Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Whittier Ferry Terminal Alaska Class Ferry Modification Project, 72321-72333 [2019-28213]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 84, Number 250 (Tuesday, December 31, 2019)]
[Notices]
[Pages 72321-72333]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-28213]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XR045]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Whittier Ferry Terminal Alaska 
Class Ferry Modification Project

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

ACTION: Notice; issuance of incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
the Alaska Department of Transportation and Public Facilities to 
incidentally harass, by Level B harassment only, marine mammals during 
construction activities associated with the Whittier Ferry Terminal ACF 
Modification project in Whittier, AK.

DATES: This Authorization is effective from February 1, 2020 to January 
31, 2021.

FOR FURTHER INFORMATION CONTACT: Leah Davis, 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

[[Page 72322]]

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.
    The definitions of all applicable MMPA statutory terms cited above 
are included in the relevant sections below.

Summary of Request

    On June 6, 2019, NMFS received a request from Alaska Department of 
Transportation and Public Facilities (ADOT&PF) for an IHA to take 
marine mammals incidental to the relocation of one dolphin at the 
Whittier Ferry Terminal in Whittier, Alaska. The application was deemed 
adequate and complete on September 27, 2019. ADOT&PF's request is for 
take of a small number of five species of marine mammals by Level B 
harassment. Neither ADOT&PF nor NMFS expects serious injury or 
mortality to result from this activity and, therefore, an IHA is 
appropriate.

Description of the Specified Activity

    ADOT&PF is seeking an IHA for ferry terminal modifications at the 
Whittier Ferry terminal in Whittier, AK. Whitter is located at the head 
of Passage Canal, a deep-water fjord within Prince William Sound. The 
project includes relocation of one dolphin to accommodate a new, Alaska 
Class Ferry, the M/V Hubbard, as it is wider than the ferries currently 
operating in Prince William Sound. The dolphin will be removed using a 
vibratory hammer, and reinstalled using both vibratory and impact 
hammers. Additionally, construction will include modifying the existing 
catwalk and landing and modifying the bridge girder connection. Pile 
removal and installation associated with the project are expected to 
result in Level B harassment of humpback whale, killer whale, Dall's 
porpoise, Steller sea lion, and harbor seal. The ensonified area is 
expected to reach 12.0 km beyond the project site in Passage Canal. In-
water construction is expected to occur over six workdays during 
February and March 2020, however the IHA will be effective from 
February 2020 to January 2021.
    A detailed description of the planned project is provided in the 
Federal Register notification for the proposed IHA (84 FR 56427; 
October 22, 2019). Since that time, no changes have been made to the 
planned construction activities. Therefore, a detailed description is 
not provided here. Please refer to that Federal Register notification 
for the description of the specific activity.

Comments and Responses

    A notification of NMFS's proposal to issue an IHA to ADOT&PF was 
published in the Federal Register on October 22, 2019 (84 FR 56427). 
That notification described, in detail, ADOT&PF'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 comments from the Marine Mammal Commission; the 
Commission's recommendations and our responses are provided here.
    Comment 1: The Commission recommends that NMFS update its various 
templates for Federal Register notifications and draft authorizations 
and conduct a more thorough review of the applications and Federal 
Register notifications to ensure accuracy, completeness, and 
consistency prior to submitting them to the Federal Register for public 
comment.
    Response: NMFS thanks the Commission for its recommendation. NMFS 
makes every effort to keep templates up-to-date and read notifications 
thoroughly prior to publication and will continue this effort to 
publish the best possible product for public comment.
    Comment 2: The Commission recommends that NMFS authorize at least 
four Level A harassment takes of harbor seals based on impact driving 
of four piles. While the shutdown zone includes the entire Level A 
harassment zone for harbor seals, harbor seals could pop up into the 
Level A harassment zone before activities can shut down. In that 
instance, the Commission asserts that a sighting should be recorded as 
a Level A harassment take, as a Protected Species Observer (PSO) cannot 
determine the amount of time that the animal was within the Level A 
harassment zone undetected, nor its location while it was underwater.
    Response: During impact pile driving, the shutdown zone for harbor 
seals (200m) encompasses the entire Level A harassment zone for harbor 
seals (195m). While it is possible that a harbor seal may pop up in the 
shutdown zone before a shutdown can be implemented, it is unlikely that 
the animal would have been exposed to pile driving noise for a long 
enough duration to cause Level A harassment, given the duration 
component. Therefore, we have not authorized Level A harassment takes 
of harbor seals.
    Additionally, as noted in the mitigation and monitoring 
requirements, PSOs are required to record and report all observed 
instances of marine mammals, including the distance from pile driving 
activity to the animal. Therefore, if a harbor seal is observed within 
200m of the shutdown zone, it will be included in the monitoring report 
along with the estimated distance from pile driving activity. However, 
as noted above, it is not expected that the animal would have been 
taken by Level A harassment, and it would not be considered an 
unauthorized Level A harassment take.
    Comment 3: The Commission recommended that NMFS increase the number 
of Level B harassment takes of Steller sea lions from 15 takes to 30 
takes based on five animals potentially occurring in the Level B 
harassment zone on each of the six days of activities.
    Response: As described in the Federal Register notification for the 
proposed IHA (84 FR 56427; October 22, 2019), as many as ten sea lions 
haul out year-round on a channel buoy within Shotgun Cove approximately 
6 km (3.7 mi) northeast of the project location (M. Bender, Lazy Otter 
Charters, pers. comm.; M. Kopec, Whittier Marine Charters, pers. 
comm.). The Level B harassment zone does extend past Shotgun cove, 
however, due to the features of the shoreline, the Level B harassment 
zone is clipped on the Shotgun Cove side of Passage canal. It does not 
include the area of Passage Canal directly outside of Shotgun Cove (see 
application for more information), therefore animals do not have to 
enter the Level B harassment zone to exit Shotgun Cove and travel 
toward Prince William Sound. Given the limited prey

