[Federal Register Volume 86, Number 80 (Wednesday, April 28, 2021)]
[Notices]
[Pages 22392-22396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08868]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB043]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Old Sitka Dock North Dolphins 
Expansion Project in Sitka, 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 
Halibut Point Marine Services, LLC (HPMS) to incidentally harass, by 
Level A and Level B harassment only, marine mammals during construction 
activities associated with the Old Sitka Dock North Dolphins Expansion 
Project in Sitka, Alaska.

DATES: This Authorization is valid from April 15, 2021 through April 
14, 2022.

FOR FURTHER INFORMATION CONTACT: Dwayne Meadows, Ph.D., Office of 
Protected Resources, NMFS, (301) 427-8401. Electronic copies of the 
original application, request for a new IHA, and supporting documents 
(including NMFS Federal Register notices of the original proposed and 
final authorizations, and the previous IHA), as well as a list of the 
references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization is 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 here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.

History of Request

    On July 30, 2019, NMFS received a request from HPMS for an IHA to 
take marine mammals incidental to dock expansion activities. On April 
8, 2020, NMFS issued an IHA to HPMS to take marine mammals incidental 
to the Old Sitka Dock North Dolphins Expansion Project in Sitka, Alaska 
(85 FR 21399, April 17, 2020), effective from October 1, 2020 through 
February 28, 2021. On February 3, 2021, NMFS received an application to 
complete the remaining work from the 2020 IHA. The application was 
deemed adequate and complete on February 21, 2021. As described in the 
application for the new IHA, the activities for which incidental take 
is requested were covered by the 2020 authorization but will not be 
completed prior to its expiration. HPMS requested the new IHA be 
effective from April 15, 2021 through April 14, 2022. We proposed to 
issue an IHA on March 18, 2021 (86 FR 14727).

Description of the Specified Activities and Anticipated Impacts

    As described in the 2020 IHA, HPMS is adding two additional dolphin 
structures and strengthening two existing dolphin structures at their 
deep-water dock facility in Sitka Sound. Construction at the dock 
facility includes vibratory pile installation (and small impact if 
necessary) and vibratory removal of eight temporary, 30-inch template 
pile structures, vibratory and impact installation of 10 48-inch 
permanent piles comprising the dolphins, and down-the-hole drilling to 
install eight bedrock anchors for the permanent piles of the dolphins. 
The only remaining work for this IHA is constructing one new dolphin 
(i.e., four 30-inch template piles and four 48-inch piles). The 
remaining work consists of 9 days of in-water work.
    Vibratory pile removal and installation, impact pile installation, 
and drilling activity will introduce underwater sounds that may result 
in take, by Level A and Level B harassment, of seven species (Level A 
harassment is authorized for only two of the seven species) of marine 
mammals in Sitka Sound. As of February 21, 2021 the project has 
recorded small Level B harassment takes of three species. This IHA 
authorizes the remaining take associated with the work not completed 
under the 2020 IHA. A detailed description of the planned project is 
provided in the Federal Register notice for the proposed IHA (86 FR 
14727; March 18, 2021). Since that time, no changes have been made to 
the planned activities. Therefore, a detailed

[[Page 22393]]

description is not provided here. Please refer to that Federal Register 
notice and the original proposed and final IHA documents referenced 
therein for the description of the specific activity.

