[Federal Register Volume 84, Number 228 (Tuesday, November 26, 2019)]
[Notices]
[Pages 65117-65133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-25642]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XR066]


Takes of Marine Mammals Incidental To Specified Activities; 
Taking Marine Mammals Incidental to Alaska Marine Lines Lutak Dock 
Project, Haines, Alaska

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

ACTION: Notice; proposed incidental harassment authorization; request 
for comments on proposed authorization and possible renewal.

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SUMMARY: NMFS has received a request from Alaska Marine Lines, Inc. 
(AML) for authorization to take marine mammals incidental to Lutak Dock 
project in Haines, Alaska. 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. 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 December 
26, 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: Dwayne Meadows, Ph.D., Office of 
Protected Resources, NMFS, (301) 427-8401. Electronic copies of the 
application and supporting documents, as well as a list of the 
references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/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 the species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of the takings are set forth.
    The definitions of all applicable MMPA statutory terms cited above 
are included in the relevant sections below.

[[Page 65118]]

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an 
incidental harassment authorization) with respect to potential impacts 
on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental harassment authorizations with 
no anticipated serious injury or mortality) 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 preliminarily determined that the 
issuance of the proposed IHA qualifies to be categorically excluded 
from further NEPA review.
    We will review all comments submitted in response to this notice 
prior to concluding our NEPA process or making a final decision on the 
IHA request.

Summary of Request

    On 9 July 2019, NMFS received a request from AML for an IHA to take 
marine mammals incidental to Lutak Dock project in Haines, Alaska. The 
application was deemed adequate and complete on October 23, 2019. AML's 
request is for take of seven species of marine mammals by Level B 
harassment and/or Level A harassment. Neither AML nor NMFS expects 
serious injury or mortality to result from this activity and, 
therefore, an IHA is appropriate.

Description of Proposed Activity

Overview

    The project consists of the demolition, re-construction, and 
improvement of a commercial barge cargo dock in Lutak Inlet near 
Haines, Alaska adjacent to the Haines Ferry Terminal. The project 
includes the following in-water components: Removal (by vibratory 
pulling or cutting off at the mudline) of 12 steel pipe piles (16'' 
diameter) of two berthing dolphins associated with the existing steel 
cargo bridge; fill 4,000 yards of gravel and 1,000 yards of riprap to 
construct a causeway below the new dock; installing below mean high 
water (MHW) a 46-foot long by 15-foot wide steel float; installing 
below MHW (using vibratory or impact pile driving or down-the-hole 
(DTH) drilling) four 24-inch diameter steel pipe piles to construct two 
float strut dolphins, six 36-inch diameter steel pipe piles to 
construct two breasting dolphins; and construction of a 40-foot wide by 
40-foot long, pile supported (three 30-inch diameter steel pipe piles), 
concrete abutment within the proposed causeway to support a 120-foot 
long by 24-foot wide steel bridge over navigable waters.
    The pile driving or DTH drilling can result in take of marine 
mammals from sound in the water which results in behavioral harassment 
or auditory injury. The footprint of the project is approximately one 
square mile around the project site. The project will take no more than 
8 days of pile-driving/pulling or DTH drilling.

Dates and Duration

    The work for which take will be authorized will occur between June 
15, 2020 and June 14, 2021. The duration of the pile driving would be 
from approximately mid- to late June through October 2020. Noise 
generating activities will not overlap with high densities of marine 
mammal prey that occur March 1 through May 31. The daily construction 
window for pile removal and driving would begin no sooner than 30 
minutes after sunrise and would end 30 minutes prior to sunset to allow 
for marine mammal monitoring.

Specific Geographic Region

    The project site is located at Lutak Dock near the mouth of Lutak 
Inlet, approximately 4 miles north of Haines in northern southeastern 
Alaska. The Chilkat, Chilkoot, Lutak, and Taiya inlets compose the 
northern part of Lynn Canal (see Figure 1-1 in application). The 
project area is situated on the shore of Lutak Inlet between the 
Chilkoot and Chilkat rivers. Lutak Inlet is a glacial scoured fjord 
with an estuary that is five miles long and one mile wide from Tanani 
Point and Taiya Point to its confluence with the Chilkoot River. The 
Inlet has depths generally less than 275 feet, with depths at the mouth 
of about 400 feet (Haines, 2007).
    Several seasonally available prey species are abundant and densely 
aggregated within the project area. In Southeast Alaska, spawning of 
eulachon (Thaleichtys pacificus) (Marston et al., 2002; Sigler et al., 
2004) and herring (Clupea pallasii) (Womble et al., 2005) play an 
important role in the seasonal foraging ecology of sea lions in the 
area (Marston et al., 2002; Sigler et al., 2004; Womble et al., 2005; 
Womble and Sigler, 2006). Eulachon are anadromous smelt that spawn 
primarily from March to May (Marston et al., 2002; Womble, 2003).
    The underwater acoustic environment in the project area is 
dominated by ambient noise from day-to-day ferry terminal, port, and 
vessel activities. Haines Borough operates two harbor facilities 
(Portage Cove and Letnikof Cove), a float moored at Swanson Harbor in 
Couverden, two docks (Lutak and Port Chilkoot), and three boat launch 
ramps (at Lutak Dock, Portage Cove and Letnikof Cove) (Haines Borough 
Comprehensive Plan (2012)). Lutak Dock is the second busiest port for 
the Alaska Marine Highway System. Delta Western (tug and barge 
business) also operates out of this area.

Detailed Description of Specific Activity

    An existing steel cargo bridge with steel floats and associated 
berthing dolphins currently used for cargo barge operations would be 
removed. The structure is currently supported by twelve 16-inch 
diameter steel piles. These 12 piles would be removed utilizing a 
crane-mounted vibratory hammer located on a barge or on land. If piles 
cannot be removed using vibratory methods, they would be cut at the 
mudline using an underwater shielded metal-arc cutter or left in place. 
Removal of the existing piles is expected to take one day.
    To facilitate the project, a causeway will be constructed below the 
new dock using approximately 4,000 yards of gravel and 1,000 yards of 
riprap fill, and a 46-foot long by 15-foot wide steel float will be 
installed below MHW. Neither of these project components are expected 
to impact marine mammals, their habitat, or their subsistence use, so 
these components will not be considered further.
    To support the new 120 foot by 24 foot long steel bridge and 
associated dolphins, four 24-inch diameter and six 36-inch diameter 
steel pipes would be driven into the marine sand and gravel at the 
project location. Three additional 30-inch diameter steel pipes would 
be installed to support a concrete abutment (see Figure 1-2 of 
application). The pipe piles would be installed to a depth of 40 feet 
or more below the surface using a crane-mounted vibratory and/or impact 
hammer located on a barge. It may take up to about 60 minutes per pile 
of vibratory driving to set each pile. If impact hammering is used, 
about 700 strikes would be needed to drive each of the piles to a 
sufficient depth which may require about 15 minutes of hammering. It is 
estimated that about 3 hours (maximum) would be required to drive each 
pile and they would be proofed the same day.

[[Page 65119]]

    Bedrock may be encountered before the full required pile depth is 
achieved. Where bedrock is present, piles would be installed using both 
vibratory and DTH drilling. Initially a vibratory hammer would be used 
to drive the sediment until bedrock is reached (~60 minutes). A DTH 
hammer (e.g., Numa) would be used to drill and socket the pile into 
bedrock. This could take up to an additional 180 minutes.
    In summary, vibratory and impact driving would take up to three 
hours for each pile. Multiple piles would not be concurrently driven. 
Under the best-case scenario, using solely vibratory and impact 
driving, five piles would be set in a day. If DTH drilling is needed, 
it would be used the same day following vibratory driving, with the 
worst case scenario being only two piles could be set and drilled in 
one day. Therefore, the duration of drilling activity for the 13 piles 
could be as short as three days or as long as seven days. Thus in the 
worst case, the entire project would take a total of eight days of pile 
driving/drilling.
    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 (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS's 
website (https://www.fisheries.noaa.gov/find-species).
    Table 1 lists all species with expected potential for occurrence in 
Haines, Alaska 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 (2016). 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 SARs (e.g., Muto et al. 2019). All values presented 
in Table 1 are the most recent available at the time of publication and 
are available in the 2019 SARs (Muto et al., 2019).

                                     Table 1--Marine Mammals Potentially Present in the Vicinity of the Study Areas
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                                                                                                       Stock abundance (CV,
                                                                                   ESA/MMPA status;      Nmin, most recent                     Annual M/
            Common name                Scientific name             Stock          strategic (Y/N) \1\    abundance survey)          PBR          SI \3\
                                                                                                                \2\
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                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Physeteridae:
    Sperm whale...................  Physeter               North Pacific.......  -; N................  N/A (see SAR, N/A,    See SAR.........        4.4
                                     macrocephalus.                                                     2015), see text.
Family Balaenopteridae (rorquals):
    Humpback Whale................  Megaptera              Central North         -; N (Hawaii DPS)...  10,103 (0.3, 7,890,   83..............         25
                                     novaeangliae.          Pacific.             T,D,Y (Mexico DPS)..   2006).               N/A.............        N/A
                                                           Central North                               3264................
                                                            Pacific.
    Minke whale \4\...............  Balaenoptera           Alaska..............  -; N................  N/A, see text.......  N/A.............          0
                                     acutorostrata.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
    Killer whale \5\..............  Orcinus orca.........  Alaska Resident.....                        2347................  24..............          1
                                                           Northern Resident...  -; Y................  261.................  1.96............          0
                                                           West Coast transient  ....................  243.................  2.4.............          0
Family Phocoenidae (porpoises):
    Dall's porpoise \4\...........  Phocoenoides dalli...  Alaska..............  -; N................  83,400 (0.097, N/A,   N/A.............         38
                                                                                                        1991).
    Harbor porpoise...............  Phocoena phocoena....  Southeast Alaska....  -; Y................  975 (2012)..........  8.9.............         34
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                                                         Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and
 sea lions):
    California sea lion...........  Zalophus               U.S.................  -; N................  257,606 (N/           14,011..........       >320
                                     californianus.                                                     A,233,515, 2014).
    Steller sea lion..............  Eumetopias jubatus...  Eastern U.S.........  -; N................  41,638 (n/a; 41,638;  2,498...........        108
                                                                                                        2015).
    Steller sea lion..............  Eumetopias jubatus...  Western U.S.........  E,D,Y...............  54,268 (see SAR,      326.............        247
                                                                                                        54,267, 2017).
Family Phocidae (earless seals):
    Harbor seal...................  Phoca vitulina         Lynn Canal/Stephens   -; N................  9,478 (see SAR,       155.............         50
                                     richardii.             Passage.                                    8,605, 2011).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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.

