Marine Mammals; Incidental Take During Specified Activities: The Gulf of Alaska, 50041-50067 [2022-17445]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 87, Number 156 (Monday, August 15, 2022)]
[Proposed Rules]
[Pages 50041-50067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17445]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 18

[Docket No. FWS-R7-ES-2022-0025; FXES111607MRG01-212-FF07CAMM00]
RIN 1018-BG05


Marine Mammals; Incidental Take During Specified Activities: The 
Gulf of Alaska

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; availability of draft environmental assessment; 
request for comments.

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SUMMARY: We, the U.S. Fish and Wildlife Service, in response to a 
request from the United States Coast Guard, propose to issue 
regulations authorizing the nonlethal, incidental, unintentional take 
by harassment of small numbers of northern sea otters during marine 
construction and pile driving in the Gulf of Alaska coastal waters. 
Take may result from marine construction and pile-driving activities. 
This proposed rule would authorize take by harassment only. No lethal 
take would be authorized. If this proposed rule is finalized, we will 
issue letters of authorization, upon request, for specific proposed 
activities in accordance with the final rule for a period of 5 years. 
Therefore, we request comments on these proposed regulations.

DATES: Comments on these proposed incidental take regulations and the 
accompanying draft environmental assessment will be accepted on or 
before September 14, 2022.
    Information collection requirements: If you wish to comment on the 
information collection requirements in this proposed rule, please note 
that the Office of Management and Budget (OMB) is required to make a 
decision concerning the collection of information contained in this 
proposed rule between 30 and 60 days after publication of this proposed 
rule in the Federal Register. Therefore, comments should be submitted 
to OMB, with a copy to the Service Information Collection Clearance 
Officer, U.S. Fish and Wildlife Service, (see ``Information 
Collection'' section below under ADDRESSES) by October 14, 2022.

ADDRESSES: Document availability: You may view this proposed rule, the 
associated draft environmental assessment, comments received, and other 
supporting material at https://www.regulations.gov under Docket No. 
FWS-R7-ES-2022-0025, or these

[[Page 50042]]

documents may be requested as described under FOR FURTHER INFORMATION 
CONTACT.
    Comment submission: You may submit comments on the proposed rule 
and draft environmental assessment by one of the following methods:
     Electronic submission: Federal eRulemaking Portal at: 
https://www.regulations.gov. Follow the instructions for submitting 
comments to Docket No. FWS-R7-ES-2022-0025.
     U.S. mail: Public Comments Processing, Attn: Docket No. 
FWS-R7-ES-2022-0025, Policy and Regulations Branch, U.S. Fish and 
Wildlife Service; MS: PRB (JAO/3W); 5275 Leesburg Pike, Falls Church, 
VA 22041-3803.
    We will post all comments at https://www.regulations.gov. You may 
request that we withhold personal identifying information from public 
review; however, we cannot guarantee that we will be able to do so. See 
Request for Public Comments for more information.
    Information collection requirements: Written comments and 
suggestions on the information collection requirements should be 
submitted within 60 days of publication of this notice to 
www.reginfo.gov/public/do/PRAMain. Find this particular information 
collection by selecting ``Currently under Review--Open for Public 
Comments'' or by using the search function. Please provide a copy of 
your comments to the Service Information Collection Clearance Officer, 
U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W), 
Falls Church, VA 22041-3803 (mail); or [email protected] (email). 
Please reference ``OMB Control Number 1018-0070'' in the subject line 
of your comments.

FOR FURTHER INFORMATION CONTACT: Sierra Franks, Marine Mammals 
Management, U.S. Fish and Wildlife Service, 1011 East Tudor Road MS-
341, Anchorage, AK 99503, Telephone 907-786-3844, or Email: 
[email protected]. Individuals in the United States who are deaf, 
deafblind, hard of hearing, or have a speech disability may dial 711 
(TTY, TDD, or TeleBraille) to access telecommunications relay services. 
Individuals outside the United States should use the relay services 
offered within their country to make international calls to the point-
of-contact in the United States.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    In accordance with the Marine Mammal Protection Act of 1972 (MMPA; 
16 U.S.C. 1371(a)(5)(A)) and its implementing regulations, we, the U.S. 
Fish and Wildlife Service (hereafter Service or we), propose incidental 
take regulations (ITR) that if finalized would authorize the nonlethal, 
incidental, unintentional take of small numbers of northern sea otters 
(Enhydra lutris kenyoni; hereafter ``otter,'' ``otters,'' or ``sea 
otters'') during marine construction and pile-driving activities in 
coastal waters surrounding eight United States Coast Guard (USCG) 
facilities in the Gulf of Alaska. If finalized, this proposed rule 
would be effective from the effective date of the final rule for a 
period of 5 years.
    This proposed rule is based on our draft findings that the total 
takings of northern sea otters during proposed activities will impact 
small numbers of animals, will have a negligible impact on this species 
or stocks, and will not have an unmitigable adverse impact on the 
availability of this species for subsistence use by Alaska Natives. We 
base our draft findings on data from monitoring the encounters and 
interactions between this species; research on this species; potential 
and documented effects on this species from similar activities; 
information regarding the natural history and conservation status of 
northern sea otters; and data reported from Alaska Native subsistence 
hunters.
    The proposed regulations include permissible methods of nonlethal 
taking; mitigation measures to ensure that the USCG's activities will 
have the least practicable adverse impact on the species, their 
habitat, and the availability of this species for subsistence uses; and 
requirements for monitoring and reporting.

Background

    Section 101(a)(5)(A) of the MMPA gives the Secretary of the 
Interior (Secretary) the authority to allow the incidental, but not 
intentional, taking of small numbers of marine mammals, in response to 
requests by U.S. citizens (as defined in title 50 of the Code of 
Federal Regulations (CFR) in part 18 (at 50 CFR 18.27(c)) engaged in a 
specified activity (other than commercial fishing) within a specified 
geographic region. The Secretary has delegated authority for 
implementation of the MMPA to the Service. According to the MMPA, the 
Service shall allow this incidental taking if we find that the total of 
such taking for the 5-year regulatory period:
    (1) Will affect only small numbers of individuals of the species or 
stock;
    (2) Will have no more than a negligible impact on the species or 
stock;
    (3) Will not have an unmitigable adverse impact on the availability 
of the species or stock for taking for subsistence use by Alaska 
Natives; and
    (4) We issue regulations that set forth:
    (a) Permissible methods of taking,
    (b) Means of effecting the least practicable adverse impact on the 
species or stock and its habitat and the availability of the species or 
stock for subsistence uses, and
    (c) Requirements for monitoring and reporting of such taking.

If final regulations allowing such incidental take are issued, we may 
then subsequently issue letters of authorization (LOAs), upon request, 
to authorize incidental take during the specified activities.
    The term ``take'' means to harass, hunt, capture, or kill, or 
attempt to harass, hunt, capture, or kill any marine mammal. Harassment 
for activities other than military readiness activities or scientific 
research conducted by or on behalf of the Federal Government means 
``any act of pursuit, torment, or annoyance which (i) has the potential 
to injure a marine mammal or marine mammal stock in the wild'' (the 
MMPA defines this as 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'' 
(the MMPA defines this as Level B harassment).
    The terms ``negligible impact'' and ``unmitigable adverse impact'' 
are defined in 50 CFR 18.27 (i.e., regulations governing small takes of 
marine mammals incidental to specified activities) as follows: 
``Negligible impact'' is 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; ``Unmitigable adverse impact'' 
means an impact resulting from the specified activity: (1) that is 
likely to reduce the availability of the species to a level 
insufficient for a harvest to meet subsistence needs by (i) causing the 
marine mammals to abandon or avoid hunting areas, (ii) directly 
displacing subsistence users, or (iii) placing physical barriers 
between the marine mammals and the subsistence hunters; and (2) that 
cannot be sufficiently mitigated by other measures to increase the 
availability of marine mammals to allow subsistence needs to be met.
    The term ``small numbers'' is also defined in 50 CFR 18.27. 
However, we do not rely on that definition here as it conflates ``small 
numbers'' with

[[Page 50043]]

``negligible impacts.'' We recognize ``small numbers'' and ``negligible 
impacts'' as two separate and distinct requirements for promulgating 
ITRs under the MMPA (see Natural Res. Def. Council, Inc. v. Evans, 232 
F. Supp. 2d 1003, 1025 (N.D. Cal. 2003)). Instead, for our small 
numbers determination, we estimate the likely number of takes of marine 
mammals and evaluate if that take is small relative to the size of the 
species or stock.
    The term ``least practicable adverse impact'' is not defined in the 
MMPA or its enacting regulations. In promulgating ITRs, we ensure the 
least practicable adverse impact by requiring mitigation measures that 
are effective in reducing the impact of project activities, but they 
are not so restrictive as to make project activities unduly burdensome 
or impossible to undertake and complete.
    The USCG's marine construction and pile-driving activities may 
result in the incidental taking of sea otters. The MMPA does not 
require that the USCG must obtain incidental take authorization; 
however, any taking that occurs without authorization is a violation of 
the MMPA.

Summary of Request

    The Service first received a request for ITRs from the USCG on July 
2, 2021. The Service sent requests for additional information on August 
12, September 13, and November 10, 2021, and February 10, 2022 and 
received updated versions of the petition from USCG on October 14, 
2021, and January 18 and February 28, 2022, the latter of which was 
determined to be adequate and complete. Several revisions were made 
involving animal presence, ensonified areas, number of days of 
operations, and mitigation and monitoring protocols. Geospatial files 
of the work sites were received on December 3, 2021. The Service used 
the February 2022 petition and December 2021 spatial files for 
analyses.

Description of the Proposed Regulations

    The proposed regulations, if finalized, would authorize the 
nonlethal, incidental, unintentional take of small numbers of sea 
otters that may result from the proposed activities based on standards 
set forth in the MMPA. They would not authorize or ``permit'' 
activities, only the incidental take associated with those activities. 
The proposed regulations include:
    (1) Permissible methods of nonlethal taking;
    (2) Measures designed to ensure the least practicable adverse 
impact on sea otters and their habitat, and on the availability of this 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.

Description of Letters of Authorization (LOA)

    An LOA is required to conduct activities pursuant to an ITR. Under 
this proposed ITR, if finalized, the USCG may request an LOA for the 
authorized nonlethal, incidental Level B harassment of sea otters 
incidental to the specific activities described in these proposed 
regulations. Requests for LOAs must be consistent with the activity 
descriptions and mitigation and monitoring requirements of the ITR and 
be received in writing at least 30 days before the activity is to 
begin. Requests must include (1) an operational plan for the activity, 
including the number of days of work and the nature of work to be 
conducted; (2) a digital geospatial file of the project footprint; (3) 
estimates of the numbers of exposures of sea otters related to each 
project component; and (4) a site-specific marine mammal monitoring and 
mitigation plan that specifies the procedures to monitor and mitigate 
the effects of the activities on sea otters. Once this information has 
been received, we will evaluate each request and issue the LOA if we 
find that the level of taking will be consistent with the findings made 
for the total taking allowable under the ITR. We must receive an after-
action report on the monitoring and mitigation activities within 90 
days after the LOA expires. For more information on requesting and 
receiving an LOA, refer to 50 CFR 18.27(f).

Description of Specified Geographic Region

    The specified geographic region covered by the requested ITRs (USCG 
ITR region (figure 1)) encompasses Gulf of Alaska (GOA) coastal waters, 
including State waters, within 2 kilometers (km) (~1.25 miles (mi)) of 
eight USCG facilities within the USCG Civil Engineering Unit Juneau 
Area of Responsibility. These facilities are: Base Kodiak, Moorings 
Seward, Moorings Valdez, Moorings Cordova, Moorings Sitka, Station 
Juneau, Moorings Petersburg, and Base Ketchikan.

[[Page 50044]]

[GRAPHIC] [TIFF OMITTED] TP15AU22.000

Description of Specified Activities

    The USCG will perform maintenance activities that will include pile 
repair (i.e., sleeve or jacket replacement), pile replacement 
(including removal and installation), and deck repair and replacement 
to maintain safe berthing for operating vessels. The in-water work will 
include impact pile driving of timber, steel, and concrete piles, 
vibratory installation and extraction of timber, steel, and concrete 
piles, down-the-hole drilling, power washing of piles, use of an 
underwater hydraulic chainsaw, and pile clipping. The USCG will also 
conduct above-water maintenance activities, such as power washing of 
decks, fender repair (camel replacement, chain replacement, utility 
handlers), and replacement of rub strips and ladder supports.
    Detailed descriptions of the proposed work are provided in the 
applicant's request for ITRs for programmatic maintenance, repair, and 
replacement activities (February 2022) and the marine mammal monitoring 
and mitigation plan (January 2022). These documents can be obtained 
from the locations described above in ADDRESSES. Table 1 summarizes the 
planned activities.

                   Table 1--Summary of Planned Activities Included in the U.S. Coast Guard Application for Incidental Take Regulations
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                                                                                                                          Number of days   Total number
         Location            Year(s)           Number of piles            In-water activities         Type of piles         of activity     of days of
                                                                                                                             per year        activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
Kodiak...................          1-5  20 piles removed and 20 piles  Vibratory extraction/     Timber.................              10              50
                                         installed per year (100        installation.            Steel..................              10              50
                                         total removed and 100 total   Vibratory extraction/     Timber.................              10              50
                                         installed); combination of     installation.
                                         steel and timber piles.       Clipper.................
                                                                       Hydraulic chainsaw......  Timber.................              10              50
                                                                       Down-the-hole-drill.....  All types/sizes........              10              50

[[Page 50045]]

 
Sitka....................          1-5  5 piles removed and 5 piles    Power washing...........  All types/sizes........               5              25
                                         installed per year (25 total  Vibratory extraction/     Timber.................               5              25
                                         removed and 25 total           installation.            Steel..................               5              25
                                         installed); combination of    Vibratory extraction/
                                         steel and timber piles.        installation.
                                                                       Impact driving..........  Timber.................               5              25
                                                                       Impact driving..........  Steel..................               5              25
Ketchikan................          1-5  10 piles removed and 10 piles  Power washing...........  All types/sizes........              10              50
                                         installed per year (50 total  Vibratory extraction/     Timber.................              10              50
                                         removed and 50 total           installation.            Steel..................              10              50
                                         installed); combination of    Vibratory extraction/
                                         steel and timber piles.        installation.
                                                                       Down-the-hole drill.....  All types/sizes........              10              50
Valdez...................          1-5  1 pile removed and 1 pile      Power washing...........  All types/sizes........               2              10
                                   1-5   installed per year, except    Vibratory extraction/     Timber.................               2              10
                                   1-5   for year 4 when 2 piles are    installation.            Steel..................               2              10
                                   1-5   to be removed and 2           Impact driving..........  Timber.................               1               5
                                         installed (6 total removed
                                         and 6 total installed);
                                         combination of steel and
                                         timber piles.
                                   1-5                                 Vibratory extraction/     Steel..................               1               5
                                                                        installation.
Cordova..................            2  3 steel piles removed and 3    Impact driving..........  Steel..................               6               6
                                         steel piles installed.
                                                                       Impact driving..........  Steel..................               6               6
Juneau...................          1-5  10 timber piles removed and    Power washing...........  All types/sizes........              10              50
                                         10 timber piles installed     Vibratory extraction/     Timber.................              10              50
                                         per year (50 total removed     installation.
                                         and 50 total installed).
                                                                       Impact driving..........  Timber.................              10              50
Petersburg...............          1-5  2 piles removed and 2 piles    Power washing...........  All types/sizes........               4              20
                                         installed per year (10 total  Vibratory extraction/     Timber.................               4              20
                                         removed and 10 total           installation.
                                         installed); combination of
                                         timber and steel piles.
                                                                       Vibratory extraction/     Steel..................               4              20
                                                                        installation.
                                                                       Impact driving..........  Timber.................               4              20
                                                                       Impact driving..........  Steel..................               4              20
Seward...................            3  1 steel pile removed and 1     Vibratory extraction/     Steel..................               4               4
                                         steel pile installed.          installation.
                                                                       Impact driving..........  Steel..................               4               4
--------------------------------------------------------------------------------------------------------------------------------------------------------

Description of Marine Mammals in the Specified Geographic Region

Sea Otter Biology

    There are three sea otter stocks in Alaska: Southeast Alaska stock, 
Southcentral Alaska stock, and the Southwest Alaska stock. All three 
stocks are represented in the project area. Sea otters at Base Kodiak 
belong to the Southwest Alaska stock. Moorings Seward, Moorings Valdez, 
and Moorings Cordova lie within the range of the Southcentral Alaska 
stock. Moorings Sitka, Station Juneau, Moorings Petersburg, and Base 
Ketchikan lie within the range of the Southeast Alaska stock. Detailed 
information about the biology of these stocks can be found in the most 
recent stock assessment reports for the Southwest Alaska, Southcentral 
Alaska, and Southeast Alaska stocks (USFWS 2014a, b, c), which can be 
found at https://fws.gov/project/marine-mammal-stock-assessment-reports 
and were announced in the Federal Register at 79 FR 22154, April 21, 
2014. Additional information on the Southwest Alaska stock is available 
in the species status assessment available at https://ecos.fws.gov/ecp/species/2884.
    Sea otters may be distributed anywhere within the specified project 
area other than upland areas; however, they generally occur in shallow 
water near the shoreline. They are most commonly observed within the 
40-meter (m) (131-foot[ft]) depth contour (USFWS 2014a, b, c), although 
they can be found in areas with deeper water. Ocean depth is generally 
correlated with distance to shore, and sea otters typically remain 
within 1 to 2 km (0.62 to 1.24 mi) of shore (Riedman and Estes 1990). 
They tend to be found closer to shore during storms, but venture 
farther out during good weather and calm seas (Lensink 1962; Kenyon 
1969).
    Sea otters are nonmigratory and generally do not disperse over long 
distances (Garshelis and Garshelis 1984), usually remaining within a 
few kilometers of their established feeding grounds (Kenyon 1981). 
Breeding males stay for all or part of the year in a breeding territory 
covering up to 1 km (0.62 mi) of coastline, while adult females 
maintain home ranges of approximately 8 to 16 km (5 to 10 mi), which 
may include one or more male territories. Juveniles move greater 
distances between resting and foraging areas (Lensink 1962; Kenyon 
1969; Riedman and Estes 1990; Tinker and Estes 1996). Although sea 
otters generally remain local to an area, they are capable of long-
distance travel. Sea otters in Alaska have shown daily movement 
distances greater than 3 km (1.9 mi) at speeds up to 5.5 km per hour 
(hr) (km/hr; 3.4 mi/hr) (Garshelis and Garshelis 1984).

