Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Trident Seafoods Bunkhouse Dock Replacement Project, Kodiak, Alaska, 17820-17832 [2024-05163]

Download as PDF 17820 Federal Register / Vol. 89, No. 49 / Tuesday, March 12, 2024 / Notices of Commerce (Commerce) and the U.S. International Trade Commission (ITC) that revocation of the antidumping duty (AD) order on stainless steel bar (SS Bar) from India would likely lead to the continuation or recurrence of dumping and material injury to an industry in the United States, Commerce is publishing a notice of continuation of this AD order. DATES: Applicable February 28, 2024. FOR FURTHER INFORMATION CONTACT: Mary Kolberg or Garry Kasparov, AD/ CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482–1785, or (202) 482–1397, respectively. SUPPLEMENTARY INFORMATION: Background On February 21, 1995, Commerce published in the Federal Register the AD Order on SS Bar from India.1 On September 1, 2023, the ITC instituted,2 and Commerce initiated,3 the fifth sunset review of the Order, pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act). As a result of its review, Commerce determined that revocation of the Order would likely lead to the continuation or recurrence of dumping, and therefore, notified the ITC of the magnitude of the margins of dumping rates likely to prevail should the Order be revoked.4 On February 28, 2024, the ITC published its determination, pursuant to sections 751(c) of the Act, that revocation of the Order would likely lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time.5 Scope of the Order khammond on DSKJM1Z7X2PROD with NOTICES The merchandise subject to the Order is SS Bar. SS Bar means articles of stainless steel in straight lengths that have been either hot-rolled, forged, turned, cold-drawn, cold-rolled or otherwise cold-finished, or ground, 1 See Antidumping Duty Orders: Stainless Steel Bar from Brazil, India and Japan, 60 FR 9661 (February 21, 1995) (Order). 2 See Stainless Steel Bar from India; Institution of a Five-Year Review, 88 FR 60486 (September 1, 2023). 3 See Initiation of Five-Year (Sunset) Reviews, 88 FR 60438 (September 1, 2023) (Initiation Notice). 4 See Stainless Steel Bar from India: Final Results of the Expedited Fifth Sunset Review of the Antidumping Duty Order, 89 FR 324 (January 3, 2024), and accompanying Issues and Decision Memorandum (IDM). 5 See Stainless Steel Bar from India, 89 FR 14718 (February 28, 2024) (ITC Final Determination). VerDate Sep<11>2014 19:36 Mar 11, 2024 Jkt 262001 having a uniform solid cross section along their whole length in the shape of circles, segments of circles, ovals, rectangles (including squares), triangles, hexagons, octagons or other convex polygons. SS Bar includes cold-finished SS Bars that are turned or ground in straight lengths, whether produced from hot-rolled bar or from straightened and cut rod or wire, and reinforcing bars that have indentations, ribs, grooves, or other deformations produced during the rolling process. Except as specified above, the term does not include stainless steel semifinished products, cut length flat-rolled products (i.e., cut length rolled products which if less than 4.75 mm in thickness have a width measuring at least 10 times the thickness, or if 4.75 mm or more in thickness having a width which exceeds 150 mm and measures at least twice the thickness), wire (i.e., cold-formed products in coils, of any uniform solid cross section along their whole length, which do not conform to the definition of flat-rolled products), and angles, shapes and sections. Imports of these products are currently classifiable under subheadings 7222.11.00, 7222.19.00, 7222.20.00, 7222.30.00 of the Harmonized Tariff Schedule (HTS). Although the HTS subheadings are provided for convenience and customs purposes, our written description of the scope of the Order is dispositive.6 Continuation of the Order As a result of the determinations by Commerce and the ITC that revocation of the Order would likely lead to continuation or recurrence of dumping, and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act, Commerce hereby orders the continuation of the Order. U.S. Customs and Border Protection will continue to collect AD cash deposits at the rates in effect at the time of entry for all imports of subject merchandise. The effective date of the continuation of the Order will be February 28, 2024.7 Pursuant to section 751(c)(2) of the Act and 19 CFR 351.218(c)(2), Commerce intends to initiate the next five-year reviews of the Order not later than 30 days prior to fifth anniversary of the date of the last determination by the ITC. Administrative Protective Order (APO) This notice also serves as a final reminder to parties subject to an APO of their responsibility concerning the return or destruction of proprietary 6 See 7 See PO 00000 Order. ITC Final Determination. Frm 00012 Fmt 4703 Sfmt 4703 information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanctions. Notification to Interested Parties This five-year (sunset) review and this notice are in accordance with sections 751(c) and 751(d)(2) of the Act and published in accordance with section 777(i) of the Act, and 19 CFR 351.218(f)(4). Dated: March 6, 2024. Ryan Majerus, Deputy Assistant Secretary for Policy and Negotiations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. [FR Doc. 2024–05172 Filed 3–11–24; 8:45 am] BILLING CODE 3510–DS–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [RTID 0648–XD635] Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Trident Seafoods Bunkhouse Dock Replacement Project, Kodiak, Alaska National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; issuance of an incidental harassment authorization. AGENCY: In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to Trident Seafoods Corporation (Trident) to incidentally harass marine mammals during construction activities associated with the Bunkhouse Dock replacement project in Kodiak, Alaska. DATES: This authorization is effective from March 1, 2024, through February 29, 2025. ADDRESSES: Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: https://www.fisheries. noaa.gov/national/marine-mammalSUMMARY: E:\FR\FM\12MRN1.SGM 12MRN1 Federal Register / Vol. 89, No. 49 / Tuesday, March 12, 2024 / Notices protection/incidental-takeauthorizations-construction-activities. In case of problems accessing these documents, please call the contact listed below. FOR FURTHER INFORMATION CONTACT: Rachel Wachtendonk, Office of Protected Resources, NMFS, (301) 427– 8401. SUPPLEMENTARY INFORMATION: Description of Specified Activity Overview The MMPA prohibits the ‘‘take’’ of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are proposed or, if the taking is limited to harassment, a notice of a proposed IHA is provided to the public for review. Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other ‘‘means of effecting the least practicable adverse impact’’ on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to in shorthand as ‘‘mitigation’’); and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below. Trident plans to remove and replace the Bunkhouse Dock on the shore of Near Island Channel in Kodiak, Alaska. Starting in March 2024 and lasting 8 weeks, Trident will use down-the-hole (DTH) drilling and vibratory pile driving to remove existing piles and install new ones. The Bunkhouse Dock replacement will include the removal of 100 14-inch (in), or 36-centimeter (cm) diameter timber piles, 75 14-in (36-cm) steel Hpiles, and 60 16-in (41-cm) diameter steel pipe piles. Once the existing piles are removed, 26 16-in (41-cm) diameter steel pipe piles and 52 24-in (61-cm) diameter steel pipe piles would be installed to support the new pier. The installation and removal of 52 temporary 24-in (61-cm) diameter steel pipe piles would be completed to support permanent pile installation. All piles will be removed with the deadpull method with the vibratory hammer being used if the deadpull method is unsuccessful. Temporary and permanent piles will be initially installed with the vibratory hammer followed by the DTH drill to embed them to their final depth. A further detailed description of the planned construction project is provided in the Federal Register notice for the proposed IHA (88 FR 88874, December 26, 2023). Since that time, no changes have been made to the planned activities. Therefore, a detailed description is not provided here. Please refer to that Federal Register notice for the description of the specified activity. Mitigation, monitoring, and reporting measures are described in detail later in this document (please see Mitigation and Monitoring and Reporting sections). Summary of Request Comments and Responses On June 15, 2023, NMFS received a request from Trident for an IHA to take marine mammals incidental to vibratory and impact pile driving to replace the Bunkhouse Dock at their facility in Kodiak, Alaska. Following NMFS’ review of the application, Trident submitted a revised version on September 1, 2023. The application was deemed adequate and complete on October 26, 2023. Trident’s request is for take of six species of marine mammals by Level B harassment only. Neither Trident nor NMFS expect A notice of NMFS’ proposal to issue an IHA to Trident was published in the Federal Register on December 26, 2023 (88 FR 88874). That notice described, in detail, Trident’s activity, the marine mammal species that may be affected by the activity, and the anticipated effects on marine mammals. In that notice, we requested public input on the request for authorization described therein, our analyses, the proposed authorization, and any other aspect of the notice of proposed IHA, and requested that interested persons submit relevant Background khammond on DSKJM1Z7X2PROD with NOTICES serious injury or mortality to result from this activity and, therefore, an IHA is appropriate. There are no changes from the proposed IHA to the final IHA. VerDate Sep<11>2014 19:36 Mar 11, 2024 Jkt 262001 PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 17821 information, suggestions, and comments. During the 30-day public comment period, NMFS did not receive any public comments. Description of Marine Mammals in the Area of Specified Activities Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history of the potentially affected species. NMFS fully considered all of this information, and we refer the reader to these descriptions, instead of reprinting the information. Additional information regarding population trends and threats may be found in NMFS’ Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/ national/marine-mammal-protection/ marine-mammal-stock-assessments) and more general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS’ website (https:// www.fisheries.noaa.gov/find-species). Table 1 lists all species or stocks for which take is expected and authorized for this activity and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS’ SARs). While no serious injury or mortality is anticipated or authorized, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species or stocks and other threats. Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS’ stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS’ Alaska SARs (Young et al., 2023), including the draft 2023 SARs. All values presented in table 1 are the most recent available at the time of publication and are available online at: https://www.fisheries.noaa.gov/ national/marine-mammal-protection/ marine-mammal-stock-assessments. E:\FR\FM\12MRN1.SGM 12MRN1 17822 Federal Register / Vol. 89, No. 49 / Tuesday, March 12, 2024 / Notices TABLE 1—MARINE MAMMAL SPECIES 1 LIKELY TO OCCUR NEAR THE PROJECT AREA THAT MAY BE TAKEN BY TRIDENT’S ACTIVITIES Common name Scientific name Stock I ESA/ MMPA status; strategic (Y/N) 2 I Stock abundance (CV, Nmin, most recent abundance survey) 3 Annual M/SI * PBR I I Order Artiodactyla—Cetacea—Mysticeti (baleen whales) Family Balaenopteridae (rorquals): Humpback Whale ............... Megaptera novaeangliae .......... Hawai1i 4 .................................... Mexico-North Pacific 4 ............... -, -, N T, D, Y I 11,278 (0.56, 7,265, 2020). 3,477 (0.101, 3,185, 2018). I 127 I 43 27.09 I 22 Odontoceti (toothed whales, dolphins, and porpoises) Family Delphinidae: Killer Whale ........................ Family Phocoenidae (porpoises): Dall’s Porpoise .................... Harbor Porpoise ................. Orcinus orca ............................. Phocoenoides dalli .................... Phocoena phocoena ................. Eastern North Pacific Alaska Resident 5. Eastern North Pacific Gulf of Alaska, Aleutian Islands and Bering Sea Transient 6. -, -, N 1,920 (N/A, 1,920, 2019) 19 1.3 -, -, N 587 (N/A, 587, 2012) ...... 5.9 0.8 Alaska 7 ..................................... Gulf of Alaska ........................... -, -, N -, -, Y UND (UND, UND, 2015) 31,046 (0.21, N/A, 1998) UND UND 37 72 Order Carnivora—Pinnipedia Family Otariidae (eared seals and sea lions): Steller Sea Lion .................. Eumetopias jubatus .................. Western 8 .................................. E, D, Y 49,837 (N/A, 49,837, 2022). 299 267 Family Phocidae (earless seals): Harbor Seal ........................ Phoca vitulina ........................... South Kodiak ............................ -, -, N 26,448 (N/A, 22,351, 2017). 939 127 khammond on DSKJM1Z7X2PROD with NOTICES 1 Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy’s Committee on Taxonomy (https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies). 2 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 3 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessmentreports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. * These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. 4 New SAR in 2022 following North Pacific humpback whale stock structure changes. 5 Abundance estimates are based upon data collected more than 8 years ago and, therefore, current estimates are considered unknown. 6N est is based upon counts of individuals identified from photo identification catalogs. 7 The best available abundance estimate is likely an underestimate for the entire stock because it is based upon a survey that covered only a small portion of the stock’s range. 8N est is best estimate of counts, which have not been corrected for animals at sea during abundance surveys. As indicated above, all six species (with eight managed stocks) in table 1 temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur. All species that could potentially occur in the project area are included in table 5 of the IHA application. While gray whales, North Pacific right whales, minke whales, fin whales, Cuvier’s beaked whales, sperm whales, Pacific whitesided dolphins, and northern fur seals in the area, the temporal and/or spatial occurrence of these species is such that take is not expected to occur, and they are not discussed further beyond the explanation provided here. These species are all considered to be rare (no sightings in recent years) within the project area. Take of these species has not been requested nor authorized and VerDate Sep<11>2014 19:36 Mar 11, 2024 Jkt 262001 these species are not considered further in this document. A detailed description of the species likely to be affected by Trident’s construction project, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the Federal Register notice for the proposed IHA (88 FR 88874, December 26, 2023); since that time, we are not aware of any changes in the status of these species and stocks; therefore, detailed descriptions are not provided here. Please refer to that Federal Register notice for these descriptions. Please also refer to the NMFS website (https:// www.fisheries.noaa.gov/find-species) for generalized species accounts. PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 Marine Mammal Hearing Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Not all marine mammal species have equal hearing capabilities (e.g., Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. (2007, 2019) recommended that marine mammals be divided into hearing groups based on directly measured (behavioral or auditory evoked potential techniques) or estimated hearing ranges (behavioral response data, anatomical modeling, etc.). Note that no direct E:\FR\FM\12MRN1.SGM 12MRN1 Federal Register / Vol. 89, No. 49 / Tuesday, March 12, 2024 / Notices measurements of hearing ability have been successfully completed for mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65-decibel (dB) threshold from the normalized composite audiograms, with the exception for lower limits for lowfrequency cetaceans where the lower 17823 bound was deemed to be biologically implausible and the lower bound from Southall et al. (2007) retained. Marine mammal hearing groups and their associated hearing ranges are provided in table 2. TABLE 2—MARINE MAMMAL HEARING GROUPS [NMFS, 2018] Hearing group Generalized hearing range * Low-frequency (LF) cetaceans (baleen whales) ......................................................................................................................... Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) .............................................. High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, Cephalorhynchid, Lagenorhynchus cruciger & L. australis). Phocid pinnipeds (PW) (underwater) (true seals) ....................................................................................................................... Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) .................................................................................................. 7 Hz to 35 kHz. 150 Hz to 160 kHz. 275 Hz to 160 kHz. 50 Hz to 86 kHz. 60 Hz to 39 kHz. * Represents the generalized hearing range for the entire group as a composite (i.e., all species within the group), where individual species’ hearing ranges are typically not as broad. Generalized hearing range chosen based on ∼65-dB threshold from normalized composite audiogram, with the exception for lower limits for LF cetaceans (Southall et al., 2007) and PW pinniped (approximation). The pinniped functional hearing group was modified from Southall et al. (2007) on the basis of data indicating that phocid species have consistently demonstrated an extended frequency range of hearing compared to otariids, especially in the higher frequency range (Hemila¨ et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 2013). For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. khammond on DSKJM1Z7X2PROD with NOTICES Potential Effects of Specified Activities on Marine Mammals and Their Habitat The effects of underwater noise from Trident’s pile driving activities have the potential to result in behavioral harassment of marine mammals in the vicinity of the project area. The notice of the proposed IHA (88 FR 88874, December 26, 2023) included a discussion of the effects of anthropogenic noise on marine mammals and the potential effects of underwater noise from Trident’s pile driving activities on marine mammals and their habitat. That information and analysis is incorporated by reference into this final IHA determination and is not repeated here; please refer to the notice of the proposed IHA (88 FR 88874, December 26, 2023). Estimated Take This section provides an estimate of the number of incidental takes authorized through the IHA, which will inform both NMFS’ consideration of ‘‘small numbers,’’ and the negligible impact determinations. Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the VerDate Sep<11>2014 19:36 Mar 11, 2024 Jkt 262001 MMPA defines ‘‘harassment’’ as any act of pursuit, torment, or annoyance, which: (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment). Authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to pile driving activities. Based on the nature of the activity, Level A harassment is neither anticipated nor authorized. As described previously, no serious injury or mortality is anticipated or authorized for this activity. Here we describe how the information provided above is synthesized to produce a quantitative estimate of the take that is reasonably likely to occur and is authorized. For acoustic impacts, generally speaking, we estimate take by considering: (1) acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) the number of days of activities. We note that while these factors can contribute to a basic calculation to provide an initial prediction of potential takes, additional information that can qualitatively inform take estimates is PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 also sometimes available (e.g., previous monitoring results or average group size). Below, we describe the factors considered here in more detail and present the authorized take numbers. Acoustic Thresholds NMFS recommends the use of acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur permanent threshold shift (PTS) of some degree (equated to Level A harassment). Level B Harassment—Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source or exposure context (e.g., frequency, predictability, duty cycle, duration of the exposure, signal-to-noise ratio, distance to the source), the environment (e.g., bathymetry, other noises in the area, predators in the area), and the receiving animals (hearing, motivation, experience, demography, life stage, depth) and can be difficult to predict (e.g., Southall et al., 2007, 2021; Ellison et al., 2012). Based on what the available science indicates and the practical need to use a threshold based on a metric that is both predictable and measurable for most activities, NMFS typically uses a generalized acoustic threshold based on received level to estimate the onset of behavioral harassment. NMFS generally predicts that marine mammals are likely to be behaviorally harassed in a manner considered to be Level B harassment when exposed to underwater anthropogenic noise above root-mean- E:\FR\FM\12MRN1.SGM 12MRN1 17824 Federal Register / Vol. 89, No. 49 / Tuesday, March 12, 2024 / Notices squared pressure received levels (RMS SPL) of 120 dB (referenced to 1 micropascal (re 1 mPa)) for continuous (e.g., vibratory pile driving, drilling) and above RMS SPL 160 dB re 1 mPa for nonexplosive impulsive (e.g., seismic airguns) or intermittent (e.g., scientific sonar) sources. Generally speaking, Level B harassment take estimates based on these behavioral harassment thresholds are expected to include any likely takes by TTS as, in most cases, the likelihood of TTS occurs at distances from the source less than those at which behavioral harassment is likely. TTS of a sufficient degree can manifest as behavioral harassment, as reduced hearing sensitivity and the potential reduced opportunities to detect important signals (conspecific communication, predators, prey) may result in changes in behavior patterns that would not otherwise occur. Trident’s planned activity includes the use of continuous (vibratory pile driving) sources, and therefore the RMS SPL threshold of 120 dB re 1 mPa is applicable. DTH drilling has both continuous and intermittent (impulsive) components as discussed in the Description of Sound Sources section above. When evaluating Level B harassment, NMFS recommends treating DTH as a continuous source and applying the RMS SPL thresholds of 120 dB re 1 mPa. Level A harassment—NMFS’ Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0; Technical Guidance, 2018) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or nonimpulsive). Trident’s planned activity includes the use of non-impulsive (vibratory pile driving) sources. As described above, DTH includes both impulsive and non-impulsive characteristics. When evaluating Level A harassment, NMFS recommends treating DTH as an impulsive source. These thresholds are provided in the table below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS’ 2018 Technical Guidance, which may be accessed at: https://www.fisheries.noaa.gov/ national/marine-mammal-protection/ marine-mammal-acoustic-technicalguidance. TABLE 3—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT PTS onset thresholds * (received level) Hearing group Impulsive Low-Frequency (LF) Cetaceans .................................... Mid-Frequency (MF) Cetaceans .................................... High-Frequency (HF) Cetaceans .................................. Phocid Pinnipeds (PW) (Underwater) ........................... Otariid Pinnipeds (OW) (Underwater) ........................... Cell Cell Cell Cell Cell 1: 3: 5: 7: 9: Lp,0-pk,flat: Lp,0-pk,flat: Lp,0-pk,flat: Lp,0-pk.flat: Lp,0-pk,flat: 219 230 202 218 232 dB; dB; dB; dB; dB; Non-impulsive LE,p,LF,24h: 183 dB ............... LE,p,MF,24h: 185 dB ............... LE,p,HF,24h: 155 dB ............... LE,p,PW,24h: 185 dB .............. LE,p,OW,24h: 203 dB .............. Cell Cell Cell Cell Cell 2: LE,p,LF,24h: 199 dB. 4: LE,p,MF,24h: 198 dB. 6: LE,p,HF,24h: 173 dB. 8: LE,p,PW,24h: 201 dB. 10: LE,p,OW,24h: 219 dB. * Dual metric thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds are recommended for consideration. Note: Peak sound pressure level (Lp,0-pk) has a reference value of 1 μPa, and weighted cumulative sound exposure level (LE,p) has a reference value of 1 μPa2s. In this table, thresholds are abbreviated to be more reflective of International Organization for Standardization standards (ISO, 2017). The subscript ‘‘flat’’ is being included to indicate peak sound pressure are flat weighted or unweighted within the generalized hearing range of marine mammals (i.e., 7 Hz to 160 kHz). The subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The weighted cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these thresholds will be exceeded. khammond on DSKJM1Z7X2PROD with NOTICES Ensonified Area Here, we describe operational and environmental parameters of the activity that are used in estimating the area ensonified above the acoustic thresholds, including source levels and transmission loss coefficient. The sound field in the project area is the existing background noise plus additional construction noise from the planned project. Marine mammals are expected to be affected via sound generated by the primary components of the project (i.e., vibratory pile driving and removal, DTH drilling). The maximum (underwater) area ensonified above the thresholds for behavioral harassment referenced above is 125 km2 (48.26 mi2), that would be truncated by land masses that would obstruct underwater sound transmission and would extend into Near Island Channel and St. Paul Harbor (see figure 5 in VerDate Sep<11>2014 19:36 Mar 11, 2024 Jkt 262001 Trident’s application). Additionally, vessel traffic and other commercial and industrial activities in the project area may contribute to elevated background noise levels which may mask sounds produced by the project. Transmission loss (TL) is the decrease in acoustic intensity as an acoustic pressure wave propagates out from a source. TL parameters vary with frequency, temperature, sea conditions, current, source and receiver depth, water depth, water chemistry, and bottom composition and topography. The general formula for underwater TL is: TL = B × Log10 (R1/R2), Where: TL = transmission loss in dB, B = transmission loss coefficient, R1 = the distance of the modeled SPL from the driven pile, and R2 = the distance from the driven pile of the PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 initial measurement. This formula neglects loss due to scattering and absorption, which is assumed to be zero here. The degree to which underwater sound propagates away from a sound source is dependent on a variety of factors, most notably the water bathymetry and presence or absence of reflective or absorptive conditions including in-water structures and sediments. Spherical spreading occurs in a perfectly unobstructed (freefield) environment not limited by depth or water surface, resulting in a 6-dB reduction in sound level for each doubling of distance from the source (20×log[range]). Cylindrical spreading occurs in an environment in which sound propagation is bounded by the water surface and sea bottom, resulting in a reduction of 3 dB in sound level for each doubling of distance from the source (10×log[range]). A practical E:\FR\FM\12MRN1.SGM 12MRN1 17825 Federal Register / Vol. 89, No. 49 / Tuesday, March 12, 2024 / Notices spreading value of 15 is often used under conditions, such as the project site, where water increases with depth as the receiver moves away from the shoreline, resulting in an expected propagation environment that would lie between spherical and cylindrical spreading loss conditions. Practical spreading loss is assumed here. acoustic monitoring data from other locations to develop proxy source levels for the various pile types, sizes and methods. The project includes vibratory and DTH pile installation of steel pipe piles and vibratory removal of steel pipe piles, steel H-piles, and timber piles. Source levels for each pile size and driving method are presented in table 4. The intensity of pile driving sounds is greatly influenced by factors such as the type of piles, hammers, and the physical environment in which the activity takes place. In order to calculate the distances to the Level A harassment and the Level B harassment sound thresholds for the methods and piles being used in this project, the applicant and NMFS used TABLE 4—PROXY SOUND SOURCE LEVELS FOR PILE SIZES AND DRIVING METHODS Pile type RMS SPL (re 1 μPa) Installation or removal SEL (re 1 μPa2-sec) Source Vibratory Pile Driving 14-in 14-in 16-in 16-in 24-in timber pile ............................ H-pile .................................... steel pile ............................... steel pile ............................... steel pile ............................... Removal ....................................... Removal ....................................... Installation .................................... Removal ....................................... Installation and Removal ............. 162 150 161 NA Caltrans, 2020. Caltrans, 2020. NAVFAC, 2015. NAVFAC, 2015. NAVFAC, 2015. 162 141 Heyvaert & Reyff, 2021; Guan & Miner, 2020. Heyvaert & Reyff, 2021. DTH Drilling 1 16-in steel pile ............................... Installation .................................... 24-in steel pile ............................... Installation .................................... 1 Sound 154 source levels for DTH were adjusted by ¥5 dB to reflect the use of the bubble curtain. The ensonified area associated with Level A harassment is more technically challenging to predict due to the need to account for a duration component. Therefore, NMFS developed an optional User Spreadsheet tool to accompany the Technical Guidance that can be used to relatively simply predict an isopleth distance for use in conjunction with marine mammal density or occurrence to help predict potential takes. We note that because of some of the assumptions included in the methods underlying this optional tool, we anticipate that the resulting isopleth estimates are typically going to be overestimates of some degree, which may result in an overestimate of potential take by Level A harassment. However, this optional tool offers the best way to estimate isopleth distances when more sophisticated modeling methods are not available or practical. For stationary sources such as pile driving, the optional User Spreadsheet tool predicts the distance at which, if a marine mammal remained at that distance for the duration of the activity, it would be expected to incur PTS. Inputs used in the optional User Spreadsheet tool, and the resulting estimated isopleths, are reported below. TABLE 5—NMFS USER SPREADSHEET INPUTS Pile size and type 14-in timber pile vibratory removal ........ 14-in steel H-pile vibratory removal ....... 16-in steel pipe pile vibratory removal ... 16-in steel pipe pile vibratory installation 24-in steel pipe pile vibratory installation (temporary). 24-in steel pipe pile vibratory removal (temporary). 24-in steel pipe pile vibratory installation 16-in steel pipe pile DTH installation ..... 24-in steel pipe pile DTH installation (temporary). 24-in steel pipe pile DTH installation ..... khammond on DSKJM1Z7X2PROD with NOTICES Weighting factor adjustment (kHz) Spreadsheet tab used A.1 A.1 A.1 A.1 A.1 Vibratory Vibratory Vibratory Vibratory Vibratory pile pile pile pile pile driving driving driving driving driving Transmission loss coefficient Number of piles per day Activity duration (minutes) ....................... ....................... ....................... ....................... ....................... 2.5 2.5 2.5 2.5 2.5 15 15 15 15 15 25 20 20 5 6 2 2 2 2 2 A.1 Vibratory pile driving ....................... 2.5 15 8 2 A.1 Vibratory pile driving ....................... E.2 DTH pile driving .............................. E.2 DTH pile driving .............................. 2.5 2 2 15 15 15 4 6 6 2 45 30 E.2 DTH pile driving .............................. 2 15 4 60 TABLE 6—CALCULATED LEVEL A AND LEVEL B HARASSMENT ISOPLETHS Level A harassment zone (m) Level B harassment zone (m) Activity LF-cetaceans 14-in timber pile vibratory removal ........................................... 14-in steel H-pile vibratory removal .......................................... 16-in steel pipe pile vibratory removal ...................................... VerDate Sep<11>2014 19:36 Mar 11, 2024 Jkt 262001 PO 00000 Frm 00017 MF-cetaceans HF-cetaceans 0.6 0.1 0.5 10.4 1.4 7.7 7.1 1 5.2 Fmt 4703 Sfmt 4703 E:\FR\FM\12MRN1.SGM Otariids Phocids 4.3 0.6 3.2 12MRN1 0.3 0 0.2 6,310 1,000 5,415 17826 Federal Register / Vol. 89, No. 49 / Tuesday, March 12, 2024 / Notices TABLE 6—CALCULATED LEVEL A AND LEVEL B HARASSMENT ISOPLETHS—Continued Level A harassment zone (m) Activity LF-cetaceans 16-in 24-in 24-in 24-in 16-in 24-in 24-in steel steel steel steel steel steel steel pipe pipe pipe pipe pipe pipe pipe pile pile pile pile pile pile pile vibratory installation .................................. vibratory installation (temporary) .............. vibratory removal (temporary) .................. vibratory installation .................................. DTH installation ........................................ DTH installation (temporary) .................... DTH installation ........................................ Marine Mammal Occurrence and Take Estimation In this section we provide information about the occurrence of marine mammals, including density or other relevant information which will inform the take calculations. When available, peer-reviewed scientific publications were used to estimate marine mammal abundance in the project area. Data from monitoring reports from projects on the Kodiak Ferry Terminal were used as well as reports from other projects in Kodiak, Alaska. Here we describe how the information provided above is synthesized to produce a quantitative estimate of the take that is reasonably likely to occur and is authorized. Tables for each species are presented to show the calculation of take during the project. Both density and occurrence data was considered in incidental take estimations. Density data were used when there was no occurrence data available, or when occurrence and density data were similar. The take calculations for this project are: Incidental take estimate = group size × days of pile driving activity, Or Incidental take estimate = (Activity Level B harassment area [km2] × estimated density [individuals/ km2]) × days of pile driving activity khammond on DSKJM1Z7X2PROD with NOTICES Humpback Whale Humpback whales are present in Kodiak year-round with peaks in the spring and fall. They are considered common in the project area, meaning there are multiple sightings every month, so they could occur daily in the project’s action. In the project area humpback whales are expected to occur at a density of 0.093 individuals per square kilometer area (Halpin et al., 2009). Therefore, using the equation given above, the total number of Level B harassment takes for humpback whales would be 14. In the action area it is estimated that the majority of whales (89 percent) will be from the VerDate Sep<11>2014 19:36 Mar 11, 2024 Jkt 262001 MF-cetaceans HF-cetaceans 0.2 0.2 0.3 0.2 1.7 9.4 11.4 3.1 3.5 4.2 2.6 56 314.5 381 2.1 2.3 2.8 1.8 47 264.1 319.9 Hawai’i distinct population segment (DPS), 11 percent will be from the Mexico DPS, and 1 percent will be from the endangered western North Pacific DPS (Wade, 2021; Muto et al., 2022). Therefore 13 takes are assumed to be from the Hawai’i DPS and 1 take from the Mexico DPS. The largest Level A harassment zone for humpback whales extends 319.9 m from the noise source (table 6). All construction work would be shut down prior to a humpback whale entering the Level A harassment zone specific to the in-water activity underway at the time. In consideration of the infrequent occurrence of humpback whales in the project area and shutdown requirements, no take by Level A harassment is anticipated or authorized for humpback whales. Killer Whale Killer whales are present in Kodiak year-round and are considered common in the project area, meaning there are multiple sightings every month, so they could occur daily in the project’s action. A single group of up to six killer whales are expected to occur in the project area daily (Halpin et al., 2009). Therefore, using the equation given above, the total number of Level B harassment takes for killer whales would be 330. In the action area it is estimated that the majority of killer whales (80 percent) will be from the Alaska resident stock and 20 percent will be from the Gulf of Alaska/Aleutian Islands/Bering Sea transient stock (Muto et al., 2022). Therefore 264 takes are assumed to be from the Alaska resident stock and 66 takes from the Gulf of Alaska/Aleutian Islands/Bering Sea transient stock. The largest Level A harassment zone for killer whales extends 11.4 m from the noise source (table 6). All construction work would be shut down prior to a killer whale entering the Level A harassment zone specific to the inwater activity underway at the time. In consideration of the small size of the Level A harassment zone and shutdown requirements, no take by Level A PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 Otariids 1.3 1.4 1.7 1.1 1.8 10.3 12.5 Phocids 0.1 0.1 0.1 0.1 25.2 141.3 171.2 Level B harassment zone (m) ........................ ........................ ........................ ........................ 6,310 ........................ ........................ harassment is anticipated or authorized for killer whale. Harbor Porpoise Harbor porpoises are present in Kodiak year-round and are occur frequently in the project area, meaning there are multiple sightings every year, so they could occur monthly in the project’s action. In the project area harbor porpoises are expected to occur at a density of 0.4547 individuals per square kilometer area (Marine Geospatial Ecology Lab, 2021). Therefore, using the equation given above, the total number of Level B harassment takes for harbor porpoises would be 65. The largest Level A harassment zone for harbor porpoise extends 381 m from the noise source (table 6). All construction work would be shut down prior to a harbor porpoise entering the Level A harassment zone specific to the in-water activity underway at the time. In consideration of the relatively low anticipated exposure in the project area and the anticipated effectiveness of the shutdown requirements, no take by Level A harassment is anticipated or authorized for harbor porpoise. Dall’s Porpoise Dall’s porpoises are present in Kodiak year-round and are occur frequently in the project area, meaning there are multiple sightings every year, so they could occur monthly in the project’s action. In the project area Dall’s porpoises are expected to occur at a density of 0.218 individuals per square kilometer (Marine Geospatial Ecology Lab, 2021). Therefore, using the equation given above, the total number of Level B harassment takes for Dall’s porpoise would be 31. The largest Level A harassment zone for Dall’s porpoise extends 381 m from the noise source (table 6). All construction work would be shut down prior to a Dall’s porpoise entering the Level A harassment zone specific to the in-water activity underway at the time. In consideration of the relatively low anticipated exposure in the project area E:\FR\FM\12MRN1.SGM 12MRN1 17827 Federal Register / Vol. 89, No. 49 / Tuesday, March 12, 2024 / Notices and the anticipated effectiveness of the shutdown requirements, no take by Level A harassment is anticipated or authorized for Dall’s porpoise. Harbor Seal Harbor seals are present in Kodiak year-round and are considered common in the project area, meaning there are multiple sightings every month, so they could occur daily in the project’s action. In the project area Dall’s porpoises are expected to occur at a density of 0.1689 individuals per square kilometer (Marine Geospatial Ecology Lab, 2021). Therefore, using the equation given above, the total number of Level B harassment takes for harbor seals would be 24. The largest Level A harassment zone for harbor seals extends 171.2 m from the noise source (table 6). All construction work would be shut down prior to a harbor seal entering the Level A harassment zone specific to the inwater activity underway at the time. In consideration of the relatively low anticipated exposure in the project area and the anticipated effectiveness of the shutdown requirements, no take by Level A harassment is anticipated or authorized for harbor seals. daily during construction. Up to 40 Steller sea lions are expected to occur in the project area daily (Marine Geospatial Ecology Lab, 2021). Therefore, using the equation given above, the total number of Level B harassment takes for Steller sea lions would be 2,200. The largest Level A harassment zone for harbor seals extends 12.5 m from the noise source (table 6). All construction work would be shut down prior to a Steller sea lion entering the Level A harassment zone specific to the in-water activity underway at the time. In consideration of the small Level A harassment isopleth and shutdown requirements, no take by Level A harassment is anticipated or authorized for Steller sea lions. Steller Sea Lion Steller sea lions are present in Kodiak year-round and are considered common in the project area, meaning there are multiple sightings every month, so they could occur daily in the project’s action. During construction at the Kodiak Ferry Terminal (82 FR 10894, February 26, 2017) Steller sea lions were encountered TABLE 7—ESTIMATED TAKE BY LEVEL A AND LEVEL B HARASSMENT, BY SPECIES AND STOCK Stock Humpback whale ................ Hawai1i ................................ Mexico-North Pacific .......... Alaska Resident ................. Gulf of Alaska/Aleutian Islands/Bering Sea Transient. Gulf of Alaska ..................... Alaska ................................. Western U.S ....................... South Kodiak Island ........... Killer Whale ......................... Harbor porpoise .................. Dall’s porpoise .................... Steller sea lion .................... Harbor seal ......................... a Stock khammond on DSKJM1Z7X2PROD with NOTICES Stock abundance a Common name Level A harassment Level B harassment Total take Take as percentage of stock 11,278 3,477 1,920 587 0 0 0 0 13 1 264 66 13 1 264 66 0.1 0.03 13.8 11.2 31,946 13,110 49,837 26,448 0 0 0 0 65 31 2,200 24 65 31 2,200 24 0.08 0.24 4.4 0.09 abundance is Nbest according to NMFS 2022 and draft 2023 Stock Assessment Reports. Mitigation In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses. NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, and their habitat (50 CFR 216.104(a)(11)). In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, NMFS considers two primary factors: VerDate Sep<11>2014 19:36 Mar 11, 2024 Jkt 262001 (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat, as well as subsistence uses. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (probability implemented as planned), and; (2) The practicability of the measures for applicant implementation, which may consider such things as cost, and impact on operations. In addition to the measures described later in this section, Trident would employ the following standard mitigation measures: • At the start of each day, the contractor(s) would hold a briefing with the Lead Protected Species Observer PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 (PSO) to outline the activities planned for that day. • If poor weather conditions restrict the PSO’s ability to make observations within the Level A harassment zone of pile driving (e.g., if there is excessive wind or fog), pile installation and removal would be halted. The following measures would apply to Trident’s mitigation requirements: Shutdown and Monitoring Zones Trident must establish shutdown zones and Level B monitoring zones for all pile driving activities. The purpose of a shutdown zone is generally to define an area within which shutdown of the activity would occur upon sighting of a marine animal (or in anticipation of an animal entering the defined area). Shutdown zones are based on the largest Level A harassment zone for each pile size/type and driving method, and behavioral monitoring zones are meant to encompass Level B harassment zones for each pile size/type and driving method, as shown in table 8. A minimum shutdown zone of 10 m would be required for all in-water E:\FR\FM\12MRN1.SGM 12MRN1 17828 Federal Register / Vol. 89, No. 49 / Tuesday, March 12, 2024 / Notices construction activities to avoid physical interaction with marine mammals. Marine mammal monitoring will be conducted during all pile driving activities to ensure that marine mammals do not enter Level A shutdown zones. Shutdown zones for each activity type are shown in table 8. Prior to pile driving, shutdown zones and monitoring zones will be established based on zones represented in table 8. Observers will survey the shutdown zones for at least 30 minutes before pile driving activities start. If marine mammals are found within the shutdown zone, pile driving will be delayed until the animal has moved out of the shutdown zone, either verified by an observer or by waiting until 15 minutes has elapsed without a sighting. If a marine mammal approaches or enters the shutdown zone during pile driving, the activity will be halted. Pile driving may resume after the animal has moved out of and is moving away from the shutdown zone or after at least 15 minutes has passed since the last observation of the animal. All marine mammals would be monitored in the Level B harassment zones and throughout the area as far as visual monitoring can take place. If a marine mammal enters the Level B harassment zone, in-water activities would continue and PSOs would document the animal’s presence within the estimated harassment zone. If a species for which authorization has not been granted, or a species which has been granted but the authorized takes are met, is observed approaching or within the Level B harassment zone, pile driving activities will be shut down immediately. Activities will not resume until the animal has been confirmed to have left the area or 15 minutes has elapsed with no sighting of the animal. TABLE 8—SHUTDOWN AND LEVEL B HARASSMENT ZONES BY ACTIVITY Minimum shutdown zone Pile size, type, and method Mid-frequency 10 10 10 10 10 10 10 10 10 10 10 15 10 10 10 10 10 10 10 10 10 10 10 10 10 10 6,310 1,000 5,415 5,415 10 10 10 10 10 5,415 10 10 50 10 10 10 10 10 60 10 10 30 10 10 10 5,415 5,415 6,310 265 320 10 15 315 385 145 175 15 15 6,310 6,310 khammond on DSKJM1Z7X2PROD with NOTICES Protected Species Observers The placement of PSOs during all pile driving activities (described in the Monitoring and Reporting section) would ensure that the entire shutdown zone is visible. Should environmental conditions deteriorate such that the entire shutdown zone would not be visible (e.g., fog, heavy rain), pile driving would be delayed until the PSO is confident marine mammals within the shutdown zone could be detected. PSOs would monitor the full shutdown zones and as much of the Level B harassment zones as possible. Monitoring zones provide utility for observing by establishing monitoring protocols for areas adjacent to the shutdown zones. Monitoring enables observers to be aware of and communicate the presence of marine mammals in the project areas outside the shutdown zones and thus prepare for a potential cessation of activity should the animal enter the shutdown zone. Monitoring must take place from 30 minutes prior to initiation of pile VerDate Sep<11>2014 19:36 Mar 11, 2024 Jkt 262001 Phocid Level B harassment zone Low-frequency Barge movements, pile positioning .......... 14-in timber pile vibratory removal .......... 14-in steel H-pile vibratory removal ......... 16-in steel pipe pile vibratory removal ..... 16-in steel pipe pile vibratory installation 24-in steel pipe pile vibratory installation (temporary) ........................................... 24-in steel pipe pile vibratory removal (temporary) ........................................... 24-in steel pipe pile vibratory installation 16-in steel pipe pile DTH installation ....... 24-in steel pipe pile DTH installation (temporary) ........................................... 24-in steel pipe pile DTH installation ....... Pre- and Post-Activity Monitoring Highfrequency driving activities (i.e., pre-clearance monitoring) through 30 minutes postcompletion of pile driving. Prior to the start of daily in-water construction activity, or whenever a break in pile driving of 30 minutes or longer occurs, PSOs would observe the shutdown and monitoring zones for a period of 30 minutes. The shutdown zone would be considered cleared when a marine mammal has not been observed within the zone for a 30-minute period. If a marine mammal is observed within the shutdown zones, pile driving activity would be delayed or halted. If work ceases for more than 30 minutes, the pre-activity monitoring of the shutdown zones would commence. A determination that the shutdown zone is clear must be made during a period of good visibility (i.e., the entire shutdown zone and surrounding waters must be visible to the naked eye). Bubble Curtain A bubble curtain must be employed during all impact DTH activities to interrupt the acoustic pressure and reduce impact on marine mammals. The bubble curtain must distribute air bubbles around 100 percent of the piling PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 Otariid circumference for the full depth of the water column. The lowest bubble ring must be in contact with the mudline for the full circumference of the ring. The weights attached to the bottom ring must ensure 100 percent substrate contact. No parts of the ring or other objects may prevent full substrate contact. Air flow to the bubblers must be balanced around the circumference of the pile. Based on our evaluation of the applicant’s planned measures, NMFS has determined that the mitigation measures provide the means of effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Monitoring and Reporting In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for authorizations must include the suggested means of accomplishing E:\FR\FM\12MRN1.SGM 12MRN1 Federal Register / Vol. 89, No. 49 / Tuesday, March 12, 2024 / Notices khammond on DSKJM1Z7X2PROD with NOTICES the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present while conducting the activities. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring. Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following: • Occurrence of marine mammal species or stocks in the area in which take is anticipated (e.g., presence, abundance, distribution, density); • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the activity; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas); • Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors; • How anticipated responses to stressors impact either: (1) long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks; • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat); and, • Mitigation and monitoring effectiveness. Visual Monitoring Monitoring shall be conducted by NMFS-approved observers in accordance with the monitoring plan and section 5 of the IHA. Trained observers shall be placed from the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator. Observer training must be provided prior to project start, and shall include instruction on species identification (sufficient to distinguish the species in the project area), description and categorization of observed behaviors and interpretation of behaviors that may VerDate Sep<11>2014 19:36 Mar 11, 2024 Jkt 262001 be construed as being reactions to the specified activity, proper completion of data forms, and other basic components of biological monitoring, including tracking of observed animals or groups of animals such that repeat sound exposures may be attributed to individuals (to the extent possible). Monitoring would be conducted 30 minutes before, during, and 30 minutes after pile driving/removal activities. In addition, observers shall record all incidents of marine mammal occurrence, regardless of distance from activity, and shall document any behavioral reactions in concert with distance from piles being driven or removed. Pile driving/removal activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than 30 minutes. Between one and five PSOs will be on duty depending on the size of the monitoring zone. Locations from which PSOs would be able to monitor for marine mammals are readily available from publicly accessible shoreside areas at the Near Island Channel and surrounding waters. Monitoring locations would be selected by the Contractor during pre-construction. PSOs would monitor for marine mammals entering the Level B harassment zones; the position(s) may vary based on construction activity and location of piles or equipment. PSOs would scan the waters using binoculars, and/or spotting scopes, and would use a handheld range-finder device to verify the distance to each sighting from the project site. All PSOs would be trained in marine mammal identification and behaviors and are required to have no other project-related tasks while conducting monitoring. In addition, monitoring would be conducted by qualified observers, who would be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown/delay procedures when applicable by calling for the shutdown to the hammer operator via a radio. Trident would adhere to the following observer qualifications: (i) Independent observers (i.e., not construction personnel) are required; (ii) One PSO would be designated as the lead PSO or monitoring coordinator and that observer must have prior experience working as an observer; (iii) Other observers may substitute education (degree in biological science or related field) or training for experience; and (iv) Trident must submit observer Curricula Vitae for approval by NMFS. PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 17829 Additional standard observer qualifications include: • Ability to conduct field observations and collect data according to assigned protocols; • Experience or training in the field identification of marine mammals, including the identification of behaviors; • Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations; • Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates and times when in-water construction activities were suspended to avoid potential incidental injury from construction sound of marine mammals observed within a defined shutdown zone; and marine mammal behavior; and • Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary. Data Collection PSOs would use approved data forms to record the following information: • Dates and times (beginning and end) of all marine mammal monitoring. • PSO locations during marine mammal monitoring. Construction activities occurring during each daily observation period, including how many and what type of piles were driven or removed and by what method (i.e., vibratory or DTH). • Weather parameters