[[Page 65120]]

 
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
  associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ The most recent abundance estimate is >8 years old, there is no official current estimate of abundance available for this stock.
\5\ NMFS has preliminary genetic information on killer whales in Alaska which indicates that the current stock structure of killer whales in Alaska
  needs to be reassessed. NMFS is evaluating the new genetic information. A complete revision of the killer whale stock assessments will be postponed
  until the stock structure evaluation is completed and any new stocks are identified'' (Muto, Helker et al. 2018). For the purposes of this IHA
  application, the existing stocks are used to estimate potential takes.

    All species that could potentially occur in the proposed survey 
areas are included in Table 1. As described below, all seven species 
(with ten managed stocks) temporally and spatially co-occur with the 
activity to the degree that take is reasonably likely to occur, and we 
have proposed authorizing it.
    In addition, the northern sea otter may be found in the project 
vicinity. However, that species is managed by the U.S. Fish and 
Wildlife Service and is not considered further in this document.

Sperm Whale

    Sperm whales (Physeter macrocephalus) are considered extralimital 
in the project area. However, on March 20, 2019, a dead sperm whale was 
found washed up in Lynn Canal. Based on NOAA's Whale alert system (NOAA 
2019), the Alaska State Ferry reported seeing four sperm whales in 
December 2018 off False Point Retreat, and two near Point Howard in 
lower Lynn Canal early in March 2019. Despite these recent sightings, 
sperm whales are very rare in the area. Due to the low probability of 
these species occurring in the project area, exposure of these 
cetaceans to project impacts is considered unlikely and take is not 
requested for these species and they are not considered further.

Humpback Whale

    Humpback whales (Megaptera novaeangliae) in the North Pacific 
migrate from low-latitude breeding and calving grounds to form 
geographically distinct aggregations on higher-latitude feeding 
grounds. They occur in Chilkoot Inlet and have been observed 
infrequently near the mouth of Lutak Inlet during the spring eulachon 
and herring runs; they generally vacate the area by July to feed on 
aggregations of herring in lower Lynn Canal. In recent years, however, 
a few whales have been observed at the entrance to Taiya Inlet 
throughout the fall months (NMFS 2019) and at the mouth of Lutak Inlet 
(K. Hastings, (Alaska Department of Fish and Game (ADF&G), personal 
communication). Hastings observed from one to three humpback whales at 
Gran Point in May of 2015 and 2018. Individuals have been observed in 
the same area intermittently throughout the summer months, but most 
whales move further south and are absent from the Action Area during 
summer.
    In 2016 NMFS revised the ESA listing of humpback whales (81 FR 
62259; September 8, 2016). NMFS is in the process of reviewing humpback 
whale stock structure and abundance under the MMPA in light of the ESA 
revisions. The MMPA stock in Alaska is considered to be the Central 
North Pacific stock. Humpbacks from two of the 14 newly identified 
Distinct Population Segments (DPSs) occur in the project area: The 
Mexico DPS, which is a threatened species; and the Hawaii DPS, which is 
not protected under the ESA. NMFS considers humpback whales in 
Southeast Alaska to be 94 percent comprised of the Hawaii DPS and 6 
percent of the Mexico DPS (Wade et al., 2016). While the range of the 
Mexico DPS extends up to Southeast Alaska, this DPS has never been 
reported as far north as Sitka. The likelihood that an individual from 
the Mexico DPS is part of the relatively few humpback whales that move 
to extreme northern Lynn Canal in July is extremely low; nevertheless, 
we use the 6 percent estimate to be conservative in this analysis.
    On October 9, 2019, NMFS published a proposed rule to designate 
critical habitat for the humpback whale (84 FR 54354). Areas proposed 
as critical habitat include specific marine areas off the coasts of 
California, Oregon, Washington and Alaska, including near the project 
area. AML expects to complete this project before the critical habitat 
designation is effective, therefore we do not consider it further in 
this analysis.
    Estimates of humpback whale abundance for the Mexico DPS are from 
the ESA listing process. Local abundances were calculated from data 
provided by K. Hastings (ADF&G), who reported humpback whales at Gran 
Point in 2015 and 2018.

Minke Whale

    There are three stocks of minke whales (Balaenopera acutorostrata) 
recognized in U.S. waters of the Pacific Ocean; only members of the 
Alaska stock could potentially occur within the project area. This 
stock has seasonal movements associated with feeding areas that are 
generally located at the edge of the pack ice (Muto et al., 2019). 
Minke whales are considered to be rare in northern parts of Lynn Canal 
(Dahlheim et al., 2009). However, minke whales forage on schooling fish 
and may rarely enter the project area in Upper Lynn Canal. In 2015, one 
minke whale was sighted in Taiya Inlet, northeast of the Project Area 
(K. Gross, personal communication, as cited in 84 FR 4777).
    No comprehensive estimates of abundance have been made for the 
Alaska stock or near the project area, but a 2010 survey conducted on 
the eastern Bering Sea shelf produced a provisional abundance estimate 
of 2,020 whales (Friday et al., 2013).

Killer Whale

    NMFS recognizes eight killer whale (Orcinus orca) stocks throughout 
the Pacific Ocean. However, only three of these stocks can be found in 
Southeast Alaska: (1) The Alaska Resident stock ranges from 
southeastern Alaska to the Aleutian Islands and Bering Sea; (2) the 
Northern Resident stock occurs from Washington State through part of 
southeastern Alaska; and (3) the West Coast Transient stock ranges from 
California through southeastern Alaska (Muto et al., 2019). Resident 
and transient killer whales are sporadically and seasonally attracted 
to Lutak Inlet during the spring to feed on the large aggregations of 
fishes and pinnipeds.
    Killer whale abundance estimates are determined by a direct count 
of individually identifiable animals. While killer whales occurring in 
Lynn Canal can belong to one of three stocks, photoidentification 
studies since 1970 have catalogued most individuals observed in this 
area as belonging to the Northern Resident stock. The occurrence of 
transient killer whales in Upper Lynn Canal increases in summer, with 
lower numbers observed in spring and fall.

Dall's Porpoise

    Dall's porpoise (Phocoenoides dalli) are widely distributed 
throughout the region and have been observed in Lynn Canal (Dahlheim et 
al., 2009). They were observed more frequently in the spring, tapering 
off in summer and fall. The Alaska stock is the only Dall's porpoise 
stock found in Alaska waters.

[[Page 65121]]

Harbor Porpoise

    Harbor porpoise (Phocoena phocoena) are common in coastal waters of 
Alaska. There are three harbor porpoise stocks in Alaska, but only the 
Southeast Alaska stock occurs in the project area (Muto et al., 2019). 
Individuals from the Southeast Alaska stock of harbor porpoise are 
infrequently observed in Upper Lynn Canal, though they have been 
observed as far north as Haines during the summer months (Dahlheim et 
al., 2015).

California Sea Lion

    Several California sea lions (Zalophus californianus) were observed 
at Gran Point in May 2005 (K. Hastings, ADF&G); however they have not 
been observed since that date and will not be considered further in 
this analysis.

