[Federal Register Volume 88, Number 75 (Wednesday, April 19, 2023)]
[Rules and Regulations]
[Pages 24115-24129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08258]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 18

[Docket No. FWS-R7-ES-2022-0025; FXES111607MRG01-212-FF07CAMM00]
RIN 1018-BG05


Marine Mammals; Incidental Take of Northern Sea Otters During 
Specified Activities; the Gulf of Alaska

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: In accordance with the Marine Mammal Protection Act of 1972, 
as amended, and its implementing regulations, we, the U.S. Fish and 
Wildlife Service, finalize incidental take regulations that facilitate 
the authorization of nonlethal, incidental, unintentional take by 
harassment of small numbers of northern sea otters during marine 
construction and pile driving in the Gulf of Alaska coastal waters. 
Take may result from marine construction and pile-driving activities. 
This rule is effective for 5 years from the date of issuance.

DATES: This rule is effective May 19, 2023, through May 19, 2028.

ADDRESSES: You may view this rule, the associated final environmental 
assessment, finding of no significant impact (FONSI), comments 
received, and other supporting material at https://www.regulations.gov 
under Docket No. FWS-R7-ES-2022-0025, or these documents may be 
requested as described under FOR FURTHER INFORMATION CONTACT.
    Information Collection Requirements: This final rule is effective 
on the date set forth in DATES. We will, however, accept and consider 
all public comments concerning the information collection requirements 
received in response to this final rule. Written comments and 
suggestions on the information collection requirements may be submitted 
at any time to the Service Information Collection Clearance Officer, 
U.S. Fish and Wildlife Service, by email to [email protected]; or by 
mail to 5275 Leesburg Pike, MS: PRB (JAO/3W), Falls Church, VA 22041-
3803. Please reference ``OMB

[[Page 24116]]

Control Number 1018-BD63/0070'' in the subject line of your comments.

FOR FURTHER INFORMATION CONTACT: Sierra Franks, U.S. Fish and Wildlife 
Service, MS 341, 1011 East Tudor Road, Anchorage, AK 99503, by email at 
[email protected] or by telephone at 907-268-0577. Individuals in 
the United States who are deaf, deafblind, hard of hearing, or have a 
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access 
telecommunications relay services. Individuals outside the United 
States should use the relay services offered within their country to 
make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    In accordance with the Marine Mammal Protection Act (MMPA) of 1972, 
as amended, and its implementing regulations, we, the U.S. Fish and 
Wildlife Service (Service, USFWS, or we), finalize incidental take 
regulations (ITR) that facilitate the authorization of nonlethal, 
incidental, unintentional take by harassment of small numbers of 
northern sea otters (Enhydra lutris kenyoni; hereafter ``otter,'' 
``otters,'' or ``sea otters'') during marine construction and pile-
driving activities in coastal waters surrounding eight United States 
Coast Guard (USCG) facilities in the Gulf of Alaska. This rule will be 
effective for 5 years from the date of issuance.
    This rule sets forth permissible methods of incidental nonlethal 
taking, mitigation measures to ensure the least practicable adverse 
impacts upon this species, its habitat, and the availability of this 
species for subsistence uses, and requirements for monitoring and 
reporting. This rule is based on our findings that the total takings of 
sea otters during pile driving and marine construction activities will 
impact only small numbers of animals, will have a negligible impact on 
this species, and will not have an unmitigable adverse impact on the 
availability of this species for subsistence use by Alaska Natives. We 
base our findings on data from research on this species; potential and 
documented effects on this species from similar activities; information 
regarding the natural history and conservation status of sea otters; 
and data reported from Alaska Native subsistence hunters. We also 
prepared an environmental assessment (EA) in accordance with National 
Environmental Policy Act (NEPA) requirements for this rulemaking and, 
after consideration of public comments, made a finding of no 
significant impact (FONSI).

Background

    Section 101(a)(5)(A) of the Marine Mammal Protection Act (MMPA; 16 
U.S.C. 1371(a)(5)(A)) gives the Secretary of the Interior (Secretary) 
the authority to allow the incidental, but not intentional, taking of 
small numbers of marine mammals, in response to requests by U.S. 
citizens (as defined in title 50 of the Code of Federal Regulations 
(CFR) in part 18 at Sec.  18.27(c)) engaged in a specified activity 
(other than commercial fishing) in a specified geographic region. The 
Secretary has delegated authority for implementation of the MMPA to the 
Service. According to the MMPA, the Service shall allow this incidental 
taking if we make findings that the total of such taking for the 5-year 
regulatory period:
    (1) is of small numbers of marine mammals of a species or stock;
    (2) will have a negligible impact on such species or stock; and
    (3) will not have an unmitigable adverse impact on the availability 
of these species or stock for taking for subsistence use by Alaska 
Natives.
    If the requisite findings are made, we issue regulations that set 
forth the following, where applicable:
    (a) permissible methods of taking;
    (b) means of effecting the least practicable adverse impact on the 
species or stock and its habitat and the availability of the species or 
stock for subsistence uses; and
    (c) requirements for monitoring and reporting of such taking by 
harassment, including, in certain circumstances, requirements for the 
independent peer review of proposed monitoring plans or other research 
proposals.
    If final regulations allowing such incidental taking are issued, we 
may then subsequently issue Letters of Authorization (LOA), upon 
request, to authorize incidental take during the specified activities.
    The term ``take'' means to harass, hunt, capture, or kill, or 
attempt to harass, hunt, capture, or kill any marine mammal (16 U.S.C. 
1362(13)). ``Harassment'' means any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (the MMPA defines this as ``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 (the MMPA defines this as ``Level B 
harassment'') (16 U.S.C. 1362(18)).
    The USCG's activities may result in the incidental taking of sea 
otters. The MMPA does not require the USCG to obtain incidental take 
authorization prior to engaging in activities that may incidentally 
take these marine mammals; however, any such taking that occurs without 
authorization is a violation of the MMPA.

Summary of Request and the Proposed Rule

    The Service first received a petition requesting ITRs from the USCG 
on July 2, 2021. The Service sent requests for additional information 
on August 12, September 13, and November 10, 2021, and February 10, 
2022. We received updated versions of the petition for rulemaking on 
October 14, 2021, January 18, 2022, and February 28, 2022; the version 
received on the latter date was determined to be adequate and complete. 
Several revisions were made involving animal presence, ensonified 
areas, number of days of operations, and mitigation and monitoring 
protocols. Geospatial files of the work sites were received on December 
3, 2021. The Service used the February 2022 information and December 
2021 spatial files for analyses.
    Based on our analyses, we published a proposed rule for these ITRs 
on August 15, 2022 (87 FR 50041). The preamble to the proposed rule 
provided information on several issues, including the following topics:
     sea otter biology and stocks within the specified region;
     potential impacts to sea otters arising from the specified 
activities, including effects of underwater and airborne sounds, vessel 
presence, effects to prey, reactions of sea otters to anthropogenic 
activities, and consequences of disturbance;
     potential impacts of the specified activities on 
subsistence uses of sea otters;
     the definitions of incidental take under the MMPA as well 
as definitions of ``negligible impact,'' ``unmitigable adverse 
impact,'' ``small numbers,'' and ``least practicable adverse impact'';
     methods of analyzing and estimating take by harassment;
     critical assumptions of the analyses; and
     a breakdown of incidental take by harassment at each 
location within the specified region.
    Please see the August 15, 2022 (87 FR 50041), proposed rule for 
further background information related to this rulemaking action.

[[Page 24117]]

Description of the Regulations

    These regulations facilitate the authorization of nonlethal, 
incidental, unintentional take of small numbers of sea otters that may 
result from the proposed activities based on standards set forth in the 
MMPA. They would not authorize or ``permit'' activities. The 
regulations include:
    (1) Permissible methods of nonlethal taking;
    (2) Measures designed to ensure the least practicable adverse 
impact on sea otters and their habitat, and on the availability of this 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.

Description of Letters of Authorization (LOA)

    An LOA is required to conduct activities pursuant to an ITR. Under 
these ITRs, the USCG may request LOAs for the authorized nonlethal, 
incidental, Level B harassment of sea otters. Requests for LOAs must be 
consistent with the activity descriptions and mitigation and monitoring 
requirements of the ITR and be received in writing at least 30 days 
before the activity is to begin. Requests must include (1) an 
operational plan for the activity; (2) a digital geospatial file of the 
project footprint, (3) a site-specific marine mammal monitoring and 
mitigation plan that specifies the procedures to monitor and mitigate 
the effects of the activities on sea otters, and, if necessary, (4) 
Plans of Cooperation (described below). Once this information has been 
received, we will evaluate each request and issue the LOA if we find 
that the level of taking will be consistent with the findings made for 
the total taking allowable under the ITR. We must receive an after-
action report on the monitoring and mitigation activities within 90 
days after the LOA expires. For more information on requesting and 
receiving an LOA, refer to 50 CFR 18.27.