Comments and Responses

    A notice of NMFS's proposal to issue an IHA to HPMS was published 
in the Federal Register on March 18, 2021 (86 FR 14727). That notice 
described, in detail, HPMS's activity, the marine mammal species that 
may be affected by the activity, and the anticipated effects on marine 
mammals. During the 30-day public comment period, NMFS received no 
public comment.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is authorized here, including 
information on abundance, status, distribution, and hearing, may be 
found in the notices of the proposed and final IHAs for the 2020 
authorization. NMFS has reviewed the monitoring data from the 2020 IHA, 
recent draft Stock Assessment Reports, information on relevant Unusual 
Mortality Events, and other scientific literature, and determined that 
neither this nor any other new information affects which species or 
stocks have the potential to be affected or the pertinent information 
in the Description of the Marine Mammals in the Area of Specified 
Activities contained in the supporting documents for the 2020 IHA.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which take is 
authorized here may be found in the notices of the proposed and final 
IHAs for the 2020 authorization. NMFS has reviewed the monitoring data 
from the 2020 IHA, recent draft Stock Assessment Reports, information 
on relevant Unusual Mortality Events, and other scientific literature, 
and determined that, besides the revised understanding of down-the-hole 
drilling source levels and Steller's sea lion occurrence mentioned 
above and analyzed below, neither this nor any other new information 
affects our initial analysis of impacts on marine mammals and their 
habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the notice of the final 
IHA for the 2020 IHA. Specifically, the source levels, and days of 
operation applicable to this authorization remain unchanged from the 
previously issued IHA, except for the change to the down-the-hole 
drilling source level and Level A harassment zones described below and 
in Table 1. Similarly, the stocks taken, methods of take, and types of 
take remain unchanged from the previously issued IHA. The only change 
to the marine mammal density/occurrence data is an increase in 
Steller's sea lions around the time of the herring run as discussed 
below. The only change to the number of takes, which are indicated 
below in Table 2, is to account for the increased occurrence of 
Steller's sea lions and the work remaining to be completed.
    Because the Level B source levels and harassment zone sizes for 
down-the-hole drilling did not change from the 2020 IHA we do not 
change the overall or Level B harassment take from down-the-hole 
drilling. However, in the 2020 IHA we used a source level of 166.2 dB 
(RMS) (decibels root mean square) to calculate the Level A harassment 
isopleths for down-the-hole drilling. More recent hydroacoustic data 
and analysis from down-the-hole drilling projects has led us to 
recommend the use of a source level of 164 dB SELss (sound exposure 
level single strike) from Denes et al. (2019) for the impulsive 
component of this source relevant for Level A harassment isopleth 
calculation. Using this source level and the equivalent user 
spreadsheet inputs, the Level A harassment isopleths for the down-the-
hole drilling increase from 10 to 336.5 m, depending on hearing group, 
in the 2020 IHA, to 26.1 to 873.7 m in this IHA (Table 1).

 Table 1--Calculated Distances to Level A Harassment Isopleths for Down-the-Hole Drilling From the 2020 IHA and
                                                    This IHA
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                                                            Level A harassment zone (m)
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            Activity                                                   High-
                                   Low-frequency   Mid-frequency     frequency        Phocid          Otariid
                                     cetaceans       cetaceans       cetaceans       pinnipeds       pinnipeds
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33-inch down-the-hole (2020 IHA)           282.5            10.0           336.5           151.2            11.0
33-inch down-the-hole (this IHA)           733.5            26.1           873.7           392.5            28.6
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    While the Level A harassment zones for down-the-hole drilling 
increase for this IHA as discussed above, we do not increase the Level 
A harassment takes for any species. HPMS is planning to implement 
activity-specific shutdown zones that are larger than in the 2020 IHA 
for down-the-hole drilling for all hearing groups except high-frequency 
cetaceans (Table 3). The revised down-the-hole drilling shutdown zones 
for low- and mid-frequency cetaceans and otariids are smaller than the 
largest Level A shutdown zones for those groups in the 2020 IHA, which 
did not necessitate any Level A takes in the 2020 IHA. Shutdown zones 
are expected to be successful in mitigating take for all of these 
species. Therefore, there is no need to revise or add Level A takes for 
any of these species in this IHA. The preliminary monitoring report 
shows no Level A or Level B harassment take of harbor porpoises through 
the completion of half of the project. Therefore, we believe that the 
previously authorized daily rate of Level A harassment takes is 
adequate to complete the project. The preliminary monitoring report 
shows 1 Level B harassment take and no Level A harassment takes of 
harbor seals (phocid) through the completion of half of the project. We 
have also proposed doubling the size of the shutdown zone for harbor 
seals. Therefore, we believe that the previously authorized daily rate 
of Level A harassment takes is adequate to complete the project.
    As discussed above, the 2020 IHA was not effective during the 
spring/summer run of herring upon which Steller's sea lions are known 
to congregate near to feed on. To account for this potential for HPMS 
construction activity to affect more Steller sea lions we are 
increasing the estimate that two groups of eight Steller sea lions may 
occur within the Level B harassment zone on each of the days of in-
water construction used in the 2020 IHA to three groups of eight

