Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Crowley Kotzebue Dock Upgrade Project in Kotzebue, Alaska, 23766-23790 [2020-09040]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 85, Number 83 (Wednesday, April 29, 2020)]
[Notices]
[Pages 23766-23790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09040]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA125]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Crowley Kotzebue Dock Upgrade 
Project in Kotzebue, Alaska

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

ACTION: Notice; proposed incidental harassment authorization; request 
for comments on proposed authorization and possible renewal.

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SUMMARY: NMFS has received a request from Crowley Fuels, LLC for 
authorization to take marine mammals incidental to the Crowley Kotzebue 
Dock Upgrade in Kotzebue, Alaska. Pursuant to the Marine Mammal 
Protection Act (MMPA), NMFS is requesting comments on its proposal to 
issue an incidental harassment authorization (IHA) to incidentally take 
marine mammals during the specified activities. NMFS is also requesting 
comments on a possible one-year renewal that could be issued under 
certain circumstances and if all requirements are met, as described in 
Request for Public Comments at the end of this notice. NMFS will 
consider public comments prior to making any final decision on the 
issuance of the requested MMPA authorizations and agency responses will 
be summarized in the final notice of our decision.

DATES: Comments and information must be received no later than May 29, 
2020.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Physical comments should be sent to 
1315 East-West Highway, Silver Spring, MD 20910 and electronic comments 
should be sent to [email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments received electronically, including 
all attachments, must not exceed a 25-megabyte file size. Attachments 
to electronic comments will be accepted in Microsoft Word or Excel or 
Adobe PDF file formats only. All comments received are a part of the 
public record and will generally be posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All personal identifying 
information (e.g., name, address) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.

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

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an IHA) 
with respect to potential impacts on the human environment. This action 
is consistent with categories of activities identified in Categorical 
Exclusion B4 (IHAs 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 preliminarily determined

[[Page 23767]]

that the issuance of the proposed IHA qualifies to be categorically 
excluded from further NEPA review.
    We will review all comments submitted in response to this notice 
prior to concluding our NEPA process or making a final decision on the 
IHA request.

Summary of Request

    On January 13, 2020, NMFS received a request from Crowley Fuels, 
LLC (Crowley) for an IHA to take marine mammals incidental to pile 
driving activities at the Crowley Kotzebue Dock. The application was 
deemed adequate and complete on April 9, 2020. Crowley's request is for 
take of a small number of nine species of marine mammals, by Level B 
harassment only. Neither Crowley nor NMFS expects serious injury or 
mortality to result from this activity and, therefore, an IHA is 
appropriate.

Description of Proposed Activity

Overview

    Crowley is proposing to upgrade their existing sheet pile bulkhead 
dock for vessel-based fuel and cargo distribution in Kotzebue, Alaska, 
as the existing bulkhead at the dock is corroding and has reached the 
end of its useful service life. Crowley is proposing to construct a new 
dock wall on the water ward side of the existing dock. Vibratory pile 
driving would introduce underwater sounds that may result in take, by 
Level B harassment, of marine mammals across approximately 52.5 km\2\ 
(20.3 mi\2\) in Kotzebue Sound. Crowley is not proposing to conduct any 
demolition of the current facility.
    Crowley's Kotzebue Dock provides berthing for the company's bulk 
fueling operations. The dock also provides essential access for 
community barges, cargo-loading, transloading, subsistence harvest, and 
other community events; all of which are necessary operations to the 
City of Kotzebue, its residents, and adjacent villages supported by 
Kotzebue's connections to marine-based transportation.
Dates and Duration
    The proposed IHA would be effective from June 1, 2020 to May 31, 
2021. Work would take place between June and September 2020 with 
approximately 87 days of in-water work during daylight hours. Pile 
driving is expected to occur for approximately 100 minutes per day. 
Project activities are planned to avoid traditional ice seal harvest 
windows in an effort to avoid negative impacts to subsistence hunting.
Specific Geographic Region
    The Crowley Kotzebue Dock Upgrade Project is located in 
Qikiqta[gdot]ruq (Kotzebue) on the northernmost shoreline of the 
Baldwin Peninsula between Kotzebue Sound and Hotham Inlet (Figure 1). 
Kotzebue Sound is an embayment on the western coast of Alaska of the 
Chukchi Sea, which is itself an embayment of the Arctic Ocean 
(extending from Wrangel Island to Point Barrow and south to the Bering 
Strait). The Sound is an extremely shallow marine waterbody (averaging 
less than 20 meters deep) bounded by the Seward Peninsula to the south 
and west, the Baldwin Peninsula to the east, and the Noatak River delta 
and Cape Krusenstern to the north. Marine waters here are warmer than 
usual for the Chukchi Sea and are affected by the Alaska Coastal 
current and by the significant freshwater input of the Selawik, Noatak, 
and Kobuk Rivers. Basin sediments in the Sound are typically gravelly 
mud or sandy mud (Audubon, 2010).

[[Page 23768]]

[GRAPHIC] [TIFF OMITTED] TN29AP20.000

Detailed Description of Specific Activity
    The new dock will be constructed with an OPEN CELL SHEET 
PILE[supreg] (OCSP) structure, a bulkhead utilizing flat-web sheet 
piles, fabricated connector wyes, and anchor piles. This type of 
bulkhead is a flexible steel sheet pile membrane supported by soil 
contact with the embedded steel pile tail walls. No demolition is 
planned for this project, so the new sheet pile bulkhead will provide 
additional protection for the existing fuel header system and 
associated piping. A new potable water service and 120/208-volt power 
service will be provided at the south end of the new dock.
    The dock will be constructed one cell at a time, with only one 
hammer operating at a time. Temporary piles for bulkhead template 
structures will be installed to aid with sheet pile cell construction 
and will be removed after the permanent sheet piles or support piles 
have been installed. Temporary template piles will be either steel pipe 
piles (18-inch or smaller) or H-piles (14-inch or smaller). Temporary 
template piles will be driven with a vibratory hammer. All piles are 
expected to be installed using land-based crane and a vibratory hammer. 
Crowley anticipates that the largest size vibratory hammer used for the 
project will be an APE 200-6 (eccentric moment of 6,600 inch-pounds) or 
comparable vibratory hammer from another manufacturer such as ICE or 
HPSI. Crowley estimates that no more than 10 template piles will be 
installed per day. Temporary piles will be removed following bulkhead 
construction using vibratory extraction methods. Means and methods for 
extraction will be similar to temporary pile installation.
    The new sheet pile bulkhead dock consists of 14 OCSP cells. Crowley 
will install the sheet piles in pairs using the vibratory hammer on 
land. After all the piles for a sheet pile cell have been installed, 
Crowley will place clean gravel fill within the cell. This process will 
continue sequentially until all of the sheet pile cells are installed 
and backfilled. Fourteen-inch H-pile anchor

[[Page 23769]]

piles with welded connectors to secure the structure will be installed 
at the end of each sheet pile tail wall using a vibratory hammer on 
land.
    Crowley will transport gravel fill from an off-site quarry to the 
project site using loaders, dump trucks, and dozers within the project 
footprint as needed. It will be placed within the cells from the shore 
(or occasionally a barge) using the same equipment and will be finished 
using roller compactors and graders. Because the gravel fill will be 
placed behind the sheet piles, we do not expect it to result in take of 
marine mammals, and it will not be discussed further in this notice.
    Twenty-four-inch pipe piles will be installed at nine locations 
along the dock face to support mooring bollards. Bollard piles will be 
driven into completed, compacted cells using a vibratory hammer on 
land. Therefore, we do not expect pile driving of the bollard piles to 
result in in-water impacts to marine mammals, and we do not discuss 
bollard piles further in this document.
    A new potable water service and 120/208-volt power service will be 
provided near the south end of the new dock. The potable water service 
will consist of a buried two-inch diameter HDPE line. The power service 
will be routed in a buried conduit from the nearby Crowley Dock Office. 
We do not expect installation of these services to result in impacts to 
marine mammals, and we do not consider them further in this document.

                                       Table 1--In-Water Sound Source Levels and Quantities for Project Activities
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                                                                            Source level (at 10m)
                  Pile size                       Quantity    ------------------------------------------------             Literature source
                                                                   dB RMS          dB SEL          dB peak
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Temporary Template Piles (18-inch Steel Pipe          \a\ 170           158.0  ..............  ..............  Caltrans, 2015.\b\
 Piles).
ALTERNATE Temporary Template pile (14-inch H-         \a\ 170           158.8  ..............  ..............  Caltrans, 2015.\c\
 pile).
Anchor Piles (14'' HP14x89 or Similar).......              15           158.8  ..............  ..............  Caltrans, 2015.\c\
Sheet Piles (20-inch PS31 or Similar)........             650           160.7  ..............  ..............  Unisea, 2015.
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\a\ Each pile will be installed and removed.
\b\ Average of three 18-inch pipe piles at Prichard Lake Pumping Plant.
\c\ Port of Alaska Test Pile Project.


                     Table 2--Airborne Source Levels
------------------------------------------------------------------------
                                Source  level
            Source                   \a\           Literature source
------------------------------------------------------------------------
Temporary Template Piles (18-            87.5  Laughlin (2010).
 inch Steel Pipe Piles).
ALTERNATE Temporary Template             87.5  Laughlin (2010).\b\
 Pile (14-inch H-pile).
Anchor Piles (14'' HP14x89 or            87.5  Laughlin (2010).\b\
 Similar).
Sheet Piles (20-inch PS31 or             96.4  Laughlin (2010).\c\
 Similar).
Bollard Piles................            92.1  NAVFAC (2015).\d\
Gravel Fill..................            96.4  Laughlin (2010).\c\
------------------------------------------------------------------------
\a\ Source levels for airborne noise sources are reported in dBL5EQ re:
  20 [mu]Pa (micropascal) @15 meters.
\b\ Data for airborne noise levels of vibratory driving of 18-inch piles
  from Laughlin (2010) was measured at 87.5 dBL5EQ re: 20 [mu]Pa at 15
  meters. This source level is used as a proxy for the 14-inch H piles.
\c\ Data for airborne noise levels from sheet pile driving and gravel
  fill were not available, so the source level for vibratory
  installation of 30-inch piles from Laughlin (2010) was used as a
  proxy.
\d\ Airborne noise levels for vibratory driving of 24-inch pipe piles
  were measured during the Bangor Test Pile Program at 92 RMS LEQ dB re:
  20 [mu]Pa at 15.2 meters (NAVFAC 2015).

    Occasionally individual seals haul out on beach areas northeast of 
the project. However, anticipated source levels for airborne noises are 
not anticipated to exceed disturbance thresholds for non-harbor seal 
pinnipeds beyond the 10-meter shutdown zone that will be implemented 
during all project activities, so we do not expect Level B harassment 
takes from airborne sounds.
    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see Proposed 
Mitigation and Proposed Monitoring and Reporting).

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 3 lists all species or stocks for which take is expected and 
proposed to be authorized for this action, 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

[[Page 23770]]

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. 
2018 SARs and draft 2019 SARs (e.g., Muto et al., 2019). All values 
presented in Table 3 are the most recent available at the time of 
publication and are available in the 2018 SARs (Muto et al., 2019a, 
Carretta et al., 2019a) and draft 2019 SARs (Muto et al., 2019b, 
Carretta et al., 2019b) (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

                    Table 3--Species That Spatially Co-Occur With the Activity to the Degree That Take Is Reasonably Likely To Occur
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                                                                                                             Stock abundance (CV,
             Common name                  Scientific name              Stock           ESA/  MMPA  status;     Nmin, most recent       PBR     Annual M/
                                                                                      Strategic  (Y/N) \1\   abundance survey) \2\               SI \3\
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                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Eschrichtiidae:
    Gray whale......................  Eschrichtius robustus.  Eastern North Pacific.  -/- ; N               26,960 (0.05, 25,849,         801        139
                                                                                                             2016).
Family Balaenopteridae (rorquals):
    Minke whale.....................  Balaenoptera            Alaska................  -/- ; N               NA (see SAR, NA, see          UND          0
                                       acutorostra.                                                          SAR).
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                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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Family Delphinidae:
    Beluga whale....................  Delphinapterus leucas.  Beaufort Sea..........  -/- ; N               39,258 (0.229, NA,            UND        139
                                                                                                             1992).
                                                              Eastern Chukchi Sea...  -/- ; N               20,752 (0.7, 12,194,          244         67
                                                                                                             2012).
    Killer whale....................  Orcinus orca..........  Gulf of Alaska,         -/- ; N               587 c (NA, 587, 2012).       5.87          1
                                                               Aleutian Islands,
                                                               Bering Sea Transient.
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena.....  Bering Sea............  -/- ; Y               48,215 (0.223, NA,            UND        0.2
                                                                                                             1999).
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                                                         Order Carnivora--Superfamily Pinnipedia
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Family Phocidae (earless seals):
    Bearded seal....................  Erignathus barbatus...  Beringia..............  T/D ; Y               see SAR (see SAR, see     See SAR        557
                                                                                                             SAR, 2013.
    Ringed seal.....................  Phoca (pusa) hispida..  Alaska................  T/D ; Y               see SAR (see SAR, see       5,100        863
                                                                                                             SAR, 2013.
    Spotted seal....................  Phoca largha..........  Alaska................  -/- ; N               461,625 (see SAR,          12,697        329
                                                                                                             423,237, 2013).
    Ribbon seal.....................  Histriophoca fasciata.  Alaska................  -/- ; N               184,697 (see SAR,           9,785        3.9
                                                                                                             163,086, 2013).
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\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.
\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.