and water conditions. • The number of marine mammals observed, by species, relative to the pile location and if pile driving or removal was occurring at time of sighting. • Distance and bearings of each marine mammal observed to the pile being driven or removed. • Description of marine mammal behavior patterns, including direction of travel. • Age and sex class, if possible, of all marine mammals observed. • Detailed information about implementation of any mitigation triggered (such as shutdowns and delays), a description of specific actions that ensued, and resulting behavior of the animal if any. Reporting A draft marine mammal monitoring report would be submitted to NMFS within 90 days after the completion of E:\FR\FM\12MRN1.SGM 12MRN1 khammond on DSKJM1Z7X2PROD with NOTICES 17830 Federal Register / Vol. 89, No. 49 / Tuesday, March 12, 2024 / Notices pile driving and removal activities. It would include an overall description of work completed, a narrative regarding marine mammal sightings, and associated PSO data sheets. Specifically, the report must include: • Dates and times (begin and end) of all marine mammal monitoring. • Construction activities occurring during each daily observation period, including the number and type of piles driven or removed and by what method (i.e., vibratory driving) and the total equipment duration for cutting for each pile. • PSO locations during marine mammal monitoring. • Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance; • Upon observation of a marine mammal, the following information: name of PSO who sighted the animal(s) and PSO location and activity at time of sighting; time of sighting; identification of the animal(s) (e.g., genus/species, lowest possible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species; distance and bearing of each marine mammal observed relative to the pile being driven for each sighting (if pile driving was occurring at time of sighting); estimated number of animals (min/max/best estimate); estimated number of animals by cohort (adults, juveniles, neonates, group composition, etc.); animal’s closest point of approach and estimated time spent within the harassment zone; description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses thought to have resulted from the activity (e.g., no response or changes in behavioral state such as ceasing feeding, changing direction, flushing, or breaching); • Number of marine mammals detected within the harassment zones, by species. • Detailed information about any implementation of any mitigation triggered (e.g., shutdowns and delays), a description of specific actions that ensued, and resulting changes in behavior of the animal(s), if any. If no comments are received from NMFS within 30 days, the draft final report would constitute the final report. If comments are received, a final report addressing NMFS comments must be VerDate Sep<11>2014 19:36 Mar 11, 2024 Jkt 262001 submitted within 30 days after receipt of comments. Reporting Injured or Dead Marine Mammals In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (if issued), such as an injury, serious injury or mortality, Trident would immediately cease the specified activities and report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the Alaska Regional Stranding Coordinator. The report would include the following information: • Description of the incident; • Environmental conditions (e.g., Beaufort sea state, visibility); • Description of all marine mammal observations in the 24 hours preceding the incident; • Species identification or description of the animal(s) involved; • Fate of the animal(s); and • Photographs or video footage of the animal(s) (if equipment is available). Activities would not resume until NMFS is able to review the circumstances of the prohibited take. NMFS would work with Trident to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Trident would not be able to resume their activities until notified by NMFS via letter, email, or telephone. In the event that Trident discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition as described in the next paragraph), Trident would immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the NMFS Alaska Stranding Hotline and/or by email to the Alaska Regional Stranding Coordinator. The report would include the same information identified in the paragraph above. Activities would be able to continue while NMFS reviews the circumstances of the incident. NMFS would work with Trident to determine whether modifications in the activities are appropriate. In the event that Trident discovers an injured or dead marine mammal and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 Trident would report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the NMFS Alaska Stranding Hotline and/or by email to the Alaska Regional Stranding Coordinator, within 24 hours of the discovery. Trident would provide photographs, video footage (if available), or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. Negligible Impact Analysis and Determination NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., populationlevel effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be ‘‘taken’’ through harassment, NMFS considers other factors, such as the likely nature of any impacts or responses (e.g., intensity, duration), the context of any impacts or responses (e.g., critical reproductive time or location, foraging impacts affecting energetics), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS’ implementing regulations (54 FR 40338, September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels). To avoid repetition, the discussion of our analysis applies to all the species listed in table 1, given that the anticipated effects of this activity on these different marine mammal stocks are expected to be similar. There is little information about the nature or severity of the impacts, or the size, status, or structure of any of these species or stocks that would lead to a different analysis for this activity. Pile driving and removal activities associated with the project as outlined E:\FR\FM\12MRN1.SGM 12MRN1 khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 89, No. 49 / Tuesday, March 12, 2024 / Notices previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level B harassment from underwater sounds generated from pile driving and removal. Level A harassment is extremely unlikely given the small size of the Level A harassment isopleths and the required mitigation measures designed to minimize the possibility of injury to marine mammals (see Mitigation section). No mortality is anticipated given the nature of the activity. Pile installation and removal activities are likely to result in the Level B harassment of marine mammals that move into the ensonified zone, primarily in the form of disturbance or displacement of marine mammals. Take would occur within a limited, confined area of each stock’s range. Level B harassment would be reduced to the level of least practicable adverse impact through use of mitigation measures described herein. Further, the amount of take authorized is small when compared to stock abundance. Based on reports in the literature as well as monitoring from other similar activities, behavioral disturbance (i.e., level B harassment) would likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (e.g., Thorson and Reyff, 2006; HDR, Inc., 2012; Lerma, 2014; ABR, 2016). Most likely for pile driving, individuals would simply move away from the sound source and be temporarily displaced from the areas of pile driving, although even this reaction has been observed primarily only in association with impact pile driving. The pile driving activities analyzed here are similar to, or less impactful than, numerous other construction activities conducted in Alaska, which have taken place with no observed severe responses of any individuals or known long-term adverse consequences. Level B harassment would be reduced to the level of least practicable adverse impact through use of mitigation measures described herein and, if sound produced by project activities is sufficiently disturbing, animals are likely to simply avoid the area while the activity is occurring. While vibratory driving associated with the project may produce sound at distances of many kilometers from the project site, thus overlapping with some likely less-disturbed habitat, the project site itself is located in a busy harbor and the majority of sound fields produced by the specified activities are close to the harbor. Animals disturbed by project sound would be expected to VerDate Sep<11>2014 19:36 Mar 11, 2024 Jkt 262001 avoid the area and use nearby higherquality habitats. The project also is not expected to have significant adverse effects on affected marine mammals’ habitat. The project activities would not modify existing marine mammal habitat for a significant amount of time. The activities may cause some fish or invertebrates to leave the area of disturbance, thus temporarily impacting marine mammals’ foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities, the relatively small area of the habitat that may be affected, and the availability of nearby habitat of similar or higher value, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences. The waters around Kodiak Island are part of the Alaska humpback whale feeding Biologically Important Area (BIA; Ferguson et al., 2015). Humpback whales are present around Kodiak, although the majority of sightings have occurred outside of Near Island Channel. The area of the BIA that may be affected by the planned project is small relative to the overall area of the BIA. The humpback whale feeding BIA is active between May and November while the planned project is scheduled to occur between March and June, resulting in only 2 months of overlap. Additionally, pile driving associated with the project is expected to take only 55 days, further reducing the temporal overlap with the BIA. Therefore, the planned project is not expected to have significant adverse effects on the foraging of Alaska humpback whale. No areas of specific biological importance (e.g., ESA critical habitat, other BIAs, or other areas) for any other species are known to co-occur with the project area. In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect any of the species or stocks through effects on annual rates of recruitment or survival: • No serious injury, mortality, or Level A harassment is anticipated or authorized; • The anticipated incidents of Level B harassment would consist of, at worst, temporary modifications in behavior that would not result in fitness impacts to individuals; • The ensonified areas from the project are very small relative to the overall habitat ranges of all species and stocks; • The lack of anticipated significant or long-term negative effects to marine PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 17831 mammal habitat or any other areas of known biological importance; and • The mitigation measures are expected to reduce the effects of the specified activity to the level of least practicable adverse impact. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from the planned activity will have a negligible impact on all affected marine mammal species or stocks. Small Numbers As noted previously, only take of small numbers of marine mammals may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted number of individuals to be taken is fewer than one-third of the species or stock abundance, the take is considered to be of small numbers. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities. Table 7 demonstrates the number of animals that could be exposed to received noise levels that could cause Level B harassment for the work in Kodiak, Alaska. Our analysis shows that less than 14 percent of each affected stock could be taken by harassment. The numbers of animals authorized to be taken for these stocks would be considered small relative to the relevant stock’s abundances, even if each estimated taking occurred to a new individual—an extremely unlikely scenario. Based on the analysis contained herein of the planned activity (including the mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals would be taken relative to the population size of the affected species or stocks. E:\FR\FM\12MRN1.SGM 12MRN1 17832 Federal Register / Vol. 89, No. 49 / Tuesday, March 12, 2024 / Notices Unmitigable Adverse Impact Analysis and Determination In order to issue an IHA, NMFS must find that the specified activity will not have an ‘‘unmitigable adverse impact’’ on the subsistence uses of the affected marine mammal species or stocks by Alaskan Natives. NMFS has defined ‘‘unmitigable adverse impact’’ in 50 CFR 216.103 as an impact resulting from the specified activity: (1) that is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by (i) causing the marine mammals to abandon or avoid hunting areas, (ii) directly displacing subsistence users, or (iii) placing physical barriers between the marine mammals and the subsistence hunters; and (2) that cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met. In the Kodiak area sea lions and harbor seals are available for subsistence harvest under the MMPA. Limited subsistence harvests of marine mammals outside of Near Island Channel has occurred in the past, with the most recent recorded/documented harvests of marine mammals in Kodiak in 2011. The planned activity will take place in Near Island Channel, and no activities overlap with current subsistence hunting areas; therefore, there are no relevant subsistence uses of marine mammals adversely impacted by this action. The planned project is not likely to adversely impact the availability of any marine mammal species or stocks that are commonly used for subsistence purposes or to impact subsistence harvest of marine mammals in the region. Based on the description of the specified activity, the measures described to minimize adverse effects on the availability of marine mammals for subsistence purposes, and the mitigation and monitoring measures, NMFS has determined that there will not be an unmitigable adverse impact on subsistence uses from Trident’s planned activities. khammond on DSKJM1Z7X2PROD with NOTICES Endangered Species Act There are two marine mammal species (Mexico DPS humpback whale and western DPS Steller sea lion) with confirmed occurrence in the project area that are listed as endangered under the ESA. The NMFS Alaska Regional Office issued a Biological Opinion under section 7 of the ESA, on the issuance of an IHA to Trident under section 101(a)(5)(D) of the MMPA by the NMFS Office of Protected Resources. The Biological Opinion concluded that the VerDate Sep<11>2014 19:36 Mar 11, 2024 Jkt 262001 proposed action is not likely to jeopardize the continued existence of Mexico DPS humpback whales or western DPS Steller sea lions, and is not likely to destroy or adversely modify Mexico DPS humpback whale and western DPS Steller sea lion critical habitat. National Environmental Policy Act To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216–6A, NMFS must evaluate our proposed action (i.e., the issuance of an IHA) and alternatives with respect to potential impacts on the human environment. This action is consistent with categories of activities identified in Categorical Exclusion B4 (IHAs with no anticipated serious injury or mortality) of the Companion Manual for NAO 216– 6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has determined that the issuance of this IHA qualifies to be categorically excluded from further NEPA review. Authorization NMFS has issued an IHA to Trident for the potential harassment of small numbers of six marine mammal species incidental to the Bunkhouse Dock replacement project in Kodiak, Alaska, that includes the previously explained mitigation, monitoring and reporting requirements. Dated: March 6, 2024. Catherin Marzin, Deputy Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2024–05163 Filed 3–11–24; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Evaluation of U.S. Virgin Islands Coastal Management Program; Notice of Public Meetings; Request for Comments Office for Coastal Management, National Ocean Service, National Oceanic and Atmospheric Administration, Department of Commerce. ACTION: Notice of public meetings and opportunity to comment. AGENCY: PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 The National Oceanic and Atmospheric Administration (NOAA), Office for Coastal Management, will hold three in-person public meetings to solicit input on the performance evaluation of the U.S. Virgin Islands Coastal Management Program. NOAA also invites the public to submit written comments. DATES: NOAA will hold in-person public meetings on Tuesday, May 14, 2024, at 5 p.m. on St. Thomas; on Wednesday, May 15, 2024, at 5 p.m. on St. John; and on Thursday, May 16, 2024, at 5 p.m. on St. Croix. NOAA may close the meetings 10 minutes after the conclusion of public testimony and after responding to any clarifying questions from participants. NOAA will consider all relevant written comments received by Friday, May 24, 2024. ADDRESSES: Comments may be submitted by one of the following methods: • In-Person Public Meeting: Provide oral comments during an in-person public meeting. Æ St. Thomas: Tuesday, May 14, 2024, at 5 p.m. at Department of Planning and Natural Resources Offices, 4611 Tutu Park Mall, Suite 300, St. Thomas, U.S. Virgin Islands 00802; Æ St. John: Wednesday, May 15, 2024, at 5 p.m. at Legislature of the U.S. Virgin Islands St. John Annex, 1D Great Cruz Bay Road, Cruz Bay, St. John, U.S. Virgin Islands 00830; or Æ St. Croix: Thursday, May 16, 2024, at 5 p.m. at University of the Virgin Islands Great Hall, Albert A. Sheen Campus, St. Croix, U.S. Virgin Islands. • Email: Send written comments to Michael Migliori, Evaluator, NOAA Office for Coastal Management, at Michael.Migliori@noaa.gov. Include ‘‘Comments on Performance Evaluation of the U.S. Virgin Islands Coastal Management Program’’ in the subject line of the message. NOAA will accept anonymous comments; however, the written comments NOAA receives are considered part of the public record, and the entirety of the comment, including the name of the commenter, email address, attachments, and other supporting materials, will be publicly accessible. Sensitive personally identifiable information, such as account numbers and Social Security numbers, should not be included with the comment. Comments that are not related to the performance evaluation of the U.S. Virgin Islands Coastal Management Program or that contain profanity, vulgarity, threats, or other inappropriate language will not be considered. SUMMARY: E:\FR\FM\12MRN1.SGM 12MRN1

