[Federal Register Volume 85, Number 64 (Thursday, April 2, 2020)]
[Notices]
[Pages 18562-18565]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06904]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XR083]


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

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

ACTION: Notice; modification of an incidental harassment authorization.

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SUMMARY: On December 19, 2019, NMFS received a request from the City 
and Borough of Juneau (CBJ) to modify an incidental harassment 
authorization (IHA) that was issued to CBJ on May 16, 2019 to take 
small numbers of harbor seals, by harassment, incidental to the Juneau 
dock and harbor waterfront improvement project. Pursuant to the Marine 
Mammal Protection Act (MMPA), NMFS is requesting comments on its 
proposal to modify the IHA. This modification includes changes to the 
prescribed mitigation and to the amount of authorized take by Level A 
harassment. The total amount of authorized taking remains the same. 
There are no changes to the activity, NMFS' findings, the effective 
dates of the issued IHA, or any other aspect of the IHA. NMFS will 
consider public comments prior to making any final decision on the 
requested modification of the authorization and agency responses will 
be summarized in the final notice of our decision.

DATES: This modified IHA is effective from the date of issuance through 
July 14, 2020.

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as the issued IHA, may be obtained 
online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems 
accessing these documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION: 

Background

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

History of Request

    On October 25, 2018, CBJ submitted a request to NMFS requesting an 
IHA for the possible harassment of small numbers of harbor seals 
incidental to the City of Juneau Dock and Harbor waterfront improvement 
project in Juneau, Alaska. On March 5, 2019, NMFS published a Federal 
Register notice (84 FR 7880) for the proposed IHA. On May 16, 2019, 
NMFS issued an IHA to CBJ. On May 28, 2019, NMFS published a Federal 
Register notice (84 FR 24490) announcing the issuance of the IHA, which 
is valid from July 15, 2019, through July 14, 2020.
    On December 19, 2019, NMFS received a request from CBJ to modify 
the 2019 IHA. CBJ subsequently submitted a revised IHA modification 
request on January 22, 2019, which NMFS determined to be adequate and 
complete. In the original IHA issued to CBJ, NMFS authorized 72 takes 
by Level A harassment and 3,454 takes by Level B harassment for harbor 
seals, and prescribed a shutdown distance of 130 m for impact driving 
of steel pipe piles. Prior to the start of in-water impact pile 
driving, CBJ conducted marine mammal abundance survey effort in the 
vicinity of the project area and found that there were significantly 
greater numbers of harbor seals present within the immediate vicinity 
of the construction site than previously estimated. The close proximity 
of the seals to the pile driving locations would preclude impact pile 
driving, due to the requirement to clear the 130-m shutdown zone prior 
to starting up. In addition, CBJ has determined that the high 
occurrence of harbor seals within the immediate vicinity of the 
construction site is likely lead to excessive shutdowns during pile 
driving, which would compromise the timely completion of CBJ's dock and 
harbor waterfront improvement project on time. CBJ asserts that this 
renders the prescribed 130-m shutdown zone impracticable, and on the 
basis of the new information provided by CBJ, NMFS concurs with this 
determination.
    Therefore, CBJ requested to reduce the shutdown distance for impact 
pile driving from 130 m (as prescribed in the original IHA) to 25 m. As 
a direct result of this requested change, CBJ determined it necessary 
to request an increase in the amount of authorized incidents of take by 
Level A harassment from 72 to 324, while the total amount of authorized 
taking by harassment remains the same. The original 130-m shutdown zone 
was designed to avoid most Level A harassment, and was therefore based 
on the size of Level A harassment radius for impact pile driving. 
During construction conducted to date, CBJ has not exceeded the 
authorized amounts of take.
    The scope of the project and potential effects to marine mammals in 
the area remain the same as analyzed previously for the issuance of the 
IHA in 2019 (84 FR 24490; May 28, 2019).

