[Federal Register Volume 81, Number 54 (Monday, March 21, 2016)]
[Notices]
[Pages 15048-15063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-06251]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XE251


Takes of Marine Mammals Incidental To Specified Activities; 
Taking Marine Mammals Incidental To Implementation of a Test Pile 
Program in Anchorage, Alaska

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that we have issued an incidental harassment authorization (IHA) to the 
Municipality of Anchorage (MOA) Port of Anchorage (POA) to incidentally 
harass four species of marine mammals during activities related to the 
implementation of a Test Pile Program, including geotechnical 
characterization of pile driving sites, near its existing facility in 
Anchorage, Alaska.

DATES: This authorization is effective from April 1, 2016, through 
March 31, 2017.

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

SUPPLEMENTARY INFORMATION:

Availability

    An electronic copy of POA's application and supporting documents, 
as well as a list of the references cited in this document, may be 
obtained by visiting the Internet at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing these 
documents, please call the contact listed above (see FOR FURTHER 
INFORMATION CONTACT).

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization 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), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
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.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the U.S. can apply for an authorization to 
incidentally take small numbers of marine mammals by harassment. 
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS' review 
of an application followed by a 30-day public notice and comment period 
on any proposed authorization for the incidental harassment of marine 
mammals. Within 45 days of the close of the comment period, NMFS must 
either issue or deny the authorization. Except with respect to certain 
activities not pertinent here, 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].''

Summary of Request

    On February 15, 2015, NMFS received an application from POA for the 
taking of marine mammals incidental to conducting a Test Pile Program 
as part of the Anchorage Port Modernization Project (APMP). POA 
submitted a revised application on November 23, 2015. NMFS determined 
that the application was adequate and complete on November 30, 2015. 
POA proposes to

[[Page 15049]]

install a total of 10 test piles as part of a Test Pile Program to 
support the design of the Anchorage Port Modernization Project (APMP) 
in Anchorage, Alaska. The Test Pile Program will also be integrated 
with a hydroacoustic monitoring program to obtain data that can be used 
to evaluate potential environmental impacts and meet future permit 
requirements. All pile driving is expected to be completed by July 1, 
2016. However, to accommodate unexpected project delays and other 
unforeseeable circumstances, the requested and proposed IHA period for 
the Test Pile Program is for the 1-year period from April 1, 2016, to 
March 31, 2017. Subsequent incidental take authorizations will be 
required to cover pile driving under actual construction associated 
with the APMP.
    The use of vibratory and impact pile driving is expected to produce 
underwater sound at levels that have the potential to result in 
behavioral harassment of marine mammals. Species with the expected 
potential to be present during the project timeframe include harbor 
seals (Phoca vitulina), Cook Inlet beluga whales (Delphinapterus 
leucas), and harbor porpoises (Phocoena phocoena). Species that may be 
encountered infrequently or rarely within the project area are killer 
whales (Orcinus orca) and Steller sea lions (Eumetopias jubatus).

Description of the Specified Activity

Overview

    We provided a description of the proposed action in our Federal 
Register notice announcing the proposed authorization (80 FR 78176; 
December 16, 2015). Please refer to that document; we provide only 
summary information here.
    The POA is modernizing its facilities through the APMP. Located 
within the MOA on Knik Arm in upper Cook Inlet (See Figure 1-1 in the 
Application), the existing 129-acre Port facility is currently 
operating at or above sustainable practicable capacity for the various 
types of cargo handled at the facility. The existing infrastructure and 
support facilities were largely constructed in the 1960s. They are 
substantially past their design life, have degraded to levels of 
marginal safety, and are in many cases functionally obsolete, 
especially in regards to seismic design criteria and condition. The 
APMP will include construction of new pile-supported wharves and 
trestles to the south and west of the existing terminals, with a 
planned design life of 75 years.
    An initial step in the APMP is implementation of a Test Pile 
Program, the specified activity for this IHA. The POA proposes to 
install a total of 10 test piles at the POA as part of a Test Pile 
Program to support the design of the APMP. The Test Pile Program will 
also be integrated with a hydroacoustic monitoring program to obtain 
data that can be used to evaluate potential environmental impacts and 
meet future permit requirements. Proposed Test Pile Program activities 
with potential to affect marine mammals within the waterways adjacent 
to the POA include vibratory and impact pile-driving operations in the 
project area.

Dates and Duration

    In-water work associated with the APMP Test Pile Program will begin 
no sooner than April 1, 2016, and will be completed no later than March 
31, 2017 (1 year following IHA issuance), but is expected to be 
completed by July 1, 2016. Pile driving is expected to take place over 
25 days and include 5 hours of vibratory driving and 17 hours of impact 
driving as is shown in Table 1. A 25 percent contingency has been added 
to account for delays due to weather or marine mammal shut-downs 
resulting in an estimated 6 hours of vibratory driving and 21 hours of 
impact driving over 31 days of installation. Restriking of some of the 
piles will occur two to three weeks following installation. 
Approximately 25 percent of pile driving will be conducted via 
vibratory installation, while the remaining 75 percent of pile driving 
will be conducted with impact hammers. Although each indicator pile 
test can be conducted in less than 2 hours, mobilization and setup of 
the barge at the test site will require 1 to 2 days per location and 
could be longer depending on terminal use. Additional time will be 
required for installation of sound attenuation measures, and for 
subsequent noise-mitigation monitoring. Hydroacoustic monitoring and 
installation of resonance-based systems or bubble curtains will likely 
increase the time required to install specific indicator pile from a 
few hours to a day or more.
    Within any day, the number of hours of pile driving will vary, but 
will generally be low. The number of hours required to set a pile 
initially using vibratory methods is about 30 minutes per pile, and the 
number of hours of impact driving per pile is about 1.5 hours. 
Vibratory driving for each test pile will occur on ten separate days. 
Impact driving could occur on any of the 31 days depending on a number 
of factors including weather delays and unanticipated scheduling 
issues. On some days, pile driving may occur only for an hour or less 
as bubble curtains and the containment frames are set up and 
implemented, resonance-based systems are installed, hydrophones are 
placed, pipe segments are welded, and other logistical requirements are 
handled.

                Table 1--Conceptual Project Schedule for Test Pile Driving, Including Estimated Number of Hours and Days for Pile Driving
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                                                                                 Number of
                                                                  Number of       hours,        Number of      Number of      Number of     Total number
            Month                  Pile type      Pile diameter     piles        vibratory    hours, impact   days of pile     days of       of days of
                                                                                  driving        driving        driving       restrikes     pile driving
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April-July 2016..............  Steel pipe......  48'' OD.......           10  5.............  17...........  21...........  4............  25.
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                                                                                                          + 25% contingency =
                                                                             ---------------------------------------------------------------------------
                                                                              6 hours.......  21 hours.....  26 days......  5 days.......  31 days.
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Notes: OD--outside diameter.

Specific Geographic Region

    The Municipality of Anchorage (MOA) is located in the lower reaches 
of Knik Arm of upper Cook Inlet. The POA sits in the industrial 
waterfront of Anchorage, just south of Cairn Point and north of Ship 
Creek (Latitude 61[deg]15' N., Longitude 149[deg]52' W.; Seward 
Meridian). Knik Arm and Turnagain Arm are the two branches of upper 
Cook Inlet and Anchorage is located where

[[Page 15050]]

the two Arms join (Figure 2-1 in the Application).

Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the 
Federal Register on December 16, 2015 (80 FR 78176). During the 30-day 
public comment period, the Marine Mammal Commission (Commission) and 
Friends of Animals (FoA) each submitted letters. The Center for 
Biological Diversity (CBD) and The Humane Society of the U.S. (HSUS) 
submitted comments jointly. The letters are available at 
www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. NMFS' 
responses to submitted comments are contained below.
    Comment 1: The Commission, FoA, and CBD/HSUS recommended that NMFS 
defer issuance of incidental take authorizations and regulations until 
it has better information on the cause or causes of the ongoing decline 
of beluga whales and has a reasonable basis for determining that 
authorizing takes by behavioral harassment would not contribute to 
further decline.
    Response: In accordance with our implementing regulations at 50 CFR 
216.104(c), NMFS uses the best available scientific information to 
determine whether the taking by the specified activity within the 
specified geographic region will have a negligible impact on the 
species or stock and will not have an unmitigable adverse impact on the 
availability of such species or stock for subsistence uses. Based on 
currently available scientific evidence, NMFS determined that the 
impacts of the Test Pile Program would meet these standards. Moreover, 
POA proposed and NMFS required a comprehensive mitigation plan to 
reduce impacts to Cook Inlet beluga whales and other marine mammals to 
the lowest level practicable.
    Our analysis utilizing best available information indicates that 
issuance of this IHA is not expected to, and is not reasonably likely 
to, adversely affect the species or stock through effects on annual 
rates of recruitment or survival. The ESA Biological Opinion determined 
that the issuance of an IHA is not likely to jeopardize the continued 
existence of the Cook Inlet beluga whales or destroy or adversely 
modify Cook Inlet beluga whale critical habitat. Based on the analysis 
of potential effects and the conservative mitigation and monitoring 
program, NMFS determined that the activity would have a negligible 
impact on the population.
    As additional research is conducted to determine the impact of 
various stressors on the Cook Inlet beluga whale population, NMFS will 
incorporate any findings into future negligible impact analyses 
associated with incidental take authorizations.
    Comment 2: The Commission recommended that NMFS develop a policy 
that sets forth clear criteria and/or thresholds for determining what 
constitutes small numbers and negligible impact for the purpose of 
authorizing incidental takes of marine mammals.
    Response: NMFS is in the process of developing both a clearer 
policy to outline the criteria for determining what constitutes ``small 
numbers'' and constructing an improved analytical framework for 
determining whether an activity will have a ``negligible impact'' for 
the purpose of authorizing takes of marine mammals. We fully intend to 
engage the MMC in these processes at the appropriate time.
    Comment 3: The Commission recommended that NMFS draft and finalize 
its programmatic environmental impact statement (PEIS) on the issuance 
of incidental take authorizations in Cook Inlet and establish annual 
limits on the total number and types of takes that are authorized for 
sound-producing activities in Cook Inlet. FoA wrote that NMFS should 
prepare an environmental impact statement before issuing any IHAs.
    Response: NMFS published a Federal Register Notice of Intent to 
Prepare a programmatic EIS for Cook Inlet (79 FR 61616; October 14, 
2014). We are continuing the process of developing the PEIS and will 
consider the potential authorization of take incidental to sound 
producing activities. The PEIS is meant to address hypothetical 
increasing future levels of activity in Cook Inlet which, cumulatively, 
may have a significant impact on the human environment. In the interim, 
NMFS is evaluating each activity individually, taking into 
consideration cumulative impacts, with an EA, to determine if the 
action under consideration can support a Finding of No Significant 
Impact (FONSI). For this IHA, NMFS determined that the Test Pile 
Program will not have a significant impact on the human environment, as 
specified in its FONSI.
    Comment 4: The Commission recommended that NMFS adopt a consistent 
approach when determining the potential number of takes of beluga 
whales in Cook Inlet for future incidental take authorization 
applications regarding sound-producing activities.
    Response: While NMFS strives for consistency where appropriate, it 
is important to note that there are a number of acceptable 
methodologies that can be employed to estimate take. Some methodologies 
may be more or less suitable depending upon the type, duration, and 
location of a given project. Furthermore, there may be available data 
that are applicable only within a localized area and not across the 
entirety of Cook Inlet. As such, NMFS makes determinations about the 
best available information, including the most appropriate 
methodologies to generate take estimates, on an action-specific basis.
    Comment 5: The Commission recommended that NMFS require POA to 
implement delay and shut-down procedures if a single beluga or five or 
more harbor porpoises or killer whales are observed approaching or 
within the Level B harassment zones for impact and vibratory pile 
driving, as has been done under recent IHAs that involved the use of 
airguns and sub-bottom profilers for seismic surveys, or provide 
sufficient justification regarding why implementation of those 
procedures is not necessary for the proposed activities.
    Response: NMFS, after engaging in consultation under section 7 of 
the ESA, has modified the Level B harassment shutdown requirement that 
was in the proposed IHA. Rather than shutdown for groups of five or 
more belugas or calves observed within or approaching the maximum 
potential Level B harassment zones (1,359 m and 3,981 m for impact and 
vibratory pile driving, respectively), the IHA will require a more 
stringent shutdown measure. POA must shut-down upon observation of a 
single beluga whale within or approaching the maximum potential Level B 
harassment zones when driving unattenuated piles, and within a modified 
zone when piles are driven using sound attenuation systems. See 
``Mitigation'' for more details of this shutdown requirement.
    As described in the notice of proposed authorization, NMFS will not 
require POA to shut down if five or more harbor porpoises or killer 
whales are observed approaching or within the Level B harassment zones 
for impact and vibratory pile driving. The assumed benefit of such a 
measure is not well understood, and shutting down during these rare 
occurrences risks seizing of the pile, in which the pile becomes stuck 
in the substrate. This may result in loss of 10% of the total data from 
the Test Pile Program and 100% of the data from the seized pile, which 
would greatly reduce the Program's usefulness. Depending on which pile 
seized it could represent complete data loss for a certain sound 
attenuation treatment