Agencies

[Federal Register Volume 89, Number 49 (Tuesday, March 12, 2024)]
[Notices]
[Pages 17820-17832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-05163]

-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD635]

Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Trident Seafoods Bunkhouse Dock
Replacement Project, Kodiak, Alaska

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

ACTION: Notice; issuance of an incidental harassment authorization.

-----------------------------------------------------------------------

SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
Trident Seafoods Corporation (Trident) to incidentally harass marine
mammals during construction activities associated with the Bunkhouse
Dock replacement project in Kodiak, Alaska.

DATES: This authorization is effective from March 1, 2024, through
February 29, 2025.

ADDRESSES: Electronic copies of the application and supporting
documents, as well as a list of the references cited in this document,
may be obtained online at: https://www.fisheries.noaa.gov/national/
marine-mammal-

[[Page 17821]]

protection/incidental-take-authorizations-construction-activities. In
case of problems accessing these documents, please call the contact
listed below.

FOR FURTHER INFORMATION CONTACT: Rachel Wachtendonk, Office of
Protected Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are proposed or, if the taking is limited to harassment, a notice of a
proposed IHA is provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of the takings are set forth. The definitions
of all applicable MMPA statutory terms cited above are included in the
relevant sections below.

Summary of Request

On June 15, 2023, NMFS received a request from Trident for an IHA
to take marine mammals incidental to vibratory and impact pile driving
to replace the Bunkhouse Dock at their facility in Kodiak, Alaska.
Following NMFS' review of the application, Trident submitted a revised
version on September 1, 2023. The application was deemed adequate and
complete on October 26, 2023. Trident's request is for take of six
species of marine mammals by Level B harassment only. Neither Trident
nor NMFS expect serious injury or mortality to result from this
activity and, therefore, an IHA is appropriate.
There are no changes from the proposed IHA to the final IHA.

Description of Specified Activity

Overview

Trident plans to remove and replace the Bunkhouse Dock on the shore
of Near Island Channel in Kodiak, Alaska. Starting in March 2024 and
lasting 8 weeks, Trident will use down-the-hole (DTH) drilling and
vibratory pile driving to remove existing piles and install new ones.
The Bunkhouse Dock replacement will include the removal of 100 14-
inch (in), or 36-centimeter (cm) diameter timber piles, 75 14-in (36-
cm) steel H-piles, and 60 16-in (41-cm) diameter steel pipe piles. Once
the existing piles are removed, 26 16-in (41-cm) diameter steel pipe
piles and 52 24-in (61-cm) diameter steel pipe piles would be installed
to support the new pier. The installation and removal of 52 temporary
24-in (61-cm) diameter steel pipe piles would be completed to support
permanent pile installation. All piles will be removed with the
deadpull method with the vibratory hammer being used if the deadpull
method is unsuccessful. Temporary and permanent piles will be initially
installed with the vibratory hammer followed by the DTH drill to embed
them to their final depth.
A further detailed description of the planned construction project
is provided in the Federal Register notice for the proposed IHA (88 FR
88874, December 26, 2023). Since that time, no changes have been made
to the planned activities. Therefore, a detailed description is not
provided here. Please refer to that Federal Register notice for the
description of the specified activity. Mitigation, monitoring, and
reporting measures are described in detail later in this document
(please see Mitigation and Monitoring and Reporting sections).

Comments and Responses

A notice of NMFS' proposal to issue an IHA to Trident was published
in the Federal Register on December 26, 2023 (88 FR 88874). That notice
described, in detail, Trident's activity, the marine mammal species
that may be affected by the activity, and the anticipated effects on
marine mammals. In that notice, we requested public input on the
request for authorization described therein, our analyses, the proposed
authorization, and any other aspect of the notice of proposed IHA, and
requested that interested persons submit relevant information,
suggestions, and comments. During the 30-day public comment period,
NMFS did not receive any public comments.

Description of Marine Mammals in the Area of Specified Activities

Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history of the potentially affected species. NMFS
fully considered all of this information, and we refer the reader to
these descriptions, instead of reprinting the information. Additional
information regarding population trends and threats may be found in
NMFS' Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and
more general information about these species (e.g., physical and
behavioral descriptions) may be found on NMFS' website (https://www.fisheries.noaa.gov/find-species).
Table 1 lists all species or stocks for which take is expected and
authorized for this activity and summarizes information related to the
population or stock, including regulatory status under the MMPA and
Endangered Species Act (ESA) and potential biological removal (PBR),
where known. PBR is defined by the MMPA as the maximum number of
animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its
optimum sustainable population (as described in NMFS' SARs). While no
serious injury or mortality is anticipated or authorized, PBR and
annual serious injury and mortality from anthropogenic sources are
included here as gross indicators of the status of the species or
stocks and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS' stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS' Alaska SARs (Young et al., 2023), including the draft 2023 SARs.
All values presented in table 1 are the most recent available at the
time of publication and are available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

[[Page 17822]]

Table 1--Marine Mammal Species \1\ Likely To Occur Near the Project Area That May Be Taken by Trident's Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\2\ abundance survey) \3\ SI *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenopteridae (rorquals):
Humpback Whale.................. Megaptera novaeangliae. Hawai[revaps]i \4\..... -, -, N 11,278 (0.56, 7,265, 127 27.09
2020).
Mexico-North Pacific T, D, Y 3,477 (0.101, 3,185, 43 22
\4\. 2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
Killer Whale.................... Orcinus orca........... Eastern North Pacific -, -, N 1,920 (N/A, 1,920, 19 1.3
Alaska Resident \5\. 2019).
Eastern North Pacific -, -, N 587 (N/A, 587, 2012).. 5.9 0.8
Gulf of Alaska,
Aleutian Islands and
Bering Sea Transient
\6\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocoenidae (porpoises):
Dall's Porpoise................. Phocoenoides dalli..... Alaska \7\............. -, -, N UND (UND, UND, 2015).. UND 37
Harbor Porpoise................. Phocoena phocoena...... Gulf of Alaska......... -, -, Y 31,046 (0.21, N/A, UND 72
1998).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
sea lions):
Steller Sea Lion................ Eumetopias jubatus..... Western \8\............ E, D, Y 49,837 (N/A, 49,837, 299 267
2022).
Family Phocidae (earless seals):
Harbor Seal..................... Phoca vitulina......... South Kodiak........... -, -, N 26,448 (N/A, 22,351, 939 127
2017).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
(https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies).
\2\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\3\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
* These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.
\4\ New SAR in 2022 following North Pacific humpback whale stock structure changes.
\5\ Abundance estimates are based upon data collected more than 8 years ago and, therefore, current estimates are considered unknown.
\6\ Nest is based upon counts of individuals identified from photo identification catalogs.
\7\ The best available abundance estimate is likely an underestimate for the entire stock because it is based upon a survey that covered only a small
portion of the stock's range.
\8\ Nest is best estimate of counts, which have not been corrected for animals at sea during abundance surveys.

As indicated above, all six species (with eight managed stocks) in
table 1 temporally and spatially co-occur with the activity to the
degree that take is reasonably likely to occur. All species that could
potentially occur in the project area are included in table 5 of the
IHA application. While gray whales, North Pacific right whales, minke
whales, fin whales, Cuvier's beaked whales, sperm whales, Pacific
white-sided dolphins, and northern fur seals in the area, the temporal
and/or spatial occurrence of these species is such that take is not
expected to occur, and they are not discussed further beyond the
explanation provided here. These species are all considered to be rare
(no sightings in recent years) within the project area. Take of these
species has not been requested nor authorized and these species are not
considered further in this document.
A detailed description of the species likely to be affected by
Trident's construction project, including brief introductions to the
species and relevant stocks as well as available information regarding
population trends and threats, and information regarding local
occurrence, were provided in the Federal Register notice for the
proposed IHA (88 FR 88874, December 26, 2023); since that time, we are
not aware of any changes in the status of these species and stocks;
therefore, detailed descriptions are not provided here. Please refer to
that Federal Register notice for these descriptions. Please also refer
to the NMFS website (https://www.fisheries.noaa.gov/find-species) for
generalized species accounts.

Marine Mammal Hearing

Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Not all marine mammal species have equal
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al.
(2007, 2019) recommended that marine mammals be divided into hearing
groups based on directly measured (behavioral or auditory evoked
potential techniques) or estimated hearing ranges (behavioral response
data, anatomical modeling, etc.). Note that no direct

[[Page 17823]]

measurements of hearing ability have been successfully completed for
mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS (2018)
described generalized hearing ranges for these marine mammal hearing
groups. Generalized hearing ranges were chosen based on the
approximately 65-decibel (dB) threshold from the normalized composite
audiograms, with the exception for lower limits for low-frequency
cetaceans where the lower bound was deemed to be biologically
implausible and the lower bound from Southall et al. (2007) retained.
Marine mammal hearing groups and their associated hearing ranges are
provided in table 2.