Southeast Alaska Sea Otter Stock

    The Southeast Alaska sea otter stock boundaries include Dixon 
Entrance Strait at the U.S.-Canada border to the south and Cape 
Yakataga, Alaska, to the north (USFWS 2014a, b, c). However, the 
largest abundances of sea otters in Southeast Alaska are found in the 
northern part of this range and expanding south to east (Tinker et al. 
2019).
    The Service conducted large-scale surveys in cooperation with the 
U.S. Geological Survey in 2003 and 2010 in southern Southeast Alaska 
(from Kake to Duke Island and Cape Chacon) and in

[[Page 50046]]

2002 and 2011 in northern Southeast Alaska (from Icy Point to Cape 
Ommaney). In these aerial surveys, transects were flown over high-
density otter habitat (<40 m [131 ft] ocean depth) with a spacing of 2 
km (1.2 mi) between transects and low-density otter habitat (40 to 100 
m [131 to 328 ft] ocean depth) with a spacing of 8 km (5 mi) between 
transects.
    This survey data has been incorporated into a spatiotemporal model 
of ecological diffusion using a Bayesian hierarchical framework 
(Eisaguirre et al. 2021). This model was used to develop the most 
recent estimate of 26,347 otters in the Southeast Alaska stock, and 
generated otter abundance estimates at a resolution of 400 m by 400 m. 
Abundance values within the project area ranged from 0.1 to 0.3 otters 
per 0.16 square kilometer (km\2\) (0.062 square miles [mi\2\]). 
Distribution of the population during the proposed project is likely to 
be similar to that detected during sea otter surveys, as work will 
occur during the same time of the year that these surveys were 
conducted.

Southcentral Alaska Sea Otter Stock

    The Southcentral Alaska sea otter stock occurs in the center of the 
sea otter range in Alaska and extends from Cape Yakataga in the east to 
Cook Inlet in the west, including Prince William Sound, the eastern 
Kenai Peninsula coast, and Kachemak Bay (USFWS 2014a, b, c). Between 
2014 and 2019, aerial surveys have been conducted in three regions of 
the Southcentral Alaska sea otter stock: (1) Eastern Cook Inlet, (2) 
Outer Kenai Peninsula, and (3) Prince William Sound by aerial transects 
flown at 91 m (298.56 ft) of altitude. The combined estimates of the 
three regions resulted in an approximate 21,617 (SE = 2,190) sea otters 
and an average density of 1.96 sea otters/km\2\ for the Southcentral 
Alaska stock (Esslinger et al. 2021). We applied a density of 21.15 sea 
otters/km\2\ at Moorings Cordova and 2.31 sea otters/km\2\ at Valdez 
and Seward (Weitzman and Esslinger 2015).

Southwest Alaska Sea Otter Stock

    The Southwest Alaska sea otter stock occurs from western Cook Inlet 
to Attu Island in the Aleutian chain (USFWS 2014a, b, c). The Southwest 
Alaska sea otter stock was listed as threatened under the Endangered 
Species Act (ESA) in 2005 as a distinct population segment (DPS) (70 FR 
46366, August 9, 2005). This stock is divided into five management 
units (MUs): Western Aleutians; Eastern Aleutians; South Alaska 
Peninsula; Bristol Bay; and Kodiak, Kamishak, and Alaska Peninsula 
(USFWS 2013). The specified geographic region occurs within the range 
of the Kodiak, Kamishak, and Alaska Peninsula MUs.
    The range of the Kodiak, Kamishak, and Alaska Peninsula MUs extends 
from Castle Cape to Western Cook Inlet on the southern side of the 
Alaska Peninsula and also encompasses Kodiak Island (USFWS 2020). The 
specified geographic region is within the range of the sea otter 
population at Kodiak Archipelago. Waters surrounding Kodiak Island were 
surveyed in 2014 using the same methods described above for the surveys 
of the Southeast and Southcentral Alaska stocks (Cobb 2018). The 
estimate of sea otter density that resulted from these surveys is 2.54 
animals per km\2\, which we used for the Kodiak site (Cobb 2018).

Potential Impacts of the Specified Activities on Marine Mammals

Effects of Noise on Sea Otters

    We characterized ``noise'' as sound released into the environment 
from human activities that exceeds ambient levels or interferes with 
normal sound production or reception by sea otters. The terms 
``acoustic disturbance'' or ``acoustic harassment'' are disturbances or 
harassment events resulting from noise exposure. Potential effects of 
noise exposure are likely to depend on the distance of the sea otter 
from the sound source, the level and intensity of sound the sea otter 
receives, background noise levels, noise frequency, noise duration, and 
whether the noise is pulsed or continuous. The actual noise level 
perceived by individual sea otters will also depend on whether the sea 
otter is above or below water and atmospheric and environmental 
conditions. Temporary disturbance of sea otters or localized 
displacement reactions are the most likely effects to occur from noise 
exposure.

Sea Otter Hearing

    Pile driving and marine construction activities will fall within 
the hearing range of sea otters. Controlled sound exposure trials on 
southern sea otters (Enhydra lutris nereis) indicate that sea otters 
can hear frequencies between 125 hertz (Hz) and 38 kilohertz (kHz) with 
best sensitivity between 1.2 and 27 kHz (Ghoul and Reichmuth 2014). 
Aerial and underwater audiograms for a captive adult male southern sea 
otter in the presence of ambient noise suggest the sea otter's hearing 
was less sensitive to high-frequency (greater than 22 kHz) and low-
frequency (less than 2 kHz) sound than terrestrial mustelids but was 
similar to that of a California sea lion (Zalophus californianus). 
However, the sea otter was still able to hear low-frequency sounds, and 
the detection thresholds for sounds between 0.125-1 kHz were between 
116-101 decibel (dB), respectively. Dominant frequencies of southern 
sea otter vocalizations are between 3 and 8 kHz, with some energy 
extending above 60 kHz (McShane et al. 1995, Ghoul and Reichmuth 2012).
    Exposure to high levels of sound may cause changes in behavior, 
masking of communications, temporary or permanent changes in hearing 
sensitivity, discomfort, and injury to marine mammals. Unlike other 
marine mammals, sea otters do not rely on sound to orient themselves, 
locate prey, or communicate under water; therefore, masking of 
communications by anthropogenic sound is less of a concern than for 
other marine mammals. However, sea otters, especially mothers and pups, 
do use sound for communication in air (McShane et al. 1995), and sea 
otters may monitor underwater sound to avoid predators (Davis et al. 
1987).

Exposure Thresholds

    Noise exposure criteria for identifying underwater noise levels 
capable of causing Level A harassment (injury) to marine mammal 
species, including sea otters, have been established using the same 
methods as those used by the National Marine Fisheries Service (NMFS) 
(Southall et al. 2019). These criteria are based on estimated levels of 
sound exposure capable of causing a permanent shift in sensitivity of 
hearing (i.e., a permanent threshold shift (PTS) (NMFS 2018)). PTS 
occurs when noise exposure causes hairs within the inner ear system to 
die (Ketten 2012).
    Sound exposure thresholds incorporate two metrics of exposure: the 
peak level of instantaneous exposure likely to cause PTS and the 
cumulative sound exposure level (SELcum) during a 24-hour period. They 
also include weighting adjustments for the sensitivity of different 
species to varying frequencies. PTS-based injury criteria were 
developed from theoretical extrapolation of observations of temporary 
threshold shifts (TTS) detected in lab settings during sound exposure 
trials (Finneran 2015). Southall and colleagues (2019) predict PTS for 
sea otters, which are included in the ``other marine carnivores'' 
category, will occur at 232 dB peak or 203 dB SELcum for 
impulsive underwater sound and 219 dB SELcum for 
nonimpulsive (continuous) underwater sound.

[[Page 50047]]

    Thresholds based on TTS have been used as a proxy for Level B 
harassment (i.e., 70 FR 1871, January 11, 2005; 71 FR 3260, January 20, 
2006; 73 FR 41318, July 18, 2008). Southall et al. (2007) derived TTS 
thresholds for pinnipeds based on 212 dB peak and 171 dB 
SELcum. Exposures resulting in TTS in pinnipeds were found 
to range from 152 to 174 dB (183 to 206 dB SEL) (Kastak et al. 2005), 
with a persistent TTS, if not a PTS, after 60 seconds of 184 dB SEL 
(Kastak et al. 2008). Kastelein et al. (2012) found small but 
statistically significant TTSs at approximately 170 dB SEL (136 dB, 60 
minutes (min)) and 178 dB SEL (148 dB, 15 min). Based on these 
findings, Southall et al. (2019) developed TTS thresholds for sea 
otters, which are included in the ``other marine carnivores'' category, 
of 188 dB SELcum for impulsive sounds and 199 dB 
SELcum for nonimpulsive sounds.
    NMFS (2018) criteria do not identify thresholds for avoidance of 
Level B harassment. For pinnipeds (seals and sea lions), NMFS has 
adopted a 160-dB threshold for Level B harassment from exposure to 
impulsive noise and a 120-dB threshold for continuous noise (NMFS 1998, 
HESS 1999, NMFS 2018). These thresholds were developed from 
observations of mysticete (baleen) whales responding to airgun 
operations (e.g., Malme et al. 1983; Malme and Miles 1983; Richardson 
et al. 1986, 1995) and from equating Level B harassment with noise 
levels capable of causing TTS in lab settings. Southall et al. (2007, 
2019) assessed behavioral response studies and found considerable 
variability among pinnipeds. The authors determined that exposures 
between approximately 90 to 140 dB generally do not appear to induce 
strong behavioral responses from pinnipeds in water. However, they 
found behavioral effects, including avoidance, become more likely in 
the range between 120 to 160 dB, and most marine mammals showed some, 
albeit variable, responses to sound between 140 to 180 dB. Wood et al. 
(2012) adapted the approach identified in Southall et al. (2007) to 
develop a probabilistic scale for marine mammal taxa at which 10 
percent, 50 percent, and 90 percent of individuals exposed are assumed 
to produce a behavioral response. For many marine mammals, including 
pinnipeds, these response rates were set at sound pressure levels of 
140, 160, and 180 dB, respectively.
    We have evaluated these thresholds and determined that the Level B 
threshold of 120 dB for nonimpulsive noise is not applicable to sea 
otters. The 120-dB threshold is based on studies in which gray whales 
(Eschrichtius robustus) were exposed to experimental playbacks of 
industrial noise (Malme et al. 1983; Malme and Miles 1983). During 
these playback studies, southern sea otter responses to industrial 
noise were also monitored (Riedman 1983, 1984). Gray whales exhibited 
avoidance to industrial noise at the 120-dB threshold; however, there 
was no evidence of disturbance reactions or avoidance in southern sea 
otters. Thus, given the different range of frequencies to which sea 
otters and gray whales are sensitive, the NMFS 120-dB threshold based 
on gray whale behavior is not appropriate for predicting sea otter 
behavioral responses, particularly for low-frequency sound.
    Based on the lack of sea otter disturbance response or any other 
reaction to the 1980's playback studies and the absence of a clear 
pattern of disturbance or avoidance behaviors attributable to 
underwater sound levels up to about 160 dB resulting from low-frequency 
broadband noise, we assume 120 dB is not an appropriate behavioral 
response threshold for sea otters exposed to continuous underwater 
noise.
    Based on the best available scientific information about sea otters 
and closely related marine mammals when sea otter data are limited, the 
Service has set 160 dB of received underwater sound as a threshold for 
Level B harassment by disturbance for sea otters for these ITRs. 
Exposure to unmitigated in-water noise levels between 125 Hz and 38 kHz 
that are greater than 160 dB--for both impulsive and nonimpulsive sound 
sources--will be considered by the Service as Level B harassment. 
Thresholds for Level A harassment (which entails the potential for 
injury) will be 232 dB peak or 203 dB SEL for impulsive sounds and 219 
dB SEL for continuous sounds (table 2).

   Table 2--Temporary Threshold Shift (TTS) and Permanent Threshold Shift (PTS) Thresholds Established by Southall et al. (2019) Through Modeling and
                                        Extrapolation for ``Other Marine Carnivores,'' Which Includes Sea Otters.
     [Values are weighted for other marine carnivores' hearing thresholds and given in cumulative sound exposure level (SELCUM dB re (20 micropascal
  ([micro]Pa) in air and SELCUM dB re 1 [micro]Pa in water) for impulsive and nonimpulsive sounds and unweighted peak sound pressure level (SPL) in air
                                         (dB re 20[micro]Pa) and water (dB 1[micro]Pa) (impulsive sounds only)]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                TTS                                             PTS
                                                         -----------------------------------------------------------------------------------------------
                                                           Nonimpulsive              Impulsive             Nonimpulsive              Impulsive
                                                         -----------------------------------------------------------------------------------------------
                                                              SELCUM          SELCUM         Peak SPL         SELCUM          SELCUM         Peak SPL
--------------------------------------------------------------------------------------------------------------------------------------------------------
Air.....................................................             157             146             170             177             161             176
Water...................................................             199             188             226             219             203             232
--------------------------------------------------------------------------------------------------------------------------------------------------------

Airborne Sounds

    The NMFS (2018) guidance neither addresses thresholds for 
preventing injury or disturbance from airborne noise, nor provides 
thresholds for avoidance of Level B harassment. Southall et al. (2007) 
suggested thresholds for PTS and TTS for sea lions exposed to nonpulsed 
airborne noise of 172.5 and 159 dB re (20 [micro]Pa)\2\-s SEL. 
Conveyance of underwater noise into the air is of little concern since 
the effects of pressure release and interference at the water's surface 
reduce underwater noise transmission into the air. For activities that 
create both in-air and underwater sounds, we will estimate take based 
on parameters for underwater noise transmission. Considering sound 
energy travels more efficiently through water than through air, this 
estimation will also account for exposures to sea otters at the 
surface.