[[Page 15051]]

type (i.e. encapsulated bubble curtain and adBM resonance system). 
Since this data will be helpful to both POA and NMFS in the future to 
help assess impacts of future actions and inform development of 
mitigation that could have conservation value, NMFS does not want to 
risk losing this potentially valuable data.
    Comment 6: FoA commented that NMFS is in violation of the Marine 
Mammal Protection Act (MMPA) since that FoA believes large numbers of 
beluga whales will be harassed and that significant non-negligible 
impacts to whales will occur. CBD/HSUS commented that the small numbers 
analysis and negligible impact determination were deficient.
    Response: NMFS utilized the best available scientific evidence to 
determine whether the taking by the specified activity will have a 
negligible impact on the species or stock. NMFS determined that the 
impacts of the Test Pile Program would meet these standards. See the 
Analysis and Determinations section on Negligible Impact Analysis later 
in this Notice. Similarly, the Biological Opinion determined that the 
issuance of an IHA is not likely to jeopardize the continued existence 
of the Cook Inlet beluga whales or destroy or adversely modify Cook 
Inlet beluga whale critical habitat. Moreover, NMFS has required as 
part of the IHA a rigorous mitigation plan to reduce potential impacts 
to Cook Inlet beluga whales and other marine mammals to the lowest 
level practicable.
    Finally, we determined the Test Pile Program would take only small 
numbers of marine mammals relative to their population sizes. The 
number of belugas likely to be taken represents less than ten percent 
of the population. Some of these takes may represent single individuals 
experiencing multiple takes. In addition to this quantitative 
evaluation, NMFS has also considered the seasonal distribution and 
habitat use patterns of Cook Inlet beluga whales and rigorous 
mitigation requirements to determine that the number of beluga whales 
likely to be taken is small. See the Analyses and Determinations 
section later in this document for more information about the 
negligible impact and small numbers determinations for beluga whales 
and other marine mammal species for which take has been authorized.
    Comment 7: FoA and CBD/HSUS noted that the proposed activities 
would impact beluga habitat which is considered Type 1 or high value/
high sensitivity habitat. FoA is also concerned that if pile driving is 
not completed by July of 2016, the project's activities could overlap 
with the time period with the largest annual beluga presence.
    Response: The section on Anticipated Effects on Habitat found later 
in this notice describes in detail how the ensonified area during the 
Test Pile Program represents less than 1% of designated critical 
habitat in Area 1. Furthermore, the POA and adjacent navigation channel 
were excluded from critical habitat designation due to national 
security reasons (76 FR 20180, April 11, 2011).
    Although POA has requested that a one-year authorization period 
running from April 1, 2016 through March 31, 2017, POA intends to 
complete all Test Pile Program activities prior to July 1, 2016. If the 
Program extends beyond that date, note that NMFS' analysis and 
determination of authorized take levels are conservative in that they 
are based on the density of beluga whales during the summer months when 
concentrations are higher. Even though POA plans to start in spring and 
finish early summer, should pile driving extend past July 1, the take 
estimates presented here would likely be conservative. Therefore, 
continuation of planned pile driving beyond July 1, 2016 would not 
affect our determinations.
    Comment 8: NMFS stated that no apparent behavioral changes have 
been observed when belugas were sighted near construction activities 
including pile driving and dredging in Cook Inlet. As such, CBD/HSUS 
urged NMFS to obtain data on behavioral modifications in order to 
properly conduct its negligible impact determination. Furthermore, FoA 
noted that any effects may not always be visible to the naked eye or 
visible at all (e.g., internal injury). FoA stated that NMFS has not 
adequately accounted for the high mobility of beluga whales or 
unpredictability of being able to adequately observe these animals when 
the agency evaluated POA's request for an IHA and its mitigation and 
monitoring measures. FoA recommends that NMFS should do so before 
proceeding in making its decision.
    Response: Available data describing behavioral impacts associated 
with marine noise is limited in several ways according to Southall et 
al. 2007. Insufficient data exist to support criteria other than those 
based on SPL alone, and this metric fails to account for the duration 
of exposure beyond the difference between pulse and non-pulse sounds. 
Additionally, there is much variability in responses among species of 
the same functional hearing group and also within species. Because of 
the influences of numerous variables, behavioral responses are 
difficult to predict given present information. Furthermore, any 
biological significance of an observed behavioral response is extremely 
difficult to assess (NRC, 2005). Additional research is needed to 
quantify behavioral reactions of a greater number of free-ranging 
marine mammal species to specific exposures from different human sound 
sources. This is an area of increasing interest and as new data becomes 
available NMFS will incorporate this information into future 
assessments.
    NMFS also understands that observing every beluga whale that enters 
into the zones of influence may not be possible given the large size of 
the maximum potential vibratory pile driving Level B harassment zone 
(3,981 m). However, piles driven using sound attenuation systems are 
expected to have much smaller Level B harassment zones (approximately 
300-900 m; see ``Mitigation'' for further detail). Additionally, POA 
will employ a robust monitoring program which will include marine 
mammal observers (MMOs) in an elevated platform and personnel on 
hydroacoustic monitoring vessels. MMOs will have been trained in 
identifying changes in behavior that may occur due to exposure to pile 
driving activities. Furthermore, Level A harassment (injury) is not 
anticipated to occur due to the shutdown protocols required of POA. 
Given this information NMFS is confident POA can reliably monitor 
beluga whales in the zones of influence and identify and record 
behavioral impacts.
    Comment 9: FoA noted that anthropogenic noises can result in 
masking hindering the ability of whales to communicate. FoA also noted 
that anthropogenic activities can result in noise that can provoke 
temporary threshold shift (TTS) or permanent threshold shift (PTS) 
while NMFS stated in the proposed authorization that no marine mammals 
have been shown to experience TTS or PTS as a result of pile driving 
activities.
    Response: NMFS acknowledged in the proposed Federal Register notice 
that masking may occur due to anthropogenic sounds occurring in 
frequency ranges utilized by beluga whales. NMFS, however, believes 
that the short-term duration and limited affected area would not result 
in significant impacts from masking. NMFS wrote that although no marine 
mammals have been shown to experience TTS or PTS as a result of being 
exposed to pile driving activities, captive bottlenose dolphins and 
beluga

[[Page 15052]]

