[Federal Register Volume 84, Number 43 (Tuesday, March 5, 2019)]
[Notices]
[Pages 7880-7890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03930]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG799


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to City of Juneau Waterfront 
Improvement Project

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

[[Page 7881]]


ACTION: Proposed incidental harassment authorization (IHA); request for 
comments.

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

DATES: Comments and information must be received no later than April 4, 
2019.

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

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

SUPPLEMENTARY INFORMATION: 

Background

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

National Environmental Policy Act

    Issuance of an authorization under section 101(a)(5)(D) of the MMPA 
requires compliance with the National Environmental Policy Act (NEPA).
    NMFS preliminarily determined the issuance of the proposed IHA is 
consistent with categories of activities identified in CE B4 (issuance 
of incidental harassment authorizations under section 101(a)(5)(A) and 
(D) of the MMPA for which no serious injury or mortality is 
anticipated) of NOAA's Companion Manual for NAO 216-6A, and we have not 
identified any extraordinary circumstances listed in Chapter 4 of the 
Companion Manual for NAO 216-6A that would preclude this categorical 
exclusion under NEPA.
    We will review all comments submitted in response to this notice 
prior to making a final decision as to whether application of this CE 
is appropriate in this circumstance.

Summary of Request

    On October 25, 2018, City and Borough of Juneau (CBJ) submitted a 
request to NMFS requesting an IHA for the possible harassment of small 
numbers of harbor seals incidental to the City of Juneau Dock and 
Harbor waterfront improvement project in Juneau, Alaska, from June 15, 
2019 to June 14, 2020. After receiving the revised project description 
and the revised IHA application, NMFS determined that the IHA 
application is adequate and complete on January 30, 2019. NMFS is 
proposing to authorize the take by Level B harassment of harbor seal 
(Phoca vitulina). Neither the City of Juneau nor NMFS expect mortality 
or serious injury to result from this activity and, therefore, an IHA 
is appropriate.

Description of Proposed Activity

Overview

    The purpose of the CBJ's project is to improve the downtown 
waterfront area within Gastineau Channel in Juneau, Alaska, to 
accommodate the needs of the growing cruise ship visitor industry and 
its passengers while creating a waterfront that meets the expectations 
of a world-class facility. The project would meet the needs of an 
expanding cruise ship industry and its passengers by creating ample 
open space thereby decreasing congestion and improving pedestrian 
circulation.

Dates and Duration

    Construction of the CBJ waterfront improvements project is planned 
to occur between May 15, 2019 and August 31, 2020. CBJ is requesting an 
IHA for one year with an effective date of June 15, 2019 as in-water 
work will not proceed until June 15 or later and it is anticipated all 
in-water work will be completed prior to June 15, 2020.

Specified Geographic Region

    The project area is at downtown waterfront within the Gastineau 
Channel in Juneau, Alaska (Figure 1 of the IHA application). The 
channel separates Juneau on the mainland side from Douglas (now part of 
Juneau), on Douglas Island. The channel is navigable by large ships, 
only from the southeast, as far as the Douglas Bridge, which is 
approximately 0.5 mile north of the project area. The channel north of 
the bridge is navigable by smaller craft and only at high tide. The 
channel at the project area is approximately 0.7 mile

[[Page 7882]]

wide. It is located within Section 23, Township 41 South, Range 67 East 
of the Copper River Meridian.

Detailed Description of the CBJ Waterfront Improvement Project

    The proposed CBJ waterfront improvements project would construct a 
pile supported deck along the waterfront to meet the needs of an 
expanding cruise ship industry and its passengers by creating ample 
open space thereby decreasing congestion and improving pedestrian 
circulation. Specifically, the in-water construction portions of the 
improvement project include:
    [ssquf] Demolition of existing timber deck structures, including 
removal of creosote treated timber piles;
    [ssquf] Installation of (42) 16-inch (41-cm), (45) 18-inch (46-cm) 
and (40) 24-inch (61-cm) steel pipe piles for:
    [ssquf] Steel pile supported structural timber deck over open 
space;
    [ssquf] Steel pile supported structural timber deck with a ramp 
adjacent to the existing parking garage;
    [ssquf] Steel pile supported structural timber deck with concrete 
overlay for transportation staging area;
    [ssquf] Steel pile supported cast in place concrete retaining wall 
for connection to shore and erosion protection; and
    [ssquf] Installation and removal of (87) 18-inch (46-cm) or smaller 
temporary template piles.
    A list of pile driving and removal activities is provided in Table 
1. The total number of days that involve in-water pile driving is 
estimated to be 82 days.

                              Table 1--Summary of In-Water Pile Driving Activities
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                                                                                        Pile driving/
                                                                                           removal
                                                                                          duration
                Method                    Pile type and size      Total #    # piles/    (sec.) per    Work days
                                                                   piles       day      pile (vib) or
                                                                                         strikes per
                                                                                        pile (impact)
----------------------------------------------------------------------------------------------------------------
Vibratory pile removal...............  Timber piles, unknown           100         10             900         10
                                        diameter but assumed to
                                        be no more than 14''.
Vibratory piling for supported dock..  Steel piles, 16''.......       * 42          5            5400          9
Impact proofing for supported dock...  Steel piles, 16''.......       * 42          5             150          9
Vibratory piling for supported dock..  Steel piles, 18''.......       * 45          5            5400          9
Impact proofing for supported dock...  Steel piles, 18''.......       * 45          5             150          9
Vibratory piling for temporary piles.  Steel piles, 18''.......         87          5            5400         18
Vibratory pile removal for temporary   Steel piles, 18''.......         87          5             900         18
 piles.
                                                                ------------------------------------------------
    Total............................  ........................        274  .........  ..............         82
----------------------------------------------------------------------------------------------------------------
* Vibratory driving and impact proofing will occur on separate days.

