habitat for a significant amount of time. The activities may cause some fish to leave the area of disturbance, thus temporarily impacting marine mammals’ foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to VerDate Sep<11>2014 20:21 Nov 26, 2019 Jkt 250001 cause significant or long-term negative consequences. In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival: • No mortality is anticipated or authorized; • The Level A harassment exposures are anticipated to result only in slight PTS, within the lower frequencies associated with pile driving; • The anticipated incidents of Level B harassment would consist of, at worst, temporary modifications in behavior that would not result in fitness impacts to individuals; • The area impacted by the specified activity is very small relative to the overall habitat ranges of all species, does not include ESA-designated critical habitat, and only temporally overlaps with the southeast Alaska humpback whale feeding BIA for two months of the planned six months of activity; and • The required mitigation measures are expected to reduce the effects of the specified activity to the level of least practicable adverse impact. In addition, although affected humpback whales and Steller sea lions may be from a DPS that is listed under the ESA, it is unlikely that minor noise effects in a small, localized area of habitat would have any effect on the stocks’ ability to recover. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activities will have only minor, short-term effects on individuals. The specified activities are not expected to impact rates of recruitment or survival and will therefore not result in population-level impacts. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the required monitoring and mitigation measures, NMFS finds that the total marine mammal take from the planned 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 Sections 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities. Table 8 indicates the number of animals that could be exposed to received noise levels that could cause Level A and Level B harassment for the planned work in Auke Bay. Our analysis shows that less than 11 percent of each affected stock could be taken by harassment. The numbers of animals authorized to be taken for these stocks would be considered small relative to the relevant stock’s abundances even if each estimated taking occurred to a new individual—an extremely unlikely scenario. Based on the analysis contained herein of the planned activity (including the required mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks. Unmitigable Adverse Impact Analysis and Determination In order to issue an IHA, NMFS must find that the specified activity will not have an ‘‘unmitigable adverse impact’’ on the subsistence uses of the affected marine mammal species or stocks by Alaskan Natives. NMFS has defined ‘‘unmitigable adverse impact’’ in 50 CFR 216.103 as an impact resulting from the specified activity: (1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) Causing the marine mammals to abandon or avoid hunting areas; (ii) Directly displacing subsistence users; or (iii) Placing physical barriers between the marine mammals and the subsistence hunters; and (2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met. The planned project is not known to occur in an important subsistence hunting area. Auke Bay is a developed area with regular marine vessel traffic. Of the marine mammals considered in this IHA, only harbor seals are known to be used for subsistence in the project area. In a previous consultation with ADF&G, the Douglas Indian Association, Sealaska Heritage Institute, and the Central Council of the Tlingit and Haida E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 84, No. 229 / Wednesday, November 27, 2019 / Notices Indian Tribes of Alaska, representatives indicated that the primary concern with construction activities in Statter Harbor was impacts to herring fisheries, not marine mammals. As stated above, impacts to fish from the planned project are expected to be localized and temporary, so are not likely to impact herring fisheries. If any tribes express concerns regarding project impacts to subsistence hunting of marine mammals, further communication between will take place, including provision of any project information, and clarification of any mitigation and minimization measures that may reduce potential impacts to marine mammals. Based on the description of the specified activity, the measures described to minimize adverse effects on the availability of marine mammals for subsistence purposes, and the required mitigation and monitoring measures, NMFS has determined that there will not be an unmitigable adverse impact on subsistence uses from Mr. Erickson’s planned activities. Endangered Species Act (ESA) Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults internally, in this case with the Alaska Regional Office, whenever we propose to authorize take for endangered or threatened species. NMFS Alaska Region issued a Biological Opinion to NMFS Office of Protected Resources on November 15, 2019, which concluded the issuance of an IHA to Mr. Erickson is not likely to jeopardize the continued existence of wDPS Steller sea lions or Mexico DPS humpback whales or adversely modify critical habitat. 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 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) VerDate Sep<11>2014 20:21 Nov 26, 2019 Jkt 250001 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 IHA qualifies to be categorically excluded from further NEPA review. Authorization NMFS has issued an IHA to Mr. Erickson for conducting pile installation and removal activities at the Erickson Residence between January 1, 2020 and December 31, 2020, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. Dated: November 21, 2019. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2019–25688 Filed 11–26–19; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE United States Patent and Trademark Office Submission for OMB Review; Comment Request; Legal Processes The United States Patent and Trademark Office (USTPO) will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act of 1995. Agency: United States Patent and Trademark Office, (USPTO). Title: Legal Processes. OMB Control Number: 0651–0046. Form Number(s): None. Type of Request: Extension of an existing information collection. Number of Respondents: 309 responses per year. The USPTO estimates that approximately 10% of these responses will be from small entities. Average Hours per Response: The USPTO estimates that it will take the public from 5 minutes (0.08 hours) to 6 hours to prepare a single item in this collection, including gathering the necessary information, preparing the appropriate documents, and submitting the information required for this collection. Burden Hours: 132 hours. Cost Burden (non-hourly): $7,621. This cost burden includes filing fees PO 00000 Frm 00027 Fmt 4703 Sfmt 4703 65373 associated with the petition to waive or suspend the legal process rules under 37 CFR 104.3 and postage costs associated with the items in the collection. Needs and Uses: The purpose of this collection is to cover information requirements related to civil actions and claims involving current and former employees of the United States Patent and Trademark Office (USPTO). The rules for these legal processes may be found under 37 CFR part 104, which outlines procedures for service of process, demands for employee testimony and production of documents in legal proceedings, reports of unauthorized testimony, employee indemnification, and filing claims against the USPTO under the Federal Tort Claims Act (28 U.S.C. 2672) and the corresponding Department of Justice regulations (28 CFR part 14). The public may also petition the USPTO Office of General Counsel under 37 CFR 104.3 to waive or suspend these rules in extraordinary cases. There are no forms provided by the USPTO for this collection. For filing claims under the Federal Tort Claims Act, the public may use Standard Form 95 ‘‘Claim for Damage, Injury, or Death,’’ which is provided by the Department of Justice and approved by the Office of Management and Budget (OMB) under OMB Control Number 1105–0008. Affected Public: Individuals or households; businesses or other forprofits; not-for-profit institutions; and the Federal Government. Frequency: On occasion. Respondent’s Obligation: Required to Obtain or Retain Benefits. OMB Desk Officer: Nicholas A. Fraser, email: Nicholas_A._Fraser@ omb.eop.gov. Once submitted, the request will be publicly available in electronic format through reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB. Further information can be obtained by: • Email: InformationCollection@ uspto.gov. Include ‘‘0651–0046 information request’’ in the subject line of the message. • Mail: Marcie Lovett, Records and Information Governance Branch, Office of the Chief Administration Officer, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313–1450. Written comments and recommendations for the proposed information collection should be sent on or before December 27, 2019 to Nicholas A. Fraser, OMB Desk Officer, via email to Nicholas_A._Fraser@omb.eop.gov, or E:\FR\FM\27NON1.SGM 27NON1

Agencies

[Federal Register Volume 84, Number 229 (Wednesday, November 27, 2019)]
[Notices]
[Pages 65360-65373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-25688]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XR029


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Erickson Residence Marine Access 
Project in Juneau, Alaska

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

[[Page 65361]]


ACTION: Notice; issuance of an incidental harassment authorization 
(IHA).

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an IHA to Jim Erickson to incidentally harass, by 
Level A and Level B harassment, marine mammals during pile driving 
activities associated with the Erickson Residence Marine Access Project 
in Juneau, Alaska.

DATES: This Authorization is effective from January 1, 2020 through 
December 31, 2020.