whales exhibited changes in behavior when exposed to strong pulsed 
sounds (Finneran et al., 2000, 2002, 2005). The animals tolerated high 
received levels of sound before exhibiting aversive behaviors. 
Experiments on a beluga whale showed that exposure to a single watergun 
impulse at a received level of 207 kPa (30 psi), which is equivalent to 
228 dB, resulted in a 7 and 6 dB TTS in the beluga whale at 0.4 and 30 
kHz, respectively. Thresholds returned to within 2 dB of the pre-
exposure level within four minutes of the exposure (Finneran et al., 
2002). Although the source level of pile driving from one hammer strike 
is expected to be much lower than the single watergun impulse cited 
here, animals exposed for a prolonged period to repeated hammer strikes 
could receive more sound exposure in terms of SEL than from the single 
watergun impulse (estimated at 188 dB re 1 [mu]Pa\2\-s) in the 
aforementioned experiment (Finneran et al., 2002). However, in order 
for marine mammals to experience TTS or PTS, the animals have to be 
close enough to be exposed to high intensity sound levels for a 
prolonged period of time. Based on the best scientific information 
available, NMFS finds that with mitigation protocols in place, 
including a 100 meter shut-down zone, sound pressure levels (SPLs) that 
marine mammals might reasonably be anticipated to experience as part of 
the Test Pile Program are below the thresholds that could result in TTS 
or the onset of PTS.
    Comment 10: FoA noted that NMFS did not evaluate cumulative impacts 
as part of its analysis. CBD/HSUS also urged NMFS to conduct an 
analysis of cumulative effects of construction and operation of the 
Anchorage Port Modernization Project (APMP).
    Response: Neither the MMPA nor NMFS' implementing regulations 
specify how to consider other activities and their impacts on the same 
populations when conducting a negligible impact analysis. However, 
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 the negligible 
impact analysis via their impacts on the environmental baseline (e.g., 
as reflected in the density/distribution and status of the species, 
population size and growth rate, and ambient noise).
    In addition, cumulative effects were addressed in the EA and 
Biological Opinion prepared for this action. The APMP is specifically 
considered in the cumulative effects section of the EA. These 
documents, as well as the Alaska Marine Stock Assessments and the most 
recent abundance estimate for Cook Inlet beluga whales (Shelden et al., 
2015) are part of NMFS' Administrative Record for this action, and 
provided the decision maker with information regarding other activities 
in the action area that affect marine mammals, an analysis of 
cumulative impacts, and other information relevant to the determination 
made under the MMPA.
    Comment 11: FoA commented that issuing the IHA would violate the 
Endangered Species Act as a permit (IHA) cannot be issued if taking 
will appreciably reduce the likelihood of survival and recovery of the 
species in the wild. Additionally, FoA believes that mitigation of 
noise and other impacts do not go far enough to fully protect the Cook 
Inlet beluga whales from the many threats facing them.
    Response: NMFS' Biological Opinion concluded that the issuance of 
an IHA is not likely to jeopardize the continued existence of the Cook 
Inlet beluga whales or destroy or adversely modify Cook Inlet beluga 
whale critical habitat. NMFS has revised its IHA requirements to 
require shutdown upon observation of one beluga whale within or 
approaching the area expected to contain sound exceeding NMFS' criteria 
for Level B harassment. See response to comment #8. NMFS acknowledges 
the difficulties of monitoring in the field, particularly at long 
distances. However, NMFS believes the required mitigation and related 
monitoring satisfy the requirements of the MMPA.
    Comment 12: FoA stated that issuing the IHA would violate NEPA as 
NMFS did not prepare an EIS.
    Response: The purpose of an EA is to evaluate the environmental 
impacts of an action and determine if a proposed action or its 
alternatives have potentially significant environmental effects. The EA 
process concludes with either a Finding of No Significant Impact or a 
determination to prepare an Environmental Impact Statement. NMFS issued 
a Finding of No Significant Impact (FONSI) detailing the reasons why 
the agency has determined that the action will have no significant 
impacts.
    Comment 13: FoA commented that NMFS must include a discussion of 
ethics and the rights of wildlife when assessing the potential 
harassment of marine life.
    Response: NMFS' does not have authority under section 101(a)(5)(D) 
of the MMPA to consider these issues in making a decision. As enacted 
by Congress, our only authority under that provision is to evaluate the 
specified activity to determine if it will have a negligible impact on 
the affected species or stocks and no unmitigable adverse impact on 
marine mammal availability for relevant subsistence uses. If those 
standards are met and the expected take is limited to small numbers of 
marine mammals, NMFS must issue an IHA that contains the required 
mitigation, monitoring, and reporting requirements.
    Comment 14: CBD/HSUS recommended that NMFS issue and finalize a 
draft recovery plan as is required under the Endangered Species Act 
(ESA) and not issue an IHA until this has occurred.
    Response: The Cook Inlet Beluga Whale Recovery Plan is currently 
under development and NMFS is working towards its completion. A final 
recovery plan is not required for issuance of the IHA.
    Comment 15: CBD/HSUS urged NMFS not to issue an IHA until the 
agency adopts a comprehensive monitoring plan.
    Response: The commenter did not explain what it meant by 
``comprehensive monitoring plan.'' However, NMFS has conducted aerial 
monitoring surveys of beluga whales in Cook Inlet on an annual basis 
since 1993 and this monitoring is likely to continue in the foreseeable 
future. Furthermore, an important component of the Draft Cook Inlet 
Beluga Whale Recovery Plan includes comprehensive population 
monitoring. Under the draft recovery plan, NMFS would continue to 
conduct aerial and photo-identification surveys to estimate abundance, 
and analyze population trends, calving rates, and distribution.
    Comment 16: CBD/HSUS argue that NMFS improperly estimated take by 
using data from only summer months when the IHA is authorized for a 
one-year period. CBD/HSUS also allege that NMFS underestimated the size 
of the group factor which was included in the final take estimation.
    Response: The predictive beluga habitat model described in Goetz et 
al. 2012 was used by POA and NMFS to estimate density. This is 
considered to be the best information available, and incorporates 
National Marine Mammal Laboratory data collected during the months of 
June and July between 1994 and 2008. There is no data of similar 
quality available for the spring and early summer time frame. The 
authorized take estimates for the Test Pile Program were based on the 
assumption that pile-driving operations would take place between April 
1 and July 1, 2016 and that beluga density outside the June-July period 
would be lower. Therefore, NMFS considers the use of the Goetz et al. 
2012 summer data to estimate take

[[Page 15053]]

for the April 1 through July 1 period to be conservative and 
appropriate.
    The section on Estimated Take by Incidental Harassment later in 
this document explains why the density data used for estimating 
potential beluga exposures does not fully reflect the nature of local 
beluga occurrence and also provides a statistically defensible 
justification for the size of the large group factor which was selected 
by NMFS. Note that while larger groups of beluga whales have frequently 
been observed in Cook Inlet, NMFS' finding is based on groups that were 
actually observed near POA.
    Comment 17: CBD/HSUS stated that it is inappropriate for NMFS to 
use the current, outdated, generic sound thresholds of 180 dB and 160/
120dB levels (impact/non-impact) as thresholds for Level A and Level B 
harassment when it has already developed a more appropriate method. As 
such, the agency should not issue IHAs until it has completed its 
revision of acoustic thresholds for Level B take.
    Response: NMFS currently uses 160 dB root mean square (rms) as the 
exposure level for estimating Level B harassment takes from impulse 
sounds for most species in most cases. This threshold was established 
for underwater impulse sound sources based on measured avoidance 
responses observed in whales in the wild. Specifically, the 160 dB 
threshold was derived from data for mother-calf pairs of migrating gray 
whales (Malme et al., 1983, 1984) and bowhead whales (Richardson et 
al., 1985, 1986) responding to seismic airguns (e.g., impulsive sound 
source). We acknowledge there is more recent information bearing on 
behavioral reactions to seismic airguns, but those data only illustrate 
how complex and context-dependent the relationship is between the two. 
The 120 dB re 1[micro]Pa (rms) threshold for noise originates from 
research on baleen whales, specifically migrating gray whales (Malme et 
al. 1984; predicted 50% probability of avoidance) and bowhead whales 
reacting when exposed to industrial (i.e., drilling and dredging) 
activities (non-impulsive sound source) (Richardson et al. 1990). NMFS 
is working to develop guidance to help determine Level B harassment 
thresholds. Note, however, it is not a matter of merely replacing the 
existing threshold with a new one. Due to the complexity of the task, 
any guidance will require a rigorous review that includes internal 
agency review, public notice and comment, and additional external peer 
review before any final product is published. In the meantime, and 
taking into consideration the facts and available science, NMFS 
determined it is reasonable to use the 160 dB threshold for impact 
sources for estimating takes of marine mammals in Cook Inlet by Level B 
harassment and the 120 dB threshold for vibratory sources.
    With regard to injury, NMFS is developing Guidance for Assessing 
the Effects of Anthropogenic Sound on Marine Mammal Hearing. 
Specifically, it will identify the received levels, or acoustic 
thresholds, above which individual marine mammals are predicted to 
experience changes in their hearing sensitivity (either temporary or 
permanent) for acute exposure to underwater anthropogenic sound 
sources. That Guidance is undergoing an extensive process involving 
peer review and public comment, and is expected to be finalized 
sometime in 2016. See 80 FR 45642 (July 31, 2015).

Description of Marine Mammals in the Area of the Specified Activity

    There are five marine mammal species known to occur in the vicinity 
of the project area. These are the Cook Inlet beluga whale, killer 
whale, Steller sea lion, harbor porpoise, and harbor seal.
    We reviewed POA's detailed species descriptions, including life 
history information, for accuracy and completeness and refer the reader 
to Section 3 of POA's application as well as our notice of proposed IHA 
published in the Federal Register (80 FR 78176; December 16, 2015) 
instead of reprinting the information here. Please also refer to NMFS' 
Web site (www.nmfs.noaa.gov/pr/species/mammals) for generalized species 
accounts which provide information regarding the biology and behavior 
of the marine resources that occur in the vicinity of the project area.
    Table 2 lists marine mammal stocks that could occur in the vicinity 
of the project that may be subject to harassment and summarizes key 
information regarding stock status and abundance. Please see NMFS' 
Stock Assessment Reports (SAR), available at www.nmfs.noaa.gov/pr/sars, 
for more detailed accounts of these stocks' status and abundance.

               Table 2--Marine Mammals in the Project Area
------------------------------------------------------------------------
       Species or DPS *             Abundance             Comments
------------------------------------------------------------------------
Cook Inlet beluga whale         312 \a\..........  Occurs in the project
 (Delphinapterus leucas).                           area. Listed as
                                                    Depleted under the
                                                    MMPA, Endangered
                                                    under ESA.
Killer (Orca) whale (Orcinus    2,347 Resident     Occurs rarely in the
 orca).                          587 Transient\b\.  project area. No
                                                    special status or
                                                    ESA listing.
Harbor porpoise (Phocoena       31,046 \c\.......  Occurs occasionally
 phocoena).                                         in the project area.
                                                    No special status or
                                                    ESA listing.
Harbor seal (Phoca vitulina)..  27,386 \d\.......  Occurs in the project
                                                    area. No special
                                                    status or ESA
                                                    listing.
Steller sea lion (Eumetopias    49,497 \e\.......  Occurs rarely within
 jubatus).                                          the project area.
                                                    Listed as Depleted
                                                    under the MMPA,
                                                    Endangered under
                                                    ESA.
------------------------------------------------------------------------
* DPS refers to distinct population segment under the ESA, and is
  treated as a species.
\a\ Abundance estimate for the Cook Inlet stock. Allen and Angliss,
  2015; Shelden et al., 2015.
\b\ Abundance estimate for the Eastern North Pacific Alaska Resident
  stock; the estimate for the transient population is for the Gulf of
  Alaska, Aleutian Islands, and Bering Sea stock.
\c\ Abundance estimate for the Gulf of Alaska stock.
\d\ Abundance estimate for the Cook Inlet/Shelikof stock.
\e\ Abundance estimate for the Western U.S. Stock.
Sources for populations estimates other than Cook inlet beluga whales:
  Allen and Angliss 2013, 2014, 2015.

Potential Effects of the Specified Activity on Marine Mammals

    The Federal Register notice of proposed authorization (80 FR 78176; 
December 16, 2015) provides a general background on sound relevant to 
the specified activity as well as a detailed description of marine 
mammal hearing and of the potential effects of these construction 
activities on marine mammals, and is not repeated here.