    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see ``Proposed 
Mitigation'' and ``Proposed Monitoring and Reporting'').

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS's Stock Assessment Reports (SAR; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments).
    Table 2 lists all species with expected potential for occurrence in 
the Southeast Alaskan waters and summarizes information related to the 
population or stock, including regulatory status under the MMPA and ESA 
and potential biological removal (PBR), where known. For taxonomy, we 
follow Committee on Taxonomy (2018). PBR is defined by the MMPA as the 
maximum number of animals, not including natural mortalities, that may 
be removed from a marine mammal stock while allowing that stock to 
reach or maintain its optimum sustainable population (as described in 
NMFS's SARs). While no mortality is anticipated or authorized here, PBR 
and annual serious injury and mortality from anthropogenic sources are 
included here as gross indicators of the status of the species and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's U.S. Alaska Marine Mammal SARs (Carretta et al., 2017). All 
values presented in Table 2 are the most recent available at the time 
of publication and are available in the 2017 SARs (Muto et al., 2018); 
and draft 2018 SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

                                    Table 2--Marine Mammals With Potential Presence Within the Proposed Project Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/MMPA status;    Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenopteridae
Humpback whale......................  Megaptera novaneagliae.  Central North Pacific..  E/D; Y              10,103 (0.300, 7,890).         82        8.5
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 7883]]

 
                                                                   Family Delphinidae
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Killer whale........................  Orcinus orca...........  Eastern N. Pacific       N                   261 (NA, 261).........       1.96          0
                                                                Northern resident.      N                   2,347 (NA, 2,347).....         24          1
                                                               Eastern N. Pacific
                                                                Alaska Resident.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals)
Harbor seal.........................  Phoca vitulina.........  Lynn Canal/Stephens      N                   9,478 (NA, 8,605).....        155          0
                                                                Passage.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.

    All species that could potentially occur in the proposed survey 
areas are included in Table 2. However, the presence of humpback whale 
and killer whale are extremely rare, and the implementation of 
monitoring and mitigation measures are such that take is not expected 
to occur, and they are not discussed further beyond the explanation 
provided here. Although these two species have been sighted within the 
Gastineau Channel near the vicinity of the project area, CBJ proposes 
to implement strict monitoring and mitigation measures and implement 
shutdown to prevent any takes of these two species. Thus, the take of 
this marine mammal stock can be avoided, as their occurrence would be 
considered unlikely and mitigation and monitoring is expected to 
prevent take should they occur (see details in Proposed Mitigation 
section).

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2016) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. The functional groups and 
the associated frequencies are indicated below (note that these 
frequency ranges correspond to the range for the composite group, with 
the entire range not necessarily reflecting the capabilities of every 
species within that group):
     Low-frequency cetaceans (mysticetes): Generalized hearing 
is estimated to occur between approximately 7 hertz (Hz) and 35 
kilohertz (kHz);
     Mid-frequency cetaceans (larger toothed whales, beaked 
whales, and most delphinids): Generalized hearing is estimated to occur 
between approximately 150 Hz and 160 kHz;
     High-frequency cetaceans (porpoises, river dolphins, and 
members of the genera Kogia and Cephalorhynchus; including two members 
of the genus Lagenorhynchus, on the basis of recent echolocation data 
and genetic data): Generalized hearing is estimated to occur between 
approximately 275 Hz and 160 kHz;
     Pinnipeds in water; Phocidae (true seals): Generalized 
hearing is estimated to occur between approximately 50 Hz to 86 kHz; 
and
     Pinnipeds in water; Otariidae (eared seals): Generalized 
hearing is estimated to occur between 60 Hz and 39 kHz.
    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth et al., 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Three marine mammal species (two cetacean and one pinniped (i.e., 
harbor seal) species) have the reasonable potential to co-occur with 
the proposed construction activity. Please refer to Table 2. Of the 
cetacean species that may be present, one species is classified as low-
frequency cetaceans (i.e., humpback whale) and one is classified as 
mid-frequency cetacean (i.e., killer whale). However, as mentioned 
earlier, monitoring and mitigation measures will be implemented to 
avoid the take of these cetacean species.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The ``Estimated Take by Incidental Harassment'' section 
later in this document will include a quantitative analysis of the 
number of individuals that are expected to be taken by this activity. 
The ``Negligible Impact Analysis and Determination'' section will 
consider the content of this section, the ``Estimated Take by 
Incidental Harassment'' section, and the ``Proposed

[[Page 7884]]

Mitigation'' section, to draw conclusions regarding the likely impacts 
of these activities on the reproductive success or survivorship of 
individuals and how those impacts on individuals are likely to impact 
marine mammal species or stocks.
    Potential impacts to marine mammals from the proposed CBJ 
waterfront improvement project are from noise generated during in-water 
pile driving and pile removal activities.