[[Page 72323]]

availability in the project area in February and March, as described in 
the Federal Register notification for the proposed IHA (84 FR 56427), 
NMFS believes that Level B harassment takes of Steller sea lion are not 
likely to occur. However, 15 Level B harassment takes are being 
authorized at the request of the applicant to ensure MMPA coverage, 
should they occur.
    Comment 4: The Commission recommends that NMFS require ADOT&PF to 
implement shutdown zones of 375m for low-frequency cetaceans and 450m 
for high-frequency cetaceans.
    Response: During impact pile driving, the Level A harassment zone 
for low-frequency cetaceans is 364.3m. During informal discussion with 
the Commission on the Draft IHA, NMFS expected to include a shutdown 
zone of 350m for low-frequency cetaceans, which NMFS believed to be 
sufficient to prevent Level A harassment. Due to the duration component 
associated with the Level A harassment zones, NMFS did not expect that 
a low-frequency cetacean would remain in the Level A harassment zone 
for a long enough period, without being detected and triggering a 
shutdown, to be taken by Level A harassment, given a shutdown zone of 
350m. However, in the final Authorization, NMFS is requiring a 550-
meter shutdown zone during impact pile driving. The shutdown zone is 
much larger than the Level A harassment zone, however, NMFS previously 
concluded informal Section 7 consultation with the Alaska Region with 
the understanding that the shutdown zone would include the area within 
the 550m isopleth. For vibratory pile driving, the shutdown zone for 
low-frequency cetaceans will be 25m, while the Level A harassment zone 
is 26m.
    During impact pile driving, the Level A harassment zone for high-
frequency cetaceans is 433.9m. NMFS is requiring a 400m shutdown zone 
for high-frequency cetaceans. As previously discussed for low-frequency 
cetaceans, due to the duration component associated with the Level A 
harassment zones, NMFS does not expect that a high-frequency cetacean 
would remain in the Level A harassment zone for a long enough period, 
without being detected and triggering a shutdown, to be taken by Level 
A harassment.
    Comment 5: The Commission recommends that NMFS ensure that ADOT&PF 
keep a running tally of the total takes, which includes extrapolated 
takes, for each species to comply with section 4(g) of the 
authorization.
    Response: NMFS agrees that ADOT&PF must ensure they do not exceed 
authorized takes. We have included in the authorization that ADOT&PF 
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 6: The Commission recommends that NMFS refrain from using 
the proposed renewal process for ADOT&PF's authorization. The 
Commission states that 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 to marine mammals and that require the least complex 
analyses.
    The Commission states that if NMFS intends to use the renewal 
process frequently or for authorizations that require a more complex 
review or for which much new information has been generated (e.g., 
multiple or extensive monitoring reports), it recommends that NMFS 
provide the Commission and other reviewers the full 30-day comment 
opportunity 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).

Changes From the Proposed IHA to Final IHA

    The sizes of the Level A harassment zones decreased between the 
proposed IHA and the final IHA. In the proposed IHA, NMFS used the 
average number of piles per day (1.5 piles) and a sound source level 
based on SPL RMS (and assumed 100msec pulse duration for impact pile 
driving) to estimate Level A harassment zones for pile driving 
activities. In the Final IHA, NMFS used the maximum number of piles per 
day (2 piles) and a sound source level based on a single-strike sound 
exposure level (for impact pile driving only), as recommended by the 
Commission. Additionally, shutdown zone sizes have been modified based 
on informal correspondence with the Commission and NMFS's Alaska 
Regional Office. After a shutdown, activities may not resume until 
either the animal has been visually confirmed beyond the shutdown zone 
or 15 minutes (pinnipeds)/30 minutes (cetaceans) have passed without 
subsequent detections of the animal. The proposed authorization stated 
that activities may resume after the animal has been visually confirmed 
beyond the shutdown zone, or 15 minutes have passed without subsequent 
detections for all species. See the Mitigation Measures section for 
additional information. Also suggested by the Commission, the 
monitoring zone associated with vibratory pile driving and removal was 
decreased to reflect concerns that PSOs would not be able to view the 
farthest extents of the proposed 12km monitoring zone. Finally, 60 
Level B harassment takes of harbor seal are authorized, rather than the 
15 Level B harassment takes of harbor seal originally proposed for 
authorization, as a result of informal correspondence with the 
Commission.