[[Page 15054]]

Anticipated Effects on Habitat
    We described potential impacts to marine mammal habitat in detail 
in our Federal Register notice of proposed authorization. The proposed 
Test Pile Program will not result in permanent impacts to habitats used 
by marine mammals. Pile installation may temporarily increase turbidity 
resulting from suspended sediments. Any increases would be temporary, 
localized, and minimal. POA must comply with state water quality 
standards during these operations by limiting the extent of turbidity 
to the immediate project area. In general, turbidity associated with 
pile installation is localized to about a 25-foot radius around the 
pile (Everitt et al. 1980). Cetaceans are not expected to be close 
enough to the project site driving areas to experience effects of 
turbidity, and any pinnipeds will be transiting the terminal area and 
could avoid localized areas of turbidity. Therefore, the impact from 
increased turbidity levels is expected to be discountable to marine 
mammals. The proposed Test Pile Program will result in temporary 
changes in the acoustic environment. Marine mammals may experience a 
temporary loss of habitat because of temporarily elevated noise levels. 
The most likely impact to marine mammal habitat would be minor impacts 
to the immediate substrate during installation of piles during the 
proposed Test Pile Program. The Cook Inlet beluga whale is the only 
marine mammal species in the project area that has critical habitat 
designated in Cook Inlet. NMFS has characterized the relative value of 
four habitats as part of the management and recovery strategy in its 
Final Conservation Plan for the Cook Inlet beluga whale (NMFS 2008a). 
These are sites where beluga whales are most consistently observed, 
where feeding behavior has been documented, and where dense numbers of 
whales occur within a relatively confined area of the inlet. Type 1 
Habitat is termed ``High Value/High Sensitivity'' and includes what 
NMFS believes to be the most important and sensitive areas of the Cook 
Inlet for beluga whales. Type 2 Habitat is termed ``High Value'' and 
includes summer feeding areas and winter habitats in waters where 
whales typically occur in lesser densities or in deeper waters. Type 3 
Habitat occurs in the offshore areas of the mid and upper inlet and 
also includes wintering habitat. Type 4 Habitat describes the remaining 
portions of the range of these whales within Cook Inlet. The habitat 
that will be directly impacted from Test Pile activities at the POA is 
considered Type 2 Habitat, though excluded from the critical habitat 
designation due to national security considerations.
    Note that the amount of critical habitat impacted by the Test Pile 
Program is relatively small. The POA is planning to install test piles 
at 6 locations arranged on a roughly north-south alignment. The maximum 
overlap with critical habitat to the north is 1,677 acres (6.79 sq. km; 
2.62 sq. mi.), and the maximum overlap to the south is 2,113 acres 
(8.55 sq. km; 3.3 sq. mi.), depending on pile location. The two maxima 
will not occur at the same time because pile installation will only 
take place at one pile at a time; the northern-most maximum is for the 
northern-most pile, and the southern-most maximum is for the southern-
most pile. As pile location changes, the ensonified area on one side 
decreases as it increases on the other side. Pile installation in the 
center of the north-south alignment will ensonify the smallest area of 
critical habitat. The area excluded due to national security was not 
included in these measurements. For all pile locations, the temporarily 
ensonified area represents less than 1% of designated critical habitat.
    Beluga whales have been observed most often in the POA area at low 
tide in the fall, peaking in late August to early September (Markowitz 
and McGuire 2007; Cornick and Saxon-Kendall 2008). Although the POA 
scientific monitoring studies indicate that the area is not used 
frequently by many beluga whales, individuals and sometimes large 
groups of beluga whales have been observed passing through the area 
when traveling between lower and upper Knik Arm. Diving and traveling 
have been the most common behaviors observed, with instances of 
confirmed feeding. However, the most likely impact to marine mammal 
prey from the proposed Test Pile Program will be temporary avoidance of 
the immediate area. In general, the nearer the animal is to the source 
the higher the likelihood of high energy and a resultant effect (such 
as mild, moderate, mortal injury). Affected fish would represent only a 
small portion of food available to beluga whales in the area. The 
duration of fish avoidance of this area after pile driving stops is 
unknown, but a rapid return to normal recruitment, distribution, and 
behavior is anticipated. Any behavioral avoidance by fish of the 
disturbed area will still leave significantly large areas of fish and 
marine mammal foraging habitat in Knik Arm. Therefore, impacts to 
beluga prey species are likely to be minor and temporary.
    In summary, the long-term effects of any prey displacements are not 
expected to affect the overall fitness of the Cook Inlet beluga whale 
population or other affected species; effects will be minor and will 
terminate after cessation of the proposed Test Pile Program. Due to the 
short duration of the activities and the relatively small area of the 
habitat affected, the impacts to marine mammal habitat are not expected 
to cause significant or long-term negative consequences for individual 
marine mammals or their populations, including Cook Inlet beluga 
whales.

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 such 
activity, ``and other means of effecting the least practicable impact 
on such species or stock and its habitat, paying particular attention 
to rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stock for taking'' for certain 
subsistence uses.
    Measurements from similar pile driving events were utilized to 
estimate zones of influence (ZOI; see ``Estimated Take by Incidental 
Harassment''). ZOIs are often used to establish a mitigation zone 
around each pile (when deemed practicable) and to identify where Level 
A harassment to marine mammals may occur, and also provide estimates of 
the areas Level B harassment zones. ZOIs may vary between different 
diameter piles and types of installation methods. POA will employ the 
following mitigation measures, which were contained in the notice of 
proposed IHA with modifications as noted here:
    (a) Conduct briefings between construction supervisors and crews, 
marine mammal monitoring team, and POA staff prior to the start of all 
pile driving activity, and when new personnel join the work, in order 
to explain responsibilities, communication procedures, marine mammal 
monitoring protocol, and operational procedures.
    (b) For in-water heavy machinery work other than pile driving 
(using, e.g., standard barges, tug boats, barge-mounted excavators, or 
clamshell equipment used to place or remove material), if a marine 
mammal comes within 10 m, operations shall cease and vessels shall 
reduce speed to the minimum level required to maintain steerage and 
safe working conditions. This type of work could include the following 
activities: (1) movement of the barge to the pile location or (2) 
positioning of the pile on the substrate via a crane (i.e., stabbing 
the pile).

[[Page 15055]]

    Time Restrictions--Work would occur only during daylight hours, 
when visual monitoring of marine mammals can be conducted.
    Establishment of Monitoring and Shutdown Zones--Monitoring zones 
(ZOIs) are the areas in which SPLs would be expected to equal or exceed 
160 dB rms for impact driving and 125 dB rms for vibratory driving. 
Note that 125 dB has been established as the appropriate isopleth for 
Level B harassment zone associated with vibratory driving since ambient 
noise levels near the POA are likely to be above 120 dB rms and this 
value has been used previously as a threshold in this area. Note that 
POA's acoustic monitoring plan includes collection of data to verify 
the level of background noise in the vicinity of POA. Monitoring of 
these zones enables observers to be aware of and communicate the 
presence of marine mammals in the project area. The primary purpose of 
monitoring these zones is for documenting potential incidents of Level 
B harassment, although here we require more stringent measures 
associated with beluga whale occurrence in the monitoring zone (see 
shutdown zone, below). Nominal predicted radial distances for driving 
piles with and without the use of sound attenuation systems are shown 
in Table 3. The attenuated zones are calculated assuming 10 dB noise 
reduction provided by the encapsulated bubble system and adBM resonance 
system treatments (CalTrans, 2012; note that the resonance system is 
expected to provide greater attenuation than would the bubble system, 
making this a conservative assumption for use of that system). Test 
Pile Program results will provide more precise information on actual 
levels of attenuation attained. We discuss monitoring objectives and 
protocols in greater depth in ``Monitoring and Reporting.''

  Table 3--Distances in Meters to NMFS' Level A (Injury) and Level B Harassment Thresholds (Isopleths) for Unattenuated and Attenuated 48-Inch-Diameter
                                                     Pile, Assuming a 125-dB Background Noise Level
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Impact                                                    Vibratory
                                  ----------------------------------------------------------------------------------------------------------------------
                                    Pinniped, Level A   Cetacean, Level A  Level B Harassment   Pinniped, Level A   Cetacean, Level A       Level B
      Pile diameter (inches)             Injury              Injury       --------------------       Injury              Injury            Harassment
                                  ----------------------------------------                    ----------------------------------------------------------
                                         190 dB              180 dB              160 dB              190 dB              180 dB              125 dB
--------------------------------------------------------------------------------------------------------------------------------------------------------
48, unattenuated.................  14 m..............  63 m..............  1,359 m...........  <10 m.............  <10 m.............  3,981 m.
48, 10 dB Attenuation............  <10 m.............  13 m..............  293 m.............  <10 m.............  <10 m.............  858 m.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    In order to document potential incidents of harassment, monitors 
will record all marine mammal observations regardless of location. The 
observer's location, as well as the location of the pile being driven, 
is known from a global positioning system (GPS). The location of the 
animal is estimated as a distance from the observer, which is then 
compared to the location from the pile and the ZOIs for relevant 
activities (i.e., pile installation). This information may then be used 
to extrapolate observed takes to reach an approximate understanding of 
actual total takes, in the event that the entire monitoring zone is not 
visible.
    Soft Start--The use of a soft start procedure is believed to 
provide additional protection to marine mammals by warning or providing 
a chance to leave the area prior to the hammer operating at full 
capacity, and typically involves a requirement to initiate sound from 
the hammer for 15 seconds at reduced energy followed by a waiting 
period. This procedure is repeated two additional times. It is 
difficult to specify the reduction in energy for any given hammer 
because of variation across drivers and, for impact hammers, the actual 
number of strikes at reduced energy will vary because operating the 
hammer at less than full power results in ``bouncing'' of the hammer as 
it strikes the pile, resulting in multiple ``strikes.'' The project 
will utilize soft start techniques for both impact and vibratory pile 
driving. POA will initiate sound from vibratory hammers for fifteen 
seconds at reduced energy followed by a 1 minute waiting period, with 
the procedure repeated two additional times. For impact driving, we 
require an initial set of three strikes from the impact hammer at 
reduced energy, followed by a thirty-second waiting period, then two 
subsequent three strike sets. Soft start will be required at the 
beginning of each day's pile driving work and at any time following a 
cessation of pile driving of 20 minutes or longer (specific to either 
vibratory or impact driving).