Table 2--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans 150 Hz to 160 kHz.
(dolphins, toothed whales, beaked
whales, bottlenose whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
Cephalorhynchid, Lagenorhynchus
cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) 50 Hz to 86 kHz.
(true seals).
Otariid pinnipeds (OW) (underwater) 60 Hz to 39 kHz.
(sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65-dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al., 2007) and PW pinniped (approximation).

The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.

Potential Effects of Specified Activities on Marine Mammals and Their
Habitat

The effects of underwater noise from Trident's pile driving
activities have the potential to result in behavioral harassment of
marine mammals in the vicinity of the project area. The notice of the
proposed IHA (88 FR 88874, December 26, 2023) included a discussion of
the effects of anthropogenic noise on marine mammals and the potential
effects of underwater noise from Trident's pile driving activities on
marine mammals and their habitat. That information and analysis is
incorporated by reference into this final IHA determination and is not
repeated here; please refer to the notice of the proposed IHA (88 FR
88874, December 26, 2023).

Estimated Take

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

Acoustic Thresholds

NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur permanent threshold shift (PTS) of some
degree (equated to Level A harassment).
Level B Harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source or exposure context (e.g., frequency, predictability, duty
cycle, duration of the exposure, signal-to-noise ratio, distance to the
source), the environment (e.g., bathymetry, other noises in the area,
predators in the area), and the receiving animals (hearing, motivation,
experience, demography, life stage, depth) and can be difficult to
predict (e.g., Southall et al., 2007, 2021; Ellison et al., 2012).
Based on what the available science indicates and the practical need to
use a threshold based on a metric that is both predictable and
measurable for most activities, NMFS typically uses a generalized
acoustic threshold based on received level to estimate the onset of
behavioral harassment. NMFS generally predicts that marine mammals are
likely to be behaviorally harassed in a manner considered to be Level B
harassment when exposed to underwater anthropogenic noise above root-
mean-

[[Page 17824]]

squared pressure received levels (RMS SPL) of 120 dB (referenced to 1
micropascal (re 1 [mu]Pa)) for continuous (e.g., vibratory pile
driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g.,
scientific sonar) sources. Generally speaking, Level B harassment take
estimates based on these behavioral harassment thresholds are expected
to include any likely takes by TTS as, in most cases, the likelihood of
TTS occurs at distances from the source less than those at which
behavioral harassment is likely. TTS of a sufficient degree can
manifest as behavioral harassment, as reduced hearing sensitivity and
the potential reduced opportunities to detect important signals
(conspecific communication, predators, prey) may result in changes in
behavior patterns that would not otherwise occur.
Trident's planned activity includes the use of continuous
(vibratory pile driving) sources, and therefore the RMS SPL threshold
of 120 dB re 1 [mu]Pa is applicable. DTH drilling has both continuous
and intermittent (impulsive) components as discussed in the Description
of Sound Sources section above. When evaluating Level B harassment,
NMFS recommends treating DTH as a continuous source and applying the
RMS SPL thresholds of 120 dB re 1 [mu]Pa.
Level A harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0;
Technical Guidance, 2018) identifies dual criteria to assess auditory
injury (Level A harassment) to five different marine mammal groups
(based on hearing sensitivity) as a result of exposure to noise from
two different types of sources (impulsive or non-impulsive). Trident's
planned activity includes the use of non-impulsive (vibratory pile
driving) sources. As described above, DTH includes both impulsive and
non-impulsive characteristics. When evaluating Level A harassment, NMFS
recommends treating DTH as an impulsive source.
These thresholds are provided in the table below. The references,
analysis, and methodology used in the development of the thresholds are
described in NMFS' 2018 Technical Guidance, which may be accessed at:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

Table 3--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
PTS onset thresholds * (received level)
Hearing group -------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans.......... Cell 1: L,0-pk,flat: 219 Cell 2: LE,,LF,24h: 199 dB.
dB; LE,,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans.......... Cell 3: L,0-pk,flat: 230 Cell 4: LE,,MF,24h: 198 dB.
dB; LE,,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans......... Cell 5: L,0-pk,flat: 202 Cell 6: LE,,HF,24h: 173 dB.
dB; LE,,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).... Cell 7: L,0-pk.flat: 218 Cell 8: LE,,PW,24h: 201 dB.
dB; LE,p,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)... Cell 9: L,0-pk,flat: 232 Cell 10: LE,,OW,24h: 219 dB.
dB; LE,,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS
onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds
associated with impulsive sounds, these thresholds are recommended for consideration.
Note: Peak sound pressure level (L,0-pk) has a reference value of 1 [mu]Pa, and weighted cumulative sound
exposure level (LE,) has a reference value of 1 [mu]Pa\2\s. In this table, thresholds are abbreviated to be
more reflective of International Organization for Standardization standards (ISO, 2017). The subscript
``flat'' is being included to indicate peak sound pressure are flat weighted or unweighted within the
generalized hearing range of marine mammals (i.e., 7 Hz to 160 kHz). The subscript associated with cumulative
sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF,
and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The
weighted cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying
exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate
the conditions under which these thresholds will be exceeded.

Ensonified Area

Here, we describe operational and environmental parameters of the
activity that are used in estimating the area ensonified above the
acoustic thresholds, including source levels and transmission loss
coefficient.
The sound field in the project area is the existing background
noise plus additional construction noise from the planned project.
Marine mammals are expected to be affected via sound generated by the
primary components of the project (i.e., vibratory pile driving and
removal, DTH drilling). The maximum (underwater) area ensonified above
the thresholds for behavioral harassment referenced above is 125 km\2\
(48.26 mi\2\), that would be truncated by land masses that would
obstruct underwater sound transmission and would extend into Near
Island Channel and St. Paul Harbor (see figure 5 in Trident's
application). Additionally, vessel traffic and other commercial and
industrial activities in the project area may contribute to elevated
background noise levels which may mask sounds produced by the project.
Transmission loss (TL) is the decrease in acoustic intensity as an
acoustic pressure wave propagates out from a source. TL parameters vary
with frequency, temperature, sea conditions, current, source and
receiver depth, water depth, water chemistry, and bottom composition
and topography. The general formula for underwater TL is:

TL = B x Log10 (R1/R2),

Where:

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

This formula neglects loss due to scattering and absorption, which
is assumed to be zero here. The degree to which underwater sound
propagates away from a sound source is dependent on a variety of
factors, most notably the water bathymetry and presence or absence of
reflective or absorptive conditions including in-water structures and
sediments. Spherical spreading occurs in a perfectly unobstructed
(free-field) environment not limited by depth or water surface,
resulting in a 6-dB reduction in sound level for each doubling of
distance from the source (20xlog[range]). Cylindrical spreading occurs
in an environment in which sound propagation is bounded by the water
surface and sea bottom, resulting in a reduction of 3 dB in sound level
for each doubling of distance from the source (10xlog[range]). A
practical

[[Page 17825]]

spreading value of 15 is often used under conditions, such as the
project site, where water increases with depth as the receiver moves
away from the shoreline, resulting in an expected propagation
environment that would lie between spherical and cylindrical spreading
loss conditions. Practical spreading loss is assumed here.
The intensity of pile driving sounds is greatly influenced by
factors such as the type of piles, hammers, and the physical
environment in which the activity takes place. In order to calculate
the distances to the Level A harassment and the Level B harassment
sound thresholds for the methods and piles being used in this project,
the applicant and NMFS used acoustic monitoring data from other
locations to develop proxy source levels for the various pile types,
sizes and methods. The project includes vibratory and DTH pile
installation of steel pipe piles and vibratory removal of steel pipe
piles, steel H-piles, and timber piles. Source levels for each pile
size and driving method are presented in table 4.

Table 4--Proxy Sound Source Levels for Pile Sizes and Driving Methods
----------------------------------------------------------------------------------------------------------------
Installation or RMS SPL (re 1 SEL (re 1
Pile type removal [mu]Pa) [mu]Pa\2\-sec) Source
----------------------------------------------------------------------------------------------------------------
Vibratory Pile Driving
----------------------------------------------------------------------------------------------------------------
14-in timber pile................ Removal............. 162 NA Caltrans, 2020.
14-in H-pile..................... Removal............. 150 Caltrans, 2020.
16-in steel pile................. Installation........ 161 NAVFAC, 2015.
16-in steel pile................. Removal............. NAVFAC, 2015.
24-in steel pile................. Installation and NAVFAC, 2015.
Removal.
----------------------------------------------------------------------------------------------------------------
DTH Drilling \1\
----------------------------------------------------------------------------------------------------------------
16-in steel pile................. Installation........ 162 141 Heyvaert & Reyff,
2021; Guan & Miner,
2020.
24-in steel pile................. Installation........ 154 Heyvaert & Reyff,
2021.
----------------------------------------------------------------------------------------------------------------
\1\ Sound source levels for DTH were adjusted by -5 dB to reflect the use of the bubble curtain.

The ensonified area associated with Level A harassment is more
technically challenging to predict due to the need to account for a
duration component. Therefore, NMFS developed an optional User
Spreadsheet tool to accompany the Technical Guidance that can be used
to relatively simply predict an isopleth distance for use in
conjunction with marine mammal density or occurrence to help predict
potential takes. We note that because of some of the assumptions
included in the methods underlying this optional tool, we anticipate
that the resulting isopleth estimates are typically going to be
overestimates of some degree, which may result in an overestimate of
potential take by Level A harassment. However, this optional tool
offers the best way to estimate isopleth distances when more
sophisticated modeling methods are not available or practical. For
stationary sources such as pile driving, the optional User Spreadsheet
tool predicts the distance at which, if a marine mammal remained at
that distance for the duration of the activity, it would be expected to
incur PTS. Inputs used in the optional User Spreadsheet tool, and the
resulting estimated isopleths, are reported below.

Table 5--NMFS User Spreadsheet Inputs
----------------------------------------------------------------------------------------------------------------
Weighting
factor Transmission Number of Activity
Pile size and type Spreadsheet tab used adjustment loss piles per day duration
(kHz) coefficient (minutes)
----------------------------------------------------------------------------------------------------------------
14-in timber pile vibratory A.1 Vibratory pile 2.5 15 25 2
removal. driving.
14-in steel H-pile vibratory A.1 Vibratory pile 2.5 15 20 2
removal. driving.
16-in steel pipe pile vibratory A.1 Vibratory pile 2.5 15 20 2
removal. driving.
16-in steel pipe pile vibratory A.1 Vibratory pile 2.5 15 5 2
installation. driving.
24-in steel pipe pile vibratory A.1 Vibratory pile 2.5 15 6 2
installation (temporary). driving.
24-in steel pipe pile vibratory A.1 Vibratory pile 2.5 15 8 2
removal (temporary). driving.
24-in steel pipe pile vibratory A.1 Vibratory pile 2.5 15 4 2
installation. driving.
16-in steel pipe pile DTH E.2 DTH pile driving 2 15 6 45
installation.
24-in steel pipe pile DTH E.2 DTH pile driving 2 15 6 30
installation (temporary).
24-in steel pipe pile DTH E.2 DTH pile driving 2 15 4 60
installation.
----------------------------------------------------------------------------------------------------------------

Table 6--Calculated Level A and Level B Harassment Isopleths
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A harassment zone (m) Level B
Activity -------------------------------------------------------------------------------- harassment
LF-cetaceans MF-cetaceans HF-cetaceans Otariids Phocids zone (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
14-in timber pile vibratory removal..................... 7.1 0.6 10.4 4.3 0.3 6,310
14-in steel H-pile vibratory removal.................... 1 0.1 1.4 0.6 0 1,000
16-in steel pipe pile vibratory removal................. 5.2 0.5 7.7 3.2 0.2 5,415

[[Page 17826]]

16-in steel pipe pile vibratory installation............ 2.1 0.2 3.1 1.3 0.1 ..............
24-in steel pipe pile vibratory installation (temporary) 2.3 0.2 3.5 1.4 0.1 ..............
24-in steel pipe pile vibratory removal (temporary)..... 2.8 0.3 4.2 1.7 0.1 ..............
24-in steel pipe pile vibratory installation............ 1.8 0.2 2.6 1.1 0.1 ..............
16-in steel pipe pile DTH installation.................. 47 1.7 56 1.8 25.2 6,310
24-in steel pipe pile DTH installation (temporary)...... 264.1 9.4 314.5 10.3 141.3 ..............
24-in steel pipe pile DTH installation.................. 319.9 11.4 381 12.5 171.2 ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------

Marine Mammal Occurrence and Take Estimation

In this section we provide information about the occurrence of
marine mammals, including density or other relevant information which
will inform the take calculations.
When available, peer-reviewed scientific publications were used to
estimate marine mammal abundance in the project area. Data from
monitoring reports from projects on the Kodiak Ferry Terminal were used
as well as reports from other projects in Kodiak, Alaska.
Here we describe how the information provided above is synthesized
to produce a quantitative estimate of the take that is reasonably
likely to occur and is authorized. Tables for each species are
presented to show the calculation of take during the project. Both
density and occurrence data was considered in incidental take
estimations. Density data were used when there was no occurrence data
available, or when occurrence and density data were similar. The take
calculations for this project are:

Incidental take estimate = group size x days of pile driving activity,

Incidental take estimate = (Activity Level B harassment area [km\2\] x
estimated density [individuals/km\2\]) x days of pile driving activity

Humpback Whale

Humpback whales are present in Kodiak year-round with peaks in the
spring and fall. They are considered common in the project area,
meaning there are multiple sightings every month, so they could occur
daily in the project's action. In the project area humpback whales are
expected to occur at a density of 0.093 individuals per square
kilometer area (Halpin et al., 2009). Therefore, using the equation
given above, the total number of Level B harassment takes for humpback
whales would be 14. In the action area it is estimated that the
majority of whales (89 percent) will be from the Hawai'i distinct
population segment (DPS), 11 percent will be from the Mexico DPS, and 1
percent will be from the endangered western North Pacific DPS (Wade,
2021; Muto et al., 2022). Therefore 13 takes are assumed to be from the
Hawai'i DPS and 1 take from the Mexico DPS.
The largest Level A harassment zone for humpback whales extends
319.9 m from the noise source (table 6). All construction work would be
shut down prior to a humpback whale entering the Level A harassment
zone specific to the in-water activity underway at the time. In
consideration of the infrequent occurrence of humpback whales in the
project area and shutdown requirements, no take by Level A harassment
is anticipated or authorized for humpback whales.