Description of Plans of Cooperation (POC)

    A POC is a documented plan describing measures to mitigate 
potential conflicts between planned project activities and subsistence 
hunting. The circumstances under which a POC must be developed and 
submitted with a request for an LOA are described below.
    To help ensure that the USCG's activities do not have an 
unmitigable adverse impact on the availability of the species for 
subsistence hunting opportunities, requests for an LOA under this ITR 
must provide the Service documentation of communication and 
coordination with Alaska Native communities potentially affected by the 
proposed activity and, as appropriate, with representative subsistence 
hunting and co-management organizations, such as the Alaska Sea Otter 
and Steller Sea Lion Commission. If Alaska Native communities or 
representative subsistence hunting organizations express concerns about 
the potential impacts of project activities on subsistence activities, 
and such concerns are not resolved during this initial communication 
and coordination process, then a POC must be developed and submitted 
with the applicant's request for an LOA. In developing the POC, the 
USCG will further engage with Alaska Native communities and/or 
representative subsistence hunting organizations to provide information 
and respond to questions and concerns. The POC must provide adequate 
measures to ensure that project activities will not have an unmitigable 
adverse impact on the availability of sea otters for subsistence uses.

Description of the Specified Geographic Region

    The specified geographic region covered by these ITRs (USCG ITR 
region (figure 1)) encompasses Gulf of Alaska (GOA) coastal waters, 
including State waters, within 2 kilometers (km) (~1.25 miles (mi)) of 
eight USCG facilities within the USCG Civil Engineering Unit Juneau 
Area of Responsibility. These facilities are: Base Kodiak, Moorings 
Seward, Moorings Valdez, Moorings Cordova, Moorings Sitka, Station 
Juneau, Moorings Petersburg, and Base Ketchikan.

[[Page 24118]]

[GRAPHIC] [TIFF OMITTED] TR19AP23.007

Description of Specified Activities

    The USCG will perform maintenance activities that will include pile 
repair (i.e., sleeve or jacket replacement), pile replacement 
(including removal and installation), and deck repair and replacement 
to maintain safe berthing for operating vessels. The in-water work will 
include impact pile driving of timber, steel, and concrete piles, 
vibratory installation and extraction of timber, steel, and concrete 
piles, down-the-hole drilling, power washing of piles, use of an 
underwater hydraulic chainsaw, and pile clipping. The USCG will also 
conduct above-water maintenance activities, such as power washing of 
decks, fender repair (camel replacement, chain replacement, utility 
handlers), and replacement of rub strips and ladder supports.
    Detailed descriptions of the proposed work are provided in the 
applicant's Request for ITRs for Programmatic Maintenance, Repair, and 
Replacement Activities (February 2022) and the Marine Mammal Monitoring 
and Mitigation Plan (January 2022). These documents can be obtained 
from the locations described above in ADDRESSES.

Sum of Harassment From All Sources

    The USCG will conduct pile driving and marine construction 
activities over the GOA during a period of 5 years following the 
effective date of the final rule. A summary of total numbers of 
estimated takes by Level B harassment during the duration of the 
project by season and take category is provided in table 1. Ensuing 
paragraphs address impacts to each affected stock of northern sea 
otters.

[[Page 24119]]



      Table 1--Summary by Project Site and Stocks of Sea Otters Expected To Be Harassed Through Behavioral
  Disturbance, Sea Otters in Level B Harassment Ensonification Area, for Single-Year Operations and Over the 5-
                                            Year Duration of the ITR
----------------------------------------------------------------------------------------------------------------
                                                     Number of       Number of       Number of       Number of
                    Location                          otters         exposures      otters  (5     exposures  (5
                                                   (single year)   (single year)      years)          years)
----------------------------------------------------------------------------------------------------------------
Kodiak..........................................               1               5               5              25
                                                 ---------------------------------------------------------------
    Total Southwest Alaska stock................               1               5               5              25
Seward..........................................               2               5               2               5
Valdez..........................................               8               8              40              40
Cordova.........................................              35             210              35             210
                                                 ---------------------------------------------------------------
    Total Southcentral Alaska stock.............              45             223              77             255
Sitka...........................................               6              30              30             150
Juneau..........................................               3              30              15             150
Petersburg......................................              10              40              50             200
Ketchikan.......................................               4              40              20             200
                                                 ---------------------------------------------------------------
    Total Southeast Alaska stock................              23             140             115             700
                                                 ---------------------------------------------------------------
        Total all stocks........................              69             368             197             980
----------------------------------------------------------------------------------------------------------------

    In a single year, we estimate five instances of take by Level B 
harassment of one northern sea otter from the Southwest Alaska stock 
due to behavioral responses or Temporary Threshold Shift (TTS) 
associated with noise exposure. Over the 5-year duration of these ITRs, 
we estimate 25 instances of take by Level B harassment of 5 northern 
sea otters from the Southwest Alaska stock due to behavioral responses 
or TTS associated with noise exposure. Although multiple instances of 
harassment of otters are possible, we anticipate that these events will 
result in only temporary changes in behavior and will not have 
significant consequences for the health, reproduction, or survival of 
affected animals. We do not anticipate these events to cause any 
injuries or rise to the level of Level A harassment.
    In a single year, we estimate 223 instances of take by Level B 
harassment of 45 northern sea otters from the Southcentral Alaska stock 
due to behavioral responses or TTS associated with noise exposure. Over 
the 5-year duration of these ITRs, we estimate 255 instances of take by 
Level B harassment of 77 northern sea otters from the Southcentral 
Alaska stock due to behavioral responses or TTS associated with noise 
exposure. Although multiple instances of harassment of otters are 
possible, these events are likely to result in only temporary changes 
in behavior. As such, these events are unlikely to have significant 
consequences for the health, reproduction, or survival of affected 
animals and, therefore, would not rise to the level of an injury or 
Level A harassment.
    In a single year, we estimate 140 instances of take by Level B 
harassment of 23 northern sea otters from the Southeast Alaska stock 
due to behavioral responses or TTS associated with noise exposure. Over 
the 5-year duration of these ITRs, we estimate 700 instances of take by 
Level B harassment of 115 northern sea otters from the Southeast Alaska 
stock due to behavioral responses or TTS associated with noise 
exposure. Although an estimated 700 instances of harassment of 115 
otters are possible, these events are likely to result in only 
temporary changes in behavior. As such, these events are unlikely to 
have significant consequences for the health, reproduction, or survival 
of affected animals and, therefore, would not rise to the level of an 
injury or Level A harassment.

Determinations and Findings

Small Numbers

    For our small numbers determination, we considered whether the 
estimated number of northern sea otters to be subjected to incidental 
take is small relative to the population size of the species or stock.
    1. The Southwest, Southcentral, and Southeast Alaska stocks of 
northern sea otters range well beyond the boundaries of the specified 
geographic area. Meanwhile, the USCG's specified activities would 
impact only a small fraction of the specified geographic area. We 
therefore expect that only a small proportion of animals from each 
stock could occur proximate enough to the USCG's activities to 
experience any effects.
    2. We estimate the USCG's proposed activities in the specified 
geographic region during the 5-year period of this ITR will result in 
take by Level B harassment of no more than:
     One sea otter from the Southwest Alaska stock, 
representing 0.000 percent of the best available estimate of that stock 
(USFWS 2020) (1 / 51,382 [ap] 0.00000);
     45 sea otters from the Southcentral Alaska stock, 
representing 0.208 percent of the best available estimate that stock 
(Esslinger et al. 2021) (45 / 21,617 = 0.00208); and
     23 sea otters from the Southeast Alaska stock, 
representing 0.087 percent of the best available estimate of that stock 
(Eisaguirre et al. 2021) (23 / 26,347 = 0.000873).
    Based on these numbers, we find that the USCG's specified 
activities projects will take only a small number of animals from each 
affected stock of northern sea otters.
    We note ongoing litigation concerning a separate, recently issued, 
ITR in which plaintiffs assert that the Service's ``small numbers'' 
analysis must aggregate the number of animals anticipated to be taken 
in each year contemplated by the ITR and compare that multiyear number 
to the population estimate applicable to 1 year. While we disagree with 
this approach, for the sake of providing the applicant with regulatory 
certainty pending resolution of that litigation, we further analyze the 
``small numbers'' question using this alternative approach and estimate 
the incidental take of:
     5 sea otters from the Southwest Alaska stock, representing 
0.01 percent of the best available estimate of that

[[Page 24120]]

stock (USFWS 2020) (5 / 51,382 = 0.00010);
     77 sea otters from the Southcentral Alaska stock, 
representing 0.356 percent of the best available estimate of that stock 
(Esslinger et al. 2021) (77 / 21,617 = 0.00356); and
     115 sea otters from the Southeast Alaska stock, 
representing 0.437 percent of the best available estimate of that stock 
(Eisaguirre et al. 2021) (115 / 26,347 = 0.004363).
    These alternative numbers also support our finding that the USCG's 
specified activities will take only a small number of animals from each 
affected stock of northern sea otters.