Steller Sea Lion

    Steller sea lions (Eumetopias jubatus) range along the North 
Pacific Rim from northern Japan to California, with centers of 
abundance and distribution in the Gulf of Alaska and Aleutian Islands. 
Large numbers of individuals widely disperse when not breeding (late 
May to early July) to access seasonally important prey resources (Muto 
et al., 2019). In 1997 NMFS identified two DPSs of Steller sea lions 
under the ESA: A Western DPS and an Eastern DPS (62 FR 24345, May 5, 
1997). The Eastern DPS is not ESA-listed, the Western DPS is. For MMPA 
purposes the Eastern DPS is called the Eastern U.S. stock and the 
Western DPS is called the Western U.S. stock. For simplicity we will 
refer to them by their DPS name in this analysis. Most of the Steller 
sea lions in southeastern Alaska have been determined to be part of the 
Eastern DPS, however, in recent years there has been an increasing 
trend of the Western DPS animals occurring and breeding in southeastern 
Alaska (Muto et al., 2019).
    Steller sea lions have been observed in the project vicinity 
throughout the year in Chilkoot Inlet; they seasonally occupy Lutak 
Inlet. They follow spring foraging runs of eulachon into Lutak Inlet up 
to the mouth of the Chilkoot River, then move farther south to forage 
on herring in late-summer and fall. Salmon increase in importance as 
prey for sea lions from late-October and December in the Chilkat River. 
The closest haulout to the project area is Gran Point, about 14 miles 
southeast. During the spring eulachon run, a temporary seasonal haulout 
site is also located on Taiya Point at the southern tip of Taiya Inlet 
(approximately 3.1 miles from the project site).
    Branded individuals from the Western DPS have been observed at the 
Gran Point haulout. Three individual Western DPS sea lions were 
observed repeatedly at Gran Point from 2003 through 2012 (NMFS, 2013). 
The most recent assessment of branded or marked Western DPS sea lions 
at the Gran Point haul out was provided by Hastings (ADF&G, personal 
communication) and Jemison et al. (2018). The percentage of Western DPS 
animals in the recent time period was 1.7 percent; for the rest of this 
analysis we conservatively assume that 2 percent of the Steller sea 
lions in the project area are from the Western DPS.
    Data from almost two decades of surveys and research on 
distribution, abundance and seasonal foraging behavior of Steller sea 
lions from the Gran Point haul out are used in to estimate take. These 
data, with sightings through 2018, have been provided through personal 
communication to the applicants with key marine mammal researchers in 
the region (K. Hastings ADF&G Tom Gelatt, NMFS Alaska Fisheries 
Science Center). The average monthly densities for Steller sea lions at 
Gran Point were estimated using this database as a proxy for the 
monthly abundance of sea lions within the project area.

Harbor Seal

    Harbor seals (Phoca vitulina) inhabit coastal and estuarine waters 
off Alaska. They haul out on rocks, reefs, beaches, and drifting 
glacial ice. They are opportunistic feeders and often adjust their 
distribution to take advantage of locally and seasonally abundant prey 
(Womble et al., 2009, Allen and Angliss, 2015). Harbor seals occurring 
in the project area belong to the Lynn Canal/Stephens Passage (LC/SP) 
stock. Harbor seals are common in Lutak Inlet and in Chilkat Inlet 
where there is a small haulout at Pyramid Island. They are abundant in 
the Chilkat and Chilkoot rivers in late fall and winter during spawning 
runs of salmon (Onchorhynchus spp.) and in the spring (mid-March 
through mid-May) when eulachon (Thaleichtys pacificus) are present. As 
many as about 100 individuals have been observed actively feeding in 
Lutak Inlet near the mouth of the Chilkoot River, and at up-river 
locations during these fish runs (K. Hastings ADF&G, 2016 and J. 
Womble, 2016 personal communication).

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

           Table 2--Marine Mammal Hearing Groups (NMFS, 2018)
------------------------------------------------------------------------
               Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen        7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans (dolphins,     150 Hz to 160 kHz.
 toothed whales, beaked whales, bottlenose
 whales).
High-frequency (HF) cetaceans (true         275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus cruciger
 & L. australis).
Phocid pinnipeds (PW) (underwater) (true    50 Hz to 86 kHz.
 seals).

[[Page 65122]]

 
Otariid pinnipeds (OW) (underwater) (sea    60 Hz to 39 kHz.
 lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al. 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Seven marine mammal species (five cetacean and two pinniped (one 
otariid and one phocid) species have the reasonable potential to co-
occur with the proposed survey activities (see Table 1). Of the 
cetacean species that may be present, two are classified as low-
frequency cetaceans (i.e., all mysticete species), one is classified as 
a mid-frequency cetacean (i.e., all delphinid and ziphiid species and 
the sperm whale), and two are classified as high-frequency cetaceans 
(i.e., harbor porpoise, Dall's porpoise and Kogia spp.).

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 includes a quantitative analysis of the number 
of individuals that are expected to be taken by this activity. The 
Negligible Impact Analysis and Determination section considers the 
content of this section, the Estimated Take by Incidental Harassment 
section, and the Proposed 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.

Description of Sound Sources

    The marine soundscape is comprised of both ambient and 
anthropogenic sounds. Ambient sound is defined as the all-encompassing 
sound in a given place and is usually a composite of sound from many 
sources both near and far (ANSI 1994, 1995). The sound level of an area 
is defined by the total acoustical energy being generated by known and 
unknown sources. These sources may include physical (e.g., waves, wind, 
precipitation, earthquakes, ice, atmospheric sound), biological (e.g., 
sounds produced by marine mammals, fish, and invertebrates), and 
anthropogenic sound (e.g., vessels, dredging, aircraft, construction).
    The sum of the various natural and anthropogenic sound sources at 
any given location and time--which comprise ``ambient'' or 
``background'' sound--depends not only on the source levels (as 
determined by current weather conditions and levels of biological and 
shipping activity) but also on the ability of sound to propagate 
through the environment. In turn, sound propagation is dependent on the 
spatially and temporally varying properties of the water column and sea 
floor, and is frequency-dependent. As a result of the dependence on a 
large number of varying factors, ambient sound levels can be expected 
to vary widely over both coarse and fine spatial and temporal scales. 
Sound levels at a given frequency and location can vary by 10-20 dB 
from day to day (Richardson et al., 1995). The result is that, 
depending on the source type and its intensity, sound from the 
specified activity may be a negligible addition to the local 
environment or could form a distinctive signal that may affect marine 
mammals.
    In-water construction activities associated with the project would 
include impact pile driving, vibratory pile driving and removal, and 
DTH drilling. The sounds produced by these activities fall into one of 
two general sound types: Impulsive and non-impulsive. Impulsive sounds 
(e.g., explosions, gunshots, sonic booms, impact pile driving) are 
typically transient, brief (less than 1 second), broadband, and consist 
of high peak sound pressure with rapid rise time and rapid decay (ANSI, 
1986; NIOSH, 1998; ANSI, 2005; NMFS, 2018). Non-impulsive sounds (e.g., 
machinery operations such as drilling or dredging, vibratory pile 
driving, and active sonar systems) can be broadband, narrowband or 
tonal, brief or prolonged (continuous or intermittent), and typically 
do not have the high peak sound pressure with raid rise/decay time that 
impulsive sounds do (ANSI 1995; NIOSH 1998; NMFS 2018). The distinction 
between these two sound types is important because they have differing 
potential to cause physical effects, particularly with regard to 
hearing (e.g., Ward 1997 in Southall et al., 2007).
    Two types of pile hammers would be used on this project: Impact and 
vibratory. Impact hammers operate by repeatedly dropping a heavy piston 
onto a pile to drive the pile into the substrate. Sound generated by 
impact hammers is characterized by rapid rise times and high peak 
levels, a potentially injurious combination (Hastings and Popper, 
2005). Vibratory hammers install piles by vibrating them and allowing 
the weight of the hammer to push them into the sediment. Vibratory 
hammers produce significantly less sound than impact hammers. Peak 
Sound pressure Levels (SPLs) may be 180 dB or greater, but are 
generally 10 to 20 dB lower than SPLs generated during impact pile 
driving of the same-sized pile (Oestman et al., 2009). Rise time is 
slower, reducing the probability and severity of injury, and sound 
energy is distributed over a greater amount of time (Nedwell and 
Edwards, 2002; Carlson et al., 2005).
    DTH drilling would be conducted using a down-the-hole drill 
inserted through the hollow steel piles. A down-the-hole drill is a 
drill bit that drills through the bedrock using a pulse mechanism that 
functions at the bottom of the hole. This pulsing bit breaks up rock to 
allow removal of debris and insertion of the pile. The head extends so 
that the drilling takes place below the pile. The pulsing sounds 
produced by the down-the-hole drilling method are continuous, however 
this method likely increases sound attenuation because the noise is 
primarily contained within the steel pile and below ground as opposed 
to impact hammer driving methods which occur at the top of the pile.
    The likely or possible impacts of AML's proposed activity on marine 
mammals could involve both non-acoustic and acoustic stressors.

[[Page 65123]]

Potential non-acoustic stressors could result from the physical 
presence of the equipment and personnel; however, any impacts to marine 
mammals are expected to primarily be acoustic in nature. Acoustic 
stressors include effects of heavy equipment operation during pile 
installation and removal and drilling.