Monitoring and Shut-Down for Pile Driving

    The following measures will apply to POA:
    Shut-down Zone--For all pile driving activities, POA will establish 
a shut-down zone. Shut-down zones typically correspond to the area in 
which SPLs equal or exceed the 180/90 dB rms acoustic injury criteria, 
with the purpose being to define an area within which shut-down of 
activity would occur upon sighting of a marine mammal (or in 
anticipation of an animal entering the defined area), thus preventing 
potential injury of marine mammals. For marine mammals other than 
beluga whales, POA, will implement a minimum shut-down zone of 100 m 
radius around all vibratory and impact pile activity. These 
precautionary measures would also further reduce the possibility of 
auditory injury and behavioral impacts as well as limit the unlikely 
possibility of injury from direct physical interaction with 
construction operations.
    Shut-down for Beluga Whales--In order to provide more stringent 
protections for beluga whales, in-water pile driving operations will be 
shut down upon observation of any beluga whale within or approaching 
the maximum potential Level B harassment zone when driving unattenuated 
piles (1,400 m and 4,000 m for impact and vibratory pile driving, 
respectively). When driving piles with sound attenuation systems, POA 
will shutdown upon observation of whales within or approaching a 
smaller zone that NMFS expects would contain sound exceeding relevant 
harassment criteria (300 m and 900 m for impact and vibratory pile 
driving, respectively). Two of ten piles will be driven without use of 
sound attenuation systems. If shut down does occur, pile driving may 
not resume until the group is observed exiting the relevant shut down 
zone or until 30 minutes have passed without re-sighting.
    Visual Marine Mammal Observation--POA will collect sighting data 
and behavioral responses to

[[Page 15056]]

construction for marine mammal species observed in the region of 
activity during the period of activity. All observers will be trained 
in marine mammal identification and behaviors and are required to have 
no other construction-related tasks while conducting monitoring. POA 
will monitor the shut-down zone and disturbance zones before, during, 
and after pile driving, with observers located at the best practicable 
vantage points.
    At all times, POA will be required to monitor the maximum predicted 
Level B zones, regardless of sound attenuation system used. Although 
the zones employed for shutdown purposes in association with driving of 
attenuated piles are calculated assuming a 10 dB reduction in sound 
pressure levels, any beluga whales observed in the larger monitoring 
zone will be recorded and reported as potential take, pending analysis 
of acoustic monitoring data.
    Based on our requirements, the Marine Mammal Monitoring Plan would 
implement the following procedures for pile driving:
     Four MMOs will work concurrently in rotating shifts to 
provide full coverage for marine mammal monitoring during in-water pile 
installation activities for the Test Pile Program. MMOs will work in 
four-person teams to increase the probability of detecting marine 
mammals and to confirm sightings. Three MMOs will scan the Level A and 
Level B harassment zones surrounding pile-driving activities for marine 
mammals by using big eye binoculars (25X), hand-held binoculars (7X), 
and the naked eye. One MMO will focus on the Level A harassment zone 
and two others will scan the Level B zone. Four MMOs will rotate 
through these three active positions every 30 minutes to reduce eye 
strain and increase observer alertness. The fourth MMO will record data 
on the computer, a less-strenuous activity that will provide the 
opportunity for some rest. A theodolite will also be available for use.
     In order to more effectively monitor the maximum potential 
Level B harassment zone associated with vibratory pile driving (i.e., 
4,000 m), personnel stationed on the hydroacoustic vessels will keep 
watch for marine mammals that may approach or enter that zone and will 
communicate all sightings to land-based MMOs and other appropriate 
shore staff.
     Before the Test Pile Program commences, MMOs and POA 
authorities will meet to determine the most appropriate observation 
platform(s) for monitoring during pile driving. Considerations will 
include:
    [cir] Height of the observation platform, to maximize field of view 
and distance
    [cir] Ability to see the shoreline, along which beluga whales 
commonly travel
    [cir] Safety of the MMOs, construction crews, and other people 
present at the POA
    [cir] Minimizing interference with POA activities
    Height and location of an observation platform are critical to 
ensuring that MMOs can adequately observe the harassment zone during 
pile installation. The platform should be mobile and able to be 
relocated to maintain maximal viewing conditions as the construction 
site shifts along the waterfront. Past monitoring efforts at the POA 
took place from a platform built on top of a cargo container or a 
platform raised by an industrial scissor lift. A similar shore-based, 
raised, mobile observation platform will likely be used for the Test 
Pile Program.
     POA will be required to monitor the maximum potential 
Level B harassment zones (1,400 and 4,000 m for impact and vibratory 
pile driving, respectively).
     MMOs will begin observing for marine mammals within the 
Level A and Level B harassment zones for 30 minutes before ``the soft 
start'' begins. If a marine mammal(s) is present within the relevant 
shut-down zone prior to the ``soft start'' or if marine mammal occurs 
during ``soft start'' pile driving will be delayed until the animal(s) 
leaves the shut-down zone. Pile driving will resume only after the MMOs 
have determined, through sighting or after 30 minutes with no sighting, 
that the animal(s) has moved outside the shut-down zone. After 30 
minutes, when the MMOs are certain that the shut-down zone is clear of 
marine mammals, they will authorize the soft start to begin.
     If a marine mammal other than a beluga whale is traveling 
along a trajectory that could take it into the maximum potential Level 
B harassment zone, the MMO will record the marine mammal(s) as a 
``take'' upon entering that zone. While the animal remains within the 
Level B harassment zone, that pile segment will be completed without 
cessation, unless the animal approaches the 100-meter shut-down zone, 
at which point the MMO will authorize the immediate shut-down of in-
water pile driving before the marine mammal enters the shut-down zone. 
Pile driving will resume only once the animal has left the shut-down 
zone on its own or has not been resighted for a period of 30 minutes.
     If waters exceed a sea-state which restricts the 
observers' ability to make observations within the relevant marine 
mammal shut-down zone (e.g. excessive wind or fog), pile installation 
will cease until conditions allow the resumption of monitoring.
     The waters will be scanned 30 minutes prior to commencing 
pile driving at the beginning of each day, and prior to commencing pile 
driving after any stoppage of 30 minutes or greater. If marine mammals 
enter or are observed within the designated marine mammal shutdown zone 
during or 30 minutes prior to pile driving, the monitors will notify 
the on-site construction manager to not begin until the animal has 
moved outside the designated radius.
     The waters will continue to be scanned for at least 30 
minutes after pile driving has completed each day.

Mitigation Conclusions

    NMFS has carefully evaluated the applicant's proposed mitigation 
measures and considered a range of other measures in the context of 
ensuring that NMFS prescribes the means of effecting the least 
practicable impact on the affected marine mammal species and stocks and 
their habitat. Our evaluation of potential measures included 
consideration of the following factors in relation to one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned
     The practicability of the measure for applicant 
implementation.
    Any mitigation measure(s) prescribed by NMFS should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    1. Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    2. A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to received 
levels of pile driving, or other activities expected to result in the 
take of marine mammals (this goal may contribute to 1, above, or to 
reducing harassment takes only).
    3. A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to received levels of pile driving, or other activities expected to 
result in the take of marine mammals

[[Page 15057]]

(this goal may contribute to 1, above, or to reducing harassment takes 
only).
    4. A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to received 
levels of pile driving, or other activities expected to result in the 
take of marine mammals (this goal may contribute to a, above, or to 
reducing the severity of harassment takes only).
    5. Avoidance or minimization of adverse effects to marine mammal 
habitat, paying special attention to the food base, activities that 
block or limit passage to or from biologically important areas, 
permanent destruction of habitat, or temporary destruction/disturbance 
of habitat during a biologically important time.
    6. For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, our determination is that 
the mitigation measures provide the means of effecting the least 
practicable impact on marine mammals 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 ITA 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 ITAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present in the proposed action area. 
POA submitted a marine mammal monitoring plan as part of the IHA 
application. It can be found at http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    1. An increase in the probability of detecting marine mammals, both 
within the mitigation zone (thus allowing for more effective 
implementation of the mitigation) and in general to generate more data 
to contribute to the analyses mentioned below;
    2. An increase in our understanding of how many marine mammals are 
likely to be exposed to levels of pile driving that we associate with 
specific adverse effects, such as behavioral harassment, TTS, or PTS;
    3. An increase in our understanding of how marine mammals respond 
to stimuli expected to result in take and how anticipated adverse 
effects on individuals (in different ways and to varying degrees) may 
impact the population, species, or stock (specifically through effects 
on annual rates of recruitment or survival) through any of the 
following methods:
    [ssquf] Behavioral observations in the presence of stimuli compared 
to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
    [ssquf] Physiological measurements in the presence of stimuli 
compared to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
    [ssquf] Distribution and/or abundance comparisons in times or areas 
with concentrated stimuli versus times or areas without stimuli;
    4. An increased knowledge of the affected species; and
    5. An increase in our understanding of the effectiveness of certain 
mitigation and monitoring measures.

Acoustic Monitoring

    The POA has developed an acoustic monitoring plan titled Anchorage 
Port Modernization Project Test Pile Program Draft Hydroacoustic 
Monitoring Framework. Specific details regarding the plan may be found 
at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm POA will 
conduct acoustic monitoring for impact pile driving to determine the 
actual distances to the 190 dB re 1[mu]Pa rms, 180 dB re 1[mu]Pa rms, 
and 160 dB re 1[mu]Pa rms isopleths, which are used by NMFS to define 
the Level A injury and Level B harassment zones for pinnipeds and 
cetaceans for impact pile driving. The POA will also measure background 
noise levels in the absence of pile driving activity and will conduct 
acoustic monitoring for vibratory pile driving to determine the actual 
distance to the point at which the signal becomes indistiuinguishable 
from background sound levels (assuming these are greater than 120 dB). 
Encapsulated bubble curtains and resonance-based attenuation systems 
will be tested during installation of some piles to determine their 
relative effectiveness at attenuating underwater noise.
    A typical daily sequence of operations for an acoustic monitoring 
day will include the following activities:
     Discussion of the day's pile-driving plans with the crew 
chief or appropriate contact and determination of setup locations for 
the fixed positions. Considerations include the piles to be driven and 
anticipated barge movements during the day.
     Calibration of hydrophones.
     Setup of the near (10-meter) system either on the barge or 
the existing dock.
     Deployment of an autonomous or cabled hydrophone at one of 
the distant locations.
     Recording pile driving operational conditions throughout 
the day.
     Upon conclusion of the day's pile driving, retrieve the 
remote systems, post- calibrate all the systems, and download all 
systems.
     A stationary hydrophone recording system used to determine 
SSLs will be suspended either from the pile driving barge or existing 
docks at approximately 10 meters from the pile being driven, for each 
pile driven. These data will be monitored in real-time.
     Prior to monitoring, a standard depth sounder will record 
depth before pile driving commences. The sounder will be turned off 
prior to pile driving to avoid interference with acoustic monitoring. 
Once the monitoring has been completed, the water depth will be 
recorded.
     A far range hydrophone will be located at a distance no 
less than 20 times the source water depth from the pile driving 
activity outside of the active shipping lanes/dredge area. If possible, 
this hydrophone should be moored using the same anchoring equipment and 
in the same location as was used for the background noise monitoring. 
In this situation, the hydrophone would be located between 500 and 
1,000 meters (1,640--3,280 feet) from the indicator test piles, which 
is sufficiently greater than 20 times the source water depth. This 
hydrophone will also be located in waters greater than 10 meters (33 
feet) deep and avoid areas of irregular bathymetry. The hydrophone will 
be placed within a few meters of the bottom in order to reduce flow 
noise avoid areas of irregular bathymetry. The hydrophone will be 
placed within a few meters of the bottom in order to reduce flow noise

