[Federal Register Volume 84, Number 81 (Friday, April 26, 2019)]
[Notices]
[Pages 17805-17808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08391]



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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; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that we have issued an incidental harassment authorization (IHA) to the 
Federal Aviation Administration (FAA) to take small numbers of marine 
mammals, by harassment, incidental to the Biorka dock replacement 
project in Symonds Bay, Alaska.

DATES: This authorization is effective from May 1, 2019, through April 
30, 2020.

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as the issued IHA, may be obtained 
online at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. 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.

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, 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, 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. A Federal 
Register notice for the proposed IHA for this action was published on 
March 7, 2019 (84 FR 8308).

Description of the Proposed Activity

    The 2019 IHA covers 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 authorized here (in the form of 
Level A and Level B harassment) applies to the same stocks, resulting 
from the same activities. The amount of authorized take is based on 
marine mammal monitoring during the 2018 IHA, in consideration of 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 using a vibratory 
hammer.
    In the Federal Register notice for the proposed IHA (84 FR 8308; 
March 7, 2019), it stated that the proposed activities would be 
completed in 21 days. FAA subsequently clarified that these activities 
are expected to be completed in 10-12 working days.
    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 reduced 
scope of activity as noted above.

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Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the 
Federal Register on March 7, 2019 (84 FR 8308). During the 30-day 
public comment period, NMFS received a comment letter from the Marine 
Mammal Commission (Commission). Specific comments and responses are 
provided below.
    Comment 1: The Commission recommended that NMFS further investigate 
appropriate timeframes over which sound exposure levels should be 
accumulated when estimating Level A harassment zones, and recommended 
that NMFS make this a priority to resolve in the near future. 
Commission further recommended that NMFS consult with its own and 
external scientists and acousticians to determine appropriate 
accumulation times.
    Response: NMFS considers this a priority and has recently formed a 
group to work on the issue of accumulation time.
    Comment 2: The Commission recommends that NMFS refrain from 
implementing its proposed renewal process and instead use abbreviated 
Federal Register notices and reference existing documents to streamline 
the IHA process. If NMFS adopts the proposed renewal process, the 
Commission recommends that NMFS provide the Commission and the public a 
legal analysis supporting its conclusion that the process is consistent 
with section 101(a)(5)(D) of the MMPA.
    Response: The notice of the proposed IHA expressly notifies the 
public that under certain, limited conditions an applicant could seek a 
renewal IHA for an additional year. The notice describes the conditions 
under which such a renewal request could be considered and expressly 
seeks public comment in the event such a renewal is sought. Additional 
reference to this solicitation of public comment has recently been 
added at the beginning of the Federal Register notices that consider 
renewals, requesting input specifically on the possible renewal itself. 
NMFS appreciates the streamlining achieved by the use of abbreviated 
Federal Register notices and intends to continue using them for 
proposed IHAs that include minor changes from previously issued IHAs, 
but which do not satisfy the renewal requirements. However, we believe 
our method for issuing renewals meets statutory requirements and 
maximizes efficiency. However, importantly, such renewals will be 
limited to circumstances where: The activities are identical or nearly 
identical to those analyzed in the proposed IHA; monitoring does not 
indicate impacts that were not previously analyzed and authorized; and, 
the mitigation and monitoring requirements remain the same, all of 
which allow the public to comment on the appropriateness and effects of 
a renewal at the same time the public provides comments on the initial 
IHA. NMFS has, however, modified the language for future proposed IHAs 
to clarify that all IHAs, including renewal IHAs, are valid for no more 
than one year and that the agency will consider only one renewal for a 
project at this time. In addition, notice of issuance or denial of a 
renewal IHA will be published in the Federal Register, as they are for 
all IHAs. The option for issuing renewal IHAs has been in NMFS' 
incidental take regulations since 1996. We will provide any additional 
information to the Commission and consider posting a description of the 
renewal process on our website before any renewal is issued utilizing 
this process.

Description of Anticipated Impacts

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
is found in the Federal Resister notice for the original IHA (82 FR 
50397; October 31, 2017) and in FAA's IHA application, 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, recent scientific literature, and marine 
mammal monitoring reports during the 2018 IHA. With the exception of 
the minke whale (see below), there is no new information regarding the 
species and potential effects from our original analysis of impacts 
under the 2018 IHA.
    One minke whale was observed during in-water construction activity 
on each of the two days on June 9 and June 10, 2018. The onsite 
protected species observers documented the whale erroneously as a 
humpback whale and did not call for shutdown of the activities, which 
resulted in a total of two exposures of minke whales within the modeled 
Level B harassment zone. FAA subsequently filed a report to NMFS 
documenting the incident (FAA, 2018). On both occasions, the whale was 
observed feeding at a distance 500-1,000 m from the pile, but no 
evident disturbance was recorded. As a result of these observations, 
the 2019 IHA authorizes Level B harassment of minke whales (see below).