Conclusion

    Therefore, we determine that the USCG's activities will take by 
Level B harassment only small numbers of the Southwest, Southcentral, 
and Southeast Alaska stocks of northern sea otters because: (1) Only a 
small proportion of the Southwest, Southcentral, and Southeast Alaska 
stocks of northern sea otters will overlap with the areas where the 
specified activities will occur; and (2) for each stock, the number of 
sea otters anticipated to be harassed is small relative to the 
population size of the stock.

Negligible Impact

    For our negligible impacts determination, we considered the 
following:
    1. The applicant will implement monitoring requirements and 
mitigation measures designed to reduce the potential impacts of their 
operations on sea otters.
    2. The distribution and habitat use patterns of sea otters indicate 
that relatively few sea otters will occur in the specified areas of 
activity at any particular time and, therefore, few sea otters are 
likely to be affected. The potential for stock-wide effects resulting 
from exposure to and disturbance from the specified activities is 
further reduced by the relatively small area of the specified 
activities compared to the range of the Southwest, Southcentral, and 
Southeast Alaska stocks of northern sea otters.
    3. The documented impacts of previous anthropogenic activities on 
sea otters, taking into consideration cumulative effects, suggests that 
the types of activities analyzed for this ITR will have minimal effects 
and will be short-term, temporary behavioral changes.
    4. The Service does not anticipate any lethal or injurious 
harassment take that would remove individual sea otters from the 
population. Nor does the Service anticipate any impacts that would 
hinder or prevent their successful reproduction or successful rearing. 
Incidental harassment events are anticipated to be limited to human 
interactions that lead to short-term behavioral disturbances. These 
disturbances would not affect the rates of recruitment or survival for 
sea otter stocks. This ITR does not facilitate the authorization of 
injurious or lethal take, and we do not anticipate any such take will 
occur.
    We also considered the specific congressional direction in 
balancing the potential for a significant impact with the likelihood of 
that event occurring. The specific congressional direction that 
justifies balancing probabilities with impacts follows:
    If potential effects of a specified activity are conjectural or 
speculative, a finding of negligible impact may be appropriate. A 
finding of negligible impact may also be appropriate if the probability 
of occurrence is low, but the potential effects may be significant. In 
this case, the probability of occurrence of impacts must be balanced 
with the potential severity of harm to the species or stock when 
determining negligible impact. In applying this balancing test, the 
Service will thoroughly evaluate the risks involved and the potential 
impacts on marine mammal populations. Such determination will be made 
based on the best available scientific information (53 FR 8474, March 
15, 1988; 132 Cong. Rec. S 16305 (October 15, 1986)).
    We reviewed the effects of the pile driving and marine construction 
on sea otters, including impacts from insertion and removal of piles, 
socket drilling, and underwater use of tools. Based on our review of 
these potential impacts, past monitoring reports, and the biology and 
natural history of sea otters, we conclude that the anticipated 
incidental take from the USCG's specified activities would not affect 
the rates of recruitment or survival for the Southwest, Southcentral, 
and Southeast Alaska stocks of northern sea otters, and would have a 
negligible impact on each of those stocks.

Least Practicable Adverse Impacts

    We evaluated the practicability and effectiveness of mitigation 
measures based on the nature, scope, and timing of the specified 
activities; the best available scientific information; and monitoring 
data during previously conducted activities in the specified geographic 
region. We determine that the mitigation measures included within the 
USCG's request will ensure least practicable adverse impacts on sea 
otters.
    In evaluating what mitigation measures are appropriate to ensure 
the least practicable adverse impact on species or stocks and their 
habitat, as well as subsistence uses, we considered the manner and 
degree to which the successful implementation of the measures are 
expected to achieve this goal. We considered the nature of the 
potential adverse impact being mitigated (likelihood, scope, range), 
the likelihood that the measures will be effective if implemented, and 
the likelihood of effective implementation. We also considered the 
practicability of the measures for applicant implementation (e.g., 
cost, impact on operations). We assessed whether any additional, 
practicable requirements could be implemented to further reduce effects 
but did not identify any.
    To reduce the potential for disturbance from acoustic stimuli 
associated with the activities, the USCG has proposed mitigation 
measures, including the following:
     Using the smallest diameter piles practicable while 
minimizing the overall number of piles;
     Using block cushions or pile caps to reduce transmission 
of sounds from pile-driving into the water column;
     Conducting activities that may produce in-water sound as 
close to low tide as possible;
     Development of a marine mammal monitoring and mitigation 
plan;
     Establishment of shutdown and monitoring zones;
     Visual mitigation monitoring by designated Protected 
Species Observers (PSO);
     Limiting in-water activity to daylight hours;
     Site clearance before startup;
     Soft-start procedures; and
     Shutdown procedures.
    These measures are further specified under Sec.  18.149, 
Mitigation.
    The USCG considered using bubble curtains to dampen underwater 
sounds produced during planned activities. This was deemed to be 
impracticable based on safety concerns arising from the presence of 
contaminated sediments and unexploded ordnance at the work sites. The 
Service has not identified any additional (i.e., not already 
incorporated into the USCG's request or, in the case of block cushions, 
agreed to in subsequent communication) mitigation or monitoring 
measures that are practicable and would further reduce potential 
impacts to sea otters and their habitat.

Impact on Subsistence Use

    The USCG's specified activities will occur at existing USCG 
facilities located

[[Page 24121]]

in developed areas where firearm use is largely prohibited. The USCG's 
specified activities will not preclude access to any known harvest 
areas, and we do not anticipate that these activities will otherwise 
reduce the availability of sea otters for harvest. We therefore make a 
finding that the USCG's anticipated harassment will not have an 
unmitigable adverse impact on the availability of any stock of northern 
sea otters for taking for subsistence uses. In making this finding, we 
considered the timing and location of the proposed activities and the 
timing and location of subsistence harvest activities in the area of 
the proposed project.

Monitoring and Reporting

    The purposes of the monitoring requirements are to document and 
provide data for assessing the effects of specified activities on sea 
otters; to ensure that take is consistent with that anticipated in the 
small numbers, negligible impact, and subsistence use analyses; and to 
detect any unanticipated effects on the species. Monitoring plans 
include steps to document when and how sea otters are encountered and 
their numbers and behaviors during these encounters. This information 
allows the Service to measure encounter rates and trends and to 
estimate numbers of animals potentially affected. To the extent 
possible, monitors will record group size, age, sex, reaction, duration 
of interaction, and closest approach to the project activity.
    Monitoring activities will be summarized and reported in a formal 
report each year. The USCG must submit a final monitoring report to us 
no later than 90 days after the expiration of the LOA. We will base 
each year's monitoring objective on the previous year's monitoring 
results. We will require an approved plan for monitoring and reporting 
the effects of pile driving and marine construction activities on sea 
otters prior to issuance of an LOA. We will require approval of the 
monitoring results for continued operation under the LOA.
    We find that these monitoring and reporting requirements to 
evaluate the potential impacts of planned activities will ensure that 
the effects of the activities remain consistent with the rest of the 
findings.

Summary of Changes From the Proposed Rule

    In preparing these final regulations for the incidental take of sea 
otters, we reviewed and considered comments and information from the 
public concerning our proposed rule published in the Federal Register 
on August 15, 2022 (87 FR 50041). We also reviewed and considered 
comments and information from the public concerning our draft EA. We 
are finalizing these regulations with the following changes from our 
proposed rule: (1) The addition of POCs to the procedures to obtain an 
LOA in Sec.  18.145, (2) the addition of sound-dampening cushion blocks 
or pile caps to mitigation measures pursuant to communication with the 
USCG wherein the USCG clarified its intent to adopt this mitigation 
measure, and (3) the addition of information collection requirements in 
Sec.  18.152.