    As indicated above, all nine species (with 10 managed stocks) in 
Table 3 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur, and we have proposed 
authorizing it. All species that could potentially occur in the 
proposed survey areas are included in Table 2 of the IHA application. 
While Eastern North Pacific Alaska Resident Stock killer whales, 
bowhead whales, fin whales, humpback whales, and narwhals could 
potentially occur in the area, the spatial occurrence of these species 
is such that take is not expected to occur, and they are not discussed 
further beyond the explanation provided here.
    NMFS was unable to locate evidence supporting the presence of 
resident killer whales within Kotzebue Sound. Based on evidence of 
predation on marine mammals, NMFS expects killer whales within the 
Sound to be from transient stocks. Additionally, Bowhead whales (Braham 
et al., 1984), humpback whales, and fin whales (Clarke et al., 2013) do 
not typically occur within the area that may incur noise from this 
project above thresholds that may result in Level B harassment of these 
species. As noted in the Specific Geographic Region section, Kotzebue 
Sound is relatively shallow, further reducing the likelihood for these 
species to occur. The narwhal occurs in Canadian waters and 
occasionally in the Alaskan Beaufort Sea and the Chukchi Sea, but it is 
considered extralimital in U.S. waters and is not expected to be 
encountered. There are scattered records of narwhal in Alaskan waters, 
including reports by subsistence hunters (Reeves et al., 2002); 
however, we do not expect narwhals to occur in Kotzebue Sound during 
the project period.
    In addition, the polar bear (Ursus maritimus) and Pacific walrus 
(Odobenus rosmarus divergens) may occur in the project area. However, 
both species are managed by the U.S. Fish and Wildlife Service and are 
not considered further in this document.

Gray Whale

    Gray whales are distributed throughout the North Pacific Ocean and 
are found primarily in shallow coastal waters (NMFS, 2019d and Carretta 
et al., 2019). There are currently two populations of gray whales in 
the North Pacific Ocean: The eastern North Pacific population and the 
endangered western North Pacific Population.
    Only the eastern North Pacific populations range extends into the 
project areas. Most whales in the eastern population spend the summer 
and fall months feeding in the Chukchi, Beaufort, and northwestern 
Bering Seas (Carretta et al., 2019). Despite the shallow waters, gray 
whales feed in the outer area of Kotzebue Sound between May and 
November (Audubon, 2010). Gray whales were reported as present and 
feeding (sometimes in large numbers) in Kotzebue Sound and a gray whale 
was harvested by whale hunters at Sisualiq in 1980 (Frost et al., 
1983).
    There have been five reports of gray whale strandings within inner 
Kotzebue Sound between 2010 and 2019, including one in Hotham Inlet. An 
additional unidentified large whale was reported stranded south of Cape 
Blossom in 2018 (Savage, pers. comm. 2019).
    We are unaware of any information indicating that Kotzebue Sound is 
an area of particular biological importance for gray whales. Clarke et 
al. (2015) identified ``biologically important areas'' for cetaceans in 
the Arctic region,

[[Page 23771]]

including reproductive, feeding, and migratory areas, as well as areas 
where small and resident populations reside. The authors did not 
identify Kotzebue Sound as an important area for gray whales.

Minke Whale

    Minke whales are widely distributed throughout the northern 
hemisphere and are found in both the Pacific and Atlantic oceans. Minke 
whales in Alaska are considered migratory and typically occur in the 
Arctic during the summer months, and near the equator during winter 
months (NMFS, 2019e). There have been reports of Minke whales as 
sometimes present in Kotzebue Sound during the summer months. Two 
individuals beached in the mouth of the Buckland River in autumn during 
the late 1970s (Frost et al., 1983). Minke whales are believed to calve 
in the winter months (NMFS, 2019e); however, little is known about 
their breeding areas. We are unaware of any information indicating that 
Kotzebue Sound is an area of particular biological importance for minke 
whales. Clarke et al. (2015) identified ``biologically important 
areas'' for cetaceans in the Arctic region, including reproductive, 
feeding, and migratory areas, as well as areas where small and resident 
populations reside, and no areas were identified for minke whales.

Beluga Whale

    Five beluga whale stocks occur in Alaska: The Eastern Chukchi Sea 
Stock, the Beaufort Sea Stock, the Eastern Bering Sea Stock, the 
Bristol Bay Stock and the Cook Inlet Stock. While each stock is unique 
and isolated from one another genetically and/or physically there is 
some crossover of the Eastern Chukchi Sea and the Beaufort Sea Stock 
during the late summer. The Eastern Chukchi Sea is the primary stock in 
the project area; however, the Beaufort Sea Stock may also occur in the 
project area.
    Beluga whales are distributed throughout seasonally ice-covered 
Arctic and subarctic waters of the Northern Hemisphere both offshore 
and in coastal waters (Muto et al., 2019). Factors including ice cover, 
tidal conditions, access to prey, temperature, and human interactions 
affect the seasonal distribution (Muto et al., 2019).
    The Beaufort Sea and Eastern Chukchi Sea Stocks of beluga whales 
migrate seasonally between the Bering and Beaufort/Chukchi Seas (Muto 
et al., 2019). The Beaufort Sea Stock leaves the Bering Sea in early 
spring and move through the Chukchi Sea and into the Canadian waters of 
the Beaufort Sea. In late fall this stock returns to the Bering Sea. 
The Eastern Chukchi Sea Stock move into the Chukchi Sea and western 
Beaufort Sea for the summer months and migrate to the Bering Sea in the 
fall. Belugas from the Eastern Chukchi Sea Stock are known to move into 
coastal areas in late June until about mid-July (Muto et al., 2019).
    Acoustic surveys for beluga in the northeastern Chukchi Sea 
detected them in every month between April and November (Delarue et 
al., 2011). As ice begins to break up between late May and mid-June, 
belugas move into Kotzebue Sound from the northwest to Sisualiq Spit 
and then down the Baldwin Peninsula to Escholtz Bay. Belugas continue 
to move throughout the Sound until winter (Northwest Arctic Borough 
[NAB], 2016; Audubon, 2010). Reports of belugas at Sisualiq include 
groups of 75-100 individuals, described as moving clockwise into the 
Sound. Along the west coast of Baldwin peninsula, they have been 
reported in groups of 200-300, culminating in groups of 1,000 or more 
in Eschscholtz Bay and near the Chamisso Islands (Frost et al., 1983).
    Belugas return to their birth areas during the summer where they 
give birth every two to three years. They give birth in the warmer 
waters during the summer where the calves, lacking blubber to protect 
them from cold water, can remain in warmer, shallow waters of tidal 
flats and estuaries. Females reach breeding age between 9 and 14 years, 
slightly earlier than males. Mating is believed to occur in the late 
winter and early spring months, either during the migration or at the 
wintering grounds (NMFS, 2019f). Belugas in Kotzebue Sound are known to 
concentrate to give birth in Eschscholtz Bay, with smaller numbers 
giving birth in Selawik Lake or Goodhope Bay (NAB, 2016). The NAB 
subsistence mapping project identified Kotzebue as an important use 
area for beluga feeding and birthing (both outside of the calculated 
Level B harassment zone for this project) as well as rearing.
    Subsistence users and researchers have recently noted a significant 
decrease in the distribution and activity of beluga whales in the 
Sound. They suspect that an increase in killer whale activity within 
the bay may be responsible as evidence indicates that increased 
predation may be encouraging silence in the belugas that remain. 
(Huntington et al., 2016b, Eurich, 2016).

Killer Whale

    Killer whales occur in every ocean of the world (NMFS, 2019b); 
however, killer whales occur at higher densities in colder waters of 
both hemispheres (Muto et al., 2019). Killer whales occur throughout 
the North Pacific and along the entire coast of Alaska. Resident killer 
whales have large ranges and in the North Pacific occur year-round in 
ice-free waters of the Chukchi and Bering Seas, the Aleutian Islands 
and the Gulf of Alaska (Wynne, 2017).
    Five killer whale stocks occur in Alaskan waters: The Eastern North 
Pacific (ENP) Alaska Resident Stock; the ENP Northern Resident Stock; 
the ENP Gulf of Alaska, Aleutian Islands, and Bering Sea Transient 
Stock; the AT1 Transient Stock; and the West Coast Transient Stock 
(Muto et al., 2019). None of the stocks have ranges shown extending 
into the Chukchi Sea (Muto et al., 2019); however, sightings of killer 
whales have been reported in Kotzebue Sound in the 1980s and recently 
in 2008 (Eruich, 2016; Lowry et al., 1987). The ENP Alaska Resident 
Stock and the Gulf of Alaska, Aleutian Islands, and Bering Sea 
Transient Stock are the only stocks with a known range into the Bering 
Sea, and the transient stock's range may extend into the Chukchi Sea 
and Kotzebue Sound.
    Killer whales have been reported hunting beluga whales and even 
grey or minke whales in Eschscholtz Bay and the mouth of the Buckland 
River as early as the 1970s (Frost et al., 1983). Recently, subsistence 
users and researchers have noted a significant decrease in the 
distribution and activity of beluga whales in the Sound. They believe 
that an increase in killer whale activity within the Bay may be 
responsible as evidence indicates that increased predation may be 
encouraging silence in the belugas that remain (Huntington et al., 
2016b, Eurich 2016).
    Photo identification of individuals spotted in the southern Chukchi 
sea during transect surveys (during which at least 37 individuals were 
spotted six times) identified transient type killer whales. Based on 
reports of predation of belugas and harbor porpoises, it appears likely 
individuals found in the southern Chukchi Sea and Kotzebue Sound are of 
the transient, mammal-eating population of the Gulf of Alaska, Aleutian 
Islands, and Bering Sea Transient Stock (Clarke et al., 2013).

Harbor Porpoise

    In the eastern North Pacific Ocean, harbor porpoises range from 
Point Barrow, along the Alaska coast, and down the west coast of North 
America to Point Conception, California. NMFS currently recognizes 
three stocks of harbor porpoise within this range (Muto et al., 2019). 
The Bering Sea stock occurs within the project area, ranging from 
throughout the Aleutian Islands

[[Page 23772]]

and into all waters north of Unimak Pass.
    The harbor porpoise frequents nearshore waters and coastal 
embayments throughout their range, including bays, harbors, estuaries, 
and fjords less than 650 feet (198 m) deep (NMFS, 2018g). The presence 
of harbor porpoises was detected in Kotzebue Sound between September 
and November and between January and March during acoustic monitoring 
in 2014 & 2015. Porpoises had not previously been reported under the 
ice in the Chukchi (Whiting et al., 2019).

Bearded Seal

    There are two recognized subspecies of the bearded seal: Erignathus 
barbatus barbatus and E. b. nauticus. The E.b. nauticus subspecies 
occurs in the project area and consists of two DPSs: Beringia and 
Okhotsk. The Alaska Stock of bearded seals is defined as the portion of 
the Beringia DPS found in U.S. Waters (Muto et al., 2019).
    Bearded seals have a circumpolar distribution and their normal 
range extends from the Arctic Ocean to Sakhalin Island or from 80[deg] 
N to 45[deg] N. In U.S. waters, bearded seals occur across the 
continental shelf throughout the Bering, Chukchi, and Beaufort Seas 
(Muto et al., 2019).
    Many bearded seals spend the winter months in the Bering Sea and 
then move north through the Bering Strait between late April and June. 
They then continue into the Chukchi Sea where they spend the summer 
months along the fragmented and drifting ice pack. Bearded seals have 
been observed in the Chukchi Sea year-round when sea ice coverage was 
greater than 50 percent. Juveniles may not migrate north to follow the 
ice, as most adults do, and may remain along the coasts of the Bering 
and Chukchi Seas. Apart from these juveniles, seasonal distribution 
appears to be correlated with the ice pack (Muto et al., 2019). Bearded 
seals are most common in the Sound during spring, before the more 
aggressive spotted seals arrive and drive them from the area until the 
juveniles return to the sound in fall (Huntington et al., 2016). 
Juvenile (birth-year) seals tend to remain in Kotzebue Sound near 
Sisualiq Spit and the mouth of the Noatak River through the summer 
(NAB, 2016).
    Recently mapped ranges show adult bearded seals in Kotzebue Sound 
from March until June and returning in October and November (Audubon, 
2010). The NAB (2016) has identified the project area, and more 
broadly, Kotzebue Sound, as a bearded seal important use area for 
feeding and migration. Additionally, they identified a high-density 
feeding area north of the project area, along Sisualiq Spit (see 
application, Figure 5).
    Bearded seals consume a diet consisting primarily of benthic 
organisms such as demersal fishes and epifaunal and infaunal 
invertebrates (Muto et al., 2019). Bearded seals feed throughout 
Kotzebue Sound, but prime feeding grounds are off the Chamisso Islands, 
where clam and shrimp are abundant (Huntington et al., 2016).
    The primary threat to bearded seals is a loss of sea-ice habitat 
due to climate change. Lack of suitable ice cover with access to 
shallow feeding areas during summer months during which bearded seals 
whelp, nurse, and molt potentially decreases food availability and 
increases predation rates. The potential for habitat modifications due 
to ocean acidification also pose a potential risk to bearded seals due 
to changes in prey availability, although this possibility is complex 
and less threatening to bearded seals due to their apparent dietary 
flexibility. Increases in shipping and habitat modification for 
development also pose a potential future risk to bearded seal survival 
(Muto et al., 2019). Observations of low-snow years found that 
decreased snow protection around pupping dens left seal pups vulnerable 
to shore predators, such as jaegers, ravens, and fox (Huntington et 
al., 2016).

Ringed Seal

    Of five recognized subspecies of ringed seals, P. h. hispida is the 
only subspecies occurring in Alaska (Muto et al., 2019). Ringed seals 
occur throughout Arctic waters in all ``seasonally ice-covered seas.'' 
In winter and early spring when sea ice is at its maximum coverage, 
they occur in the northern Bering Sea, in Norton and Kotzebue Sounds, 
and throughout the Chukchi and Beaufort Seas. Seasonal movement 
patterns are not well documented; however, they generally winter in the 
Bering and Chukchi Seas and are believed to migrate north in spring as 
the seasonal ice melts and retreats. Presumably, they continue moving 
north and spend summers in the pack ice of the northern Chukchi and 
Beaufort Seas. They may also appear on nearshore ice remnants in the 
Beaufort Sea. Movement becomes increasingly restricted in the fall as 
freeze-up progresses, and seals are thought move south and west from 
summer grounds in the Beaufort Sea along with the ice pack (Muto et 
al., 2019).
    Cooperative satellite tagging efforts between local hunting experts 
and biologists have found that, while ringed seals are present in 
Kotzebue Sound year-round, juveniles are more likely to travel long 
distances while adults stay closer to the Sound. Ringed seals are 
common in the Sound during spring before the more aggressive spotted 
seals arrive, driving them from the area until they return to the Sound 
in fall (Huntington et al., 2016). Recently mapped ranges show ringed 
seals in Kotzebue Sound from February until June and returning in 
October and November (Audubon, 2010).
    The NAB (2016) has identified the project area, and more broadly, 
Kotzebue Sound, as an important use area for ringed seal feeding. 
Additionally, they identified a high-density feeding area south of the 
project area, along the southern end of Baldwin Peninsula (see 
application, Figure 6).
    The primary threat to ringed seals is a loss of sea-ice habitat due 
to climate change. Observations of low-snow years found that decreased 
snow protection around pupping dens left seal pups vulnerable to shore 
predators, such as jaegers, ravens, and fox (Huntington et al., 2016). 
Lack of suitable ice cover with access to shallow feeding areas during 
summer months during which ringed seals whelp, nurse, and molt 
potentially decreases food availability and increases predation rates. 
The potential for habitat modifications due to ocean acidification also 
pose a potential risk to ringed seals due to changes in prey 
availability. Increases in shipping and habitat modification for 
development also pose a potential future risk to ringed seal survival 
(Muto et al., 2019).