Evidence From Sea Otter Studies

    Sea otters may be more resistant to the effects of sound 
disturbance and human activities than other marine mammals. For 
example, observers have noted no changes from southern sea otters in 
regard to their presence, density, or behavior in response to 
underwater sounds from industrial noise recordings at 110 dB and a 
frequency range of 50 Hz to 20 kHz and airguns, even at the closest 
distance of 0.5 nautical miles (<1

[[Page 50048]]

km or 0.6 mi) (Riedman 1983). Southern sea otters did not respond 
noticeably to noise from a single 1,638 cubic centimeters (cm\3\) (100 
cubic inches [in\3\]) airgun, and no sea otter disturbance reactions 
were evident when a 67,006 cm\3\ (4,089 in\3\) airgun array was as 
close as 0.9 km (0.6 mi) to sea otters (Riedman 1983, 1984). However, 
southern sea otters displayed slight reactions to airborne engine noise 
(Riedman 1983). Northern sea otters were observed to exhibit a limited 
response to a variety of airborne and underwater sounds, including a 
warble tone, sea otter pup calls, calls from killer whales (Orcinus 
orca) (which are predators to sea otters), air horns, and an underwater 
noise harassment system designed to drive marine mammals away from 
crude oil spills (Davis et al. 1988). These sounds elicited reactions 
from northern sea otters, including startle responses and movement away 
from noise sources. However, these reactions were only observed when 
northern sea otters were within 100-200 m (328-656 ft) of noise 
sources. Further, northern sea otters appeared to become habituated to 
the noises within 2 hours or, at most, 3-4 days (Davis et al. 1988).
    Noise exposure may be influenced by the amount of time sea otters 
spend at the water's surface. Noise at the water's surface can be 
attenuated by turbulence from wind and waves more quickly compared to 
deeper water, reducing potential noise exposure (Greene and Richardson 
1988, Richardson et al. 1995). Additionally, turbulence at the water's 
surface limits the transference of sound from water to air. A sea otter 
with its head above water will be exposed to only a small fraction of 
the sound energy traveling through the water beneath it. The average 
amount of time that sea otters spend above the water each day while 
resting and grooming varies between males and females and across 
seasons (Esslinger et al. 2014, Zellmer et al. 2021). For example, 
female sea otters foraged for an average of 8.78 hours per day compared 
to male sea otters, which foraged for an average of 7.85 hours per day 
during the summer months (Esslinger et al. 2014). Male and female sea 
otters spend an average of 63 to 67 percent of their day at the surface 
resting and grooming during the summer months (Esslinger et al. 2014). 
Few studies have evaluated foraging times during the winter months. 
Garshelis et al. (1986) found that foraging times increased from 5.1 
hours per day to 16.6 hours per day in the winter; however, Gelatt et 
al. (2002) did not find a significant difference in seasonal foraging 
times. It is likely that seasonal variation is determined by seasonal 
differences in energetic demand and the quality and availability of 
prey sources (Esslinger et al. 2014). These findings suggest that the 
large portion of the day sea otters spend at the surface may help limit 
sea otters' exposure during noise-generating operations.
    Sea otter sensitivity to industrial activities may be influenced by 
the overall level of human activity within the sea otter population's 
range. In locations that lack frequent human activity, sea otters 
appear to have a lower threshold for disturbance. Sea otters in Alaska 
exhibited escape behaviors in response to the presence and approach of 
vessels (Udevitz et al. 1995). Behaviors included diving or actively 
swimming away from a vessel, sea otters on haulouts entering the water, 
and groups of sea otters disbanding and swimming in multiple different 
directions (Udevitz et al. 1995). Sea otters in Alaska were also 
observed to avoid areas with heavy boat traffic, in the summer, and 
return to these areas during seasons with less vessel traffic 
(Garshelis and Garshelis 1984). In Cook Inlet, sea otters drifting on a 
tide trajectory that would have taken them within 500 m (0.3 mi) of an 
active offshore drilling rig were observed to swim in order to avoid a 
close approach of the drilling rig despite near-ambient noise levels 
(BlueCrest 2014).
    Individual sea otters in the coastal waters of the GOA will likely 
show a range of responses to noise from pile-driving activities. Some 
sea otters will likely show startle responses, change direction of 
travel, dive, or prematurely surface. Sea otters reacting to pile-
driving activities may divert time and attention from biologically 
important behaviors, such as feeding and nursing pups. Sea otter 
responses to disturbance can result in energetic costs, which increases 
the amount of prey required by sea otters (Barrett 2019). This 
increased prey consumption may impact sea otter prey availability and 
cause sea otters to spend more time foraging and less time resting 
(Barrett 2019). Some sea otters may abandon the project area and return 
when the disturbance has ceased. Based on the observed movement 
patterns of sea otters (i.e., Lensink 1962; Kenyon 1969, 1981; 
Garshelis and Garshelis 1984; Riedman and Estes 1990; Tinker and Estes 
1996), we expect some individuals will respond to pile-driving 
activities by dispersing to nearby areas of suitable habitat; however, 
other sea otters, especially territorial adult males, are less likely 
to be displaced.

Consequences of Disturbance

    The reactions of wildlife to disturbance can range from short-term 
behavioral changes to long-term impacts that affect survival and 
reproduction. When disturbed by noise, animals may respond behaviorally 
(e.g., escape response) or physiologically (e.g., increased heart rate, 
hormonal response) (Harms et al. 1997; Tempel and Guti[eacute]rrez 
2003). The energy expense and associated physiological effects could 
ultimately lead to reduced survival and reproduction (Gill and 
Sutherland 2000; Frid and Dill 2002). For example, South American sea 
lions (Otaria byronia) visited by tourists exhibited an increase in the 
state of alertness and a decrease in maternal attendance and resting 
time on land, thereby potentially reducing population size (Pavez et 
al. 2015). In another example, killer whales that lost feeding 
opportunities due to boat traffic faced a substantial (18 percent) 
estimated decrease in energy intake (Williams et al. 2006). Such 
disturbance effects can have population-level consequences. Increased 
disturbance rates have been associated with a decline in abundance of 
bottlenose dolphins (Tursiops spp.) (Bejder et al. 2006; Lusseau et al. 
2006).
    These examples illustrate direct effects on survival and 
reproductive success, but disturbances can also have indirect effects. 
Response to noise disturbance is considered a nonlethal stimulus that 
is similar to an antipredator response (Frid and Dill 2002). Sea otters 
are susceptible to predation, particularly from killer whales and 
eagles, and have a well-developed antipredator response to perceived 
threats. For example, the presence of a harbor seal (Phoca vitulina) 
did not appear to disturb southern sea otters, but they demonstrated a 
fear response in the presence of a California sea lion by actively 
looking above and beneath the water (Limbaugh 1961).
    Although an increase in vigilance or a flight response is 
nonlethal, a tradeoff occurs between risk avoidance and energy 
conservation. An animal's reactions to noise disturbance may cause 
stress and direct an animal's energy away from fitness-enhancing 
activities such as feeding and mating (Frid and Dill 2002; Goudie and 
Jones 2004). For example, southern sea otters in areas with heavy 
recreational boat traffic demonstrated changes in behavioral time 
budgeting, showing decreased time resting and changes in haulout 
patterns and distribution (Benham 2006; Maldini et al. 2012). Chronic 
stress can also lead to

[[Page 50049]]

weakened reflexes, lowered learning responses (Welch and Welch 1970; 
van Polanen Petel et al. 2006), compromised immune function, decreased 
body weight, and abnormal thyroid function (Selye 1979).
    Changes in behavior resulting from anthropogenic disturbance can 
include increased agonistic interactions between individuals or 
temporary or permanent abandonment of an area (Barton et al. 1998). 
Additionally, the extent of previous exposure to humans (Holcomb et al. 
2009), the type of disturbance (Andersen et al. 2012), and the age or 
sex of the individuals (Shaughnessy et al. 2008; Holcomb et al. 2009) 
may influence the type and extent of response in individual sea otters.

Vessel Activities

    Vessel collisions with marine mammals can result in death or 
serious injury. Wounds resulting from vessel strike may include massive 
trauma, hemorrhaging, broken bones, or propeller lacerations (Knowlton 
and Kraus 2001). An animal may be harmed by a vessel when the vessel 
runs over the animal at the surface, the animal hits the bottom of a 
vessel while the animal is surfacing, or the animal is cut by a 
vessel's propeller.
    Vessel strike has been documented as a cause of death across all 
three stocks of northern sea otters in Alaska. Since 2002, the Service 
has conducted 1,433 sea otter necropsies to determine cause of death, 
disease incidence, and the general health status of sea otters in 
Alaska. Vessel strike or blunt trauma was identified as a definitive or 
presumptive cause of death in 65 cases (4 percent) (USFWS 2020). In 
most of these cases, trauma was determined to be the ultimate cause of 
death; however, there was a contributing factor, such as disease or 
biotoxin exposure, which incapacitated the sea otter and made it more 
vulnerable to vessel strike (USFWS 2014 a, b, c).
    Vessel speed influences the likelihood of vessel strikes involving 
sea otters. The probability of death or serious injury to a marine 
mammal increases as vessel speed increases (Laist et al. 2001, 
Vanderlaan and Taggart 2007). Sea otters spend a considerable portion 
of their time at the water's surface (Esslinger et al. 2014). They are 
typically visually aware of approaching vessels and can move away if a 
vessel is not traveling too quickly. Mitigation measures to be applied 
to vessel operations to prevent collisions or interactions are included 
below in the rule portion of this document under proposed Sec.  18.149 
Mitigation.
    Sea otters exhibit behavioral flexibility in response to vessels, 
and their responses may be influenced by the intensity and duration of 
the vessel's activity. As noted above, sea otter populations in Alaska 
were observed to avoid areas with heavy vessel traffic but return to 
those same areas during seasons with less vessel traffic (Garshelis and 
Garshelis 1984). Sea otters have also shown signs of disturbance or 
escape behaviors in response to the presence and approach of survey 
vessels including sea otters diving and/or actively swimming away from 
a vessel, sea otters on haulouts entering the water, and groups of sea 
otters disbanding and swimming in multiple different directions 
(Udevitz et al. 1995).
    Additionally, sea otter responses to vessels may be influenced by 
the sea otter's previous experience with vessels. Groups of southern 
sea otters in two locations in California showed markedly different 
responses to kayakers approaching to within specific distances, 
suggesting a different level of tolerance between the groups (Gunvalson 
2011). Benham (2006) found evidence that the sea otters exposed to high 
levels of recreational activity may have become more tolerant than 
individuals in less-disturbed areas. Sea otters off the California 
coast showed only mild interest in vessels passing within hundreds of 
meters and appeared to have habituated to vessel traffic (Riedman 1983, 
Curland 1997). These findings indicate that sea otters may adjust their 
responses to vessel activities depending on the level of activity. 
Vessels will not be used extensively or over a long duration during the 
proposed work; therefore, we do not anticipate that sea otters will 
experience changes in behavior indicative of tolerance or habituation.

Effects on Sea Otter Habitat and Prey

    Physical and biological features of habitat essential to the 
conservation of sea otters include the benthic invertebrates that sea 
otters eat and the shallow rocky areas and kelp beds that provide cover 
from predators. Important sea otter habitat in the project area 
includes coastal areas within the 40-m (131-ft) depth contour where 
high densities of sea otters have been detected.
    Industrial activities, such as pile driving, may generate in-water 
noise at levels that can temporarily displace sea otters from important 
habitat and impact sea otter prey species. The primary prey species for 
sea otters are sea urchins (Strongylocentrotus spp. and Mesocentrotus 
spp.), abalone (Haliotis spp.), clams (e.g., Clinocardium nuttallii, 
Leukoma staminea, and Saxidomus gigantea), mussels (Mytilus spp.), 
crabs (e.g., Metacarcinus magister, Pugettia spp., Telemessus 
cheiragonus, and Cancer spp.), and squid (Loligo spp.) (Tinker and 
Estes 1996, LaRoche et al. 2021). When preferential prey are scarce, 
sea otters will also eat kelp, slow-moving benthic fishes, sea 
cucumbers (e.g., Apostichopus californicus), egg cases of rays, turban 
snails (Tegula spp.), octopuses (e.g., Octopus spp.), barnacles 
(Balanus spp.), sea stars (e.g., Pycnopodia helianthoides), scallops 
(e.g., Patinopecten caurinus), rock oysters (Saccostrea spp.), worms 
(e.g., Eudistylia spp.), and chitons (e.g., Mopalia spp.) (Riedman and 
Estes 1990, Davis and Bodkin 2021).
    Several studies have addressed the effects of noise on 
invertebrates (Tidau and Briffa 2016, Carroll et al. 2017). Behavioral 
changes, such as an increase in lobster (Homarus americanus) feeding 
levels (Payne et al. 2007), an increase in avoidance behavior by wild-
caught captive reef squid (Sepioteuthis australis) (Fewtrell and 
McCauley 2012), and deeper digging by razor clams (Sinonovacula 
constricta) (Peng et al. 2016) have been observed following 
experimental exposures to sound. Physical changes have also been 
observed in response to increased sound levels, including changes in 
serum biochemistry and hepatopancreatic cells in lobsters (Payne et al. 
2007) and long-term damage to the statocysts required for hearing in 
several cephalopod species (Andr[eacute] et al. 2011, Sol[eacute] et 
al. 2013). De Soto et al. (2013) found impaired embryonic development 
in scallop (Pecten novaezelandiae) larvae when exposed to 160 dB. 
Christian et al. (2003) noted a reduction in the speed of egg 
development of bottom-dwelling crabs following exposure to noise; 
however, the sound level (221 dB at 2 m or 6.6 ft) was far higher than 
the proposed project activities will produce. Industrial noise can also 
impact larval settlement by masking the natural acoustic settlement 
cues for crustaceans and fish (Pine et al. 2012, Simpson et al. 2016, 
Tidau and Briffa 201 6).
    While these studies provide evidence of deleterious effects to 
invertebrates as a result of increased sound levels, Carroll et al. 
(2017) caution that there is a wide disparity between results obtained 
in field and laboratory settings. In experimental settings, changes 
were observed only when animals were housed in enclosed tanks and many 
were exposed to prolonged bouts of continuous, pure tones. We would not 
expect similar results in open marine

[[Page 50050]]

conditions. It is unlikely that noises generated by project activities 
will have any lasting effect on sea otter prey given the short-term 
duration of sounds produced by each component of the proposed work.
    Noise-generating activities that interact with the seabed can 
produce vibrations, resulting in the disturbance of sediment and 
increased turbidity in the water. Although turbidity is likely to have 
little impact on sea otters and prey species (Todd et al. 2015), there 
may be some impacts from vibrations and increased sedimentation. For 
example, mussels (Mytilus edulis) exhibited changes in valve gape and 
oxygen demand, and hermit crabs (Pagurus bernhardus) exhibited limited 
behavioral changes in response to vibrations caused by pile driving 
(Roberts et al. 2016). Increased sedimentation is likely to reduce sea 
otter visibility, which may result in reduced foraging efficiency and a 
potential shift to less-preferred prey species. These outcomes may 
cause sea otters to spend more energy on foraging or processing the 
prey items; however, the impacts of a change in energy expenditure are 
not likely seen at the population level (Newsome et al. 2015). 
Additionally, the benthic invertebrates may be impacted by increased 
sedimentation, resulting in higher abundances of opportunistic species 
that recover quickly from industrial activities that increase 
sedimentation (Kotta et al. 2009). Although sea otter foraging could be 
impacted by industrial activities that cause vibrations and increased 
sedimentation, it is more likely that sea otters would be temporarily 
displaced from the project area due to impacts from noise rather than 
vibrations and sedimentation.

Potential Impacts of the Specified Activities on Subsistence Uses

    The proposed specified activities will occur near marine 
subsistence harvest areas used by Alaska Natives from areas surrounding 
the USCG facilities in Kodiak, Sitka, Ketchikan, Valdez, Cordova, 
Juneau, Petersburg, and Seward.
    Table 3 shows the numbers of sea otters taken by subsistence 
hunting between 2017 and 2021 in the communities in which the specified 
activities are proposed.

Table 3--Subsistence Hunting Totals and Averages of Sea Otters from 2017 to 2021 in the Communities of the Proposed Marine Construction and Pile-Driving
                                                                       Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                              Average
                                                                                                                                            (rounded to
                 Village                       2017            2018            2019            2020            2021            Total       nearest whole
                                                                                                                                              number)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cordova.................................              75              50              40              49              67             281              56
Juneau..................................              10              10              19              89              12             140              28
Ketchikan...............................               0               1              12              35              89             137              27
Kodiak..................................              59              14              58              10              51             192              38
Petersburg..............................              27              27               0              37               0              91              18
Seward..................................               0               0               0               0               0               0               0
Sitka...................................             341             161             231              86             137             956             191
Valdez..................................              36              19              34               6               2              97              19
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Subsistence harvest of sea otters around Kodiak Island takes place 
primarily in Ouzinkie, Kodiak, and Port Lions with totals of 422, 192, 
and 130 sea otters taken, respectively, from 2017 through 2021. 
Subsistence harvest also occurs in Akhiok, Larsen Bay, and Old Harbor, 
with a total of 26 sea otters taken in those 3 communities over the 
same time period.
    Of the communities on the Admiralty, Baranof, and Chichagof 
Islands, most subsistence harvest of sea otters occurs in Sitka. From 
2017 through 2021, subsistence hunters took 956 sea otters in Sitka, 
averaging 191 per year. A combined total of 304 sea otters were taken 
during that time from Port Alexander, Angoon, Hoonah, and Pelican, with 
an average of 61 sea otters harvested per year from all those 
communities combined.
    The majority of sea otter harvests in the Ketchikan area occur in 
the communities on Prince of Wales Island. From 2017 to 2021, Coffman 
Cove, Craig, Hydaburg, and Klawock harvested a total of 772 sea otters. 
During that time, 137 otters were taken for subsistence use in 
Ketchikan. Subsistence harvest of sea otters also occurs in Metlakatla, 
though there were no documented takes between 2017 and 2019 and 57 
total between 2020 and 2021.
    The subsistence use of sea otters in Valdez and Cordova has 
averaged 19 and 56 per year, respectively, from 2017 through 2021. In 
the surrounding area, Tatitlek has harvested an average of 6 sea otters 
per year for a total of 32 during that time.
    Among Juneau and the surrounding communities, Hoonah takes the most 
sea otters by subsistence hunting. From 2017 through 2021, subsistence 
users in Hoonah took 275 otters, averaging 55 per year. In comparison, 
140 sea otters were harvested in Juneau during that time. Angoon and 
Haines also take sea otters for subsistence, but in much smaller 
numbers. Angoon took 6 sea otters between 2017 and 2021, and all were 
harvested in 2018; Haines took 10 total during that time period, 
averaging 2 per year.
    The majority of subsistence sea otter hunting in the Petersburg 
area takes place in the neighboring communities of Kake and Wrangell. 
Petersburg averaged 18 sea otters taken per year between 2017 and 2021. 
Kake had a total of 612 and averaged 122 annually, and Wrangell totaled 
211 and averaged 42 per year over that timeframe.
    No subsistence harvest of sea otters has been documented in Seward 
since 2017. The nearby community of Chenega Bay has no documented 
harvest of sea otters since 2018, and only six sea otters were 
harvested in 2017.
    As all work sites are active USCG facilities, the proposed project 
does not overlap with current subsistence harvest areas. Construction 
activities will not preclude access to hunting areas or interfere in 
any way with individuals wishing to hunt. Furthermore, most USCG 
facilities are within developed areas and city limits, where firearm 
use is prohibited. Despite no conflict with subsistence use being 
anticipated, the Service will be conducting outreach with potentially 
affected communities to see whether there are any questions, concerns, 
or potential conflicts regarding subsistence use in those areas. If any 
conflicts are identified in the future, USCG will develop a plan of

[[Page 50051]]

cooperation specifying the particular steps necessary to minimize any 
effects the project may have on subsistence harvest.