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 
Passage Canal 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 (2016). 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 
comprise that stock. For some species, this geographic area may

[[Page 72324]]

extend beyond U.S. waters. All managed stocks in this region are 
assessed in NMFS's U.S. Alaska and U.S. Pacific SARs (e.g., Muto et 
al., 2019). All values presented in Table 1 are the most recent 
available at the time of publication and are available in the 2018 SARs 
or 2019 draft SARs (Carretta et al., 2019 and Muto 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        139
                                                                                                             2016).
Family Balaenopteridae (rorquals):
    Fin whale.......................  Balaenoptera physalus..  Northeast Pacific......  E, D, Y             see SAR (see SAR, see         5.1        0.6
                                                                                                             SAR, 2013).
    Humpback whale..................  Megaptera novaeangilae.  Central North Pacific..  -, -, Y             10,103 (0.300, 7,891,          83         26
                                                                                                             2006).
                                                               California/Oregon/       -, -, Y             2,900 (0.05, 2,784,          16.7     >=40.2
                                                                Washington.                                  2014).
                                                               Western North Pacific..  E, D, Y             1,107 (0.300, 865,              3        3.0
                                                                                                             2006).
    Minke whale.....................  Balaenoptera             Alaska.................  -, -, N             N/A (see SAR, N/A, see      Undet          0
                                       acutorostra.                                                          SAR).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
    Killer whale....................  Orcinus orca...........  Eastern North Pacific,   -, -, N             2,347c (N/A, 2,347,            24          1
                                                                Alaska Resident.                             2012).
                                                               Gulf, Aleutian, Bering   -, -, N             587c (N/A, 587, 2012).       5.87          1
                                                                Transient.
                                                               AT1 Transient..........  -, D, Y             7c (N/A, 7, 2017).....       0.01          0
    Pacific white-sided dolphin.....  Lagenorhynchus           North Pacific..........  -, -, N             26,880 (Unknown,            Undet          0
                                       obliquidens.                                                          Unknown, 1990).
Family Phocoenidae (porpoises):
    Dall's porpoise.................  Phocoenoides dalli.....  Alaska.................  -, -, N             83,400 (0.097, N/A,         Undet         38
                                                                                                             1991).
    Harbor porpoise.................  Phocoena...............  Gulf of Alaska.........  -, -, Y             31,046 (0.214, N/A,         Undet         72
                                                                                                             1998).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
 sea lions):
    California sea lion.............  Zalophus californianus.  U.S....................  -, -, N             257,606 (N.A, 233,515,     14,011      >=321
                                                                                                             2014).
    Steller sea lion................  Eumetopias jubatus.....  Western U.S............  E, D, Y             53,624a (Unknown,             322        247
                                                                                                             53,624, 2018).
Family Phocidae (earless seals):
    Pacific harbor seal.............  Phoca vitulina.........  Prince William Sound...  -, -, N             44,756 (see SAR,            1,253        413
                                                                                                             41,776, 2015).
--------------------------------------------------------------------------------------------------------------------------------------------------------
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. For certain stocks of pinnipeds, abundance estimates are based upon observations of animals (often pups) ashore multiplied by some
  correction factor derived from knowledge of the species (or similar species) life history to arrive at a best abundance estimate; therefore, there is
  no associated CV. In these cases, the minimum abundance may represent actual counts of all animals ashore.
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 project area are 
included in Table 1. However, the temporal and/or spatial occurrence of 
gray whale, fin whale, minke whale, Pacific white-sided dolphin, harbor 
porpoise, and California sea lion are such that take is not expected to 
occur, and they are not discussed further beyond the explanation 
provided here. Gray whales do not regularly enter Prince William Sound, 
and charter operators have only observed gray whales in Passage Canal 
twice in the past 20 years (M. Bender, Lazy Otter Charters, pers. 
comm.; M. Kopec, Whittier Marine Charters, pers. comm.). Fin whales 
typically arrive to the Gulf of Alaska in May, well after the February 
and March work window, and there is only one record of a fin whale 
occurring within Passage Canal in the past 20 years (M. Kopec, Whittier 
Marine Charters, pers. comm.). Minke whales are not expected to occur 
in the ensonified area, as in the past 20 years, marine mammal charter 
operators have seen fewer than five minke whales within Passage Canal, 
and they are typically found farther south during winter months (NMFS 
2018b). Extensive marine mammal surveys conducted within Prince William 
Sound by Hall (1979) and Waite (2003) yielded no sightings of Pacific 
white-sided dolphins. Based on habitat preferences and past survey 
results, this dolphin is unlikely to occur in the Action Area, 
especially given the early spring work-window. Over the last 20 years, 
none

[[Page 72325]]

have been observed in the inlet by charter operators (M. Bender, Lazy 
Otter Charters, pers. comm.; M. Kopec, Whittier Marine Charters, pers. 
comm.). Harbor porpoise have not been observed in Passage Canal during 
over two decades of whale watching by one charter operator (M. Bender, 
Lazy Otter Charters, pers. comm.), and are considered extremely rare in 
Passage Canal by another (M. Kopec, Whittier Marine Charters, pers. 
comm.). California sea lions are rarely sighted in southern Alaska. 
NMFS' anecdotal sighting database includes four sightings in Seward and 
Kachemak Bay, and they were also documented during the Apache 2012 
seismic survey in Cook Inlet. However, California sea lions have not 
been observed in Passage Canal.
    In addition, the northern sea otter may be found in Whittier, AK. 
However, northern sea otters are managed by the U.S. Fish and Wildlife 
Service and are not considered further in this document.
    A detailed description of the species likely to be affected by the 
Whittier Ferry Terminal ACF Modification 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 
notification for the proposed IHA (84 FR 56427; October 22, 2019); 
since that time, the Draft 2019 Stock Assessment Reports have been 
published, which include changes for the Prince William Sound stock of 
harbor seals and the western stock of Steller sea lion. However, take 
estimates are still based on the information on presence in Passage 
Canal, such as expected group size, outlined in the Federal Register 
notification for the proposed IHA (84 FR 56427; October 22, 2019); 
therefore, detailed descriptions are not provided here. Please refer to 
that Federal Register notification 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

    Underwater noise from impact and vibratory pile driving activities 
associated with the project have the potential to result in harassment 
of marine mammals in the vicinity of the action area. The Federal 
Register notification for the proposed IHA (84 FR 56427; October 22, 
2019) included a discussion of the potential effects of such 
disturbances on marine mammals and their habitat, therefore that 
information is not repeated in detail here; please refer to the Federal 
Register notification (84 FR 56427; October 22, 2019) for that 
information.