Spotted Seal

    Spotted seals are an important resource for Alaska Native 
subsistence hunters. Approximately 64 Alaska Native communities in 
western and northern Alaska, from Bristol Bay to the Beaufort Sea, 
regularly harvest ice seals (Ice Seal Committee, 2016).
    Spotted seals occur along the continental shelf of the Bering, 
Chukchi, and Beaufort Seas in Alaska. They also occur in the Sea of 
Okhotsk south to the western Sea of Japan and northern Yellow Sea. 
Spotted seals are grouped into three Distinct Population Segments (DPS) 
based on their breeding area: The Bering Sea DPS, the Okhotsk DPS and 
the Southern DPS. The Alaska Stock of spotted seals is defined as the 
portion of the Bering Sea DPS that is U.S. waters. The Bering Sea DPS 
includes breeding areas in the Bering Sea and portions of the East 
Siberian, Chukchi, and Beaufort Seas (Muto et al., 2019).
    The distribution of spotted seals correlate seasonally to the life 
periods when spotted seals haul out land and

[[Page 23773]]

when the spotted seals haul out on sea ice for whelping, nursing, 
breeding and molting. From the late-fall through spring, spotted seals 
occur where sea ice is available for them to haul out. From summer 
through fall, the seasonal sea ice has melted and spotted seals use 
land for hauling out (Muto et al., 2019). An estimated 69,000-101,000 
spotted seals from the eastern Bering Sea use the Chukchi Sea during 
the spring open-water period (Boveng et al., 2017). In 1976 aerial 
surveys of spotted seals in the Bering Sea, densities ranged between 
0.013 and 1.834 seals per seals per km\2\ (Braham et al., 1984).
    Spotted seals haul out between June and December in Krusenstern 
Lagoon, the Noatak River delta, the tip of the Baldwin Peninsula, and 
Cape Espenberg (Audubon, 2010). Subsistence users report that spotted 
seals move into the area in July, following fish runs into the Sound 
and up the Noatak River (NAB, 2016). Spotted seals in the Chamisso 
Islands were reported in groups of up to 20, but they may reach groups 
of over 1,000 at Cape Espenberg (Frost et al., 1983).
    The NAB (2016) has identified the project area, and more broadly, 
Kotzebue Sound, as an important use area for spotted seal feeding, 
birthing, and rearing. Specifically, the project overlaps with a high-
density feeding that extends from Kotzebue across the channel to 
Sisualiq Spit (see application, Figure 6). Additionally, NAB has 
identified two important haulouts, one adjacent to the project area to 
the south, and one north of the project area at the mouth of the Noatak 
River.

Ribbon Seal

    Ribbon seals range from the North Pacific Ocean and Bering Sea into 
the Chukchi and western Beaufort Seas in Alaska. Ribbon seals occur on 
Bering Sea from late March to early May. From May to mid-July, the ice 
recedes, and ribbon seals move further north into the Bering Strait and 
the southern part of the Chukchi Sea (Muto et al., 2019). An estimated 
6,000-25,000 ribbon seals from the eastern Bering Sea use the Chukchi 
Sea during the spring open-water period (Boveng et al., 2017).
    Ribbon seals reach breeding age between one and five years of age 
and give birth to a single pup on offshore season sea ice in April and 
early May. Weaning of most ribbon seal pups is completed by mid-May. 
Mating occurs soon after weaning (NMFS, 2019h).
    Ribbon seals are becoming increasingly rare in Kotzebue Sound 
(Huntington et al., 2016) Range mapping of the ribbon seal shows them 
present in the project vicinity from June to December; however, they 
typically concentrate further offshore, outside of the Sound (Audubon, 
2010).

Unusual Mortality Events (UME)

    A UME is defined under the MMPA as ``a stranding that is 
unexpected; involves a significant die-off of any marine mammal 
population; and demands immediate response.'' Currently, there are 
ongoing investigations in Alaska involving gray whales and ice seals.
    Since January 1, 2019, elevated gray whale strandings have occurred 
along the west coast of North America from Mexico through Alaska. This 
event has been declared an Unusual Mortality Event (UME), though a 
cause has not yet been determined. More information is available at 
https://www.fisheries.noaa.gov/national/marine-life-distress/2019-2020-gray-whale-unusual-mortality-event-along-west-coast.
    Since June 1, 2018, elevated ice seal strandings have occurred in 
the Bering and Chukchi seas in Alaska. This event has been declared an 
Unusual Mortality Event (UME), though a cause has not yet been 
determined. More information is available at https://www.fisheries.noaa.gov/national/marine-life-distress/2018-2020-ice-seal-unusual-mortality-event-alaska.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al., (2007) recommended that marine mammals be 
divided into functional hearing groups based on directly measured or 
estimated hearing ranges based on available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al., (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in Table 4.

           Table 4--Marine Mammal Hearing Groups (NMFS, 2018)
------------------------------------------------------------------------
               Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen         7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans (dolphins,      150 Hz to 160 kHz.
 toothed whales, beaked whales, bottlenose
 whales).
High-frequency (HF) cetaceans (true          275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus cruciger &
 L. australis).
Phocid pinnipeds (PW) (underwater) (true     50 Hz to 86 kHz.
 seals).
Otariid pinnipeds (OW) (underwater) (sea     60 Hz to 39 kHz.
 lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al., 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al., (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges,

[[Page 23774]]

please see NMFS (2018) for a review of available information. Nine 
marine mammal species (five cetacean and four phocid pinniped species) 
have the reasonable potential to co-occur with the proposed survey 
activities. Please refer to Table 3. Of the cetacean species that may 
be present, two are classified as low-frequency cetaceans (i.e., gray 
whale and minke whale), two are classified as mid-frequency cetaceans 
(i.e., beluga whale and killer whale), and one is classified as a high-
frequency cetacean (i.e., harbor porpoise).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The Estimated Take section later in this document 
includes a quantitative analysis of the number of individuals that are 
expected to be taken by this activity. The Negligible Impact Analysis 
and Determination section considers the content of this section, the 
Estimated Take section, and the Proposed Mitigation section, to draw 
conclusions regarding the likely impacts of these activities on the 
reproductive success or survivorship of individuals and how those 
impacts on individuals are likely to impact marine mammal species or 
stocks.

Description of Sound Sources

    The marine soundscape is comprised of both ambient and 
anthropogenic sounds. Ambient sound is defined as the all-encompassing 
sound in a given place and is usually a composite of sound from many 
sources both near and far. The sound level of an area is defined by the 
total acoustical energy being generated by known and unknown sources. 
These sources may include physical (e.g., waves, wind, precipitation, 
earthquakes, ice, atmospheric sound), biological (e.g., sounds produced 
by marine mammals, fish, and invertebrates), and anthropogenic sound 
(e.g., vessels, dredging, aircraft, construction).
    The sum of the various natural and anthropogenic sound sources at 
any given location and time--which comprise ``ambient'' or 
``background'' sound--depends not only on the source levels (as 
determined by current weather conditions and levels of biological and 
shipping activity) but also on the ability of sound to propagate 
through the environment. In turn, sound propagation is dependent on the 
spatially and temporally varying properties of the water column and sea 
floor, and is frequency-dependent. As a result of the dependence on a 
large number of varying factors, ambient sound levels can be expected 
to vary widely over both coarse and fine spatial and temporal scales. 
Sound levels at a given frequency and location can vary by 10-20 dB 
from day to day (Richardson et al., 1995). The result is that, 
depending on the source type and its intensity, sound from the 
specified activity may be a negligible addition to the local 
environment or could form a distinctive signal that may affect marine 
mammals.
    In-water construction activities associated with the project would 
include vibratory pile driving and pile removal and impact pile 
driving. The sounds produced by these activities fall into one of two 
general sound types: Impulsive and non-impulsive. Impulsive sounds 
(e.g., explosions, gunshots, sonic booms, impact pile driving) are 
typically transient, brief (less than one second), broadband, and 
consist of high peak sound pressure with rapid rise time and rapid 
decay (ANSI 1986; NIOSH 1998; ANSI 2005; NMFS, 2018). Non-impulsive 
sounds (e.g. aircraft, machinery operations such as drilling or 
dredging, vibratory pile driving, and active sonar systems) can be 
broadband, narrowband or tonal, brief or prolonged (continuous or 
intermittent), and typically do not have the high peak sound pressure 
with raid rise/decay time that impulsive sounds do (ANSI 1995; NIOSH 
1998; NMFS 2018). The distinction between these two sound types is 
important because they have differing potential to cause physical 
effects, particularly with regard to hearing (e.g., Ward 1997 in 
Southall et al., 2007).
    Two types of pile hammers would be used on this project: Impact and 
vibratory. Impact hammers operate by repeatedly dropping a heavy piston 
onto a pile to drive the pile into the substrate. Sound generated by 
impact hammers is characterized by rapid rise times and high peak 
levels, a potentially injurious combination (Hastings and Popper, 
2005). Vibratory hammers install piles by vibrating them and allowing 
the weight of the hammer to push them into the sediment. Vibratory 
hammers produce significantly less sound than impact hammers. Peak 
sound pressure levels (SPLs) may be 180 dB or greater, but are 
generally 10 to 20 dB lower than SPLs generated during impact pile 
driving of the same-sized pile (Oestman et al., 2009). Rise time is 
slower, reducing the probability and severity of injury, and sound 
energy is distributed over a greater amount of time (Nedwell and 
Edwards 2002; Carlson et al., 2005).
    The likely or possible impacts of Crowley's proposed activity on 
marine mammals could involve both non-acoustic and acoustic stressors. 
Potential non-acoustic stressors could result from the physical 
presence of the equipment and personnel; however, any impacts to marine 
mammals are expected to primarily be acoustic in nature. Acoustic 
stressors include effects of heavy equipment operation during pile 
installation and removal.

Acoustic Impacts

    The introduction of anthropogenic noise into the aquatic 
environment from pile driving and removal is the primary means by which 
marine mammals may be harassed from Crowley's specified activity. In 
general, animals exposed to natural or anthropogenic sound may 
experience physical and psychological effects, ranging in magnitude 
from none to severe (Southall et al., 2007). In general, exposure to 
pile driving and removal noise has the potential to result in auditory 
threshold shifts and behavioral reactions (e.g., avoidance, temporary 
cessation of foraging and vocalizing, changes in dive behavior). 
Exposure to anthropogenic noise can also lead to non-observable 
physiological responses such an increase in stress hormones. Additional 
noise in a marine mammal's habitat can mask acoustic cues used by 
marine mammals to carry out daily functions such as communication and 
predator and prey detection. The effects of pile driving and removal 
noise on marine mammals are dependent on several factors, including, 
but not limited to, sound type (e.g., impulsive vs. non-impulsive), the 
species, age and sex class (e.g., adult male vs. mom with calf), 
duration of exposure, the distance between the pile and the animal, 
received levels, behavior at time of exposure, and previous history 
with exposure (Wartzok et al., 2004; Southall et al., 2007). Here we 
discuss physical auditory effects (threshold shifts) followed by 
behavioral effects and potential impacts on habitat.
    NMFS defines a noise-induced threshold shift (TS) as a change, 
usually an increase, in the threshold of audibility at a specified 
frequency or portion of an individual's hearing range above a 
previously established reference level (NMFS 2018). The amount of 
threshold shift is customarily expressed in dB. A TS can be permanent 
or temporary. As described in NMFS (2018), there are numerous factors 
to consider when examining the consequence of TS, including, but not 
limited to, the signal temporal pattern (e.g., impulsive or non-
impulsive),

