Takes of Marine Mammals Incidental To Specified Activities; Taking Marine Mammals Incidental to the Crowley Kotzebue Dock Upgrade Project in Kotzebue, Alaska, 40971-40990 [2020-14628]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 85, Number 131 (Wednesday, July 8, 2020)]
[Notices]
[Pages 40971-40990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14628]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA236]


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; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
Crowley Fuels, LLC to incidentally harass, by Level B harassment only, 
marine mammals during construction activities associated with the 
Crowley Kotzebue Dock Upgrade in Kotzebue, Alaska.

[[Page 40972]]


DATES: This Authorization is effective from July 6, 2020 through July 
5, 2021.

FOR FURTHER INFORMATION CONTACT: Leah Davis, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon 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.

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 Activity

    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 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.
    A detailed description of the planned project is provided in the 
Federal Register notice for the proposed IHA (85 FR 23766; April 29, 
2020). Since that time, no changes have been made to the planned 
construction activities (other than schedule changes, noted below). 
Therefore, a detailed description is not provided here. Please refer to 
that Federal Register notice for the description of the specific 
activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Crowley was published 
in the Federal Register on April 29, 2020 (85 FR 23766). That notice 
described, in detail, Crowley's activity, the marine mammal species 
that may be affected by the activity, and the anticipated effects on 
marine mammals. During the 30-day public comment period, NMFS received 
comments from the Marine Mammal Commission (Commission). Additionally, 
NMFS received three recommendations from an Arctic Peer Review Panel 
(PRP) convened by NMFS that were beyond the scope of the peer review 
process (please see the Monitoring Plan Peer Review section, below), 
and have therefore been considered as equivalent to public comments. 
NMFS also received a letter from the general public. All substantive 
recommendations are responded to here. The comments and recommendations 
have been posted online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. Please see the Commission's letter and the PRP report for 
full details regarding the recommendations and supporting rationale.
    Comment 1: The Commission and the PRP recommended that NMFS reduce 
the number of authorized Level B harassment takes of beluga whale given 
more recent survey information (Frost and Lowry 1990, Alaska Beluga 
Whale Committee (ABWC) 2008) than was referenced in the proposed 
authorization (Frost et al., 1983). The panel noted that the number of 
beluga whales in Kotzebue Sound may be less than 50 animals per year, 
as they have declined since the mid-1980s (Frost and Lowry 1990; ABWC 
2008). The panel suggested that 200 Level B harassment takes of beluga 
whales may be more appropriate, but recommended that Crowley consult 
further with NMFS. The Commission recommended that NMFS reduce the 
number of Level B harassment takes from 100 to 51 on each project day 
based on the Alaska Department of Fish and Game's (ADFG) 1987 survey 
(ABWC 2008).
    Response: NMFS agrees that this more-recent data suggests that the 
proposed number of Level B harassment takes of beluga whale is likely 
an overestimate. Given that each beluga whale potentially present in 
the project area has the potential to be taken by Level B harassment 
each project day, NMFS expects that 200 Level B harassment takes may 
not be sufficient. Therefore, as suggested by the Commission, NMFS has 
estimated that 51 Level B harassment takes of beluga whale may occur on 
each of the 87 project days, based on the ADFG 1987 aerial surveys. 
Therefore, NMFS has authorized a total of 4,437 Level B harassment 
takes of beluga whale.
    Comment 2: The Commission recommended that NMFS increase the shut-
down zone from 10 to 15 meters (m) for high-frequency (HF) cetaceans 
during vibratory installation of sheet piles.
    Response: NMFS does not concur and does not accept the Commission's 
recommendation. The largest Level A harassment zone for HF cetaceans is 
13 m, and NMFS has included a 10 m shutdown zone for all activities, as 
included in the proposed authorization. Given the duration component 
associated with actual occurrence of Level A harassment take, a 10 m 
shutdown zone is sufficient to prevent

[[Page 40973]]