Summary of and Response to Comments and Recommendations

    During the public comment period, we requested written comments 
from the public on the proposed ITR as well as the draft EA. The 
comment period opened August 15, 2022, and closed September 14, 2022. 
We received four comment submissions; these included comments on the 
proposed rule and the draft EA as well as a number of publications and 
other documents submitted in support of those comments.

Response to Comments

    Comment 1: One commenter stated that the Service failed to consider 
the potential for take by Level A harassment as we did not disclose the 
size of the area that may be ensonified to levels capable of causing 
Level A harassment, nor did we estimate how many animals could be 
present in this area. The commenter further stated that the Service 
determined that sea otters would not be affected by sounds at these 
levels because they could escape the area and because they spend much 
of their time with their heads above water.
    Response: The Service disagrees. For activities that may generate 
sound levels capable of eliciting Level A harassment, the sound 
isopleths appeared in the proposed rule for these ITRs published August 
15, 2022 (87 FR 50041), in the maps and summary tables for each site. 
The Service described otters' escape response as part of the review of 
literature regarding documented reactions of sea otters to vessels and 
noise; we did not use this information to assess the level of risk of 
exposure of sea otters to underwater sounds. The Service does not 
consider the amount of time that otters spend with their head above 
water as a reason to use in-air noise criteria. Instead, we use the 
larger underwater sound isopleth radii to estimate the number of 
animals exposed to sounds generated by activities that generate both 
in-water and in-air sounds. The Service has determined that this is a 
more conservative approach to assess the impacts of these sound 
sources.
    We concluded that, because the sound isopleth radii for Level A 
harassment are all smaller than the 20-meter (m) shutdown zone 
prescribed in the mitigation measures, exposure of sea otters to sounds 
that may cause Level A harassment is not anticipated. Further, no 
coverage for take by Level A harassment was requested by the USCG.
    Comment 2: One commenter stated that the effects of underwater 
noise on sea otters could not be assessed as sea otter hearing is not 
fully understood and that criteria for Level A harassment had not been 
set by the National Marine Fisheries Service (NMFS).
    Response: The Service agrees that a better understanding of sea 
otter hearing and reactions to sounds would improve our ability to 
analyze potential effects of anthropogenic activity. At this time, the 
best available syntheses of studies of sea otter hearing, behavioral 
response to sounds, and suggested criteria for acoustic threshold shift 
and injury are presented in Southall et al. 2019 and 2021. We used the 
thresholds established for ``Other Marine Carnivores'' to inform our 
estimates of exposure of sea otters to sounds that could result in 
harassment, which we consider the best available scientific evidence. 
This is similar to the approach taken by NMFS to set criteria for their 
trust species, i.e., cetaceans, seals, and sea lions.
    Comment 3: One commenter stated that the estimated incidental take 
did not constitute a small number under the MMPA because the total take 
will not have a negligible impact.
    Response: The Service disagrees. The ``small numbers'' and 
``negligible impact'' findings are made independently. Information on 
the definitions of small numbers and negligible impact can be found 
above in Background and in the same section in the proposed rule for 
these ITRs published August 15, 2022 (87 FR 50041).
    Comment 4: One commenter stated that the Service should not make 
decisions regarding impacts to sea otters based on the outdated 2014 
stock assessment reports (SAR) and should wait until updated SARs 
become available.
    Response: The Service disagrees. As presented in the proposed rule 
for these ITRs published August 15, 2022 (87 FR 50041), to evaluate 
potential effects to sea otters, we used both the 2014 SARs and the 
most recently available population estimates based on surveys

[[Page 24122]]

conducted since the finalization of the 2014 SARs (Eisaguirre et al. 
2021; Esslinger et al. 2021; USFWS 2020). We consider this information 
the best available scientific evidence.
    Comment 5: One commenter stated that authorizing take would be 
inappropriate given that population dynamics of sea otters indicated 
that sea otters are not thriving and that threats to sea otters are 
increasing, particularly pathogens.
    Response: The Service disagrees. The most recent data concerning 
sea otter populations and threats were used to evaluate potential 
impacts to sea otters. No removals of sea otters are authorized, and we 
expect that the effects of the planned activities upon individual sea 
otters will be minor. We do not expect such take to have effects at the 
stock or population level. We find that the authorized taking would 
have a negligible impact on each stock of sea otters, even when 
cumulative effects from other factors are considered.
    Comment 6: One commenter stated that the Service's NEPA analysis 
failed to consider cumulative impacts from the effects of MMPA 
authorizations for other projects, or cumulative impacts arising from 
both direct and indirect results of climate change.
    Response: The Service disagrees. The draft EA addresses cumulative 
effects resulting from changes in environment arising from climate 
change as well as anthropogenic activities, including coastal 
development and industrial activity. Given the temporary nature of the 
effects to the behavior and distribution of individual sea otters that 
could potentially result from the activities covered by these and other 
ITRs, the Service does not see evidence supporting the notion that 
authorizing the Level B harassment of a small number of sea otters will 
appreciably contribute to detrimental cumulative effects.

Required Determinations

National Environmental Policy Act

    We have prepared an environmental assessment in accordance with the 
NEPA (42 U.S.C. 4321 et seq.). We have concluded that authorizing the 
nonlethal, incidental, unintentional take by Level B harassment of up 
to 5 incidental takes of 5 sea otters from the Southwest Alaska stock, 
255 incidental takes of 77 sea otters from the Southcentral Alaska 
stock, and 700 incidental takes of 115 otters from the Southeast Alaska 
stock in Alaska during activities conducted by the USCG and its 
subcontractors during the regulatory period would not significantly 
affect the quality of the human environment, and that the preparation 
of an environmental impact statement for this incidental take 
authorization is not required by section 102(2) of NEPA or its 
implementing regulations. A copy of the EA and the Service's FONSI can 
be obtained from the locations described in ADDRESSES.

Endangered Species Act

    Under the Endangered Species Act (ESA) (16 U.S.C. 1536(a)(2)), all 
Federal agencies are required to ensure the actions they authorize are 
not likely to jeopardize the continued existence of any threatened or 
endangered species or result in destruction or adverse modification of 
critical habitat. The planned activities occur within the range of 
Southwest Alaska, Southcentral Alaska, and Southeast Alaska stocks of 
northern sea otters. The first of these, the Southwest Alaska stock, is 
listed as threatened under the ESA, whereas the Southcentral Alaska and 
Southeast Alaska stocks are not listed under the ESA. Prior to issuance 
of this ITR, the Service conducted intra-Service consultation under 
section 7 of the ESA on our issuance of an ITR. These evaluations and 
findings are available on the Service's website at https://ecos.fws.gov/ecp/report/biological-opinion.

Government-to-Government Coordination

    It is our responsibility to communicate and work directly on a 
Government-to-Government basis with federally recognized Alaska Native 
Tribes and organizations in developing programs for healthy ecosystems. 
We seek their full and meaningful participation in evaluating and 
addressing conservation concerns for protected species. It is our goal 
to remain sensitive to Alaska Native culture, and to make information 
available to Alaska Natives. Our efforts are guided by the following 
policies and directives:
    (1) The Native American Policy of the Service (January 20, 2016);
    (2) the Alaska Native Relations Policy of the U.S. Fish and 
Wildlife Service (currently in draft form; see 87 FR 66255, November 3, 
2022);
    (3) Executive Order 13175 (January 9, 2000);
    (4) Department of the Interior Secretary Orders 3206 (June 5, 
1997), 3225 (January 19, 2001), 3317 (December 1, 2011), 3342 (October 
21, 2016), and 3403 (November 15, 2021), including Director's Order 227 
(September 8, 2022);
    (5) the Alaska Government-to-Government Policy (a departmental 
memorandum issued January 18, 2001); and
    (6) the Department of the Interior's policies on consultation with 
Alaska Native Tribes and organizations (November 30, 2022).
    We have evaluated possible effects of the planned activities on 
federally recognized Alaska Native Tribes and organizations. The 
Service has determined that, due to this project's locations and 
activities, the Tribal organizations and communities across the Gulf of 
Alaska, as well as relevant Alaska Native Claims Settlement Act (ANCSA) 
corporations, will not be impacted by this project. Regardless, the 
Service has contacted Tribal organizations in neighboring communities, 
as well as relevant ANCSA corporations, to inform them of the 
availability of this authorization and offer them the opportunity to 
consult.