Estimated Take

    This section provides an estimate of the number of incidental takes 
for authorization through this IHA, which will inform both NMFS's 
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 be by Level B harassment only, in the form 
of disruption of behavioral patterns for individual marine mammals 
resulting from exposure to pile driving and removal activities. Based 
on the nature of the activity and the anticipated effectiveness of the 
mitigation measures (i.e., shutdown zones) discussed in detail below in 
the Mitigation Measures section, Level A harassment is not authorized. 
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 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 take estimate.

Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic 
thresholds that identify the received level of underwater sound above 
which exposed marine mammals would be reasonably expected to be 
behaviorally harassed (equated to Level B harassment) or to incur PTS 
of some degree (equated to Level A harassment).
    Level B harassment for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2012). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals are 
likely to be behaviorally harassed in a manner we consider Level B 
harassment when exposed to underwater anthropogenic noise above 
received levels of 120 dB re 1 microPascal ([mu]Pa) root mean square 
(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.
    ADOT&PF's activity includes the use of continuous (vibratory pile 
driving and removal) 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) (NMFS, 2018a) 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). 
ADOT&PF's activity includes the use of impulsive (impact pile driving) 
and non-impulsive (vibratory pile driving and removal) sources.
    These thresholds are provided in the table below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS 2018 Technical Guidance, which may be accessed at 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/

[[Page 72326]]

marine-mammal-acoustic-technical-guidance.

                  Table 2--Thresholds Identifying the Onset of Permanent Threshold Shift (PTS)
----------------------------------------------------------------------------------------------------------------
                                                     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 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 maximum (underwater) area ensonified above 
the thresholds for behavioral harassment referenced above is 20.5 km\2\ 
(7.9 mi\2\) and is governed by the inlet topography.
    The project includes vibratory and impact pile installation of 
steel pipe piles and vibratory removal of steel pipe piles. Source 
levels of pile installation and removal 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 pile size and 
driving method are presented in Table 3. The vibratory and impact 
source levels for 30-inch (0.76m) pile installation is from pile 
driving activities at the Auke Bay Ferry Terminal in November 2015 
(Denes et al., 2016). Source levels for vibratory installation and 
removal of piles of the same diameter are assumed to be the same.

                              Table 3--Sound Source Levels for Pile Driving Methods
----------------------------------------------------------------------------------------------------------------
                                              Source level (SPL at 10m)
       Pile size and method       ------------------------------------------------       Literature source
                                       dB RMS        dB SEL \a\        dB peak
----------------------------------------------------------------------------------------------------------------
30-inch Vibratory................           168.0             N/A             N/A  Denes et al. 2016.
30-inch Impact...................           191.3           177.4           206.0  Denes et al. 2016.
----------------------------------------------------------------------------------------------------------------
\a\ Sound exposure level (dB re 1 [mu]Pa\2\-sec).

    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 (R1/R2),

Where:

TL = transmission loss in dB
B = transmission loss coefficient
R1 = the distance of the modeled SPL from the driven 
pile, and
R2 = the distance from the driven pile of the initial 
measurement

    Absent site-specific acoustical monitoring with differing measured 
transmission loss, a practical spreading value of 15 is used as the 
transmission loss coefficient in the above formula. Site-specific 
transmission loss data for Whittier are not available; therefore, the 
default coefficient of 15 is used to determine the distances to the 
Level A and Level B harassment thresholds.

                                   Table 4--Pile Driving Source Levels and Distances to Level B Harassment Thresholds
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                            Level B
                                                            Source level at   Level B threshold     Propagation     Distance to Level      harassment
                   Pile size and method                       10m (dB re 1     (dB re 1 [mu]Pa        (xLogR)        B threshold (km)   ensonified area
                                                              [mu]Pa rms)            rms)                                                   (km\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
30-inch Vibratory........................................              168.0                120                 15              15.85               20.5
30-inch Impact...........................................              191.3                160                 15              1.221               1.24
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 72327]]

    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 
driving, NMFS User Spreadsheet predicts the distance at which, if a 
marine mammal remained at that distance the whole duration of the 
activity, it would incur PTS. Inputs used in the User Spreadsheet, and 
the resulting isopleths are reported below.