Acoustic Impacts

    The introduction of anthropogenic noise into the aquatic 
environment from pile driving and removal and DTH drilling is the 
primary means by which marine mammals may be harassed from AML's 
specified activity. In general, animals exposed to natural or 
anthropogenic sound may experience physical and psychological effects, 
ranging in magnitude from none to severe (Southall et al., 2007). 
Generally, exposure to pile driving and drilling noise has the 
potential to result in auditory threshold shifts and behavioral 
reactions (e.g., avoidance, temporary cessation of foraging and 
vocalizing, changes in dive behavior). Exposure to anthropogenic noise 
can also lead to non-observable physiological responses such an 
increase in stress hormones. Additional noise in a marine mammal's 
habitat can mask acoustic cues used by marine mammals to carry out 
daily functions such as communication and predator and prey detection. 
The effects of pile driving and drilling noise on marine mammals are 
dependent on several factors, including, but not limited to, sound type 
(e.g., impulsive vs. non-impulsive), the species, age and sex class 
(e.g., adult male vs. mom with calf), duration of exposure, the 
distance between the pile and the animal, received levels, behavior at 
time of exposure, and previous history with exposure (Wartzok et al., 
2004; Southall et al., 2007). Here we discuss physical auditory effects 
(threshold shifts) followed by behavioral effects and potential impacts 
on habitat.
    NMFS defines a noise-induced threshold shift (TS) as a change, 
usually an increase, in the threshold of audibility at a specified 
frequency or portion of an individual's hearing range above a 
previously established reference level (NMFS, 2018). The amount of 
threshold shift is customarily expressed in dB. A TS can be permanent 
or temporary. As described in NMFS (2018), there are numerous factors 
to consider when examining the consequence of TS, including, but not 
limited to, the signal temporal pattern (e.g., impulsive or non-
impulsive), likelihood an individual would be exposed for a long enough 
duration or to a high enough level to induce a TS, the magnitude of the 
TS, time to recovery (seconds to minutes or hours to days), the 
frequency range of the exposure (i.e., spectral content), the hearing 
and vocalization frequency range of the exposed species relative to the 
signal's frequency spectrum (i.e., how animal uses sound within the 
frequency band of the signal; e.g., Kastelein et al., 2014), and the 
overlap between the animal and the source (e.g., spatial, temporal, and 
spectral).
    Permanent Threshold Shift (PTS)--NMFS defines PTS as a permanent, 
irreversible increase in the threshold of audibility at a specified 
frequency or portion of an individual's hearing range above a 
previously established reference level (NMFS 2018). Available data from 
humans and other terrestrial mammals indicate that a 40 dB threshold 
shift approximates PTS onset (see Ward et al., 1958, 1959; Ward, 1960; 
Kryter et al., 1966; Miller, 1974; Ahroon et al., 1996; Henderson and 
Hu, 2008). PTS levels for marine mammals are estimates, with the 
exception of a single study unintentionally inducing PTS in a harbor 
seal (Kastak et al., 2008), there are no empirical data measuring PTS 
in marine mammals, largely due to the fact that, for various ethical 
reasons, experiments involving anthropogenic noise exposure at levels 
inducing PTS are not typically pursued or authorized (NMFS, 2018).
    Temporary Threshold Shift (TTS)--A temporary, reversible increase 
in the threshold of audibility at a specified frequency or portion of 
an individual's hearing range above a previously established reference 
level (NMFS, 2018). Based on data from cetacean TTS measurements (see 
Southall et al., 2007), a TTS of 6 dB is considered the minimum 
threshold shift clearly larger than any day-to-day or session-to-
session variation in a subject's normal hearing ability (Schlundt et 
al., 2000; Finneran et al., 2000, 2002). As described in Finneran 
(2016), marine mammal studies have shown the amount of TTS increases 
with cumulative sound exposure level (SELcum) in an 
accelerating fashion: At low exposures with lower SELcum, 
the amount of TTS is typically small and the growth curves have shallow 
slopes. At exposures with higher SELcum, the growth curves 
become steeper and approach linear relationships with the noise SEL.
    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 takes place during a time when the animal 
is traveling through the open ocean, 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. We note that 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 we can infer that 
strategies exist for coping with this condition to some degree, though 
likely not without cost.
    Currently, TTS data only exist for four species of cetaceans 
(bottlenose dolphin (Tursiops truncatus), beluga whale (Delphinapterus 
leucas), harbor porpoise, and Yangtze finless porpoise (Neophocoena 
asiaeorientalis)) and five species of pinnipeds exposed to a limited 
number of sound sources (i.e., mostly tones and octave-band noise) in 
laboratory settings (Finneran, 2015). TTS was not observed in trained 
spotted (Phoca largha) and ringed (Pusa hispida) seals exposed to 
impulsive noise at levels matching previous predictions of TTS onset 
(Reichmuth et al., 2016). In general, harbor seals and harbor porpoises 
have a lower TTS onset than other measured pinniped or cetacean species 
(Finneran, 2015). The potential for TTS from impact pile driving 
exists. After exposure to playbacks of impact pile driving sounds (rate 
2760 strikes/hour) in captivity, mean TTS increased from 0 dB after 15 
minute exposure to 5 dB after 360 minute exposure; recovery occurred 
within 60 minutes (Kastelein et al., 2016). Additionally, the existing 
marine mammal TTS data come from a limited number of individuals within 
these species. No data are available on noise-induced hearing loss for 
mysticetes. For summaries of data on TTS in marine mammals or for 
further discussion of TTS onset thresholds, please see Southall et al. 
(2007), Finneran and Jenkins (2012), Finneran (2015), and Table 5 in 
NMFS (2018).
    Installing piles requires a combination of impact pile driving, 
vibratory pile driving, and DTH drilling. For the project, these 
activities would not occur at the same time and there would likely be 
pauses in activities producing the sound during each day. Given these 
pauses and that many marine mammals are likely moving through the 
action

[[Page 65124]]

area and not remaining for extended periods of time, the potential for 
TS declines.
    Behavioral Harassment--Exposure to noise from pile driving and 
removal and drilling also has the potential to behaviorally disturb 
marine mammals. Available studies show wide variation in response to 
underwater sound; therefore, it is difficult to predict specifically 
how any given sound in a particular instance might affect marine 
mammals perceiving the signal. If a marine mammal does react briefly to 
an underwater sound by changing its behavior or moving a small 
distance, the impacts of the change are unlikely to be significant to 
the individual, let alone the stock or population. However, if a sound 
source displaces marine mammals from an important feeding or breeding 
area for a prolonged period, impacts on individuals and populations 
could be significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007; 
NRC, 2005).
    Disturbance may result in 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 sound sources are located. 
Pinnipeds may increase their haul-out time, possibly to avoid in-water 
disturbance (Thorson and Reyff, 2006). Behavioral responses to sound 
are highly variable and context-specific and any reactions depend on 
numerous intrinsic and extrinsic factors (e.g., species, state of 
maturity, experience, current activity, reproductive state, auditory 
sensitivity, time of day), as well as the interplay between factors 
(e.g., Richardson et al., 1995; Wartzok et al., 2003; Southall et al., 
2007; Weilgart, 2007; Archer et al., 2010). Behavioral reactions can 
vary not only among individuals but also within an individual, 
depending on previous experience with a sound source, context, and 
numerous other factors (Ellison et al., 2012), and can vary depending 
on characteristics associated with the sound source (e.g., whether it 
is moving or stationary, number of sources, distance from the source). 
In general, pinnipeds seem more tolerant of, or at least habituate more 
quickly to, potentially disturbing underwater sound than do cetaceans, 
and generally seem to be less responsive to exposure to industrial 
sound than most cetaceans. Please see Appendices B and C of Southall et 
al. (2007) for a review of studies involving marine mammal behavioral 
responses to sound.
    Disruption of feeding behavior can be difficult to correlate with 
anthropogenic sound exposure, so it is usually inferred by observed 
displacement from known foraging areas, the appearance of secondary 
indicators (e.g., bubble nets or sediment plumes), or changes in dive 
behavior. As for other types of behavioral response, the frequency, 
duration, and temporal pattern of signal presentation, as well as 
differences in species sensitivity, are likely contributing factors to 
differences in response in any given circumstance (e.g., Croll et al., 
2001; Nowacek et al., 2004; Madsen et al., 2006; Yazvenko et al., 
2007). A determination of whether foraging disruptions incur fitness 
consequences would require information on or estimates of the energetic 
requirements of the affected individuals and the relationship between 
prey availability, foraging effort and success, and the life history 
stage of the animal.
    In 2016, the Alaska Department of Transportation and Public 
Facilities (ADOT&PF) documented observations of marine mammals during 
construction activities (i.e., pile driving and down-hole drilling) at 
the Kodiak Ferry Dock (see 80 FR 60636, October 7, 2015). In the marine 
mammal monitoring report for that project (ABR 2016), 1,281 Steller sea 
lions were observed within the Level B disturbance zone during pile 
driving or drilling (i.e., documented as Level B harassment take). Of 
these, 19 individuals demonstrated an alert behavior, 7 were fleeing, 
and 19 swam away from the project site. All other animals (98 percent) 
were engaged in activities such as milling, foraging, or fighting and 
did not change their behavior. In addition, two sea lions approached 
within 20 meters of active vibratory pile driving activities. Three 
harbor seals were observed within the disturbance zone during pile 
driving activities; none of them displayed disturbance behaviors. 
Fifteen killer whales and three harbor porpoise were also observed 
within the Level B harassment zone during pile driving. The killer 
whales were travelling or milling while all harbor porpoises were 
travelling. No signs of disturbance were noted for either of these 
species. Given the similarities in activities and habitat and the fact 
the same species are involved, we expect similar behavioral responses 
of marine mammals to AML's specified activity. That is, disturbance, if 
any, is likely to be temporary and localized (e.g., small area 
movements). Monitoring reports from other recent pile driving and DTH 
drilling projects in Alaska have observed similar behaviors (for 
example, the Biorka Island Dock Replacement Project).
    Masking--Sound can disrupt behavior through masking, or interfering 
with, an animal's ability to detect, recognize, or discriminate between 
acoustic signals of interest (e.g., those used for intraspecific 
communication and social interactions, prey detection, predator 
avoidance, navigation) (Richardson et al., 1995). Masking occurs when 
the receipt of a sound is interfered with by another coincident sound 
at similar frequencies and at similar or higher intensity, and may 
occur whether the sound is natural (e.g., snapping shrimp, wind, waves, 
precipitation) or anthropogenic (e.g., pile driving, shipping, sonar, 
seismic exploration) in origin. The ability of a noise source to mask 
biologically important sounds depends on the characteristics of both 
the noise source and the signal of interest (e.g., signal-to-noise 
ratio, temporal variability, direction), in relation to each other and 
to an animal's hearing abilities (e.g., sensitivity, frequency range, 
critical ratios, frequency discrimination, directional discrimination, 
age or TTS hearing loss), and existing ambient noise and propagation 
conditions. Masking of natural sounds can result when human activities 
produce high levels of background sound at frequencies important to 
marine mammals. Conversely, if the background level of underwater sound 
is high (e.g. on a day with strong wind and high waves), an 
anthropogenic sound source would not be detectable as far away as would 
be possible under quieter conditions and would itself be masked. Lutak 
Dock and the Haines area contains active commercial shipping and ferry 
operations as well as numerous recreational and commercial vessels; 
therefore, background sound levels in the area are already elevated.
    Airborne Acoustic Effects--Pinnipeds that occur near the project 
site could be exposed to airborne sounds associated with pile driving 
and removal and DTH drilling that have the potential to cause 
behavioral harassment, depending on their distance from pile driving 
activities. Cetaceans are not expected to be exposed to airborne sounds 
that would result in harassment as defined under the MMPA.
    Airborne noise would primarily be an issue for pinnipeds that are 
swimming or hauled out near the project site within the range of noise 
levels elevated above the acoustic criteria. We recognize that 
pinnipeds in the water could be exposed to airborne sound that may 
result in behavioral harassment when looking with their heads above