Regulatory Planning and Review

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) 
will review all significant rules for a determination of significance. 
The OMB has designated this rule as not significant.
    Executive Order 13563 reaffirms the principles of Executive Order 
12866 while calling for improvements in the Nation's regulatory system 
to promote predictability, to reduce uncertainty, and to use the best, 
most innovative, and least burdensome tools for achieving regulatory 
ends. The Executive order directs agencies to consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public where these approaches are relevant, feasible, 
and consistent with regulatory objectives. Executive Order 13563 
emphasizes further that regulations must be based on the best available 
science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. We have developed this 
rule in a manner consistent with these requirements.
    The OIRA bases its determination of significance upon the following 
four criteria: (a) Whether the rule will have an annual effect of $100 
million or more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government; 
(b) Whether the rule will create inconsistencies with other Federal 
agencies' actions; (c) Whether the rule will materially affect 
entitlements, grants, user fees, loan programs, or the rights and 
obligations

[[Page 24123]]

of their recipients; and (d) Whether the rule raises novel legal or 
policy issues.
    Expenses will be related to, but not necessarily limited to: the 
development of applications for LOAs; monitoring, recordkeeping, and 
reporting activities conducted during project operations; development 
of activity- and species-specific marine mammal monitoring and 
mitigation plans; and coordination with Alaska Natives to minimize 
effects of operations on subsistence hunting. Realistically, costs of 
compliance with this rule are minimal in comparison to those related to 
actual marine construction operations. The actual costs to develop the 
petition for promulgation of regulations and LOA requests do not exceed 
$200,000 per year, short of the ``major rule'' threshold that would 
require preparation of a regulatory impact analysis.

Congressional Review Act

    We have determined that this rule is not a major rule under 5 
U.S.C. 804(2), the Congressional Review Act. The rule is also not 
likely to result in a major increase in costs or prices for consumers, 
individual industries, or government agencies or have significant 
adverse effects on competition, employment, productivity, innovation, 
or on the ability of United States-based enterprises to compete with 
foreign-based enterprises in domestic or export markets.

Regulatory Flexibility Act

    We have determined that this rule will not have a significant 
economic effect on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The USCG, and their 
contractors conducting pile driving and marine construction activities 
in the GOA, are the only entities subject to these ITRs. Therefore, 
neither a regulatory flexibility analysis nor a small entity compliance 
guide is required.

Takings Implications

    This rule does not have takings implications under Executive Order 
12630 because it facilitates the authorization of nonlethal, 
incidental, but not intentional, take of sea otters by pile driving and 
marine construction and, thereby, exempts these companies from civil 
and criminal liability as long as they operate in compliance with the 
terms of their LOAs. Therefore, a takings implications assessment is 
not required.

Federalism Effects

    This rule does not contain policies with federalism implications 
sufficient to warrant preparation of a federalism assessment under 
Executive Order 13132. The MMPA gives the Secretary of the Interior 
and, by delegation, the Service the authority and responsibility to 
protect sea otters.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), this rule will not ``significantly or uniquely'' affect small 
governments. A small government agency plan is not required. The 
Service has determined and certifies pursuant to the Unfunded Mandates 
Reform Act that this rulemaking will not impose a cost of $100 million 
or more in any given year on local or State governments or private 
entities. This rule will not produce a Federal mandate of $100 million 
or greater in any year, i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act.

Civil Justice Reform

    The Departmental Solicitor's Office has determined that this 
regulation does not unduly burden the judicial system and meets the 
applicable standards provided in sections 3(a) and 3(b)(2) of Executive 
Order 12988.

Paperwork Reduction Act

    This final rule contains a collection of information we submitted 
to the OMB. All information collections require approval under the 
Paperwork Reduction Act of 1995 (PRA; 44 U.S.C. 3501 et seq.). We may 
not conduct or sponsor, and you are not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number. The OMB previously reviewed and approved the 
information collection requirements associated with incidental take of 
marine mammals and assigned OMB Control Number 1018-0070 (expires 
January 31, 2024).
    While the new regulations in 50 CFR part 18, subpart L, pertain 
only to the incidental taking of northern sea otters (while engaged in 
activities associated with or in support of marine construction 
activities in the Gulf of Alaska), the below listed information 
collections approved by the OMB also included previously existing 
requirements associated with the incidental taking of polar bears 
(Ursus maritimus), Pacific walruses (Odobenus rosmarus divergens), and 
northern sea otters in Alaska brought into compliance with the PRA.
    The Marine Mammal Protection Act of 1972, as amended (MMPA; 16 
U.S.C. 1361 et seq.), imposed, with certain exceptions, a moratorium on 
the taking of marine mammals. Section 101(a)(5)(A) of the MMPA directs 
the Secretary of the Interior to allow, upon request by citizens of the 
United States, the taking of small numbers of marine mammals incidental 
to specified activities (other than commercial fishing) if the 
Secretary makes certain findings and prescribes specific regulations 
that, among other things, establish permissible methods of taking. This 
is a nonform collection. Respondents must comply with the regulations 
at 50 CFR 18.27, which outline the procedures and requirements for 
submitting a request. Specific regulations governing authorized 
incidental take of marine mammal activities are contained in 50 CFR 
part 18, subparts J (incidental take of polar bears and Pacific 
walruses in the Beaufort Sea), K (incidental take of northern sea 
otters in the Cook Inlet), and L (incidental take of northern sea 
otters in the Gulf of Alaska). These regulations provide the applicant 
with a detailed description of information that we need to evaluate the 
proposed activity and determine if it is appropriate to issue specific 
regulations and, subsequently, LOAs. We use the information to verify 
the findings required to issue incidental take regulations, to decide 
if we should issue an LOA, and (if an LOA is issued) what conditions 
should be included in the LOA. In addition, we analyze the information 
to determine impacts to polar bears, Pacific walruses, northern sea 
otters, and the availability of those marine mammals for subsistence 
purposes of Alaska Natives. The OMB approved the below listed revisions 
to existing and new reporting and/or recordkeeping requirements 
identified below:
    (1) Addition of New Subpart--With this final rule, we added a new 
subpart, 50 CFR part 18, subpart L (U.S. Coast Guard), for a period of 
5 years effective from the date of final issuance of these ITRs. This 
new subpart does not require new information collections beyond those 
contained in this submission, which were previously approved by OMB. 
The addition of subpart L does, however, require an adjustment to the 
previously approved burden for the application, reporting, and 
recordkeeping burden requirements.
    (2) We also revised the previously approved ``Onsite Monitoring and 
Observation Reports'' information collection to split it into three 
separate information collections to more accurately account for burden 
for the various components under this specific section of the 
regulations:
    a. In-Season Monitoring (Activity Progress Reports) (50 CFR

[[Page 24124]]