Estimated Take

Definitions of Incidental Take Under the Marine Mammal Protection Act

    Below we provide definitions of three potential types of take of 
sea otters. The Service does not anticipate and is not authorizing 
lethal take or take by Level A harassment as a part of the proposed 
rule; however, the definitions of these take types are provided for 
context and background:
    Lethal Take--Human activity may result in biologically significant 
impacts to sea otters. In the most serious interactions, human actions 
can result in mortality of sea otters.
    Level A Harassment--Human activity may result in the injury of sea 
otters. Level A harassment, for nonmilitary readiness activities, is 
defined as any act of pursuit, torment, or annoyance that has the 
potential to injure a marine mammal or marine mammal stock in the wild.
    Level B Harassment--Level B Harassment for nonmilitary readiness 
activities means any act of pursuit, torment, or annoyance that 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, feeding, or sheltering. 
Changes in behavior that disrupt biologically significant behaviors or 
activities for the affected animal are indicative of take by Level B 
harassment under the MMPA.
    The Service has identified the following sea otter behaviors as 
indicating possible Level B harassment:
     Swimming away at a fast pace on belly (i.e., porpoising);
     Repeatedly raising the head vertically above the water to 
get a better view (spyhopping) while apparently agitated or while 
swimming away;
     In the case of a pup, repeatedly spyhopping while hiding 
behind and holding onto its mother's head;
     Abandoning prey or feeding area;
     Ceasing to nurse and/or rest (applies to dependent pups);
     Ceasing to rest (applies to independent animals);
     Ceasing to use movement corridors;
     Ceasing mating behaviors;
     Shifting/jostling/agitation in a raft so that the raft 
disperses;
     Sudden diving of an entire raft; or
     Flushing animals off a haulout.
    This list is not meant to encompass all possible behaviors; other 
behavioral responses may equate to take by Level B harassment. 
Relatively minor changes in behavior such as increased vigilance or a 
short-term change in direction of travel are not likely to disrupt 
biologically important behavioral patterns, and the Service does not 
view such minor changes in behavior as indicative of a take by Level B 
harassment. It is also important to note that, depending on the 
duration, frequency, or severity of the above-described behaviors, such 
responses could constitute take by Level A harassment.

Calculating Take

    We assumed all animals exposed to underwater sound levels that meet 
the acoustic exposure criteria defined above in Exposure Thresholds 
will experience take by Level B harassment due to exposure to 
underwater noise. Spatially explicit zones of ensonification were 
established around the proposed construction location to estimate the 
number of otters that may be exposed to these sound levels. We 
determined the number of otters present in the ensonification zones 
using density information generated by Eisaguirre et al. (2021), 
Weitzman and Esslinger (2015), and Cobb (2018).
    The project can be divided into five major components: rock socket 
drilling, vibratory hammering, pile cutting or clipping, power washing, 
and pile driving using an impact driver. Each of these components will 
generate a different type of in-water noise. Vibratory hammering, pile 
cutting, and power washing will produce nonimpulsive or continuous 
noise; impact driving will produce impulsive noise; and down-the-hole 
rock socket drilling is considered to produce both impulsive and 
continuous noise (NMFS 2020).
    The level of sound anticipated from each project component was 
established using recorded data from several sources listed in tables 4 
through 11. The NMFS Technical Guidance and User Spreadsheet (NMFS 
2018, 2020) was used to determine the distance at which sound levels 
would attenuate to Level A harassment thresholds, and empirical data 
from the proxy projects were used to determine the distance at which 
sound levels would attenuate to Level B harassment thresholds (table 
2). The weighting factor adjustment included in the NMFS user 
spreadsheet accounts for sound created in portions of an organism's 
hearing range where they have less sensitivity. We used the weighting 
factor adjustment for otariid pinnipeds as they are the closest 
available physiological and anatomical proxy for sea otters. The 
spreadsheet also incorporates a transmission loss coefficient, which 
accounts for the reduction in sound level outward from a sound source. 
We used the NMFS-recommended transmission loss coefficient of 15 for 
coastal pile-driving activities to indicate simple spread (NMFS 2020).

  Table 4--Summary by Project Component of Sound Level, Timing of Sound Production, Distance From Sound Source to Below Level A Harassment and Level B
Harassment Thresholds, Days of Impact, Sea Otters in Level B Harassment Ensonification Area, and Total Otters Expected To Be Harassed Through Behavioral
                                                             Disturbance at USCG Base Kodiak
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Vibratory extraction/installation
            Sound source             Down-the-hole drilling -----------------------------------------------  Clipper timber piles    Hydraulic chainsaw
                                                                  Timber piles            Steel piles                                   timber piles
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sound level........................  159 dB SELs-s (167 dB   153 dB re 1[micro]Pa    162 dB re 1[micro]Pa   153.8 dB re            151 dB re 1[micro]Pa
                                      re 1[micro]Pa RMS SPL   RMS SPL mean maximum    RMS SPL mean maximum   1[micro]Pa RMS SPL     RMS SPL mean maximum
                                      mean maximum at 10 m).  at 10 m.                at 10 m.               mean maximum at 10 m.  at 10 m.
Source.............................  Heyvaert and Reyff      Greenbusch Group 2018.  Laughlin 2010; WSDOT   NAVFAC SW 2020.......  NAVFAC SW 2020.
                                      2021.                                           2020.
Timing per pile....................  60 minutes/pile;        10 minutes/pile.......  10 minutes/pile......  2.4 minutes/pile.....  4.8 minutes/pile.
                                      36,000 strikes/pile.
Maximum piles per day..............  2.....................  5.....................  5....................  5....................  5.

[[Page 50052]]

 
Number of days of activity per year  10....................  10....................  10...................  10...................  10.
Total number of days of activity (5- 50....................  50....................  50...................  50...................  50.
 year duration).
Distance to below Level A            16.9 meters...........  0.1 meters............  0.3 meters...........  0.0 meters...........  0.0 meters.
 harassment threshold.
Distance to below Level B            29 meters.............  3 meters..............  14 meters............  4 meters.............  3 meters.
 harassment threshold.
                                    --------------------------------------------------------------------------------------------------------------------
Sea otter density..................                                                       2.54/km\2\
                                    --------------------------------------------------------------------------------------------------------------------
Level B area (km\2\)...............  0.002557..............  0.000028..............  0.000613.............  0.00005..............  0.000028.
Potential sea otters affected by     0.0064958.............  0.0000717.............  0.0015562............  0.0001270............  0.0000717.
 sound per day.
Potential sea otters affected by     0.....................  0.....................  0....................  0....................  0.
 sound per day (rounded).
Requested harassment events per      1.....................  1.....................  1....................  1....................  1.
 year.
Requested total harassment events    5.....................  5.....................  5....................  5....................  5.
 (5-year duration).
--------------------------------------------------------------------------------------------------------------------------------------------------------


  Table 5--Summary by Project Component of Sound Level, Timing of Sound Production, Distance From Sound Source to Below Level A Harassment and Level B
Harassment Thresholds, Days of Impact, Sea Otters in Level B Harassment Ensonification Area, and Total Otters Expected To Be Harassed Through Behavioral
                                                           Disturbance at USCG Moorings Sitka
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      Impact driver                        Vibratory extraction/installation
            Sound source            ----------------------------------------------------------------------------------------------     Power washing
                                          Timber piles             Steel piles            Timber piles           Steel piles
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sound level........................  160 dB SELs-s (170 dB   177 dB SELs-s (190 dB   153 dB re 1[micro]Pa   162 dB re 1[micro]Pa   161 dB re 1[micro]Pa
                                      re 1[micro]Pa RMS SPL   re 1[micro]Pa RMS SPL   RMS SPL mean maximum   RMS SPL mean maximum   RMS SPL mean maximum
                                      mean maximum at 10 m).  mean maximum at 10 m).  at 10 m.               at 10 m.               at 10 m.
Source.............................  Caltrans 2020; WSDOT    Yurk et al. 2015......  Greenbusch Group 2018  Laughlin 2010; WSDOT   Austin 2017; 84 FR
                                      2020.                                                                  2020.                  12336, April 1,
                                                                                                                                    2019.
Timing per pile....................  30 minutes/pile; 100    400 strikes/pile......  10 minutes/pile......  10 minutes/pile......  30 minutes/pile.
                                      strikes/pile.
Maximum piles per day..............  5.....................  1.....................  5....................  5....................  5.
Number of days of activity per year  5.....................  5.....................  5....................  5....................  5.
Total number of days of activity...  25....................  25....................  25...................  25...................  25.
Distance to below Level A            0.7 meters............  8.4 meters............  0.1 meters...........  0.3 meters...........  0.1 meters.
 harassment threshold.
Distance to below Level B            46 meters.............  1,000 meters..........  3 meters.............  14 meters............  12 meters.
 harassment threshold.
Sea otter abundance in Level B area  0.179174..............  1.593015..............  0.179174.............  0.179174.............  0.179174.
Potential sea otters affected by     1.....................  2.....................  1....................  1....................  1.
 sound per day (rounded).
Potential harassment events per      5.....................  10....................  5....................  5....................  5.
 year.

[[Page 50053]]

 
Potential total harassment events    25....................  50....................  25...................  25...................  25.
 (5-year duration).
--------------------------------------------------------------------------------------------------------------------------------------------------------


 Table 6--Summary by Project Component of Sound Level, Timing of Sound Production, Distance From Sound Source to
  Below Level A Harassment and Level B Harassment Thresholds, Days of Impact, Sea Otters in Level B Harassment
    Ensonification Area, and Total Otters Expected To Be Harassed Through Behavioral Disturbance at USCG Base
                                                    Ketchikan
----------------------------------------------------------------------------------------------------------------
                                                         Vibratory extraction/installation
          Sound source               Down-the-hole   ----------------------------------------    Power washing
                                       drilling          Timber piles         Steel piles
----------------------------------------------------------------------------------------------------------------
Sound level.....................  159 dB SELs-s (167  153 dB re           162 dB re           161 dB re
                                   dB re 1[micro]Pa    1[micro]Pa RMS      1[micro]Pa RMS      1[micro]Pa RMS
                                   RMS SPL mean        SPL mean maximum    SPL mean maximum    SPL mean maximum
                                   maximum at 10 m).   at 10 m.            at 10 m.            at 10 m.
Source..........................  Heyvaert and Reyff  Greenbusch Group    Laughlin 2010;      Austin 2017; 84 FR
                                   2021.               2018.               WSDOT 2020.         12336, April 1,
                                                                                               2019.
Timing per pile.................  60 minutes/pile;    10 minutes/pile...  10 minutes/pile...  30 minutes/pile.
                                   36,000 strikes/
                                   pile.
Maximum piles per day...........  2.................  5.................  5.................  5.
Number of days of activity per    10................  10................  10................  10.
 year.
Total number of days of activity  50................  50................  50................  50.
Distance to below Level A         16.9 meters.......  0.1 meters........  0.3 meters........  0.1 meters.
 harassment threshold.
Distance to below Level B         29 meters.........  3 meters..........  14 meters.........  12 meters.
 harassment threshold.
Sea otter abundance in Level B    0.475403..........  0.254697..........  0.254697..........  0.254697.
 area.
Potential sea otters affected by  1.................  1.................  1.................  1.
 sound per day (rounded).
Potential harassment events per   10................  10................  10................  10.
 year.
Potential total harassment        50................  50................  50................  50.
 events (5-year duration).
----------------------------------------------------------------------------------------------------------------


  Table 7--Summary by Project Component of Sound Level, Timing of Sound Production, Distance From Sound Source to Below Level A Harassment and Level B
Harassment Thresholds, Days of Impact, Sea Otters in Level B Harassment Ensonification Area, and Total Otters Expected To Be Harassed Through Behavioral
                                                           Disturbance at USCG Moorings Valdez
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      Impact driver                        Vibratory extraction/installation
            Sound source            ----------------------------------------------------------------------------------------------     Power washing
                                          Timber piles             Steel piles            Timber piles           Steel piles
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sound level........................  160 dB SELs-s (170 dB   177 dB SELs-s (190 dB   153 dB re 1[micro]Pa   162 dB re 1[micro]Pa   161 dB re 1[micro]Pa
                                      re 1[micro]Pa RMS SPL   re 1[micro]Pa RMS SPL   RMS SPL mean maximum   RMS SPL mean maximum   RMS SPL mean maximum
                                      mean maximum at 10 m).  mean maximum at 10 m).  at 10 m.               at 10 m.               at 10 m.
Source.............................  Caltrans 2020; WSDOT    Yurk et al. 2015......  Greenbusch Group 2018  Laughlin 2010; WSDOT   Austin 2017; 84 FR
                                      2020.                                                                  2020.                  12336, April 1,
                                                                                                                                    2019.
Timing per pile....................  30 minutes/pile; 100    400 strikes/pile......  10 minutes/pile......  10 minutes/pile......  30 minutes/pile.
                                      strikes/pile.
Maximum piles per day..............  5.....................  1.....................  5....................  5....................  5.
Number of days of activity per year  1.....................  1.....................  2....................  2....................  2.
Total number of days of activity...  5.....................  5.....................  10...................  10...................  10.

[[Page 50054]]

 
Distance to below Level A            0.7 meters............  8.4 meters............  0.1 meters...........  0.3 meters...........  0.1 meters.
 harassment threshold.
Distance to below Level B            46 meters.............  1,000 meters..........  3 meters.............  14 meters............  12 meters.
 harassment threshold.
                                    --------------------------------------------------------------------------------------------------------------------
Sea otter density..................                                                       2.31/km\2\
                                    --------------------------------------------------------------------------------------------------------------------
Level B area (km\2\)...............  0.00663...............  1.45153...............  0.000028.............  0.000613.............  0.00045.
Potential sea otters affected by     0.015313..............  3.353045..............  0.00000647...........  0.001416.............  0.00104.
 sound per day.
Potential sea otters affected by     1.....................  4.....................  0....................  0....................  0.
 sound per day (rounded).
Requested harassment events per      1.....................  4.....................  1....................  1....................  1.
 year.
Requested total harassment events    5.....................  20....................  5....................  5....................  5.
 (5-year duration).
--------------------------------------------------------------------------------------------------------------------------------------------------------


  Table 8--Summary by Project Component of Sound Level, Timing of Sound
 Production, Distance From Sound Source to Below Level A Harassment and
  Level B Harassment Thresholds, Days of Impact, Sea Otters in Level B
Harassment Ensonification Area, and Total Otters Expected To Be Harassed
         Through Behavioral Disturbance at USCG Moorings Cordova
------------------------------------------------------------------------
                                                           Vibratory
                                     Impact driver        extraction/
          Sound source                steel piles     installation steel
                                                             piles
------------------------------------------------------------------------
Sound level.....................  177 dB SELs-s (190  162 dB re
                                   dB re 1[micro]Pa    1[micro]Pa RMS
                                   RMS SPL mean        SPL mean maximum
                                   maximum at 10 m).   at 10 m.
Source..........................  Yurk et al. 2015..  Laughlin 2010;
                                                       WSDOT 2020.
Timing per pile.................  400 strikes/pile..  10 minutes/pile.
Maximum piles per day...........  1.................  5.
Number of days of activity--Year  6.................  6.
 2 only.
Total number of days of activity  6.................  6.
Distance to below Level A         8.4 meters........  0.3 meters.
 harassment threshold.
Distance to below Level B         1,000 meters......  14 meters.
 harassment threshold.
                                 ---------------------------------------
Sea otter density...............                21.15/km\2\
                                 ---------------------------------------
Level B area (km\2\)............  1.57..............  0.0006.
Potential sea otters affected by  33.2055...........  0.01269.
 sound per day.
Potential sea otters affected by  34................  1.
 sound per day (rounded).
Potential harassment events--     204...............  6.
 Year 2 only.
Potential total harassment        204...............  6.
 events (5-year duration).
------------------------------------------------------------------------


 Table 9--Summary by Project Component of Sound Level, Timing of Sound Production, Distance From Sound Source to
  Below Level A Harassment and Level B Harassment Thresholds, Days of Impact, Sea Otters in Level B Harassment
  Ensonification Area, and Total Otters Expected To Be Harassed Through Behavioral Disturbance at USCG Station
                                                     Juneau
----------------------------------------------------------------------------------------------------------------
                                                                 Vibratory extraction/
             Sound source                Impact driver timber     installation timber         Power washing
                                                piles                    piles
----------------------------------------------------------------------------------------------------------------
Sound level..........................  160 dB SEL s-s.........  153 dB re 1[micro]Pa     161 dB re 1[micro]Pa
                                       (170 dB re 1[micro]Pa     RMS SPL mean maximum     RMS SPL mean maximum
                                        RMS SPL mean maximum     at 10 m.                 at 10 m.
                                        at 10 m).
Source...............................  Caltrans 2020; WSDOT     Greenbusch Group 2018..  Austin 2017; 84 FR
                                        2020.                                             12336, April 1, 2019.
Timing per pile......................  30 minutes/pile; 100     10 minutes/pile........  30 minutes/pile.
                                        strikes/pile.