[[Page 23775]]

likelihood an individual would be exposed for a long enough duration or 
to a high enough level to induce a TS, the magnitude of the TS, time to 
recovery (seconds to minutes or hours to days), the frequency range of 
the exposure (i.e., spectral content), the hearing and vocalization 
frequency range of the exposed species relative to the signal's 
frequency spectrum (i.e., how an animal uses sound within the frequency 
band of the signal; e.g., Kastelein et al., 2014), and the overlap 
between the animal and the source (e.g., spatial, temporal, and 
spectral).
    Permanent Threshold Shift (PTS)--NMFS defines PTS as a permanent, 
irreversible increase in the threshold of audibility at a specified 
frequency or portion of an individual's hearing range above a 
previously established reference level (NMFS, 2018). Available data 
from humans and other terrestrial mammals indicate that a 40 dB 
threshold shift approximates PTS onset (see Ward et al., 1958, 1959; 
Ward 1960; Kryter et al., 1966; Miller 1974; Ahroon et al., 1996; 
Henderson et al., 2008). PTS levels for marine mammals are estimates, 
as with the exception of a single study unintentionally inducing PTS in 
a harbor seal (Kastak et al., 2008), there are no empirical data 
measuring PTS in marine mammals largely due to the fact that, for 
various ethical reasons, experiments involving anthropogenic noise 
exposure at levels inducing PTS are not typically pursued or authorized 
(NMFS 2018).
    Temporary Threshold Shift (TTS)--A temporary, reversible increase 
in the threshold of audibility at a specified frequency or portion of 
an individual's hearing range above a previously established reference 
level (NMFS, 2018). Based on data from cetacean TTS measurements (see 
Southall et al., 2007), a TTS of 6 dB is considered the minimum 
threshold shift clearly larger than any day-to-day or session-to-
session variation in a subject's normal hearing ability (Schlundt et 
al., 2000; Finneran et al., 2000, 2002). As described in Finneran 
(2015), marine mammal studies have shown the amount of TTS increases 
with cumulative sound exposure level (SELcum) in an accelerating 
fashion: At low exposures with lower SELcum, the amount of TTS is 
typically small and the growth curves have shallow slopes. At exposures 
with higher SELcum, the growth curves become steeper and approach 
linear relationships with the noise SEL.
    Depending on the degree (elevation of threshold in dB), duration 
(i.e., recovery time), and frequency range of TTS, and the context in 
which it is experienced, TTS can have effects on marine mammals ranging 
from discountable to serious (similar to those discussed in auditory 
masking, below). For example, a marine mammal may be able to readily 
compensate for a brief, relatively small amount of TTS in a non-
critical frequency range that takes place during a time when the animal 
is traveling through the open ocean, where ambient noise is lower and 
there are not as many competing sounds present. Alternatively, a larger 
amount and longer duration of TTS sustained during time when 
communication is critical for successful mother/calf interactions could 
have more serious impacts. We note that reduced hearing sensitivity as 
a simple function of aging has been observed in marine mammals, as well 
as humans and other taxa (Southall et al., 2007), so we can infer that 
strategies exist for coping with this condition to some degree, though 
likely not without cost.
    Currently, TTS data only exist for four species of cetaceans 
(bottlenose dolphin (Tursiops truncatus), beluga whale (Delphinapterus 
leucas), harbor porpoise (Phocoena phocoena), and Yangtze finless 
porpoise (Neophocoena asiaeorientalis)) and five species of pinnipeds 
exposed to a limited number of sound sources (i.e., mostly tones and 
octave-band noise) in laboratory settings (Finneran 2015). TTS was not 
observed in trained spotted (Phoca largha) and ringed (Pusa hispida) 
seals exposed to impulsive noise at levels matching previous 
predictions of TTS onset (Reichmuth et al., 2016). In general, harbor 
seals and harbor porpoises have a lower TTS onset than other measured 
pinniped or cetacean species (Finneran 2015). Additionally, the 
existing marine mammal TTS data come from a limited number of 
individuals within these species. No data are available on noise-
induced hearing loss for mysticetes. For summaries of data on TTS in 
marine mammals or for further discussion of TTS onset thresholds, 
please see Southall et al., (2007), Finneran and Jenkins (2012), 
Finneran (2015), and Table 5 in NMFS (2018). Installing piles requires 
vibratory pile driving in this project. There would likely be pauses in 
activities producing the sound during each day. Given these pauses and 
that many marine mammals are likely moving through the ensonified area 
and not remaining for extended periods of time, the potential for TS 
declines.
    Behavioral Harassment--Exposure to noise from pile driving and 
removal also has the potential to behaviorally disturb marine mammals. 
Available studies show wide variation in response to underwater sound; 
therefore, it is difficult to predict specifically how any given sound 
in a particular instance might affect marine mammals perceiving the 
signal. If a marine mammal does react briefly to an underwater sound by 
changing its behavior or moving a small distance, the impacts of the 
change are unlikely to be significant to the individual, let alone the 
stock or population. However, if a sound source displaces marine 
mammals from an important feeding or breeding area for a prolonged 
period, impacts on individuals and populations could be significant 
(e.g., Lusseau and Bejder 2007; Weilgart 2007; NRC 2005).
    Disturbance may result in changing durations of surfacing and 
dives, number of blows per surfacing, or moving direction and/or speed; 
reduced/increased vocal activities; changing/cessation of certain 
behavioral activities (such as socializing or feeding); visible startle 
response or aggressive behavior (such as tail/fluke slapping or jaw 
clapping); avoidance of areas where sound sources are located. 
Pinnipeds may increase their haul out time, possibly to avoid in-water 
disturbance (Thorson and Reyff 2006). Behavioral responses to sound are 
highly variable and context-specific and any reactions depend on 
numerous intrinsic and extrinsic factors (e.g., species, state of 
maturity, experience, current activity, reproductive state, auditory 
sensitivity, time of day), as well as the interplay between factors 
(e.g., Richardson et al., 1995; Wartzok et al., 2003; Southall et al., 
2007; Weilgart 2007; Archer et al., 2010). Behavioral reactions can 
vary not only among individuals but also within an individual, 
depending on previous experience with a sound source, context, and 
numerous other factors (Ellison et al., 2012), and can vary depending 
on characteristics associated with the sound source (e.g., whether it 
is moving or stationary, number of sources, distance from the source). 
In general, pinnipeds seem more tolerant of, or at least habituate more 
quickly to, potentially disturbing underwater sound than do cetaceans, 
and generally seem to be less responsive to exposure to industrial 
sound than most cetaceans. Please see Appendices B-C of Southall et 
al., (2007) for a review of studies involving marine mammal behavioral 
responses to sound.
    Disruption of feeding behavior can be difficult to correlate with 
anthropogenic sound exposure, so it is usually inferred by observed 
displacement from known foraging areas, the appearance of secondary 
indicators (e.g., bubble nets or sediment plumes), or changes in dive 
behavior. As for other types of

[[Page 23776]]

behavioral response, the frequency, duration, and temporal pattern of 
signal presentation, as well as differences in species sensitivity, are 
likely contributing factors to differences in response in any given 
circumstance (e.g., Croll et al., 2001; Nowacek et al., 2004; Madsen et 
al., 2006; Yazvenko et al., 2007). A determination of whether foraging 
disruptions incur fitness consequences would require information on or 
estimates of the energetic requirements of the affected individuals and 
the relationship between prey availability, foraging effort and 
success, and the life history stage of the animal.
    Stress responses--An animal's perception of a threat may be 
sufficient to trigger stress responses consisting of some combination 
of behavioral responses, autonomic nervous system responses, 
neuroendocrine responses, or immune responses (e.g., Seyle 1950; Moberg 
2000). In many cases, an animal's first and sometimes most economical 
(in terms of energetic costs) response is behavioral avoidance of the 
potential stressor. Autonomic nervous system responses to stress 
typically involve changes in heart rate, blood pressure, and 
gastrointestinal activity. These responses have a relatively short 
duration and may or may not have a significant long-term effect on an 
animal's fitness.
    Neuroendocrine stress responses often involve the hypothalamus-
pituitary-adrenal system. Virtually all neuroendocrine functions that 
are affected by stress--including immune competence, reproduction, 
metabolism, and behavior--are regulated by pituitary hormones. Stress-
induced changes in the secretion of pituitary hormones have been 
implicated in failed reproduction, altered metabolism, reduced immune 
competence, and behavioral disturbance (e.g., Moberg, 1987; Blecha, 
2000). Increases in the circulation of glucocorticoids are also equated 
with stress (Romano et al., 2004).
    The primary distinction between stress (which is adaptive and does 
not normally place an animal at risk) and ``distress'' is the cost of 
the response. During a stress response, an animal uses glycogen stores 
that can be quickly replenished once the stress is alleviated. In such 
circumstances, the cost of the stress response would not pose serious 
fitness consequences. However, when an animal does not have sufficient 
energy reserves to satisfy the energetic costs of a stress response, 
energy resources must be diverted from other functions. This state of 
distress will last until the animal replenishes its energetic reserves 
sufficient to restore normal function.
    Relationships between these physiological mechanisms, animal 
behavior, and the costs of stress responses are well studied through 
controlled experiments and for both laboratory and free-ranging animals 
(e.g., Holberton et al., 1996; Hood et al., 1998; Jessop et al., 2003; 
Krausman et al., 2004; Lankford et al., 2005). Stress responses due to 
exposure to anthropogenic sounds or other stressors and their effects 
on marine mammals have also been reviewed (Fair and Becker, 2000; 
Romano et al., 2002b) and, more rarely, studied in wild populations 
(e.g., Romano et al., 2002a). For example, Rolland et al. (2012) found 
that noise reduction from reduced ship traffic in the Bay of Fundy was 
associated with decreased stress in North Atlantic right whales. These 
and other studies lead to a reasonable expectation that some marine 
mammals will experience physiological stress responses upon exposure to 
acoustic stressors and that it is possible that some of these would be 
classified as ``distress.'' In addition, any animal experiencing TTS 
would likely also experience stress responses (NRC, 2003), however 
distress is an unlikely result of this project based on observations of 
marine mammals during previous, similar projects in the area.
    Masking--Sound can disrupt behavior through masking, or interfering 
with, an animal's ability to detect, recognize, or discriminate between 
acoustic signals of interest (e.g., those used for intraspecific 
communication and social interactions, prey detection, predator 
avoidance, navigation) (Richardson et al., 1995). Masking occurs when 
the receipt of a sound is interfered with by another coincident sound 
at similar frequencies and at similar or higher intensity, and may 
occur whether the sound is natural (e.g., snapping shrimp, wind, waves, 
precipitation) or anthropogenic (e.g., pile driving, shipping, sonar, 
seismic exploration) in origin. The ability of a noise source to mask 
biologically important sounds depends on the characteristics of both 
the noise source and the signal of interest (e.g., signal-to-noise 
ratio, temporal variability, direction), in relation to each other and 
to an animal's hearing abilities (e.g., sensitivity, frequency range, 
critical ratios, frequency discrimination, directional discrimination, 
age or TTS hearing loss), and existing ambient noise and propagation 
conditions. Masking of natural sounds can result when human activities 
produce high levels of background sound at frequencies important to 
marine mammals. Conversely, if the background level of underwater sound 
is high (e.g., on a day with strong wind and high waves), an 
anthropogenic sound source would not be detectable as far away as would 
be possible under quieter conditions and would itself be masked.
    Airborne Acoustic Effects--Pinnipeds that occur near the project 
site could be exposed to airborne sounds associated with pile driving 
and removal that have the potential to cause behavioral harassment, 
depending on their distance from pile driving activities. Cetaceans are 
not expected to be exposed to airborne sounds that would result in 
harassment as defined under the MMPA.
    Airborne noise would primarily be an issue for pinnipeds that are 
swimming or hauled out near the project site within the range of noise 
levels exceeding the acoustic thresholds. We recognize that pinnipeds 
in the water could be exposed to airborne sound that may result in 
behavioral harassment when looking with their heads above water. Most 
likely, airborne sound would cause behavioral responses similar to 
those discussed above in relation to underwater sound. For instance, 
anthropogenic sound could cause hauled-out pinnipeds to exhibit changes 
in their normal behavior, such as reduction in vocalizations, or cause 
them to temporarily abandon the area and move further from the source. 
However, these animals would previously have been `taken' because of 
exposure to underwater sound above the behavioral harassment 
thresholds, which are, in all cases, larger than those associated with 
airborne sound. Occasionally individual seals haul out on beach areas 
northeast of the project site. However, as noted previously, 
anticipated source levels for airborne noises are not anticipated to 
exceed disturbance thresholds for non-harbor seal pinnipeds beyond the 
10-meter shutdown zone that will be implemented for all activities, so 
we do not expect Level B harassment takes due to airborne sounds. 
Therefore, we do not believe that authorization of incidental take 
resulting from airborne sound for pinnipeds is warranted, and airborne 
sound is not discussed further here.

Marine Mammal Habitat Effects

    Crowley's construction activities could have localized, temporary 
impacts on marine mammal habitat by increasing in-water sound pressure 
levels and slightly decreasing water quality. Construction activities 
are of short duration and would likely have temporary impacts on marine 
mammal

[[Page 23777]]

habitat through increases in underwater sound. Increased noise levels 
may affect acoustic habitat (see masking discussion above) and 
adversely affect marine mammal prey in the vicinity of the project area 
(see discussion below). During vibratory pile driving, elevated levels 
of underwater noise would ensonify the area where both fish and mammals 
may occur and could affect foraging success. Additionally, marine 
mammals may avoid the area during construction, however, displacement 
due to noise is expected to be temporary and is not expected to result 
in long-term effects to the individuals or populations.
In-Water Construction Effects on Potential Foraging Habitat
    Crowley's project involves installing a new sheet pile bulkhead on 
the water ward side of the existing, degrading dock. The total seafloor 
area affected from installing the new bulkhead is a very small area 
compared to the vast foraging area available to marine mammals in 
Kotzebue.
    Avoidance by potential prey (i.e., fish) of the immediate area due 
to the temporary loss of this foraging habitat is possible. The 
duration of fish avoidance of this area after pile driving stops is 
unknown, but we anticipate a rapid return to normal recruitment, 
distribution and behavior. Any behavioral avoidance by fish of the 
disturbed area would still leave significantly large areas of fish and 
marine mammal foraging habitat in the nearby vicinity in Kotzebue 
Sound.
    A temporary and localized increase in turbidity near the seafloor 
would occur in the immediate area surrounding the area where piles are 
installed (and removed in the case of the temporary templates). The 
sediments on the sea floor will be disturbed during pile driving; 
however, suspension will be brief and localized and is unlikely to 
measurably affect marine mammals or their prey in the area. In general, 
turbidity associated with pile installation is localized to about a 25-
foot radius around the pile (Everitt et al., 1980). Cetaceans are not 
expected to be close enough to the project pile driving areas to 
experience effects of turbidity, and any pinnipeds could avoid 
localized areas of turbidity. Therefore, the impact from increased 
turbidity levels is expected to be discountable to marine mammals. 
Furthermore, pile driving and removal at the project site would not 
obstruct movements or migration of marine mammals.
    Impacts to potential foraging habitat are expected to be temporary 
and minimal based on the short duration of activities.

In-Water Construction Effects on Potential Prey

    Numerous fish and invertebrate prey species occur in Kotzebue Sound 
and Hotham Inlet. Construction activities would produce continuous 
(i.e., vibratory pile driving) and impulsive (i.e., impact pile 
driving) sounds. Fish react to sounds that are especially strong and/or 
intermittent low-frequency sounds. Short duration, sharp sounds can 
cause overt or subtle changes in fish behavior and local distribution. 
Hastings and Popper (2005) identified several studies that suggest fish 
may relocate to avoid certain areas of sound energy. Additional studies 
have documented effects of pile driving on fish, although several are 
based on studies in support of large, multiyear bridge construction 
projects (e.g., Scholik and Yan 2001, 2002; Popper and Hastings 2009). 
Sound pulses at received levels of 160 dB may cause subtle changes in 
fish behavior. SPLs of 180 dB may cause noticeable changes in behavior 
(Pearson et al., 1992; Skalski et al., 1992). SPLs of sufficient 
strength have been known to cause injury to fish and fish mortality.
    The most likely impact to fish from pile driving activities at the 
project site would be temporary behavioral avoidance of the area. The 
duration of fish avoidance of this area after pile driving stops is 
unknown, but a rapid return to normal recruitment, distribution and 
behavior is anticipated.
    In addition to fish, prey sources such as marine invertebrates 
could potentially be impacted by sound stressors as a result of 
Crowley's project. However, studies show that crustaceans, such as 
euphausiid and copepod prey species, are not particularly sensitive to 
noise, including loud noises from operation of seismic airguns (Wiese 
1996). While these prey species do use sound for important behaviors, 
including predator detection (Chu et al., 1996), we expect that the 
vibratory pile driving noise from Crowley's project would be 
inconsequential to invertebrate populations.
    In summary, given the short daily duration of sound associated with 
individual pile driving events and the relatively small areas being 
affected, pile driving activities associated with the proposed action 
are not likely to have a permanent, adverse effect on any fish or 
invertebrate habitat, or populations of fish or invertebrate species. 
Thus, we conclude that impacts of the specified activity are not likely 
to have more than short-term adverse effects on any prey habitat or 
populations of prey species. Further, any impacts to marine mammal 
habitat are not expected to result in significant or long-term 
consequences for individual marine mammals, or to contribute to adverse 
impacts on their populations.