Vessel-Based Hydrophones (One to Two Locations)

     An acoustic vessel with a single-channel hydrophone will 
be in the Knik Arm open water environment to monitor near-field and 
real-time

[[Page 15058]]

isopleths for marine mammals (Figure 13-1, Figure 13-4 in Application).
     Continuous measurements will be made using a sound level 
meter.
     One or two acoustic vessels are proposed to deploy 
hydrophones that will be used to collect data to estimate the distance 
to far-field sound levels (i.e., the 120-125-dB zone for vibratory and 
160-dB zone for impact driving).
     During the vessel-based recordings, the engine and any 
depth finders must be turned off. The vessel must be silent and 
drifting during spot recordings.
     Either a weighted tape measure or an electronic depth 
finder will be used to determine the depth of the water before 
measurement and upon completion of measurements. A GPS unit or range 
finder will be used to determine the distance of the measurement site 
to the piles being driven.
     Prior to and during the pile-driving activity, 
environmental data will be gathered, such as water depth and tidal 
level, wave height, and other factors, that could contribute to 
influencing the underwater sound levels (e.g., aircraft, boats, etc.). 
Start and stop time of each pile-driving event and the time at which 
the bubble curtain is turned on and off will be logged.
     The construction contractor will provide relevant 
information, in writing, to the hydroacoustic monitoring contractor for 
inclusion in the final monitoring report:

Data Collection

    MMOs will use approved data forms. Among other pieces of 
information, POA will record detailed information about any 
implementation of shut-downs, including the distance of animals to the 
pile and description of specific actions that ensued and resulting 
behavior of the animal, if any. In addition, POA will attempt to 
distinguish between the number of individual animals taken and the 
number of incidents of take. At a minimum, the following information 
would be collected on the sighting forms:
     Date and time that monitored activity begins or ends;
     Construction activities occurring during each observation 
period;
     Weather parameters (e.g., percent cover, visibility);
     Water conditions (e.g., sea state, tide state);
     Species, numbers, and, if possible, sex and age class of 
marine mammals;
     Description of any observable marine mammal behavior 
patterns, including bearing and direction of travel and distance from 
pile driving activity;
     Distance from pile driving activities to marine mammals 
and distance from the marine mammals to the observation point;
     Locations of all marine mammal observations; and
     Other human activity in the area.

Ambient Noise

    Ambient noise will be collected according to the NMFS' guidance 
memorandum issued on January 31, 2012, titled Data Collection Methods 
to Characterize Underwater Background Sound Relevant to Marine Mammals 
in Coastal Nearshore Waters and Rivers of Washington and Oregon (NMFS 
2012). This guidance is considered to be generally applicable for 
marine conditions and hydroacoustic monitoring in Alaska.

Reporting

    POA will notify NMFS prior to the initiation of the pile driving 
activities and will provide NMFS with a draft monitoring report within 
90 days of the conclusion of the proposed construction work or 60 days 
prior to the start of additional work covered under a subsequent IHA or 
Letter of Authorization. This report will detail the monitoring 
protocol, summarize the data recorded during monitoring, and estimate 
the number of marine mammals that may have been harassed. If no 
comments are received from NMFS within 30 days, the draft final report 
will constitute the final report. If comments are received, a final 
report must be submitted within 30 days after receipt of comments.

Estimated Take by Incidental Harassment

    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].''
    Given the many uncertainties in predicting the quantity and types 
of impacts of sound in every given situation on marine mammals, it is 
common practice to estimate how many animals are likely to be present 
within a particular distance of a given activity, or exposed to a 
particular level of sound, based on the available science. The method 
used for calculating potential exposures to impact and vibratory pile 
driving noise for each threshold was estimated using a habitat-based 
predictive density model (Goetz et al., 2012) and local marine mammal 
data sets.

Harbor Seal and Harbor Porpoise

    Estimated take for harbor seals and harbor porpoises was modified 
from the levels published in the Federal Register notice of proposed 
authorization. This change was based on discussion with the Marine 
Mammal Commission. NMFS had originally proposed 31 harbor seal takes 
and 37 harbor porpoise takes. The Commission felt that there was a 
strong likelihood that more harbor seals would be taken compared to 
harbor porpoises. NMFS had estimated that one animal of each species 
would be taken per day resulting in 31 per species. NMFS also added 6 
take for harbor porpoises as a contingency since these animals are 
known to travel in pods.
    NMFS acknowledges that takes for various species can be estimated 
through a variety of methodologies. NMFS re-calculated take for these 
two species. As a conservative measure, daily individual sighting rates 
for any recorded year were generally used to quantify take of harbor 
seals and harbor porpoises for pile driving associated with the Test 
Pile Program. Data was collected as part of the MTRP Scientific 
Monitoring program, which took place from 2008 through 2011 (Cornick et 
al. 2008. 2009, 2010, 2011).
    The following equation was used to estimate harbor seal and harbor 
porpoise exposures

Exposure estimate = (N) * # days of pile driving per site,

Where:

N = highest daily abundance estimate for each species in project 
area.

    For harbor porpoises there was only a single sighting of more than 
one animal so NMFS opted to use a daily abundance rate of one for a 
total authorized take of 31. For harbor seals there were several 
reports of two or more animals. Therefore, NMFS applied a daily 
abundance estimate of two for a total authorized take of 62.

Steller Sea Lion

    There were three sightings of a single Steller sea lion during 
construction at the POA in 2009, and it is not possible to determine 
whether it was one or more animals. Alaska marine waters, including 
Cook Inlet, are undergoing environmental changes that are correlated 
with changes in movements

[[Page 15059]]

of animals, including marine mammals, into expanded or contracted 
ranges. For example, harbor seals and harbor porpoises are increasing 
in numbers in Upper Cook Inlet. It is unknown at this time what the 
impacts of environmental change will be on Steller sea lion movements, 
but it is possible that Steller sea lions may be sighted more 
frequently in Upper Cook Inlet, which is generally considered outside 
their typical range. The Steller sea lions sightings at the POA in 2009 
indicate that this species can and does occur in Upper Cook Inlet. As 
such, NMFS proposed an encounter rate of 1 individual for every 5 pile 
driving days across 31 driving days in the proposed authorization 
published in the Federal Register. Furthermore, Steller sea lions are 
social animals and often travel in groups, and a single sighting could 
include more than one individual. Therefore, NMFS conservatively 
estimates that six Steller sea lions could to be observed at the POA 
during the proposed timeframe of the Test Pile Program.

Killer Whales

    No killer whales were sighted during previous monitoring programs 
for the Knik Arm Crossing and POA construction projects, based on a 
review of monitoring reports. The infrequent sightings of killer whales 
that are reported in upper Cook Inlet tend to occur when their primary 
prey (anadromous fish for resident killer whales and beluga whales for 
transient killer whales) are also in the area (Shelden et al. 2003).
    With in-water pile driving occurring for only about 27 hours over 
31 days, the potential for exposure within the Level B harassment 
isopleths is anticipated to be extremely low. Level B take is 
conservatively estimated at no more than 8 killer whales, or two small 
pods, for the duration of the Test Pile Program.

Cook Inlet Beluga Whale

    For beluga whales, aerial surveys of Cook Inlet were completed in 
June and July from 1994 through 2008 (Goetz et al. 2012). Data from 
these aerial surveys were used along with depth soundings, coastal 
substrate type, an environmental sensitivity index, an index of 
anthropogenic disturbance, and information on anadromous fish streams 
to develop a predictive beluga whale habitat model (Goetz et al. 2012)
    Three different beluga distribution maps were produced from the 
habitat model based on sightings of beluga whales during aerial 
surveys. First, the probability of beluga whale presence was mapped 
using a binomial (i.e., yes or no) distribution and the results ranged 
from 0.00 to 0.01. Second, the expected group size was mapped. Group 
size followed a Poisson distribution, which ranged from 1 to 232 
individuals in a group. Third, the product (i.e., multiplication) of 
these predictive models produced an expected density model, with beluga 
whale densities ranging from 0 to 1.12 beluga whales/km\2\. From this 
model Goetz et al. (2012) developed a raster GIS dataset, which 
provides a predicted density of beluga whales throughout Cook Inlet at 
a scale of one square kilometer. Habitat maps for beluga whale 
presence, group size, and density (beluga whales/km\2\) were produced 
from these data and resulting model, including a raster Geographic 
Information System data set, which provides a predicted density of 
beluga whales throughout Cook Inlet at a 1-km\2\-scale grid.
    The numbers of beluga whales potentially exposed to noise levels 
above the Level B harassment thresholds for impact (160 dB) and 
vibratory (125 dB) pile driving were estimated using the following 
formula:

Beluga Exposure Estimate = N * Area * number of days of pile driving,

Where:

N = maximum predicted # of belugas whales/km\2\
Area = Area of Isopleth (area in km\2\ within the 160-dB isopleth 
for impact pile driving, or area in km\2\ within the 125-dB isopleth 
for vibratory pile driving)

    The distances to the Level B harassment and Level A injury 
isopleths were used to estimate the areas of the Level B harassment and 
Level A injury zones associated with driving a 48-inch pile, without 
consideration of potential effectiveness of sound attenuation systems. 
Note that ambient noise is likely elevated in the area, and 125 dB is 
used as a proxy for the background sound level. Distances and areas 
were calculated for both vibratory and impact pile driving, and for 
cetaceans and pinnipeds. Geographic information system software was 
used to map the Level B harassment and Level A injury isopleths from 
each of the six indicator test pile locations. Land masses near the 
POA, including Cairn Point, the North Extension, and Port MacKenzie, 
act as barriers to underwater noise and prevent further spread of sound 
pressure waves. As such, the harassment zones for each threshold were 
truncated and modified with consideration of these impediments to sound 
transmission (See Figures 6-1 through 6-6 in the Application). The 
measured areas (Table 6) were then used in take calculations for beluga 
whales.