18.127(a)(1))--Activity progress reports. Holders of an LOA must:
     Notify the Service at least 48 hours prior to the onset of 
activities;
     Provide the Service weekly progress reports of any 
significant changes in activities and/or locations; and
     Notify the Service within 48 hours after ending of 
activities.
    b. In-Season Monitoring (Polar Bear Observation Reports) (50 CFR 
18.127(a)(3))--Holders of an LOA must report, within 48 hours, all 
observations of polar bears and potential polar bear dens, during any 
industry activity. Upon request, monitoring report data must be 
provided in a common electronic format (to be specified by the 
Service). Information in the observation report must include, but is 
not limited to:
     Date, time, and location of observation;
     Number of polar bears;
     Sex and age of polar bears (if known);
     Observer name and contact information;
     Weather, visibility, sea state, and sea-ice conditions at 
the time of observation;
     Estimated closest distance of polar bears from personnel 
and facilities;
     Industry activity at time of sighting;
     Possible attractants present;
     Polar bear behavior;
     Description of the encounter;
     Duration of the encounter; and
     Mitigation actions taken.
    c. Notification of LOA Incident Report (50 CFR 18.127(b))--Holders 
of an LOA must report, as soon as possible, but within 48 hours, all 
LOA incidents during any industry activity. An LOA incident is any 
situation when specified activities exceed the authority of an LOA, 
when a mitigation measure was required but not enacted, or when injury 
or death of a marine mammal occurs. Reports must include:
     All information specified for an observation report;
     A complete detailed description of the incident; and
     Any other actions taken.
    In addition to the revisions described above, we are bringing the 
following existing regulatory requirements contained in part 18 not 
previously approved by OMB under the PRA into compliance:
    (1) Mitigation--Interaction Plan (50 CFR 18.126(a)(1)(iii))--All 
holders of an LOA must have an approved polar bear safety, awareness, 
and interaction plan on file with the Service's Marine Mammals 
Management Office and onsite and provide polar bear awareness training 
to certain personnel. Interaction plans must include:
     The type of activity and where and when the activity will 
occur (i.e., a summary of the plan of operation);
     A food, waste, and other ``bear attractants'' management 
plan;
     Personnel training policies, procedures, and materials;
     Site-specific walrus and polar bear interaction risk 
evaluation and mitigation measures;
     Polar bear avoidance and encounter procedures; and
     Polar bear observation and reporting procedures.
    (2) Mitigation--3rd-Party Notifications (50 CFR 18.126(a)(2) and 
(e)(1))--All applicants for an LOA must contact affected subsistence 
communities and hunter organizations to discuss potential conflicts 
caused by the activities and provide the Service documentation of 
communications as described in Sec.  18.122.
    (3) Mitigation--Requests for Exemption Waivers (50 CFR 
18.126(c)(4))--Exemption waivers to the operating conditions in 50 CFR 
18.126(c) may be issued by the Service on a case-by-case basis, based 
upon a review of seasonal ice conditions and available information on 
walrus and polar bear distributions in the area of interest.
    (4) Mitigation--Plan of Cooperation (50 CFR 18.126(e)(2))--When 
appropriate, a holder of an LOA will be required to develop and 
implement a Service-approved POC. The POC must include a description of 
the procedures by which the holder of the LOA will work and consult 
with potentially affected subsistence hunters and a description of 
specific measures that have been or will be taken to avoid or minimize 
interference with subsistence hunting of walruses and polar bears and 
to ensure continued availability of the species for subsistence use. 
The Service will review the POC to ensure that any potential adverse 
effects on the availability of the animals are minimized. The Service 
will reject POCs if they do not provide adequate safeguards to ensure 
the least practicable adverse impact on the availability of walruses 
and polar bears for subsistence use.
    We also renewed the existing reporting and/or recordkeeping 
requirements identified below:
    (1) Application for Regulations--Regulations at 50 CFR part 18 
require the applicant to provide information on the activity as a 
whole, which includes, but is not limited to, an assessment of total 
impacts by all persons conducting the activity. Applicants can find 
specific requirements in 50 CFR part 18, subparts J, K, and L. These 
regulations provide the applicant with a detailed description of 
information that we need to evaluate the proposed activity and 
determine whether to issue specific regulations and, subsequently, 
LOAs. The required information includes:
     A description of the specific activity or class of 
activities that can be expected to result in incidental taking of 
marine mammals.
     The dates and duration of such activity and the specific 
geographical region where it will occur.
     Based on the best available scientific information, each 
applicant must also provide:

--An estimate of the species and numbers of marine mammals likely to be 
taken by age, sex, and reproductive conditions;
--The type of taking (e.g., disturbance by sound, injury or death 
resulting from collision, etc.) and the number of times such taking is 
likely to occur;
--A description of the status, distribution, and seasonal distribution 
(when applicable) of the affected species or stocks likely to be 
affected by such activities;

--The anticipated impact of the activity upon the species or stocks; 
and
--The anticipated impact of the activity on the availability of the 
species or stocks for subsistence uses.
     The anticipated impact of the activity upon the habitat of 
the marine mammal populations and the likelihood of restoration of the 
affected habitat.
     The availability and feasibility (economic and 
technological) of equipment, methods, and manner of conducting such 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks, their habitat, and, where 
relevant, on their availability for subsistence uses, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance. (The applicant and those conducting the specified 
activity and the affected subsistence users are encouraged to develop 
mutually agreeable mitigating measures that will meet the needs of 
subsistence users.)
     Suggested means of accomplishing the necessary monitoring 
and reporting that will result in increased knowledge of the species 
through an analysis of the level of taking or impacts and suggested 
means of minimizing burdens by coordinating such reporting requirements 
with other schemes already applicable to persons conducting such 
activity.
     Suggested means of learning of, encouraging, and 
coordinating research opportunities, plans, and activities

[[Page 24125]]

relating to reducing such incidental taking from such specified 
activities, and evaluating its effects.
     Applicants must develop and implement a site-specific (or 
umbrella plan addressing site-specific considerations), Service-
approved marine mammal monitoring and mitigation plan to monitor and 
evaluate the effectiveness of mitigation measures and the effects of 
activities on marine mammals and the subsistence use of these species.
     Applicants must also provide trained, qualified, and 
Service-approved onsite observers to carry out monitoring and 
mitigation activities identified in the marine mammal monitoring and 
mitigation plan.
    This information is necessary for the Service to anticipate the 
impact of the activity on the species or stocks and on the availability 
of the species or stocks for subsistence uses. Under requirements of 
the MMPA, we cannot authorize a take unless the total of all takes will 
have a negligible impact on the species or stocks and, where 
appropriate, will not have an unmitigable adverse impact on the 
availability of the species or stocks for subsistence uses. These 
requirements ensure that applicants are aware of related monitoring and 
research efforts they can apply to their situation, and that the 
monitoring and reporting that we impose are the least burdensome to the 
applicant.
    (2) Final Monitoring Report--The results of monitoring and 
mitigation efforts identified in the marine mammal monitoring and 
mitigation plan must be submitted to the Service for review within 90 
days of the expiration of an LOA. Upon request, final report data must 
be provided in a common electronic format (to be specified by the 
Service). Information in the final (or annual) report must include, but 
is not limited to:
     Copies of all observation reports submitted under the LOA;
     A summary of the observation reports;
     A summary of monitoring and mitigation efforts including 
areas, total hours, total distances, and distribution;
     Analysis of factors affecting the visibility and 
detectability of walruses and polar bears during monitoring;
     Analysis of the effectiveness of mitigation measures;
     Analysis of the distribution, abundance, and behavior of 
walruses and/or polar bears observed; and
     Estimates of take in relation to the specified activities.
    (3) Requests for Letters of Authorization (LOA)--LOAs, which may be 
issued only to U.S. citizens, are required to conduct activities 
pursuant to any specific regulations established. Once specific 
regulations are effective, the Service will, to the maximum extent 
possible, process subsequent requests for LOAs within 30 days after 
receipt of the request by the Service. All LOAs will specify the period 
of validity and any additional terms and conditions appropriate for the 
specific request. Issuance of LOAs will be based on a determination 
that the level of taking will be consistent with the findings made for 
the total taking allowable under the specific regulations.
    (4) Onsite Monitoring and Observation Reports (See revision section 
above.)--The regulations also require that each holder of an LOA submit 
a monitoring report indicating the nature and extent of all takes of 
marine mammals that occurred incidentally to the specific activity. 
Since the inception of incidental take authorizations for polar bears, 
Pacific walruses (walruses), and northern sea otters (otters), we have 
required monitoring and reporting during oil and gas industry 
activities. The purpose of monitoring and reporting requirements is to 
assess the effects of industrial activities on polar bears, walruses, 
and otters to ensure that take is minimal to marine mammal populations, 
and to detect any unanticipated effects of take. The monitoring focus 
has been site-specific, area-specific, or population-specific. Site-
specific monitoring measures animal-human encounter rates, outcomes of 
encounters, and trends of animal activity in the industrial areas, such 
as polar bear numbers, behavior, and seasonal use. Area-specific 
monitoring includes analyzing animal spatial and temporal use trends, 
sex/age composition, and risk assessment to unpredictable events, such 
as oil spills. Population-specific monitoring includes investigating 
species' life-history parameters, such as population size, recruitment, 
survival, physical condition, status, and mortality.
    (5) Polar Bear Den Detection Report--Holders of an LOA seeking to 
carry out onshore activities in known or suspected polar bear denning 
habitat during the denning season must make efforts to locate occupied 
polar bear dens within and near proposed areas of operation. They may 
use any appropriate tool, such as forward-looking infrared imagery and/
or polar bear scent-trained dogs, in concert with denning habitat maps 
along the Alaskan coast. In accordance with 50 CFR 18.128(b)(1) and 
(b)(2), LOA holders must report all observed or suspected polar bear 
dens to us prior to the initiation of activities. We use this 
information to determine the appropriate terms and conditions in an 
individual LOA in order to minimize potential impacts and disturbance 
to polar bears.
    Holders of an LOA seeking to carry out onshore activities during 
the denning season (November-April) must conduct two separate surveys 
for occupied polar bear dens in all denning habitat within 1.6 km (1 
mi) of proposed activities using aerial infrared (AIR) imagery. 
Further, all denning habitat within 1.6 km (1 mi) of areas of proposed 
seismic surveys must be surveyed three separate times with AIR 
technology.
    Flight crews will record and report environmental parameters 
including air temperature, dew point, wind speed and direction, cloud 
ceiling, and percent humidity, and a flight log will be provided to the 
Service within 48 hours of the flight.
    Title of Collection: Incidental Take of Marine Mammals During 
Specified Activities, 50 CFR 18.27 and 50 CFR part 18, subparts J, K, 
and L.
    OMB Control Number: 1018-0070.
    Form Numbers: None.
    Type of Review: Revision of a currently approved collection.
    Respondents/Affected Public: Individuals/households, private sector 
(oil and gas industry companies), State/local/Tribal governments, and 
Federal Government.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: On occasion.
    Total Estimated Annual Non-Hour Burden Cost: $200,000 (associated 
with the polar bear den detection survey and report).