FOR FURTHER INFORMATION CONTACT: Amy Fowler, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, 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 May 8, 2019, NMFS received a request from Jim Erickson for an 
IHA to take marine mammals incidental to pile driving activities 
associated with a dock replacement project in Auke Bay, north of 
Juneau, Alaska. The application was deemed adequate and complete on 
August 13, 2019. Mr. Erickson's request was for take of a small number 
of eight species of marine mammal by Level A and Level B harassment. 
Neither Mr. Erickson nor NMFS expects serious injury or mortality to 
result from this activity and, therefore, an IHA is appropriate.

Description of Activity

    Mr. Erickson plans to replace his private moorage facility in Auke 
Bay in Juneau, Alaska to provide a safer, more accessible and secure 
dock. Six 12- to 16-inch (in) timber piles will be removed using a 
vibratory hammer, and six steel pipe piles (four 12.75-in steel pipe 
piles and two 20-in steel pipe piles) will be installed using vibratory 
and impact hammers over the course of up to eight days. Of those eight 
days, impact pile driving may occur on up to four days and vibratory 
pile removal and installation may occur on up to six days. Drilling may 
be required to install the larger diameter steel piles. If required, 
drilling may occur on up to two days. Vibratory pile removal and 
installation, impact pile installation, and drilling would introduce 
underwater sounds at levels that may result in take, by Level A and 
Level B harassment, of marine mammals in Auke Bay.
    A detailed description of the planned project is provided in the 
Federal Register notice for the proposed IHA (84 FR 50387; September 
25, 2019). Since that time, no changes have been made to the planned 
pile driving activities. Therefore, a detailed description is not 
provided here. Please refer to that Federal Register notice for the 
description of the specific activity.

Comments and Responses

    A notice of NMFS's proposal to issue an IHA to Mr. Erickson was 
published in the Federal Register on September 25, 2019 (84 FR 50387). 
That notice described, in detail, Mr. Erickson's activity, the marine 
mammal species that may be affected by the activity, and the 
anticipated effects on marine mammals. During the 30-day public comment 
period, NMFS received a comment letter from the Marine Mammal 
Commission (Commission). The Commission recommended that NMFS issue the 
IHA, subject to the inclusion of the proposed mitigation, monitoring, 
and reporting measures.
    Comment 1: The Commission recommended that NMFS require Mr. 
Erickson to keep a running tally of the total (extrapolated) takes for 
each species to ensure takes remain within the authorized limits.
    Response: We agree that the applicant must ensure they do not 
exceed authorized takes. We have included in the authorization that the 
applicant must include extrapolation of the estimated takes by Level B 
harassment based on the number of observed exposures within the Level B 
harassment zone and the percentage of the Level B harassment zone that 
was not visible in the draft and final reports.
    Comment 2: The Commission noted that the Level A harassment takes 
were subtracted from the Level B harassment takes but that harbor seals 
and harbor porpoises may be taken by both types of harassment during 
the proposed activities. The Commission recommended that NMFS clarify 
that the number of Level A takes authorized could apply to either Level 
A or Level B harassment.
    Response: NMFS has noted in the Estimated Take section below that 
harbor seals and harbor porpoises taken by Level A harassment may also 
be taken by Level B harassment.
    Comment 3: The Commission noted that the source level used for 
impact installation of 12.75-in piles is from water depths less than 5 
m (in Caltrans 2015) but water depths near Mr. Erickson's dock range 
from approximately 2 to 13 m in depth. The Commission noted that source 
levels in deeper water may be 2 to 6 decibels (dB) greater than those 
in shallow water. As Caltrans (2015) does not include data for impact 
pile driving of 12-in steel pipe piles, the Commission recommended NMFS 
finish any outstanding internal reviews of source level data and make 
the source level data available to all NMFS analysts and relevant 
action proponents as soon as possible.
    Response: NMFS agrees that source levels in deeper water are 
greater than those of the same size piles in shallow water. However, 
absent specific data on source levels for 12-in steel pipe piles in 
deeper water, NMFS is using the best available data and is proceeding 
with the available Caltrans source levels for 12-in steel piles as 
proxy for Mr. Erickson's 12.75-in piles. NMFS will make our 
comprehensive pile driving source level compendium available once the 
document is finalized.

[[Page 65362]]

    Comment 4: The Commission recommended that NMFS refrain from using 
the proposed renewal process for Mr. Erickson's authorization. The 
renewal process should be used sparingly and selectively, by limiting 
its use only to those proposed incidental harassment authorizations 
that are expected to have the lowest levels of impacts on marine 
mammals and that require the least complex analyses. If NMFS elects to 
use the renewal process frequently or for authorizations that require a 
more complex review or for which much new information has been 
generated the Commission recommended that NMFS provide the Commission 
and other reviewers the full 30-day comment period as set forth in 
section 101(a)(5)(D)(iii) of the MMPA.
    Response: We appreciate the Commission's input and direct the 
reader to our recent response to a similar comment, which can be found 
at 84 FR 52464 (October 2, 2019), pg. 52466.

Changes From the Proposed IHA to Final IHA

    NMFS has updated the pulse duration for impact driving of 12.75-in 
piles from 50 milliseconds (msec) to 100 msec, consistent with the NMFS 
2018 Technical Guidance. As a result, the calculated Level A harassment 
zones from impact driving of 12.75-in piles have increased. 
Additionally, NMFS has revised the shutdown and monitoring zones for 
vibratory driving of 12.75-in piles and the monitoring zone for impact 
installation of 12.75-in piles to round up to the nearest 5 m. NMFS has 
also added requirements for Mr. Erickson to conduct pile installation 
and removal only during daylight hours and to delay pile installation 
and removal in times of poor visibility until the entire shutdown zone 
is visible. Finally, NMFS has added a requirement to report total takes 
extrapolated from observed takes and to provide field observation data 
sheets with the monitoring report.

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 (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS's 
website (https://www.fisheries.noaa.gov/find-species).
    Table 1 lists all species with expected potential for occurrence in 
Auke Bay 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.
    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 and U.S. Pacific SARs. All values presented in Table 
1 are the most recent available at the time of publication and are 
available in the 2018 SARs (Muto et al., 2019; Caretta et al., 2019).

                                              Table 1--Marine Mammals That Could Occur in the 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 Eschrichtiidae:
    Gray whale......................  Eschrichtius robustus..  Eastern North Pacific..  -/-; N              26,960 (0.05, 25,849,         801        138
                                                                                                             2016).
Family Balaenopteridae (rorquals):
    Humpback whale..................  Megaptera novaeangliae.  Central North Pacific..  T/D; Y              10,103 (0.3, 7,890,            83         26
                                                                                                             2006).
    Minke whale.....................  Balaenoptera             Alaska.................  -/-; N              N/A (see SAR, N/A, see        UND          0
                                       acutorostrada.                                                        SAR).
    Fin whale.......................  Balaenoptera physalus..  Northeast Pacific......  E/D; Y              see SAR (see SAR, see         5.1        0.6
                                                                                                             SAR, 2013).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
    Killer whale....................  Orcinus orca...........  Alaska Resident........  -/-; N              2,347 (N/A, 2347,              24          1
                                                                                                             2012).
    Killer whale....................  Orcinus orca...........  Northern Resident......  -/-; N              261 (N/A, 261, 2011)..       1.96          0
    Killer whale....................  Orcinus orca...........  West Coast Transient...  -/-; N              243 (N/A, 243, 2009)..        2.4          0
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Southeast Alaska.......  -/-; Y              975 (0.10; 896; 2012).        8.9         34
    Dall's porpoise.................  Phocoenoides dalli.....  Alaska.................  -/-; N              83,400 (0.097, N/A,           UND         38
                                                                                                             1991).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
 sea lions):

[[Page 65363]]

 
    Steller sea lion................  Eumetopias jubatus.....  Eastern DPS............  E/D; Y              54,267 (see SAR,              326        252
                                                                                                             54,267, 2017).
    Steller sea lion................  Eumetopias jubatus.....  Western DPS............  -/-; N              41,638 (see SAR,            2,498        108
                                                                                                             41,638, 2015).
    California sea lion.............  Zalophus californianus.  U.S....................  -/-; N              257,606 (N/A, 233,515,     14,011      > 321
                                                                                                             2014).
Family Phocidae (earless seals):
    Harbor seal.....................  Phoca vitulina.........  Lynn Canal/Stephens      -/-; N              9,478 (see SAR, 8,605,        155         50
                                                                Passage.                                     2011).
--------------------------------------------------------------------------------------------------------------------------------------------------------
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: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of
  stock abundance. In some cases, CV is not applicable.
3--These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated
  with estimated mortality due to commercial fisheries is presented in some cases.
Note--Italicized species are not expected to be taken or proposed for authorization.