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization 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 be by Level B harassment only, in the form 
of disruption of behavioral patterns and/or TTS for individual marine 
mammals resulting from exposure to acoustic sources. 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 Proposed Mitigation section, Level A harassment is neither 
anticipated nor proposed to be authorized.
    As described previously, no mortality is anticipated or proposed to 
be 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

[[Page 23778]]

describe the factors considered here in more detail and present the 
proposed take estimate.

Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic 
thresholds that identify the received level of underwater sound above 
which exposed marine mammals would be reasonably expected to be 
behaviorally harassed (equated to Level B harassment) or to incur PTS 
of some degree (equated to Level A harassment).
    Level B Harassment for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2012). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals are 
likely to be behaviorally harassed in a manner we consider Level B 
harassment when exposed to underwater anthropogenic noise above 
received levels of 120 dB re 1 [mu]Pa rms (microPascal, root mean 
square) for continuous (e.g., vibratory pile-driving) and above 160 dB 
re 1 [mu]Pa (rms) for non-explosive impulsive (e.g., seismic airguns) 
or intermittent (e.g., scientific sonar) sources.
    Crowley's proposed project includes the use of continuous 
(vibratory pile driving) sources only, and therefore the 120dB re 1 
[mu]Pa (rms) is 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). Crowley's proposed project includes the 
use of non-impulsive (vibratory pile driving) sources.
    These thresholds are provided in Table 5. 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 5--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....................  Cell 2
                                         Lpk,flat: 219 dB;           LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3....................  Cell 4
                                         Lpk,flat: 230 dB;           LE,MF,24h: 198 dB.
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5....................  Cell 6
                                         Lpk,flat: 202 dB;           LE,HF,24h: 173 dB.
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7....................  Cell 8
                                         Lpk,flat: 218 dB;           LE,PW,24h: 201 dB.
                                          LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9....................  Cell 10
                                         Lpk,flat: 232 dB;           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 [micro]Pa, and cumulative sound exposure level (LE)
  has a reference value of 1[micro]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 proposed project. 
Marine mammals are expected to be affected via sound generated by the 
primary components of the project (i.e., vibratory pile driving and 
removal). The maximum (underwater) area ensonified above the thresholds 
for behavioral harassment referenced above is 52.5 km\2\ (20.3 mi\2\), 
and the calculated distance to the farthest behavioral harassment 
isopleth is approximately 5.2 km (2.0 mi).
    The project includes vibratory pile installation and removal. 
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 pile size and activity are presented 
in Table 6. Source levels for vibratory installation and removal of 
piles of the same diameter are assumed to be the same.

[[Page 23779]]



              Table 6--Sound Source Levels for Pile Driving
------------------------------------------------------------------------
                                     Source level
             Pile size              (dB RMS SPL at    Literature source
                                         10m)
------------------------------------------------------------------------
Template Piles (18'' pipe piles)             158.0  Pritchard Lake
 \a\.                                                Pumping Plant, 2014
                                                     \b\
Alternate Template Piles (14'' H             158.8  URS Corporation,
 piles) \a\.                                         2007 \c\
Anchor Piles (14'' H piles) \b\...           158.8  URS Corporation,
                                                     2007 \c\
Sheet Piles.......................           160.7  PND, 2016
------------------------------------------------------------------------
\a\ As noted in the Detailed Description of Specific Activity section,
  Crowley has not determined the exact type of template pile they will
  use. As such, we conservatively conducted the impact analysis with the
  maximum potential pile sizes that they may choose to use.
\b\ Source level is the average of three 18-inch pipe piles installed at
  Pritchard Lake Pumping Plant. Data originally provided by Illingworth
  and Rodkin, Inc. and accessed in Caltrans, 2005.
\c\ Port of Anchorage Test Pile Driving Program. Accessed in Caltrans,
  2015. The applicant averaged the vibratory installation levels from
  Table I.4-9, normalized to a consistent 10-foot distance. The
  applicant rejected any source levels more than one standard deviation
  from the average (Piles 2 and 12 Down).

    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 Crowley's Kotzebue dock are not available; 
therefore, the default coefficient of 15 is used to determine the 
distances to the Level A and Level B harassment thresholds.
    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 7--User Spreadsheet Input Parameters Used for Calculating Level A Harassment Isopleths
  (All calculations were completed in User Spreadsheet tab A.1: Vibratory Pile Driving with a weighting factor
                                             adjustment of 2.5kHz.)
----------------------------------------------------------------------------------------------------------------
                                                                     Alternate
                                                  Template piles  template piles   Anchor piles
                                                    (18-in pipe      (14-in H-       (14-in H-      Sheet piles
                                                       pile)          piles)          piles)
----------------------------------------------------------------------------------------------------------------
Source Level (RMS SPL)..........................             158           158.8           158.8           160.7
Number of Piles within 24-h Period..............              10              10              10               9
Duration to Drive a Single Pile (minutes).......              10              10              10              10
Propagation (xLogR).............................              15              15              15              15
Distance From Source Level Measurement (m)......              10              10              10              10
----------------------------------------------------------------------------------------------------------------


                                       Table 8--Calculated Distances to Level A and Level B Harassment Isopleths.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                 Level A harassment zone (m)
                                                     ----------------------------------------------------------------------------------      Level B
                      Activity                         Low-frequency   Mid-frequency   High-frequency       Phocid          Otariid      harassment zone
                                                         cetaceans       cetaceans        cetaceans        pinnipeds       pinnipeds         (m) \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Template Piles (18-in Pipe Pile)....................               6               1                 9               4              <1              3415
Alternate Template Piles (14-in H-piles)............               7               1                10               4              <1              3861
Anchor Piles (14-in H-piles)........................               7               1                10               4              <1              3861
Sheet Piles.........................................               9               1                13               5              <1              5168
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ All Level B harassment zones were calculated using practical spreading (15logR) and a 120dB re 1 [mu]Pa rms threshold.


[[Page 23780]]


  Table 9--Estimated Area Ensonified Above the Level B Harassment Take
     Threshold, and Estimated Days of Construction for Each Activity
   (The estimated days of construction for each activity include a 10
    percent contingency period to account for potential construction
                                delays.)
------------------------------------------------------------------------
                                          Estimated area
                                            ensonified
                                           above level B     Estimated
                Pile size                   harassment       duration
                                          take threshold      (days)
                                              (km\2\)
------------------------------------------------------------------------
Template Piles (18-in Pipe Pile)........            24.8          \a\ 37
Alternate Template Piles (14-in H-piles)            32.1          \a\ 37
Anchor Piles (14-in H-piles)............            32.1               2
Sheet Piles.............................            52.5              48
All Activities..........................  ..............              87
------------------------------------------------------------------------
\a\ Includes both installation and removal.

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. We describe how the information provided above is brought 
together to produce a quantitative take estimate.
Gray Whale
    Gray whales were reported as present and feeding (sometimes in 
large numbers) in Kotzebue Sound, and a gray whale was harvested by 
whale hunters at Sisualiq in 1980 (Frost et al., 1983). Additionally, 
between 2010 and 2019, there were five reports of gray whale strandings 
within inner Kotzebue Sound, including one in Hotham Inlet. An 
additional unidentified large whale was reported stranded south of Cape 
Blossom in 2018 (Savage, pers. comm. 2019). NMFS was unable to locate 
data describing frequency of gray whale occurrence, group size, or 
density within the project area.
    Crowley plans to construct 14 cells in the proposed dock, and 
construction of each is expected to require approximately one week; 
however, NMFS estimates that construction of all cells will last 15 
weeks to account for potential delays or other unforeseen 
circumstances. NMFS expects that a gray whale or group of gray whales 
may enter the project area periodically throughout the duration of the 
construction period, averaging one gray whale per week. Therefore, 
given the limited information in the project area to otherwise inform a 
take estimate, NMFS proposes to issue 15 Level B harassment takes of 
gray whale.
    The largest Level A harassment zone for low-frequency cetaceans 
extends 8.5m from the source during vibratory pile driving of the sheet 
piles (Table 8). Crowley is planning to implement a 10m shutdown zone 
during all construction activities, which, especially in combination 
with the already low frequency of gray whales entering the area, is 
expected to eliminate the potential for Level A harassment take of gray 
whale. Therefore, Crowley did not request Level A harassment takes of 
gray whale, nor is NMFS is proposing to authorize any.
Minke Whale
    Minke whales were reported as sometimes present in Kotzebue Sound 
during the summer months and two individuals beached in the mouth of 
the Buckland River in autumn during the late 1970s (Frost et al., 
1983). NMFS was unable to locate additional, more recent data 
describing frequency of minke whale occurrence, group size, or density 
within the project area.
    Crowley plans to construct 14 cells in the proposed dock, and 
construction of each is expected to require approximately one week; 
however, NMFS estimates that construction of all cells will last 15 
weeks to account for potential delays or other unforeseen 
circumstances. NMFS estimates that a minke whale may enter a Level B 
harassment zone every other week throughout the duration of the 
construction period. Therefore, given the limited information in the 
project area to otherwise inform a take estimate, NMFS proposes to 
issue eight Level B harassment takes of minke whale.
    The largest Level A harassment zone for low-frequency cetaceans 
extends 8.5m from the source during vibratory pile driving of the sheet 
piles (Table 8). Crowley is planning to implement a 10m shutdown zone 
during all construction activities, which, especially in combination 
with the already low likelihood of minke whales entering the area, are 
expected to eliminate the potential for Level A harassment take of 
minke whale. Therefore, Crowley did not request Level A harassment 
takes of minke whale, nor is NMFS is proposing to authorize any.
Beluga Whale
    Reports of belugas at Sisualiq Spit, directly across from Kotzebue, 
include groups of 75-100 individuals, described as moving clockwise 
into the Sound. Along the west coast of Baldwin peninsula, they have 
been reported in groups of 200-300, culminating in groups of 1,000 or 
more in Eschscholtz Bay and near the Chamisso Islands (Frost et al., 
1983).
    Beluga whales from the Beaufort Sea and Eastern Chukchi Sea stocks 
have the potential to be taken by Level B harassment. Crowley estimates 
that 100 beluga whales may be taken, by Level B harassment, on each 
project day, for a total of 8,700 Level B harassment takes (100 beluga 
whales x 87 estimated in-water work days = 8,700 Level B harassment 
takes). NMFS expects that this is a conservative estimate; however, 
given the limited information in the project area to otherwise inform a 
take estimate, NMFS proposes to issue 8,700 Level B harassment takes of 
beluga whale.
    The largest Level A harassment zone for mid-frequency cetaceans 
extends 0.8m from the source during vibratory installation of the sheet 
piles (Table 8). Crowley is planning to implement a 10m shutdown zone 
during all construction activities, which, given the extremely small 
size of the Level A harassment zones, is expected to eliminate the 
potential for Level A harassment take of beluga whale. Therefore, takes 
of beluga whale by Level A harassment have not been requested, and are 
not proposed to be authorized.

[[Page 23781]]