          Table 5--User Spreadsheet Input Parameters Used for Calculating Level A Harassment Isopleths
----------------------------------------------------------------------------------------------------------------
                                       30-inch pile  vibratory    30-inch pile  impact
  Pile size and installation method        installation and      installation (SELcum)     30-inch pile  impact
                                               removal                                      installation (PK)
----------------------------------------------------------------------------------------------------------------
Spreadsheet Tab Used.................  (A.1) Vibratory pile     (E.1) Impact pile        (E.1) Impact pile
                                        driving.                 driving.                 driving.
Weighting Factor Adjustment (kHz)....  2.5....................  2......................  2.
Source Level (@10m)..................  168.0 dB RMS SPL.......  177.4 dB...............  206 dB.
Number of piles within 24-h period...  2......................  2......................
Duration to drive a single pile        45.....................
 (minutes).
Strike Duration (seconds)............
Number of strikes per pile...........  .......................  400....................
Activity Duration (seconds) within 24- 5400...................
 h period.
Propagation (xLogR)..................  15.....................  15.....................
Distance from source level             10.....................  10.....................  10.
 measurement (meters).
----------------------------------------------------------------------------------------------------------------


                          Table 6--Calculated Distances to Level A Harassment Isopleths
----------------------------------------------------------------------------------------------------------------
                                                           Level A harassment zone (m)
                               ---------------------------------------------------------------------------------
           Activity              Low-frequency   Mid-frequency   High-frequency       Phocid          Otariid
                                   cetaceans       cetaceans        cetaceans        pinnipeds       pinnipeds
----------------------------------------------------------------------------------------------------------------
30-inch Pile Vibratory                    26.2             2.3              38.8            15.9             1.1
 Installation and Removal.....
30-inch Pile Impact                      364.3            13.0             433.9           195.0            14.2
 Installation (SELcum)........
30-inch Pile Impact                          1              NA                19               2             N/A
 Installation (PK)............
----------------------------------------------------------------------------------------------------------------

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 that will inform the take 
calculations. No systematic surveys for marine mammals have occurred in 
Passage Canal. Animal presence is based on the observations by whale 
watching charters based out of Whittier, which specifically search for 
marine mammals in Passage Canal and one of which operates during the 
February and March construction window.
    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate. Because reliable 
densities are not available and marine mammal presence in Passage Canal 
is minimal, take requests are species specific and a general take 
calculation formula does not apply. All take estimates remain the same 
as in the proposed IHA, except for harbor seals which have been 
increased in the final IHA.

Humpback Whale

    Based on over two decades of whale watching activity in Passage 
Canal, humpback whales have been observed in Passage Canal on only very 
rare occasions and remained for very short periods (M. Bender, Lazy 
Otter Charters, pers. comm.). Reported occurrence is approximately once 
per year (M. Kopec, Whittier Marine Charters, pers. comm.).
    ADOT&PF estimated that one humpback whale (Straley et al., 2018) 
may enter Passage Canal and remain in the Canal for several days during 
the project if herring are present. Therefore, NMFS has authorized take 
of one whale for each of the six project days for a total of six 
humpback whale takes.
    The largest Level A harassment zone for humpback whales extends 
364.3m from the source during impact installation of 30-inch (0.76m) 
piles (Table 6). The SELcum Level A harassment zone includes 
a time component, and we do not expect humpback whales to remain in the 
area within 364.3m during impact pile driving for long enough to 
experience Level A harassment. Therefore, Level A harassment takes of 
humpback whales were not requested and are not authorized.

Killer Whale

    On rare occasions killer whales have been reported to make brief 
sorties into Passage Canal, but they are not regular residents there 
(M. Bender, Lazy Otter Charters, pers. comm.). They are seen in the 
inlet approximately once each year (M. Kopec, Whittier Marine Charters, 
pers. comm.). ADOT&PF estimates that one pod may enter the Level B 
harassment zone during the project. Based on that estimate, NMFS has 
authorized 20 killer whale takes, which equates to the largest, single 
pod (AB) entering the project area on one day of pile driving.
    The largest Level A harassment zone for killer whales extends 13m 
from the source during impact installation of 30-inch (0.76m) piles 
(Table 6). Given the irregular and small presence of killer whales in 
Passage Canal, and the fact

[[Page 72328]]

that PSOs are expected to detect killer whales before they enter the 
Level A harassment zone and implement shutdown zones to prevent take by 
Level A harassment, Level A harassment takes of killer whales have not 
been requested and are not authorized.

Dall's Porpoise

    Dall's porpoises have occasionally been observed near the entrance 
of Passage Canal, but within the inlet they are considered exceedingly 
rare (M. Bender, Lazy Otter Charters, pers. comm.; M. Kopec, Whittier 
Marine Charters, pers. comm.). NMFS has authorized take of five Dall's 
porpoise, based on the springtime average group size (4.59 individuals) 
from Prince William Sound surveys conducted by Moran et al. (2018). The 
estimate assumes that one group enters the Level B harassment zone on 
one day of pile driving.
    The largest SELcum Level A harassment zone for Dall's 
porpoise extends 433.9m from the source during impact installation of 
30-inch (0.76m) piles (Table 6), while the Peak Level A harassment zone 
for the same activity is 19m (Table 6). As noted in Table 8, a 400-m 
shutdown zone will be implemented for Dall's porpoises. The 
SELcum Level A harassment zone includes a time component, 
however, we do not expect Dall's porpoises to remain in the area within 
433.9m during impact pile driving for a long enough period to 
experience Level A harassment. Therefore, takes of Dall's porpoises by 
Level A harassment were not requested and are not authorized.

