[Federal Register Volume 85, Number 77 (Tuesday, April 21, 2020)]
[Notices]
[Pages 22139-22150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08408]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA134]


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; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
Alaska Marine Lines, Inc. (AML) to incidentally harass, by Level A and 
Level B harassment, marine mammals during pile driving activities 
associated with the Lutak Dock Project in Haines, Alaska.

DATES: This authorization is effective from June 15, 2020 through June 
14, 2021.

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.

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 Specified Activity

    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 pulling or 
cutting off at the mudline or using a vibratory hammer as a last 
resort) of 12 steel pipe piles (16 inch diameter) of two berthing 
dolphins associated with the existing steel cargo bridge; fill 4,000 
yards (3058 cubic meters) of gravel and 1,000 yards (765 cubic meters) 
of riprap to construct a causeway below the new dock; installing below 
mean high water (MHW) a 46-foot (14 m) long by 15-foot (4.6 m) 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 (12 m) wide by 40-foot (12 m) long, pile supported (three 
30-inch diameter steel pipe piles), concrete abutment within the 
causeway to support a 120-foot long (36.6 m) by 24-foot (7.3 m) wide 
steel bridge over navigable waters.
    The pile driving/removal 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 (2.6 square km) around the project site. 
The project will take no more than 8 days of pile-driving/removal or 
DTH drilling.
    A detailed description of the planned project is provided in the 
Federal Register notice for the proposed IHA (84 FR 65117; November 26, 
2019). Since that time, no changes have been made to the planned pile 
driving activities. Therefore, a detailed description is not provided 
here. Please refer to that Federal Register notice for the description 
of the specific activity.

Comments and Responses

    A notice of NMFS's proposal to issue an IHA to AML was published in 
the Federal Register on November 26, 2019 (84 FR 65117). That notice 
described, in detail, AML's activity, the marine mammal species that 
may be affected by

[[Page 22140]]

the activity, and the anticipated effects on marine mammals. During the 
30-day public comment period, NMFS received no public comments. A 
comment letter from the Marine Mammal Commission (Commission) was 
received outside of the public comment process pursuant to the 
Commission's authority to recommend steps it deems necessary or 
desirable to protect and conserve marine mammals (16 U.S. C. 
1402.202(a)). We are obligated to respond to the Commission's 
recommendations within 120 days, and we do so below.
    Comment 1: The Commission recommends that NMFS refrain from issuing 
renewals for any authorization and instead use its abbreviated Federal 
Register notice process.
    Response: NMFS appreciates the streamlining achieved by the use of 
abbreviated Federal Register notices and intends to continue using them 
for proposed IHAs that include minor changes from previously issued 
IHAs, but which do not satisfy the renewal requirements. However, our 
method for issuing renewals meets statutory requirements and maximizes 
efficiency, and we plan to continue considering requests for renewals.
    Comment 2: The Commission recommends that NMFS stipulate that a 
renewal is a one-time opportunity in all Federal Register notices 
requesting comments on the possibility of a renewal, on its web page 
detailing the renewal process, and in all draft and final 
authorizations that include a term and condition for a renewal.
    Response: NMFS thanks the Commission for its recommendation. 
Currently, Federal Register notices announcing proposed IHAs and the 
potential for a Renewal state, in the SUMMARY section, ``NMFS is also 
requesting comments on a possible one-year renewal that could be issued 
under certain circumstances and if all requirements are met.'' Further, 
no notice for any additional Renewal is included in the Federal 
Register Notice for proposed Renewals, so the current process already 
ensures that only one Renewal will be issued. We have revised the 
website to clarify some of the language around Renewal IHAs.
    Comment 3: The Commission recommends that NMFS finish reviewing and 
finalize its recommended proxy source levels for both impact and 
vibratory installation of the various pile types and sizes.
    Response: NMFS thanks the Commission for its recommendation.
    Comment 4: The Commission recommends that NMFS require all 
applicants that propose to use a DTH hammer to install piles, conduct 
in-situ measurements and adjust the Level A and B harassment zones 
accordingly. They further recommend that we re-estimate the Level A 
harassment zones for DTH drilling based on source levels provided 
either by Reyff and Heyvaert (2019) or Denes et al. (2019) and NMFS's 
Level A harassment thresholds for impulsive sources and (2) increase 
the numbers of Level A harassment takes accordingly.
    Response: We appreciate the Commission's concern about the rise of 
DTH drilling. We have received a number of in-situ measurements from 
prior projects, including Reyff and Heyvaert (2019) and Denes et al. 
(2019), and are currently evaluating those data to determine next steps 
to ensure marine mammals are adequately protected. We direct the 
Commission and other readers to our recent response to a similar 
Commission comment, which can be found at 85 FR 673 (January 7, 2020).
    Comment 5: The Commission recommends that NMFS include in the 
Federal Register notice relevant site-specific information for harbor 
and Dall's porpoises, pertinent information regarding subsistence use 
of the various marine mammal species, whether AML's activities overlap 
in time and space with known hunting activities, whether the local 
Native Alaskan communities that hunt marine mammals were contacted, 
whether any concerns were conveyed, whether additional mitigation 
measures are warranted, and the requirement to report unauthorized 
taking (including injured and dead marine mammals) to the Alaska 
Regional Stranding Coordinator.
    Response: The Commission did not note any specific information 
lacking for harbor and Dall's porpoises that would affect the proposed 
authorization so we have not added any additional information to this 
notice. We note that the proposed IHA referred readers to the Stock 
Assessment Reports and other information on these and the other species 
on our website. AML contacted local Native Alaskan communities and 
updated the subsistence use section of their application accordingly, 
and we include this new information below. We note the appropriate 
local Alaska Regional contact for unauthorized take was in our proposed 
IHA.
    Comment 6: The Commission recommends that NMFS include in the 
notice and final authorization, if issued, the requirements to 
extrapolate Level A harassment takes to unobserved portions of the 
Level A harassment zone, similar to Level B harassment takes and to 
keep a running tally of total Level A and B harassment takes based on 
both observed and extrapolated takes.
    Response: We clarify in this notice and final authorization the 
requirement for AML to extrapolate Level A harassment takes to 
unobserved portions of the Level A harassment zone, if necessary. With 
regard to keeping a running tally of total Level A and B harassment 
takes, we agree that the applicant must ensure they do not exceed 
authorized takes.
    Comment 7: The Commission recommends that NMFS re-estimate the 
Level B harassment zone for impact installation of 36-in piles based on 
the source level of 193 dB re 1 [mu]Pa at 10 m as provided in Caltrans 
(2015) and consistent with the other source level metrics.
    Response: AML chose to use the more conservative source level of 
194 dB re 1 [mu]Pa at 10 m as provided in Denes et al. (2016) because 
this reference is based on local conditions more similar to the current 
project. We support the use of the more conservative source level of 
Denes (2016).