Comments and Responses

    A notice of NMFS' proposal to modify the IHA was published in the 
Federal Register on February 7, 2020 (85 FR 7289). During the 30-day 
public comment period, NMFS received a comment letter from the Marine 
Mammal Commission (Commission). Specific comments and responses are 
provided below.
    Comment 1: The Commission states that it is concerned that CBJ did 
not

[[Page 18563]]

conduct observations or provide the number of harbor seals that haul 
out at haulout site CF07A, which is one of the NMFS Marine Mammal 
Laboratory's (MML) recognized haulout sites and is closer to the 
project area. The Commission states that it is apparent that more than 
43 harbor seals would be in that area. The Commission thus recommends 
that NMFS (1) consult with its MML to determine how many harbor seals 
haul out at haulout sites CF07A and CF10A, (2) if the number of seals 
observed by MML at CF10A is greater than 43, authorize that number of 
Level B harassment takes plus the number of seals observed at CF07A 
but, if the number of seals observed by MML at CF10A is less than 43 
authorize 43 takes plus the number of seals observed at CF07A, and (3) 
refrain from reducing the Level B harassment takes by the Level A 
harassment takes.
    Response: NMFS consulted with MML regarding harbor seal abundance 
in the vicinity of the project area. MML states that CF07A and CF10A 
are not considered as key haulout sites because no seals have been 
observed there for nearly 15 years (J. London, per. comm., 3 March 
2020). MML further states that the Commission may be using outdated 
resources for MML's published waypoint database. Therefore, we believe 
the local abundance number of an average of 43 animals in the vicinity 
of the project location, which is based on more recent sightings, is 
the best available information regarding local occurrence of harbor 
seals. Additionally, NMFS does not agree with the Commission of 
including the Level A harassment takes within Level B harassment takes. 
Under the MMPA, marine mammal harassments are categorized either as 
Level A or Level B. If an animal is taken by Level A harassment, then 
it is not taken by Level B harassment.
    Comment 2: The Commission notes that CBJ has yet to begin its pile 
driving activities, and recommends NMFS to extend the end date of the 
IHA to ensure that CBJ can finish the project by July 14, 2020, when 
the IHA expires.
    Response: NMFS confirmed that CBJ should be able to complete the 
in-water pile driving activities before the expiration of the IHA. We 
therefore do not adopt the Commission's recommendation.
    Comment 3: The Commission recommends that NMFS ensure that CBJ 
keeps a running tally of the total Level A and B harassment takes, 
given the prevalence of harbor seals in the project area and to fulfill 
condition 4(f) in the authorization.
    Response: Condition 4(f) in the IHA issued to CBJ states, ``If a 
species for which authorization has not been granted, or a species for 
which authorization has been granted but the authorized takes are met, 
is observed approaching or within the monitoring zone, pile driving and 
removal activities must shut down immediately using delay and shut-down 
procedures.'' It is unclear how the Commission's recommendation is 
related to condition 4(f). Regarding the recommended requirement to 
``keep a running tally,'' NMFS agrees that CBJ must ensure they do not 
exceed authorized takes. However, as we have now noted in multiple 
responses to this same comment, we disagree that inclusion of this 
specific requirement in IHA language is appropriate and we do not adopt 
the Commission's recommendation.