Acoustic Effects

    Here, we first provide background information on marine mammal 
hearing before discussing the potential effects of the use of active 
acoustic sources on marine mammals.
    The CBJ's waterfront improvement project using in-water pile 
driving and pile removal could adversely affect marine mammal species 
and stocks by exposing them to elevated noise levels in the vicinity of 
the activity area.
    Exposure to high intensity sound for a sufficient duration may 
result in auditory effects such as a noise-induced threshold shift 
(TS)--an increase in the auditory threshold after exposure to noise 
(Finneran et al., 2005). Factors that influence the amount of threshold 
shift include the amplitude, duration, frequency content, temporal 
pattern, and energy distribution of noise exposure. The magnitude of 
hearing threshold shift normally decreases over time following 
cessation of the noise exposure. The amount of TS just after exposure 
is the initial TS. If the TS eventually returns to zero (i.e., the 
threshold returns to the pre-exposure value), it is a temporary 
threshold shift (TTS) (Southall et al., 2007).
    Threshold Shift (noise-induced loss of hearing)--When animals 
exhibit reduced hearing sensitivity (i.e., sounds must be louder for an 
animal to detect them) following exposure to an intense sound or sound 
for long duration, it is referred to as a noise-induced TS. An animal 
can experience TTS or permanent threshold shift (PTS). TTS can last 
from minutes or hours to days (i.e., there is complete recovery), can 
occur in specific frequency ranges (i.e., an animal might only have a 
temporary loss of hearing sensitivity between the frequencies of 1 and 
10 kHz), and can be of varying amounts (for example, an animal's 
hearing sensitivity might be reduced initially by only 6 dB or reduced 
by 30 dB). PTS is permanent, but some recovery is possible. PTS can 
also occur in a specific frequency range and amount as mentioned above 
for TTS.
    For marine mammals, published data are limited to the captive 
bottlenose dolphin, beluga, harbor porpoise, and Yangtze finless 
porpoise (Finneran, 2015). For pinnipeds in water, data are limited to 
measurements of TTS in harbor seals, an elephant seal, and California 
sea lions (Kastak et al., 1999, 2005; Kastelein et al., 2012b).
    Lucke et al. (2009) found a TS of a harbor porpoise after exposing 
it to airgun noise with a received sound pressure level (SPL) at 200.2 
dB (peak-to-peak) re: 1 Micropascal ([mu]Pa), which corresponds to a 
sound exposure level of 164.5 dB re: 1 [mu]Pa\2\ s after integrating 
exposure. Because the airgun noise is a broadband impulse, one cannot 
directly determine the equivalent of root mean square (rms) SPL from 
the reported peak-to-peak SPLs. However, applying a conservative 
conversion factor of 16 dB for broadband signals from seismic surveys 
(McCauley, et al., 2000) to correct for the difference between peak-to-
peak levels reported in Lucke et al. (2009) and rms SPLs, the rms SPL 
for TTS would be approximately 184 dB re: 1 [mu]Pa, and the received 
levels associated with PTS (Level A harassment) would be higher. 
Therefore, based on these studies, NMFS recognizes that TTS of harbor 
porpoises is lower than other cetacean species empirically tested 
(Finneran & Schlundt, 2010; Finneran et al., 2002; Kastelein and 
Jennings, 2012).
    Marine mammal hearing plays a critical role in communication with 
conspecifics, and interpretation of environmental cues for purposes 
such as predator avoidance and prey capture. Depending on the degree 
(elevation of threshold in dB), duration (i.e., recovery time), and 
frequency range of TTS, and the context in which it is experienced, TTS 
can have effects on marine mammals ranging from discountable to serious 
(similar to those discussed in auditory masking, below). For example, a 
marine mammal may be able to readily compensate for a brief, relatively 
small amount of TTS in a non-critical frequency range that occurs 
during a time where ambient noise is lower and there are not as many 
competing sounds present. Alternatively, a larger amount and longer 
duration of TTS sustained during time when communication is critical 
for successful mother/calf interactions could have more serious 
impacts. Also, depending on the degree and frequency range, the effects 
of PTS on an animal could range in severity, although it is considered 
generally more serious because it is a permanent condition. Of note, 
reduced hearing sensitivity as a simple function of aging has been 
observed in marine mammals, as well as humans and other taxa (Southall 
et al., 2007), so one can infer that strategies exist for coping with 
this condition to some degree, though likely not without cost.
    In addition, chronic exposure to excessive, though not high-
intensity, noise could cause masking at particular frequencies for 
marine mammals, which utilize sound for vital biological functions 
(Clark et al., 2009). Acoustic masking is when other noises such as 
from human sources interfere with animal detection of acoustic signals 
such as communication calls, echolocation sounds, and environmental 
sounds important to marine mammals. Therefore, under certain 
circumstances, marine mammals whose acoustical sensors or environment 
are being severely masked could also be impaired from maximizing their 
performance fitness in survival and reproduction.
    Masking occurs at the frequency band that the animals utilize. 
Therefore, since noise generated from vibratory pile driving is mostly 
concentrated at low frequency ranges, it may have less effect on high 
frequency echolocation sounds by odontocetes (toothed whales). However, 
lower frequency man-made noises are more likely to affect detection of 
communication calls and other potentially important natural sounds such 
as surf and prey noise. It may also affect communication signals when 
they occur near the noise band and thus reduce the communication space 
of animals (e.g., Clark et al., 2009) and cause increased stress levels 
(e.g., Foote et al., 2004; Holt et al., 2009).
    Unlike TS, masking, which can occur over large temporal and spatial 
scales, can potentially affect the species at population, community, or 
even ecosystem levels, as well as individual levels. Masking affects 
both senders and receivers of the signals and could have long-term 
chronic effects on marine mammal species and populations. Recent 
science suggests that low frequency ambient sound levels have increased 
by as much as 20 dB (more than three times in terms of SPL) in the 
world's ocean from pre-industrial periods, and most of these increases 
are from distant shipping (Hildebrand, 2009). For CBJ's waterfront 
improvement project, noises from vibratory pile driving and pile 
removal contribute to the elevated ambient noise levels in the project 
area, thus increasing potential for or severity of masking. Baseline 
ambient noise levels in the vicinity of project area are high due to 
ongoing shipping, construction and other activities in the coastal 
waters of Juneau.
    Finally, marine mammals' exposure to certain sounds could lead to 
behavioral disturbance (Richardson et al., 1995),