[[Page 22394]]

Steller sea lions may occur within the Level B harassment zone on each 
of the days of in-water construction for this IHA. Thus we estimate 
that 8 animals in a group x 3 groups each day x 9 days of in water work 
= 216 Level B harassment takes be authorized. As discussed in the 2020 
IHA NMFS has determined that for management purposes the proportion of 
Western Distinct Population Segment (DPS) Steller sea lions in that 
area will be calculated based on Hastings et al. (2020). As such, NMFS 
expects that 2.2 percent of Steller sea lions in the project area will 
be from the Endangered Species Act (ESA)-listed Western DPS, with the 
remaining 97.8 percent expected to be from the Eastern DPS. Therefore, 
of the 216 Level B harassment takes requested, 5 takes are expected to 
be of Steller sea lions from the ESA-listed Western DPS (western stock) 
and 211 are expected to be of Steller sea lions from the Eastern DPS 
(eastern stock).
    Based on the above discussion therefore, the only changes to the 
take for this IHA (Table 2) are to increase the daily rate of take by 
Level B harassment for increased occurrence of Steller's sea lions.

                 Table 2--Estimated Take by Level A and Level B Harassment, by Species and Stock
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                                                                      Level A         Level B
              Common name                         Stock             harassment      harassment      Total take
                                                                       take            take
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Gray Whale............................  Eastern North Pacific...               0               3               3
Minke Whale...........................  Alaska..................               0               2               2
Humpback Whale........................  Central North Pacific...               0              72              72
Killer Whale..........................  Eastern North Pacific                  0              16              16
                                         Alaska Resident.
                                        Gulf of Alaska, Aleutian
                                         Islands, Bering Sea
                                         Transient.
                                        Eastern North Pacific
                                         Northern Resident.
                                        West Coast Transient....
Harbor Porpoise.......................  Southeast Alaska........               4              45              49
Steller Sea Lion \a\..................  Eastern U.S.............               0             211             211
                                        Western U.S.............                               5               5
Harbor Seal...........................  Sitka/Chatham Strait....               4             252             256
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\a\ Eastern U.S. and Western U.S. stocks correspond to the Eastern DPS and Western DPS, respectively.


                  Table 3--Shutdown Zones by Marine Mammal Hearing Group, Pile Size, and Method
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                                                                 Shutdown Zone (m)
            Activity             -------------------------------------------------------------------------------
                                   LF Cetaceans    MF Cetaceans    HF Cetaceans       Phocids        Otariids
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30-inch Vibratory Pile Driving/               50              10              50              25              10
 Removal........................
48-inch Vibratory Pile Driving..              50              10              50              25              10
Down-the-hole Drilling (2020                 300              10             200             100              25
 IHA)...........................
Down-the-hole Drilling (this                 750              30             200             200              30
 IHA)...........................
48-inch Impact Pile Driving (and             825              50             100             100              50
 30-inch impact pile driving, as
 necessary).....................
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Description of Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures included as 
requirements in this authorization are identical to those included in 
the Federal Register notice announcing the issuance of the 2020 IHA, 
except for the changes to the shutdown zones for down-the-hole drilling 
for low and mid-frequency cetaceans and pinnipeds discussed above. 
Because the estimated take, and total authorized take, has not 
increased, the discussion of the least practicable adverse impact 
included in in the Federal Register notice announcing the issuance of 
the 2020 IHA remains accurate. The following measures are included in 
this authorization:
     Conduct briefings between construction supervisors and 
crews and the marine mammal monitoring team prior to the start of all 
pile driving activity and when new personnel join the work, to explain 
responsibilities, communication procedures, marine mammal monitoring 
protocol, and operational procedures;
     For in-water heavy machinery work other than pile driving 
(e.g., standard barges, etc.), if a marine mammal comes within 10 m, 
operations shall cease and vessels shall reduce speed to the minimum 
level required to maintain steerage and safe working conditions. This 
type of work could include the following activities: (1) Movement of 
the barge to the pile location, or (2) positioning of the pile on the 
substrate via a crane (i.e., stabbing the pile);
     Drive all piles with a vibratory hammer until achieving a 
desired depth or refusal prior to using an impact hammer;
     For those marine mammals for which Level B harassment take 
has not been requested, in-water pile installation/removal will shut 
down immediately if such species are observed within or on a path 
towards the Level B harassment zone;
     If take reaches the authorized limit for an authorized 
species, pile installation will be shut down as these species approach 
the Level B harassment zone to avoid additional take;
     Implement all mitigation measures described in the 
biological opinion;
     Establish shutdown zones for all pile driving/removal and 
drilling activities. Shutdown zones will vary based on the activity 
type and marine mammal hearing group (see Table 3);
     Monitor the Level B harassment zones and Level A 
harassment zones;
     The placement of protected species observers (PSOs) during 
all pile driving and removal and drilling activities will ensure that 
the entire shutdown zone is