Changes From the Proposed IHA to Final IHA

    A new paper was published that provided updated estimates of the 
proportion of western Distinct Population Segment (DPS) Steller sea 
lions occurring in different parts of the range of the eastern DPS of 
Steller sea lions in Alaska (Hastings et al., 2020). For the area of 
this project the estimate declined from 2 percent to 1.4 percent. We 
used the updated 1.4 percent value to calculate the share of take for 
the two DPSs. The final take numbers are thus 1291 for the eastern DPS 
and 18 for the western DPS.
    New information also became available for the abundance of humpback 
whales in the area. We used that to calculate density and estimate 
take, though in the end, take did not change from the proposed 
authorization.
    Minor clarifications have been made to language regarding pile 
removal methods in the Description of Specified Activity section. In 
the Estimated Take section we clarified the use of Denes et al. (2016) 
to calculate the Level B harassment zones for impact pile driving as 
this reference is based on local conditions more similar to the current 
project and is a more conservative estimate. We also clarified in that 
section the method for determining a combined source level for 
vibratory and DTH drilling. As a result of the ESA Section 7 Biological 
Opinion the mitigation requirement not to recommence pile driving is 
extended to

[[Page 22141]]

30 minutes for ESA listed species and there are additional reporting 
requirements for take of ESA listed species. We clarify in the 
Monitoring and Reporting section of this notice and final authorization 
the requirement for AML to extrapolate Level A harassment takes to 
unobserved portions of the Level A harassment zone, if necessary. 
Additional details on subsistence use and consultations with local 
Native Alaskan communities are provided in the Effects of Specified 
Activities on Subsistence Uses of Marine Mammals section of their 
application accordingly and we included those herein.

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 (2019). 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 draft 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,
            Common name                  Scientific name              Stock             ESA/MMPA status;       Nmin, most recent       PBR     Annual M/
                                                                                       strategic (Y/N) \1\   abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale....................  Physeter macrocephalus  North Pacific.........  -; N                    N/A (see SAR, N/A,       See SAR        4.4
                                                                                                              2015), see text.
Family Balaenopteridae (rorquals):
    Humpback Whale.................  Megaptera novaeangliae  Central North Pacific.  -;N (Hawaii DPS)        10,103 (0.3, 7,890,           83         25
                                                                                                              2006).
                                                             Central North Pacific.  T,D,Y (Mexico DPS)      3,264................        N/A        N/A
    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.......                          2,347................         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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and
 sea lions):
    California sea lion............  Zalophus californianus  U.S...................  -; N                    257,606 (N/A,             14,011       >320
                                                                                                              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.
\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.