    All species that could potentially occur in the area of the 
Erickson Residence are included in Table 1. However, the spatial and 
temporal occurrence of gray whales and fin whales in the area is such 
that take is not expected to occur, and they are not discussed further 
beyond the explanation provided here. Sightings of gray whales and fin 
whales are uncommon in the inland waters of southeast Alaska. These 
species are typically seen closer to the open waters of the Gulf of 
Alaska. Take of gray whales and fin whales was not requested and has 
not been authorized, and these species are not considered further in 
this document.
    A detailed description of the of the species likely to be affected 
by Mr. Erickson's planned project, including brief introductions to the 
species and relevant stocks as well as available information regarding 
population trends and threats, and information regarding local 
occurrence, were provided in the Federal Register notice for the 
proposed IHA (84 FR 50387; September 25, 2019); since that time, we are 
not aware of any changes in the status of these species and stocks; 
therefore, detailed descriptions are not provided here. Please refer to 
that Federal Register notice for these descriptions. Please also refer 
to NMFS' website (https://www.fisheries.noaa.gov/find-species) for 
generalized species accounts.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from pile installation and removal 
activities for the Erickson Residence Marine Access Project have the 
potential to result in behavioral harassment of marine mammals in the 
vicinity of the action area. The Federal Register notice for the 
proposed IHA (84 FR 50387; September 25, 2019) included a discussion of 
the effects of anthropogenic noise on marine mammals, therefore that 
information is not repeated here; please refer to the Federal Register 
notice (84 FR 50387; September 25, 2019) for that information.

Marine Mammal Habitat Effects

    The main impact associated with the Erickson Residence Marine 
Access Project would be temporarily elevated sound levels and the 
associated direct effects on marine mammals. The project would not 
result in permanent impacts to habitats used directly by marine 
mammals, such as haulout sites, but may have potential short-term 
impacts to food sources such as forage fish, and minor impacts to the 
immediate substrate during installation and removal of piles during the 
planned project. These potential effects are discussed in detail in the 
Federal Register notice for the proposed IHA (84 FR 50387; September 
25, 2019), therefore that information is not repeated here; please 
refer to that Federal Register notice for that information.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform both NMFS' consideration 
of ``small numbers'' 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 primarily be by Level B harassment, as use 
of the vibratory and impact pile hammers and drill has the potential to 
result in disruption of behavioral patterns for individual marine 
mammals. There is also some potential for auditory injury (Level A 
harassment) to result, primarily for high frequency cetacean species 
and phocids because predicted auditory injury zones are larger than for 
other hearing groups. Auditory injury is unlikely to occur for other 
groups. The required mitigation and monitoring measures are expected to 
minimize the severity of such taking to the extent practicable.
    As described previously, no mortality is anticipated or authorized 
for this activity. Below we describe how the take is estimated.
    Generally speaking, 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. We note that while these basic 
factors can contribute to a basic

[[Page 65364]]

calculation to provide an initial prediction of takes, additional 
information that can qualitatively inform take estimates is also 
sometimes available (e.g., previous monitoring results or average group 
size). Below, we describe the factors considered here in more detail 
and present the authorized take.

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 
permanent threshold shift (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.
    Mr. Erickson's planned activity includes the use of continuous 
(vibratory pile driving and removal, drilling) and impulsive (impact 
pile driving) sources, and therefore the 120 and 160 dB re 1 [mu]Pa 
(rms) thresholds are applicable.
    Level A harassment for non-explosive sources--NMFS' Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine 
Mammal Hearing (Version 2.0) (Technical Guidance, 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). Mr. Erickson's planned activity includes 
the use of impulsive (impact pile driving) and non-impulsive (vibratory 
pile driving and removal, drilling) source.
    These thresholds are provided in Table 2. 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.

                     Table 2--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                     PTS onset acoustic thresholds * (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lpk,flat: 219 dB;   Cell 2: LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lpk,flat: 230 dB;   Cell 4: LE,MF,24h: 198 dB.
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lpk,flat: 202 dB;   Cell 6: LE,HF,24h: 173 dB.
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lpk,flat: 218 dB;   Cell 8: LE,PW,24h: 201 dB.
                                          LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: Lpk,flat: 232 dB;   Cell 10: LE,OW,24h: 219 dB.
                                          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]Pa\2\s. 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, which include source levels and transmission loss 
coefficient.
    The sound field in the project area is the existing background 
noise plus additional construction noise from the planned project. 
Marine mammals are expected to be affected via sound generated by the 
primary components of the project (i.e., impact pile driving, vibratory 
pile driving and removal). The area ensonified above the thresholds for 
harassment is governed by the topography of Auke Bay and the various 
islands located within and around the bay. The eastern part of Auke Bay 
is acoustically shadowed by Auke Cape, while Portland Island, Coghlan 
Island, Suedla Island, and Spuhn Island would inhibit sound 
transmission from reaching the more open waters toward Mansfield 
Peninsula (see Figure 2 in the IHA application). Additionally, vessel 
traffic and other commercial and industrial activities in the project 
area may contribute to elevated background noise levels which may mask 
sounds produced by the project.
    The project includes vibratory removal of timber piles, vibratory 
and impact installation of steel pipe piles, and drilling. Source 
levels for these activities are based on reviews of measurements of the 
same or similar types and dimensions of piles available in the 
literature. Source levels for each activity are presented in Table 3 
The source level for vibratory removal of timber piles is from in-water 
measurements generated by the Greenbusch Group (2018) from the Seattle 
Pier 62 project (83 FR 39709; April 10, 2018). Hydroacoustic monitoring 
results from Pier 62 determined unweighted rms ranging from 140 dB to 
169 dB. NMFS analyzed source measurements at different distances for 
all 63 individual timber piles that were removed at Pier 62 and

[[Page 65365]]

normalized the values to 10 m. The results showed that the median is 
152 dB SPLrms. There are no literature source levels for vibratory 
installation of 12.75-in steel piles so source levels from vibratory 
installation of 12-in steel piles from the Caltrans Compendium of Pile 
Driving Sound Data were used as a proxy (Caltrans 2015). Similarly, as 
no literature source levels exist for vibratory installation of 20-in 
steel piles, hydroacoustic measurements of vibratory installation of 
24-in steel piles from the U.S. Navy's Test Pile Project were used as a 
proxy (Navy, 2015). Source levels for impact installation of 12.75-in 
piles were determined by using Caltrans measurements of impact 
installation of 12-in steel piles as a proxy (Caltrans 2015). Source 
levels for impact installation of 20-in piles are from installation of 
20-in piles in the Columbia River, in similar water depths (Yurk et 
al., 2016). Source levels for drilling are proxy from median measured 
source level from drilling of 24-in diameter piles at the Kodiak Ferry 
Terminal (Denes et al., 2016, Table 72).