Killer Whale
    Photo identification of individuals spotted in the southern Chukchi 
sea during transect surveys (during which at least 37 individuals were 
spotted six times) identified transient type killer whales. Sightings 
reported included two sightings of 14 whales each in July, 3 sightings 
of 18 whales each in August, and one sighting of 5 whales in September, 
with an average group size of 15 animals (Clarke et al., 2013).
    Due to Crowley's project's remote location at the fringes of the 
known range of the stock, it is unlikely that more than one or two pods 
would be located in the region during construction. Crowley 
conservatively estimates, and NMFS agrees, that 15 Gulf of Alaska, 
Aleutian Islands, and Bering Sea Transient killer whales may be present 
in the Level B harassment zone on a maximum of 25 percent of project 
days, given the transient nature of the animals. Therefore, NMFS 
proposes to authorize Level B harassment take of 15 individuals on 22 
project days (25% of total expected days (87 days)) for a total of 330 
Level B harassment takes.
    The largest Level A harassment zone for mid-frequency cetaceans 
extends 0.8m from the source during vibratory installation of the sheet 
piles (Table 8). Crowley is planning to implement a 10m shutdown zone 
during all construction activities, which, given the extremely small 
size of the Level A harassment zones, is expected to eliminate the 
potential for Level A harassment take of killer whale. Therefore, takes 
of killer whale by Level A harassment were not requested, and are not 
proposed to be authorized.
Harbor Porpoise
    The harbor porpoise frequents nearshore waters and coastal 
embayments throughout their range, including bays, harbors, estuaries, 
and fjords less than 650 feet (198 m) deep (NMFS, 2019g). Harbor 
porpoises have been detected in Kotzebue Sound between September and 
November and between January and March during acoustic monitoring in 
2014 & 2015. Porpoises had not previously been reported under the ice 
in the Chukchi (Whiting et al., 2019). NMFS was unable to locate a 
density or group size for Kotzebue Sound, and therefore used the 
maximum harbor porpoise group size (four animals) from the Distribution 
and Relative Abundance of Marine Mammals in the Eastern Chukchi and 
Western Beaufort Seas, 2018 Annual Report (Clarke et al., 2019). NMFS 
estimates that approximately two groups of four harbor porpoises may be 
present during each week of construction for a total of 120 Level B 
harassment takes of harbor porpoise (4 animals in a group x 2 groups 
per week x 15 weeks = 120 Level B harassment takes).
    The largest Level A harassment zone for high-frequency cetaceans 
extends 12.6m from the source during vibratory installation of the 
sheet piles (Table 8). Crowley is planning to implement a 10m shutdown 
zone during all construction activities, which, given the small size of 
the Level A harassment zones, and the associated duration component, is 
expected to eliminate the potential for Level A harassment take of 
harbor porpoise. Therefore, Crowley did not request takes of harbor 
porpoise by Level A harassment, nor is NMFS proposing to authorize any.
Bearded Seal
    Aerial surveys of ringed and bearded seals in the Eastern Chukchi 
Sea in May and June reported relatively few bearded seals within inner 
Kotzebue Sound, as bearded seals typically congregate on offshore ice 
rather than nearshore. In 1976 aerial surveys of bearded seals in the 
Bering Sea, densities ranged between 0.006 and 0.782 seals per seals 
per km\2\. Bearded seals were typically spotted in groups of one to two 
individuals with occasional larger groupings in denser areas (Braham et 
al., 1984). Bengtson et al., 2005 includes bearded seal densities 
calculated from aerial surveys in May and June 1999 and May 2000, 
however, the density for the project area was zero in both years. 
However, data shows that at least some bearded seals are nearby from 
June to September, and could potentially enter the project area 
(Bengtson et al., 2005, Quakenbush et al., 2019). Therefore, NMFS 
determined that 0.782 (Braham et al., 1984) is the most appropriate 
density, considering those available.
    Given the known association between ice cover and bearded seal 
density, NMFS estimates that bearded seal density will be highest when 
the project begins in June, and will taper off as the ice melts 
(Quakenbush et al., 2019). As such, NMFS has estimated take for the 
month of June separately from the remainder of the expected project 
period (July through September).
    As noted in the Detailed Description of Specific Activity section, 
Crowley will construct the dock upgrade one cell at a time, with 
construction of each cell requiring approximately one week. In an 
effort to separate out work that will occur in June, NMFS made several 
assumptions: (1) NMFS assumes that the best density available is 0.782 
(Braham et al., 1984); (2) While there are 14 cells and construction of 
each is expected to require approximately one week, NMFS estimates that 
construction of all cells will last 15 weeks to account for potential 
delays or other unforeseen circumstances; (3) NMFS assumes that each 
cell will require the same number of each pile type, and therefore the 
same duration for installation (and removal of template piles), despite 
known differences in design among some cells; and (4) NMFS assumes that 
construction will require approximately 87 in-water workdays.
    NMFS calculated the assumed days per cell for each activity (Table 
10) by considering the proportion of the assumed project days for each 
activity out of the 87 total project days in comparison to the assumed 
days per cell out of the expected duration of seven days to complete a 
cell (see assumption (2), above). (i.e. Assumed Project Days/87 days = 
Assumed Days per Cell/7 days). NMFS calculated the Anticipated Days in 
June by multiplying the Assumed Days per Cell x 4 weeks of June.
    NMFS calculated take for each activity during the month of June 
(Table 10) by multiplying the anticipated days in June x area of Level 
B harassment zone (km\2\) x density (0.782 km\2\). Given these 
assumptions and takes per activity (Table 10), NMFS estimates 
approximately 1045 bearded seal takes in the month of June (sum of 
Takes per Activity in Table 10).

                         Table 10--NMFS Assumptions for Bearded Seal June Take Estimate
----------------------------------------------------------------------------------------------------------------
                                                                                Area of level
          Pile type                Assumed      Assumed days     Anticipated    B harassment   Take per activity
                                project days      per cell      days in June    zone (km\2\)
----------------------------------------------------------------------------------------------------------------
Template Piles \a\...........          \b\ 37             3.0              12            32.1                385
Anchor Piles (14-in H-piles).               2             0.2             0.8            32.1                 20

[[Page 23782]]

 
Sheet Piles..................              48             3.9            15.6            52.5                640
----------------------------------------------------------------------------------------------------------------
\a\ Conservatively assumes 14-inch H-piles rather than 18-inch pipe piles.
\b\ Includes installation and removal.

    During the months of July to September, NMFS expects that the 
number of bearded seals in the project area will be much lower due to 
the lack of sea ice. NMFS considered the relative number of ringed and 
bearded seals locations reported in Quakenbush et al., (2019, Figures 
7, 30, and 55), and estimates that approximately twice as many bearded 
seals (two to four) are likely to occur in the project area than ringed 
seals (one to two), because tagging studies show that nearly all of the 
ringed seals spend the summer north of Point Hope (Figures 30 and 55). 
NMFS estimates that approximately 14 Level B harassment takes of 
bearded seals takes may occur each week. Given the assumed 15 weeks of 
construction, and four assumed weeks of construction in June, NMFS 
estimates that Crowley will conduct pile driving activities for 11 
weeks from July through September. To estimate bearded seal takes 
during that period, NMFS multiplied the estimated weekly take estimate 
by the estimated number of weeks of construction, for a total of 154 
Level B harassment takes from July to September (14 bearded seals x 11 
weeks of construction = 154 Level B harassment takes).
    Therefore, throughout the entire project period, NMFS estimates, 
and proposes to authorize 1,199 Level B harassment takes of bearded 
seals (1,045 estimated takes in June + 154 estimated takes from July to 
September = 1,199 Level B harassment takes).
    The largest Level A harassment zone for phocids extends 5.2m from 
the source during vibratory installation of the sheet piles (Table 8). 
Crowley is planning to implement a 10m shutdown zone during all 
construction activities, which, given the extremely small size of the 
Level A harassment zones, is expected to eliminate the potential for 
Level A harassment take of bearded seals. Therefore, takes of bearded 
seal by Level A harassment have not been requested, and are not 
proposed to be authorized.
Ringed Seal
    Ringed seals are distributed throughout Arctic waters in all 
``seasonally ice-covered seas.'' In winter and early spring when sea 
ice is at its maximum coverage, they occur in the northern Bering Sea, 
in Norton and Kotzebue Sounds, and throughout the Chukchi and Beaufort 
Seas. In years with particularly extensive ice coverage, they may occur 
as far south as Bristol Bay (Muto et al., 2019). In 1976 aerial surveys 
of ringed seals in the Bering Sea, densities ranged between 0.005 and 
0.017 seals per seals per km\2\ (Braham et al., 1984). Surveys of seals 
in their breeding grounds in the Sea of Okhotsk in 1964 found densities 
of 0.1 to 2 seals per km\2\ (CNRC, 1965). Bengtson et al., 2005 
includes ringed seal densities calculated from aerial surveys in May 
and June 1999 and May 2000. Densities for the waters surrounding 
Kotzebue ranged from 3.82 (2000) to 5.07 (1999).
    Given the known association between ice cover and ringed seal 
density, NMFS estimates that ringed seal density will be highest when 
the project begins in June, and will taper off as the ice melts 
(Quakenbush et al., 2019). As such, NMFS has estimated take for the 
month of June separately from the remainder of the expected project 
period (July through September).
    As noted in the Detailed Description of Specific Activity section, 
Crowley will construct the dock upgrade one cell at a time, with 
construction of each cell requiring approximately one week. In an 
effort to separate out work that will occur in June, NMFS made several 
assumptions: (1) NMFS assumes that the best density available 5.07 
animals/km\2\ (Bengtson et al., 2005); (2) While there are 14 cells and 
construction of each is expected to require approximately one week, 
NMFS estimates that construction of all cells will last 15 weeks to 
account for potential delays or other unforeseen circumstances; (3) 
NMFS assumes that each cell will require the same number of each pile 
type, and therefore the same duration for installation (and removal of 
template piles), despite known differences in design among some cells; 
and (4) NMFS assumes that construction will require approximately 87 
in-water workdays.
    NMFS calculated the assumed days per cell for each activity (Table 
11) by considering the proportion of the assumed project days for each 
activity out of the 87 total project days in comparison to an assumed 
days per cell out of the expected duration of seven days to complete a 
cell (see assumption (2), above). (i.e. Assumed Project Days/87 days = 
Assumed Days per Cell/7 days). NMFS calculated the Anticipated Days in 
June by multiplying the Assumed Days per Cell x 4 weeks of June.
    NMFS calculated take for each activity during the month of June 
(Table 11) by multiplying the anticipated days in June x area of Level 
B harassment zone (km\2\) x density (5.07/km\2\). Given these 
assumptions (Table 11), NMFS estimates 6,235 ringed seal takes in the 
month of June (sum of Takes per Activity in Table 11).

                          Table 11--NMFS Assumptions for Ringed Seal June Take Estimate
----------------------------------------------------------------------------------------------------------------
                                   Assumed                                      Area of level
          Pile type             project days    Assumed days     Anticipated    B harassment   Take per activity
                                     \b\          per cell      days in June    zone (km\2\)
----------------------------------------------------------------------------------------------------------------
Template Piles \a\...........          \b\ 37             3.0              12            32.1              1,953
Anchor Piles (14-in H-piles).               2             0.2             0.8            32.1                130
Sheet Piles..................              48             3.9            15.6            52.5              4,152
----------------------------------------------------------------------------------------------------------------
\a\ Conservatively assumes 14-inch H-piles rather than 18-inch pipe piles.
\b\ Includes installation and removal.


[[Page 23783]]

    During the months of July to September, NMFS expects that the 
number of ringed seals in the project area will much lower due to the 
lack of sea ice. NMFS considered the relative number of ringed and 
bearded seals locations reported in Quakenbush et al. (2019, Figures 
30, and 55), and estimates that approximately twice as many bearded 
seals (two to four) are likely to occur in the project area than ringed 
seals (one to two). NMFS estimates that approximately seven Level B 
harassment takes of ringed seals takes may occur each week. Given the 
assumed 15 weeks of construction, and four assumed weeks of 
construction in June, NMFS estimates that Crowley will conduct pile 
driving activities for 11 weeks from July through September. To 
estimate ringed seal takes during that period, NMFS multiplied the 
estimated weekly take estimate by the estimated number of weeks of 
construction, for a total of 77 Level B harassment takes (7 ringed 
seals x 11 weeks of construction = 77 Level B harassment takes from 
July to September).
    Therefore, throughout the entire project period, NMFS estimates, 
and proposes to authorize 6,312 Level B harassment takes of ringed 
seals (6,235 estimated takes in June + 77 estimated takes from July to 
September).
    The largest Level A harassment zone for phocids extends 5.2m from 
the source during vibratory installation of the sheet piles (Table 8). 
Crowley is planning to implement a 10m shutdown zone during all 
construction activities, which, given the extremely small size of the 
Level A harassment zones, is expected to eliminate the potential for 
Level A harassment take of ringed seals. Therefore, takes of ringed 
seal by Level A harassment have not been requested, and are not 
proposed to be authorized.
Spotted Seal
    From the late-fall through spring, spotted seals are distributed 
where sea ice is available for hauling out. From summer through fall, 
the seasonal sea ice has melted and spotted seals haul out on land 
(Muto et al., 2019). An estimated 69,000-101,000 spotted seals from the 
eastern Bering Sea use the Chukchi Sea during the spring open-water 
period (Boveng et al., 2017). In 1976 aerial surveys of spotted seals 
in the Bering Sea, densities ranged between 0.013 and 1.834 seals per 
seals per km\2\ (Braham et al., 1984). According to Audubon (2010), 
spotted seals haul out between June and December in Krusenstern Lagoon, 
the Noatak River delta, the tip of the Baldwin Peninsula, and Cape 
Espenberg. Subsistence users report that spotted seals move into the 
area in July, following fish runs into the Sound and up the Noatak 
River (NAB, 2016). Spotted seals in the Chamisso Islands were reported 
in groups of up to 20, but they may reach groups of over 1,000 at Cape 
Espenberg (Frost et al., 1983).
    To calculate estimated Level B harassment takes, Crowley used a 
density of 1.834 spotted seals/km\2\ (Braham et al., 1984). NMFS was 
not able to locate information to support a separate take calculation 
for June from the remainder of the work period, as was done for the 
other ice seals. Therefore, NMFS calculated Level B harassment takes by 
multiplying 1.834 spotted seals/km\2\ x the area ensonified above the 
Level B harassment threshold during each pile driving activity x 
estimated days of construction for each activity (Table 9) for a total 
of 6,917 Level B harassment takes. Given that the Braham et al., 1984 
density is from the Bering Sea, and Boveng et al., 2017 states that 
spotted seals from the Bering Sea use the Chukchi Sea during the open 
water period, NMFS expects that this Bering Sea density provides an 
appropriate estimate for Kotzebue during the project period. 
Additionally, the estimated group size of up to 20 individuals at the 
Chamisso Islands is over 50km from the project site, and NMFS expects 
that the count of 1,000 animals at Cape Epsenberg (Frost et al., 1983) 
is an outlier. Therefore, given the limited information in the project 
area to otherwise inform a take estimate, NMFS proposes to issue 6,917 
Level B harassment takes of spotted seal.
    The largest Level A harassment zone for phocids extends 5.2m from 
the source during vibratory installation of the sheet piles (Table 8). 
Crowley is planning to implement a 10m shutdown zone during all 
construction activities, which, given the extremely small size of the 
Level A harassment zones, is expected to eliminate the potential for 
Level A harassment take of spotted seals. Therefore, takes of spotted 
seal by Level A harassment have not been requested, and are not 
proposed to be authorized.
Ribbon Seal
    Ribbon seals range from the North Pacific Ocean and Bering Sea into 
the Chukchi and western Beaufort Seas in Alaska. They occur in the 
Bering Sea from late March to early May. From May to mid-July the ice 
recedes, and ribbon seals move further north into the Bering Strait and 
the southern part of the Chukchi Sea (Muto et al., 2019). An estimated 
6,000-25,000 ribbon seals from the eastern Bering Sea use the Chukchi 
Sea during the spring open-water period (Boveng et al., 2017). In 1976 
aerial surveys of ribbon seals in the Bering Sea, maximum reported 
densities were 0.002 seals per seals per km\2\ (Braham et al., 1984). 
Range mapping of the ribbon seal shows them present in the project 
vicinity from June to December; however, they typically concentrate 
further offshore, outside of the Sound (Audubon, 2010).
    To calculate estimated Level B harassment takes, Crowley used a 
density of 0.002 ribbon seals/km\2\ (Braham et al., 1984). NMFS 
recognizes that this density estimate is from the Bering Sea, but was 
unable to locate more local or recent data describing frequency of 
ribbon seal occurrence, group size, or density within the project area. 
Crowley calculated a Level B harassment take estimate by multiplying 
0.002 ribbon seals/km\2\ x the area ensonified above the Level B 
harassment threshold during each pile driving activity x estimated days 
of construction for each activity, for a total of eight Level B 
harassment takes. Given the limited information in the project area to 
otherwise inform a take estimate, NMFS proposes to issue eight Level B 
harassment takes of ribbon seal.
    The largest Level A harassment zone for phocids extends 5.2m from 
the source during vibratory installation of the sheet piles (Table 8). 
Crowley is planning to implement a 10m shutdown zone during all 
construction activities, which, given the extremely small size of the 
Level A harassment zones, is expected to eliminate the potential for 
Level A harassment take of ribbon seals. Therefore, takes of ribbon 
seal by Level A harassment have not been requested, and are not 
proposed to be authorized.