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 Federal 
Register notice for the previous IHA (82 FR 50397; October 31, 2017) 
and FAA's IHA application, which remains applicable to the issuance of 
the 2019 IHA.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
authorized take is found in the Federal Register notice for the 
previous IHA (82 FR 50397; October 31, 2017) and FAA's IHA application. 
The methods of estimating take for the 2019 IHA are based on those used 
in the 2018 IHA and corrected for certain species to reflect takes in 
the 2018 activities (see below). Information used to estimate potential 
takes are updated based on informal consultation with the Marine Mammal 
Commission, further review of FAA's marine mammal monitoring reports 
that were made available during the comment period, and the change of 
the expected in-water activity days from the previous 21 days to 10-12 
days. In addition, minke whale takes were added due to sighting of this 
species in the project area from marine mammal monitoring during the 
previous activities.
    The following provides descriptions on the correction of estimated 
take numbers for the 2019 IHA based on marine mammal monitoring during 
the 2018 activities.
    Detailed description of the estimated takes for the 2019 IHA is 
provided below.
Harbor Seal
    The 2018 IHA authorized 13 incidents of take by Level A harassment 
and 350 incidents of take by Level B harassment of harbor seals. Based 
on the marine mammal monitoring during the 2018 activities, it showed 
that an average of 15 harbor seals were sighted per day (FAA, 2018). A 
total of 240 Level B harassment takes of harbor seals occurred in 2018 
but no Level A harassment take was observed. For the June 2018 
monitoring report, 20 harbor seals were observed hauled out. More 
harbor seals likely will be hauled out in May/June due to pupping. 
Using an average of 20 harbor seals to be exposed to in-water pile 
driving noise that could cause takes, it is estimated that the total 
takes of harbor seals would be 240 animals for 12 days.
    Among these takes, marine mammal monitoring during the 2018 
activities

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showed that up to 6 seals were within 300 m of the pile on a given day. 
Assuming that FAA cannot shut down in time for a third of those animals 
and assuming that 10 days would be delegated to in-water pile driving 
that have large Level A harassment zones (over 200 m), the estimated 
Level A harassment of harbor seals will be 20.
    The estimated Level B harassment is the 240 total take minus the 20 
Level A harassment, which is 220 Level B harassment take.
Killer Whale
    Based on various previous monitoring efforts in nearby areas (such 
as City of Sitka), we expect group size of killer whales to be 8. At 
the recommendation of the Marine Mammal Commission, we assume takes 
could occur on 25 percent of the days, the 2019 IHA authorizes a total 
of 24 Level B harassment takes for killer whales. Marine mammal 
monitoring during 2018 in-water activity showed 8 Level B harassment 
takes of killer whales.
Minke Whale
    On two occasions minke whales were sighted within the modeled Level 
B harassment zone during Biorka's 2018 pile driving activity. Take of 
this species was not authorized in the 2018 IHA. Based on potential 
occurrence of minke whale in the Biorka project area, the 2019 IHA 
authorizes 12 Level B harassment takes of minke whales assuming 1 take 
per day.
Other Species
    For other species, the 2018 marine mammal monitoring report showed 
Level B harassment takes of 26 humpback whales, 0 harbor porpoise, and 
11 Steller sea lions. The authorized 2019 takes are based on the same 
methods and inputs described in the 2018 IHA.
    Table 1 provides a summary of the estimated take numbers for the 
2019 IHA.