                         Table 3--Sound Source Levels for Pile Sizes and Driving Methods
----------------------------------------------------------------------------------------------------------------
                                                             Source level  (at 10 m)
          Pile size                 Method      ------------------------------------------------    Literature
                                                     dB RMS          dB Peak         dB SEL           source
----------------------------------------------------------------------------------------------------------------
12.75-in steel...............  Vibratory.......             155             171             155  Caltrans 2015
                                                                                                  (proxy from 12-
                                                                                                  in).
20-in steel..................  Vibratory.......             161              --              --  Navy 2015
                                                                                                  (proxy from
                                                                                                 24-in).
12- to 16-in timber..........  Vibratory.......             152              --              --  Greenbusch
                                                                                                  Group 2018.
20-in steel..................  Drilling........           166.2              --              --  Denes et al.,
                                                                                                  2016 (proxy
                                                                                                  from 24-in).
12.75-in steel...............  Impact..........             177             192              --  Caltrans 2015
                                                                                                  (proxy from 12-
                                                                                                  in).
20-in steel..................  Impact..........             190             205             175  Yurk et al.,
                                                                                                  2016.
----------------------------------------------------------------------------------------------------------------
-- indicates source level not reported.

    Transmission loss (TL) is the decrease in acoustic intensity as an 
acoustic pressure wave propagates out from a source. TL parameters vary 
with frequency, temperature, sea conditions, current, source and 
receiver depth, water depth, water chemistry, and bottom composition 
and topography. The general formula for underwater TL is:

TL = B * Log10 (R 1/R 2),

Where:

TL = transmission loss in dB
B = transmission loss coefficient
R 1= the distance of the modeled SPL from the driven 
pile, and
R 2= the distance from the driven pile of the initial 
measurement

    A practical spreading value of fifteen is often used under 
conditions, such as Auke Bay, where water increases with depth as the 
receiver moves away from the shoreline, resulting in an expected 
propagation environment that would lie between spherical and 
cylindrical spreading loss conditions. Practical spreading loss is 
assumed here.

               Table 4--Pile Driving Source Levels and Distances to Level B Harassment Thresholds
----------------------------------------------------------------------------------------------------------------
                                                                   Source level       Level B
                                                                   at 10 m  (dB   threshold  (dB    Distance to
          Pile size and type                     Method             re 1 [mu]Pa     re 1 [mu]Pa       level B
                                                                       rms)            rms)       threshold  (m)
----------------------------------------------------------------------------------------------------------------
12.75-in steel........................  Vibratory...............             155             120           2,154
20-in steel...........................  Vibratory...............             161             120           5,412
12- to 16-in timber...................  Vibratory...............             152             120           1,359
20-in steel...........................  Drilling................           166.2             120          12,023
12.75-in steel........................  Impact..................             177             160             136
20-in steel...........................  Impact..................             190             160           1,000
----------------------------------------------------------------------------------------------------------------

    When the NMFS Technical Guidance (2016) was published, in 
recognition of the fact that ensonified area/volume could be more 
technically challenging to predict because of the duration component in 
the new thresholds, we developed a User Spreadsheet that includes tools 
to help predict a simple isopleth that can be used in conjunction with 
marine mammal density or occurrence to help predict takes. We note that 
because of some of the assumptions included in the methods used for 
these tools, we anticipate that isopleths produced are typically going 
to be overestimates of some degree, which may result in some degree of 
overestimate of Level A harassment take. However, these tools offer the 
best way to predict appropriate isopleths when more sophisticated 3D 
modeling methods are not available, and NMFS continues to develop ways 
to quantitatively refine these tools, and will qualitatively address 
the output where appropriate. For stationary sources (such as pile 
drivers), NMFS User Spreadsheet predicts the closest distance at which, 
if a marine mammal remained at that distance the whole duration of the 
activity, it would not incur PTS. Inputs used in the User Spreadsheet, 
and the resulting isopleths are reported below (Table 5). Mr. Erickson 
anticipates that the number of piles installed or removed per day may 
vary due to environmental conditions and equipment availability. To 
calculate the Level A harassment isopleths in the User Spreadsheet, Mr. 
Erickson conservatively entered the maximum number of piles that may be 
installed in

[[Page 65366]]

a day and the maximum potential duration per pile.

                                                  Table 5--User Spreadsheet Input Parameters Used for Calculating Level A Harassment Isopleths
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Weighting                                                                                          Driving
                                                  Spreadsheet       factor                                          Propagation       Strike        Strikes per    duration for    Max piles per
                   Activity                        tab used       adjustment          Source level at 10 m            (xLogR)        duration          pile         single pile         day
                                                                     (kHz)                                                             (sec)                          (hours)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Timber vibratory removal......................             A.1             2.5  152 dB rms......................              15             N/A             N/A            0.25               6
12.75-in vibratory install....................             A.1             2.5  155 dB rms......................              15             N/A             N/A               1               4
20-in vibratory install.......................             A.1             2.5  161 dB rms......................              15             N/A             N/A               2               2
DTH Drilling..................................             A.1             2.5  166.2 dB rms....................              15             N/A             N/A               5               2
12.75-in impact...............................             E.1               2  177 dB rms......................              15             0.1             150             N/A               4
20-in impact..................................             E.1               2  175 dB SEL......................              15             N/A             150             N/A               2
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
N/A indicates not applicable


                          Table 6--Calculated Distances to Level A Harassment Isopleths
----------------------------------------------------------------------------------------------------------------
                                                           Level A harassment zone  (m)
            Activity             -------------------------------------------------------------------------------
                                   LF cetaceans    MF cetaceans    HF cetaceans       Phocids        Otariids
----------------------------------------------------------------------------------------------------------------
Timber vibratory removal........             2.2             0.2             3.3             1.4             0.1
12.75-in vibratory install......             6.9             0.6            10.1             4.2             0.3
20-in vibratory install.........            17.2             1.5            25.4            10.5             0.7
DTH Drilling....................            70.4             6.2           104.1            42.8             3.0
12.75-in impact.................            60.9             2.2            72.6            32.6             2.4
20-in impact....................           131.1             4.7           156.1            70.1             5.1
----------------------------------------------------------------------------------------------------------------

Marine Mammal Occurrence and Take Calculation and Estimation

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals and describe how it is 
brought together with the information above to produce a quantitative 
take estimate. When available, peer-reviewed scientific publications 
were used to estimate marine mammal abundance in the project area. 
However, scientific surveys and resulting data such as population 
estimates, densities, and other quantitative information are lacking 
for most marine mammal populations and most areas of southeast Alaska, 
including Auke Bay. Therefore, Mr. Erickson gathered qualitative 
information from discussions with knowledgeable local people in the 
Auke Bay area, including biologists, the harbormaster, a tour operator, 
and other individuals familiar with marine mammals in the Auke Bay 
area.
    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate. Because reliable 
densities are not available, the applicant requests take based on the 
maximum number of animals that may occur in the harbor per day 
multiplied by the number of days of the activity.
Steller Sea Lion
    Steller sea lions are common within Auke Bay but generally only 
occur in the area during winter. Most individuals that frequent Auke 
Bay haul out at Benjamin Island in Lynn Canal. The Auke Bay boating 
community observes Steller sea lions transiting between Auke Bay and 
Benjamin Island regularly during winter. Steller sea lions are not 
known to haul out on any beaches or structures within Auke Bay, but 
animals have been observed foraging within Auke Bay, and may rest in 
large raft groups in the water. Groups as large as 121 individuals have 
been observed in Auke Bay (Ridgway pers. observ.).
    Mr. Erickson estimates that one large group (121 individuals) may 
be exposed to project-related underwater noise daily on 8 days of pile 
installation and removal activities, for a total of 968 exposures. As 
stated above, approximately 18.1 percent of Steller sea lions present 
in Auke Bay are expected to belong to the wDPS, for a total of 175 
exposures of wDPS Steller sea lions and 793 exposures of eDPS Steller 
sea lions.
    The largest Level A harassment zone for otariid pinnipeds extends 
5.1 m from the source (Table 6). Mr. Erickson is planning to implement 
a minimum shutdown zone of 10 m during all pile driving activities, 
(see Mitigation section), which is expected to eliminate the potential 
for Level A take of Steller sea lions. Therefore, no takes of Steller 
sea lions by Level A harassment were requested and no takes by Level A 
harassment have been authorized.
California Sea Lion
    California sea lions are rare in Southeast Alaska, but a single 
California sea lion was observed hauled out in Statter Harbor in 
September of 2017. While Statter Harbor is acoustically shadowed by the 
topography of Auke Bay and will not be ensonified above the Level B 
behavioral harassment threshold, a California sea lion could enter the 
Level B harassment zone within Auke Bay to forage. Therefore, Mr. 
Erickson estimates that a single California sea lion may enter the 
Level B harassment zone on each of the eight days of pile driving, for 
a total of eight exposures.
    The largest Level A harassment zone for otariid pinnipeds extends 
5.1 m from the source (Table 6). Mr. Erickson is planning to implement 
a minimum shutdown zone of 10 m during all pile driving activities, 
(see Mitigation section), which is expected to eliminate the potential 
for Level A take of California sea lions. Therefore, no takes of 
California sea lions by Level A harassment were requested or 
authorized.
Harbor Seal
    Harbor seals are commonly sighted in the waters of the inside 
passages