[[Page 65125]]

water. Most likely, airborne sound would cause behavioral responses 
similar to those discussed above in relation to underwater sound. For 
instance, anthropogenic sound could cause hauled-out pinnipeds to 
exhibit changes in their normal behavior, such as reduction in 
vocalizations, or cause them to temporarily abandon the area and move 
further from the source. However, these animals would previously have 
been `taken' because of exposure to underwater sound above the 
behavioral harassment thresholds, which are in all cases larger than 
those associated with airborne sound. Thus, the behavioral harassment 
of these animals is already accounted for in these estimates of 
potential take. Therefore, we do not believe that authorization of 
incidental take resulting from airborne sound for pinnipeds is 
warranted, and airborne sound is not discussed further here.

Marine Mammal Habitat Effects

    AML's construction activities at Lutak Dock could have localized, 
temporary impacts on marine mammal habitat and their prey by increasing 
in-water sound pressure levels and slightly decreasing water quality. 
Increased noise levels may affect acoustic habitat (see masking 
discussion above) and adversely affect marine mammal prey in the 
vicinity of the project area (see discussion below). During impact pile 
driving, elevated levels of underwater noise would ensonify Lutak Inlet 
where both fish and mammals occur and could affect foraging success.
    Construction activities are of short duration and would likely have 
temporary impacts on marine mammal habitat through increases in 
underwater and airborne sound. These sounds would not be detectable at 
Gran Point.
    In-water pile driving, pile removal, and drilling activities would 
also cause short-term effects on water quality due to increased 
turbidity. Local strong currents are anticipated to disburse suspended 
sediments produced by project activities at moderate to rapid rates 
depending on tidal stage. AML would employ standard construction best 
management practices (BMPs; see section 11 in application), thereby 
reducing any impacts. Therefore, the impact from increased turbidity 
levels is expected to be discountable.

In-Water Construction Effects on Potential Foraging Habitat

    The area likely impacted by the project is relatively small 
compared to the available habitat in Lynn Canal (e.g., most of the 
impacted area is limited to the Lutak Dock area) and does not include 
any BIAs or ESA-designated critical habitat. Pile installation/removal 
and drilling may temporarily increase turbidity resulting from 
suspended sediments. Any increases would be temporary, localized, and 
minimal. AML must comply with state water quality standards during 
these operations by limiting the extent of turbidity to the immediate 
project area. In general, turbidity associated with pile installation 
is localized to about a 25-foot radius around the pile (Everitt et al., 
1980). Cetaceans are not expected to be close enough to the project 
pile driving areas to experience effects of turbidity, and any 
pinnipeds would be transiting the area and could avoid localized areas 
of turbidity. Therefore, the impact from increased turbidity levels is 
expected to be discountable to marine mammals. Furthermore, pile 
driving and removal at the project site would not obstruct movements or 
migration of marine mammals.
    Avoidance by potential prey (i.e., fish) of the immediate area due 
to the temporary loss of this foraging habitat is also possible. The 
duration of fish avoidance of this area after pile driving stops is 
unknown, but a rapid return to normal recruitment, distribution and 
behavior is anticipated. Any behavioral avoidance by fish of the 
disturbed area would still leave significantly large areas of fish and 
marine mammal foraging habitat in the nearby vicinity in Lynn Canal and 
the project would occur outside the peak eulachon and salmonid runs.
    The duration of the construction activities is relatively short. 
The construction window is for a maximum of 4-5 months with only a 
maximum of 8 days of pile drilling/removal. During each day, 
construction activities would only occur during daylight hours. Impacts 
to habitat and prey are expected to be minimal based on the short 
duration of activities.
    In-water Construction Effects on Potential Prey (Fish)--
Construction activities would produce continuous (i.e., vibratory pile 
driving and DTH drilling) and pulsed (i.e. impact driving) sounds. Fish 
react to sounds that are especially strong and/or intermittent low-
frequency sounds. Short duration, sharp sounds can cause overt or 
subtle changes in fish behavior and local distribution. Hastings and 
Popper (2005) identified several studies that suggest fish may relocate 
to avoid certain areas of sound energy. Additional studies have 
documented effects of pile driving on fish, although several are based 
on studies in support of large, multiyear bridge construction projects 
(e.g., Scholik and Yan, 2001, 2002; Popper and Hastings, 2009). Sound 
pulses at received levels of 160 dB may cause subtle changes in fish 
behavior. SPLs of 180 dB may cause noticeable changes in behavior 
(Pearson et al., 1992; Skalski et al., 1992). SPLs of sufficient 
strength have been known to cause injury to fish and fish mortality.
    The most likely impact to fish from pile driving and drilling 
activities at the project area would be temporary behavioral avoidance 
of the area. The duration of fish avoidance of this area after pile 
driving stops is unknown, but a rapid return to normal recruitment, 
distribution and behavior is anticipated. In general, impacts to marine 
mammal prey species are expected to be minor and temporary due to the 
short timeframe for the project.
    Construction activities, in the form of increased turbidity, have 
the potential to adversely affect forage fish and juvenile salmonid 
outmigratory routes in the project area. Both herring and salmon form a 
significant prey base for Steller sea lions, herring is a primary prey 
species of humpback whales, and both herring and salmon are components 
of the diet of many other marine mammal species that occur in the 
project area. Increased turbidity is expected to occur in the immediate 
vicinity (on the order of 10 feet or less) of construction activities. 
However, suspended sediments and particulates are expected to dissipate 
quickly within a single tidal cycle. Given the limited area affected 
and high tidal dilution rates any effects on forage fish and salmon are 
expected to be minor or negligible. In addition, best management 
practices would be in effect, which would limit the extent of turbidity 
to the immediate project area. Finally, exposure to turbid waters from 
construction activities is not expected to be different from the 
current exposure; fish and marine mammals in the Lynn Canal region are 
routinely exposed to substantial levels of suspended sediment from 
glacial sources.
    In summary, given the short daily duration of sound associated with 
individual pile driving and drilling events and the relatively small 
areas being affected, pile driving and drilling activities associated 
with the proposed action are not likely to have a permanent, adverse 
effect on any fish habitat, or populations of fish species. Thus, we 
conclude that impacts of the specified activity are not likely to have 
more than short-term adverse effects on any prey habitat or populations 
of prey species. Further, any impacts to marine mammal habitat are not 
expected to result in significant or long-term consequences for 
individual marine

[[Page 65126]]

mammals, or to contribute to adverse impacts on their populations.

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization through this IHA, which will inform both 
NMFS' consideration of ``small numbers'' 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 primarily be by Level B harassment, as use 
of the acoustic source (i.e., vibratory or impact pile driving or DTH 
drilling) has the potential to result in disruption of behavioral 
patterns for individual marine mammals. There is also some potential 
for auditory injury (Level A harassment) to result, primarily for 
mysticetes, high frequency species and pinnipeds because predicted 
auditory injury zones are larger than for mid-frequency species. 
Auditory injury is unlikely to occur for mid-frequency species. The 
proposed mitigation and monitoring measures are expected to minimize 
the severity of the taking to the extent practicable.
    As described previously, no mortality is anticipated or proposed to 
be authorized for this activity. Below we describe how the take is 
estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
and the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes available (e.g., previous 
monitoring results or average group size). Below, we describe the 
factors considered here in more detail and present the proposed 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 microPascal ([mu]Pa) (root mean square 
(rms)) for continuous (e.g., vibratory pile-driving, drilling) and 
above 160 dB re 1 [mu]Pa (rms) for non-explosive impulsive (e.g., 
impact pile driving) or intermittent (e.g., scientific sonar) sources.
    AML's proposed activity includes the use of continuous (vibratory 
pile-driving, drilling) and impulsive (impact pile-driving) sources, 
and therefore the 120 and 160 dB re 1 [mu]Pa (rms) thresholds are 
applicable.
    Level A harassment for non-explosive sources--NMFS' Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine 
Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual 
criteria to assess auditory injury (Level A harassment) to five 
different marine mammal groups (based on hearing sensitivity) as a 
result of exposure to noise from two different types of sources 
(impulsive or non-impulsive). AML's activity includes the use of 
impulsive (impact pile-driving) sources.
    These thresholds are provided in Table 3. The references, analysis, 
and methodology used in the development of the thresholds are described 
in NMFS 2018 Technical Guidance, which may be accessed at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

 Table 3--Thresholds Identifying the Onset of Permanent Threshold Shift
------------------------------------------------------------------------
                               PTS onset acoustic thresholds * (received
                                                level)
        Hearing group        -------------------------------------------
                                 Impulsive           Non-impulsive
------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans  Cell 1:          Cell 2:
                              Lpk,flat: 219    LE,LF,24h: 199 dB.
                               dB;.
                              LE,LF,24h: 183
                               dB.
Mid-Frequency (MF) Cetaceans  Cell 3:          Cell 4:
                              Lpk,flat: 230    LE,MF,24h: 198 dB.
                               dB;.
                              LE,MF,24h: 185
                               dB.
High-Frequency (HF)           Cell 5:          Cell 6:
 Cetaceans.                   Lpk,flat: 202    LE,HF,24h: 173 dB.
                               dB;.
                              LE,HF,24h: 155
                               dB.
Phocid Pinnipeds (PW)         Cell 7:          Cell 8:
 (Underwater).                Lpk,flat: 218    LE,PW,24h: 201 dB.
                               dB;.
                              LE,PW,24h: 185
                               dB.