Description of the Proposed Activity and Anticipated Impacts

Detailed Description of the Action

    The purpose of the CBJ's project is to improve the downtown 
waterfront area within Gastineau Channel in Juneau, Alaska, to 
accommodate the needs of the growing cruise ship visitor industry and 
its passengers while creating a waterfront that meets the expectations 
of a world-class facility. The project would meet the needs of an 
expanding cruise ship industry and its passengers by creating ample 
open space thereby decreasing congestion and improving pedestrian 
circulation.
    The CBJ waterfront improvements project includes constructing a 
pile supported deck along the waterfront to meet the needs of an 
expanding cruise ship industry and its passengers by creating ample 
open space thereby decreasing congestion and improving pedestrian 
circulation. More details of the CBJ waterfront improvement project are 
provided in the Federal Register notice for the proposed IHA (84 FR 
7880; March 5, 2019) and are not repeated here. There is no change from 
the description of the project activities that is provided in the 
Federal Register notice for the modification of the IHA.
    A list of pile driving and removal activities is provided in Table 
1. The total number of days that involve in-water pile driving is 
estimated to be 82 days.
    Construction of the CBJ waterfront improvements project is planned 
between May 15, 2019 and August 31, 2020. The in-water portion of the 
construction work occurs from July 15, 2019, through July 14, 2020, and 
is covered under an IHA issued by NMFS on May 16, 2019 (84 FR 24490; 
May 28, 2019). CBJ has not started in-water pile driving, but is 
expected to do so as soon as the modified IHA is issued.

                              Table 1--Summary of In-Water Pile Driving Activities
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                                                                                        Pile driving/
                                                                                           removal
                                                                                          duration
                                                                   Total      Number     (sec.) per
                Method                    Pile type and size       Number   piles/day       pile       Work days
                                                                   piles               (vibratory) or
                                                                                         strikes per
                                                                                        pile (impact)
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Vibratory pile removal...............  Timber piles, unknown           100         10             900         10
                                        diameter but assumed to
                                        be no more than 14-in.
Vibratory piling for supported dock..  Steel piles, 16-in......       * 42          5           5,400          9
Impact proofing for supported dock...  Steel piles, 16-in......       * 42          5             150          9
Vibratory piling for supported dock..  Steel piles, 18-in......       * 45          5           5,400          9
Impact proofing for supported dock...  Steel piles, 18-in......       * 45          5             150          9
Vibratory piling for temporary piles.  Steel piles, 18-in......         87          5           5,400         18
Vibratory pile removal for temporary   Steel piles, 18-in......         87          5             900         18
 piles.
                                                                ------------------------------------------------
    Total............................  ........................        274  .........  ..............         82
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* Vibratory driving and impact proofing will occur on separate days.


[[Page 18564]]

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
is found in the previous notice (84 FR 7880; March 5, 2019), which 
remains applicable to the issued IHA modification as well. NMFS is not 
aware of relevant new scientific information since issuance of the 
original IHA in May 2019.
    A recent marine mammal monitoring effort conducted by CBJ in the 
project area showed more harbor seal occurrence at the pile driving 
location than previously expected. However, this information does not 
necessarily indicate an increase in the regional seal population.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activities 
on marine mammals and their habitat may be found in the previous notice 
(84 FR 7880; March 5, 2019), which remains valid and applicable to the 
issued IHA modification. NMFS is not aware of new information regarding 
potential effects.

Anticipated Impact on Subsistence Use

    CBJ has contacted the Alaska Department of Fish and Game (ADF&G) 
regarding potential impact on subsistence use of marine mammal 
resources. CBJ was notified by ADF&G that the project area in Gastineau 
Channel is not a subsistence use area for harbor seals. Therefore, the 
project is not likely to adversely impact the availability of any 
marine mammal species or stocks that are used for subsistence purposes 
in the Juneau area.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
authorized take is found in the previous notice (84 FR 7880; March 5, 
2019). The methods of estimating take by harassment from pile driving 
and pile removal activities for the original IHA are retained here. The 
source levels, days of operation, and marine mammal abundance remain 
unchanged from the previously issued IHA.
    While the total number of harbor seal takes by harassment remain 
the same, the IHA modification allows an increase of Level A harassment 
due to the reduction of shutdown zone from impact pile driving and, 
therefore, a reduction in authorized incidents of take by Level B 
harassment. As stated in the Federal Register notice for the final IHA 
(84 FR 24490; May 28, 2019), the total take number was determined as 
follows:
    Take = animal number in a typical day near the project area x 
operating days = 43 x 82 = 3,526.
    The previously issued IHA required a shutdown distance of 130-m to 
avoid most Level A harassment, but included authorization of some 
minimal Level A harassment based on the possibility that harbor seals 
could enter the shutdown zone unnoticed. We assumed that four seals 
could enter the Level A harassment zone on each of the 18 days when 
impact pile driving would occur.
    Marine mammal monitoring carried out by CBJ showed that an average 
of 18 different individual harbor seals could occur within the 
prescribed 130-m Level A harassment zone, and that they were unlikely 
to leave the area. Therefore, NMFS and CBJ agreed to adjust the number 
of Level A harassment calculation by:
    Level A harassment = Daily average harbor seals within Level A 
harassment zone x Impact pile driving days = 18 x 18 = 324.
    Subtracting the number of Level A harassment takes from the total 
take, we derive the number of Level B harassment at 3,202 seals.
    A summary of modified estimated takes in relation to population 
percentage is provided in Table 2.