the potential for permanent threshold shift (PTS), i.e., Level A 
harassment take, in an estimated 13 m Level A harassment zone.
    Comment 3: The Commission recommended that NMFS require Crowley to 
position its southernmost Protected Species Observer (PSO) farther 
north along Beach Trail, suggesting that this location minimizes the 
gap between the observers and maximizes the extent of the Level B 
harassment zone(s) observed. Additionally, the Commission recommends 
that Crowley position the PSOs on elevated platforms, if feasible.
    Response: NMFS concurs with the recommendation to position PSOs on 
elevated platforms, and is requiring Crowley to provide elevated 
monitoring locations for all PSOs. However, NMFS did not adopt the 
Commission's recommended location for Crowley's southernmost PSO. The 
southernmost PSO will be stationed on a raised platform on the seawall 
`bump-out' in front of the Nulla[gdot]vik hotel. Given the shoreline 
configuration, NMFS expects that the sound is unlikely to propagate 
along the shoreline by the Beach Trail, and therefore expects that the 
Nulla[gdot]vik hotel is a more appropriate location for the 
southernmost PSO. NMFS has included the required number and locations 
of PSOs in the final authorization and in this notice.
    Comment 4: The Commission recommended that NMFS include all of the 
peer review panel's recommendations in the Federal Register notice of 
issuance and specify which recommendations were implemented, as well as 
the rationale for those that were not implemented.
    Response: NMFS concurs with the recommendation and has included a 
thorough explanation of the peer review panel's recommendations in the 
Monitoring Plan Peer Review section of this notice. This discussion 
outlines the recommendations as well as whether, and if so, how the 
recommendations will be implemented. The discussion also includes 
rationale for why some recommendations were not implemented.
    Comment 5: The Commission recommended that NMFS revise its standard 
condition for ceasing in-water heavy machinery activities to include, 
as examples, movement of the barge to the pile location, positioning of 
the pile on the substrate, use of barge-mounted excavators, and 
dredging in all draft and final incidental take authorizations 
involving pile driving and removal.
    Response: NMFS does not adopt this recommendation as stated. The 
examples are simply intended to serve as examples. We will consider 
revising these examples on a case-specific basis.
    Comment 6: The Commission recommended that NMFS include in the 
final authorization the requirement that Crowley conduct pile-driving 
activities during daylight hours only.
    Response: NMFS does not agree that it is necessary to stipulate 
that the activity may only occur during daylight hours and does not 
adopt the recommendation. As noted in the Federal Register notice for 
the proposed authorization (85 FR 23766; April 29, 2020), Crowley does 
plan to conduct pile driving during daylight hours only. While Crowley 
has no intention of conducting pile driving activities at night, it is 
unnecessary to preclude such activity should the need arise (e.g., on 
an emergency basis or to complete driving of a pile begun during 
daylight hours, should the construction operator deem it necessary to 
do so).
    Comment 7: The Commission recommended that NMFS ensure that Crowley 
keeps a running tally of the total takes, based on observed and 
extrapolated takes, for Level B harassment consistent with condition 
4(f) of the final authorization.
    Response: We agree that Crowley must ensure they do not exceed 
authorized takes but do not concur with the recommendation. NMFS is not 
responsible for ensuring that Crowley does not operate in violation of 
an issued IHA.
    Comment 8: The Commission recommended that NMFS refrain from 
issuing renewals for any authorization and instead use its abbreviated 
Federal Register notice process. If NMFS continues to propose to issue 
renewals, the Commission recommends that it (1) stipulate that a 
renewal is a one-time opportunity (a) in all Federal Register notices 
requesting comments on the possibility of a renewal, (b) on its web 
page detailing the renewal process, and (c) in all draft and final 
authorizations that include a term and condition for a renewal and, (2) 
if NMFS declines to adopt this recommendation, explain fully its 
rationale for not doing so.
    Response: NMFS concurs with the recommendation to stipulate that a 
renewal is a one-time opportunity and has done so in the issued IHA. 
However, NMFS does not agree with the remainder of the Commission's 
recommendations on this topic and, therefore, does not adopt those 
recommendations. NMFS will provide a detailed explanation of its 
decision within 120 days, as required by section 202(d) of the MMPA.
    Comment 10: The PRP recommended that Crowley revise their 
application to clarify the metrics being used to estimate take for each 
species.
    Response: NMFS clearly describes the methodology for estimating 
take for each species in this notice. Therefore, NMFS did not require 
Crowley to update their application.
    Comment 11: The PRP recommended that Crowley consider deploying a 
sound attenuation device to minimize the potential for takes by Level B 
harassment and reduce the uncertainty in takes for distances exceeding 
the PSOs' visible ranges.
    Response: The majority of the piles that Crowley will install are 
sheet piles. Effectively implementing sound attenuation for sheet piles 
is difficult, and Crowley does not expect that they would be able to 
achieve effective attenuation for these piles. Additionally, Crowley is 
conducting vibratory pile driving and removal only (no impact pile 
driving), therefore, the calculated Level A harassment isopleths are 
already very small (<14 m) and will be easy for PSOs to observe. 
Therefore, NMFS is not requiring Crowley to use a sound attenuation 
device.

Changes From the Proposed IHA to Final IHA

    Crowley has pushed back their start date to July 6, 2020, rather 
than June 1, 2020 as included in the proposed authorization. Because of 
Crowley's delayed start, construction has potential to extend through 
June 2021. Therefore, NMFS has not reduced the take calculation from 
what was proposed (including higher take estimates for ringed and 
bearded seals the month of June when more seals are expected to be 
present). However, NMFS corrected an error in the number of Level B 
harassment takes of bearded seals in the month of June, which resulted 
in a corrected total of 1,115 Level B harassment takes of bearded seal. 
As discussed in the comment responses above, the daily take estimate 
for beluga whales was reduced from 100 to 51 whales per day on the 
basis of newer information, for a total of 4,437 Level B harassment 
takes.
    NMFS has modified Crowley's monitoring requirements based, in part, 
on the peer review of the monitoring plan. See ``Monitoring,'' later in 
this document for full details. Based on the peer review panel's 
report, PSO #3 will be stationed on a raised platform on the seawall 
``bump-out'' in front of the Nulla[gdot]vik Hotel, and PSOs will record 
visibility conditions at 30 minute intervals. Separate from the peer 
review report, PSO #2 has been relocated also due to the applicant's 
inability to gain property access. PSO #2 is now located