[[Page 50055]]

 
Maximum piles per day................  5......................  5......................  5.
Number of days of activity per year..  10.....................  10.....................  10.
Total number of days of activity.....  50.....................  50.....................  50.
Distance to below Level A harassment   0.7 meters.............  0.1 meters.............  0.1 meters.
 threshold.
Distance to below Level B harassment   46 meters..............  3 meters...............  12 meters.
 threshold.
Sea otter abundance in Level B area..  0.475403...............  0.179145...............  0.179145.
Potential sea otters affected by       1......................  1......................  1.
 sound per day (rounded).
Potential harassment events per year.  10.....................  10.....................  10.
Potential total harassment events (5-  50.....................  50.....................  50.
 year duration).
----------------------------------------------------------------------------------------------------------------


  Table 10--Summary by Project Component of Sound Level, Timing of Sound Production, Distance From Sound Source to Below Level A Harassment and Level B
Harassment Thresholds, Days of Impact, Sea Otters in Level B Harassment Ensonification Area, and Total Otters Expected To Be Harassed Through Behavioral
                                                         Disturbance at USCG Moorings Petersburg
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      Impact driver                       Vibratory extraction/ installation
            Sound source            ----------------------------------------------------------------------------------------------     Power washing
                                          Timber piles             Steel piles            Timber piles           Steel piles
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sound level........................  160 dB SELs-s (170 dB   177 dB SELs-s (190 dB   153 dB re 1[micro]Pa   162 dB re 1[micro]Pa   161 dB re 1[micro]Pa
                                      re 1[micro]Pa RMS SPL   re 1[micro]Pa RMS SPL   RMS SPL mean maximum   RMS SPL mean maximum   RMS SPL mean maximum
                                      mean maximum at 10 m).  mean maximum at 10 m).  at 10 m.               at 10 m.               at 10 m.
Source.............................  Caltrans 2020; WSDOT    Yurk et al. 2015......  Greenbusch Group 2018  Laughlin 2010; WSDOT   Austin 2017; 84 FR
                                      2020.                                                                  2020.                  12336, April 1,
                                                                                                                                    2019.
Timing per pile....................  30 minutes/pile; 100    400 strikes/pile......  10 minutes/pile......  10 minutes/pile......  30 minutes/pile.
                                      strikes/pile.
Maximum piles per day..............  5.....................  1.....................  5....................  5....................  5.
Number of days of activity per year  4.....................  4.....................  4....................  4....................  4.
Total number of days of activity...  20....................  20....................  20...................  20...................  20.
Distance to below Level A            0.7 meters............  8.4 meters............  0.1 meters...........  0.3 meters...........  0.1 meters.
 harassment threshold.
Distance to below Level B            46 meters.............  1,000 meters..........  3 meters.............  14 meters............  12 meters.
 harassment threshold.
Sea otter abundance in Level B area  0.347151..............  5.5504................  0.176168.............  0.176168.............  0.176168.
Potential sea otters affected by     1.....................  6.....................  1....................  1....................  1.
 sound per day (rounded).
Potential harassment events per      4.....................  24....................  4....................  4....................  4.
 year.
Potential total harassment events..  20....................  120...................  20...................  20...................  20.
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 50056]]


 Table 11--Summary by Project Component of Sound Level, Timing of Sound
 Production, Distance From Sound Source to Below Level A Harassment and
  Level B Harassment Thresholds, Days of Impact, Sea Otters in Level B
Harassment Ensonification Area, and Total Otters Expected To Be Harassed
         Through Behavioral Disturbance at USCG Moorings Seward
------------------------------------------------------------------------
                                                           Vibratory
                                     Impact driver        extraction/
          Sound source                steel piles     installation steel
                                                             piles
------------------------------------------------------------------------
Sound level.....................  177 dB SELs-s (190  162 dB re
                                   dB re 1[micro]Pa    1[micro]Pa RMS
                                   RMS SPL mean        SPL mean maximum
                                   maximum at 10 m).   at 10 m.
Source..........................  Yurk et al. 2015..  Laughlin 2010;
                                                       WSDOT 2020.
Timing per pile.................  400 strikes/pile..  10 minutes/pile.
Maximum piles per day...........  1.................  5.
Number of days of activity per    4.................  4.
 year.
Total number of days of activity  4.................  4.
Distance to below Level A         8.4 meters........  0.3 meters.
 harassment threshold.
Distance to below Level B         1,000 meters......  14 meters.
 harassment threshold.
                                 ---------------------------------------
Sea otter density...............                2.31/km\2\
                                 ---------------------------------------
Level B area (km\2\)............  0.2386............  0.0002.
Potential sea otters affected by  0.551166..........  0.000462.
 sound per day.
Potential sea otters affected by  1.................  0.
 sound per day (rounded).
Requested harassment events--     4.................  1.
 Year 3 only.
Requested total harassment        4.................  1.
 events (5-year duration).
------------------------------------------------------------------------

    Sound levels for all sources are unweighted and given in dB re 1 
[micro]Pa. Nonimpulsive sounds are in the form of mean maximum root 
mean square (RMS) sound pressure level (SPL) as it is more conservative 
than cumulative sound exposure level (SEL) or peak SPL for these 
activities. Impulsive sound sources are in the form of SEL for a single 
strike.
    To determine the number of sea otters that may experience in-water 
sounds >160 dB re 1[micro]Pa, we applied two different methods driven 
by the available survey data. For sites in Southeast Alaska (Sitka, 
Ketchikan, Petersburg, and Juneau; figures 2 through 5 in the 
supplemental figures document available at https://www.regulations.gov 
under Docket No. FWS-R7-ES-2022-0025), we determined the number of sea 
otters present in each 400-mx400-m pixel of the sea otter density 
raster digital map layer developed by Eisaguirre et al. (2021) and 
rounded these values to the nearest whole number. The numbers of sea 
otters present in the ensonified area for a given activity was derived 
by summing the values of the pixels that intersected with the polygon 
of the ensonified area. These values, as well as the number of sea 
otters expected to be exposed to sounds >160 dB re 1[micro]Pa in a 
given year and across the 5-year ITR period, can be found in tables 5, 
6, 9, and 10.
    For Kodiak, Seward, Valdez, and Cordova (figures 6 through 9 in the 
supplemental figures document available at https://www.regulations.gov 
under Docket No. FWS-R7-ES-2022-0025), we multiplied the area 
ensonified to >160 dB re 1[micro]Pa by densities of animals derived 
from surveys conducted of the Kodiak Archipelago (Cobb 2018) and Prince 
William Sound (Weitzman and Esslinger 2015). These densities, as well 
as the number of sea otters expected to be exposed to sounds >160 dB re 
1[micro]Pa in a given year and across the 5-year ITR period, can be 
found in tables 4, 7, 8, and 11.
    For all locations, we assumed that the different types of 
activities would occur sequentially and that the total number of days 
of work in a year would equal the sum of the number of days required to 
complete each type of activity planned for that year. While it is 
possible that on some days more than one type of activity will take 
place, which would reduce the number of days of exposure within a year, 
we cannot know this information in advance. As such, the estimated 
number of days and, therefore, exposures per year is the maximum 
possible for the planned work. Where the number of exposures expected 
per day was zero to three or more decimal places (i.e., <0.00X), the 
number of exposures per day was assumed to be zero. However, USCG has 
requested, and the Service is granting, authorization of one take per 
year as a contingency.
    No Level A harassment (i.e., injury) is anticipated or authorized. 
The specified activities are not anticipated to result in Level A 
harassment because the propagation distances for sounds capable of 
causing PTS, or other impacts that rise to the level of injury, are 
small enough that this type of exposure is preventable. While in-water 
sound levels will be capable of causing PTS from up to 16.9 m from the 
source location, operations will be shut down should any marine mammal 
come within 20 m of project activities. Soft-start and zone clearance 
prior to startup will also prevent the exposure of marine mammals to 
sound levels that could cause PTS.

Critical Assumptions

    We estimate that 25 takes of 5 Southwest Alaska sea otters by Level 
B harassment, 255 takes of 77 Southcentral Alaska sea otters by Level B 
harassment, and 700 takes of 115 Southeast Alaska sea otters by Level B 
harassment will occur due to USCG's proposed dock construction 
activities. In order to conduct this analysis and estimate the 
potential amount of take by Level B harassment, several critical 
assumptions were made.
    Level B harassment is equated herein with behavioral responses that 
indicate harassment or disturbance. A portion of animals likely respond 
in ways that indicate some level of disturbance but not to any 
biologically significant behaviors.
    For sites in Southeast Alaska, sea otter density was calculated 
using a Bayesian hierarchical model created by Eisaguirre et al. 
(2021), which includes assumptions that can be found in the original 
publication. For sites in Southwest and Southcentral Alaska, sea otter 
densities were taken from surveys and analyses conducted by Cobb (2018) 
and Weitzman and Esslinger (2015). Methods and assumptions for each of 
these surveys can be found in the original publications.

[[Page 50057]]

    Sound level estimates for construction activities were generated 
using sound source verification from recent pile-driving activities in 
a number of locations within and beyond Alaska. Environmental 
conditions in these locations, including water depth, substrate, and 
ambient sound levels are similar to those in the project location, but 
not identical. Further, estimation of ensonification zones were based 
on sound attenuation models using a simple spreading loss model. These 
factors may lead to actual sound values differing slightly from those 
estimated here.
    Finally, the pile-driving activities described here will also 
create in-air noise. Because sea otters spend over half of their day 
with their heads above water (Esslinger et al. 2014), they will be 
exposed to an increase in air noise from construction equipment. 
However, we have calculated Level B harassment with the assumption that 
an individual may be harassed only one time per 24-hour period, and 
underwater sound levels will be more disturbing and extend farther than 
in-air noise. Thus, while sea otters may be disturbed by noise both in 
air and underwater, we have relied on the more conservative underwater 
estimates.

Sum of Harassment From All Sources

    USCG will conduct pile driving and marine construction activities 
over the GOA during a period of 5 years following the effective date of 
the final rule. A summary of total numbers of estimated takes by Level 
B harassment during the duration of the project by season and take 
category is provided in table 12.
    In a single year, we estimate five instances of take by Level B 
harassment of one northern sea otter from the Southwest Alaska stock 
due to behavioral responses or TTS associated with noise exposure. Over 
the 5-year duration of these proposed ITRs, we estimate 25 instances of 
take by Level B harassment of 5 northern sea otters from the Southwest 
Alaska stock due to behavioral responses or TTS associated with noise 
exposure. Although multiple instances of harassment of otters are 
possible, these events are likely to result in only temporary changes 
in behavior. As such, these events are unlikely to have significant 
consequences for the health, reproduction, or survival of affected 
animals and, therefore, would not rise to the level of an injury or 
Level A harassment.

      Table 12--Summary by Project Site and Stocks of Sea Otters Expected To Be Harassed Through Behavioral
  Disturbance, Sea Otters in Level B Harassment Ensonification Area, for Single-Year Operations and Over the 5-
                                            year Duration of the ITR
----------------------------------------------------------------------------------------------------------------
                                                     Number of       Number of       Number of       Number of
                    Location                          otters         exposures      otters  (5     exposures  (5
                                                   (single year)   (single year)      years)          years)
----------------------------------------------------------------------------------------------------------------
Kodiak..........................................               1               5               5              25
                                                 ---------------------------------------------------------------
    Total Southwest Alaska stock................               1               5               5              25
Seward..........................................               2               5               2               5
Valdez..........................................               8               8              40              40
Cordova.........................................              35             210              35             210
                                                 ---------------------------------------------------------------
    Total Southcentral Alaska stock.............              45             223              77             255
Sitka...........................................               6              30              30             150
Juneau..........................................               3              30              15             150
Petersburg......................................              10              40              50             200
Ketchikan.......................................               4              40              20             200
                                                 ---------------------------------------------------------------
    Total Southeast Alaska stock................              23             140             115             700
                                                 ---------------------------------------------------------------
        Total all stocks........................              69             368             197             980
----------------------------------------------------------------------------------------------------------------

    In a single year, we estimate 223 instances of take by Level B 
harassment of 45 northern sea otters from the Southcentral Alaska stock 
due to behavioral responses or TTS associated with noise exposure. Over 
the 5-year duration of these proposed ITRs, we estimate 255 instances 
of take by Level B harassment of 77 northern sea otters from the 
Southcentral Alaska stock due to behavioral responses or TTS associated 
with noise exposure. Although multiple instances of harassment of 
otters are possible, these events are likely to result in only 
temporary changes in behavior. As such, these events are unlikely to 
have significant consequences for the health, reproduction, or survival 
of affected animals and, therefore, would not rise to the level of an 
injury or Level A harassment.
    In a single year, we estimate 140 instances of take by Level B 
harassment of 23 northern sea otters from the Southeast Alaska stock 
due to behavioral responses or TTS associated with noise exposure. Over 
the 5-year duration of these proposed ITRs, we estimate 700 instances 
of take by Level B harassment of 115 northern sea otters from the 
Southeast Alaska stock due to behavioral responses or TTS associated 
with noise exposure. Although an estimated 700 instances of harassment 
of 115 otters are possible, these events are likely to result in only 
temporary changes in behavior. As such, these events are unlikely to 
have significant consequences for the health, reproduction, or survival 
of affected animals and, therefore, would not rise to the level of an 
injury or Level A harassment.

Determinations and Findings

    Sea otters exposed to sound from the specified activities are 
likely to respond with temporary behavioral modification or 
displacement. The specified activities could temporarily interrupt the 
feeding, resting, and movement of sea otters. Because activities will 
occur during a limited amount of time and in a localized region, the 
impacts associated with the project are likewise temporary and 
localized. The anticipated effects are primarily short-term behavioral 
reactions and displacement of sea otters near active operations.
    Sea otters that encounter the specified activity may exert more 
energy than they would otherwise due to temporary

[[Page 50058]]

cessation of feeding, increased vigilance, and retreat from the project 
area. We expect that affected sea otters will tolerate this exertion 
without measurable effects on health or reproduction. The anticipated 
takes will be due to short-term Level B harassment in the form of TTS, 
startling reactions, or temporary displacement.
    With the adoption of the mitigation measures proposed in USCG's 
request and required by this proposed ITR, anticipated take was 
reduced. Those mitigation measures are further described below.

Small Numbers

    To assess whether the authorized incidental taking would be limited 
to ``small numbers'' of marine mammals, the Service uses a proportional 
approach that considers whether the estimated number of marine mammals 
to be subjected to incidental take is small relative to the population 
size of the species or stock. More specifically, the Service compares 
the number of animals anticipated to be taken in each year contemplated 
by the ITR with the population estimate applicable to each of those 
years. Here, predicted levels of take were determined based on 
estimated density of sea otters in the project area and ensonification 
zones developed using empirical evidence from similar geographic areas. 
We estimate that the USCG projects may annually result in the 
incidental take of approximately:
     1 sea otter from the Southwest Alaska stock, representing 
0.000 percent of the best available estimate of that stock (USFWS 2020) 
(1 / 51,382 [ap] 0.00000);
     45 sea otters from the Southcentral Alaska stock, 
representing 0.208 percent of the best available estimate that stock 
(Esslinger et al. 2021) (77 / 21,617 = 0.00208); and
     23 sea otters from the Southeast Alaska stock, 
representing 0.087 percent of the best available estimate of that stock 
(Eisaguirre et al. 2021) (23 / 26,347 = 0.000873).