[[Page 65367]]

throughout southeast Alaska. Seals occur year-round within the project 
area and are regularly sighted in Auke Bay, including Statter Harbor.
    Up to 52 seals have been observed hauled out on a dock at 
Fisherman's Bend within Statter Harbor (Ridgway unpubl. data) which is 
acoustically sheltered from the planned pile driving activities, but it 
is assumed that these animals may leave the dock to forage within Auke 
Bay and may be exposed to noise levels in excess of the Level B 
harassment thresholds upon entering the water. Mr. Erickson estimates 
up to 52 harbor seals could be exposed to elevated sound levels on each 
day of pile driving, for a total of 416 exposures.
    The largest Level A harassment zone for phocid pinnipeds results 
from impact installation of 20-in piles and extends 70.1 m from the 
pile (Table 6). There are no haulouts located within the Level A 
harassment zone and although it is unlikely that harbor seals will 
enter this area without detection while pile driving activities are 
underway, it is possible that harbor seals may approach and enter the 
Level A harassment zone undetected. Mr. Erickson has observed up to 
four harbor seals in the water near the existing dock. Therefore, Mr. 
Erickson estimates that up to four harbor seals may approach the site 
within 70 m of the source each day. Impact pile driving is expected to 
occur on up to four days. For this reason, NMFS authorized take of 16 
harbor seals by Level A harassment. Harbor seals taken by Level A 
harassment may also be taken by Level B harassment.
Harbor Porpoise
    Although there have been no systematic studies or observations of 
harbor porpoises specific to Auke Bay, there is the potential for them 
to occur within the project area. Abundance data for harbor porpoises 
in southeast Alaska were collected during 18 seasonal surveys spanning 
22 years, from 1991 to 2012. During that study, a total of 398 harbor 
porpoises were observed in the northern inland waters of southeast 
Alaska, including Lynn Canal (Dahlheim et al., 2015). Mean group size 
of harbor porpoises in southeast Alaska varies by season. In the fall, 
mean group size was determined to be 1.88 harbor porpoises (Dahlheim et 
al., 2009). However, groups of five to six harbor porpoises have been 
observed in Auke Bay (B. Lambert, pers. comm.). Therefore, Mr. Erickson 
estimates that up to six harbor porpoises may enter the Level B 
harassment zone on each of the eight days of pile driving, for a total 
of 48 exposures.
    The largest Level A harassment zone extends 156.1 m from the source 
(Table 6). Mr. Erickson is planning to implement shutdown zones that 
encompass the Level A harassment zones (see Mitigation section). 
However, harbor porpoises are known to be an inconspicuous species and 
are challenging for protected species observers (PSOs) to sight, making 
any approach to a specific area potentially difficult to detect. 
Because harbor porpoises move quickly and elusively, it is possible 
that they may enter the Level A harassment zone without detection. Mr. 
Erickson estimates that one pair of harbor porpoises may enter the 
Level A harassment zone on each of the four days of impact pile driving 
for a total of eight potential takes by Level A harassment. Harbor 
porpoises taken by Level A harassment may also be taken by Level B 
harassment.
Dall's Porpoise
    Dall's porpoises are not expected to occur within Auke Bay because 
the shallow water habitat of the bay is atypical of areas where Dall's 
porpoises usually occur. However, Dall's porpoises may 
opportunistically inhabit nearshore habitat. The largest group of 
Dall's porpoises observed in Auke Bay was 10 individuals in 1994. 
Therefore, Mr. Erickson estimates that one group of ten Dall's 
porpoises may enter the Level B harassment zone once during 
construction, for a total of ten exposures.
    Mr. Erickson is required to implement shutdown zones for porpoises 
that encompass the Level A harassment zones for each pile driving 
activities. The largest Level A harassment zone for Dall's porpoise 
extends 156.1 m from the source during impact installation of 20-in 
steel piles (Table 6). Given the larger group size and more conspicuous 
rooster-tail generated by swimming Dall's porpoises, which makes them 
more noticeable than harbor porpoises, PSOs are expected to detect 
Dall's porpoises prior to them entering the Level A harassment zone. 
Therefore, takes of Dall's porpoises by Level A harassment have not 
been requested and have not been authorized.
Killer Whale
    Killer whales are known visitors of the Lynn Canal area, and 
occasionally enter Auke Bay. Oceanus Alaska compiled sightings records 
reported by Juneau residents and reported an average of 25 killer 
whales in the area per year between 2010 and 2017. Killer whales in the 
project area may be of the Northern Resident, Alaska Resident, or West 
Coast Transient stocks. The Alaska Resident group AG pod is known to 
frequent the Juneau Area in groups of up to 25 individuals (B. Lambert, 
pers. comm.). Mr. Erickson estimates that one group of up to 25 killer 
whales may enter the Level B harassment zone during the eight days of 
pile driving for a total of 25 exposures.
    Mr. Erickson is required to implement shutdown zones that encompass 
the largest Level A harassment zones for killer whales during all pile 
driving activities. Killer whales are generally conspicuous and PSOs 
are expected to detect killer whales and implement a shutdown before 
the animals enter the Level A harassment zone. Therefore, takes by 
Level A harassment have not been requested and have not been 
authorized.
Humpback Whale
    Use of Auke Bay by humpback whales is intermittent and irregular 
year-round. During winter, researchers have documented 1 to 19 
individual humpback whales per month in waters close to the project 
area, including Lynn Canal (Moran et al., 2018a; Straley et al., 2018). 
Group sizes in southeast Alaska generally range from one to four 
individuals (Dahlheim et al., 2009). Mr. Erickson estimates that one 
group of up to four individuals may be present in the Level B 
harassment zone per day during the eight days of pile driving, for a 
total of 32 takes by Level B harassment.
    The largest Level A harassment zone for humpback whales extends 
131.1 m from the source during impact installation of 20-in piles 
(Table 6). Given the irregular and small presence of humpback whales in 
Auke Bay, along with the fact that PSOs are expected to detect humpback 
whales before they enter the Level A harassment zone and implement 
shutdowns to prevent take by Level A harassment, no Level A takes have 
been requested or authorized.
Minke Whale
    Dedicated surveys for cetaceans in southeast Alaska found that 
minke whales were scattered throughout inland waters from Glacier Bay 
and Icy Strait to Clarence Strait, with small concentrations near the 
entrance of Glacier Bay. All sightings were of single minke whales, 
except for a single sighting of multiple minke whales. Surveys took 
place in spring, summer, and fall, and minke whales were present in low 
numbers in all seasons and years (Dahlheim et al., 2009). Anecdotal 
reports have not included minke whales near Auke Bay. However, minke 
whales are distributed throughout a wide variety of habitats and have 
been

[[Page 65368]]

observed in nearby Glacier Bay, indicating they may potentially occur 
within the Level B harassment zone. Therefore, Mr. Erickson estimates 
that one minke whale may enter the Level B harassment zone once during 
the eight days of pile driving activities, for a total of one take by 
Level B harassment.
    The Level A harassment zones for minke whales are the same as for 
humpback whales, and the shutdown protocols will be the same as well. 
Therefore, given the low occurrence of minke whales combined with the 
mitigation, takes by Level A harassment have not been requested or 
authorized.