[[Page 40974]]

on the Goodwin property, approximately 2 nautical miles northeast of 
the project site. Crowley will implement sound source verification 
(SSV) and passive acoustic monitoring (PAM) for marine mammals, as 
recommended by the peer review panel. Please refer to the Monitoring 
Plan Peer Review section for additional details regarding the panel's 
recommendations and whether or how Crowley will implement them.
    NMFS also made a correction to the reporting measure concerning 
dead and injured marine mammals. The correction clarifies that Crowley 
must only cease activities if the death or injury was clearly caused by 
the specified activity.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS's 
website (https://www.fisheries.noaa.gov/find-species).
    Table 1 lists all species or stocks for which take is expected and 
authorized for this action, and summarizes information related to the 
population or stock, including regulatory status under the MMPA and 
Endangered Species Act (ESA) and potential biological removal (PBR), 
where known. For taxonomy, we follow Committee on Taxonomy (2019). PBR 
is defined by the MMPA as the maximum number of animals, not including 
natural mortalities, that may be removed from a marine mammal stock 
while allowing that stock to reach or maintain its optimum sustainable 
population (as described in NMFS's SARs). While no mortality is 
anticipated or authorized here, PBR and annual serious injury and 
mortality from anthropogenic sources are included here as gross 
indicators of the status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's U.S. 2018 SARs and draft 2019 SARs (e.g., Muto et al., 2019). 
All values presented in Table 1 are the most recent available at the 
time of publication and are available in the 2018 SARs (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 1--Species for Which Take Is Reasonably Likely to Occur
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                             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\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Eschrichtiidae:
    Gray whale:.....................  Eschrichtius robustus.  Eastern North Pacific.  -/- ; N               26,960 (0.05, 25,849,         801        139
                                                                                                             2016).
Family Balaenopteridae (rorquals):
    Minke whale.....................  Balaenoptera            Alaska................  -/- ; N               NA (see SAR, NA, see          UND          0
                                       acutorostrata.                                                        SAR).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
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
--------------------------------------------------------------------------------------------------------------------------------------------------------
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).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-species-stock. 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 mortality/serious injury (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 1 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur, and we have authorized 
it. All species that could potentially occur in the project area 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 in the nearshore area within Kotzebue Sound. As 
noted in the Specific Geographic Region section of our notice of 
proposed

[[Page 40975]]

IHA, 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.
    A detailed description of the species likely to be affected by 
Crowley's project, including brief introductions to the species and 
relevant stocks as well as available information regarding population 
trends and threats, and information regarding local occurrence, were 
provided in the Federal Register notice for the proposed IHA (85 FR 
23766; April 29, 2020); since that time, we are not aware of any 
changes in the status of these species and stocks; therefore, detailed 
descriptions are not provided here. Please refer to that Federal 
Register notice for these descriptions. Please also refer to NMFS' 
website (https://www.fisheries.noaa.gov/find-species) for generalized 
species accounts.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from Crowley's construction 
activities have the potential to result in behavioral harassment of 
marine mammals in the vicinity of the survey area. The notice of 
proposed IHA (85 FR 23766; April 29, 2020) included a discussion of the 
effects of anthropogenic noise on marine mammals and the potential 
effects of underwater noise from Crowley's construction activities on 
marine mammals and their habitat. That information and analysis is 
incorporated by reference and is not repeated here; please refer to the 
notice of proposed IHA (85 FR 23766; April 29, 2020).

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform both NMFS' consideration 
of ``small numbers'' and the negligible impact determination. 
Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes would be by Level B harassment only, in the form 
of disruption of behavioral patterns and/or temporary threshold shift 
(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 Mitigation Measures section, Level A 
harassment is neither anticipated nor authorized.
    As described previously, no mortality is anticipated or authorized 
for this activity. Below we describe how the take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
and the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes available (e.g., previous 
monitoring results or average group size). Below, we describe the 
factors considered here in more detail and present the take estimate.

Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic 
thresholds that identify the received level of underwater sound above 
which exposed marine mammals would be reasonably expected to be 
behaviorally harassed (equated to Level B harassment) or to incur PTS 
of some degree (equated to Level A harassment).
    Level B Harassment for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2012). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals are 
likely to be behaviorally harassed in a manner we consider Level B 
harassment when exposed to underwater anthropogenic noise above 
received levels of 120 decibel (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 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 project includes the use of 
non-impulsive (vibratory pile driving) sources.
    These thresholds are provided in Table 2. The references, analysis, 
and methodology used in the development of the thresholds are described 
in NMFS 2018 Technical Guidance, which may be accessed at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

[[Page 40976]]



                     Table 2--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                     PTS onset acoustic thresholds * (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lpk,flat: 219 dB;   Cell 2: LE,LF,24h: 199 dB
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lpk,flat: 230 dB;   Cell 4: LE,MF,24h: 198 dB
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lpk,flat: 202 dB;   Cell 6: LE,HF,24h: 173 dB
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lpk,flat: 218 dB;   Cell 8: LE,PW,24h: 201 dB
                                          LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: Lpk,flat: 232 dB;   Cell 10: LE,OW,24h: 219 dB
                                          LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [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 kilometer (km) (2.0 miles (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 3. Source levels for vibratory installation and removal of 
piles of the same diameter are assumed to be the same.

              Table 3--Sound Source Levels for Pile Driving
------------------------------------------------------------------------
                                     Source level
             Pile size              (dB RMS SPL at    Literature source
                                         10m)
------------------------------------------------------------------------
Template Piles (18-inch pipe                 158.0  Pritchard Lake
 piles) \a\.                                         Pumping Plant,
                                                     2014.\b\
Alternate Template Piles (14-inch            158.8  URS Corporation,
 H piles). \a\.                                      2007 \c\
Anchor Piles (14-inch H piles).              158.8  URS Corporation,
 \b\.                                                2007.\c\
Sheet Piles.......................           160.7  PND, 2016.
------------------------------------------------------------------------
\a\ We have conservatively conducted the analysis with the maximum
  potential pile sizes that Crowley 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-meter 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

[[Page 40977]]

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 4--User Spreadsheet Input Parameters Used for Calculating Level A Harassment Isopleths
----------------------------------------------------------------------------------------------------------------
                                                                     Alternate
                                                 Template piles   template piles   Anchor piles
                                               (18-in pipe pile)     (14-in H-       (14-in H-      Sheet piles
                                                                      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
----------------------------------------------------------------------------------------------------------------
Note: All calculations were completed in User Spreadsheet tab A.1: Vibratory Pile Driving with a weighting
  factor adjustment of 2.5kHz.