[[Page 7885]]

such as changing durations of surfacing and dives, number of blows per 
surfacing, or moving direction and/or speed; reduced/increased vocal 
activities; changing/cessation of certain behavioral activities (such 
as socializing or feeding); visible startle response or aggressive 
behavior (such as tail/fluke slapping or jaw clapping); avoidance of 
areas where noise sources are located; and/or flight responses (e.g., 
pinnipeds flushing into water from haulouts or rookeries).
    The onset of behavioral disturbance from anthropogenic noise 
depends on both external factors (characteristics of noise sources and 
their paths) and the receiving animals (hearing, motivation, 
experience, demography) and is also difficult to predict (Southall et 
al., 2007). Currently NMFS uses a received level of 160 dB re 1 [mu]Pa 
(rms) to predict the onset of behavioral harassment from impulse noises 
(such as impact pile driving), and 120 dB re 1 [mu]Pa (rms) for 
continuous noises (such as vibratory pile driving). For the CBJ's 
waterfront improvement project, both 120-dB and 160-dB levels are 
considered for effects analysis because CBJ plans to use both impact 
pile driving and vibratory pile driving and pile removal.
    The biological significance of many of these behavioral 
disturbances is difficult to predict, especially if the detected 
disturbances appear minor. However, the consequences of behavioral 
modification could be biologically significant if the change affects 
growth, survival, and/or reproduction, which depends on the severity, 
duration, and context of the effects.

Potential Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammal habitat are 
associated with elevated sound levels produced by vibratory pile 
removal and pile driving in the area. However, other potential impacts 
to the surrounding habitat from physical disturbance are also possible.
    With regard to fish as a prey source for cetaceans and pinnipeds, 
fish are known to hear and react to sounds and to use sound to 
communicate (Tavolga et al., 1981) and possibly avoid predators (Wilson 
and Dill, 2002). Experiments have shown that fish can sense both the 
strength and direction of sound (Hawkins, 1981). Primary factors 
determining whether a fish can sense a sound signal, and potentially 
react to it, are the frequency of the signal and the strength of the 
signal in relation to the natural background noise level.
    The level of sound at which a fish will react or alter its behavior 
is usually well above the detection level. Fish have been found to 
react to sounds when the sound level increased to about 20 dB above the 
detection level of 120 dB (Ona, 1988); however, the response threshold 
can depend on the time of year and the fish's physiological condition 
(Engas et al., 1993). In general, fish react more strongly to pulses of 
sound (such as noise from impact pile driving) rather than continuous 
signals (such as noise from vibratory pile driving) (Blaxter et al., 
1981), and a quicker alarm response is elicited when the sound signal 
intensity rises rapidly compared to sound rising more slowly to the 
same level.
    During the coastal construction, only a small fraction of the 
available habitat would be ensonified at any given time. Disturbance to 
fish species would be short-term and fish would return to their pre-
disturbance behavior once the pile driving activity ceases. Thus, the 
proposed construction would have little, if any, impact on marine 
mammals' prey availability in the area where construction work is 
planned.
    Finally, the Gastineau Channel in front of downtown Juneau is not 
considered a feeding area of marine mammals.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform both NMFS' consideration 
of whether the number of takes is ``small'' and the negligible impact 
determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes would be by Level B harassment only, in the form 
of disruption of behavioral patterns for individual marine mammals 
resulting from exposure to noise generated from vibratory pile driving 
and removal. Based on the nature of the activity and the anticipated 
effectiveness of the mitigation measures (i.e., shutdown measures--
discussed in detail below in Proposed Mitigation section), Level A 
harassment is neither anticipated nor proposed to be authorized.
    As described previously, no mortality is anticipated or authorized 
for this activity. Below we describe how the take is estimated.
    Described in the most basic way, we estimate take by considering: 
(1) Acoustic thresholds above which NMFS believes the best available 
science indicates marine mammals will be behaviorally harassed or incur 
some degree of permanent hearing impairment; (2) the area or volume of 
water that will be ensonified above these levels in a day; (3) the 
density or occurrence of marine mammals within these ensonified areas; 
and, (4) and the number of days of activities. Below, we describe these 
components in more detail and present the take estimate.

Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic 
thresholds that identify the received level of underwater sound above 
which exposed marine mammals would be reasonably expected to be 
behaviorally harassed (equated to Level B harassment) or to incur PTS 
of some degree (equated to Level A harassment).
    Level B Harassment for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2012). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals are 
likely to be behaviorally harassed in a manner we consider Level B 
harassment when exposed to underwater anthropogenic noise above 
received levels of 120 dB re 1 [mu]Pa (rms) for continuous (e.g. 
vibratory pile-driving, drilling) and above 160 dB re 1 [mu]Pa (rms) 
for non-explosive impulsive (e.g., seismic airguns) or intermittent 
(e.g., scientific sonar) sources.
    Applicant's proposed activity includes the generation of impulse 
(impact pile driving) and continuous (vibratory pile driving and 
removal) sources; and, therefore, both 160- and 120-dB re 1 [mu]Pa 
(rms) are used.
    Level A harassment for non-explosive sources--NMFS' Technical 
Guidance

[[Page 7886]]

for Assessing the Effects of Anthropogenic Sound on Marine Mammal 
Hearing (Technical Guidance, 2016 and 2018) identifies dual criteria to 
assess auditory injury (Level A harassment) to five different marine 
mammal groups (based on hearing sensitivity) as a result of exposure to 
noise from two different types of sources (impulsive or non-impulsive). 
Applicant's proposed activity would generate and non-impulsive 
(vibratory pile driving and pile removal) noises. These thresholds were 
developed by compiling and synthesizing the best available science and 
soliciting input multiple times from both the public and peer reviewers 
to inform the final product and are provided in the table below. The 
references, analysis, and methodology used in the development of the 
thresholds are described in NMFS 2018 Technical Guidance, which may be 
accessed at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

                 Table 3--Current Acoustic Exposure Criteria for Non-Explosive Sound Underwater
----------------------------------------------------------------------------------------------------------------
                                                PTS onset thresholds                   Behavioral thresholds
           Hearing group           -----------------------------------------------------------------------------
                                          Impulsive            Non-impulsive         Impulsive     Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans......  Lpk,flat: 219 dB       LE,LF,24h: 199 dB....
                                     LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans......  Lpk,flat: 230 dB       LE,MF,24h: 198 dB....
                                     LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.....  Lpk,flat: 202 dB       LE,HF,24h: 173 dB....  Lrms,flat: 160  Lrms,flat: 120
                                     LE,HF,24h: 155 dB.                                       dB              dB
Phocid Pinnipeds (PW) (Underwater)  Lpk,flat: 218 dB       LE,PW,24h: 201 dB....
                                     LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW)              Lpk,flat: 232 dB       LE,OW,24h: 219 dB....
 (Underwater).                       LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has
  a reference value of 1[mu]Pa2s. In this Table, thresholds are abbreviated to reflect American National
  Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating
  frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ``flat'' is
  being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized
  hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the
  designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and
  that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be
  exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it
  is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
  exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into identifying the area ensonified above the 
acoustic thresholds.
Source Levels
    Source levels for vibratory driving and removal of 16-in and 18-in 
steel piles are based on measurement of vibratory pile removal of 18-in 
steel piles at Kake, Alaska (Denes et al., 2016). The measured SPLrms 
at 7 m was 156.2 dB re 1 [micro]Pa, and is normalized to 153.9 dB re 1 
[micro]Pa at 10 m.
    Source levels for impact pile driving of 16-in and 18-in steel 
piles are based on JASCO's pile driving review for a 24-in steel pile 
(Yurk et al., 2015). The values are 175 dB re 1 [micro]Pa\2\-s, 190 dB 
re 1 [micro]Pa, and 205 dB re 1 [micro]Pa for single strike SEL, 
SPLrms, and SPLpk, respectively.
    Source level for vibratory timber pile removal is based on 
measurements of vibratory pile removal at Port Townsend, Washington 
(WSDOT, 2011). The measured level was 150 dB re 1 [micro]Pa at 52 ft, 
and is corrected to 153 dB re 1 [micro]Pa at 10 m.
    A summary of the source levels are provided in Table 4.

                  Table 4--Summary of In-Water Pile Driving Source Levels (at 10 m From Source)
----------------------------------------------------------------------------------------------------------------
                                                                                                       SPLpk, dB
                 Method                      Pile type/size (inch)     SEL, dB re 1    SPLrms, dB re     re 1
                                                                      [micro]Pa\2\-s    1 [micro]Pa    [micro]Pa
----------------------------------------------------------------------------------------------------------------
Vibratory driving/removal...............  Steel, 16- and 18-in......           153.9           153.9
Vibratory removal.......................  Timber....................             153             153
Impact pile driving (proof).............  Steel, 16- and 18-in......             175             190         205
----------------------------------------------------------------------------------------------------------------

    These source levels are used to compute the Level A harassment 
zones and to estimate the Level B harassment zones. For Level A 
harassment zones, since the peak source levels for both pile driving 
are below the injury thresholds, cumulative SEL were used to do the 
calculations using the NMFS acoustic guidance (NMFS 2018).

Estimating Harassment Zones

    The Level B harassment ensonified areas for vibratory removal of 
timber piles are based on the above source level of 153 
dBrms re 1 [micro]Pa at 10 m, applying practical spreading 
loss of 15*log(R) for transmission loss calculation. The derived 
distance to the 120-dB Level B zone is 1,585 m.
    For Level B harassment ensonified areas for vibratory pile driving 
and removal of the 16-in and 18-in steel piles, the distance is based 
on source level of 153.9 dB re 1 [micro]Pa at 10 m, applying practical 
spreading loss of 15*log(R) for transmission loss calculation. The 
derived distance to the 120-dB zone is 1,820 m.
    For Level B harassment ensonified areas for impact proofing of 16-
in and 18-in steel piles, the distance is based on source level of 190 
dB re 1 [micro]Pa at 10 m, applying practical spreading loss of 
15*log(R) for transmission loss

[[Page 7887]]

calculation. The derived distance to the 160-dB zone is 1,000 m.
    For Level A harassment, calculation is based on pile driving 
duration of each pile and the number of piles installed or removed per 
day, using NMFS optional spreadsheet.
    The modeled distances to Level A and Level B harassment zones for 
various marine mammals are provided in Table 5. As discussed above, the 
only marine mammal that could occur in the vicinity of the project area 
is the harbor seal (phocid), and, on rare occasions, humpback and 
killer whales (mid-frequency cetacean). The inclusion of other marine 
mammal hearing groups in Table 5 is for information purposes.