                                    Table 7--Authorized Take by Level A and Level B Harassment, by Species and Stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                            Authorized
                                                                               Stock                                           Total          take as
                Common name                             Stock              abundance \a\      Level A         Level B       authorized    percentage  of
                                                                                                                               take            stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback whale............................  Central North Pacific.......          10,103               0              32          \b\ 32            0.32
Minke Whale...............................  Alaska......................             N/A               0               1               1             N/A
Killer whale..............................  Alaska Resident.............           2,347               0              25              25        \d\ 1.06
                                            Northern Resident...........             261                                                        \d\ 9.58
                                            West Coast Transient........             243                                                        \d\ 10.3
Harbor porpoise...........................  Southeast Alaska............             975               8              40              48            4.92
Dall's porpoise...........................  Alaska......................          83,400               0              10              10           < 0.1
Steller sea lion..........................  Western U.S.................          54,267               0             175         \c\ 175            0.32
                                            Eastern U.S.................          41,638               0             793             793            1.90
California sea lion.......................  U.S.........................         257,606               0               8               8          < 0.01
Harbor seal...............................  Lynn Canal/Stephens Passage.           9,478              16             400             416            4.39
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Stock or DPS size is Nbest according to NMFS 2018 Draft Stock Assessment Reports.
\b\ For ESA section 7 consultation purposes, 6.1 percent are designated to the Mexico DPS and the remaining are designated to the Hawaii DPS; therefore,
  we assigned 2 Level B takes to the Mexico DPS.
\c\ Based on numbers reported in Hastings et al. (2019) and in consultation with the Alaska Regional Office, we used an 18.1 percent distinction factor
  to determine the number of animals potentially from the western DPS.
\d\ These percentages assume all 25 takes may occur to each individual stock, thus the percentage of one or more stocks are likely inflated as the takes
  would be divided among multiple stocks.

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, as 
well as subsistence uses. 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

    In addition to the measures described later in this section, Mr. 
Erickson is required to employ the following standard mitigation 
measures:
     Conduct briefings between construction supervisors and 
crews and the marine mammal monitoring team prior to the start of all 
pile driving activity, and when new personnel join the work, to explain 
responsibilities, communication procedures, marine mammal monitoring 
protocol, and operational procedures;
     For in-water heavy machinery work other than pile driving 
(e.g., standard barges, etc.), if a marine mammal comes within 10 m, 
operations must cease and vessels must reduce speed to the minimum 
level required to maintain steerage and safe working conditions. This 
type of work could include the following activities: (1) Movement of 
the barge to the pile location; or (2) positioning of the pile on the 
substrate via a crane (i.e., stabbing the pile);
     Work may only occur during daylight hours, when visual 
monitoring of marine mammals can be conducted;
     For those marine mammals for which Level B harassment take 
has not been requested, in-water pile installation/removal and drilling 
must shut down immediately if such species are observed within or on a 
path towards the monitoring zone (i.e., Level B harassment zone); and
     If take reaches the authorized limit for an authorized 
species, pile installation and removal must be stopped as these species 
approach the Level B harassment zone to avoid additional take.
    Establishment of Shutdown Zone for Level A Harassment--For all pile 
driving/removal and drilling activities, Mr. Erickson must establish a 
shutdown zone. The purpose of a shutdown zone is generally to define an 
area within which shutdown of activity would occur upon sighting of a 
marine

[[Page 65369]]

mammal (or in anticipation of an animal entering the defined area). 
These shutdown zones would be used to prevent incidental Level A 
exposures from impact pile driving for Steller sea lions, California 
sea lions, Dall's porpoises, killer whales, humpback whales, and minke 
whales, and to reduce the potential for such take for harbor seals and 
harbor porpoises. During all pile driving and removal activities, a 
minimum shutdown zone of 10 m must be enforced (Table 8). Shutdown 
zones for each specific activity are based on the Level A harassment 
zones and therefore vary by pile-size, type, driving method, and marine 
mammal hearing group (Table 8). If poor environmental conditions 
restrict full visibility of the shutdown zone(s), pile driving must be 
delayed until the entire shutdown zone is visible.

                               Table 8--Shutdown Zones for Pile Driving Activities
----------------------------------------------------------------------------------------------------------------
                                                                 Shutdown zone (m)
                                 -------------------------------------------------------------------------------
            Activity                                                                  Phocid          Otariid
                                   LF cetaceans    MF cetaceans    HF cetaceans      pinnipeds       pinnipeds
----------------------------------------------------------------------------------------------------------------
Vibratory Timber Pile Removal...              10              10              10              10              10
Vibratory Pile Driving (12.75-                10              10              15              10              10
 in)............................
Vibratory Pile Driving (20-in)..              20              10              30              15              10
Drilling........................              75              10             105              45              10
Impact Pile Driving 12.75-in....              65              10              75              35              10
Impact Pile Driving 20-in.......             135              10             160              75              10
----------------------------------------------------------------------------------------------------------------

    Establishment of Monitoring Zones for Level B Harassment--Mr. 
Erickson is required to establish monitoring zones to correlate with 
Level B disturbance zones or zones of influence which are areas where 
SPLs are equal to or exceed the 160 dB rms threshold for impact driving 
and the 120 dB rms threshold during vibratory driving and drilling. 
Monitoring zones provide utility for observing by establishing 
monitoring protocols for areas adjacent to the shutdown zones. 
Monitoring zones enable observers to be aware of and communicate the 
presence of marine mammals in the project area outside the shutdown 
zone and thus prepare for a potential cease of activity should the 
animal enter the shutdown zone. The required monitoring zones are 
described in Table 9. Should PSOs determine the monitoring zone cannot 
be effectively observed in its entirety, Level B harassment exposures 
must be recorded and extrapolated based upon the number of observed 
takes and the percentage of the Level B zone that was not visible.

                 Table 9--Marine Mammal Monitoring Zones
------------------------------------------------------------------------
                                                              Monitoring
                          Activity                            zone  (m)
------------------------------------------------------------------------
Impact installation of 12.75-in piles......................          140
Impact installation of 20-in piles.........................        1,000
Vibratory timber pile removal..............................        1,360
Vibratory installation of 21.75-in piles...................        2,155
Vibratory installation of 20-in piles......................        5,415
Drilling...................................................       12,100
------------------------------------------------------------------------

    Soft Start--The use of soft-start procedures are believed to 
provide additional protection to marine mammals by providing warning 
and/or giving marine mammals a chance to leave the area prior to the 
hammer operating at full capacity. For impact pile driving, contractors 
are required to provide an initial set of strikes from the hammer at 
reduced energy, with each strike followed by a 30-second waiting 
period. This procedure must be conducted a total of three times before 
impact pile driving begins. Soft start must be implemented at the start 
of each day's impact pile driving and at any time following cessation 
of impact pile driving for a period of thirty minutes or longer. Soft 
start is not required during vibratory pile driving and removal 
activities.
    Pre-Activity Monitoring--Prior to the start of daily in-water 
construction activity, or whenever a break in pile driving/removal or 
drilling of 30 minutes or longer occurs, PSOs must observe the shutdown 
and monitoring zones for a period of 30 minutes. The shutdown zone is 
considered cleared when a marine mammal has not been observed within 
the zone for a 30-minute period. If a marine mammal is observed within 
the shutdown zone, a soft-start cannot proceed until the animal has 
left the zone or has not been observed for 15 minutes. If the Level B 
harassment zone has been observed for 30 minutes and non-permitted 
species are not present within the zone, soft start procedures can 
commence and work can continue even if visibility becomes impaired 
within the Level B monitoring zone. If a marine mammal permitted for 
Level B take is present in the Level B harassment zone, activities may 
begin and Level B take must be recorded. As stated above, if the entire 
Level B zone is not visible at the start of construction, piling or 
drilling activities can begin. If work ceases for more than 30 minutes, 
the pre-activity monitoring of both the Level B and shutdown zone must 
commence.
    Based on our evaluation of the applicant's planned measures, NMFS 
has determined that the required 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 
planned 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

[[Page 65370]]

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.