                                        Table 5--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.


  Table 6--Estimated Area Ensonified Above the Level B Harassment Take
     Threshold, and Estimated Days of Construction for Each Activity
------------------------------------------------------------------------
                                 Estimated area
                                ensonified above
          Pile size            level b harassment    Estimated duration
                                 take threshold            (days)
                                     (km\2\)
------------------------------------------------------------------------
Template Piles (18-in Pipe                    24.8                \a\ 37
 Pile)......................
Alternate Template Piles (14-                 32.1                \a\ 37
 in H-piles)................
Anchor Piles (14-in H-piles)                  32.1                     2
Sheet Piles.................                  52.5                    48
All Activities..............  ....................                    87
------------------------------------------------------------------------
\a\ Includes both installation and removal.
Note: The estimated days of construction for each activity include a 10
  percent contingency period to account for potential construction
  delays.

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 planned 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 has authorized 15 Level B harassment takes of gray 
whale.
    The largest Level A harassment zone for low-frequency cetaceans 
extends 8.5 m from the source during vibratory pile driving of the 
sheet piles (Table 5). Crowley is planning to implement a 10 m 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 has NMFS authorized any.
Minke Whale
    Minke whales were reported as sometimes present in Kotzebue Sound 
during the summer months and two

[[Page 40978]]

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 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 has authorized eight Level B harassment takes of minke 
whale.
    The largest Level A harassment zone for low-frequency cetaceans 
extends 8.5 m from the source during vibratory pile driving of the 
sheet piles (Table 5). Crowley is planning to implement a 10 m 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 has NMFS authorized 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. NMFS and Crowley 
initially estimated that 100 beluga whales may be taken, by Level B 
harassment, on each project day. However, as noted previously, the PRP 
and the Commission noted that this estimate is likely too high given 
more recent data (ABWC, 2008). The ABWC (2008) notes that in an aerial 
survey of Kotzebue Sound in June and July 1987, researchers observed a 
maximum count of 51 beluga whales. The article notes that in later 
surveys (1996-98) in Kotzebue Sound, researchers observed fewer than 15 
belugas per day, however, the authors state that this may have been 
partly due to the surveys being conducted too late in the season. Based 
on the surveys described in ABWC (2008), and as recommended by the 
Commission, NMFS has reduced the number of Level B harassment takes of 
beluga whale. NMFS conservatively estimates that up to 51 beluga whales 
may be taken by Level B harassment on each project day. Therefore, NMFS 
has conservatively authorized 4,437 Level B harassment takes of beluga 
whale (51 beluga whales x 87 estimated in-water work days = 4,437 Level 
B harassment takes).
    The largest Level A harassment zone for mid-frequency cetaceans 
extends 0.8 m from the source during vibratory installation of the 
sheet piles (Table 5). Crowley is planning to implement a 10 m 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 authorized.
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 has 
authorized 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 0.8 m from the source during vibratory installation of the 
sheet piles (Table 5). Crowley is planning to implement a 10 m 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, nor has 
NMFS authorized any.
Harbor Porpoise
    The harbor porpoise frequents nearshore waters and coastal 
embayments throughout their range, including bays, harbors, estuaries, 
and fjords less than 650 feet (ft) (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). 
Crowley plans to construct 14 cells in the 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 approximately two groups of four harbor porpoises may be present 
during each week of construction, and has authorized 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 12.6 m from the source during vibratory installation of the 
sheet piles (Table 5). Crowley is planning to implement a 10 m 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 has NMFS authorized 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 km\2\. 
Bearded seals were typically spotted in groups of one to two 
individuals with occasional larger

[[Page 40979]]

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 in 
June, and will taper off as the ice melts (Quakenbush et al., 2019). As 
such, for the proposed authorization, NMFS estimated bearded seal take 
for the month of June separately from the remainder of the expected 
project period (July through September). Crowley is now beginning 
construction in July. Given this delay, the open-water construction 
season is shorter, and there is a chance that Crowley may need to 
extend construction into June of 2021. Therefore, NMFS retains the 
separate calculation for bearded seal take in the month of June in the 
final authorization.
    As noted in the Detailed Description of Specific Activity section 
in the Federal Register notice for the proposed IHA (85 FR 23766; April 
29, 2020), 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 
7) 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 7) 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 7), NMFS estimates 
approximately 961 bearded seal takes in the month of June (sum of Takes 
per Activity in Table 7).