[[Page 65127]]

 
Otariid Pinnipeds (OW)        Cell 9:          Cell 10:
 (Underwater).                Lpk,flat: 232    LE,OW,24h: 219 dB.
                               dB;.
                              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 [micro]Pa,
  and cumulative sound exposure level (LE) has a reference value of
  1[micro]Pa\2\s. 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, which include source levels and transmission loss 
coefficient.
    Even though multiple pile sizes will be used, to be conservative 
for calculation of take, we assumed all piles would be the largest size 
pile (36 inch). It is also likely that impact and vibratory pile 
driving will occur on the same day, so we calculate Level B take 
assuming the larger vibratory disturbance isopleths for every day of 
activity. For vibratory pile driving we assumed a source level of 175 
dB (RMS SPL) based on Caltrans (2015) with a maximum of 5 piles per day 
and 60 minutes per pile. For DTH drilling we used a source level of 171 
dB (RMS SPL); this is derived from Denes et al. (2016), where we used 
the more conservative 90 percent median value. We assumed no more than 
2 piles per day with DTH drilling as the duration per pile was assumed 
to be 3 hours. For impact pile driving activities we used source levels 
of 210 dB (PK SPL) or 183 dB (single strike SEL) based on Caltrans 
(2015). We assumed no more than 5 piles per day and 700 strikes per 
pile. In all cases we used a propagation loss coefficient of 15 logR as 
most appropriate for these stationary, in-shore sources. Because DTH 
would only be used in combination with vibratory pile driving, we also 
used a combined scenario that assumed four hours of vibratory pile 
driving plus six hours of DTH drilling in a single day. For this 
scenario the source level was calculated as a log average of the 
sources.
    When the NMFS Technical Guidance (2016) was published, in 
recognition of the fact that ensonified area/volume could be more 
technically challenging to predict because of the duration component in 
the new thresholds, we developed a User Spreadsheet that includes tools 
to help predict a simple isopleth that can be used in conjunction with 
marine mammal density or occurrence to help predict takes. We note that 
because of some of the assumptions included in the methods used for 
these tools, we anticipate that isopleths produced are typically going 
to be overestimates of some degree, which may result in some degree of 
overestimate of Level A harassment take. However, these tools offer the 
best way to predict appropriate isopleths when more sophisticated 3D 
modeling methods are not available, and NMFS continues to develop ways 
to quantitatively refine these tools, and will qualitatively address 
the output where appropriate. For stationary sources, such as pile 
driving and drilling in this project, NMFS User Spreadsheet predicts 
the distance at which, if a marine mammal remained at that distance the 
whole duration of the activity, it would incur PTS. Inputs used in the 
User Spreadsheet, and the resulting isopleths are reported below.
    NMFS User spreadsheet input scenarios for vibratory pile driving, 
impact pile driving, and the combined DTH drilling and vibratory pile 
driving scenario discussed above are shown in Table 4. These input 
scenarios lead to PTS isopleth distances (Level A thresholds) of 
anywhere from 7 to 2742 meters, depending on the marine mammal group 
and scenario (Table 5). Table 5 also shows the daily ensonified areas 
(Level A harassment zones) to the PTS threshold distances for each 
scenario and marine mammal group; these vary from just a few square 
meters to 8.736 km\2\.

                                      Table 4--NMFS User Spreadsheet Inputs
----------------------------------------------------------------------------------------------------------------
                                             User spreadsheet input
-----------------------------------------------------------------------------------------------------------------
                                                                                            DTH/vibratory pile
                                        Vibratory pile driving    Impact pile  driving           driving
----------------------------------------------------------------------------------------------------------------
Spreadsheet Tab Used.................  A.1) Vibratory pile      E.1) Impact pile         A.1) Vibratory pile
                                        driving.                 driving.                 driving.
Source Level (RMS SPL or single        175....................  183....................  173.
 strike SEL).
Weighting Factor Adjustment (kHz)....  2.5....................  2......................  2.5.
(a) Number of strikes per pile.......  N/A....................  700....................  N/A.
(a) Activity Duration (h) within 24-h  60.....................  N/A....................  10.
 period.
Propagation (xLogR)..................  15.....................  15.....................  15.
Distance of source level measurement   10.....................  10.....................  10.
 (meters).
Number of piles per day..............  5......................  5......................  2.
----------------------------------------------------------------------------------------------------------------


[[Page 65128]]


                                     Table 5--NMFS User Spreadsheet Outputs: PTS Isopleths and Daily Ensonified Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 User spreadsheet output
---------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  PTS isopleth (meters)
                                                               -----------------------------------------------------------------------------------------
                          Source type                             Low-frequency     Mid-frequency    High-frequency                          Otariid
                                                                    cetaceans         cetaceans         cetaceans     Phocid pinnipeds      pinnipeds
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory pile driving........................................               171                15               253               104                 7
Impact pile driving...........................................              2302                82              2742              1232                90
DTH/vibratory pile driving....................................               200                18               296               122                 9
                                                               -----------------------------------------------------------------------------------------
                                                                                              Daily ensonified area (km\2\)
                                                               -----------------------------------------------------------------------------------------
Vibratory pile driving........................................             0.056             0.001             0.113             0.025                 0
Impact pile driving...........................................             6.899             0.017             8.736             2.369              0.02
DTH/vibratory pile driving....................................             0.074             0.001             0.151             0.032                 0
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The distances to the Level B threshold of 120 dB RMS are 28.8 miles 
for vibratory pile driving and 1.1 miles for impact driving. The 
enclosed nature of Lutak Inlet restricts the propagation of noise in 
all directions before noise levels reduce below the Level B threshold 
for continuous source types (i.e., vibratory pile driving, DTH). 
Therefore, the area ensonified to the Level B threshold is truncated by 
land in all directions. Measurements of the ensonified areas show that 
5.179 km\2\ are ensonified to the Level B threshold for impact pile 
driving and 22.164 km\2\ are ensonified to the Level B threshold for 
vibratory pile driving. Note that thresholds for behavioral disturbance 
are unweighted with respect to marine mammal hearing and therefore the 
thresholds apply to all species.

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. The density of the seven marine mammal species for which 
take will be proposed is calculated by month in the project area (see 
Table 6-4 in the application) for months when project activity is 
planned to occur (June through October). Density was estimated using 
available survey data, literature, sightings from protected Species 
observers (PSOs) from other projects, personal communication from 
researchers, state and federal biologists, average group size (i.e., 
killer whales, Dall's porpoise) and the data underlying the IHA issued 
by NMFS for the ADOT&PF Haines Ferry Terminal Project (NMFS, 2018b). 
Density estimates were calculated by dividing the estimated monthly 
abundance for each species by the area of marine mammal habitat near 
the project, which is approximately 91.3 km and extends from Lutak 
Inlet/Chilkat River south down Lynn Canal to the Gran Point haulout. In 
order to be conservative, even though pile driving could occur at any 
period from June through October, for purposes of requesting takes, we 
used the highest monthly density for each species to calculate take. 
For killer whales and Dall's porpoises we calculated density by 
assuming a minimum group size of 5 and 10 animals, respectively, might 
enter the ensonified area, rather than their lower density value, 
because of the social nature of these species. Thus the species 
densities used in our take calculations are shown in Table 6.

         Table 6--Species Density Values Used To Calculate Take
------------------------------------------------------------------------
                                                           Density  (#/
                         Species                              km\2\)
------------------------------------------------------------------------
Humpback Whale..........................................           0.055
Minke Whale.............................................           0.022
Killer Whale............................................           0.055
Harbor Porpoise.........................................           0.055
Dall's Porpoise.........................................            0.11
Harbor Seal.............................................           1.095
Steller Sea Lion........................................           7.382
------------------------------------------------------------------------

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate. We estimated Level A 
take for the project by multiplying the maximum monthly species density 
from Table 6 by the daily ensonified area for PTS for Level A from 
Table 5 above and then multiplying by the maximum possible number of 
work days (8) and finally rounding to the next whole number (Table 7). 
We similarly estimated Level B take for the project by multiplying the 
maximum monthly species density from Table 6 by the ensonified area for 
Level B (22.164 km\2\) and then multiplying by the maximum possible 
number of work days (8) and finally rounding to the next whole number. 
Estimated Level A takes from Table 7 were then subtracted from the 
preliminary Level B takes to get the total number of unique Level B 
takes that do not double-count the Level A takes (Table 7).