                                                     Table 5--Modeled Distances to Harassment Zones
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Injury distance (m)
          Pile type, size & pile driving method          --------------------------------------------------------------------------------   Level B ZOI
                                                            LF cetacean     MF cetacean     HF cetacean       Phocid          Otariid           (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory drive 16- & 18-in pile (5400 s/pile, 5 piles/              8.8             0.8              13             5.3             0.4            1820
 day)...................................................
Vibratory removal 16- & 18-in temporary pile (900 s/                 2.7             0.2             3.9             1.6             0.1            1820
 pile, 5 piles/day).....................................
Vibratory removal timber pile (900 s/pile, 10 piles/day)             3.7             0.3             5.4             2.2             0.2            1585
Impact proof of 16- & 18-in pile (150 strikes/pile, 5              241.4             8.6           287.6           129.2             9.4            1000
 piles/day).............................................
--------------------------------------------------------------------------------------------------------------------------------------------------------

Marine Mammal Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.
    There are no reliable density estimates for marine mammals (harbor 
seal, humpback whale, and killer whale) in the project area. However, 
there are good observations of harbor seal numbers that generally occur 
in the project area.
    Harbor seals are residents in the project vicinity and observed 
within the action area on a regular basis. Typically there are one to 
two harbor seals present near the new Port of Juneau Cruise Ship Berths 
and can be found there year round. In addition, a smaller amount of 
harbor seals have been observed near the Douglas Island Pink and Chum, 
Inc. (DIPAC) salmon hatchery which is approximately five km north of 
the project area. The applicant states that based on observations and 
discussion with the hatchery personnel, a maximum of 41 harbor seals 
have been observed transiting in nearby areas between the hatchery and 
the project area. This number in addition to the 1-2 resident harbor 
seals at the project area makes a total maximum harbor sea that could 
be affected by in-water pile driving during a typical day to be 43.
    Humpback whale and killer whale are rarely seen in the vicinity of 
the project area. CBJ will implement shutdown measures if these species 
are sighted moving towards the Level B harassment zone.

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate.
    For harbor seal takes, take number is calculated as: Take = animal 
number in a typical day near the project area x operating days = 43 x 
82 = 3526 animals.
    A summary of estimated takes in relation to population percentage 
is provided in Table 6.

                                         Table 6--Estimated Take Numbers
----------------------------------------------------------------------------------------------------------------
                                              Estimated Level  Estimated Level  Estimated total
                   Species                         A take           B take            take          Abundance
----------------------------------------------------------------------------------------------------------------
Harbor seal.................................               0             3526             3526            9,478
----------------------------------------------------------------------------------------------------------------

Proposed Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to 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 (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting such 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned) the likelihood of effective implementation (probability 
implemented as planned); and
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.

[[Page 7888]]

Mitigation for Marine Mammals and Their Habitat

1. Time Restriction
    Work would occur only during daylight hours, when visual monitoring 
of marine mammals can be conducted.
2. Establishing and Monitoring Level A and Level B Harassment Zones and 
Shutdown Zones
    CBJ shall establish shutdown zones that encompass the distances 
within which marine mammals except harbor seal could be taken by Level 
B harassment (see Table 5 above).
    For harbor seals, CBJ shall establish shutdown zones that encompass 
the distances within which a seal could be taken by Level A harassment 
(see Table 5 above). For Level A harassment zones that are less than 10 
m from the source, a minimum of 10 m distance should be established as 
a shutdown zone.
    A summary of shutdown zones is provided in Table 7.

 Table 7--Shutdown Zones for Various Pile Driving Activities and Marine
                          Mammal Hearing Groups
------------------------------------------------------------------------
                                               Shutdown distance (m)
  Pile type, size & pile driving method  -------------------------------
                                             Cetacean         Phocid
------------------------------------------------------------------------
Vibratory drive and removal of 16- & 18-           1,820              10
 in steel piles.........................
Vibratory removal timber pile (900 s/              1,585  ..............
 pile, 10 piles/day)....................
Impact proof of 16- & 18-in pile (150              1,000             130
 strikes/pile, 5 piles/day).............
------------------------------------------------------------------------