                                              Table 7--NMFS Assumptions for Bearded Seal June Take Estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                     Area of level B
                             Pile type                                  Assumed      Assumed days     Anticipated    harassment zone   Take per activity
                                                                     project days      per cell      days in June        (km\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Template Piles \a\................................................          \b\ 37             3.0              12               32.1                301
Anchor Piles (14-in H-piles)......................................               2             0.2             0.8               32.1                 20
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 has 
authorized 1,115 Level B harassment takes of bearded seals (961 
estimated takes in June + 154 estimated takes from July to September = 
1,115 Level B harassment takes).
    The largest Level A harassment zone for phocids extends 5.2 m from 
the source during vibratory installation of the sheet piles (Table 5). 
Crowley is planning to implement a 10 m 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 
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

[[Page 40980]]

be highest when the project begins in June, and will taper off as the 
ice melts (Quakenbush et al., 2019). As such, for the proposed 
authorization, NMFS estimated ringed seal take for the month of June 
separately from the remainder of the expected project period (July 
through September). Crowley is now beginning construction in July. 
Given this delay, the open-water construction season is shorter, and 
there is a chance that Crowley may need to extend construction into 
June of 2021. Therefore, NMFS has still separately calculated ringed 
seal take for the month of June in the final authorization.
    As noted in the Description of 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 
8) 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 8) 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 8), NMFS estimates 6,235 ringed seal takes in the month of June 
(sum of Takes per Activity in Table 8).

                                              Table 8--NMFS Assumptions for Ringed Seal June Take Estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Assumed                                      Area of level B
                             Pile type                               project days    Assumed days     Anticipated    harassment zone   Take per activity
                                                                          \b\          per cell      days in June        (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.

    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 has 
authorized 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 5.2 m from 
the source during vibratory installation of the sheet piles (Table 5). 
Crowley is planning to implement a 10 m 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 
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 6) 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

[[Page 40981]]

over 50 km 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 has authorized 6,917 Level B 
harassment takes of spotted seal.
    The largest Level A harassment zone for phocids extends 5.2 m from 
the source during vibratory installation of the sheet piles (Table 5). 
Crowley is planning to implement a 10 m 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 
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 has authorized eight Level B 
harassment takes of ribbon seal.
    The largest Level A harassment zone for phocids extends 5.2 m from 
the source during vibratory installation of the sheet piles (Table 5). 
Crowley is planning to implement a 10 m 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 
authorized.

                       Table 9--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
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............           4,437          39,258            11.3
                                        Eastern Chukchi Sea.....                          20,752            21.4
Harbor Porpoise.......................  Bering Sea..............             120          48,215             0.2
Bearded Seal..........................  Alaska..................           1,115             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 
Mitigation Measures section. Last, the information from this section 
and the Mitigation Measures 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

[[Page 40982]]

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.

Mitigation Measures

    In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to 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:
    (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.
    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 PSOs during all pile driving and removal 
activities (described in detail in the 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 sound pressure levels (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 5), PSOs will not be able to effectively observe the 
entire zone. Therefore, Level B harassment exposures will be recorded 
and extrapolated based upon the

[[Page 40983]]

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 of 
30 minutes or longer occurs, PSOs will observe the shutdown and 
monitoring zones for a period of 30 minutes. 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, pile driving/removal 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 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 may continue to be updated.
    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. Additionally, Crowley will regularly communicate throughout 
the project by broadcast public radio announcement and periodic 
activity reports to interested parties via email.
    Based on our evaluation of Crowley's proposed measures, as well as 
other measures considered by NMFS, NMFS has determined that the 
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.

Monitoring and Reporting

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

Visual Monitoring

    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 Curriculum Vitae 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;

[[Page 40984]]

     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. One PSO will have an unobstructed view of all water within 
the shutdown zone, and all three PSOs will observe as much of the Level 
B harassment zone as possible. One PSO must be stationed on an elevated 
platform at each of the following locations:
    (1) At or near the site of pile driving;
    (2) Goodwin property (approximately 2 nautical miles northeast of 
pile driving site); and
    (3) Seawall `bump-out' in front of the Nulla[gdot]vik hotel.
    Monitoring would be conducted 30 minutes before, during, and 30 
minutes after pile driving/removal activities. Observers shall record 
all incidents of marine mammal occurrence, regardless of distance from 
activity, and shall document any behavioral reactions in concert with 
distance from piles being driven or removed. Pile driving activities 
include the time to install or remove a single pile or series of piles, 
as long as the time elapsed between uses of the pile driving equipment 
is no more than 30 minutes. PSOs must also record visibility conditions 
every 30 minutes based on established on-land reference landmarks.
    Additionally, two PSOs are required to monitor for a one-week 
period before and after pile driving.