Killer Whale

Killer whales are present in Kodiak year-round and are considered
common in the project area, meaning there are multiple sightings every
month, so they could occur daily in the project's action. A single
group of up to six killer whales are expected to occur in the project
area daily (Halpin et al., 2009). Therefore, using the equation given
above, the total number of Level B harassment takes for killer whales
would be 330. In the action area it is estimated that the majority of
killer whales (80 percent) will be from the Alaska resident stock and
20 percent will be from the Gulf of Alaska/Aleutian Islands/Bering Sea
transient stock (Muto et al., 2022). Therefore 264 takes are assumed to
be from the Alaska resident stock and 66 takes from the Gulf of Alaska/
Aleutian Islands/Bering Sea transient stock.
The largest Level A harassment zone for killer whales extends 11.4
m from the noise source (table 6). All construction work would be shut
down prior to a killer whale entering the Level A harassment zone
specific to the in-water activity underway at the time. In
consideration of the small size of the Level A harassment zone and
shutdown requirements, no take by Level A harassment is anticipated or
authorized for killer whale.

Harbor Porpoise

Harbor porpoises are present in Kodiak year-round and are occur
frequently in the project area, meaning there are multiple sightings
every year, so they could occur monthly in the project's action. In the
project area harbor porpoises are expected to occur at a density of
0.4547 individuals per square kilometer area (Marine Geospatial Ecology
Lab, 2021). Therefore, using the equation given above, the total number
of Level B harassment takes for harbor porpoises would be 65.
The largest Level A harassment zone for harbor porpoise extends 381
m from the noise source (table 6). All construction work would be shut
down prior to a harbor porpoise entering the Level A harassment zone
specific to the in-water activity underway at the time. In
consideration of the relatively low anticipated exposure in the project
area and the anticipated effectiveness of the shutdown requirements, no
take by Level A harassment is anticipated or authorized for harbor
porpoise.

Dall's Porpoise

Dall's porpoises are present in Kodiak year-round and are occur
frequently in the project area, meaning there are multiple sightings
every year, so they could occur monthly in the project's action. In the
project area Dall's porpoises are expected to occur at a density of
0.218 individuals per square kilometer (Marine Geospatial Ecology Lab,
2021). Therefore, using the equation given above, the total number of
Level B harassment takes for Dall's porpoise would be 31.
The largest Level A harassment zone for Dall's porpoise extends 381
m from the noise source (table 6). All construction work would be shut
down prior to a Dall's porpoise entering the Level A harassment zone
specific to the in-water activity underway at the time. In
consideration of the relatively low anticipated exposure in the project
area

[[Page 17827]]

and the anticipated effectiveness of the shutdown requirements, no take
by Level A harassment is anticipated or authorized for Dall's porpoise.

Harbor Seal

Harbor seals are present in Kodiak year-round and are considered
common in the project area, meaning there are multiple sightings every
month, so they could occur daily in the project's action. In the
project area Dall's porpoises are expected to occur at a density of
0.1689 individuals per square kilometer (Marine Geospatial Ecology Lab,
2021). Therefore, using the equation given above, the total number of
Level B harassment takes for harbor seals would be 24.
The largest Level A harassment zone for harbor seals extends 171.2
m from the noise source (table 6). All construction work would be shut
down prior to a harbor seal entering the Level A harassment zone
specific to the in-water activity underway at the time. In
consideration of the relatively low anticipated exposure in the project
area and the anticipated effectiveness of the shutdown requirements, no
take by Level A harassment is anticipated or authorized for harbor
seals.

Steller Sea Lion

Steller sea lions are present in Kodiak year-round and are
considered common in the project area, meaning there are multiple
sightings every month, so they could occur daily in the project's
action. During construction at the Kodiak Ferry Terminal (82 FR 10894,
February 26, 2017) Steller sea lions were encountered daily during
construction. Up to 40 Steller sea lions are expected to occur in the
project area daily (Marine Geospatial Ecology Lab, 2021). Therefore,
using the equation given above, the total number of Level B harassment
takes for Steller sea lions would be 2,200.
The largest Level A harassment zone for harbor seals extends 12.5 m
from the noise source (table 6). All construction work would be shut
down prior to a Steller sea lion entering the Level A harassment zone
specific to the in-water activity underway at the time. In
consideration of the small Level A harassment isopleth and shutdown
requirements, no take by Level A harassment is anticipated or
authorized for Steller sea lions.

Table 7--Estimated Take by Level A and Level B Harassment, by Species and Stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
Take as
Common name Stock Stock Level A Level B Total take percentage of
abundance \a\ harassment harassment stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback whale............................ Hawai[revaps]i.............. 11,278 0 13 13 0.1
Mexico-North Pacific........ 3,477 0 1 1 0.03
Killer Whale.............................. Alaska Resident............. 1,920 0 264 264 13.8
Gulf of Alaska/Aleutian 587 0 66 66 11.2
Islands/Bering Sea
Transient.
Harbor porpoise........................... Gulf of Alaska.............. 31,946 0 65 65 0.08
Dall's porpoise........................... Alaska...................... 13,110 0 31 31 0.24
Steller sea lion.......................... Western U.S................. 49,837 0 2,200 2,200 4.4
Harbor seal............................... South Kodiak Island......... 26,448 0 24 24 0.09
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Stock abundance is Nbest according to NMFS 2022 and draft 2023 Stock Assessment Reports.

Mitigation

In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses. NMFS regulations require applicants for incidental
take authorizations to include information about the availability and
feasibility (economic and technological) of equipment, methods, and
manner of conducting the activity or other means of effecting the least
practicable adverse impact upon the affected species or stocks, and
their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, NMFS
considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat, as
well as subsistence uses. This considers the nature of the potential
adverse impact being mitigated (likelihood, scope, range). It further
considers the likelihood that the measure will be effective if
implemented (probability of accomplishing the mitigating result if
implemented as planned), the likelihood of effective implementation
(probability implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, and impact on
operations.
In addition to the measures described later in this section,
Trident would employ the following standard mitigation measures:
At the start of each day, the contractor(s) would hold a
briefing with the Lead Protected Species Observer (PSO) to outline the
activities planned for that day.
If poor weather conditions restrict the PSO's ability to
make observations within the Level A harassment zone of pile driving
(e.g., if there is excessive wind or fog), pile installation and
removal would be halted.
The following measures would apply to Trident's mitigation
requirements:

Shutdown and Monitoring Zones

Trident must establish shutdown zones and Level B monitoring zones
for all pile driving activities. The purpose of a shutdown zone is
generally to define an area within which shutdown of the activity would
occur upon sighting of a marine animal (or in anticipation of an animal
entering the defined area). Shutdown zones are based on the largest
Level A harassment zone for each pile size/type and driving method, and
behavioral monitoring zones are meant to encompass Level B harassment
zones for each pile size/type and driving method, as shown in table 8.
A minimum shutdown zone of 10 m would be required for all in-water

[[Page 17828]]

construction activities to avoid physical interaction with marine
mammals. Marine mammal monitoring will be conducted during all pile
driving activities to ensure that marine mammals do not enter Level A
shutdown zones. Shutdown zones for each activity type are shown in
table 8.
Prior to pile driving, shutdown zones and monitoring zones will be
established based on zones represented in table 8. Observers will
survey the shutdown zones for at least 30 minutes before pile driving
activities start. If marine mammals are found within the shutdown zone,
pile driving will be delayed until the animal has moved out of the
shutdown zone, either verified by an observer or by waiting until 15
minutes has elapsed without a sighting. If a marine mammal approaches
or enters the shutdown zone during pile driving, the activity will be
halted. Pile driving may resume after the animal has moved out of and
is moving away from the shutdown zone or after at least 15 minutes has
passed since the last observation of the animal.
All marine mammals would be monitored in the Level B harassment
zones and throughout the area as far as visual monitoring can take
place. If a marine mammal enters the Level B harassment zone, in-water
activities would continue and PSOs would document the animal's presence
within the estimated harassment zone.
If a species for which authorization has not been granted, or a
species which has been granted but the authorized takes are met, is
observed approaching or within the Level B harassment zone, pile
driving activities will be shut down immediately. Activities will not
resume until the animal has been confirmed to have left the area or 15
minutes has elapsed with no sighting of the animal.

Table 8--Shutdown and Level B Harassment Zones by Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minimum shutdown zone
-------------------------------------------------------------------------------- Level B
Pile size, type, and method High- harassment
Low-frequency Mid-frequency frequency Phocid Otariid zone
--------------------------------------------------------------------------------------------------------------------------------------------------------
Barge movements, pile positioning....................... 10 10 10 10 10 10
14-in timber pile vibratory removal..................... 10 10 15 10 10 6,310
14-in steel H-pile vibratory removal.................... 10 10 10 10 10 1,000
16-in steel pipe pile vibratory removal................. 10 10 10 10 10 5,415
16-in steel pipe pile vibratory installation............ 10 10 10 10 10 5,415
24-in steel pipe pile vibratory installation (temporary) 10 10 10 10 10 5,415
24-in steel pipe pile vibratory removal (temporary)..... 10 10 10 10 10 5,415
24-in steel pipe pile vibratory installation............ 10 10 10 10 10 5,415
16-in steel pipe pile DTH installation.................. 50 10 60 30 10 6,310
24-in steel pipe pile DTH installation (temporary)...... 265 10 315 145 15 6,310
24-in steel pipe pile DTH installation.................. 320 15 385 175 15 6,310
--------------------------------------------------------------------------------------------------------------------------------------------------------

Protected Species Observers

The placement of PSOs during all pile driving activities (described
in the Monitoring and Reporting section) would ensure that the entire
shutdown zone is visible. Should environmental conditions deteriorate
such that the entire shutdown zone would not be visible (e.g., fog,
heavy rain), pile driving would be delayed until the PSO is confident
marine mammals within the shutdown zone could be detected.
PSOs would monitor the full shutdown zones and as much of the Level
B harassment zones as possible. Monitoring zones provide utility for
observing by establishing monitoring protocols for areas adjacent to
the shutdown zones. Monitoring enables observers to be aware of and
communicate the presence of marine mammals in the project areas outside
the shutdown zones and thus prepare for a potential cessation of
activity should the animal enter the shutdown zone.

Pre- and Post-Activity Monitoring

Monitoring must take place from 30 minutes prior to initiation of
pile driving activities (i.e., pre-clearance monitoring) through 30
minutes post-completion of pile driving. Prior to the start of daily
in-water construction activity, or whenever a break in pile driving of
30 minutes or longer occurs, PSOs would observe the shutdown and
monitoring zones for a period of 30 minutes. The shutdown zone would be
considered cleared when a marine mammal has not been observed within
the zone for a 30-minute period. If a marine mammal is observed within
the shutdown zones, pile driving activity would be delayed or halted.
If work ceases for more than 30 minutes, the pre-activity monitoring of
the shutdown zones would commence. A determination that the shutdown
zone is clear must be made during a period of good visibility (i.e.,
the entire shutdown zone and surrounding waters must be visible to the
naked eye).

Bubble Curtain

A bubble curtain must be employed during all impact DTH activities
to interrupt the acoustic pressure and reduce impact on marine mammals.
The bubble curtain must distribute air bubbles around 100 percent of
the piling circumference for the full depth of the water column. The
lowest bubble ring must be in contact with the mudline for the full
circumference of the ring. The weights attached to the bottom ring must
ensure 100 percent substrate contact. No parts of the ring or other
objects may prevent full substrate contact. Air flow to the bubblers
must be balanced around the circumference of the pile.
Based on our evaluation of the applicant's planned measures, NMFS
has determined that the mitigation measures provide the means of
effecting the least practicable impact on the affected species or
stocks and their habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance.