[[Page 22395]]

visible during pile installation. Should environmental conditions 
deteriorate such that marine mammals within the entire shutdown zone 
will not be visible (e.g., fog, heavy rain), pile driving and removal 
must be delayed until the PSO is confident marine mammals within the 
shutdown zone could be detected. Due to the large Level B harassment 
zones (Table 3), PSOs will not be able to effectively observe the 
entire zone. Therefore, Level B harassment exposures will be recorded 
and extrapolated based upon the number of observed takes and the 
percentage of the Level B harassment zone that was not visible;
     Soft Start--For impact pile driving, contractors will be 
required to provide an initial set of three strikes from the hammer at 
40 percent energy, followed by a 1 minute waiting period. This 
procedure will be conducted three times before impact pile driving 
begins. Soft start will be implemented at the start of each day's 
impact pile driving and at any time following cessation of impact pile 
driving for a period of 30 minutes or longer;
     Pre-activity Monitoring--Prior to the start of daily in-
water construction activity, or whenever a break in pile driving/
removal or drilling of 30 minutes or longer occurs, PSOs will observe 
the shutdown and monitoring zones for a period of 30 minutes. The 
shutdown zone will be considered cleared when a marine mammal has not 
been observed within the zone for that 30-minute period. If a marine 
mammal is observed within the shutdown zone, a soft-start cannot 
proceed until the animal has left the zone or has not been observed for 
15 minutes. If the Level B harassment zone has been observed for 30 
minutes and no species for which take is not authorized are present 
within the zone, soft start procedures can commence and work can 
continue even if visibility becomes impaired within the Level B 
harassment monitoring zone. When a marine mammal for which Level B 
harassment take is authorized is present in the Level B harassment 
zone, activities may begin and Level B harassment take will be 
recorded. If the entire Level B harassment zone is not visible at the 
start of construction, pile driving or drilling activities can begin. 
If work ceases for more than 30 minutes, the pre-activity monitoring of 
both the Level B harassment zone and shutdown zones will commence;
     Monitoring will be conducted 30 minutes before, during, 
and 30 minutes after pile driving/removal and drilling 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 or anchor shafts being drilled. Pile driving and 
drilling activities include the time to install, remove, or drill 
inside a single pile or series of piles, as long as the time elapsed 
between uses of the pile driving or drilling equipment is no more than 
30 minutes;
     A draft marine mammal monitoring report will be submitted 
to NMFS within 90 days after the completion of pile driving and removal 
activities. If no comments are received from NMFS within 30 days, the 
draft 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; and
     In the event that personnel involved in the construction 
activities discover an injured or dead marine mammal, the IHA-holder 
must immediately cease the specified activities and report the incident 
to the Office of Protected Resources (OPR) (301-427-8401), NMFS and to 
Alaska Regional Stranding Coordinator (907-586-7209) as soon as 
feasible.