    CBJ shall also establish a Zone of Influence (ZOI) for harbor seals 
based on the Level B harassment zones for take monitoring where 
received underwater SPLs are higher than 160 dBrms re 1 
[micro]Pa for impulsive noise sources (impact pile driving) and 120 
dBrms re 1 [micro]Pa for continuous noise sources (vibratory 
pile driving and pile removal). For all other marine mammals, the ZOI 
is the same as the shutdown zones.
    NMFS-approved protected species observers (PSO) shall conduct an 
initial 30-minute survey of the shutdown zones to ensure that no marine 
mammals are seen within the zones before pile driving and pile removal 
of a pile segment begins. If marine mammals are found within the 
shutdown zone, pile driving of the segment would be delayed until they 
move out of the area. If a marine mammal is seen above water and then 
dives below, the contractor would wait 15 minutes. If no marine mammals 
are seen by the observer in that time it can be assumed that the animal 
has moved beyond the shutdown zone.
3. Soft-Start
    A ``soft-start'' technique is intended to allow marine mammals to 
vacate the area before the impact pile driver reaches full power. 
Whenever there has been downtime of 30 minutes or more without impact 
pile driving, the contractor will initiate the driving with ramp-up 
procedures described below.
    Soft start for impact hammers requires contractors to provide an 
initial set of three strikes from the impact hammer at 40 percent 
energy, followed by a 1-minute waiting period, then two subsequent 
three-strike sets. Each day, CBJ will use the soft-start technique at 
the beginning of impact pile driving, or if impact pile driving has 
ceased for more than 30 minutes.
4. Shutdown Measures
    CBJ shall implement shutdown measures if a marine mammal is 
detected within or enters a shutdown zone listed in Table 7.
    Further, CBJ shall implement shutdown measures if the number of 
authorized takes for harbor seals reaches the limit under the IHA and 
if seals are sighted within the vicinity of the project area and are 
approaching the Level B harassment zone during in-water construction 
activities.
    Based on our evaluation of the required measures, NMFS has 
preliminarily determined that the prescribed mitigation measures 
provide the means effecting the least practicable impact on the 
affected species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.

Proposed Monitoring and Reporting

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

Proposed Monitoring Measures

    CBJ shall employ NMFS-approved PSOs to conduct marine mammal 
monitoring for its waterfront improvement project at Juneau Dock and 
Harbor. The purposes of marine mammal monitoring are to implement 
mitigation measures and learn more about impacts to marine mammals from

[[Page 7889]]

CBJ's construction activities. The PSOs will observe and collect data 
on marine mammals in and around the project area for 30 minutes before, 
during, and for 30 minutes after all pile removal and pile installation 
work. NMFS-approved PSOs shall meet the following requirements:
    1. Independent observers (i.e., not construction personnel) are 
required;
    2. At least one observer must have prior experience working as an 
observer;
    3. Other observers may substitute education (undergraduate degree 
in biological science or related field) or training for experience;
    4. Where a team of three or more observers are required, one 
observer should be designated as lead observer or monitoring 
coordinator. The lead observer must have prior experience working as an 
observer; and
    5. NMFS will require submission and approval of observer CVs.
    Monitoring of marine mammals around the construction site shall be 
conducted using high-quality binoculars (e.g., Zeiss, 10 x 42 power).
    CBJ shall employ a minimum of 2 PSOs to observe and collect data on 
marine mammals in and around the pile driving vicinity.
    PSOs shall be placed at high evaluation locations such as the 
boardwalk and the observation deck of the City Library to conduct 
marine mammal monitoring.
    PSOs will work shifts of a maximum of four consecutive hours and 
will work no more than 12 hours in any 24-hour period.
    6. PSOs shall collect the following information during marine 
mammal monitoring:
     Date and time that monitored activity begins and ends for 
each day conducted (monitoring period);
     Construction activities occurring during each daily 
observation period, including how many and what type of piles driven;
     Deviation from initial proposal in pile numbers, pile 
types, average driving times, etc.;
     Weather parameters in each monitoring period (e.g., wind 
speed, percent cloud cover, visibility);
     Water conditions in each monitoring period (e.g., sea 
state, tide state);
     For each marine mammal sighting:
    [cir] Species, numbers, and, if possible, sex and age class of 
marine mammals;
    [cir] Description of any observable marine mammal behavior 
patterns, including bearing and direction of travel and distance from 
pile driving activity;
    [cir] Location and distance from pile driving activities to marine 
mammals and distance from the marine mammals to the observation point; 
and
    [cir] Estimated amount of time that the animals remained in the 
Level B zone;
     Description of implementation of mitigation measures 
within each monitoring period (e.g., shutdown or delay);
     Other human activity in the area within each monitoring 
period
    To verify the required monitoring distance, the shutdown zones and 
ZOIs will be determined by using a range finder or hand-held global 
positioning system device.
    CBJ is required to submit a draft monitoring report within 90 days 
after completion of the construction work or the expiration of the IHA 
(if issued), whichever comes earlier. In the case if CBJ intends to 
renew the IHA (if issued) in a subsequent year, a monitoring report 
should be submitted 60 days before the expiration of the current IHA 
(if issued). This report would detail the monitoring protocol, 
summarize the data recorded during monitoring, and estimate the number 
of marine mammals that may have been harassed. NMFS would have an 
opportunity to provide comments on the report, and if NMFS has 
comments, CBJ would address the comments and submit a final report to 
NMFS within 30 days.
    In addition, NMFS would require CBJ to notify NMFS' Office of 
Protected Resources and NMFS' Alaska Stranding Coordinator within 48 
hours of sighting an injured or dead marine mammal in the construction 
site. CBJ shall provide NMFS and the Stranding Network with the species 
or description of the animal(s), the condition of the animal(s) 
(including carcass condition, if the animal is dead), location, time of 
first discovery, observed behaviors (if alive), and photo or video (if 
available).
    In the event that CBJ finds an injured or dead marine mammal that 
is not in the construction area, CBJ would report the same information 
as listed above to NMFS as soon as operationally feasible.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS' implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    Only Level B behavioral harassment of harbor seals is expected and 
authorized. The anticipated Level B harassment is anticipated to be 
brief and localized. Harbor seals present in the vicinity of the action 
area and taken by Level B harassment would most likely show overt brief 
disturbance (startle reaction) and avoidance of the area from elevated 
noise levels during pile driving and pile removal and the implosion 
noise.
    There are no known important areas for marine mammals, such as 
feeding, breeding, pupping, or other areas, in the vicinity of CBJ's 
project area.
    The project also 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'' subsection. There 
is no ESA designated critical area in the vicinity of the Juneau Dock 
and Harbor. The project activities would not permanently modify 
existing marine mammal habitat. The activities may kill some fish and 
cause other fish to leave the area temporarily, thus impacting marine 
mammals' foraging opportunities in a limited portion of the foraging 
range. However, 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. Therefore, given the consideration of 
potential impacts to marine mammal prey species and their physical 
environment, CBJ's proposed construction activity at Juneau Dock and 
Harbor would not adversely affect