         Table 7--Proposed Authorized Level A and B Take and Percent of MMPA Stock Proposed To Be Taken
----------------------------------------------------------------------------------------------------------------
                                                                     Proposed authorized take
                             Species                             --------------------------------   Percent of
                                                                      Level B         Level A          stock
----------------------------------------------------------------------------------------------------------------
Humpback Whale \1\..............................................               7               3             0.1
Minke Whale.....................................................               2               2             N/A
Killer Whale \2\................................................              10               0            0.35
Harbor Porpoise.................................................               6               4            1.03
Dall's Porpoise.................................................              12               8             N/A
Harbor Seal.....................................................             174              21            2.06

[[Page 65129]]

 
Steller Sea Lion (Eastern DPS) \2\ \3\..........................            1283               0            3.08
Steller Sea Lion (Western DPS) \2\ \3\..........................              26               0            0.05
----------------------------------------------------------------------------------------------------------------
\1\ Distribution of proposed take by ESA status is 6 Level B takes and 3 Level A takes for Hawaii DPS and 1
  Level B take for Mexico
\2\ The potential for these species to experience PTS due to vibratory/impact driving or from DTH drilling is
  very low considering the distances to the PTS thresholds and the species behavior. Shutdown for all species is
  proposed at 200 m (see below) which would further decrease possibility of Level A takes for these species.
  Therefore, Level A takes are not proposed or requested by the applicant.
\3\ Total estimated take of Steller sea lions was 1309 individuals. Distribution between the stocks was
  calculated assuming 2% Western DPS and rounding to nearest whole number.

Effects of Specified Activities on Subsistence Uses of Marine Mammals

    The availability of the affected marine mammal stocks or species 
for subsistence uses may be impacted by this activity. The subsistence 
uses that may be affected and the potential impacts of the activity on 
those uses are described below. The information from this section is 
analyzed to determine whether the necessary findings may be made in the 
Unmitigable Adverse Impact Analysis and Determination section.
    No records exist of subsistence harvests of whales and porpoises in 
Lynn Canal (Haines, 2007). Subsistence harvest of harbor seals and 
Steller sea lions by Alaska Natives is not prohibited by the MMPA. The 
ADF&G has regularly conducted surveys of harbor seal and Steller sea 
lion subsistence harvest in Alaska and the number of animals taken for 
subsistence in this immediate area is low when compared to other areas 
in Southeast Alaska (Wolfe et al. 2013). Marine mammals comprise less 
than 1 pound per capita of all resources harvested by Haines residents 
(Household Survey of Wildfoods Resources Harvest in Haines, as cited in 
Haines, 2007). Construction activities at the project site would be 
expected to cause only short term, non-lethal disturbance of marine 
mammals. Impacts on the abundance or availability of either species to 
subsistence hunters in the region are not anticipated.

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 the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses. NMFS regulations require applicants for incidental 
take authorizations to include information about the availability and 
feasibility (economic and technological) of equipment, methods, and 
manner of conducting the activity or other means of effecting the least 
practicable adverse impact upon the affected species or stocks and 
their habitat (50 CFR 216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, 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, as 
well as subsistence uses. This considers the nature of the potential 
adverse impact being mitigated (likelihood, scope, range). It further 
considers the likelihood that the measure will be effective if 
implemented (probability of accomplishing the mitigating result if 
implemented as planned), the likelihood of effective implementation 
(probability implemented as planned), and;
    (2) the practicability of the measures for applicant 
implementation, which may consider such things as cost, 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.
    The following mitigation measures are proposed in the IHA:
     Schedule: No pile driving or removal would occur from 
March 1 through May 31 to avoid peak marine mammal abundance periods 
and critical foraging periods;
     Pile Removal: If possible, piles would be removed by using 
a direct pull method or by cutting piles off at the mudline instead of 
using a vibratory hammer;
     Pile Driving Delay/Shut-Down: For use of in-water heavy 
machinery/vessel (e.g., dredge), AML will implement a minimum shutdown 
zone of 10 m radius around the pile/vessel. For vessels, AML must cease 
operations and reduce vessel speed to the minimum required to maintain 
steerage and safe working conditions. In addition, if an animal comes 
within 200 m of a pile being driven or removed, AML would shut down. 
The 200 m shutdown zone would only be reopened when a marine mammal has 
not been observed within the shutdown zone for a 30-minute period. If 
pile driving is stopped, pile installation would not commence if pile 
any marine mammals are observed anywhere within the Level A harassment 
zone. Pile driving activities would only be conducted during daylight 
hours when it is possible to visually monitor for marine mammals. If 
poor environmental conditions restrict visibility (e.g., from excessive 
wind or fog, high Beaufort state), pile installation would be delayed. 
If a species for which authorization has not been granted, or if a 
species for which authorization has been granted but the authorized 
takes are met, AML would delay or shut-down pile driving if the marine 
mammal approaches or is observed within the Level A and/or B harassment 
zones. In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHA, 
such as serious injury or mortality, the PSO on watch would immediately 
call for the cessation of the specified activities and immediately 
report the incident to the Chief of the Permits and Conservation 
Division, Office of Protected Resources, NMFS, and NMFS Alaska Regional 
Office;
     Soft-start: For all impact pile driving, a ``soft start'' 
technique will be used at the beginning of each pile installation day, 
or if pile driving has ceased for more than 30 minutes, to

[[Page 65130]]

allow any marine mammal that may be in the immediate area to leave 
before hammering at full energy. The soft start requires AML to provide 
an initial set of three strikes from the impact hammer at reduced 
energy, followed by a one-minute waiting period, then two subsequent 3-
strike sets. If any marine mammal is sighted within the 200-m Level A 
shutdown zone prior to pile-driving, or during the soft start, AML will 
delay pile-driving until the animal is confirmed to have moved outside 
and is on a path away from the Level A harassment zone or if 15 minutes 
have elapsed since the last sighting; and
     Other best management practices: AML will drive all piles 
with a vibratory hammer to the maximum extent possible (i.e., until a 
desired depth is achieved or to refusal) prior to using an impact 
hammer and will use DTH drilling prior to using an impact hammer. AML 
will also use the minimum hammer energy needed to safely install the 
piles.
    Based on our evaluation of the applicant's proposed measures, NMFS 
has preliminarily determined that the proposed 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, and on the availability of such species or stock for 
subsistence uses.

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.

Visual Monitoring

    Monitoring would be conducted 30 minutes before, during, and 30 
minutes after pile driving and removal activities. In addition, 
observers shall record all incidents of marine mammal occurrence, 
regardless of distance from activity, and shall document any behavioral 
reactions in concert with distance from piles being driven or removed. 
Pile driving activities include the time to install or remove a single 
pile or series of piles, as long as the time elapsed between uses of 
the pile driving equipment is no more than thirty minutes.
    A primary PSO would be placed at Lutak Dock where pile driving 
would occur. The primary purpose of this observer is to monitor and 
implement the 200 m Level A shutdown zone. Two additional observers 
would focus on monitoring large parts of the Level B harassment zone as 
well as visible parts of the Level A shutdown and harassment zones. The 
second observer would be placed at a vantage point near Tanani Point 
that allows monitoring of the area offshore from Lutak Dock and across 
the inlet, a width of about 0.6 miles (see application Figure 11-1). 
This location is near the edge of the Level A harassment zone for low-
frequency cetaceans during impact pile driving. The third PSO would be 
placed northwest of the dock near the edge of the Level A harassment 
zone for low-frequency cetaceans. Therefore, the outer edge of the 
largest Level A harassment zone and a majority of the Level B 
harassment zone would be monitored by these other two PSOs. These two 
PSOs would also assess movement of animals within Level A harassment 
zones, including time spent at various distances from the sound source 
to help us gather needed information on the dynamics of marine mammal 
behavior around pile driving activities. Since not all of the level B 
harassment zone will be observable by PSOs, they will calculate take 
for the project by extrapolating the observable area to the total size 
of the Level B harassment zone. PSOs would scan the waters using 
binoculars, and/or spotting scopes, and would use a handheld GPS or 
range-finder device to verify the distance to each sighting from the 
project site. All PSOs would be trained in marine mammal identification 
and behaviors and are required to have no other project-related tasks 
while conducting monitoring. The following measures also apply to 
visual monitoring:
    (1) Monitoring will be conducted by qualified observers, who will 
be placed at the best vantage point(s) practicable to monitor for 
marine mammals and implement shutdown/delay procedures when applicable 
by calling for the shutdown to the hammer operator. Qualified observers 
are trained biologists, with the following minimum qualifications:
    (a) Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance; use of binoculars 
may be necessary to correctly identify the target;
    (b) Advanced education in biological science or related field 
(undergraduate degree or higher required);
    (c) Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience);
    (d) Experience or training in the field identification of marine 
mammals, including the identification of behaviors;
    (e) Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
    (f) Writing skills sufficient to prepare a report of observations 
including but not limited to the number and species of marine mammals 
observed; dates and times when in-water construction activities were 
conducted; dates and times when in-water construction activities were 
suspended to avoid potential incidental injury from construction sound 
of marine mammals