Acoustic Monitoring

    Crowley intends to conduct a SSV study to confirm the sound source 
levels, transmission loss coefficient, and size of the Level A and 
Level B harassment zones. They intend to request a modification to the 
zones, if appropriate based on the results of the SSV study. Their plan 
follows accepted methodological standards to achieve their objectives, 
and is available on NMFS' website at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. If NMFS approves the results of the SSV study, we will modify the 
zone sizes based on the approved data. Additionally, Crowley intends to 
conduct PAM to record marine mammal vocalizations for 1-2 weeks. 
Acoustic monitoring report requirements are listed in the Reporting 
section, below.
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:
     Dates and times (begin and end) of all marine mammal 
monitoring.
     Construction activities occurring during each daily 
observation period, including precise start and stop time of each type 
of construction operation mode, how many and what type of piles were 
driven or removed and by what method (i.e., impact or vibratory).
     Total number of hours during which each construction 
activity type occurred.
     Total number of hours that PSOs were on duty during each 
construction activity, and total number of hours that PSOs were on duty 
during periods of no construction activity.
     Weather parameters and water conditions during each 
monitoring period (e.g., wind speed, percent cover, visibility, sea 
state), and number of hours of observation that occurred during various 
visibility and sea state conditions.
     The number of marine mammals observed, by species, 
relative to the active construction cell location and if pile driving 
or removal was occurring at time of sighting.
     Age and sex class, if possible, of all marine mammals 
observed.
     PSO locations during marine mammal monitoring, including 
elevation above sea level.
     Distances and bearings of each marine mammal observed to 
the pile being driven or removed for each sighting (if pile driving or 
removal was occurring at time of sighting).
     Description of any 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.
     Number of animals (differentiated by month as appropriate) 
detected within the monitoring zone, by species and construction 
activity (including no activity periods as the ``undisturbed'' 
condition.
     Estimates of number of marine mammals taken, by species (a 
correction factor may be applied to total take numbers, as 
appropriate).
     Histograms of perpendicular distances to PSO sightings, by 
species (or species group if sample sizes are small).
     Sighting rates summarized into daily or weekly periods for 
the before, during, and after construction periods.
     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.
    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.
    Crowley must include the following information in their acoustic 
monitoring report.
     Hydrophone equipment and methods: Recording devices, 
sampling rate, sensitivity of the PAM equipment, locations of the 
hydrophones, duty cycle, distance (m) from the pile where recordings 
were made, depth of recording devices, depth of water in area of 
recording devices.
     Type and size of pile being driven, substrate type, method 
of driving during recordings.
     Mean, median, and maximum received sound levels: Root mean 
square sound pressure level (SPLrms) in 1-sec segments, peak sound 
pressure level (SPLpeak), cumulative sound exposure level (SELcum), 
duration to install each pile.
     Duration per pile measured, one-third octave band 
spectrum, power spectral density plot.
     Estimated source levels referenced to 10 m, transmission 
loss coefficients, and estimated Level A and Level B harassment 
isopleths.
     Number of acoustic detections, by species and operation 
mode (including

[[Page 40985]]

no activity periods as the ``undisturbed'' condition).
    Crowley must also submit acoustic recordings and necessary metadata 
associated with passive acoustic monitoring for marine mammals within 
one month of monitoring.
    In the event that personnel involved in the construction activities 
discover an injured or dead marine mammal, the IHA-holder shall report 
the incident to the Office of Protected Resources (OPR) (301-427-8401), 
NMFS and to the Alaska Statewide 24-Hour Stranding Hotline (877-925-
7773) 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 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 subsequently provided a final report 
to NMFS containing recommendations that the panel members felt were 
applicable to Crowley's monitoring plan. The panel concluded that the 
objectives are appropriate, however, they provided some recommendations 
to improve Crowley's ability to achieve their stated objectives. The 
PRP's primary recommendations and comments are summarized and addressed 
below. The PRP's full report is available on our website at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
    The PRP recommended that PSOs focus on scanning the shoreline and 
water, alternately with visual scans and using binoculars, to detect as 
many animals as possible instead of following individual animals to 
collect detailed behavioral information. NMFS requires PSOs to document 
and report the behavior of marine mammals observed within the Level A 
and Level B harassment zones. While NMFS agrees that PSOs should not 
document behavior at the expense of detecting other marine mammals, 
particularly within the shutdown zone (10 m for all activities), we are 
still asking PSOs to record behaviors and to estimate of the amount of 
time that an animal spends in the harassment zone, which is important 
to help understand the likelihood of incurring PTS (given the duration 
component of the thresholds) and the likely severity of behavioral 
disturbance.
    The PRP recommended that the PSOs record visibility conditions at 
regular intervals (e.g., every 5 minutes) and as they change throughout 
the day. The panel recommended using either laser range finders or a 
series of ``landmarks'' at varying distances from each observer. The 
PRP notes that if Crowley uses landmarks, Crowley could measure the 
distance to the landmarks on the ground before pile driving or removal 
begins, and reference these landmarks throughout the season to record 
visibility. The landmarks could be buildings, signs, or other 
stationary objects on land that are located at increasing distances 
from each observation platform. PSOs should record visibility according 
to the farthest landmark the laser range finder can detect or that the 
PSO can clearly see. NMFS will require Crowley to record visibility 
conditions throughout construction; however, NMFS will require PSOs to 
record visibility every 30 minutes, rather than every 5 minutes, in an 
effort to minimize distraction from observing marine mammals. PSOs will 
be equipped with range finders, and will establish reference landmarks 
on land.
    The PRP recommended that Crowley have a designated person on site 
keeping an activity log that includes the precise start and stop dates 
and times of each type of construction operation mode. Crowley's PSOs 
will record this information during construction.
    The PRP expressed concern about the limited effective visual 
detection range of the PSOs in comparison with the estimated size of 
the Level B harassment zones, including Crowley's ability to estimate 
actual Level B harassment takes. The panel recommended that Crowley 
implement real-time PAM to verify the Level B harassment zone sizes, 
and to improve detection of marine mammals in the Level B harassment 
zones where visual detection probability is limited or not possible. 
The panel recommended that Crowley begin PAM 2 to 3 weeks prior to the 
start of construction and continue through 2 to 3 weeks after 
construction activities conclude for the season. They recommended 
archival bottom mounted recorders as an alternative to real-time PAM, 
but noted that these setups are not as easy to relocate and that data 
can only be accessed after recovery.
    In a related comment, the panel recommended that Crowley report 
total estimated Level B harassment takes using two methods. First, the 
panel recommended that Crowley assume that animal density is uniform 
throughout the Level B harassment zone and use distance sampling 
methods, such as Burt et al., 2014, using only the shore-based PSO 
observations to estimate actual Level B harassment takes.