[[Page 24126]]



----------------------------------------------------------------------------------------------------------------
                                     Number of       Number of                        Average
         Type of action               annual         responses     Total annual     completion     Total annual
                                    respondents        each          responses     time (hours)    burden hours
----------------------------------------------------------------------------------------------------------------
Incidental Take of Marine
 Mammals--Application for
 Regulations:
    Reporting--Private Sector...               3               1               3              20             450
    Recordkeeping--Private                                                                   130
     Sector.....................
    Reporting--Government.......               2               1               2              20             300
    Recordkeeping--Government...                                                             130
----------------------------------------------------------------------------------------------------------------
Requests--Letters of
 Authorization:
    Reporting--Private Sector...              15               4              60               8           1,440
    Recordkeeping--Private                                                                    16
     Sector.....................
    Reporting--Government.......               5               4              20               8             480
    Recordkeeping--Government...                                                              16
----------------------------------------------------------------------------------------------------------------
Final Monitoring Report:
    Reporting--Private Sector...              15               4              60               8           1,440
    Recordkeeping--Private                                                                    42
     Sector.....................
    Reporting--Government.......               5               4              20               8             480
    Recordkeeping--Government...                                                              42
----------------------------------------------------------------------------------------------------------------
Polar Bear Den Detection Report
 (50 CFR 18.126(b)(1)(iv)):
    Reporting--Private Sector...               4               1               4               8             200
    Recordkeeping--Private                                                                    42
     Sector.....................
----------------------------------------------------------------------------------------------------------------
In-season Monitoring--Activity
 Progress Reports (50 CFR
 18.127(a)(1)) NEW (Revised):
    Reporting--Private Sector...               1               1               1              .5               1
    Recordkeeping--Private                                                                    .5
     Sector.....................
    Reporting--Government.......               1               1               1              .5               1
    Recordkeeping--Government...                                                              .5
----------------------------------------------------------------------------------------------------------------
In-season Monitoring--Polar Bear
 Observation Reports (50 CFR
 18.127(a)(3)) NEW (Revised):
    Reporting--Private Sector...              15             4.5              68             .25              85
    Recordkeeping--Private                                                                     1
     Sector.....................
    Reporting--Government.......               1               7               7             .25               9
    Recordkeeping--Government...                                                               1
----------------------------------------------------------------------------------------------------------------
Notification of LOA Incident
 Report (50 CFR 18.127(b)) NEW
 (Revised):
    Reporting--Private Sector...               2               1               2             .25               2
    Recordkeeping--Private                                                                    .5
     Sector.....................
    Reporting--Government.......               1               1               1             .25               1
    Recordkeeping--Government...                                                              .5
----------------------------------------------------------------------------------------------------------------
Mitigation--Interaction Plan (50
 CFR 18.126(a)(1)(iii)) NEW
 (Existing):
    Reporting--Private Sector...              12               1              12               2              96
    Recordkeeping--Private                                                                     6
     Sector.....................
    Reporting--Government.......               3               1               3               2              24
    Recordkeeping--Government...                                                               6
----------------------------------------------------------------------------------------------------------------
Mitigation--3rd Party
 Notifications (50 CFR
 18.126(a)(2) and (e)(1)) NEW
 (Existing):
    Reporting--Private Sector...              12               3              36               1              72
    Recordkeeping--Private                                                                     1
     Sector.....................
    Reporting--Government.......               3               3               9               1              18
    Recordkeeping--Government...                                                               1
----------------------------------------------------------------------------------------------------------------
Mitigation--Requests for
 Exemption Waivers (50 CFR
 18.126(c)(4)) NEW (Existing):
    Reporting--Private Sector...               1               1               1               1               2
    Recordkeeping--Private                                                                     1
     Sector.....................
    Reporting--Government.......               1               1               1               1               2
    Recordkeeping--Government...                                                               1
----------------------------------------------------------------------------------------------------------------
Mitigation--Plan of Cooperation
 (50 CFR 18.126(e)(2)) NEW
 (Existing):
    Reporting--Private Sector...               1               1               1              10              40
    Recordkeeping--Private                                                                    30
     Sector.....................
    Reporting--Government.......               1               1               1              10              40

[[Page 24127]]

 
    Recordkeeping--Government...                                                              30
                                 -------------------------------------------------------------------------------
        Totals..................             104  ..............             313  ..............           5,183
----------------------------------------------------------------------------------------------------------------

    On August 15, 2022, we published a proposed rule (87 FR 50041) 
soliciting comments on this collection of information for 60 days, 
ending on October 14, 2022. No comments on this collection of 
information were received.
    As part of our continuing effort to reduce paperwork and respondent 
burdens, we invite the public and other Federal agencies to comment on 
any aspect of this information collection, including:
    (1) Whether or not the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether or not the information will have practical utility;
    (2) The accuracy of our estimate of the burden for this collection 
of information, including the validity of the methodology and 
assumptions used;
    (3) Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    (4) Ways to minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of response.

Energy Effects

    Executive Order 13211 requires agencies to prepare statements of 
energy effects when undertaking certain actions. This rule provides 
exceptions from the MMPA's taking prohibitions for entities engaged in 
specified pile driving and marine construction activities in the 
specified geographic region. These specified activities are unrelated 
to the oil and gas industry or any other energy-related industry. 
Therefore, this rule is not expected to significantly affect energy 
supplies, distribution, or use and does not constitute a significant 
energy action. No statement of energy effects is required.

References

    For a list of the references cited in this rule, see Docket No. 
FWS-R7-ES-2022-0025, available at https://www.regulations.gov.

List of Subjects in 50 CFR Part 18

    Administrative practice and procedure, Alaska, Imports, Indians, 
Marine mammals, Reporting and recordkeeping requirements, 
Transportation.

Regulation Promulgation

    For the reasons set forth in the preamble, the Service amends part 
18, subchapter B of chapter 1, title 50 of the Code of Federal 
Regulations as set forth below.

PART 18--MARINE MAMMALS

0
1. The authority citation of 50 CFR part 18 continues to read as 
follows:

    Authority:  16 U.S.C. 1361 et seq.


0
2. Add subpart L, consisting of Sec. Sec.  18.142 through 18.152, to 
read as follows:

Subpart L--Nonlethal Taking of Marine Mammals Incidental to Pile 
Driving and Marine Construction Activities in the Gulf of Alaska

Sec.
18.142 Specified activities covered by this subpart.
18.14 Specified geographic region where this subpart applies.
18.144 Dates this subpart is in effect.
18.145 Procedure to obtain a Letter of Authorization (LOA).
18.146 How the Service will evaluate a request for an LOA.
18.147 Authorized take allowed under an LOA.
18.148 Prohibited take under an LOA.
18.149 Mitigation.
18.150 Monitoring.
18.151 Reporting requirements.
18.152 Information collection requirements.


Sec. 18.142  Specified activities covered by this subpart.

    Regulations in this subpart apply to the nonlethal incidental, but 
not intentional, take, as defined in Sec.  18.3 and under section 3 of 
the Marine Mammal Protection Act (16 U.S.C. 1371 et seq.), of small 
numbers of northern sea otters (Enhydra lutris kenyoni; hereafter ``sea 
otters'') by the U.S. Coast Guard (hereafter ``USCG'' or ``the 
applicant'') while engaged in activities associated with or in support 
of marine construction activities in the Gulf of Alaska. The applicant 
is a U.S. citizen as defined in Sec.  18.27(c).


Sec.  18.143  Specified geographic region where this subpart applies.