Based on these numbers, we propose a finding that USCG's specified 
activities projects will take only a small number of animals from each 
affected stock of northern sea otters.
    We note ongoing litigation concerning a separate, recently issued 
ITR in which plaintiffs assert that the Service's ``small numbers'' 
analysis must aggregate the number of animals anticipated to be taken 
in each year contemplated by the ITR and compare that multiyear number 
to the population estimate applicable to 1 year. While we disagree with 
this approach, for the sake of providing the applicant with regulatory 
certainty pending resolution of that litigation, we further analyze the 
``small numbers'' question using this alternative approach and estimate 
the incidental take of:
     5 sea otters from the Southwest Alaska stock, representing 
0.011 percent of the best available estimate of that stock (USFWS 2020) 
(5 / 51,382 = 0.00010);
     77 sea otters from the Southcentral Alaska stock, 
representing 0.356 percent of the best available estimate that stock 
(Esslinger et al. 2021) (77 / 21,617 = 0.00356); and
     115 sea otters from the Southeast Alaska stock, 
representing 0.437 percent of the best available estimate of that stock 
(Eisaguirre et al. 2021) (115 / 26,347 = 0.004363).

These alternative numbers also support our proposed finding that USCG's 
specified activities will take only a small number of animals from each 
affected stock of northern sea otters.

Negligible Impact

    We propose a finding that any incidental take by harassment 
resulting from the specified activities cannot be reasonably expected 
to, and is not reasonably likely to, adversely affect the sea otter 
through effects on annual rates of recruitment or survival and will, 
therefore, have no more than a negligible impact on the Southwest, 
Southcentral, and Southeast Alaska stocks of northern sea otters. In 
making this finding, we considered the best available scientific 
information, including the biological and behavioral characteristics of 
the species, the most recent information on species distribution and 
abundance within the area of the specified activities, the current and 
expected future status of the stock (including existing and foreseeable 
human and natural stressors), the potential sources of disturbance 
caused by the project, and the potential responses of marine mammals to 
this disturbance. In addition, we reviewed USCG-provided materials, 
information in our files and datasets, published reference materials, 
and species experts.
    Sea otters are likely to respond to proposed activities with 
temporary behavioral modification or temporary displacement. These 
reactions are not anticipated to have consequences for the long-term 
health, reproduction, or survival of affected animals. Most animals 
will respond to disturbance by moving away from the source, which may 
cause temporary interruption of foraging, resting, or other natural 
behaviors. Affected animals are expected to resume normal behaviors 
soon after exposure with no lasting consequences. Each sea otter is 
estimated to be exposed to construction noise for between 1 and 10 days 
per year, resulting in repeated exposures. However, injuries (i.e., 
Level A harassment or PTS) due to chronic sound exposure is estimated 
to occur at a longer time scale (Southall et al. 2019). The area that 
will experience noise greater than Level B thresholds due to rock-
socket drilling and vibratory hammering is very small, and an animal 
that may be disturbed could easily escape the noise by moving to nearby 
quiet areas. Further, sea otters spend over half of their time above 
the surface during the summer months (Esslinger et al. 2014), and 
likely no more than 70 percent of their time foraging during winter 
months (Gelatt et al. 2002), thus their ears will not be exposed to 
continuous noise, and the amount of time it may take for permanent 
injury is considerably longer than that of mammals primarily under 
water. Some animals may exhibit some of the stronger responses typical 
of Level B harassment, such as fleeing, interruption of feeding, or 
flushing from a haulout. These responses could have temporary 
biological impacts for affected individuals but are not anticipated to 
result in measurable changes in survival or reproduction.
    The total number of animals affected and severity of impact is not 
sufficient to change the current population dynamics at the stock 
scale. Although the specified activities may result in approximately 25 
incidental takes of 5 sea otters from the Southwest Alaska stock, 255 
incidental takes of 77 sea otters from the Southcentral Alaska stock, 
and 700 incidental takes of 115 otters from the Southeast Alaska stock, 
we do not expect this level of harassment to affect annual rates of 
recruitment or survival or result in adverse effects on the stock.
    Our proposed finding of negligible impact applies to incidental 
take associated with the proposed activities as mitigated by the 
avoidance and minimization measures identified in USCG's mitigation and 
monitoring plan and applied in the rule portion of this document in 
proposed Sec.  18.149 Mitigation, below. These mitigation measures are 
designed to minimize interactions with and impacts to sea otters. These 
measures and the monitoring and reporting procedures are required for 
the validity of our finding and are a necessary component of the 
proposed ITRs. For these reasons, we propose a finding that the 2022-
2027 USCG project will have a negligible impact on the Southeast, 
Southcentral,

[[Page 50059]]

and Southwest Alaska stocks of northern sea otters.

Least Practicable Adverse Impacts

    We find that the mitigation measures required by this proposed ITR 
will effect the least practicable adverse impacts on the stocks from 
any incidental take likely to occur in association with the specified 
activities. In making this finding, we considered the biological 
characteristics of sea otters, the nature of the specified activities, 
the potential effects of the activities on sea otters, the documented 
impacts of similar activities on sea otters, and alternative mitigation 
measures.
    In evaluating what mitigation measures are appropriate to ensure 
the least practicable adverse impact on species or stocks and their 
habitat, as well as subsistence uses, we considered the manner and 
degree to which the successful implementation of the measures are 
expected to achieve this goal. We considered the nature of the 
potential adverse impact being mitigated (likelihood, scope, range), 
the likelihood that the measures will be effective if implemented, and 
the likelihood of effective implementation. We also considered the 
practicability of the measures for applicant implementation (e.g., 
cost, impact on operations). We assessed whether any additional, 
practicable requirements could be implemented to further reduce effects 
but did not identify any.
    To reduce the potential for disturbance from acoustic stimuli 
associated with the activities, USCG has proposed mitigation measures, 
including the following:
     Using the smallest diameter piles practicable while 
minimizing the overall number of piles;
     Conducting activities that may produce in-water sound as 
close to low tide as possible;
     Development of a marine mammal monitoring and mitigation 
plan;
     Establishment of shutdown and monitoring zones;
     Visual mitigation monitoring by designated Protected 
Species Observers (PSOs);
     Site clearance before startup;
     Soft-start procedures; and
     Shutdown procedures.

Impact on Subsistence Use

    The proposed project will not preclude access to harvest areas or 
interfere with the availability of sea otters for harvest. 
Additionally, the USCG facilities are located in developed areas and 
largely within areas where firearm use is prohibited. We therefore 
propose a finding that USCG's anticipated harassment will not have an 
unmitigable adverse impact on the availability of any stock of northern 
sea otters for taking for subsistence uses. In making this finding, we 
considered the timing and location of the proposed activities and the 
timing and location of subsistence harvest activities in the area of 
the proposed project.

Monitoring and Reporting

    The purposes of the monitoring requirements are to document and 
provide data for assessing the effects of specified activities on sea 
otters; to ensure that take is consistent with that anticipated in the 
small numbers, negligible impact, and subsistence use analyses; and to 
detect any unanticipated effects on the species. Monitoring plans 
include steps to document when and how sea otters are encountered and 
their numbers and behaviors during these encounters. This information 
allows the Service to measure encounter rates and trends and to 
estimate numbers of animals potentially affected. To the extent 
possible, monitors will record group size, age, sex, reaction, duration 
of interaction, and closest approach to the project activity.
    As proposed, monitoring activities will be summarized and reported 
in a formal report each year. USCG must submit a final monitoring 
report to us no later than 90 days after the expiration of the LOA. We 
will base each year's monitoring objective on the previous year's 
monitoring results. We will require an approved plan for monitoring and 
reporting the effects of pile driving and marine construction 
activities on sea otters prior to issuance of an LOA. We will require 
approval of the monitoring results for continued operation under the 
LOA.
    We find that these proposed monitoring and reporting requirements 
to evaluate the potential impacts of planned activities will ensure 
that the effects of the activities remain consistent with the rest of 
the findings.

Request for Public Comments

    If you wish to comment on these proposed regulations or the 
associated draft environmental assessment, you may submit your comments 
by any of the methods described in ADDRESSES. Please identify if you 
are commenting on the proposed regulations, the draft environmental 
assessment, or both, make your comments as specific as possible, 
confine them to issues pertinent to the proposed regulations, and 
explain the reason for any changes you recommend. Where possible, your 
comments should reference the specific section or paragraph that you 
are addressing. The Service will consider all comments that are 
received by the close of the comment period (see DATES).

Clarity of This Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must: (a) Be logically 
organized; (b) use the active voice to address readers directly; (c) 
use common, everyday words and clear language rather than jargon; (d) 
be divided into short sections and sentences; and (e) use lists and 
tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that you find unclear, which sections or sentences are too long, the 
sections where you feel lists or tables would be useful, etc.

Required Determinations

National Environmental Policy Act (NEPA)

    We have prepared a draft environmental assessment in accordance 
with the NEPA (42 U.S.C. 4321 et seq.). We have preliminarily concluded 
that authorizing the nonlethal, incidental, unintentional take by Level 
B harassment of up to 5 incidental takes of 5 sea otters from the 
Southwest Alaska stock, 255 incidental takes of 77 sea otters from the 
Southcentral Alaska stock, and 700 incidental takes of 115 otters from 
the Southeast Alaska stock of sea otters in the specified geographic 
region during the specified activities during the regulatory period 
would not significantly affect the quality of the human environment, 
and thus, preparation of an environmental impact statement for these 
proposed incidental take regulations, if finalized, is not required by 
section 102(2) of NEPA or its implementing regulations. We are 
accepting comments on the draft environmental assessment as specified 
above in DATES and ADDRESSES.

Endangered Species Act (ESA)

    Under the ESA (16 U.S.C. 1536(a)(2)), all Federal agencies are 
required to ensure the actions they authorize are not likely to 
jeopardize the continued existence of any threatened or endangered 
species or result in

[[Page 50060]]

destruction or adverse modification of critical habitat. While neither 
the Southeast Alaska nor Southcentral Alaska stock is listed under the 
ESA, the Southwest Alaska stock is listed as threatened under the ESA. 
Prior to finalizing these proposed ITRs, if warranted, the Service will 
complete intra-Service consultation under section 7 of the ESA on our 
proposed issuance of these ITRs. These evaluations and findings will be 
made available on the Service's website at https://ecos.fws.gov/ecp/report/biological-opinion.

Government-to-Government Consultation

    It is our responsibility to communicate and work directly on a 
Government-to-Government basis with federally recognized Alaska Native 
Tribes and organizations in developing programs for healthy ecosystems. 
We seek their full and meaningful participation in evaluating and 
addressing conservation concerns for protected species. It is our goal 
to remain sensitive to Alaska Native culture, and to make information 
available to Alaska Natives. Our efforts are guided by the following 
policies and directives:
    (1) The Native American Policy of the Service (January 20, 2016);
    (2) the Alaska Native Relations Policy (currently in draft form);
    (3) Executive Order 13175 (January 9, 2000);
    (4) Department of the Interior Secretarial Orders 3206 (June 5, 
1997), 3225 (January 19, 2001), 3317 (December 1, 2011), and 3342 
(October 21, 2016);
    (5) the Alaska Government-to-Government Policy (a departmental 
memorandum issued January 18, 2001); and
    (6) the Department of the Interior's policies on consultation with 
Alaska Native Tribes and organizations.
    We have evaluated possible effects of the proposed activities on 
federally recognized Alaska Native Tribes and organizations. The 
Service has determined that, due to this project's locations and 
activities, the Tribal organizations and communities across the Gulf of 
Alaska, as well as relevant Alaska Native Claims Settlement Act 
corporations, will not be impacted by this project. Regardless, we will 
be reaching out to them to inform them of the availability of these 
proposed regulations and offer them the opportunity to consult.
    We invite continued discussion, either about the project and its 
impacts or about our coordination and information exchange throughout 
the ITR process.

Regulatory Planning and Review

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) 
will review all significant rules for a determination of significance. 
OMB has designated this proposed rule as not significant.
    Executive Order 13563 reaffirms the principles of Executive Order 
12866 while calling for improvements in the nation's regulatory system 
to promote predictability, to reduce uncertainty, and to use the best, 
most innovative, and least burdensome tools for achieving regulatory 
ends. The Executive order directs agencies to consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public where these approaches are relevant, feasible, 
and consistent with regulatory objectives. Executive Order 13563 
emphasizes further that regulations must be based on the best available 
science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. We have developed this 
proposed rule in a manner consistent with these requirements.
    OIRA bases its determination of significance upon the following 
four criteria: (a) Whether the rule will have an annual effect of $100 
million or more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government; 
(b) whether the rule will create inconsistencies with other Federal 
agencies' actions; (c) whether the rule will materially affect 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients; and (d) whether the rule raises novel 
legal or policy issues.
    Expenses will be related to, but not necessarily limited to: the 
development of requests for LOAs; monitoring, recordkeeping, and 
reporting activities conducted during pile driving and marine 
construction operations; development of activity- and species-specific 
marine mammal monitoring and mitigation plans; and coordination with 
Alaska Natives to minimize effects of operations on subsistence 
hunting. Realistically, costs of compliance with this proposed rule, if 
finalized, are minimal in comparison to those related to actual pile 
driving and marine construction operations. The actual costs to develop 
the petition for promulgation of regulations and LOA requests do not 
exceed $200,000 per year, short of the ``major rule'' threshold that 
would require preparation of a regulatory impact analysis.

Small Business Regulatory Enforcement Fairness Act

    We have determined that this proposed rule, if finalized, is not a 
major rule under 5 U.S.C. 804(2), the Small Business Regulatory 
Enforcement Fairness Act. The proposed rule is also not likely to 
result in a major increase in costs or prices for consumers, individual 
industries, or government agencies or have significant adverse effects 
on competition, employment, productivity, innovation, or on the ability 
of United States-based enterprises to compete with foreign-based 
enterprises in domestic or export markets.

Regulatory Flexibility Act

    We have determined that this proposed rule, if finalized, will not 
have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
USCG, and their contractors conducting pile driving and marine 
construction activities in the GOA, are the only entities subject to 
these proposed ITRs. Therefore, neither a regulatory flexibility 
analysis nor a small entity compliance guide is required.

Takings Implications

    This proposed rule, if finalized, does not have takings 
implications under Executive Order 12630 because it authorizes the 
nonlethal, incidental, but not intentional, take of sea otters by 
marine construction and pile driving and, thereby, exempts the USCG 
from civil and criminal liability as long as they operate in compliance 
with the terms of their LOAs. Therefore, a takings implications 
assessment is not required.

Federalism Effects

    This proposed rule, if finalized, does not contain policies with 
federalism implications sufficient to warrant preparation of a 
federalism assessment under Executive Order 13132. The MMPA gives the 
Service the authority and responsibility to protect sea otters.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), this proposed rule, if finalized, will not ``significantly or 
uniquely'' affect small governments. A small government agency plan is 
not required. The Service has determined and certifies pursuant to the 
Unfunded Mandates Reform Act that this

[[Page 50061]]

rulemaking will not impose a cost of $100 million or more in any given 
year on local or State governments or private entities. This proposed 
rule, if finalized, will not produce a Federal mandate of $100 million 
or greater in any year, i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act.