                                         Table 2--Estimated Take Numbers
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                                              Estimated level  Estimated level  Estimated total
                   Species                         A take           B take            take          Abundance
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Harbor seal.................................             324            3,202            3,526            9,478
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Description of Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures prescribed 
remain the same except that for this IHA modification, the shutdown 
zone for impact pile driving is reduced to 25 m from the previously 
required 130 m.
    The following additional measures are included in the original IHA:
     Establishment of Shutdown Zone--For all pile driving 
activities, CBJ will establish a shutdown zone. The purpose of a 
shutdown zone is generally to define an area within which shutdown of 
activity would occur upon sighting of a marine mammal (or in 
anticipation of an animal entering the defined area). For vibratory 
pile driving and pile removal, shutdown zone is established at 10 m 
from the pile, which is the same as described in the Federal Register 
notice of the issuance (84 FR 24490; May 28, 2019). As noted above, for 
impact pile driving, the shutdown zone is modified from 130 m to 25 m 
from the pile.
     Establishment of Monitoring Zones--CBJ must identify and 
establish Level A harassment zones. These zones are areas beyond the 
shutdown zones where animals may be exposed to sound levels that could 
result in permanent threshold shift (PTS). CBJ will also identify and 
establish Level B harassment disturbance zones which are areas where 
sound pressure levels (SPLs) equal or exceed 160 dB rms for impact 
driving and 120 dB rms during vibratory driving. Observation of 
monitoring zones enables observers to be aware of and communicate the 
presence of marine mammals in the project area and outside the shutdown 
zone and thus prepare for potential shutdowns of activity. NMFS has 
established monitoring protocols described in the Federal Register 
notice of the issuance (84 FR 24490; May 28, 2019) which are based on 
the distance and size of the monitoring and shutdown zones. These same 
protocols are contained in this issued IHA modification.
     Time Restrictions--Work may occur only during daylight 
hours, when visual monitoring of marine mammals can be conducted.
     Soft Start--The use of a soft start procedure is believed 
to provide additional protection to marine mammals by providing warning 
and/or giving marine mammals a chance to leave the area prior to the 
hammer operating at full capacity. For impact pile driving, contractors 
will be required to implement soft start procedures. Soft start is not 
required during vibratory pile driving and removal activities.
     Visual Marine Mammal Observation--Monitoring must be 
conducted by qualified protected species observers (PSOs), who are 
trained biologists, with minimum qualifications described in the 
Federal Register notice of the issuance of the original IHA (84 FR 
24490; May 28,

[[Page 18565]]

2019). In order to effectively monitor the pile driving monitoring 
zones, a minimum of two PSOs must be positioned at the best practical 
vantage point(s). PSOs shall record specific information on the 
sighting forms as described in the Federal Register notice of the 
issuance of the original IHA (84 FR 24490; May 28, 2019). At the 
conclusion of the in-water construction work, CBJ will provide NMFS 
with a monitoring report which includes summaries of recorded takes and 
estimates of the total number of marine mammals that may have been 
harassed.