[[Page 40986]]

Second, the PRP recommended that Crowley also use real-time PAM to 
estimate Level B harassment takes only in the far field, assuming that 
each acoustic marine mammal detection that occurs during pile driving 
or removal is a Level B harassment take.
    NMFS is not requiring Crowley to report Level B harassment takes 
using distance sampling methods, as NMFS does not believe that it is 
appropriate to apply precise distance sampling methods intended for 
systematic surveys to estimating take numbers in this situation. As 
noted by the panel, the assumption of uniform density throughout the 
Level A and Level B harassment zone is likely violated in this 
instance, and the pile driving and removal activities are likely to 
further affect the distribution within the zones. Therefore, NMFS is 
requiring Crowley to include 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 in their final report.
    NMFS is requiring Crowley to conduct SSV to verify the size of the 
Level A and Level B harassment zones based on an approved monitoring 
plan. If NMFS approves the results of the SSV study, we will update the 
size of Level A and Level B harassment zones (and shutdown zone, if 
necessary to avoid unauthorized taking by Level A harassment) 
accordingly, and require Crowley to report estimated total Level B 
harassment take in consideration of these zone sizes. The SSV data will 
be gathered using a dip hydrophone from a boat during the period in 
which the bottom-mounted hydrophone is deployed for marine mammal 
detections (see below, approximately 1-2 weeks). Please refer to 
Crowley's acoustic monitoring plan for additional details.
    NMFS is not requiring Crowley to implement real-time PAM for the 
purpose of detecting marine mammals. NMFS notes that real-time PAM 
would be helpful if there were a necessity to take an action, such as 
shutting down operations at the time that a detection occurs. However, 
in this instance, visual monitoring by PSOs can adequately prevent 
Level A harassment take given the very small size of the Level A 
harassment zones (<14 m for all activities).
    Crowley is required to conduct archival PAM for marine mammals 
according to an approved acoustic monitoring plan. Crowley will deploy 
one hydrophone to monitor for marine mammals. This hydrophone will be 
placed approximately 2,000-2,500 m from the project site (see Crowley's 
acoustic monitoring plan for additional details). We expect that the 
SSV will likely show that the actual Level B harassment zones are 
smaller than those included in this authorization (due to the 
conservative assumptions regarding propagation used in the current 
analysis). Therefore, given the expected reduction in Level B 
harassment zone size, and the maximum distances at which we expect 
Crowley will be able to acoustically detect marine mammals (see PRP 
report), we expect that placing the hydrophone at this distance will 
ensure confidence that detected marine mammals are within the Level B 
harassment zone at the time they are detected. Additionally, we expect 
that the hydrophone will detect pile driving activity at this distance 
without masking marine mammal detections, therefore allowing the data 
analyst to confirm whether pile driving was occurring during the time 
at which the marine mammal was acoustically detected. Given the small 
scale of Crowley's project and the associated equipment and personnel 
costs, NMFS is requiring Crowley to implement PAM for marine mammals 
for 1-2 weeks, rather than throughout the entire duration of the 
project period.
    Crowley will submit the raw data from the archival PAM receiver to 
NMFS within one month after completion of the monitoring period. NMFS 
will assist with the data analysis, and Crowley is required to include 
the results of the PAM for marine mammals in their final report. 
Crowley is also required to include results of the SSV analysis in 
their final report. The SSV results, if approved, will allow Crowley to 
better-define the size of the Level B harassment zones, which will 
allow Crowley to extrapolate observed Level B harassment takes across 
more accurate zone sizes than the zones estimated using practical 
spreading.
    The PRP also recommended that PSO observations begin 2-3 weeks 
prior to construction, continue through the construction season 
(including days on which construction does not occur), and continue for 
2-3 weeks after the construction season ends. NMFS will require two 
PSOs to begin observations one week prior to the start of pile driving, 
and continue observing through one week after the pile driving season 
is complete, rather than 2-3 weeks. Crowley is unable to amend their 
PSO contract to require monitoring on days on which construction is not 
occurring.
    The PRP recommended that Crowley station PSOs on elevated platforms 
to increase sighting distance. The PRP also recommended that Crowley 
relocate PSO #3 to the vicinity of the Nulla[gdot]vik Hotel in order to 
eliminate the gap in PSO coverage between Observers #1 and #3 that 
would result from the PSO stations in the proposed plan due to the 
shoreline configuration. The panel recommended that Crowley station the 
PSO on the hotel roof, if possible. NMFS agrees that, given the 
shoreline configuration, PSO #3 should be stationed further north, and 
that PSOs should be stationed on elevated structures to increase 
visible distance. Crowley was unable to secure permission to station 
PSO #3 on top of the hotel. Instead, PSO #3 will be stationed on a 
raised platform on the seawall `bump-out' in front of the hotel. NMFS 
is requiring Crowley to provide elevated monitoring locations for all 
PSOs.
    The PRP made several suggested changes to Crowley's proposed PSO 
data sheets and associated codes included in Appendix B of Crowley's 
draft Marine Mammal Monitoring and Mitigation Plan. Crowley has since 
requested for their PSO contractor use their own data sheets. NMFS has 
approved their use, as the PSOs are familiar with this data sheet 
format, and we expect that using familiar data sheets will help 
facilitate effective monitoring. The panel recommended that Crowley's 
data sheet include categories distinguishing between ``other otariid,'' 
``other phocid,'' ``other baleen whale,'' ``other large cetacean,'' and 
``other small cetacean,'' include 0-1, 1-2, 2-3, >3 ft as the wave 
height categories (assuming significant lack of sighting ability with 
wave heights >3 ft), and distinguish between vibratory installation and 
removal. The PSO contractor's data sheets include these 
recommendations. NMFS is not requiring removal of codes that do not 
apply to this project (such as drilling). The PRP's remaining data 
sheet recommendations were specific corrections to Crowley's proposed 
data sheet (such as missing codes), and therefore do not apply to the 
PSO contractor's data sheet.
    The PRP also made recommendations regarding how Crowley should 
present their monitoring data and results. Please refer to part V of 
the PRP report for those suggestions. Crowley will implement the 
reporting recommendations that do not require PAM for marine mammals.
    The PRP recommended that Crowley use bubble curtains during 
construction and included several comments regarding the take estimate 
section of the IHA application. The panel acknowledged in the report 
that the take estimate is beyond the scope of the peer review process. 
We have considered the