[[Page 7890]]

marine mammals through impacts to habitat.
    [ssquf] Injury--no marine mammals would experience Level A 
harassment.
    [ssquf] Behavioral disturbance--only harbor seals would experience 
behavioral disturbance from the CBJ's Juneau Dock and Harbor waterfront 
improvement project. However, as discussed earlier, the area to be 
affected is small and the duration of the project is short. No other 
marine mammal species is expected to experience Level B harassment.
    [ssquf] No important habitat for marine mammals exist in the 
vicinity of the project area. Therefore, the overall impacts are 
expected to be insignificant.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS preliminarily finds that the total take from the 
proposed activity will have a negligible impact on all affected marine 
mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Section 101(a)(5)(D) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, NMFS compares the number of 
individuals anticipated to be taken to the most appropriate estimation 
of the relevant species or stock size in our determination of whether 
an authorization would be limited to small numbers of marine mammals.
    The estimated take of harbor seal would be 35 percent of the 
population, if each single take were a unique individual. However, this 
is highly unlikely because the harbor seal in the vicinity of the 
project area shows site fidelity to small areas for periods of time 
that can extend between seasons. As discussed earlier, there are one to 
two resident harbor seals in the project vicinity and are observed 
within the action area on a regular basis. In addition, a smaller 
amount of harbor seals have been observed near the DIPAC salmon 
hatchery which is approximately 5 km north of the project area. 
Therefore, the total maximum number of individual harbor seals at the 
project area that could be affect by in-water pile driving during a 
typical day is assumed to be 43 individuals.
    Based on the analysis contained herein of the proposed activity 
(including the prescribed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of each species or stock will be taken relative to the 
population size of the affected species or stocks.

Unmitigable Adverse Impact Subsistence Analysis and Determination

    The proposed Project will occur near but not overlap the 
subsistence areas in Juneau. The Alaska Department of Fish and Game 
(ADF&G) was contacted by CBJ regarding subsistence uses in Gastineau 
Channel and it was confirmed that Gastineau Channel is not a 
subsistence use area for harbor seals (CBJ, 2018). Therefore, the 
proposed project will not adversely impact the availability of any 
marine mammal species or stocks that are commonly used for subsistence 
purposes in the Juneau area.
    Based on the analysis contained herein of the likely effects of the 
specified activity on subsistence activities, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS preliminarily finds that the proposed activity will not 
have unmitigable adverse impact on subsistence use of marine mammals in 
the project area.

Endangered Species Act (ESA)

    No incidental take of ESA-listed species is proposed for 
authorization or expected to result from this activity. Therefore, NMFS 
has determined that formal consultation under section 7 of the ESA is 
not required for this action.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to CBJ for conducting Juneau Dock and Harbor waterfront 
improvement project in Juneau, Alaska, between June 15, 2019, and June 
14, 2020, provided the previously mentioned mitigation, monitoring, and 
reporting requirements are incorporated. A draft of the proposed IHA 
can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

Request for Public Comments

    We request comment on our analyses, the proposed authorization, and 
any other aspect of this Notice of Proposed IHA for the proposed CBJ 
Dock and Harbor waterfront improvement project. We also request comment 
on the potential for renewal of this proposed IHA as described in the 
paragraph below. Please include with your comments any supporting data 
or literature citations to help inform our final decision on the 
request for MMPA authorization.
    On a case-by-case basis, NMFS may issue a second one-year IHA 
without additional notice when (1) another year of identical or nearly 
identical activities as described in the Specified Activities section 
is planned or (2) the activities would not be completed by the time the 
IHA expires and a second IHA would allow for completion of the 
activities beyond that described in the Dates and Duration section, 
provided all of the following conditions are met:
     A request for renewal is received no later than 60 days 
prior to expiration of the current IHA; and
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted beyond the 
initial dates either are identical to the previously analyzed 
activities or include changes so minor (e.g., reduction in pile size) 
that the changes do not affect the previous analyses, take estimates, 
or mitigation and monitoring requirements; and
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    Upon review of the request for renewal, the status of the affected 
species or stocks, and any other pertinent information, NMFS determines 
that there are no more than minor changes in the activities, the 
mitigation and monitoring measures remain the same and appropriate, and 
the original findings remain valid.

    Dated: February 28, 2019.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2019-03930 Filed 3-4-19; 8:45 am]
BILLING CODE 3510-22-P