[[Page 22142]]

 
\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 planned project 
area are included in Table 1. As described below, all 7 species (with 
10 managed stocks) temporally and spatially co-occur with the activity 
to the degree that take is reasonably likely to occur, and we have 
authorized it.
    A detailed description of the of the species likely to be affected 
by AML's planned project, including brief introductions to the species 
and relevant stocks as well as available information regarding 
population trends and threats, and information regarding local 
occurrence, were provided in the Federal Register notice for the 
proposed IHA (84 FR 65117; November 26, 2019); since that time, we are 
not aware of any changes in the status of these species and stocks; 
therefore, detailed descriptions are not provided here. Please refer to 
that Federal Register notice for these descriptions. Please also refer 
to NMFS' website (https://www.fisheries.noaa.gov/find-species) for 
generalized species accounts.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from pile installation and removal 
activities for the Lutak Dock Project have the potential to result in 
behavioral harassment of marine mammals in the vicinity of the action 
area. The Federal Register notice for the proposed IHA (84 FR 65117; 
November 26, 2019) included a discussion of the effects of 
anthropogenic noise on marine mammals, therefore that information is 
not repeated here; please refer to the Federal Register notice (84 FR 
65117; November 26, 2019) for that information.
    The main impact associated with the Lutak Dock Project would be 
temporarily elevated sound levels and the associated direct effects on 
marine mammals. The project would not result in permanent impacts to 
habitats used directly by marine mammals, such as haulout sites, but 
may have potential short-term impacts to food sources such as forage 
fish, and minor impacts to the immediate substrate during installation 
and removal of piles during the planned project. These potential 
effects are discussed in detail in the Federal Register notice for the 
proposed IHA (84 FR 65117; November 26, 2019), therefore that 
information is not repeated here; please refer to that Federal Register 
notice for that information.

Estimated Take

    This section provides an estimate of the number of incidental takes 
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 
mitigation and monitoring measures are expected to minimize the 
severity of the taking to the extent practicable.
    As described previously, no mortality is 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 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 
Permanent Threshold Shift (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 planned 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

[[Page 22143]]

(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 2. 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 2--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: Lpk,flat: 219 dB;   Cell 2: LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lpk,flat: 230 dB;   Cell 4: LE,MF,24h: 198 dB.
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lpk,flat: 202 dB;   Cell 6: LE,HF,24h: 173 dB.
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lpk,flat: 218 dB;   Cell 8: LE,PW,24h: 201 dB.
                                          LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: Lpk,flat: 232 dB;   Cell 10: LE,OW,24h: 219 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 five 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 two 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) and 194 dB (RMS SPL) from Denes et al. (2016), to be 
conservative. We assumed no more than five 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 4 hours of 
vibratory pile driving plus 6 hours of DTH drilling in a single day. 
For this scenario the source level was calculated by converting the 
source levels from dB before averaging and then re-converting the 
result to dB again. This is thus not a direct arithmetic average of all 
the hourly levels in decibels and could be described as the energy 
equivalent average level over 10 hours of activity.
    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 3. These input 
scenarios lead to PTS isopleth distances (Level A thresholds) of 
anywhere from 7 to 2,742 meters, depending on the marine mammal group 
and scenario (Table 4). Table 4 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\.

[[Page 22144]]



                                      Table 3--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 SELss, 194 SPLrms..  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  5......................  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......................  2.5.
----------------------------------------------------------------------------------------------------------------