Determinations

    The action in this IHA is identical to the action in the 2020 IHA 
except that work will now be allowed from April 15, 2021 through April 
14, 2022, Steller's sea lion daily rate of take has increased, and the 
down-the-hole drilling Level A harassment source levels and zones have 
been updated to our current standards. As described in the notice of 
issuance of the 2020 final IHA (85 FR 21399, April 17, 2020) we found 
that HPMS' construction activities would have a negligible impact and 
that the taking would be small relative to population size. For this 
analysis of the new IHA we found that marine mammal abundance was still 
estimated to be the same or larger than was known for the 2020 IHA and 
that any changes did not affect our analysis or findings. Other marine 
mammal information and the potential effects were identical to the 2020 
IHA. The estimated take was calculated identically to the 2020 IHA, 
except for Steller's sea lions. For Steller's sea lions the total take 
that occurred during the 2020 IHA plus the take authorized here are 
less than the take authorized in the 2020 IHA. Mitigation and 
monitoring are identical to the 2020 IHA except for the increase in 
Level A harassment and shutdown zones for the down-the-hole drilling 
for four hearing groups. These new zones are smaller than the existing 
zones for impact driving of the 48-inch piles, meaning there is no 
change to the largest Level A harassment or shutdown zones for the 
project as a whole, just potentially the number of days where larger 
Level A harassment and shutdown zones would need to be implemented.
    NMFS has concluded that there is no new information suggesting that 
our analysis or findings should change from those reached for the 2020 
IHA. This includes consideration of the estimated abundance of one 
stock of killer whales increasing slightly, the change in months of 
work and Steller's sea lion take per work day, and the updated 
consideration of own-the-hole drilling source levels and Level A 
harassment zones.
    Based on the information and analysis contained here and in the 
referenced documents, NMFS has determined the following: (1) The 
required mitigation measures will effect the least practicable impact 
on marine mammal species or stocks and their habitat; (2) the proposed 
authorized takes will have a negligible impact on the affected marine 
mammal species or stocks; (3) the proposed authorized takes represent 
small numbers of marine mammals relative to the affected stock 
abundances; (4) HPMS' 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.

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 IHA) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 IHAs with no anticipated serious injury or 
mortality of the Companion Manual for NOAA Administrative Order 216-6A, 
which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has determined 
that the issuance of the IHA qualifies to be categorically excluded 
from further NEPA review.

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Endangered Species Act

    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.
    Two marine mammal species, Mexico DPS humpback whales and Western 
DPS Steller sea lions, occur in the project area and are listed as 
threatened and endangered, respectively, under the ESA. The NMFS Alaska 
Regional OPR Division issued a Biological Opinion under section 7 of 
the ESA, on the issuance of an IHA to HPMS under section 101(a)(5)(D) 
of the MMPA by the NMFS Permits and Conservation Division. The 
Biological Opinion concluded that the action is not likely to 
jeopardize the continued existence of either species, and is not likely 
to destroy or adversely modify western DPS Steller sea lion critical 
habitat. On February 23, 2021, the NMFS Alaska Regional Office 
Protected Resources Division notified us that they would issue a memo 
to the file, noting that the changes to allow work year round and to 
the down-the-hole drilling source levels do not alter the conclusions 
of the original Biological Opinion as long as the revised shutdown 
zones are implemented as additional mitigation and monitoring 
requirements, and no re-initiation of the consultation is necessary.

Authorization

    NMFS has issued an IHA to HPMS for the potential harassment of 
small numbers of seven marine mammal species incidental to the Old 
Sitka Dock North Dolphins Expansion Project in Sitka, Alaska, provided 
the previously mentioned mitigation, monitoring and reporting 
requirements are followed.

    Dated: April 22, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2021-08868 Filed 4-27-21; 8:45 am]
BILLING CODE 3510-22-P