                                              Table 4--Areas of the Level A and Level B Harassment Zones *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Impact                                                     Vibratory
                                ------------------------------------------------------------------------------------------------------------------------
     Indicator teste piles        Pinniped,  Level A  Cetacean,  Level A        Level B       Pinniped,  Level A  Cetacean,  Level A  Pinniped,  Level B
                                ------------------------------------------------------------------------------------------------------------------------
                                        190 dB              180 dB              160 dB              190 dB              180 dB              125 dB
--------------------------------------------------------------------------------------------------------------------------------------------------------
Piles 3, 4.....................  <0.01 km\2\........  <0.01 km\2\.......  2.24 km\2\........  0 km\2\...........  0 km\2\...........  15.54 km\2\.
Pile 1                                                                    2.71 km\2\                                                  19.54 km\2\.
Pile 2                                                                    2.76 km\2\                                                  20.08 km\2\.
Piles 5, 6                                                                2.79 km\2\                                                  20.90 km\2\.
Pile 7                                                                    2.80 km\2\                                                  20.95 km\2\.
Piles 8, 9, 10                                                            3.03 km\2\                                                  22.14 km\2\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Based on the distances to sound isopleths for a 48-inch-diameter pile, assuming a 125-dB background noise level.

    The beluga whale exposure estimate was calculated for each of the 
six indicator test pile locations separately, because the area of each 
isopleth was different for each location. The predicted beluga whale 
density raster (Goetz et al. 2012) was overlaid with the isopleth areas 
for each of the indicator test pile locations. The maximum predicted 
beluga whale density within each area of isopleth was then used to 
calculate the beluga whale exposure

[[Page 15060]]

estimate for each of the indicator test pile locations. The maximum 
density values ranged from 0.031 to 0.063 beluga whale/km\2\ (Table 5).
    In the Federal Register Notice of proposed authorization, NMFS 
calculated an incorrect number of driving days at 43.5, which assumed 
that impact driving would occur on 12.5 days and vibratory could occur 
on 31 days. Impact and vibratory driving, however, will occur on a 
total of only 31 days. NMFS summed fractions of takes across days 
equaling a total of 19.245 takes which was rounded up to 20. NMFS also 
rounded the large group factor of 11.1 up to 12 resulting in a 
preliminary take estimate of 32 beluga whales. However, based on 
discussion with the Commission, NMFS revised the take estimates to 
reflect standard rounding practices (as typically used by NMFS in 
estimating potential marine mammal exposures to sound) to arrive at a 
number of whole animals likely to be exposed per day.
    In the revised take estimate, the area values were multiplied by 
the maximum predicted densities for both impact and vibratory driving 
as was done in the Federal Register Notice of proposed authorization. 
The impact driving takes per day values were all well below one (see 
Table 5). Employing standard rounding practices for this final IHA 
would result in zero takes from impact driving. However, we recognize 
that there is some non-zero probability of exposure of beluga whales 
due specifically to impact pile driving and, given that there are a 
total of 18.5 days of impact pile driving possible, we believe that a 
conservative estimate of 2 beluga takes during the days of impact 
driving is reasonable.
    Using standard rounding procedures, we estimate that there would be 
one beluga whale exposed per day of vibratory driving (see Table 4). 
When considering the projected number of days of vibratory pile driving 
including a 25 percent contingency for work delays (i.e., 12.5 total 
days of vibratory driving), we estimate 13 takes from vibratory 
driving. The takes from impact driving per pile were added to the takes 
per pile from vibratory driving resulting in an estimated 15 beluga 
whale takes. Results are shown in Table 5.

                                                    Table 5--Estimated Cook Inlet Beluga Whale Takes
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Impact      Takes per  day                     Vibratory    Takes per  day
                                                            Impact pile     driving max       impact      Vibratory pile    driving max      vibratory
                       Pile number                         driving area       density        driving/       driving area      density        driving/
                                                              (km\2\)     (whales/km\2\)   rounded takes      (km\2\)     (whales/km\2\)   rounded takes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pile 3..................................................            2.24           0.031          0.07/0           15.54           0.056          0.87/1
Pile 4..................................................            2.24           0.031          0.07/0           15.54           0.056          0.87/1
Pile 1..................................................            2.71           0.042          0.11/0           19.54           0.063          1.23/1
Pile 2..................................................            2.76           0.038          0.10/0           20.08           0.062          1.24/1
Pile 5..................................................            2.79           0.062          0.17/0            20.9           0.062          1.30/1
Pile 6..................................................            2.79           0.062          0.17/0            20.9           0.062          1.30/1
Pile 7..................................................             2.8           0.062          0.17/0           20.95           0.062          1.30/1
Pile 8..................................................            3.03           0.042          0.13/0           22.14           0.063          1.39/1
Pile 9..................................................            3.03           0.042          0.13/0           22.14           0.063          1.39/1
Pile 10.................................................            3.03           0.042          0.13/0           22.14           0.063          1.39/1
--------------------------------------------------------------------------------------------------------------------------------------------------------
              Total Rounded Takes (assume 18.5 days of impact pile driving)                            0    Total Rounded Takes (assume             12.5
                                                                                                            12.5 days of vibratory pile
                                                                                                                     driving)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Total Takes                                                   2 *        Total Rounded Takes                   13
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              Total Takes From Impact And Vibratory Driving                                                           15
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Note that takes per day from impact driving rounded down to zero. NFMS acknowledges the risk of take is greater than zero and as a contingency
  estimated two total takes from impact pile driving.

    The beluga density estimate used for estimating potential beluga 
exposures does not reflect the reality that beluga whales can travel in 
large groups. As a contingency that a large group of beluga whales 
could potentially occur in the project area, NMFS buffered the exposure 
estimate detailed in the preceding by adding the estimated size of a 
notional large group of beluga whales. Incorporation of large groups 
into the beluga whale exposure estimate is intended to reflect the 
possibility that whales could be exposed to behavioral harassment based 
on what is known about belugas' tendency to travel together in pods. A 
single large group has been added to the estimate of exposure for 
beluga whales based on the density method, in the anticipation that the 
entry of a large group of beluga whales into a Level B harassment zone 
would take place, at most, one time during the project. To determine 
the most appropriate size of a large group, two sets of data were 
examined: (1) Beluga whale sightings collected opportunistically by POA 
employees since 2008 and (2) Alaska Pacific University (APU) scientific 
monitoring that occurred from 2007 through 2011.
    The APU scientific monitoring data set documents 390 beluga whale 
sightings. Group size exhibits a mode of 1 and a median of 2, 
indicating that over half of the beluga groups observed over the 5-year 
span of the monitoring program were of individual beluga whales or 
groups of 2. As expected, the opportunistic sighting data from the POA 
do not reflect this preponderance of small groups. The POA 
opportunistic data do indicate, however, that large groups of belugas 
were regularly seen in the area over the past 7 years, and that group 
sizes ranged as high as 100 whales. Of the 131 sightings documented in 
the POA opportunistic data set, 48 groups were of 15 or more beluga 
whales.
    The 95th percentile of group size for the APU scientific monitoring 
data is 11.1 beluga whales, rounded down to 11 beluga whales. In the 
Federal Register Notice of proposed authorization, the value was 
erroneously rounded up to 12. This means that, of the 390 documented 
beluga whale groups in this data set, 95 percent consisted of fewer 
than 11.1 whales; 5 percent of the groups consisted of more than 11.1 
whales. Therefore, it is improbable that a group of more than 11 beluga 
whales

[[Page 15061]]

would occur during the Test Pile Program. This number balances reduced 
risk to the POA with protection of beluga whales. POA opportunistic 
observations indicate that many groups of greater than 11 beluga whales 
commonly transit through the project area. APU scientific monitoring 
data indicate that 5 percent of their documented groups consisted of 
greater than 11 beluga whales.
    The total number of estimated and authorized takes of Cook Inlet 
beluga whales is, therefore, 15 (13 vibratory/2 impact driving) using 
the density method plus 11 based on the large group adjustment, 
resulting in 26 total incidents of take. No Level A harassment is 
expected or authorized.
    Note that this take estimate and authorization is based on the 
maximum predicted zone of influence (i.e., 1,359 m and 3,981 m for 
impact and vibratory driving, respectively). This is a precautionary 
approach accounting for the possibility that the sound attenuation 
systems used may not always achieve effective attenuation of at least 
10 dB.