                 Table 4--NMFS User Spreadsheet Outputs: PTS Isopleths and Daily Ensonified Area
----------------------------------------------------------------------------------------------------------------
                                             User spreadsheet output
-----------------------------------------------------------------------------------------------------------------
                                                                       High-
           Source type             Low-frequency   Mid-frequency     frequency        Phocid          Otariid
                                     cetaceans       cetaceans       cetaceans       pinnipeds       pinnipeds
----------------------------------------------------------------------------------------------------------------
                                              PTS Isopleth (meters)
----------------------------------------------------------------------------------------------------------------
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 
(46.3 km) for vibratory pile driving and 0.98 miles (1.58 km) 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 six of the seven marine mammal species 
(except humpback whales, see below) for which take is authorized 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\2\ 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 5.
    A very small number of humpback whales were recorded on the sea 
lion surveys near Gran Point (low single digits), representing our only 
non-anecdotal source of locally-obtained abundance data. Various 
reports, both anecdotal and from these surveys, put the number of 
humpback whales present near the project area in the single digits 
(NMFS, 2017; ECO49, 2019 (the application)). We estimate that the 
number of whales that may encounter project sound per day is likely 
about one per day. Sometimes, a breeding female whale with a calf may 
pass by, increasing a particular day's total whale exposure rate from 
one to two. Because this operation will continue for up to 8 days, we 
estimate no more than 10 whales total might enter the ensonified area 
during the project.

         Table 5--Species Density Values Used To Calculate Take
------------------------------------------------------------------------
                                                           Density  (#/
                         Species                              km\2\)
------------------------------------------------------------------------
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
------------------------------------------------------------------------


[[Page 22145]]

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 
for the species with data from Table 5 by the daily ensonified area for 
PTS for Level A from Table 4 above and then multiplying by the maximum 
possible number of work days (8) and finally rounding to the next whole 
number (Table 6). We similarly estimated Level B take for the project 
by multiplying the maximum monthly species density from Table 5 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 6 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 6).
    For humpback whales we estimated above no more than 10 whales total 
may encounter project sound at Level B Harassment levels; thus our 
total take is estimated to be 10 whales. Of these 10 whales, 6.1 
percent are expected to be of the ESA listed entity, or about 0.6 
whales, which we conservatively round up to one ESA listed Mexico DPS 
whale exposed to Level B acoustic harassment. The remaining nine takes 
are of the Hawaii DPS whales. No Level A harassment is expected for 
ESA-listed humpbacks due to the very small total number of humpbacks 
that are expected to be exposed. Given the size of the daily ensonified 
area for PTS for Level A from Table 4 above, we estimate three of the 
takes of the Hawaii DPS of humpback whales will be Level A takes, 
leaving six Level B takes for the Hawaii DPS and seven overall for the 
species (Table 6).

                  Table 6--Authorized Level A and B Take and Percent of MMPA Stock To Be Taken
----------------------------------------------------------------------------------------------------------------
                                                                                      Species
                         Authorized Take                         -----------------------------------------------
                                                                      Level B         Level A       % of 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
Steller Sea Lion (Eastern DPS) 2 3..............................            1291               0             3.1
Steller Sea Lion (Western DPS) 2 3..............................              18               0            0.03
----------------------------------------------------------------------------------------------------------------
\1\ Distribution of 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
  at 200 m (see below) which would further decrease possibility of Level A takes for these species. Therefore,
  Level A takes are not authorized.
\3\ Total estimated take of Steller sea lions was 1309 individuals. Distribution between the stocks was
  calculated assuming 1.4 percent 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 (0.45 kg) 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.

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

[[Page 22146]]

of a military readiness activity, personnel safety, practicality of 
implementation, and impact on the effectiveness of the military 
readiness activity.
    In addition to the measures described later, AML is required to 
employ the following mitigation measures:
     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 must 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., use of barge-mounted excavators, or dredging), 
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 15-minute period (30 minutes for ESA 
listed humpback whales and Steller sea lions). If pile driving is 
stopped, pile installation would not commence if pile any marine 
mammals are observed anywhere within the Level A harassment zone (Table 
7). 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;

                         Table 7--Level A Harassment Zones (m) for Each Project Activity
----------------------------------------------------------------------------------------------------------------
                                                                                     Combined
                  Hearing group                      Vibratory          DTH         vibratory +       Impact
                                                                                        DTH
----------------------------------------------------------------------------------------------------------------
Low Frequency Cetaceans.........................           * 200           * 200           * 200          * 1400
Mid-Frequency Cetaceans.........................           * 200           * 200           * 200           * 200
High Frequency Cetaceans........................             253           * 200             296            2700
Phocids.........................................           * 200           * 200           * 200            1200
Otarids.........................................           * 200           * 200           * 200           * 200
----------------------------------------------------------------------------------------------------------------
* Actual zone distance is less, but 200-m shutdown zone takes precedence.

     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 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 reduced 
energy 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 determined that the 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.

