[Federal Register Volume 84, Number 45 (Thursday, March 7, 2019)]
[Notices]
[Pages 8308-8311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-04134]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG822


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Biorka Island Dock Replacement 
Project

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

ACTION: Notice; proposed issuance of an Incidental Harassment 
Authorization; request for comments.

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SUMMARY: NMFS has received a request from the Federal Aviation 
Administration (FAA) for an incidental harassment authorization (IHA) 
that would cover a subset of the take authorized in an IHA previously 
issued to FAA to incidentally take marine mammals, by Level A and Level 
B harassment, during construction activities associated with the Biorka 
dock replacement project in Symonds Bay, Alaska. The applicant was 
unable to complete the work before the expiration date of the 2018 IHA 
and NMFS is proposing to issue, an IHA authorizing incidental take for 
the remaining activities. Pursuant to the Marine Mammal Protection Act 
(MMPA), NMFS is requesting comments on its proposal to issue an 
incidental harassment authorization (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.

DATES: Comments and information must be received no later than April 8, 
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/permit/incidental-take-authorizations-under-marine-mammal-protection-act 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 original 
application and supporting documents (including NMFS FR notices of the 
2018 proposed and final authorizations, and the previous IHA), as well 
as a list of the references cited in this document, may be obtained 
online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems 
accessing these documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION: 

Background

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

    To comply with the National Environmental Policy Act (NEPA) of 1969 
(NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-
6A, NMFS must review our proposed action (i.e., the issuance of an 
incidental harassment authorization) with respect to environmental 
consequences on the human environment. This action is consistent with 
categories of activities identified in CE B4 of the Companion Manual 
for NOAA Administrative Order 216-6A, which do not individually or 
cumulatively have the potential for significant impacts on the quality 
of the human environment and for which we have not identified any 
extraordinary circumstances that would preclude this categorical 
exclusion. Accordingly, NMFS has determined that the issuance of the 
IHA qualifies to be categorically excluded from further NEPA review and 
a Categorical Exclusion memo was signed in October 2017.

History of Request

    On March 31, 2017, NMFS received a request from the FAA for an IHA 
to take marine mammals incidental to pile driving and removal and down-
the-hole (DTH) pile driving in association with the Biorka Island Dock 
Replacement Project (Project) in Symonds Bay, Alaska. NMFS published a 
notice of a proposed IHA and request for comments in the Federal 
Register on August 30,

[[Page 8309]]

2017 (82 FR 41229). We subsequently published the final notice of our 
issuance of the IHA on October 31, 2017 (82 FR 50397), making the IHA 
valid for May 1, 2018 through April 30, 2019. In-water work associated 
with the project was expected to be completed within the one-year 
timeframe of the IHA. The specified activities were expected to result 
in the take, in the form of Level A and Level B harassment, of five 
species of marine mammals including harbor seal (Phoca vitulina), 
Steller sea lion (Eumetopias jubatus), harbor porpoise (Phocoena 
phocoena), killer whale (Orcinus orca), and humpback whale (Megaptera 
novaeangliae).
    On December 11, 2018, the contractor of FAA informed NMFS that part 
of the work on the project would be postponed due to severe weather 
conditions that created significant logistical challenges; that no work 
was able to be conducted during the winter season of 2018 and 2019, and 
that, therefore, not all of the in-water pile driving activities can be 
completed by the expiration of the 2018 IHA. FAA requested that a new 
IHA be issued that would be valid from May 1, 2019 through April 30, 
2020. There is no modification from the initial project description 
provided in the FAA's IHA application, except that only a subset of the 
activities analyzed in the 2018 IHA remain to be completed.

Description of the Proposed Activity and Anticipated Impacts

    The 2019 proposed IHA would cover a subset of the construction 
associated with the Biorka Island dock replacement project described in 
the initial Federal Register notice (82 FR 41229; August 30, 2017) for 
the proposed 2018 IHA. The 2017 IHA authorized Level A and B harassment 
of two species of marine mammals and Level B harassment of seven 
species of marine mammals (Table 1). FAA requests authorization to 
harass these same species. Accordingly, the take proposed for 
authorization here would apply to the same stocks, resulting from the 
same activities, and be in the form of Level A and Level B harassment. 
The number of proposed authorized takes is a subset of that authorized 
in the 2018 IHA, calculated using the same methods as the 2018 IHA, but 
considering the reduced subset of activities (described below).