Marine Mammal Visual Monitoring

    Monitoring must be conducted by NMFS-approved observers. Trained 
observers must be placed from the best vantage point(s) practicable to 
monitor for marine mammals and implement shutdown or delay procedures 
when applicable through communication with the equipment operator. 
Observer training must be provided prior to project start, and shall 
include instruction on species identification (sufficient to 
distinguish the species in the project area), description and 
categorization of observed behaviors and interpretation of behaviors 
that may be construed as being reactions to the specified activity, 
proper completion of data forms, and other basic components of 
biological monitoring, including tracking of observed animals or groups 
of animals such that repeat sound exposures may be attributed to 
individuals (to the extent possible).
    Monitoring must be conducted beginning 30 minutes before, during, 
and continuing through 30 minutes after pile driving/removal and 
drilling activities. In addition, observers must record all incidents 
of marine mammal occurrence, regardless of distance from activity, and 
must document any behavioral reactions in concert with distance from 
piles being driven or removed. Pile driving/removal and drilling 
activities include the time to install or remove a single pile or 
series of piles, as long as the time elapsed between uses of the pile 
driving equipment is no more than 30 minutes.
    At least two PSOs must be on duty during all pile driving 
activities. One PSO must be stationed at the dock site to allow full 
monitoring of the waters within the shutdown zones and the closest 
waters of the Level B harassment monitoring zones. An additional PSO 
must be positioned in a vessel in Auke Bay to observe the larger 
monitoring zones. Most of the shoreline of Auke Bay is privately owned 
and unavailable for PSOs to access. Additionally, PSOs cannot be 
stationed on the shore of the various islands in Auke Bay due to safety 
concerns. Therefore, a vessel-based PSO is the most practicable 
position for this project. Potential PSO locations are shown in Figure 
2 in Mr. Erickson's Marine Mammal Monitoring Plan.
    PSOs must scan the waters using binoculars, and/or spotting scopes, 
and must use a handheld GPS or range-finder device to verify the 
distance to each sighting from the project site. All PSOs must be 
trained in marine mammal identification and behaviors and are required 
to have no other project-related tasks while conducting monitoring. In 
addition, monitoring must be conducted by qualified observers, placed 
at the best vantage point(s) practicable to monitor for marine mammals 
and implement shutdown/delay procedures when applicable by calling for 
the shutdown to the hammer operator. Mr. Erickson must adhere to the 
following observer qualifications:
    (i) Independent observers (i.e., not construction personnel) are 
required;
    (ii) At least one observer must have prior experience working as an 
observer;
    (iii) Other observers may substitute education (degree in 
biological science or related field) or training for experience; and
    (iv) Mr. Erickson must submit observer CVs for approval by NMFS.

Additional standard observer qualifications include:

     Ability to conduct field observations and collect data 
according to assigned protocols;
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates and times when in-water construction 
activities were suspended to avoid potential incidental injury from 
construction sound of marine mammals observed within a defined shutdown 
zone; and marine mammal behavior; and
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.
    A draft marine mammal monitoring report must be submitted to NMFS 
within 90 days after the completion of pile driving and removal and 
drilling activities. It must include an overall description of work 
completed, a narrative regarding marine mammal sightings, and 
associated PSO data sheets. Specifically, the report must include:
     Date and time that monitored activity begins or ends;
     Construction activities occurring during each observation 
period;
     Weather parameters (e.g., percent cover, visibility);
     Water conditions (e.g., sea state, tide state);
     Species, numbers, and, if possible, sex and age class of 
marine mammals observed;
     Description of any observable marine mammal behavior 
patterns, including bearing and direction of travel and distance from 
pile driving activity;
     Distance from pile driving activities to marine mammals 
and distance from the marine mammals to the observation point;
     Locations of all marine mammal observations;
     Other human activity in the area; and
     A summary of the total number of individuals of each 
species detected within the Level B Harassment Zone, and estimated as 
taken if correction factor appropriate, and the total number of 
individuals of each species detected within the Level A Harassment Zone 
and the average amount of time that they remained in that zone.
    If no comments are received from NMFS within 30 days, the draft 
final report will constitute the final report. If comments are 
received, a final report addressing NMFS comments must be submitted 
within 30 days after receipt of comments.
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHA 
(if issued), such

[[Page 65371]]

as an injury, serious injury or mortality, Mr. Erickson must 
immediately cease the specified activities and report the incident to 
the Chief of the Permits and Conservation Division, Office of Protected 
Resources, NMFS, and the Alaska Regional Stranding Coordinator. The 
report must include the following information:
     Description of the incident;
     Environmental conditions (e.g., Beaufort sea state, 
visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities must not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS would work with Mr. Erickson 
to determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Mr. Erickson would not be 
able to resume pile driving activities until notified by NMFS via 
letter, email, or telephone.
    In the event that Mr. Erickson discovers an injured or dead marine 
mammal, and the lead PSO determines that the cause of the injury or 
death is unknown and the death is relatively recent (e.g., in less than 
a moderate state of decomposition as described in the next paragraph), 
Mr. Erickson must immediately report the incident to the Chief of the 
Permits and Conservation Division, Office of Protected Resources, NMFS, 
and the NMFS Alaska Stranding Hotline and/or by email to the Alaska 
Regional Stranding Coordinator. The report must include the same 
information identified in the paragraph above. Activities would be able 
to continue while NMFS reviews the circumstances of the incident. NMFS 
would work with Mr. Erickson to determine whether modifications in the 
activities are appropriate.
    In the event that Mr. Erickson discovers an injured or dead marine 
mammal and the lead PSO determines that the injury or death is not 
associated with or related to the activities authorized in the IHA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), Mr. Erickson must report the 
incident to the Chief of the Permits and Conservation Division, Office 
of Protected Resources, NMFS, and the NMFS Alaska Stranding Hotline 
and/or by email to the Alaska Regional Stranding Coordinator, within 24 
hours of the discovery. Mr. Erickson must provide photographs, video 
footage (if available), or other documentation of the stranded animal 
sighting to NMFS and the Marine Mammal Stranding Network.

Negligible Impact Analysis and Determination

    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).
    Pile driving/removal and drilling activities associated with the 
project as outlined previously, have the potential to disturb or 
displace marine mammals. Specifically, the specified activities may 
result in take, in the form of Level A harassment and Level B 
harassment from underwater sounds generated from pile driving and 
removal. Potential takes could occur if individuals of these species 
are present in zones ensonified above the thresholds for Level A or 
Level B harassment identified above when these activities are underway.
    The takes from Level A and Level B harassment would be due to 
potential behavioral disturbance, temporary threshold shift (TTS), and 
PTS. No mortality is anticipated given the nature of the activity and 
measures designed to minimize the possibility of injury to marine 
mammals. Level A harassment is only anticipated for harbor porpoise and 
harbor seal. The potential for harassment is minimized through the 
construction method and the implementation of the planned mitigation 
measures (see Mitigation section).
    Effects on individuals that are taken by Level B harassment, on the 
basis of reports in the literature as well as monitoring from other 
similar activities, will likely be limited to reactions such as 
increased swimming speeds, increased surfacing time, or decreased 
foraging (if such activity were occurring) (e.g., Thorson and Reyff 
2006; HDR, Inc. 2012; Lerma 2014; ABR 2016). Most likely for pile 
driving, individuals will simply move away from the sound source and be 
temporarily displaced from the areas of pile driving and drilling, 
although even this reaction has been observed primarily only in 
association with impact pile driving. The pile driving activities 
analyzed here are similar to, or less impactful than, numerous other 
construction activities conducted in southeast Alaska, which have taken 
place with no known long-term adverse consequences from behavioral 
harassment. Level B harassment will be reduced to the level of least 
practicable adverse impact through use of mitigation measures described 
herein and, if sound produced by project activities is sufficiently 
disturbing, animals are likely to simply avoid the area while the 
activity is occurring. While vibratory driving and drilling associated 
with the planned project may produce sound at distances of many 
kilometers from the project site, thus intruding on some habitat, the 
project site itself is located in a busy harbor and the majority of 
sound fields produced by the specified activities are close to the 
harbor. Therefore, we expect that animals annoyed by project sound 
would simply avoid the area and use more-preferred habitats.
    In addition to the expected effects resulting from authorized Level 
B harassment, we anticipate that harbor porpoises and harbor seals may 
sustain some limited Level A harassment in the form of auditory injury. 
However, given the relatively small size of the Level A harassment 
zones and the anticipated effectiveness of mitigation, animals in these 
locations that experience PTS would likely only receive slight PTS, 
i.e. minor degradation of hearing capabilities within regions of 
hearing that align most completely with the energy produced by pile 
driving, i.e. the low-frequency region below 2 kHz, not severe hearing 
impairment or impairment in the regions of greatest