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 
planned 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

[[Page 22147]]

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 30 minutes.
    A primary PSO must 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 must 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 must 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 (1 km, 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 must 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 must 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 A 
or B harassment zones will be observable by PSOs, they will calculate 
take for the project by extrapolating the observable area to the total 
size of the Level A or B harassment zone, as needed. 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 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:
     Dates and times (begin and end) of all marine mammal 
monitoring;
     Construction activities occurring during each daily 
observation period, including how many and what type of piles were 
driven or removed and by what method (i.e., impact or vibratory);
     Weather parameters and water conditions during each 
monitoring period (e.g., wind speed, percent cover, visibility, sea 
state);
     The number of marine mammals observed, by species, 
relative to the pile location and if pile driving or removal was 
occurring at time of sighting;
     Age and sex class, if possible, of all marine mammals 
observed;
     PSO locations during marine mammal monitoring;
     Distances and bearings of each marine mammal observed to 
the pile being driven or removed for each sighting (if pile driving or 
removal was occurring at time of sighting);
     Description of any marine mammal behavior patterns during 
observation, including direction of travel;
     Number of individuals of each species (differentiated by 
month as appropriate) detected within the monitoring zone, and 
estimates of number of marine mammals taken, by species (a correction 
factor may be applied to total take numbers, as appropriate);
     Detailed information about any implementation of any 
mitigation triggered (e.g., shutdowns and delays), a description of 
specific actions that ensued, and resulting behavior of the animal, if 
any;
     Description of attempts to distinguish between the number 
of individual animals taken and the number of incidences of take, such 
as ability to track groups or individuals; and
     An extrapolation of the estimated takes by Level A or B 
harassment based on the number of observed exposures within the Level A 
or B harassment zone and the percentage of the Level A or B harassment 
zone that was not visible, when applicable.
    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 addition, AML must develop and submit to NMFS Alaska Region a 
digital spreadsheet that specifies the date and start/stop times each 
pile was removed/installed; the method(s) used to remove/

[[Page 22148]]

install each pile; the size of each pile; and any other information 
which may be useful in aiding the assessment of effects of different 
pile driving activities on ESA-listed species.
    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 6, 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, Temporary Threshold Shift (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 planned mitigation measures (see 
Mitigation section).
    The Level A harassment zones identified in Table 7 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 authorize 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

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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 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 monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the planned 
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 authorizes is less than one-third 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 8 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 
two authorized takes of this stock represent small numbers of this 
stock.
    Based on the analysis contained herein of the planned activity 
(including the planned mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS 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

    In order to issue an IHA, NMFS must find that the specified 
activity will not have an ``unmitigable adverse impact'' on the 
subsistence uses of the affected marine mammal species or stocks by 
Alaskan Natives. NMFS has defined ``unmitigable adverse impact'' in 50 
CFR 216.103 as an impact resulting from the specified activity: (1) 
That is likely to reduce the availability of the species to a level 
insufficient for a harvest to meet subsistence needs by: (i) Causing 
the marine mammals to abandon or avoid hunting areas; (ii) Directly 
displacing subsistence users; or (iii) Placing physical barriers 
between the marine mammals and the subsistence hunters; and (2) That 
cannot be sufficiently mitigated by other measures to increase the 
availability of marine mammals to allow subsistence needs to be met.
    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 (0.45 kg) per capita of all resources harvested by Haines 
residents, so the area is not important for subsistence hunting. The 
short-term, relatively low-impact, Level A and Level B harassment takes 
resulting from construction activities associated with the Lutak Dock 
project will have no impact on the ability of hunters to harvest marine 
mammals. Therefore, NMFS has 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 Alaska Region issued a Biological Opinion to NMFS Office of 
Protected Resources on April 13, 2020, which concluded the issuance of 
an IHA to AML is not likely to jeopardize the continued existence of 
Western DPS Steller sea lion (Eumetopias jubatus) or the Mexico DPS of 
humpback whales (Megaptera novaeangliae) and not likely to adversely 
affect sperm whales (Physeter macrocephalus).

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 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

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Administrative Order 216-6A, which do not individually or cumulatively 
have the potential for significant impacts on the quality of the human 
environment and for which we have not identified any extraordinary 
circumstances that would preclude this categorical exclusion. 
Accordingly, NMFS has determined that the issuance of the IHA qualifies 
to be categorically excluded from further NEPA review.

Authorization

    NMFS has issued an IHA to AML for conducting the Lutak Dock project 
in Haines, Alaska between Jun 15, 2020 and June 14, 2021, provided the 
previously mentioned mitigation, monitoring, and reporting requirements 
are incorporated. The final IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

    Dated: April 16, 2020.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2020-08408 Filed 4-20-20; 8:45 am]
BILLING CODE 3510-22-P