Detailed Description of the Action

    The majority of the planned construction project has been 
completed, and this proposed IHA would only cover potential marine 
mammal takes for the remainder of the pile driving activities. 
Specifically, these are:
     Two (2) 30-inch piles;
    [cir] One has already been installed and just needs to be proofed 
with an impact hammer;
    [cir] The other will be driven with an impact hammer;
     Four (4) 18-inch batter piles;
     Up to twelve (12) template H-piles (six per dolphin);
    [cir] Includes installation and extraction
    [cir] Use vibratory hammer.
    NMFS refers the reader to the documents related to the previously 
issued 2018 IHA for more detailed description of the project 
activities. These previous documents include the Federal Register 
notice of the issuance of the 2018 IHA for FAA's Biorka Island dock 
replacement project (82 FR 50397; October 31, 2017), FAA's IHA 
application, the Federal Register notice of the proposed IHA (82 FR 
41229; August 30, 2017) and all associated references and documents. A 
detailed description of the proposed vibratory and impact pile driving 
activities at the dock replacement project is found in these documents. 
The description remains accurate with the exception of the reduction 
noted above.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
is found in these previous documents, which remains applicable to the 
proposed 2019 IHA as well. In addition, NMFS has reviewed recent draft 
Stock Assessment Reports, information on relevant Unusual Mortality 
Events, and recent scientific literature, and determined that no new 
information affects our original analysis of impacts under the 2018 
IHA.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activities 
on marine mammals and their habitat may be found in the documents 
supporting the previous IHA, which remains applicable to the issuance 
of the proposed 2019 IHA. There is no new information on potential 
effects.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
authorized take is found in these previous documents. The methods of 
estimating take for the proposed 2019 IHA are identical to those used 
in the 2018 IHA. The source levels, and marine mammal density remain 
unchanged from the previously issued IHA, with the days of operation 
reduced to reflect the reduced number of piles remaining (21 days 
versus 70 days in the 2018 IHA). Regarding proposed authorized take, 
the stocks taken, types of take, and methods of taking remain unchanged 
from the previously issued IHA. Using the same methods and inputs 
described in the 2018 IHA, when the reduced amount of activity is 
considered, we anticipate and propose to authorize the take numbers 
indicated below in Table 1, as do the number of takes, which are 
indicated below.

         Table 1--Estimated Marine Mammal Takes in the 2019 IHA
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                                                       Authorized take
                      Species                      ---------------------
                                                     Level A    Level B
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Harbor seal.......................................          5        100
Steller sea lion..................................          3        100
Harbor porpoise...................................         15         45
Killer whale......................................          0         12
Humpback whale....................................          1        100
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Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
proposed here are identical to those included in the Federal Register 
notice announcing the final 2018 IHA and the discussion of the least 
practicable adverse impact included in that document remains accurate. 
The following measures are proposed for inclusion in this IHA:
     Establishment of Shutdown Zone--For all pile driving 
activities, FAA will establish a shutdown zone. The purpose of a 
shutdown zone is generally to define an area within which shutdown of 
activity would occur upon sighting of a marine mammal (or in 
anticipation of an animal entering the defined area). In this case, 
shutdown zones are intended to contain areas in which sound pressure 
levels (SPLs) equal or exceed acoustic injury criteria for some 
authorized species, based on NMFS' acoustic technical guidance 
published in the Federal Register on August 4, 2016 (81 FR 51693).
     Establishment of Monitoring Zones--FAA must identify and 
establish Level A harassment zones. These zones are areas beyond the 
shutdown zones where animals may be exposed to sound levels that could 
result in permanent threshold shift (PTS). FAA will also identify and 
establish Level B harassment disturbance zones which are areas where 
SPLs equal or exceed 160 dB rms for impact driving and 120 dB rms 
during vibratory driving. Observation of monitoring zones enables 
observers to be aware of and communicate the presence of marine mammals 
in the project area and outside the shutdown zone and thus prepare for 
potential