                      Table 12--Estimated Take by Level B Harassment, by Species and Stock
----------------------------------------------------------------------------------------------------------------
                                                                      Level B
              Common name                         Stock             harassment         Stock        Percent of
                                                                       take          abundance         stock
----------------------------------------------------------------------------------------------------------------
Gray Whale............................  Eastern North Pacific...              15          26,960             .06

[[Page 23784]]

 
Minke Whale...........................  Alaska..................               8             N/A             N/A
Killer Whale..........................  Gulf of Alaska, Aleutian             330             587            56.2
                                         Islands, and.
                                        Bering Sea Transient....
Beluga Whale..........................  Beaufort Sea............           8,700          39,258            22.1
                                        Eastern Chukchi Sea.....  ..............          20,752             4.3
Harbor Porpoise.......................  Bering Sea..............             120          48,215             0.2
Bearded Seal..........................  Alaska..................           1,199             N/A             N/A
Ringed Seal...........................  Alaska..................           6,312             N/A             N/A
Spotted Seal..........................  Alaska..................           6,917         461,625             1.5
Ribbon Seal...........................  Alaska..................               8         184,697           0.004
----------------------------------------------------------------------------------------------------------------

Potential Effects of Specified Activities on Subsistence Uses of Marine 
Mammals

    The activity may impact the availability of the affected marine 
mammal stocks or species for subsistence uses. The subsistence uses 
that may be affected and the potential impacts of the activity on those 
uses are described below. Measures included in this IHA to reduce the 
impacts of the activity on subsistence uses are described in the 
Proposed Mitigation section. Last, the information from this section 
and the Proposed Mitigation section is analyzed to determine whether 
the necessary findings may be made in the Unmitigable Adverse Impact 
Analysis and Determination section.
    Residents of Qikiqta[gdot]ruq (Kotzebue), Ipnatchiaq (Deering), 
Nunatchiaq (Buckland), Nuataaq (Noatak), and Nuurvik (Noorvik) harvest 
marine mammals from Kotzebue Sound during all seasons. Traditional 
harvests include bowhead and beluga whales and all four seal species 
discussed in this notice, as well as subsistence fishing. Additionally, 
a gray whale harvest at Sisualiq Spit was reported to the Alaska 
Department of Fish & Game (ADF&G) in 1980 (Frost et al., 1983).
    Beluga whales are routinely hunted throughout the Sound in spring 
and summer (NAB, 2016). Traditional hunting grounds for beluga (sisuaq) 
are directly across from Kotzebue at Sisualiq Spit (Huntington et al., 
2016). Recently, regional hunters have reported a significant change in 
the presence of beluga whales in the Sound. There are no longer 
sufficient whales to make a traditional, coordinated drive hunt on 
Sisualiq Spit, and Belugas are no longer common in Eschscholtz Bay, 
either. Hunters attribute the decrease to a variety of factors, 
including engine noise (both air and vessel traffic have increased), 
lack of coordinated hunts, and killer whale pressure (Huntington et 
al., 2016b). Impacts from Crowley's project are not expected to reach 
the traditional beluga harvest grounds.
    Bowhead whales are harvested mostly by the residents between 
Kivalina and Point Hope (NAB, 2016). We do not expect Crowley's project 
to impact bowhead whales, given that the whales are primarily targeted 
outside of the Sound, and the project is not expected to impact their 
prey or migratory behavior.
    Bearded and ringed seals are the most commonly harvested seals in 
the Kotzebue Sound area (Huntington et al., 2016). Bearded seals are 
the primary focus for Kotzebue Sound hunters in the spring, with 
harvests occurring near Cape Krusenstern and Goodhope Bay. Hunt effort 
for bearded seals appears equal in spring and fall (NAB, 2016). In 
thinner ice years, there is less suitable denning habitat for ice seals 
and more danger for seal hunters to camp out and to approach the seals. 
Hunters report that there is no longer ice for hunting bearded seals 
into July, as there was in the 1980s.
    Huntington et al., (2016) report that bearded and ringed seals are 
hunted from ice breakup until the spotted seals arrive and chase them 
from the area. The NAB (2016) also reported harvest efforts for spotted 
and ribbon seals in Kotzebue Sound. With the exception of bearded 
seals, there were limited hunting efforts in the spring (March-May) 
with nearly twice as much harvest effort in the fall (September-
November) and significantly less hunting in summer (June-August).
    Ribbon seals have always been infrequent in Kotzebue Sound, but are 
becoming increasingly more rare (Huntington et al., 2016). They are not 
harvested for human consumption, but their hides are harvested and meat 
and blubber used as dog food. Generally, hunters reported that there is 
less need for seal hunting than in the past because they are needed 
less for sled dog feed and sealskin storage containers (Huntington et 
al., 2016).
    Project activities mostly avoid traditional ice seal harvest 
windows (noted above) and are generally not expected to negatively 
impact hunting of seals. However, as noted above, some seal hunting 
does occur throughout the project period. The project could deter 
target species and their prey from the project area, increasing effort 
required for a successful hunt. Construction may also disturb beluga 
whales, potentially causing them to avoid the project area and reducing 
their availability to subsistence hunters as well. Additionally, 
Crowley's dock provides essential water access for subsistence 
harvests, so construction at the dock has the potential to reduce 
access for subsistence hunters.

Proposed 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 the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses. 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 the 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:

[[Page 23785]]

    (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, 
Crowley will employ the following 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);
     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 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.
    Additionally, Crowley is required to implement all mitigation 
measures described in the biological opinion (not yet issued).
    The following mitigation measures would apply to Crowley's in-water 
construction activities.
    Establishment of Shutdown Zones--Crowley will establish a 10-meter 
shutdown zone for all construction activities. The purpose of a 
shutdown zone is generally to define an area within which shutdown of 
the activity would occur upon sighting of a marine mammal (or in 
anticipation of an animal entering the defined area).
    The placement of protected species observers (PSOs) during all pile 
driving and removal activities (described in detail in the Proposed 
Monitoring and Reporting section) will ensure that the entire shutdown 
zone is visible during pile installation. Should environmental 
conditions deteriorate such that marine mammals within the entire 
shutdown zone would not be visible (e.g., fog, heavy rain), pile 
driving and removal must be delayed until the PSO is confident marine 
mammals within the shutdown zone could be detected.
    Monitoring for Level B Harassment--Crowley will monitor the Level B 
harassment zones (areas where SPLs are equal to or exceed the 120 dB 
rms threshold during vibratory pile driving). 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 Kotzebue will allow PSOs to observe 
marine mammals within the Level B harassment zones. However, due to the 
large Level B harassment zones (Table 8), PSOs will not be able to 
effectively observe the entire zone. Therefore, Level B harassment 
exposures will be recorded and extrapolated based upon the number of 
observed takes and the percentage of the Level B harassment zone that 
was not visible.
    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 considered 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. 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, work can 
commence and 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. If the entire Level B harassment 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 harassment zone and shutdown zones will commence.

Mitigation for Subsistence Uses of Marine Mammals or Plan of 
Cooperation

    Regulations at 50 CFR 216.104(a)(12) further require IHA applicants 
conducting activities that take place in Arctic waters to provide a 
Plan of Cooperation (POC) or information that identifies what measures 
have been taken and/or will be taken to minimize adverse effects on the 
availability of marine mammals for subsistence purposes. A plan must 
include the following:
     A statement that the applicant has notified and provided 
the affected subsistence community with a draft plan of cooperation;
     A schedule for meeting with the affected subsistence 
communities to discuss proposed activities and to resolve potential 
conflicts regarding any aspects of either the operation or the plan of 
cooperation;
     A description of what measures the applicant has taken 
and/or will take to ensure that proposed activities will not interfere 
with subsistence whaling or sealing; and
     What plans the applicant has to continue to meet with the 
affected communities, both prior to and while conducting the activity, 
to resolve conflicts and to notify the communities of any changes in 
the operation.
    Crowley provided a draft Plan of Cooperation (POC) to affected 
parties on November 12, 2019. It includes a description of the project, 
community outreach that has already been conducted, and project 
mitigation measures. Crowley is working on their plan for continuing 
coordination with subsistence communities throughout the project 
duration. The POC is a live document and will be updated

[[Page 23786]]

throughout the project review and permitting process.
    Crowley will coordinate with local subsistence groups to avoid or 
mitigate impacts to beluga whale harvests. Additionally, project 
activities avoid traditional ice seal harvest windows, and are not 
expected to negatively impact hunting of bearded or ringed seals. 
Crowley will coordinate with local communities and subsistence groups 
throughout construction to avoid or mitigate impacts to ice seal 
harvests.
    Based on our evaluation of Crowley's proposed measures, as well as 
other measures considered by NMFS, NMFS has preliminarily determined 
that the proposed 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, and on the availability of such species 
or stock for subsistence uses.

Proposed Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
proposed action area. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density).
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas).
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors.
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks.
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat).
     Mitigation and monitoring effectiveness.

Visual Monitoring

    Marine mammal monitoring must be conducted in accordance with the 
Marine Mammal Monitoring Plan, dated February 2020. Marine mammal 
monitoring during pile driving and removal must be conducted by NMFS-
approved PSOs in a manner consistent with the following:
     Independent PSOs (i.e., not construction personnel) who 
have no other assigned tasks during monitoring periods must be used;
     Where a team of three or more PSOs are required, a lead 
observer or monitoring coordinator must be designated. The lead 
observer must have prior experience working as a marine mammal observer 
during construction;
     Other PSOs may substitute education (degree in biological 
science or related field) or training for experience. PSOs may also 
substitute Alaska native traditional knowledge for experience. (NMFS 
recognizes that PSOs with traditional knowledge may also have prior 
experience, and therefore be eligible to serve as the lead PSO.); and
     Crowley must submit PSO CVs for approval by NMFS prior to 
the onset of pile driving.
    PSOs must have the following additional qualifications:
     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, times, and reason for implementation 
of mitigation (or why mitigation was not implemented when required); 
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.
    Three PSOs will be present during all pile driving/removal 
activities. A PSO will be have an unobstructed view of all water within 
the shutdown zone. All three PSOs will observe as much of the Level B 
harassment zone as possible. PSO locations are as follows (also 
included in Figure 2 of the 4MP, dated February 2020):
    (1) At or near the site of pile driving;
    (2) Along the shore, north of the project site; and
    (3) Along the shore, south of the project site.
    Monitoring would be conducted 30 minutes before, during, and 30 
minutes after pile driving/removal and drilling 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 or drilling equipment is no more than 
30 minutes.
Reporting
    A draft marine mammal monitoring report will 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 during observation, including direction of travel and 
estimated time spent within the Level A and Level B harassment zones 
while the source was active;

[[Page 23787]]

     Distance from pile driving activities to marine mammals 
and distance from the marine mammals to the observation point;
     Locations of all marine mammal observations;
     Detailed information about any implementation of any 
mitigation triggered (e.g., shutdowns and delays), a description of 
specific actions that ensued, and resulting behavior of the animal, if 
any;
     Description of attempts to distinguish between the number 
of individual animals taken and the number of incidences of take, such 
as ability to track groups or individuals;
     An 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; and
     Other human activity in the area.
    If no comments are received from NMFS within 30 days, the draft 
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 event that personnel involved in the construction activities 
discover an injured or dead marine mammal, the IHA-holder must 
immediately cease the specified activities and report the incident to 
the Office of Protected Resources (OPR) (301-427-8401), NMFS and to the 
Alaska regional stranding coordinator (907-586-7209) as soon as 
feasible. If the death or injury was clearly caused by the specified 
activity, the IHA-holder must immediately cease the specified 
activities until NMFS is able to review the circumstances of the 
incident and determine what, if any, additional measures are 
appropriate to ensure compliance with the terms of the IHA. The IHA-
holder must not resume their activities until notified by NMFS.
    The report must include the following information:
     Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
     Species identification (if known) or description of the 
animal(s) involved;
     Condition of the animal(s) (including carcass condition if 
the animal is dead);
     Observed behaviors of the animal(s), if alive;
     If available, photographs or video footage of the 
animal(s); and
     General circumstances under which the animal was 
discovered.

Monitoring Plan Peer Review

    The MMPA requires that monitoring plans be independently peer 
reviewed where the proposed activity may affect the availability of a 
species or stock for taking for subsistence uses (16 U.S.C. 
1371(a)(5)(D)(ii)(III)). Regarding this requirement, NMFS' implementing 
regulations state that upon receipt of a complete monitoring plan, and 
at its discretion, NMFS will either submit the plan to members of a 
peer review panel for review or within 60 days of receipt of the 
proposed monitoring plan, schedule a workshop to review the plan (50 
CFR 216.108(d)).
    NMFS established an independent peer review panel (PRP) to review 
Crowley's Monitoring Plan for the proposed project in Kotzebue. NMFS 
provided Crowley's monitoring plan to the PRP and asked them to answer 
the following questions:
    1. Will the applicant's stated objectives effectively further the 
understanding of the impacts of their activities on marine mammals and 
otherwise accomplish the goals stated below? If not, how should the 
objectives be modified to better accomplish the goals below?
    2. Can the applicant achieve the stated objectives based on the 
methods described in the plan?
    3. Are there technical modifications to the proposed monitoring 
techniques and methodologies proposed by the applicant that should be 
considered to better accomplish the objectives?
    4. Are there techniques not proposed by the applicant (i.e., 
additional monitoring techniques or methodologies) that should be 
considered for inclusion in the applicant's monitoring program to 
better accomplish the objectives?
    5. What is the best way for an applicant to present their data and 
results (formatting, metrics, graphics, etc.) in the required reports 
that are to be submitted to NMFS (i.e., 90-day report and comprehensive 
report)?
    The PRP met in March 2020 and will provide a final report to NMFS 
containing recommendations for Crowley's monitoring plan in April 2020. 
The PRP's full report will be posted on NMFS' website when available, 
at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. NMFS will consider 
all of the recommendations made by the PRP, and will incorporate 
appropriate changes in to the monitoring requirements of the IHA, if 
issued. Additionally, NMFS will publish the PRP's findings and 
recommendations in the Federal Register notice announcing the final 
IHA, if issued.