Steller Sea Lion

    Steller sea lions are often seen near Whittier during May to August 
salmon runs but are irregularly seen in the Action Area the rest of the 
year, although as many as ten sea lions haul out year-round on a 
channel buoy within Shotgun Cove approximately 6 km (3.7 mi) northeast 
of the Action Area (M. Bender, Lazy Otter Charters, pers. comm.; M. 
Kopec, Whittier Marine Charters, pers. comm.).
    An average of five Steller sea lions haul out on the buoy in 
Shotgun Cove. ADOT&PF estimates that half of those animals (average of 
2.5) may enter the Level B harassment zone on each of the six days of 
pile driving, and requested 15 Level B harassment takes of Steller sea 
lions. Due to the limited prey availability in the project area in 
February and March (Bishop and Green 2009, NMFS 2019), NMFS 
acknowledges that the requested Level B harassment takes are unlikely 
to occur. However, the takes were analyzed and are being authorized at 
the request of the applicant to ensure MMPA coverage should they occur 
in the ensonified zone during the specified activities.
    The largest Level A harassment zone for otariid pinnipeds extends 
14.2m from the source during impact installation of 30-inch (0.76m) 
piles (Table 6). ADOT&PF will implement a minimum 25-m shutdown zone 
during all pile installation and removal activities (see Mitigation 
Measures section), which is expected to eliminate the potential for 
Level A harassment take of Steller sea lions. Therefore, takes of 
Steller sea lions by Level A harassment were not requested and are not 
authorized.

Harbor Seal

    Harbor seal use of the project area is occasional and sporadic. If 
food is available, small numbers of harbor seals may remain for 
extended periods in the Whittier boat harbors feeding on sessile 
invertebrates growing on harbor pilings. Otherwise, they are only 
occasionally seen in the mid-inlet, although sightings do occur year-
round. Recently, four to ten seals (typically about five) have been 
observed hauling out on a rock pinnacle in Logging Camp Bay located 
12.4 km (7.7 mi) east of the project area, just outside of the Level B 
harassment zone (M. Bender, Lazy Otter Charters, pers. comm.). In the 
proposed authorization, ADOT&PF assumed that on any given day, half 
(2.5 average) of these seals might occur in the Level B harassment zone 
during each of the six days of pile driving, and therefore requested 15 
Level B harassment takes of harbor seals. However, during informal 
correspondence, the Commission suggested that all ten seals have the 
potential to enter the Level B harassment zone and be taken on each of 
the six days of pile driving. NMFS agrees, and is authorizing 60 Level 
B harassment takes of harbor seals.
    The largest SELcum Level A harassment zone for phocid 
pinnipeds extends 195m from the source during impact installation of 
30-inch (0.76m) piles (Table 6), while the Peak Level A harassment zone 
for the same activity is 1.6m (Table 6). ADOT&PF is planning to 
implement a 25-m shutdown zone during vibratory pile installation and 
removal activities and a 200-m shutdown zone during impact pile 
installation for phocid pinnipeds (Table 8). These shutdown zones are 
expected to eliminate the potential for Level A harassment take of 
harbor seals. Therefore, takes of harbor seals by Level A harassment 
were not requested and are not authorized.

                    Table 7--Authorized Take by Level B Harassment Only, by Species and Stock
----------------------------------------------------------------------------------------------------------------
                                                                                                    Authorized
                                                                       Stock                          take as
              Common name                         Stock            abundance \a\   Level B take    percentage of
                                                                                                       stock
----------------------------------------------------------------------------------------------------------------
Humpback whale........................  Central North Pacific...          10,103           \b\ 6            0.06
Killer whale..........................  Eastern North Pacific,             2,347              20            0.85
                                         Alaska Resident.
                                        Gulf, Aleutian, Bering               587              20            3.41
                                         Transient.
Dall's porpoise.......................  Alaska..................          83,400               5            0.01
Steller sea lion......................  Western U.S.............          53,624              15            0.03
Harbor seal...........................  Prince William Sound....          44,756          \c\ 60            0.13
----------------------------------------------------------------------------------------------------------------
\a\ Stock or DPS size is Nbest according to NMFS 2018 SARs or 2019 Draft SARs.
\b\ For ESA Section 7 consultation purposes, 89% of humpbacks in the project area are designated to the Hawaii
  DPS. Therefore, this individual humpback whale is expected to be from the Hawaii DPS, as are all authorized
  humpback whale takes.
\c\ Updated based on informal correspondence with the Commission.

Mitigation Measures

    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

[[Page 72329]]

certain subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting such 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned); and,
    (2) the practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    In addition to the measures described later in this section, 
ADOT&PF will 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 shall cease and vessels shall reduce speed to the minimum 
level required to maintain steerage and safe working conditions. This 
type of work could include the following activities: (1) Movement of 
the barge to the pile location; or (2) positioning of the pile on the 
substrate via a crane (i.e., stabbing the pile);
     To minimize impacts from vessel interactions with marine 
mammals, the crew aboard project vessels (tugs, barges, and monitoring 
vessels) will follow NMFS's marine mammal viewing guidelines and 
regulations as practicable;
     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 will 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 will be stopped as these species approach 
the Level B harassment zone to avoid additional take.
    The following mitigation measures would apply to ADOT&PF's in-water 
construction activities:
    Establishment of Shutdown Zone for Level A Harassment--For all pile 
driving/removal and drilling activities, ADOT&PF will 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 mammal (or in anticipation of an animal entering the defined 
area). Shutdown zones will vary based on the activity type and marine 
mammal hearing group (see Table 8). The largest shutdown zones are 
generally for low frequency and high frequency cetaceans as shown in 
Table 8. The placement of Protected Species Observers (PSOs) during all 
pile driving and pile removal activities (described in detail in the 
Monitoring and Reporting Section) will ensure that the entire shutdown 
zone is visible during pile installation.