Monitoring and Reporting

In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing

[[Page 17829]]

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

Visual Monitoring

Monitoring shall be conducted by NMFS-approved observers in
accordance with the monitoring plan and section 5 of the IHA. Trained
observers shall be placed from the best vantage point(s) practicable to
monitor for marine mammals and implement shutdown or delay procedures
when applicable through communication with the equipment operator.
Observer training must be provided prior to project start, and shall
include instruction on species identification (sufficient to
distinguish the species in the project area), description and
categorization of observed behaviors and interpretation of behaviors
that may be construed as being reactions to the specified activity,
proper completion of data forms, and other basic components of
biological monitoring, including tracking of observed animals or groups
of animals such that repeat sound exposures may be attributed to
individuals (to the extent possible).
Monitoring would be conducted 30 minutes before, during, and 30
minutes after pile driving/removal activities. In addition, observers
shall record all incidents of marine mammal occurrence, regardless of
distance from activity, and shall document any behavioral reactions in
concert with distance from piles being driven or removed. Pile driving/
removal activities include the time to install or remove a single pile
or series of piles, as long as the time elapsed between uses of the
pile driving equipment is no more than 30 minutes.
Between one and five PSOs will be on duty depending on the size of
the monitoring zone. Locations from which PSOs would be able to monitor
for marine mammals are readily available from publicly accessible
shoreside areas at the Near Island Channel and surrounding waters.
Monitoring locations would be selected by the Contractor during pre-
construction. PSOs would monitor for marine mammals entering the Level
B harassment zones; the position(s) may vary based on construction
activity and location of piles or equipment.
PSOs would scan the waters using binoculars, and/or spotting
scopes, and would use a handheld range-finder device to verify the
distance to each sighting from the project site. All PSOs would be
trained in marine mammal identification and behaviors and are required
to have no other project-related tasks while conducting monitoring. In
addition, monitoring would be conducted by qualified observers, who
would be placed at the best vantage point(s) practicable to monitor for
marine mammals and implement shutdown/delay procedures when applicable
by calling for the shutdown to the hammer operator via a radio. Trident
would adhere to the following observer qualifications:
(i) Independent observers (i.e., not construction personnel) are
required;
(ii) One PSO would be designated as the lead PSO or monitoring
coordinator and that observer must have prior experience working as an
observer;
(iii) Other observers may substitute education (degree in
biological science or related field) or training for experience; and
(iv) Trident must submit observer Curricula Vitae for approval by
NMFS.
Additional standard observer qualifications include:
Ability to conduct field observations and collect data
according to assigned protocols;
Experience or training in the field identification of
marine mammals, including the identification of behaviors;
Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
Writing skills sufficient to prepare a report of
observations including but not limited to the number and species of
marine mammals observed; dates and times when in-water construction
activities were conducted; dates and times when in-water construction
activities were suspended to avoid potential incidental injury from
construction sound of marine mammals observed within a defined shutdown
zone; and marine mammal behavior; and
Ability to communicate orally, by radio or in person, with
project personnel to provide real-time information on marine mammals
observed in the area as necessary.

Data Collection

PSOs would use approved data forms to record the following
information:
Dates and times (beginning and end) of all marine mammal
monitoring.
PSO locations during marine mammal monitoring.
Construction activities occurring during each daily observation
period, including how many and what type of piles were driven or
removed and by what method (i.e., vibratory or DTH).
Weather parameters and water conditions.
The number of marine mammals observed, by species,
relative to the pile location and if pile driving or removal was
occurring at time of sighting.
Distance and bearings of each marine mammal observed to
the pile being driven or removed.
Description of marine mammal behavior patterns, including
direction of travel.
Age and sex class, if possible, of all marine mammals
observed.
Detailed information about implementation of any
mitigation triggered (such as shutdowns and delays), a description of
specific actions that ensued, and resulting behavior of the animal if
any.

Reporting

A draft marine mammal monitoring report would be submitted to NMFS
within 90 days after the completion of

[[Page 17830]]

pile driving and removal activities. It would include an overall
description of work completed, a narrative regarding marine mammal
sightings, and associated PSO data sheets. Specifically, the report
must include:
Dates and times (begin and end) of all marine mammal
monitoring.
Construction activities occurring during each daily
observation period, including the number and type of piles driven or
removed and by what method (i.e., vibratory driving) and the total
equipment duration for cutting for each pile.
PSO locations during marine mammal monitoring.
Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), including Beaufort sea state and any other relevant
weather conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance;
Upon observation of a marine mammal, the following
information: name of PSO who sighted the animal(s) and PSO location and
activity at time of sighting; time of sighting; identification of the
animal(s) (e.g., genus/species, lowest possible taxonomic level, or
unidentified), PSO confidence in identification, and the composition of
the group if there is a mix of species; distance and bearing of each
marine mammal observed relative to the pile being driven for each
sighting (if pile driving was occurring at time of sighting); estimated
number of animals (min/max/best estimate); estimated number of animals
by cohort (adults, juveniles, neonates, group composition, etc.);
animal's closest point of approach and estimated time spent within the
harassment zone; description of any marine mammal behavioral
observations (e.g., observed behaviors such as feeding or traveling),
including an assessment of behavioral responses thought to have
resulted from the activity (e.g., no response or changes in behavioral
state such as ceasing feeding, changing direction, flushing, or
breaching);
Number of marine mammals detected within the harassment
zones, by species.
Detailed information about any implementation of any
mitigation triggered (e.g., shutdowns and delays), a description of
specific actions that ensued, and resulting changes in behavior of the
animal(s), if any.
If no comments are received from NMFS within 30 days, the draft
final report would constitute the final report. If comments are
received, a final report addressing NMFS comments must be submitted
within 30 days after receipt of comments.

Reporting Injured or Dead Marine Mammals

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

Negligible Impact Analysis and Determination

NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any impacts or responses (e.g., intensity, duration),
the context of any impacts or responses (e.g., critical reproductive
time or location, foraging impacts affecting energetics), as well as
effects on habitat, and the likely effectiveness of the mitigation. We
also assess the number, intensity, and context of estimated takes by
evaluating this information relative to population status. Consistent
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338,
September 29, 1989), the impacts from other past and ongoing
anthropogenic activities are incorporated into this analysis via their
impacts on the baseline (e.g., as reflected in the regulatory status of
the species, population size and growth rate where known, ongoing
sources of human-caused mortality, or ambient noise levels).
To avoid repetition, the discussion of our analysis applies to all
the species listed in table 1, given that the anticipated effects of
this activity on these different marine mammal stocks are expected to
be similar. There is little information about the nature or severity of
the impacts, or the size, status, or structure of any of these species
or stocks that would lead to a different analysis for this activity.
Pile driving and removal activities associated with the project as
outlined

[[Page 17831]]

previously, have the potential to disturb or displace marine mammals.
Specifically, the specified activities may result in take, in the form
of Level B harassment from underwater sounds generated from pile
driving and removal. Level A harassment is extremely unlikely given the
small size of the Level A harassment isopleths and the required
mitigation measures designed to minimize the possibility of injury to
marine mammals (see Mitigation section). No mortality is anticipated
given the nature of the activity. Pile installation and removal
activities are likely to result in the Level B harassment of marine
mammals that move into the ensonified zone, primarily in the form of
disturbance or displacement of marine mammals. Take would occur within
a limited, confined area of each stock's range. Level B harassment
would be reduced to the level of least practicable adverse impact
through use of mitigation measures described herein. Further, the
amount of take authorized is small when compared to stock abundance.
Based on reports in the literature as well as monitoring from other
similar activities, behavioral disturbance (i.e., level B harassment)
would likely be limited to reactions such as increased swimming speeds,
increased surfacing time, or decreased foraging (if such activity were
occurring) (e.g., Thorson and Reyff, 2006; HDR, Inc., 2012; Lerma,
2014; ABR, 2016). Most likely for pile driving, individuals would
simply move away from the sound source and be temporarily displaced
from the areas of pile driving, although even this reaction has been
observed primarily only in association with impact pile driving. The
pile driving activities analyzed here are similar to, or less impactful
than, numerous other construction activities conducted in Alaska, which
have taken place with no observed severe responses of any individuals
or known long-term adverse consequences. Level B harassment would be
reduced to the level of least practicable adverse impact through use of
mitigation measures described herein and, if sound produced by project
activities is sufficiently disturbing, animals are likely to simply
avoid the area while the activity is occurring. While vibratory driving
associated with the project may produce sound at distances of many
kilometers from the project site, thus overlapping with some likely
less-disturbed habitat, the project site itself is located in a busy
harbor and the majority of sound fields produced by the specified
activities are close to the harbor. Animals disturbed by project sound
would be expected to avoid the area and use nearby higher-quality
habitats.
The project also is not expected to have significant adverse
effects on affected marine mammals' habitat. The project activities
would not modify existing marine mammal habitat for a significant
amount of time. The activities may cause some fish or invertebrates to
leave the area of disturbance, thus temporarily impacting marine
mammals' foraging opportunities in a limited portion of the foraging
range; but, because of the short duration of the activities, the
relatively small area of the habitat that may be affected, and the
availability of nearby habitat of similar or higher value, the impacts
to marine mammal habitat are not expected to cause significant or long-
term negative consequences.
The waters around Kodiak Island are part of the Alaska humpback
whale feeding Biologically Important Area (BIA; Ferguson et al., 2015).
Humpback whales are present around Kodiak, although the majority of
sightings have occurred outside of Near Island Channel. The area of the
BIA that may be affected by the planned project is small relative to
the overall area of the BIA. The humpback whale feeding BIA is active
between May and November while the planned project is scheduled to
occur between March and June, resulting in only 2 months of overlap.
Additionally, pile driving associated with the project is expected to
take only 55 days, further reducing the temporal overlap with the BIA.
Therefore, the planned project is not expected to have significant
adverse effects on the foraging of Alaska humpback whale. No areas of
specific biological importance (e.g., ESA critical habitat, other BIAs,
or other areas) for any other species are known to co-occur with the
project area.
In summary and as described above, the following factors primarily
support our determination that the impacts resulting from this activity
are not expected to adversely affect any of the species or stocks
through effects on annual rates of recruitment or survival:
No serious injury, mortality, or Level A harassment is
anticipated or authorized;
The anticipated incidents of Level B harassment would
consist of, at worst, temporary modifications in behavior that would
not result in fitness impacts to individuals;
The ensonified areas from the project are very small
relative to the overall habitat ranges of all species and stocks;
The lack of anticipated significant or long-term negative
effects to marine mammal habitat or any other areas of known biological
importance; and
The mitigation measures are expected to reduce the effects
of the specified activity to the level of least practicable adverse
impact.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the monitoring and mitigation
measures, NMFS finds that the total marine mammal take from the planned
activity will have a negligible impact on all affected marine mammal
species or stocks.

Small Numbers

As noted previously, only take of small numbers of marine mammals
may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is fewer than one-third of the species or stock
abundance, the take is considered to be of small numbers. Additionally,
other qualitative factors may be considered in the analysis, such as
the temporal or spatial scale of the activities.
Table 7 demonstrates the number of animals that could be exposed to
received noise levels that could cause Level B harassment for the work
in Kodiak, Alaska. Our analysis shows that less than 14 percent of each
affected stock could be taken by harassment. The numbers of animals
authorized to be taken for these stocks would be considered small
relative to the relevant stock's abundances, even if each estimated
taking occurred to a new individual--an extremely unlikely scenario.
Based on the analysis contained herein of the planned activity
(including the mitigation and monitoring measures) and the anticipated
take of marine mammals, NMFS finds that small numbers of marine mammals
would be taken relative to the population size of the affected species
or stocks.

[[Page 17832]]

Unmitigable Adverse Impact Analysis and Determination

In order to issue an IHA, NMFS must find that the specified
activity will not have an ``unmitigable adverse impact'' on the
subsistence uses of the affected marine mammal species or stocks by
Alaskan Natives. NMFS has defined ``unmitigable adverse impact'' in 50
CFR 216.103 as an impact resulting from the specified activity: (1)
that is likely to reduce the availability of the species to a level
insufficient for a harvest to meet subsistence needs by (i) causing the
marine mammals to abandon or avoid hunting areas, (ii) directly
displacing subsistence users, or (iii) placing physical barriers
between the marine mammals and the subsistence hunters; and (2) that
cannot be sufficiently mitigated by other measures to increase the
availability of marine mammals to allow subsistence needs to be met.
In the Kodiak area sea lions and harbor seals are available for
subsistence harvest under the MMPA. Limited subsistence harvests of
marine mammals outside of Near Island Channel has occurred in the past,
with the most recent recorded/documented harvests of marine mammals in
Kodiak in 2011. The planned activity will take place in Near Island
Channel, and no activities overlap with current subsistence hunting
areas; therefore, there are no relevant subsistence uses of marine
mammals adversely impacted by this action. The planned project is not
likely to adversely impact the availability of any marine mammal
species or stocks that are commonly used for subsistence purposes or to
impact subsistence harvest of marine mammals in the region.
Based on the description of the specified activity, the measures
described to minimize adverse effects on the availability of marine
mammals for subsistence purposes, and the mitigation and monitoring
measures, NMFS has determined that there will not be an unmitigable
adverse impact on subsistence uses from Trident's planned activities.

Endangered Species Act

There are two marine mammal species (Mexico DPS humpback whale and
western DPS Steller sea lion) with confirmed occurrence in the project
area that are listed as endangered under the ESA. The NMFS Alaska
Regional Office issued a Biological Opinion under section 7 of the ESA,
on the issuance of an IHA to Trident under section 101(a)(5)(D) of the
MMPA by the NMFS Office of Protected Resources. The Biological Opinion
concluded that the proposed action is not likely to jeopardize the
continued existence of Mexico DPS humpback whales or western DPS
Steller sea lions, and is not likely to destroy or adversely modify
Mexico DPS humpback whale and western DPS Steller sea lion critical
habitat.

National Environmental Policy Act

To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must evaluate our proposed action (i.e., the issuance of an IHA)
and alternatives with respect to potential impacts on the human
environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or
mortality) of the Companion Manual for NAO 216-6A, which do not
individually or cumulatively have the potential for significant impacts
on the quality of the human environment and for which we have not
identified any extraordinary circumstances that would preclude this
categorical exclusion. Accordingly, NMFS has determined that the
issuance of this IHA qualifies to be categorically excluded from
further NEPA review.

Authorization

NMFS has issued an IHA to Trident for the potential harassment of
small numbers of six marine mammal species incidental to the Bunkhouse
Dock replacement project in Kodiak, Alaska, that includes the
previously explained mitigation, monitoring and reporting requirements.

Dated: March 6, 2024.
Catherin Marzin,
Deputy Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2024-05163 Filed 3-11-24; 8:45 am]
BILLING CODE 3510-22-P

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