Determinations

    The activities to be conducted by CBJ in the modified IHA are the 
same as those analyzed in the original IHA.
    The reduction of shutdown zones for impact pile driving, and the 
resulting increase of Level A harassment of harbor seals do not change 
our original analysis and determination. Although some individual 
harbor seals are estimated to experience Level A harassment in the form 
of PTS if they stay within the Level A harassment zone during the 
entire pile driving for the day, the degree of injury is expected to be 
mild and is not likely to affect the reproduction or survival of the 
individual animals. Impact pile driving for each pile would last for 
approximately 30 minutes. After that, the contractor would take 5 to 30 
minutes to start the next pile. In addition, it is expected that, if 
hearing impairment occurs, most likely the affected animal would lose a 
few decibels (dB) in its hearing sensitivity, which in most cases is 
not likely to affect its survival and recruitment. Hearing impairment 
that might occur for these individual animals would be limited to the 
dominant frequency of the noise sources, i.e., in the low-frequency 
region below 2 kHz.
    Under the majority of the circumstances, anticipated takes are 
expected to be limited to short-term Level B harassment. Harbor seals 
present in the vicinity of the action area and taken by Level B 
harassment would most likely show overt brief disturbance (startle 
reaction) and avoidance of the area from elevated noise levels during 
pile driving and pile removal. Given the limited estimated number of 
incidents of total harassment and the limited, short-term nature of the 
responses by the individuals, the impacts of the estimated take cannot 
be reasonably expected to, and are not reasonably likely to, rise to 
the level that they would adversely affect the species at the 
population level, through effects on annual rates of recruitment or 
survival.
    There are no known important habitats, such as rookeries or 
haulouts, in the vicinity of the CBJ's waterfront improvement 
construction project. The project also is not expected to have 
significant adverse effects on affected marine mammals' habitat, 
including prey, as analyzed in detail in the Federal Register notice of 
the issuance of the existing IHA (84 FR 24490; May 28, 2019). In 
conclusion, there is no new information suggesting that our analysis or 
findings should change.
    The estimated take of harbor seal would be 37 percent of the 
population, if each single take were a unique individual. However, this 
is highly unlikely because the harbor seal in the vicinity of the 
project area shows site fidelity to small areas for period of time that 
can extend between seasons, as discussed in detail in the Federal 
Register notice for the issuance of the existing IHA (84 FR 24490; May 
28, 2019). The total number of harbor seals that is authorized to be 
taken has not changed. Based on the analysis contained herein of the 
activity (including the prescribed mitigation and monitoring measures) 
and the anticipated take of marine mammals, NMFS finds that small 
numbers of harbor seal will be taken relative to the population size of 
the affected species or stocks.
    Based on the information contained here and in the referenced 
documents, NMFS has determined the following: (1) The required 
mitigation measures will affect the least practicable impact on marine 
mammal species or stocks and their habitat; (2) the authorized takes 
will have a negligible impact on the affected marine mammal species or 
stocks; (3) the authorized takes represent small numbers of marine 
mammals relative to the affected stock abundances; and (4) CBJ's 
activities will not have an unmitigable adverse impact on taking for 
subsistence purposes as no relevant subsistence uses of marine mammals 
are implicated by this action, and (5) appropriate monitoring and 
reporting requirements are included.

Endangered Species Act (ESA)

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

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 determined that the issuance of the 
original IHA qualified to be categorically excluded from further NEPA 
review.

Authorization

    As a result of these determinations, NMFS has issued a modification 
to an IHA to the City and Borough of Juneau for the Juneau Dock and 
Harbor waterfront improvement project in Juneau, Alaska, provided the 
previously described mitigation, monitoring, and reporting requirements 
are incorporated.

    Dated: March 30, 2020.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2020-06904 Filed 4-1-20; 8:45 am]
BILLING CODE 3510-22-P