[[Page 8310]]

shutdowns of activity. NMFS has established monitoring protocols 
described in the Federal Register notice of the issuance (82 FR 50397; 
October 30, 2017) which are based on the distance and size of the 
monitoring and shutdown zones. These same protocols are contained in 
this proposed 2019 IHA.
     Temporal Restrictions--Work may only occur during daylight 
hours, when visual monitoring of marine mammals can be conducted.
     Soft Start--The use of a soft-start procedure is believed 
to provide additional protection to marine mammals by providing warning 
and/or giving marine mammals a chance to leave the area prior to the 
hammer operating at full capacity. For impact pile driving, contractors 
will be required to implement soft start procedures. Soft Start is not 
required during vibratory pile driving and removal activities.
     Visual Marine Mammal Observation--Monitoring must be 
conducted by qualified marine mammal observers (MMOs), who are trained 
biologists, with minimum qualifications described in the Federal 
Register notice of the issuance of the 2018 IHA (82 FR 50397; October 
30, 2017). In order to effectively monitor the pile driving monitoring 
zones, two MMOs must be positioned at the best practical vantage 
point(s). If waters exceed a sea-state which restricts the observers' 
ability to make observations within the shutdown zone (e.g., excessive 
wind or fog), pile installation and removal will cease. Pile driving 
will not be initiated until the entire shutdown zone is visible. MMOs 
shall record specific information on the sighting forms as described in 
the Federal Register notice of the issuance of the 2018 IHA (82 FR 
50379; October 30, 2017). At the conclusion of the in-water 
construction work, FAA will provide NMFS with a monitoring report which 
includes summaries of recorded takes and estimates of the number of 
marine mammals that may have been harassed.

Preliminary Determinations

    FAA proposes to conduct a subset of activities identical to those 
covered in the previous 2018 IHA. FAA was not able to complete these 
activities within the effective dates of the 2018 IHA due to weather-
related delays of the project. Potential impacts to marine mammals from 
these activities were previously analyzed for the issuance of the 2018 
IHA, and there are no changes to these activities for this proposed 
IHA. Therefore, the potential effects from Level A and Level B 
harassment on the marine mammals previously analyzed remain applicable 
(though of a lower amount), as do NMFS prior determinations.
    When issuing the 2018 IHA, NMFS found FAA's Biorka Island dock 
replacement project, in its entirety, would have a negligible impact to 
species or stocks' rates of recruitment and survival and the amount of 
taking would be small relative to the population size of such species 
or stock (less than 15 percent). The proposed IHA includes identical 
required mitigation, monitoring, and reporting measures as the 2018 
IHA.
    In conclusion, there is no new information suggesting that our 
analysis or findings should change.
    Based on the information contained here and in the referenced 
documents, NMFS has preliminarily determined the following: (1) The 
required mitigation measures will effect the least practicable impact 
on marine mammal species or stocks and their habitat; (2) the proposed 
authorized takes will have a negligible impact on the affected marine 
mammal species or stocks; (3) the proposed authorized takes represent 
small numbers of marine mammals relative to the affected stock 
abundances; and (4) FAA's activities will not have an unmitigable 
adverse impact on taking for subsistence purposes as no relevant 
subsistence uses of marine mammals are implicated by this action, and 
(5) appropriate monitoring and reporting requirements are included.

Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally, in this case with the Alaska Regional Office, 
whenever we propose to authorize take for endangered or threatened 
species.
    NMFS is authorizing take of two DPSs (i.e., western DPS of Steller 
sea lions and Mexico DPS of humpback whales), which are listed under 
the ESA. The Permit and Conservation Division requested initiation of 
Section 7 consultation with the Alaska Region for the issuance of this 
IHA. The NMFS Alaska Regional Office Protected Resources Division 
issued a Biological Opinion in October, 2017 under section 7 of the 
ESA, on the issuance of an IHA to the FAA under section 101(a)(5)(D) of 
the MMPA by the NMFS Permits and Conservation Division. The Biological 
Opinion concluded that the proposed action is not likely to jeopardize 
the continued existence of western DPS Steller sea lions or Mexico DPS 
of humpback whales, and is not likely to destroy or adversely modify 
western DPS Steller sea lion critical habitat.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to FAA for conducting FFA's Biorka Island dock replacement 
project between May 1, 2019, and April 30, 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 (included in both this document 
and the referenced documents supporting the 2018 IHA), the proposed 
authorization, and any other aspect of this Notice of Proposed IHA for 
the proposed [action]. 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. 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.
    On a case-by-case basis, NMFS may issue a second one-year IHA with 
with expedited notice and public comment 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;
     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

[[Page 8311]]

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: March 4, 2019.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2019-04134 Filed 3-6-19; 8:45 am]
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