[[Page 65372]]

hearing sensitivity. If hearing impairment occurs, it is most likely 
that the affected animal would lose a few decibels in its hearing 
sensitivity, which in most cases is not likely to meaningfully affect 
its ability to forage and communicate with conspecifics. As described 
above, we expect that marine mammals would be likely to move away from 
a sound source that represents an aversive stimulus, especially at 
levels that would be expected to result in PTS, given sufficient notice 
through use of soft start.
    Nearly all inland waters of southeast Alaska, including Auke Bay, 
are included in the southeast Alaska humpback whale feeding BIA 
(Ferguson et al., 2015), though humpback whale distribution in 
southeast Alaska varies by season and waterway (Dahlheim et al., 2009). 
Humpback whales are present within Auke Bay intermittently and in low 
numbers. The area of the BIA that may be affected by the planned 
project is small relative to the overall area of the BIA, and the area 
of suitable humpback whale habitat that is not included in the BIA. The 
southeast Alaska humpback whale feeding BIA is active between March and 
November. While the exact timing of the planned project is unknown, Mr. 
Erickson's pile driving activities are expected to take only eight 
days. If the project were to occur between March and November, the days 
of activity represent a small fraction of the time the BIA is active 
and, thus, even if humpback whale feeding behaviors were interrupted by 
the activity, the disturbance would be short-term and alternative 
habitat and foraging opportunities are available nearby. Further, only 
a very small portion of the humpback stock is expected to enter the 
area and potentially be disturbed. Therefore, any adverse effects on 
humpback whales resulting from disturbances occurring in the southeast 
Alaska humpback whale feeding BIA are expected to be short-term and 
minor and not adversely impact reproduction or survival, much less the 
stock.
    The project also is not expected to have significant adverse 
effects on affected marine mammals' habitat. The project activities 
would not modify existing marine mammal habitat for a significant 
amount of time. The activities may cause some fish to leave the area of 
disturbance, thus temporarily impacting marine mammals' foraging 
opportunities in a limited portion of the foraging range; but, because 
of the short duration of the activities and the relatively small area 
of the habitat that may be affected, the impacts to marine mammal 
habitat are not expected to cause significant or long-term negative 
consequences.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
     No mortality is anticipated or authorized;
     The Level A harassment exposures are anticipated to result 
only in slight PTS, within the lower frequencies associated with pile 
driving;
     The anticipated incidents of Level B harassment would 
consist of, at worst, temporary modifications in behavior that would 
not result in fitness impacts to individuals;
     The area impacted by the specified activity is very small 
relative to the overall habitat ranges of all species, does not include 
ESA-designated critical habitat, and only temporally overlaps with the 
southeast Alaska humpback whale feeding BIA for two months of the 
planned six months of activity; and
     The required mitigation measures are expected to reduce 
the effects of the specified activity to the level of least practicable 
adverse impact.
    In addition, although affected humpback whales and Steller sea 
lions may be from a DPS that is listed under the ESA, it is unlikely 
that minor noise effects in a small, localized area of habitat would 
have any effect on the stocks' ability to recover. In combination, we 
believe that these factors, as well as the available body of evidence 
from other similar activities, demonstrate that the potential effects 
of the specified activities will have only minor, short-term effects on 
individuals. The specified activities are not expected to impact rates 
of recruitment or survival and will therefore not result in population-
level impacts.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the required monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
the planned 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 Sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. Additionally, other qualitative 
factors may be considered in the analysis, such as the temporal or 
spatial scale of the activities.
    Table 8 indicates the number of animals that could be exposed to 
received noise levels that could cause Level A and Level B harassment 
for the planned work in Auke Bay. Our analysis shows that less than 11 
percent of each affected stock could be taken by harassment. The 
numbers of animals authorized to be taken for these stocks would be 
considered small relative to the relevant stock's abundances even if 
each estimated taking occurred to a new individual--an extremely 
unlikely scenario.
    Based on the analysis contained herein of the planned activity 
(including the required mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
marine mammals will be taken relative to the population size of the 
affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

    In order to issue an IHA, NMFS must find that the specified 
activity will not have an ``unmitigable adverse impact'' on the 
subsistence uses of the affected marine mammal species or stocks by 
Alaskan Natives. NMFS has defined ``unmitigable adverse impact'' in 50 
CFR 216.103 as an impact resulting from the specified activity: (1) 
That is likely to reduce the availability of the species to a level 
insufficient for a harvest to meet subsistence needs by: (i) Causing 
the marine mammals to abandon or avoid hunting areas; (ii) Directly 
displacing subsistence users; or (iii) Placing physical barriers 
between the marine mammals and the subsistence hunters; and (2) That 
cannot be sufficiently mitigated by other measures to increase the 
availability of marine mammals to allow subsistence needs to be met.
    The planned project is not known to occur in an important 
subsistence hunting area. Auke Bay is a developed area with regular 
marine vessel traffic. Of the marine mammals considered in this IHA, 
only harbor seals are known to be used for subsistence in the project 
area. In a previous consultation with ADF&G, the Douglas Indian 
Association, Sealaska Heritage Institute, and the Central Council of 
the Tlingit and Haida

[[Page 65373]]

Indian Tribes of Alaska, representatives indicated that the primary 
concern with construction activities in Statter Harbor was impacts to 
herring fisheries, not marine mammals. As stated above, impacts to fish 
from the planned project are expected to be localized and temporary, so 
are not likely to impact herring fisheries. If any tribes express 
concerns regarding project impacts to subsistence hunting of marine 
mammals, further communication between will take place, including 
provision of any project information, and clarification of any 
mitigation and minimization measures that may reduce potential impacts 
to marine mammals.
    Based on the description of the specified activity, the measures 
described to minimize adverse effects on the availability of marine 
mammals for subsistence purposes, and the required mitigation and 
monitoring measures, NMFS has determined that there will not be an 
unmitigable adverse impact on subsistence uses from Mr. Erickson's 
planned activities.

Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally, in this case with the Alaska Regional Office, 
whenever we propose to authorize take for endangered or threatened 
species.
    NMFS Alaska Region issued a Biological Opinion to NMFS Office of 
Protected Resources on November 15, 2019, which concluded the issuance 
of an IHA to Mr. Erickson is not likely to jeopardize the continued 
existence of wDPS Steller sea lions or Mexico DPS humpback whales or 
adversely modify critical habitat.

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 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 
IHA qualifies to be categorically excluded from further NEPA review.

Authorization

    NMFS has issued an IHA to Mr. Erickson for conducting pile 
installation and removal activities at the Erickson Residence between 
January 1, 2020 and December 31, 2020, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: November 21, 2019.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2019-25688 Filed 11-26-19; 8:45 am]
BILLING CODE 3510-22-P