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).
    To avoid repetition, the majority of our analyses apply to all of 
the species listed in Table 12, given that many of the anticipated 
effects of this project on different marine mammal stocks are expected 
to be relatively similar in nature. Where there are meaningful 
differences between species or stocks in anticipated individual 
responses to activities, impact of expected take on the population due 
to differences in population status or impacts on habitat, they are 
described independently in the analysis below.
    Pile driving 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

[[Page 23788]]

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 and TTS. No mortality or serious injury is 
anticipated given the nature of the activity, and no Level A harassment 
is anticipated due to Crowley's construction method and planned 
mitigation measures (see Proposed 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, individuals 
will simply move away from the sound source and be temporarily 
displaced from the areas of pile driving and removal, although even 
this reaction has been observed primarily only in association with 
impact pile driving, which Crowley does not plan to conduct. Level B 
harassment will be reduced to the level of least practicable adverse 
impact through use of mitigation measures described herein. If sound 
produced by project activities is sufficiently disturbing, animals are 
likely to simply avoid the area while the activity is occurring, 
particularly as the project is expected to occur over just 87 in-water 
work days, with an estimated 100 minutes of pile driving per work day 
over a period of approximately 11 hours.
    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. We do not 
expect pile driving activities to have significant consequences to 
marine invertebrate populations. Given the short duration of the 
activities and the relatively small area of the habitat that may be 
affected, the impacts to marine mammal habitat, including fish and 
invertebrates, are not expected to cause significant or long-term 
negative consequences.
    As previously noted, the NAB subsistence mapping project identified 
Kotzebue Sound as an important use area for beluga feeding, birthing, 
rearing, and migration (Figure 8 in Crowley's application, originally 
from NAB, 2016). While the locations identified as important birthing 
areas do not overlap with calculated Level B harassment zone, the 
feeding, rearing, and migration important areas directly overlap with 
the Level B harassment zone. The area of the feeding, rearing, and 
migration important use areas in which impacts of Crowley's project may 
occur is small relative to both the overall area of the important use 
areas and the overall area of suitable beluga whale habitat outside of 
these important use areas. The area of Kotzebue Sound affected is also 
small relative to the rest of the Sound, such that it allows animals 
within the migratory corridor to still utilize Kotzebue Sound without 
necessarily being disturbed by the construction. Therefore, take of 
beluga whales using the feeding, rearing, and migratory important use 
areas, given both the scope and nature of the anticipated impacts of 
pile driving exposure, is not expected to impact reproduction or 
survivorship of any individuals.
    The NAB (2016) subsistence mapping project also identified Kotzebue 
Sound as an important use area for bearded seal feeding and migration 
(Figure 5 in Crowley's application). The area of the feeding and 
migratory important use areas in which impacts of Crowley's project may 
occur is small relative to both the overall area of the important use 
areas and the overall area of suitable bearded seal habitat outside of 
these important use areas. The area of Kotzebue Sound affected is also 
small relative to the rest of the Sound, such that it allows animals 
within the migratory corridor to still utilize Kotzebue Sound without 
necessarily being disturbed by the construction. Additionally, as 
previously described, we expect that most bearded seals will have left 
the area during the project period. Therefore, take of bearded seal 
using the feeding and migratory important use areas, given both the 
scope and nature of the anticipated impacts of pile driving exposure, 
is not expected to impact reproduction or survivorship of any 
individuals.
    The NAB (2016) subsistence mapping project also identified Kotzebue 
Sound as an important use area for ringed seal feeding, including a 
high density feeding area south of the project area (Figure 6 in 
Crowley's application). The area identified as important for high 
density feeding does not overlap with the calculated Level B harassment 
zone. The area of the feeding important use areas in which impacts of 
Crowley's project may occur is small relative to both the overall area 
of the important use areas and the overall area of suitable ringed seal 
habitat outside of these important use areas. Additionally, as 
previously described, NMFS expects that most ringed seals will have 
left the area during the project period. Therefore, take of ringed seal 
using the feeding and migratory important use areas, given both the 
scope and nature of the anticipated impacts of pile driving exposure, 
is not expected to impact reproduction or survivorship of any 
individuals.
    Additionally, the NAB subsistence mapping project identified 
Kotzebue Sound as an important use area for spotted seal feeding, 
birthing, rearing, and migration, as well as important haul outs 
(Figure 9 in Crowley's application, originally from NAB, 2016). While 
the locations identified as important birthing areas do not overlap 
with calculated Level B harassment zone, the feeding, rearing, and 
migration important use areas directly overlap with the Level B 
harassment zone, and one key haulout is adjacent to the Level B 
harassment zone. However, the area of the feeding (including high 
density feeding), rearing, and migration important use areas in which 
impacts of Crowley's project may occur is small relative to both the 
overall area of the important use area and the overall area of suitable 
spotted seal habitat outside of these important use areas. The area of 
Kotzebue Sound affected is also small relative to the rest of the 
Sound, such that it allows animals within the migratory corridor to 
still utilize Kotzebue Sound without necessarily being disturbed by the 
construction. Therefore, take of spotted seals using the feeding and 
migratory important use areas and important haul outs, given both the 
scope and nature of the anticipated impacts of pile driving exposure, 
is not expected to impact reproduction or survivorship of any 
individuals.
    As previously described, UMEs have been declared for both gray 
whales and ice seals, however, neither UME provides cause for concern 
regarding population-level impacts to any of these stocks. For gray 
whales, the estimated abundance of the Eastern North Pacific stock is 
26,960 (Carretta et al., 2019) and the stock abundance has increased 
approximately 22% in comparison with 2010/2011 population levels 
(Durban et al., 2017). For bearded seals, the minimum estimated mean M/
SI (557) is well below the calculated partial PBR (8,210). This PBR is 
only a portion of that of the entire stock, as it does not included 
bearded seals that overwinter and breed in the Beaufort or Chukchi Seas 
(Muto et al., 2019). For the Alaska

[[Page 23789]]

stock of ringed seals and the Alaska stock of spotted seals, the M/SI 
(863 and 329, respectively) is well below the PBR for each stock (5,100 
and 12,697, respectively) (Muto et al., 2019). No injury, serious 
injury, or mortality is expect or proposed for authorization, and Level 
B harassment takes of gray whale and ice seal species will be reduced 
to the level of least practicable adverse impact through the 
incorporation of the proposed mitigation measures. As such, the 
proposed Level B harassment takes of gray whales and ice seals would 
not exacerbate or compound upon the ongoing UMEs.
    In summary and as described above, the following factors primarily 
support our preliminary 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 or serious injury or PTS is anticipated or 
authorized;
     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; and
     While impacts would occur within areas that are important 
for feeding, birthing, rearing, and migration for multiple stocks, 
because of the small footprint of the activity relative to the area of 
these important use areas, and the scope and nature of the anticipated 
impacts of pile driving exposure, we do not expect impacts to the 
reproduction or survival of any individuals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed activity will have a negligible impact on 
all affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under 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.
    The number of instances of take for each species or stock proposed 
to be taken as a result of this project is included in Table 12. Our 
analysis shows that less than one-third of the best available 
population abundance estimate of each stock could be taken by 
harassment. The number of animals proposed to be taken for the Eastern 
North Pacific gray whale stock, Alaska minke whale stock, Beaufort Sea 
and Eastern Chuckchi Sea beluga whale stocks, Bering Sea harbor 
porpoise stock, and Alaska stocks of bearded, ringed, spotted and 
ribbon seals stocks discussed above would be considered small relative 
to the relevant stock's abundances even if each estimated taking 
occurred to a new individual, which is an unlikely scenario.
    For beluga whale, the percentages in Table 12 also conservatively 
assume that all takes of beluga whale will be accrued to a single 
stock, when multiple stocks are known to occur in the project area. 
Additionally, we expect that most beluga whale takes will be of the 
same individuals, given that the calculated Level B harassment zone is 
an extremely small portion of each stock's overall range (Muto et al., 
2019a) and, therefore, the percentage of the stock taken is expected to 
be lower than that indicated in Table 12.
    A lack of an accepted stock abundance value for the Alaska stock of 
minke whale did not allow for the calculation of an expected percentage 
of the population that would be affected. The most relevant estimate of 
partial stock abundance is 1,232 minke whales in coastal waters of the 
Alaska Peninsula and Aleutian Islands (Zerbini et al., 2006). Given 
seven proposed takes by Level B harassment for the stock, comparison to 
the best estimate of stock abundance shows less than 1 percent of the 
stock is expected to be impacted.
    For the Alaska stock of bearded seals, a lack of an accepted stock 
abundance value did not allow for the calculation of an expected 
percentage of the population that would be affected. As noted in the 
2019 Draft Alaska SAR (Muto et al., 2019), an abundance estimate is 
currently only available for the portion of bearded seals in the Bering 
Sea (Conn et al., 2012). The current abundance estimate for the Bering 
Sea is 301,836 bearded seals. Given the proposed 1,199 Level B 
harassment takes for the stock, comparison to the Bering Sea estimate, 
which is only a portion of the Alaska Stock (also includes animals in 
the Chukchi and Beaufort Seas), shows less that, at most, less than one 
percent of the stock is expected to be impacted.
    The Alaska stock of ringed seals also lack an accepted stock 
abundance value, and therefore, we were not able to calculate an 
expected percentage of the population that may be affected by Crowley's 
project. As noted in the 2019 Draft Alaska SAR (Muto et al., 2019), the 
abundance estimate available, 171,418 animals, is only a partial 
estimate of the Bering Sea portion of the population (Conn et al., 
2014). As noted in the SAR, this estimate does not include animals in 
the shorefast ice zone, and the authors did not account for 
availability bias. Muto et al. (2019) expect that the Bering Sea 
portion of the population is actually much higher. Given the proposed 
6,312 Level B harassment takes for the stock, comparison to the Bering 
Sea partial estimate, which is only a portion of the Alaska Stock (also 
includes animals in the Chukchi and Beaufort Seas), shows less that, at 
most, less than 4 percent of the stock is expected to be impacted.
    The expected take of the Gulf of Alaska, Aleutian Islands, and 
Bering Sea Transient stock of killer whales, as a proportion of the 
population abundance, would be 58.8 percent if all takes were assumed 
to occur for unique individuals. However, it is unlikely that all takes 
would occur to unique individuals. The stock's SAR shows a distribution 
that does not extend north beyond the Bering Sea. Therefore, we expect 
that the individuals in the project area represent a small portion of 
the stock, and that it is likely that there will be multiple takes of a 
small number of individuals within the project area. As such, it is 
highly unlikely that more than one-third of the stock would be exposed 
to the construction noise.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily 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

[[Page 23790]]

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.
    Bowhead whale are primarily targeted outside of the Sound, and the 
project is not expected to impact any prey species or migratory 
behavior. Beluga whales have been traditionally harvested in abundance 
at Sisualiq, and project impacts are not expected to reach traditional 
harvest areas. Additionally, project activities avoid traditional ice 
seal harvest windows. While some hunting continues throughout the 
summer, we do not anticipate that there would be impacts to seals that 
would make them unavailable for subsistence hunters. Additionally, 
Crowley will coordinate with local communities and subsistence groups 
to avoid or mitigate impacts to beluga whale and ice seal harvests, as 
noted in the Proposed Mitigation section.
    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 proposed mitigation and 
monitoring measures, NMFS has preliminarily determined that there will 
not be an unmitigable adverse impact on subsistence uses from Crowley's 
proposed 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 whenever we propose to authorize take for 
endangered or threatened species, in this case with the Alaska Region's 
Protected Resources Division Office.
    NMFS is proposing to authorize take of bearded seal (Beringia DPS) 
and ringed seal (Arctic subspecies), which are listed under the ESA. 
The Permit and Conservation Division has requested initiation of 
Section 7 consultation with the Alaska Region for the issuance of this 
IHA. NMFS will conclude the ESA consultation prior to reaching a 
determination regarding the proposed issuance of the authorization.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to Crowley Fuels, LLC for conducting the Crowley Kotzebue 
Dock Upgrade Project in Kotzebue, Alaska beginning in June 2020, 
provided the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated. A draft of the proposed IHA can be found 
at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

Request for Public Comments

    We request comment on our analyses, the proposed authorization, and 
any other aspect of this Notice of Proposed IHA for the proposed 
project. In particular, we request comment on the marine mammal density 
and group size information used to inform the proposed take 
calculation. We also request at this time comment on the potential 
Renewal of this proposed IHA as described in the paragraph below. 
Please include with your comments any supporting data or literature 
citations to help inform decisions on the request for this IHA or a 
subsequent Renewal IHA.
    On a case-by-case basis, NMFS may issue a one-year Renewal IHA 
following notice to the public providing an additional 15 days for 
public comments when (1) up to another year of identical or nearly 
identical, or nearly identical, activities as described in the 
Specified Activities section of this notice is planned or (2) the 
activities as described in the Specified Activities section of this 
notice would not be completed by the time the IHA expires and a Renewal 
would allow for completion of the activities beyond that described in 
the Dates and Duration section of this notice, provided all of the 
following conditions are met:
     A request for renewal is received no later than 60 days 
prior to the needed Renewal IHA effective date (recognizing that the 
Renewal IHA expiration date cannot extend beyond one year from 
expiration of the initial IHA).
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted under the 
requested Renewal IHA are identical to the activities analyzed under 
the initial IHA, are a subset of the activities, or include changes so 
minor (e.g., reduction in pile size) that the changes do not affect the 
previous analyses, mitigation and monitoring requirements, or take 
estimates (with the exception of reducing the type or amount of take).
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
     Upon review of the request for Renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.

    Dated: April 23, 2020.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2020-09040 Filed 4-28-20; 8:45 am]
BILLING CODE 3510-22-P