[[Page 65131]]

observed within a defined shutdown zone; and marine mammal behavior; 
and
    (g) Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary; and
    (2) AML shall submit observer CVs for approval by NMFS.
    A draft marine mammal monitoring report would be submitted to NMFS 
within 90 days after the completion of pile driving and removal 
activities, or 60 days prior to a requested date of issuance of any 
future IHAs for projects at the same location, whichever comes first. 
It will include an overall description of work completed, a narrative 
regarding marine mammal sightings, and associated marine mammal 
observation data sheets. Specifically, the report must include:
     Date and time that monitored activity begins or ends;
     Construction activities occurring during each observation 
period;
     Weather parameters (e.g., percent cover, visibility);
     Water conditions (e.g., sea state, tide state);
     Species, numbers, and, if possible, sex and age class of 
marine mammals;
     Description of any observable marine mammal behavior 
patterns, including bearing and direction of travel and distance from 
pile driving activity, and estimated time spent within the Level A 
harassment zone;
     Distance from pile driving activities to marine mammals 
and distance from the marine mammals to the observation point;
     Locations of all marine mammal observations; and
     Other human activity in the area.
     Estimated take.
    If no comments are received from NMFS within 30 days, the draft 
final report will constitute the final report. If comments are 
received, a final report addressing NMFS comments must be submitted 
within 30 days after receipt of comments.
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHA 
(if issued), such as an injury, serious injury or mortality, AML would 
immediately cease the specified activities and report the incident to 
the Chief of the Permits and Conservation Division, Office of Protected 
Resources, NMFS, and the Alaska Regional Stranding Coordinator. The 
report would include the following information:
     Description of the incident;
     Environmental conditions (e.g., Beaufort sea state, 
visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities would not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS would work with AML to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. AML would not be able to 
resume their activities until notified by NMFS via letter, email, or 
telephone.
    In the event that AML discovers an injured or dead marine mammal, 
and the lead PSO determines that the cause of the injury or death is 
unknown and the death is relatively recent (e.g., in less than a 
moderate state of decomposition as described in the next paragraph), 
AML would immediately report the incident to the Chief of the Permits 
and Conservation Division, Office of Protected Resources, NMFS, and the 
NMFS Alaska Stranding Hotline and/or by email to the Alaska Regional 
Stranding Coordinator. The report would include the same information 
identified in the paragraph above. Activities would be able to continue 
while NMFS reviews the circumstances of the incident. NMFS would work 
with AML to determine whether modifications in the activities are 
appropriate.
    In the event that AML discovers an injured or dead marine mammal 
and the lead PSO determines that the injury or death is not associated 
with or related to the activities authorized in the IHA (e.g., 
previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), AML would report the incident to 
the Chief of the Permits and Conservation Division, Office of Protected 
Resources, NMFS, and the NMFS Alaska Stranding Hotline and/or by email 
to the Alaska Regional Stranding Coordinator, within 24 hours of the 
discovery. AML would provide photographs or video footage (if 
available) or other documentation of the stranded animal sighting to 
NMFS and the Marine Mammal Stranding Network.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any 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's 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).
    To avoid repetition, the discussion of our analyses applies to all 
the species listed in Table 7, given that the anticipated effects of 
this activity on these different marine mammal stocks are expected to 
be similar. There is little information about the nature or severity of 
the impacts, or the size, status, or structure of any of these species 
or stocks that would lead to a different analysis for this activity. 
Pile driving/removal and drilling activities have the potential to 
disturb or displace marine mammals. Specifically, the project 
activities may result in take, in the form of Level A harassment and 
Level B harassment from underwater sounds generated from pile driving 
and removal and DTH drilling. Potential takes could occur if 
individuals of these species are present in the ensonified zone when 
these activities are underway.
    The takes from Level A and Level B harassment would be due to 
potential behavioral disturbance, TTS, and PTS. No mortality is 
anticipated given the nature of the activity and measures designed to 
minimize the possibility of injury to marine mammals. Level A 
harassment is only anticipated for humpback whales, minke whales, 
Dall's porpoise, harbor porpoise, and harbor seal. The potential for 
harassment is minimized through the construction method and the 
implementation of the

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planned mitigation measures (see Proposed Mitigation section).
    The Level A harassment zones identified in Table 5 are based upon 
an animal exposed to impact pile driving five piles per day. 
Considering duration of impact driving each pile (up to 15 minutes) and 
breaks between pile installations (to reset equipment and move pile 
into place), this means an animal would have to remain within the area 
estimated to be ensonified above the Level A harassment threshold for 
multiple hours. This is highly unlikely given marine mammal movement 
throughout the area. If an animal was exposed to accumulated sound 
energy, the resulting PTS would likely be small (e.g., PTS onset) at 
lower frequencies where pile driving energy is concentrated. 
Nevertheless, we propose authorizing a small amount of Level A take for 
five species which is considered in our analysis.
    Behavioral responses of marine mammals to pile driving and removal 
at the Dock, if any, are expected to be mild and temporary. Marine 
mammals within the Level B harassment zone may not show any visual cues 
they are disturbed by activities (as noted during modification to the 
Kodiak Ferry Dock) or could become alert, avoid the area, leave the 
area, or display other mild responses that are not observable such as 
changes in vocalization patterns. Given the short duration of noise-
generating activities per day and that pile driving and removal would 
occur on 8 days across 4-5 months, any harassment would be temporary. 
In addition, AML would not conduct pile driving or removal during the 
spring eulachon and herring runs, when marine mammals are in greatest 
abundance and engaging in concentrated foraging behavior. There are no 
other areas or times of known biological importance for any of the 
affected species.
    In addition, although some affected humpback whales and Steller sea 
lions may be from a DPS that is listed under the ESA, it is unlikely 
that minor noise effects in a small, localized area of habitat would 
have any effect on the stocks' ability to recover. In combination, we 
believe that these factors, as well as the available body of evidence 
from other similar activities, demonstrate that the potential effects 
of the specified activities will have only minor, short-term effects on 
individuals. The specified activities are not expected to impact rates 
of recruitment or survival and will therefore not result in population-
level impacts.
    In summary and as described above, the following factors primarily 
support our preliminary determination that the impacts resulting from 
this activity are not expected to adversely affect the species or stock 
through effects on annual rates of recruitment or survival:
     No mortality is anticipated or authorized;
     Authorized Level A harassment would be very small amounts 
and of low degree;
     AML would avoid pile driving and removal during peak 
periods of marine mammal abundance and foraging (i.e., March 1 through 
May 31 eulachon and herring runs);
     AML would implement mitigation measures such as vibratory 
driving piles to the maximum extent practicable, soft-starts, and shut 
downs; and
     Monitoring reports from similar work in Alaska have 
documented little to no effect on individuals of the same species 
impacted by the specified activities.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal 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, where estimated numbers are 
available, NMFS compares the number of individuals taken to the most 
appropriate estimation of abundance of the relevant species or stock in 
our determination of whether an authorization is limited to small 
numbers of marine mammals. Additionally, other qualitative factors may 
be considered in the analysis, such as the temporal or spatial scale of 
the activities.
    The amount of take NMFS proposes to authorize is 0.05 to 3.1 
percent of any stock's best population estimate. These are all likely 
conservative estimates because they assume all pile driving occurs the 
month which has the highest marine mammal density and assumes all takes 
are of individual animals which is likely not the case. The Alaska 
stock of Dall's porpoise has no official NMFS abundance estimate as the 
most recent estimate is greater than eight years old. Nevertheless, the 
most recent estimate was 83,400 animals and it is highly unlikely this 
number has drastically declined. Therefore, the 20 authorized takes of 
this stock clearly represent small numbers of this stock. The Alaska 
stock of minke whale has no stock-wide abundance estimate. The stock 
ranges from the Bering and Chukchi seas south through the Gulf of 
Alaska. Surveys in portions of the range have estimated abundances of 
2,020 on the eastern Bering Sea shelf and 1,233 from the Kenai Fjords 
in the Gulf of Alaska to the central Aleutian Islands. Thus there 
appears to thousands of animals at least in the stock and clearly the 2 
authorized takes of this stock represent small numbers of this stock.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals will be taken relative to the population size 
of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. As discussed above, 
subsistence harvest of harbor seals and Steller sea lions comprise less 
than 1 pound per capita of all resources harvested by Haines residents. 
Therefore, NMFS has preliminarily determined that the total taking of 
affected species or stocks would not have an unmitigable adverse impact 
on the availability of such species or stocks for taking for 
subsistence purposes.

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 Region Protected 
Resources Division Office, whenever we propose to authorize take for 
endangered or threatened species.
    NMFS is proposing to authorize take of Western DPS Steller sea lion 
(Eumetopias jubatus) and Mexico DPS of humpback whales (Megaptera 
novaeangliae), which are listed under the ESA. The Permit and 
Conservation Division has requested initiation of Section 7 
consultation with the Alaska

[[Page 65133]]

Region for the issuance of this IHA. NMFS will conclude the ESA 
consultation prior to reaching a determination regarding the proposed 
issuance of the authorization.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to AML for conducting the Lutak Dock project in Haines, 
Alaska between June 15, 2020 and June 14, 2021, 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 Lutak 
Dock project. We also request at this time comment on the potential 
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 decisions on the request for this IHA or a 
subsequent Renewal.
    On a case-by-case basis, NMFS may issue a one-year IHA renewal with 
an additional 15 days for public comments when (1) another year of 
identical or nearly identical activities as described in the Specified 
Activities section of this notice is planned or (2) the activities as 
described in the Specified Activities section of this notice would not 
be completed by the time the IHA expires and a Renewal would allow for 
completion of the activities beyond that described in the Dates and 
Duration section of this notice, 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 under the 
requested Renewal are identical to the activities analyzed under the 
initial IHA, are a subset of the activities, or include changes so 
minor (e.g., reduction in pile size) that the changes do not affect the 
previous analyses, mitigation and monitoring requirements, or take 
estimates (with the exception of reducing the type or amount of take 
because only a subset of the initially analyzed activities remain to be 
completed under the Renewal); 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 will remain the same and 
appropriate, and the findings in the initial IHA remain valid.

    Dated: November 21, 2019.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2019-25642 Filed 11-25-19; 8:45 am]
BILLING CODE 3510-22-P