Civil Justice Reform

    The Departmental Solicitor's Office has determined that this 
proposed rule, if finalized, will not unduly burden the judicial system 
and meets the applicable standards provided in sections 3(a) and 
3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    This proposed rule contains existing and new information 
collections. All information collections require approval by the Office 
of Management and Budget (OMB) under the Paperwork Reduction Act of 
1995 (PRA, 44 U.S.C. 3501 et seq.). We may not conduct or sponsor and 
you are not required to respond to a collection of information unless 
it displays a currently valid OMB control number. OMB has reviewed and 
approved the information collection requirements associated with the 
incidental take of marine mammals during specified activities for this 
new subpart, as well as previously approved requirements in subparts J 
and K, and assigned OMB Control Number 1018-0070 (expires 01/31/2024).
    In accordance with the PRA and its implementing regulations at 5 
CFR 1320.8(d)(1), we provide the general public and other Federal 
agencies with an opportunity to comment on our proposal to revise OMB 
Control Number 1018-0070. This helps us assess the impact of our 
information collection requirements and minimize the public's reporting 
burden. It also helps the public understand our information collection 
requirements and provide the requested data in the desired format.
    As part of our continuing effort to reduce paperwork and respondent 
burdens, and in accordance with 5 CFR 1320.8(d)(1), we invite the 
public and other Federal agencies to comment on any aspect of this 
proposed information collection, including:
    (1) Whether or not the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether or not the information will have practical utility;
    (2) The accuracy of our estimate of the burden for this collection 
of information, including the validity of the methodology and 
assumptions used;
    (3) Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    (4) Ways to minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of response.
    Comments that you submit in response to this proposed rulemaking 
are a matter of public record. Before including your address, phone 
number, email address, or other personal identifying information in 
your comment, you should be aware that your entire comment--including 
your personal identifying information--may be made publicly available 
at any time. While you can ask us in your comment to withhold your 
personal identifying information from public review, we cannot 
guarantee that we will be able to do so.
    While this proposed rule pertains only to the incidental taking of 
northern sea otters, this information collection includes requirements 
associated with the incidental taking of polar bears, Pacific walruses, 
and northern sea otters in Alaska. The Marine Mammal Protection Act of 
1972, as amended (MMPA; 16 U.S.C. 1361 et seq.), imposed, with certain 
exceptions, a moratorium on the taking of marine mammals. Section 
101(a)(5)(A) of the MMPA directs the Secretary of the Interior to 
allow, upon request by citizens of the United States, the taking of 
small numbers of marine mammals incidental to specified activities 
(other than commercial fishing) if the Secretary makes certain findings 
and prescribes specific regulations that, among other things, establish 
permissible methods of taking.
    This is a nonform collection. Respondents must comply with the 
regulations at 50 CFR 18.27, which outline the procedures and 
requirements for submitting a request. Specific regulations governing 
authorized incidental take of marine mammal activities are contained in 
50 CFR part 18, subparts J (incidental take of polar bears and Pacific 
walruses in the Beaufort Sea) and K (incidental take of northern sea 
otters in the Cook Inlet). These regulations provide the applicant with 
a detailed description of information that we need to evaluate the 
proposed activity and determine if it is appropriate to issue specific 
regulations and, subsequently, LOAs. We use the information to verify 
the findings required to issue incidental take regulations, to decide 
if we should issue an LOA, and (if an LOA is issued) what conditions 
should be included in the LOA. In addition, we analyze the information 
to determine impacts to polar bears, Pacific walruses, northern sea 
otters, and the availability of those marine mammals for subsistence 
purposes of Alaska Natives.
    The proposed revisions to existing and new reporting and/or 
recordkeeping requirements identified below require approval by OMB:
    (1) Addition of New Subpart--With this proposed rulemaking (RIN 
1018-BG05), we propose to add a new subpart, 50 CFR part 18, subpart L 
(U.S. Coast Guard) for a period of 5 years effective from the date of 
final issuance of these ITRs. This new subpart will not require new 
information collections beyond those contained in this submission, 
which were previously approved by OMB. The addition of subpart L does, 
however, require an adjustment to the previously approved burden for 
the application, reporting, and recordkeeping burden requirements.
    (2) We are also proposing a revision to the previously approved 
``Onsite Monitoring and Observation Reports'' information collection to 
split it into three separate information collections to more accurately 
account for burden for the various components under this specific 
section of the regulations:
    a. In-Season Monitoring (Activity Progress Reports) (50 CFR 
18.127(a)(1))--Activity progress reports. Holders of an LOA must:
     Notify the Service at least 48 hours prior to the onset of 
activities;
     Provide the Service weekly progress reports of any 
significant changes in activities and/or locations; and
     Notify the Service within 48 hours after ending of 
activities.
    b. In-Season Monitoring (Polar Bear Observation Reports) (50 CFR 
18.127(a)(3))--Holders of an LOA must report, within 48 hours, all 
observations of polar bears and potential polar bear dens, during any 
industry activity. Upon request, monitoring report data must be 
provided in a common electronic format (to be specified by the 
Service). Information in the observation report must include, but is 
not limited to:
     Date, time, and location of observation;
     Number of bears;
     Sex and age of bears (if known);
     Observer name and contact information;
     Weather, visibility, sea state, and sea-ice conditions at 
the time of observation;

[[Page 50062]]

     Estimated closest distance of bears from personnel and 
facilities;
     Industry activity at time of sighting;
     Possible attractants present;
     Bear behavior;
     Description of the encounter;
     Duration of the encounter; and
     Mitigation actions taken.
    c. Notification of LOA Incident Report (50 CFR 18.127(b))--Holders 
of an LOA must report, as soon as possible, but within 48 hours, all 
LOA incidents during any industry activity. An LOA incident is any 
situation when specified activities exceed the authority of an LOA, 
when a mitigation measure was required but not enacted, or when injury 
or death of a marine mammal occurs. Reports must include:
     All information specified for an observation report;
     A complete detailed description of the incident; and
     Any other actions taken.
    In addition to the revisions described above, we are bringing the 
following existing regulatory requirements contained in part 18 that 
were not previously approved by OMB under the PRA into compliance:
    (1) Mitigation--Interaction Plan (50 CFR 18.126(a)(1)(iii))--All 
holders of an LOA must have an approved polar bear safety, awareness, 
and interaction plan on file with the Service's Marine Mammals 
Management Office and onsite and provide polar bear awareness training 
to certain personnel. Interaction plans must include:
     The type of activity and where and when the activity will 
occur (i.e., a summary of the plan of operation);
     A food, waste, and other ``bear attractants'' management 
plan;
     Personnel training policies, procedures, and materials;
     Site-specific walrus and polar bear interaction risk 
evaluation and mitigation measures;
     Polar bear avoidance and encounter procedures; and
     Polar bear observation and reporting procedures.
    (2) Mitigation 3rd-Party Notifications (50 CFR 18.126(a)(2) and 
18.126(e)(1))--All applicants for an LOA must contact affected 
subsistence communities and hunter organizations to discuss potential 
conflicts caused by the activities and provide the Service 
documentation of communications as described in Sec.  18.122.
    (3) Mitigation--Requests for Exemption Waivers (50 CFR 
18.126(c)(4))--Exemption waivers to the operating conditions in 50 CFR 
18.126(c) may be issued by the Service on a case-by-case basis, based 
upon a review of seasonal ice conditions and available information on 
walrus and polar bear distributions in the area of interest.
    (4) Mitigation--Plan of Cooperation (50 CFR 18.126(e)(2))--When 
appropriate, a holder of an LOA will be required to develop and 
implement a Service-approved plan of cooperation (POC). The POC must 
include a description of the procedures by which the holder of the LOA 
will work and consult with potentially affected subsistence hunters and 
a description of specific measures that have been or will be taken to 
avoid or minimize interference with subsistence hunting of walruses and 
polar bears and to ensure continued availability of the species for 
subsistence use. The Service will review the POC to ensure that any 
potential adverse effects on the availability of the animals are 
minimized. The Service will reject POCs if they do not provide adequate 
safeguards to ensure the least practicable adverse impact on the 
availability of walruses and polar bears for subsistence use.
    We also propose to renew the existing reporting and/or 
recordkeeping requirements identified below:
    (1) Application for Regulations--Regulations at 50 CFR part 18 
require the applicant to provide information on the activity as a 
whole, which includes, but is not limited to, an assessment of total 
impacts by all persons conducting the activity. Applicants can find 
specific requirements in 50 CFR part 18, subparts J and K. These 
regulations provide the applicant with a detailed description of 
information that we need to evaluate the proposed activity and 
determine whether to issue specific regulations and, subsequently, 
LOAs. The required information includes:
     A description of the specific activity or class of 
activities that can be expected to result in incidental taking of 
marine mammals.
     The dates and duration of such activity and the specific 
geographical region where it will occur.
     Based on the best available scientific information, each 
applicant must also provide:

--An estimate of the species and numbers of marine mammals likely to be 
taken by age, sex, and reproductive conditions;
--The type of taking (e.g., disturbance by sound, injury or death 
resulting from collision, etc.) and the number of times such taking is 
likely to occur;
--A description of the status, distribution, and seasonal distribution 
(when applicable) of the affected species or stocks likely to be 
affected by such activities;
--The anticipated impact of the activity upon the species or stocks; 
and
--The anticipated impact of the activity on the availability of the 
species or stocks for subsistence uses.

     The anticipated impact of the activity upon the habitat of 
the marine mammal populations and the likelihood of restoration of the 
affected habitat.
     The availability and feasibility (economic and 
technological) of equipment, methods, and manner of conducting such 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks, their habitat, and, where 
relevant, on their availability for subsistence uses, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance. (The applicant and those conducting the specified 
activity and the affected subsistence users are encouraged to develop 
mutually agreeable mitigating measures that will meet the needs of 
subsistence users.)
     Suggested means of accomplishing the necessary monitoring 
and reporting that will result in increased knowledge of the species 
through an analysis of the level of taking or impacts and suggested 
means of minimizing burdens by coordinating such reporting requirements 
with other schemes already applicable to persons conducting such 
activity.
     Suggested means of learning of, encouraging, and 
coordinating research opportunities, plans, and activities relating to 
reducing such incidental taking from such specified activities, and 
evaluating its effects.
     Applicants must develop and implement a site-specific (or 
umbrella plan addressing site-specific considerations), Service-
approved marine mammal monitoring and mitigation plan to monitor and 
evaluate the effectiveness of mitigation measures and the effects of 
activities on marine mammals and the subsistence use of these species.
     Applicants must also provide trained, qualified, and 
Service-approved onsite observers to carry out monitoring and 
mitigation activities identified in the marine mammal monitoring and 
mitigation plan.
    This information is necessary so that we can anticipate the impact 
of the activity on the species or stocks and on the availability of the 
species or stocks for subsistence uses. Under requirements of the MMPA, 
we cannot authorize a take unless the total of all takes will have a 
negligible impact on the species or stocks and, where appropriate, will 
not have an

[[Page 50063]]

unmitigable adverse impact on the availability of the species or stocks 
for subsistence uses. These requirements ensure that applicants are 
aware of related monitoring and research efforts they can apply to 
their situation, and that the monitoring and reporting that we impose 
are the least burdensome to the applicant.
    (2) Final Monitoring Report--The results of monitoring and 
mitigation efforts identified in the marine mammal monitoring and 
mitigation plan must be submitted to the Service for review within 90 
days of the expiration of an LOA. Upon request, final report data must 
be provided in a common electronic format (to be specified by the 
Service). Information in the final (or annual) report must include, but 
is not limited to:
     Copies of all observation reports submitted under the LOA;
     A summary of the observation reports;
     A summary of monitoring and mitigation efforts including 
areas, total hours, total distances, and distribution;
     Analysis of factors affecting the visibility and 
detectability of walruses and polar bears during monitoring;
     Analysis of the effectiveness of mitigation measures;
     Analysis of the distribution, abundance, and behavior of 
walruses and/or polar bears observed; and
     Estimates of take in relation to the specified activities.
    (3) Requests for Letters of Authorization (LOA)--LOAs, which may be 
issued only to U.S. citizens, are required to conduct activities 
pursuant to any specific regulations established. Once specific 
regulations are effective, the Service will, to the maximum extent 
possible, process subsequent requests for LOAs within 30 days after 
receipt of the request by the Service. All LOAs will specify the period 
of validity and any additional terms and conditions appropriate for the 
specific request. Issuance of LOAs will be based on a determination 
that the level of taking will be consistent with the findings made for 
the total taking allowable under the specific regulations.
    (4) Onsite Monitoring and Observation Reports (See proposed 
revision section above.)--The regulations also require that each holder 
of an LOA submit a monitoring report indicating the nature and extent 
of all takes of marine mammals that occurred incidentally to the 
specific activity. Since the inception of incidental take 
authorizations for polar bears (Ursus maritimus), Pacific walruses 
(walruses) (Odobenus rosmarus divergens), and northern sea otters 
(otters) (Enhydra lutris kenyoni), we have required monitoring and 
reporting during oil and gas industry activities. The purpose of 
monitoring and reporting requirements is to assess the effects of 
industrial activities on polar bears, walruses, and otters to ensure 
that take is minimal to marine mammal populations, and to detect any 
unanticipated effects of take. The monitoring focus has been site-
specific, area-specific, or population-specific. Site-specific 
monitoring measures animal-human encounter rates, outcomes of 
encounters, and trends of animal activity in the industrial areas, such 
as polar bear numbers, behavior, and seasonal use. Area-specific 
monitoring includes analyzing animal spatial and temporal use trends, 
sex/age composition, and risk assessment to unpredictable events, such 
as oil spills. Population-specific monitoring includes investigating 
species' life-history parameters, such as population size, recruitment, 
survival, physical condition, status, and mortality.
    (5) Polar Bear Den Detection Report--Holders of an LOA seeking to 
carry out onshore activities in known or suspected polar bear denning 
habitat during the denning season must make efforts to locate occupied 
polar bear dens within and near proposed areas of operation. They may 
use any appropriate tool, such as forward-looking infrared imagery and/
or polar bear scent-trained dogs, in concert with denning habitat maps 
along the Alaskan coast. In accordance with 50 CFR 18.128(b)(1) and 
(b)(2), LOA holders must report all observed or suspected polar bear 
dens to us prior to the initiation of activities. We use this 
information to determine the appropriate terms and conditions in an 
individual LOA in order to minimize potential impacts and disturbance 
to polar bears.
    Holders of an LOA seeking to carry out onshore activities during 
the denning season (November-April) must conduct two separate surveys 
for occupied polar bear dens in all denning habitat within 1.6 km (1 
mi) of proposed activities using aerial infrared (AIR) imagery. 
Further, all denning habitat within 1.6 km (1 mi) of areas of proposed 
seismic surveys must be surveyed three separate times with AIR 
technology.
    Flight crews will record and report environmental parameters 
including air temperature, dew point, wind speed and direction, cloud 
ceiling, and percent humidity, and a flight log will be provided to the 
Service within 48 hours of the flight.
    Title of Collection: Incidental Take of Marine Mammals During 
Specified Activities, 50 CFR 18.27 and 50 CFR part 18, subparts J, K, 
and L.
    OMB Control Number: 1018-0070.
    Form Numbers: None.
    Type of Review: Revision of a currently approved collection.
    Respondents/Affected Public: Individuals/households, private sector 
(oil and gas industry companies), State/local/Tribal governments, and 
Federal Government.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: On occasion for applications; annually or 
on occasion for reports.
    Total Estimated Annual Nonhour Burden Cost: $200,000 (associated 
with the polar bear den detection survey and report).

----------------------------------------------------------------------------------------------------------------
                                     Number of                                        Average
         Type of action               annual         Number of     Total annual     completion     Total annual
                                    respondents   responses each     responses     time  (hours)   burden hours
----------------------------------------------------------------------------------------------------------------
Incidental Take of Marine
 Mammals--Application for
 Regulations:
    Reporting--Private Sector...               3               1               3              20             450
    Recordkeeping--Private                                                                   130
     Sector.....................
    Reporting--Federal                         2               1               2              20             300
     Government.................
    Recordkeeping--Federal                                                                   130
     Government.................
Requests--Letters of
 Authorization:
    Reporting--Private Sector...              15               4              60               8           1,440
    Recordkeeping--Private                                                                    16
     Sector.....................
    Reporting--Federal                         5               4              20               8             480
     Government.................
    Recordkeeping--Federal                                                                    16
     Government.................