         Table 1--Estimated Marine Mammal Takes in the 2019 IHA
------------------------------------------------------------------------
                                                       Authorized take
                      Species                      ---------------------
                                                     Level A    Level B
------------------------------------------------------------------------
Harbor seal.......................................         20        220
Steller sea lion..................................          3         60
Harbor porpoise...................................         15         45
Killer whale......................................          0         24
Humpback whale....................................          1         60
Minke whale.......................................          0         12
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Description of Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures required in the 
2019 IHA are identical to those included in the final 2018 IHA. The 
following measures are included 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' 2018 acoustic technical guidance.
     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 shutdowns of activity. NMFS has established monitoring 
protocols described in the previous Federal Register notice of 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 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 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.
     Sound source verification--In the 2018 IHA, NMFS required 
FAA to conduct sound source verification (SSV) measurements of 2 18-
inch and 2 30-inch piles driven using various installation methods 
(vibratory, impact, and down-the-hole driving (for the 30-inch pile 
only)). SSV measurements have been conducted for the 18-inch piles and 
for 30-inch down-the-hole driving during the 2018 activity. The FAA is 
required to conduct SSV measurements on the 2 30-inch piles. 
Furthermore, the FAA is required to report SSV data in median root-
mean-square sound pressure level (SPLrms), peak SPL (SPLpeak), single 
strike sound exposure level (SELss), and pulse duration for impact 
driving, and SEL for vibratory drive.

Determinations

    FAA will conduct a subset of the activities 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. In our Federal 
Register notice for this proposed IHA (84 FR 8308; March 7, 2019), we 
stated that the potential effects of the specified activity on the 
marine mammals previously analyzed remain applicable (though of a lower 
amount), as do NMFS prior determinations. However, although there are 
no changes to these activities for this IHA, subsequent analysis based 
on reviews of marine mammal monitoring reports during the 2018 
activities prompted us to re-evaluate the take numbers of marine 
mammals in consultation with the Marine Mammal

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Commission. For the Steller sea lion and humpback whale, authorized 
take numbers decreased from those considered in our notice of this 
proposed IHA. For harbor seals and killer whales, analysis of the most 
recent monitoring data led to a conclusion that the take numbers should 
be increased by a small amount (see ``Estimated Take''). These 
modifications to the authorized take numbers are minor in degree and do 
not affect our original assessment that the prior analyses and 
determinations remain applicable. However, review of the same 
monitoring data has also indicated that authorization of take for minke 
whale--not previously evaluated--is appropriate as a precaution. The 
substance of our prior analysis and determinations--in particular, the 
analysis provided for killer whales--is generally applicable to the 
effects expected for the minke whale (i.e., a low number of takes, by 
Level B harassment only, are authorized as a precaution).
    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 2019 IHA includes identical 
required mitigation, monitoring, and reporting measures as the 2018 IHA 
and is applicable to a subset of the activity for which the 2018 IHA 
was issued. In conclusion, and inclusive of the authorized take numbers 
that were modified from those provided in our notice of proposed IHA, 
there is no new information suggesting that our analysis or findings 
should change. Here, we provide an assessment specific to the minke 
whale.
    When issuing the 2018 IHA, NMFS conducted a thorough analysis on 
all species for which take was authorized, except minke whales, and 
found that FAA's Biorka Island dock replacement project, in its 
entirety, would have a negligible impact to these 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).
    For the issuance of the 2019 IHA, minke whale is included as well 
on the basis of the most recent monitoring data. The potential impacts 
to minke whale are expected to be the same as to other marine mammals 
of low abundance, such as killer whale. For minke whales, takes that 
are anticipated and authorized are expected to be limited to short-term 
Level B harassment in the form of behavioral modification. Marine 
mammals 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 noise.
    There are no known important areas for minke whales in the area, 
such as important feeding, pupping, or other areas.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect minke whales through effects on 
annual rates of recruitment or survival:
     No mortality or injury is anticipated or authorized; and
     Behavioral disturbance--only a few minke whales would 
experience behavioral disturbance from the FAA's Biorka Island dock 
replacement project. However, as discussed earlier, the area to be 
affected is small and the duration of the project is short. No other 
important habitat for minke whales exist in the vicinity of the project 
area. Therefore, the overall impacts are expected to be insignificant.
    The 2019 IHA includes identical required mitigation, monitoring, 
and reporting measures as the 2018 IHA.
    Based on the information contained here and in the referenced 
documents, NMFS has 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 authorized takes 
will have a negligible impact on the affected marine mammal species or 
stocks; (3) the 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 subsistence activities do not occur in the 
project area during the project time frame.

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.

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.

Authorization

    As a result of these determinations, NMFS has issued an IHA to the 
FAA for conducting FAA's Biorka Island dock replacement project between 
May 1, 2019, and April 30, 2020, provided the prescribed mitigation, 
monitoring, and reporting requirements are incorporated.

    Dated: April 22, 2019.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2019-08391 Filed 4-25-19; 8:45 am]
 BILLING CODE 3510-22-P