[[Page 40987]]

bubble curtain and take estimate recommendations as public comments. 
Please see the Comments and Responses section for additional 
information.

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 9, 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 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. We expect that 
Crowley's planned mitigation measures will further reduce the potential 
for Level A harassment take (see Mitigation Measures section).
    Effects on individuals that are taken by Level B harassment, on the 
basis of reports in the literature as well as monitoring from other 
similar activities, will likely be limited to reactions such as 
increased swimming speeds, increased surfacing time, or decreased 
foraging (if such activity were occurring) (e.g., Thorson and Reyff 
2006; HDR, Inc. 2012; Lerma 2014; ABR 2016). Most likely, 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.

[[Page 40988]]

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 haulouts (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 described in the Federal Register notice for the proposed 
authorization (85 FR 23766; April 29, 2020), unusual mortality events 
(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 
percent 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 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 expected or 
authorized, 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 required mitigation measures. 
As such, the authorized 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 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 required monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
the activity will have a negligible impact on all affected marine 
mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. Additionally, other qualitative 
factors may be considered in the analysis, such as the temporal or 
spatial scale of the activities.
    For the Gulf of Alaska, Aleutian Islands, and Bering Sea Transient 
stock of killer whales, the estimated instances of take appear high 
when compared to the stock abundance (Table 9). However, when other 
qualitative factors are used to inform an assessment of the likely 
number of individual marine mammals taken, the resulting numbers are 
considered small. This is discussed further below. For all other 
species and stocks, 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 authorized 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 9 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 9.
    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 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.

[[Page 40989]]

    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 authorized 1,115 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 authorized 
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 activity (including 
the required mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS finds that small numbers of marine mammals 
will be taken relative to the population size of the affected species 
or stocks.

Unmitigable Adverse Impact Analysis and Determination

    In order to issue an IHA, NMFS must find that the specified 
activity will not have an ``unmitigable adverse impact'' on the 
subsistence uses of the affected marine mammal species or stocks by 
Alaskan Natives. NMFS has defined ``unmitigable adverse impact'' in 50 
CFR 216.103 as an impact resulting from the specified activity: (1) 
That is likely to reduce the availability of the species to a level 
insufficient for a harvest to meet subsistence needs by: (i) Causing 
the marine mammals to abandon or avoid hunting areas; (ii) Directly 
displacing subsistence users; or (iii) Placing physical barriers 
between the marine mammals and the subsistence hunters; and (2) That 
cannot be sufficiently mitigated by other measures to increase the 
availability of marine mammals to allow subsistence needs to be met.
    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, as the majority of hunting occurs in the Fall and 
Spring. 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, ramps in the seawall 
along Shore Avenue can provide boat access while Crowley's dock is 
under construction.
    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 Mitigation Measures section. Crowley will 
also regularly communicate throughout the project by broadcast public 
radio announcement and periodic activity reports to interested parties 
via email.
    Based on the description of the specified activity, the measures 
described to minimize adverse effects on the availability of marine 
mammals for subsistence purposes, and the required mitigation and 
monitoring measures, NMFS has determined that there will not be an 
unmitigable adverse impact on subsistence uses from Crowley's 
activities.

Endangered Species Act

    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 Regional 
Office.
    Two marine mammal species, bearded seal (Beringia distinct 
population segment (DPS)) and ringed seal (Arctic subspecies), occur in 
the project area and are listed as threatened under the ESA. The NMFS 
Alaska Regional Office issued a Biological Opinion under section 7 of 
the ESA, on the issuance of an IHA to Crowley Fuels under section 
101(a)(5)(D) of the MMPA by the NMFS Office of Protected Resources. The 
Biological Opinion concluded that the action is not likely to 
jeopardize the continued existence of either species.

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 evaluate our proposed action (i.e., the promulgation of 
regulations and subsequent issuance of incidental take authorization) 
and alternatives with respect to potential impacts on the human 
environment. This action is consistent with categories of activities 
identified in Categorical Exclusion B4 of the Companion Manual for NAO 
216-6A, which do not individually or cumulatively have the potential 
for significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has determined 
that our action qualifies to be categorically excluded from further 
NEPA review.

Authorization

    NMFS has issued an IHA to Crowley Fuels, LLC for the potential 
harassment of small numbers of nine marine mammal species incidental to 
Crowley Kotzebue Dock Upgrade in Kotzebue, Alaska, provided the 
previously mentioned mitigation, monitoring and reporting requirements 
are followed.


[[Page 40990]]


    Dated: July 1, 2020.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2020-14628 Filed 7-7-20; 8:45 am]
BILLING CODE 3510-22-P