                          Table 8--Shutdown Zones During Pile Installation and Removal
----------------------------------------------------------------------------------------------------------------
                                                                 Shutdown zone (m)
            Activity             -------------------------------------------------------------------------------
                                   LF cetaceans    MF cetaceans    HF cetaceans       Phocids        Otariids
----------------------------------------------------------------------------------------------------------------
Vibratory pile installation and               25              25              50              25              10
 removal........................
Impact pile installation........             550              25             400             200              25
----------------------------------------------------------------------------------------------------------------

    Establishment of Monitoring Zones for Level B Harassment--ADOT&PF 
would establish monitoring zones to correlate with Level B harassment 
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. Placement 
of PSOs on the shorelines around Passage Canal allow PSOs to observe 
marine mammals within Passage Canal. As noted by the Commission, PSOs 
will not be able to observe the entire Level B harassment zone during 
all activities. Therefore, Level B harassment takes will be recorded 
and extrapolated based upon the number of observed taked and the 
percentage of the Level B harassment zone that was not visible.

                 Table 9--Marine Mammal Monitoring Zones
------------------------------------------------------------------------
                                                            Monitoring
                        Activity                             zone (m)
------------------------------------------------------------------------
Vibratory pile installation and removal.................       \a\ 9,000
Impact pile installation................................           1,200
------------------------------------------------------------------------
\a\ Maximum distance that PSOs will be able to monitor. The monitored
  area will depend on the number of PSOs and how close animals are to
  the opposite side of Passage Canal from the observer.

    Soft Start--The use of soft-start procedures are believed to 
provide additional protection to marine

[[Page 72330]]

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 would be 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 would be 
conducted a total of three times before impact pile driving begins. 
Soft start would 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 will observe the shutdown 
and monitoring zones for a period of 30 minutes. The shutdown zone will 
be cleared when a marine mammal has not been observed within the zone 
for that 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 (for pinnipeds) or 30 
minutes (for cetaceans). If the Level B harassment zone has been 
observed for 30 minutes and no species for which take is not authorized 
are present within the zone, soft start procedures can commence and 
work can continue even if visibility becomes impaired within the Level 
B harassment monitoring zone. When a marine mammal for which Level B 
harassment take is authorized is present in the Level B harassment 
zone, activities may begin and Level B harassment take will be 
recorded. As stated above, if the entire Level B harassment zone is not 
visible at the start of construction, pile driving activities can 
begin. If work ceases for more than 30 minutes, the pre-activity 
monitoring of both the Level B harassment and shutdown zones will 
commence.

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 
action area. Effective reporting is critical both to compliance as well 
as ensuring that the most value is obtained from the required 
monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors.
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.

Visual Monitoring

    Monitoring would be conducted 30 minutes before, during, and 30 
minutes after pile driving/removal activities. In addition, observers 
shall record all incidents of marine mammal occurrence, regardless of 
distance from activity, and shall document any behavioral reactions in 
concert with distance from piles being driven or removed. Pile driving 
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 thirty minutes.
    There will be at least two PSOs employed during all pile driving/
removal activities. PSO will not perform duties for more than 12 hours 
in a 24-hour period. For impact and vibratory pile driving and removal, 
one PSO would be positioned at the end of the terminal catwalk near the 
pile driving/removal activities at the best practical vantage point. A 
second PSO would be stationed approximately 2.5 km down Shotgun Cove 
Road and Trail. For vibratory pile driving and removal, two additional 
PSOs will be stationed along Shotgun Cove Road and Trail, each 
approximately 2.5 km down the trail from the previous PSO. Observed 
take will be extrapolated across unobserved portions of the Level B 
harassment zone.
    If Station 2 is not accessible via snowmobile on Shotgun Cove Road 
and Trail, a vessel will be used as a monitoring station. The vessel 
will be mostly stationary, however, it will be somewhat influenced by 
the tides. If Stations 3 or 4 are not accessible via snowmobile on 
Shotgun Cove Road and Trail, take observed by PSOs at Stations 1 and 2 
will be extrapolated across the unobserved portion of the project area.
    As part of monitoring, PSOs would scan the waters using binoculars, 
and/or spotting scopes, and would use a handheld GPS or range-finder 
device to verify the distance to each sighting from the project site. 
All PSOs would be trained in marine mammal identification and behaviors 
and are required to have no other project-related tasks while 
conducting monitoring. In addition, monitoring will be conducted by 
qualified observers who will be placed at the best vantage point(s) 
practicable to monitor for marine mammals and implement shutdown/delay 
procedures when applicable by calling for the shutdown to the hammer 
operator. Qualified observers are trained and/or experienced 
professionals, with the following minimum qualifications:
     Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance; use of binoculars 
may be necessary to correctly identify the target;
     Independent observers (i.e., not construction personnel);
     Observers must have their CVs/resumes submitted to and 
approved by NMFS;
     Advanced education in biological science or related field 
(i.e., undergraduate degree or higher). Observers may substitute 
education or training for experience;
     Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience);
     At least one observer must have prior experience working 
as an observer;
     Experience or training in the field identification of 
marine mammals,

[[Page 72331]]

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.