Analyses and Determinations

Negligible Impact Analysis

    Negligible impact is ``an impact resulting from the specified 
activity that cannot be reasonably expected to, and is not reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival'' (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 Level B harassment 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 behavioral harassment, 
NMFS must consider other factors, such as the likely nature of any 
responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, migration, etc.), as 
well as the number and nature of estimated Level A harassment takes, 
the number of estimated mortalities, effects on habitat, and the status 
of the species.
    To avoid repetition, the discussion of our analyses applies to all 
the species listed in Table 6, given that the anticipated effects of 
this pile driving project on marine mammals are expected to be 
relatively similar in nature. Except for beluga whales, where we 
provide additional discussion, there is no information about the size, 
status, or structure of any species or stock that would lead to a 
different analysis for this activity; otherwise species-specific 
factors would be identified and analyzed.
    Pile driving activities associated with the Test Pile Program, as 
outlined previously, have the potential to disturb or displace marine 
mammals. Specifically, the specified activities may result in take, in 
the form of Level B harassment (behavioral disturbance) only, from 
underwater sounds generated from pile driving. Harassment takes could 
occur if individuals of these species are present in the ensonified 
zone when pile driving is happening.
    No injury, serious injury, or mortality is anticipated given the 
nature of the activity and measures designed to minimize the 
possibility of injury to marine mammals. The potential for these 
outcomes is minimized through the implementation of the following 
planned mitigation measures. POA will employ a ``soft start'' when 
initiating driving activities. Given sufficient ``notice'' through use 
of soft start, marine mammals are expected to move away from a pile 
driving source. The likelihood of marine mammal detection ability by 
trained observers is high under the environmental conditions described 
for waters within a 1,000 meter distance of the project area. This 
enables reasonable certainty of the implementation of required shut-
downs to avoid potential injury of marine mammals other than beluga 
whales and to minimize potential harassment of beluga whales for the 
majority of driven piles. POA's proposed activities are localized and 
of relatively short duration. The total amount of time spent pile 
driving, including a 25% contingency, will be 27 hours over 
approximately 31 days.
    These localized and short-term noise exposures may cause brief 
startle reactions or short-term behavioral modification by the animals. 
These reactions and behavioral changes are expected to subside quickly 
when the exposures cease.
    The project is not expected to have significant adverse effects on 
affected marine mammals' habitat, as analyzed in detail in the 
``Anticipated Effects on Marine Mammal Habitat'' section. No important 
feeding and/or reproductive areas for marine mammals other than beluga 
whales are known to be near the proposed project area. Project-related 
activities may cause some fish to leave the area of disturbance, thus 
temporarily impacting marine mammals' foraging opportunities in a 
limited portion of the foraging range; but, because of the short 
duration of the activities and the relatively small area of the habitat 
that may be affected, the impacts to marine mammal habitat are not 
expected to cause significant or long-term negative consequences.
    Beluga whales have been observed transiting past the POA project by 
both scientific and opportunistic surveys. During the spring and summer 
when the Test Pile Program is scheduled, belugas are generally 
concentrated near warmer river mouths where prey availability is high 
and predator occurrence is low (Moore et al. 2000). Data on beluga 
whale sighting rates, grouping, behavior, and movement indicate that 
the POA is a relatively low-use area, occasionally visited by lone 
whales or small groups of whales. They are observed most often at low 
tide in the fall, peaking in late August to early September. Groups 
with calves have been observed to enter the POA area, but data do not 
suggest that the area is an important nursery area. Although POA 
scientific monitoring studies indicate that the area is not used 
frequently by many beluga whales, it is apparently used for foraging 
habitat by whales traveling between lower and upper Knik Arm, as 
individuals and groups of beluga whales have been observed passing 
through the area each year during monitoring efforts. Data collected 
annually during monitoring efforts demonstrated that few beluga whales 
were observed in July and early August; numbers of sightings increased 
in mid-August, with the highest numbers observed late August to mid-
September. In all years, beluga whales have been observed to enter the 
project footprint while construction activities were taking place, 
including pile driving and dredging. The most commonly observed 
behaviors were traveling, diving, and suspected feeding. No apparent 
behavioral changes or reactions to in-water construction activities 
were observed by either the construction or scientific observers 
(Cornick et al. 2011).
    Critical habitat for Beluga whales has been identified in the area. 
However, habitat in the immediate vicinity of the project has been 
excluded from critical habitat designation. Furthermore the project 
activities would not modify existing marine mammal habitat. NMFS 
concludes that both the short-term adverse effects and the long-term 
effects on beluga whale prey quantity and quality will be 
insignificant. The sound from pile driving may interfere with whale 
passage between lower and upper Knik Arm. However, POA is an 
industrialized area with significant noise from vessel traffic and 
beluga whales pass through the area unimpeded.

[[Page 15062]]

    Effects on individuals that are taken by Level B harassment, on the 
basis of reports in the literature as well as monitoring from other 
similar activities, will likely be limited to reactions such as 
increased swimming speeds, increased surfacing time, or decreased 
foraging (if such activity were occurring) (e.g., Thorson and Reyff, 
2006; Lerma, 2014). Most likely, individuals will 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 removal activities 
analyzed here are similar to, or less impactful than, numerous 
construction activities conducted in other similar locations, which 
have taken place with no reported injuries or mortality to marine 
mammals, and no known long-term adverse consequences from behavioral 
harassment. Repeated exposures of individuals to levels of sound that 
may cause Level B harassment here are unlikely to result in hearing 
impairment or to significantly disrupt foraging behavior. Thus, even 
repeated Level B harassment of some small subset of the species is 
unlikely to result in any significant realized decrease in fitness for 
the affected individuals, and thus would not result in any adverse 
impact to the stock as a whole. Impacts will be reduced to the least 
practicable level through use of mitigation measures described herein. 
Finally, if sound produced by project activities is sufficiently 
disturbing, animals are likely to simply avoid the project area while 
the activity is occurring.
    In summary, this negligible impact analysis is founded on the 
following factors for beluga whales: (1) The seasonal distribution and 
habitat use patterns of Cook Inlet beluga whales, which suggest that 
for much of the time only a small portion of the population would be in 
the vicinity of the Test Pile Program; (2) the lack of behavioral 
changes observed with previous construction activities; (3) the nominal 
impact on critical habitat; (4) the mitigation requirements, including 
shut-downs for one or more belugas; (4) the monitoring requirements 
described earlier in this document for all marine mammal species that 
will further reduce the amount and intensity of takes; and (5) 
monitoring results from previous activities that indicated low numbers 
of beluga whale sightings within the Level B disturbance exclusion 
zone.
    For marine mammals other than beluga whales the negligible impact 
analysis is based on the following: (1) The possibility of injury, 
serious injury, or mortality may reasonably be considered discountable; 
(2) the anticipated incidents of Level B harassment consist of, at 
worst, temporary modifications in behavior; (3) the absence of any 
significant habitat within the project area, including rookeries, 
significant haul-outs, or known areas or features of special 
significance for foraging or reproduction; (4) the anticipated efficacy 
of the proposed mitigation measures in reducing the effects of the 
specified activity. In combination, we believe that these factors, as 
well as the available body of evidence from other similar activities, 
demonstrate that the potential effects of the specified activity will 
have only short-term effects on individuals. The specified activity is 
not expected to impact annual rates of recruitment or survival and will 
therefore have a negligible impact on those species.
    Therefore, based on the analysis contained herein of the likely 
effects of the specified activity on marine mammals and their habitat, 
and taking into consideration the implementation of the proposed 
monitoring and mitigation measures, NMFS finds that the total marine 
mammal take from POA's Test Pile Program will have a negligible impact 
on the affected marine mammal species or stocks.

    Table 6--Authorized Level B Harassment Take Levels, DPS or Stock Abundance, and Percentage of Population
                                              Proposed To Be Taken
----------------------------------------------------------------------------------------------------------------
                                          Proposed Level
              DPS or stock                    B take       Abundance (DPS or stock)    Percentage of population
                                            harassment
----------------------------------------------------------------------------------------------------------------
Cook Inlet beluga whale.................              26  312 \a\...................  8.33
Killer whale............................               8  2,347 Resident \b\ 587      0.34 Resident \c\ 1.36
                                                           Transient.                  Transient.
Harbor porpoise.........................              31  31,046 \d\................  0.10.
Harbor seal.............................              62  27,836 \e\................  0.22.
Western DPS, Steller sea lion...........               6  49,497 \f\................  <0.01.
----------------------------------------------------------------------------------------------------------------
\a\ Abundance estimate for the Cook Inlet stock and DPS (Allen and Angliss, 2015; Shelden et al., 2015).
\b\ Abundance estimate for the Eastern North Pacific Alaska Resident stock; the estimate for the transient
  population is for the Gulf of Alaska, Aleutian Islands, and Bering Sea stock.
\c\ Assumes all individuals would be from the resident stock or the transient stock.
\d\ Abundance estimate for the Gulf of Alaska stock.
\e\ Abundance estimate for the Cook Inlet/Shelikof stock.
\f\ Abundance estimate for the Western U.S. Stock and western DPS.
Sources for population estimates other than Cook Inlet beluga whales: Allen and Angliss 2013, 2014, 2015.

Small Numbers Analysis

    Table 6 indicates the numbers of animals that could be exposed to 
received noise levels that could cause Level B behavioral harassment 
from work associated with the proposed Test Pile Program. The analyses 
provided represents between <0.01% to 8.33% of the populations of these 
stocks that could be affected by Level B behavioral harassment. These 
are small numbers of marine mammals relative to the sizes of the 
affected species and population stocks under consideration. 
Furthermore, it is possible that some beluga whale takes may represent 
a single individual that is counted repeatedly.
    Based on the methods used to estimate take, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, we find that small numbers of marine mammals will be taken 
relative to the populations of the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    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

[[Page 15063]]

hunting areas; (ii) Directly displacing subsistence users; or (iii) 
Placing physical barriers between the marine mammals and the 
subsistence hunters; and (2) That cannot be sufficiently mitigated by 
other measures to increase the availability of marine mammals to allow 
subsistence needs to be met.
    The proposed Test Pile Program will occur in or near a traditional 
subsistence hunting area and could affect the availability of marine 
mammals for subsistence uses. Harbor seals are the only species for 
which take is authorized that may be subject to limited boat-based 
subsistence hunting.
    POA communicated with representative Native subsistence users and 
Tribal members to develop a Plan of Cooperation, which identifies what 
measures have been taken or will be taken to minimize any adverse 
effects of the Test Pile Program on the availability of marine mammals 
for subsistence uses. On December 22, 2015, POA sent letters to eight 
tribes including the the Kenaitze, Tyonek, Knik, Eklutna, Ninilchik, 
Seldovia, Salamatoff, and Chickaloon tribes informing them of the 
project and identifying potential impacts to marine mammals as well as 
planned mitigation efforts. POA also inquired about any possible marine 
mammal subsistence concerns they might have. None of the tribes 
indicated that they had any concerns with the proposed Test Pile 
Program.
    Since all project activities will take place within the immediate 
vicinity of the POA, the project will not have an adverse impact on the 
availability of marine mammals for subsistence use at distant 
locations. Due to mitigation and monitoring requirements, no 
displacement of marine mammals from traditional hunting areas or 
changes to availability of subsistence resources will result from Test 
Pile Program activities. Given the combination of the Test Pile Program 
location, small size of the affected area, and required mitigation and 
monitoring measures NMFS has determined that there will not be an 
unmitigable adverse impact on subsistence uses from POA's proposed 
activities.

Endangered Species Act (ESA)

    The Cook Inlet beluga whale and western depleted population segment 
of Steller sea lion are mammal species listed as endangered under the 
ESA with confirmed or possible occurrence in the study area. NMFS' 
Permits and Conservation Division has completed a formal consultation 
with NMFS' Protected Resources Division under section 7 of the ESA on 
the issuance of an IHA to POA under section 101(a)(5)(D) of the MMPA 
for this activity. A Biological Opinion was issued on March 2, 2016 and 
is posted at http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. NMFS determined that while the proposed action may 
affect Cook Inlet beluga whales and wDPS Steller sea lions, it is not 
likely to jeopardize the continued existence of those species or 
adversely modify any designated critical habitat.

National Environmental Policy Act (NEPA)

    NMFS drafted a document titled Environmental Assessment for 
Issuance of an Incidental Harassment Authorization to the Port of 
Alaska for the Take of Marine Mammals Incidental to a Test Pile Program 
and Finding of No Significant Impact (FONSI). The FONSI was signed on 
March 2, 2016. The EA/FONSI is posted at http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.

Authorization

    As a result of these determinations, we have issued an IHA to POA 
for conducting the Test Pile Program in Anchorage, AK from April 1, 
2016 through March 31, 2017 through provided the previously described 
mitigation, monitoring, and reporting requirements are incorporated.

    Dated: March 9, 2016.
Perry Gayaldo,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2016-06251 Filed 3-18-16; 8:45 am]
 BILLING CODE 3510-22-P