[[Page 50064]]

 
Final Monitoring Report
    Reporting--Private Sector...              15               4              60               8           1,440
    Recordkeeping--Private                                                                    42
     Sector.....................
    Reporting--Federal                         5               4              20               8             480
     Government.................
    Recordkeeping--Federal                                                                    42
     Government.................
Polar Bear Den Detection Report
 (50 CFR 18.126(b)(1)(iv)):
    Reporting--Private Sector...               4               1               4               8             200
    Recordkeeping--Private                                                                    42
     Sector.....................
In-season Monitoring--Activity
 Progress Reports (50 CFR
 18.127(a)(1)) NEW (Revised):
    Reporting--Private Sector...               1               1               1              .5               1
    Recordkeeping--Private                                                                    .5
     Sector.....................
    Reporting--Federal                         1               1               1              .5               1
     Government.................
    Recordkeeping--Federal                                                                    .5
     Government.................
In-season Monitoring--Polar Bear
 Observation Reports (50 CFR
 18.127(a)(3)) NEW (Revised):
    Reporting--Private Sector...              15             4.5              68             .25              85
    Recordkeeping--Private                                                                     1
     Sector.....................
    Reporting--Federal                         1               7               7             .25               9
     Government.................
    Recordkeeping--Federal                                                                     1
     Government.................
Notification of LOA Incident
 Report (50 CFR 18.127(b)) NEW
 (Revised):
    Reporting--Private Sector...               2               1               2             .25               2
    Recordkeeping--Private                                                                    .5
     Sector.....................
    Reporting--Federal                         1               1               1             .25               1
     Government.................
    Recordkeeping--Federal                                                                    .5
     Government.................
Mitigation--Interaction Plan (50
 CFR 18.126(a)(1)(iii)) NEW
 (Existing):
    Reporting--Private Sector...              12               1              12               2              96
    Recordkeeping--Private                                                                     6
     Sector.....................
    Reporting--Federal                         3               1               3               2              24
     Government.................
    Recordkeeping--Federal                                                                     6
     Government.................
Mitigation--3rd Party
 Notifications (50 CFR
 18.126(a)(2) and 18.126(e)(1))
 NEW (Existing)
    Reporting--Private Sector...              12               3              36               1              72
    Recordkeeping--Private                                                                     1
     Sector.....................
    Reporting--Federal                         3               3               9               1              18
     Government.................
    Recordkeeping--Federal                                                                     1
     Government.................
Mitigation--Requests for
 Exemption Waivers (50 CFR
 18.126(c)(4)) NEW (Existing)
    Reporting--Private Sector...               1               1               1               1               2
    Recordkeeping--Private                                                                     1
     Sector.....................
    Reporting--Federal                         1               1               1               1               2
     Government.................
    Recordkeeping--Federal                                                                     1
     Government.................
Mitigation--Plan of Cooperation
 (50 CFR 18.126(e)(2)) NEW
 (Existing)
    Reporting--Private Sector...               1               1               1              10              40
    Recordkeeping--Private                                                                    30
     Sector.....................
    Reporting--Federal                         1               1               1              10              40
     Government.................
    Recordkeeping--Federal                                                                    30
     Government.................
                                 -------------------------------------------------------------------------------
        Totals..................             104  ..............             313  ..............           5,183
----------------------------------------------------------------------------------------------------------------

    Send your written comments and suggestions on this information 
collection by the date indicated in DATES to OMB, with a copy to the 
Service Information Collection Clearance Officer, U.S. Fish and 
Wildlife Service, MS: PRB/PERMA (JAO), 5275 Leesburg Pike, Falls 
Church, VA 22041-3803 (mail); or by email to [email protected]. Please 
reference OMB Control Number 1018-0070 in the subject line of your 
comments.

References

    For a list of the references cited in this proposed rule, see 
Docket No. FWS-R7-ES-2022-0025, available at https://www.regulations.gov.

Signing Authority

    On July 19, 2022, Shannon Estenoz, Assistant Secretary for Fish and 
Wildlife and Parks, approved this action for publication. On August 9, 
2022, Shannon Estenoz authorized the undersigned to sign this document 
electronically and submit it to the Office of the Federal Register for 
publication as an official document of the Department of the Interior.

List of Subjects in 50 CFR Part 18

    Administrative practice and procedure, Alaska, Imports, Indians, 
Marine mammals, Marine construction, Reporting and recordkeeping 
requirements, Transportation.

[[Page 50065]]

Proposed Regulation Promulgation

    For the reasons set forth in the preamble, the Service proposes to 
amend part 18, subchapter B of chapter 1, title 50 of the Code of 
Federal Regulations as set forth below.

PART 18--MARINE MAMMALS

0
1. The authority citation of 50 CFR part 18 continues to read as 
follows:

    Authority:  16 U.S.C. 1361 et seq.

0
2. Amend part 18 by adding subpart L to read as follows:
Subpart L--Nonlethal Taking of Marine Mammals Incidental to Pile 
Driving and Marine Construction Activities in the Gulf of Alaska
Sec.
18.142 Specified activities covered by this subpart.
18.143 Specified geographic region where this subpart applies.
18.144 Dates this subpart is in effect.
18.145 Procedure to obtain a letter of authorization (LOA).
18.146 How the Service will evaluate a request for an LOA.
18.147 Authorized take allowed under an LOA.
18.148 Prohibited take under an LOA.
18.149 Mitigation.
18.150 Monitoring.
18.151 Reporting requirements.


Sec.  18.142  Specified activities covered by this subpart.

    Regulations in this subpart apply to the nonlethal incidental, but 
not intentional, take, as defined in Sec.  18.3 and under section 3 of 
the Marine Mammal Protection Act (16 U.S.C. 1371 et seq.), of small 
numbers of northern sea otters (Enhydra lutris kenyoni; hereafter ``sea 
otters'') by the U.S. Coast Guard (hereafter ``USCG'' or ``the 
applicant'') while engaged in activities associated with or in support 
of marine construction activities in the Gulf of Alaska. The applicant 
is a U.S. citizen as defined in Sec.  18.27(c).


Sec.  18.143  Specified geographic region where this subpart applies.

    (a) The specified geographic region encompasses areas within 2 
kilometers (km) (~1.25 miles (mi)) of eight USCG facilities within the 
USCG Civil Engineering Unit, Juneau Area of Responsibility. These 
facilities are: Base Kodiak, Moorings Seward, Moorings Valdez, Moorings 
Cordova, Moorings Sitka, Station Juneau, Moorings Petersburg, and Base 
Ketchikan.
    (b) The geographic area of these incidental take regulations (ITRs) 
includes all Alaska State waters within this area as well as all 
adjacent rivers, estuaries, and coastal lands where sea otters may 
occur.


Sec.  18.144  Dates this subpart is in effect.

    Regulations in this subpart are effective until [DATE 5 YEARS AFTER 
THE EFFECTIVE DATE OF THE FINAL RULE].


Sec.  18.145  Procedure to obtain a letter of authorization (LOA).

    (a) To incidentally take sea otters pursuant to the regulations in 
this subpart, USCG must apply for and obtain an LOA in accordance with 
the regulations in Sec.  18.27(f) and this section. USCG must submit 
the request for an LOA to the U.S. Fish and Wildlife Service (Service) 
Alaska Region Marine Mammals Management Office (MMM), MS 341, 1011 East 
Tudor Road, Anchorage, Alaska 99503, at least 30 days prior to the 
start of the proposed activity.
    (b) The request for an LOA must include the following information:
    (1) An operational plan for the activity;
    (2) A digital geospatial file of the project footprint; and
    (3) A site-specific marine mammal monitoring and mitigation plan 
that specifies the procedures to monitor and mitigate the effects of 
the activities on sea otters.


Sec.  18.146  How the Service will evaluate a request for an LOA.

    (a) The Service will evaluate each request for an LOA to determine 
if the proposed activity is consistent with the analysis and findings 
made for the regulations in this subpart. Depending on the results of 
the evaluation, we may grant the requested authorization, add further 
conditions, or deny the request for an LOA.
    (b) Once issued, the LOA may be withdrawn or suspended if the 
project activity is modified in a way that undermines the results of 
the previous evaluation, if the conditions of the regulations in this 
subpart are not being substantially met, or if the taking allowed is or 
may be having more than a negligible impact on the affected stocks of 
sea otters or an unmitigable adverse impact on the availability of sea 
otters for subsistence uses.
    (c) The Service will make decisions concerning withdrawals of an 
LOA, either on an individual or class basis, only after notice and 
opportunity for public comment in accordance with Sec.  18.27(f)(5). 
The requirement for notice and public comment will not apply should we 
determine that an emergency exists that poses a significant risk to the 
well-being of the species or stocks of sea otters.


Sec.  18.147  Authorized take allowed under an LOA.

    (a) An LOA allows for the nonlethal, incidental, but not 
intentional take by Level B harassment of sea otters during activities 
specified in Sec.  18.142 within the Gulf of Alaska ITR region 
described in Sec.  18.143.
    (b) Each LOA will set forth:
    (1) Permissible methods of incidental take;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (c) Issuance of the LOA(s) must be based on a determination that 
the level of take will be consistent with the findings made for the 
total allowable take under the regulations in this subpart.


Sec.  18.148  Prohibited take under an LOA.

    (a) Except as otherwise provided in this subpart, prohibited taking 
is described in Sec.  18.11 as well as: intentional take, lethal 
incidental take of sea otters, and any other take that fails to comply 
with this subpart or with the terms and conditions of an LOA.
    (b) If project activities cause unauthorized take, the applicant 
must take the following actions:
    (1) Cease activities immediately (or reduce activities to the 
minimum level necessary to maintain safety) and report the details of 
the incident within 48 hours to the Service MMM at 1-800-362-5148 
(business hours); and
    (2) Suspend further activities until the Service has reviewed the 
circumstances, determined whether additional mitigation measures are 
necessary to avoid further unauthorized taking, and notified the 
applicant that project activities may resume.


Sec.  18.149  Mitigation.

    (a) Mitigation measures for all LOAs. The applicant, including all 
personnel operating under the applicant's authority (or ``operators,'' 
including contractors, subcontractors, and representatives) must 
undertake the following activities to avoid and minimize take of sea 
otters by harassment.
    (1) Implement policies and procedures to avoid interactions with 
and minimize to the greatest extent practicable adverse impacts on sea 
otters, their habitat, and the availability of these marine mammals for 
subsistence uses.
    (2) Develop avoidance and minimization policies and procedures,

[[Page 50066]]

in cooperation with the Service, that include temporal or spatial 
activity restrictions to be used in response to the presence of sea 
otters engaged in a biologically significant activity (e.g., resting, 
feeding, hauling out, mating, or nursing).
    (3) Cooperate with the Service's MMM Office and other designated 
Federal, State, and local agencies to monitor and mitigate the impacts 
of pile driving and marine construction activities on sea otters.
    (4) Allow Service personnel or the Service's designated 
representative to board project vessels or visit project worksites for 
the purpose of monitoring impacts to sea otters and subsistence uses of 
sea otters at any time throughout project activities so long as it is 
safe to do so.
    (5) Designate trained and qualified protected species observers 
(PSOs) to monitor for the presence of sea otters, initiate mitigation 
measures, and monitor, record, and report the effects of the activities 
on sea otters. The applicant is responsible for providing training to 
PSOs to carry out mitigation and monitoring.
    (6) Have an approved mitigation and monitoring plan on file with 
the Service MMM and onsite that includes the following information:
    (i) The type of activity and where and when the activity will occur 
(i.e., a summary of the plan of operation);
    (ii) Personnel training policies, procedures, and materials;
    (iii) Site-specific sea otter interaction risk evaluation and 
mitigation measures;
    (iv) Sea otter avoidance and encounter procedures; and
    (v) Sea otter observation and reporting procedures.
    (b) Mitigation measures for in-water noise-generating work. The 
applicant must carry out the following measures:
    (1) Construction activities must be conducted using equipment that 
generates the lowest practicable levels of underwater sound within the 
range of frequencies audible to sea otters.
    (2) During all pile-installation activities, regardless of 
predicted sound levels, a physical interaction shutdown zone of 20 m 
(66 ft) must be enforced. If a sea otter enters the shutdown zone, in-
water activities must be delayed until either the animal has been 
visually observed outside the shutdown zone or 15 minutes have elapsed 
since the last observation time without redetection of the animal.
    (3) If the impact driver has been idled for more than 30 minutes, 
an initial set of three strikes from the impact driver must be 
delivered at reduced energy, followed by a 1-minute waiting period, 
before full-powered proofing strikes.
    (4) In-water activity must be conducted in daylight. If 
environmental conditions prevent visual detection of sea otters within 
the shutdown zone, in-water activities must be stopped until visibility 
is regained.
    (5) All in-water work along the shoreline must be conducted during 
low tide when the site is dewatered to the maximum extent practicable.
    (c) Mitigation measures for vessel operations. Vessel operators 
must take every precaution to avoid harassment of sea otters when a 
vessel is operating near these animals. The applicant must carry out 
the following measures:
    (1) Vessels must remain at least 500 m from rafts of sea otters 
unless safety is a factor. Vessels must reduce speed and maintain a 
distance of 100 m (328 ft) from all sea otters unless safety is a 
factor.
    (2) Vessels must not be operated in such a way as to separate 
members of a group of sea otters from other members of the group and 
must avoid alongshore travel in shallow water (<20 m) whenever 
practicable.
    (3) When weather conditions require, such as when visibility drops, 
vessels must adjust speed accordingly to avoid the likelihood of injury 
to sea otters.
    (4) Vessel operators must be provided written guidance for avoiding 
collisions and minimizing disturbances to sea otters. Guidance will 
include measures identified in paragraphs (c)(1) through (4) of this 
section.


Sec.  18.150  Monitoring.

    (a) Operators must work with PSOs to apply mitigation measures and 
must recognize the authority of PSOs, up to and including stopping 
work, except where doing so poses a significant safety risk to 
personnel.
    (b) Duties of PSOs include watching for and identifying sea otters, 
recording observation details, documenting presence in any applicable 
monitoring zone, identifying and documenting potential harassment, and 
working with operators to implement all appropriate mitigation 
measures.
    (c) A sufficient number of PSOs will be available to meet the 
following criteria: 100 percent monitoring of exclusion zones during 
all daytime periods of underwater noise-generating work; a maximum of 4 
consecutive hours on watch per PSO; a maximum of approximately 12 hours 
on watch per day per PSO.
    (d) All PSOs will complete a training course designed to 
familiarize individuals with monitoring and data collection procedures. 
A field crew leader with prior experience as a sea otter observer will 
supervise the PSO team. Initially, new or inexperienced PSOs will be 
paired with experienced PSOs so that the quality of marine mammal 
observations and data recording is kept consistent. Resumes for 
candidate PSOs will be made available for the Service to review.
    (e) Observers will be provided with reticule binoculars (10x42), 
big-eye binoculars or spotting scopes (30x), inclinometers, and range 
finders. Field guides, instructional handbooks, maps, and a contact 
list will also be made available.
    (f) Observers will collect data using the following procedures:
    (1) All data will be recorded onto a field form or database.
    (2) Global positioning system data, sea state, wind force, and 
weather will be collected at the beginning and end of a monitoring 
period, every hour in between, at the change of an observer, and upon 
sightings of sea otters.
    (3) Observation records of sea otters will include date; time; the 
observer's locations, heading, and speed (if moving); weather; 
visibility; number of animals; group size and composition (adults/
juveniles); and the location of the animals (or distance and direction 
from the observer).
    (4) Observation records will also include initial behaviors of the 
sea otters, descriptions of project activities and underwater sound 
levels being generated, the position of sea otters relative to 
applicable monitoring and mitigation zones, any mitigation measures 
applied, and any apparent reactions to the project activities before 
and after mitigation.
    (5) For all sea otters in or near a mitigation zone, observers will 
record the distance from the vessel to the sea otter upon initial 
observation, the duration of the encounter, and the distance at last 
observation in order to monitor cumulative sound exposures.
    (6) Observers will note any instances of animals lingering close to 
or traveling with vessels for prolonged periods of time.


Sec.  18.151  Reporting requirements.

    (a) Operators must notify the Service at least 48 hours prior to 
commencement of activities.
    (b) Monthly reports will be submitted to the Service MMM for all 
months during which noise-generating work takes place. The monthly 
report will contain and summarize the following information: dates, 
times, weather, and sea conditions (including the Beaufort Scale's sea 
state and wind force conditions) when sea otters were

[[Page 50067]]

sighted; the number, location, distance from the sound source, and 
behavior of the sea otters; the associated project activities; and a 
description of the implementation and effectiveness of mitigation 
measures with a discussion of any specific behaviors the sea otters 
exhibited in response to mitigation.
    (c) A final report will be submitted to the Service within 90 days 
after the expiration of each LOA. It will include the following:
    (1) A summary of monitoring efforts (hours of monitoring, 
activities monitored, number of PSOs, and, if requested by the Service, 
the daily monitoring logs).
    (2) A description of all project activities, along with any 
additional work yet to be done. Factors influencing visibility and 
detectability of marine mammals (e.g., sea state, number of observers, 
and fog and glare) will be discussed.
    (3) A description of the factors affecting the presence and 
distribution of sea otters (e.g., weather, sea state, and project 
activities). An estimate will be included of the number of sea otters 
exposed to noise at received levels greater than or equal to 160 dB 
(based on visual observation).
    (4) A description of changes in sea otter behavior resulting from 
project activities and any specific behaviors of interest.
    (5) A discussion of the mitigation measures implemented during 
project activities and their observed effectiveness for minimizing 
impacts to sea otters. Sea otter observation records will be provided 
to the Service in the form of electronic database or spreadsheet files.
    (d) All reports must be submitted by email to 
[email protected].
    (e) Injured, dead, or distressed sea otters that are not associated 
with project activities (e.g., animals known to be from outside the 
project area, previously wounded animals, or carcasses with moderate to 
advanced decomposition or scavenger damage) must be reported to the 
Service within 24 hours of the discovery to either the Service MMM (1-
800-362-5148, business hours); or the Alaska SeaLife Center in Seward 
(1-888-774-7325, 24 hours a day); or both. Photographs, video, location 
information, or any other available documentation must be provided to 
the Service.
    (f) Operators must notify the Service upon project completion or 
end of the work season.

Maureen D. Foster,
Chief of Staff, Office of the Assistant Secretary for Fish and Wildlife 
and Parks.
[FR Doc. 2022-17445 Filed 8-12-22; 8:45 am]
BILLING CODE 4333-15-P