Reporting

    A draft marine mammal monitoring report would be submitted to NMFS 
within 90 days after the completion of pile driving and removal 
activities. The report will 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;
     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;
     An estimate of total take based on proportion of the 
monitoring zone that was observed; and
     Other human activity in the area.
    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 as an injury, serious injury or mortality, ADOT&PF 
would 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 would 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 would not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS would work with ADOT&PF to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. ADOT&PF would not be able 
to resume their activities until notified by NMFS via letter, email, or 
telephone.
    In the event that ADOT&PF 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), 
ADOT&PF would 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 would 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 ADOT&PF to determine whether modifications in the 
activities are appropriate.
    In the event that ADOT&PF 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), ADOT&PF would 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. ADOT&PF would 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 installation and removal 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 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 B harassment identified above when these 
activities are underway.
    The takes from Level B harassment would be due to potential 
behavioral disturbance. No Level A harassment is anticipated given the 
nature of the activity and measures designed to

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minimize the possibility of injury to marine mammals. The potential for 
Level A harassment and the scale and intensity of Level B harassment 
are minimized through the construction method and the implementation of 
the planned mitigation measures (see Mitigation Measures 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. 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 
associated with the project may produce sound at distances of many 
kilometers from the project site, thus intruding on some habitat, the 
ensonified area is already less-preferred habitat when the project is 
not underway. Therefore, we expect that animals annoyed by project 
sound would simply avoid the area and use more-preferred habitats.
    The project is also not expected to have significant adverse 
effects on affected marine mammals' habitats. 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;
     No injury is anticipated or authorized;
     Any resulting Level B harassment is expected to be short-
term and of relatively low impact;
     In fact, nearby habitat is considered non-optimal given 
the low likelihood of many known prey resources during the months of 
the activity;
     The area impacted by the specified activity is very small 
relative to the overall habitat ranges of all species;
     The project area does not include ESA-designated critical 
habitat and does not overlap with any Biologically Important Areas 
(BIAs);
     The project is only taking place over six total pile 
driving/removal days;
     The project has the potential to impact less than 3.5 
percent of each impacted stock; and
     The mitigation measures are expected to reduce the effects 
of the specified activity to the level of least practicable adverse 
impact.
    In addition, although affected Steller sea lions are 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 monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the 
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 7 demonstrates the number of animals that could be exposed to 
received noise levels that could cause Level B harassment for the work 
in Whittier. Our analysis shows that less than 1 percent of most 
affected stocks could be taken by Level B harassment, with the 
exception of the Gulf of Alaska, Aleutian Islands, and Bering Sea 
Transient stock of killer whales, for which less than 3.5 percent of 
the stock could be taken. 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, which is an extremely unlikely scenario.
    Based on the analysis contained herein of the activity (including 
the 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.
    Hunters from two native villages--Chenega Bay and Tatitlek--and 
native hunters living in Cordova annually harvest marine mammals within 
Prince William Sound as part of a subsistence lifestyle (Fall and 
Zimpelman 2016). Chenega Bay hunters annually harvest a few harbor 
seals and sea otters and have hunted Steller sea lions in the past 
(Wolfe et al. 2009). Most hunting occurs locally. Hunters from Tatitlek 
harvest harbor seals and sea lions over most of central Prince William 
Sound, although their hunting range does not extend to Passage Canal 
(Fall and Zimpelman 2016). Native hunters living in Cordova mostly 
harvest harbor seals but

[[Page 72333]]

occasionally take sea otters and sea lions (Fall and Zimpelman 2016). 
All villages are greater than 100 km (62 mi) by boat travel from 
Passage Canal. The short-term, relatively low-impact, Level B 
harassment takes resulting from construction activities associated with 
the Whittier Ferry Terminal modifications project will have no impact 
on the ability of hunters from these villages to harvest marine 
mammals. Therefore, NMFS has determined that the total taking of 
affected species or stocks would not have an unmitigable adverse impact 
on the availability of such species or stocks for taking for 
subsistence purposes.

Endangered Species Act (ESA)

    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 Region, 
Protected Resource Division Office, whenever we propose to authorize 
take for endangered or threatened species.
    NMFS is authorizing take of western stock Steller sea lions under 
the MMPA. For purposes of the Endangered Species Act, the NMFS Permits 
and Conservation Division has determined that while this action may 
affect western DPS Steller sea lions, it is not likely to adversely 
affect the DPS because we do not expect Steller sea lions to use 
habitats near Whittier during the season when construction will occur. 
On December 4, 2019, per section 7 of the ESA, the NMFS Alaska Region 
concurred that the proposed action may affect, but is not likely to 
adversely affect, the western distinct population segment (DPS) of 
Steller sea lions (Eumetopias jubatus) or the Mexico or Western North 
Pacific DPSs of humpback whale (Megaptera novaeangliae).

Authorization

    NMFS has issued an IHA to ADOT&PF for the incidental take of marine 
mammals due to in-water construction work associated with the Whittier 
Ferry Terminal ACF Modification project in Whittier, AK from February 
1, 2020 to January 31, 2021, provided the previously mentioned 
mitigation, monitoring and reporting requirements are incorporated.

    Dated: December 23, 2019.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2019-28213 Filed 12-30-19; 8:45 am]
 BILLING CODE 3510-22-P