    (a) The specified geographic region encompasses areas within 2 
kilometers (km) (~1.25 miles (mi)) of eight USCG facilities within the 
USCG Civil Engineering Unit, Juneau Area of Responsibility. These 
facilities are: Base Kodiak, Moorings Seward, Moorings Valdez, Moorings 
Cordova, Moorings Sitka, Station Juneau, Moorings Petersburg, and Base 
Ketchikan.
    (b) The geographic area of the incidental take regulations (ITRs) 
in this subpart includes all Alaska State waters within the areas 
listed in paragraph (a) of this section as well as all adjacent rivers, 
estuaries, and coastal lands where sea otters may occur.


Sec.  18.144  Dates this subpart is in effect.

    Regulations in this subpart are effective from May 19, 2023, until 
May 19, 2028.


Sec.  18.145  Procedure to obtain a Letter of Authorization (LOA).

    (a) The applicant must submit the request for authorization to the 
U.S. Fish and Wildlife Service (Service) Alaska Region Marine Mammals 
Management Office (MMM), MS 341, 1011 East Tudor Road, Anchorage, 
Alaska, 99503, or by email at [email protected], at least 30 days 
prior to the start of the planned activity.
    (b) The request for an LOA must comply with the requirements set 
forth in Sec. Sec.  18.149 through 18.151 and must include the 
following information:
    (1) An operational plan for the activity;
    (2) A digital geospatial file of the project footprint, including 
sound isopleths;
    (3) A site-specific marine mammal monitoring and mitigation plan 
that specifies the procedures to monitor and mitigate the effects of 
the activities on sea otters; and
    (4) When appropriate, a plan of cooperation, which is a documented 
plan that describes measures to mitigate potential conflicts between 
planned project activities and subsistence hunting.

[[Page 24128]]

Sec.  18.146  How the Service will evaluate a request for an LOA.

    (a) The Service will evaluate each request for an LOA to determine 
if the proposed activity is consistent with the analysis and findings 
made for the regulations in this subpart. Depending on the results of 
the evaluation, we may issue the LOA, add further conditions, or deny 
the LOA.
    (b) Once issued, the Service may withdraw or suspend an LOA if the 
project activity is modified in a way that undermines the results of 
the previous evaluation, if the conditions of the regulations in this 
subpart are not being substantially complied with, or if the taking 
allowed is or may be having more than a negligible impact on the 
affected stock of sea otters or an unmitigable adverse impact on the 
availability of sea otters for subsistence uses.
    (c) The Service will make decisions concerning withdrawals of an 
LOA, either on an individual or class basis, only after notice and 
opportunity for public comment in accordance with Sec.  18.27(f)(5). 
The requirement for notice and public comment will not apply should we 
determine that an emergency exists that poses a significant risk to the 
well-being of the species or stocks of sea otters.


Sec.  18.147  Authorized take allowed under an LOA.

    (a) To incidentally take sea otters pursuant to the regulations in 
this subpart, the USCG must apply for and obtain an LOA in accordance 
with Sec. Sec.  18.27(f) and 18.145. The applicant is a U.S. citizen as 
defined in Sec.  18.27(c).
    (b) An LOA allows for the nonlethal, incidental, but not 
intentional take by harassment of sea otters during activities 
specified in Sec.  18.142 within the Gulf of Alaska ITR region 
described in Sec.  18.143.
    (c) Each LOA will set forth:
    (1) Permissible methods of incidental take;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (d) Issuance of the LOA(s) must be based on a determination that 
the level of take will be consistent with the findings made for the 
total allowable take under the regulations in this subpart.


Sec.  18.148  Prohibited take under an LOA.

    (a) Except as otherwise provided in this subpart, prohibited taking 
is described in Sec.  18.11 as well as: intentional take, lethal 
incidental take of sea otters, and any take that fails to comply with 
this subpart or with the terms and conditions of an LOA.
    (b) If project activities cause unauthorized take, the applicant 
must take the following actions:
    (1) Cease activities immediately (or reduce activities to the 
minimum level necessary to maintain safety) and report the details of 
the incident to the Service MMM at 1-800-362-5148 (business hours) 
within 48 hours; and
    (2) Suspend further activities until the Service has reviewed the 
circumstances, determined whether additional mitigation measures are 
necessary to avoid further unauthorized taking, and notified the 
applicant that project activities may resume.


Sec.  18.149  Mitigation.

    (a) Mitigation measures for all LOAs. The applicant, including all 
personnel operating under the applicant's authority (or ``operators,'' 
including contractors, subcontractors, and representatives) must 
undertake the following activities to avoid and minimize take of sea 
otters by harassment.
    (1) Implement policies and procedures to avoid interactions with 
and minimize to the greatest extent practicable adverse impacts on sea 
otters, their habitat, and the availability of these marine mammals for 
subsistence uses.
    (2) Develop avoidance and minimization policies and procedures, in 
cooperation with the Service, that include temporal or spatial activity 
restrictions to be used in response to the presence of sea otters 
engaged in a biologically significant activity (e.g., resting, feeding, 
hauling out, mating, or nursing).
    (3) Cooperate with the Service's MMM Office and other designated 
Federal, State, and local agencies to monitor and mitigate the impacts 
of pile driving and marine construction activities on sea otters.
    (4) Allow Service personnel or the Service's designated 
representative to board project vessels or visit project worksites for 
the purpose of monitoring impacts to sea otters and subsistence uses of 
sea otters at any time throughout project activities so long as it is 
safe to do so.
    (5) Designate trained and qualified protected species observers 
(PSOs) to monitor for the presence of sea otters, initiate mitigation 
measures, and monitor, record, and report the effects of the activities 
on sea otters. The applicant is responsible for providing training to 
PSOs to carry out mitigation and monitoring.
    (6) Have an approved mitigation and monitoring plan on file with 
the Service MMM and onsite that includes the following information:
    (i) The type of activity and where and when the activity will occur 
(i.e., a summary of the plan of operation);
    (ii) Personnel training policies, procedures, and materials;
    (iii) Site-specific sea otter interaction risk evaluation and 
mitigation measures;
    (iv) Sea otter avoidance and encounter procedures; and
    (v) Sea otter observation and reporting procedures.
    (b) Mitigation measures for in-water noise-generating work. The 
applicant must carry out the following measures:
    (1) Construction activities must be conducted using equipment that 
generates the lowest practicable levels of underwater sound within the 
range of frequencies audible to sea otters.
    (2) During all pile-installation activities, regardless of 
predicted sound levels, a physical interaction shutdown zone of 20 
meters (m) (66 feet (ft)) must be enforced. If a sea otter enters the 
shutdown zone, in-water activities must be delayed until either the 
animal has been visually observed outside the shutdown zone or 15 
minutes have elapsed since the last observation time without 
redetection of the animal.
    (3) If the impact driver has been idled for more than 30 minutes, 
an initial set of three strikes from the impact driver must be 
delivered at reduced energy, followed by a 1-minute waiting period, 
before full-powered proofing strikes.
    (4) In-water activity must be conducted in daylight. If 
environmental conditions prevent visual detection of sea otters within 
the shutdown zone, in-water activities must be stopped until visibility 
is regained.
    (5) All in-water work along the shoreline must be conducted during 
low tide when the site is dewatered to the maximum extent practicable.
    (6) When an impact hammer is used, noise-dampening block cushions 
or pile caps will be placed between the hammer and pile.
    (c) Mitigation measures for vessel operations. Vessel operators 
must take every precaution to avoid harassment of sea otters when a 
vessel is operating near these animals. The applicant must carry out 
the following measures:
    (1) Vessels must remain at least 500 m (1,640 ft) from rafts of sea 
otters unless safety is a factor. Vessels must reduce speed and 
maintain a distance of 100 m (328 ft) from all sea otters unless safety 
is a factor.
    (2) Vessels must not be operated in such a way as to separate 
members of

[[Page 24129]]

a group of sea otters from other members of the group and must avoid 
alongshore travel in shallow water (<20 m (~66 ft)) whenever 
practicable.
    (3) When weather conditions require, such as when visibility drops, 
vessels must adjust speed accordingly to avoid the likelihood of injury 
to sea otters.
    (4) Vessel operators must be provided written guidance for avoiding 
collisions and minimizing disturbances to sea otters. Guidance will 
include measures identified in paragraph (c) of this section.


Sec.  18.150  Monitoring.

    (a) Operators must work with PSOs to apply mitigation measures and 
must recognize the authority of PSOs, up to and including stopping 
work, except where doing so poses a significant safety risk to 
personnel.
    (b) Duties of PSOs include watching for and identifying sea otters, 
recording observation details, documenting presence in any applicable 
monitoring zone, identifying and documenting potential harassment, and 
working with operators to implement all appropriate mitigation 
measures.
    (c) A sufficient number of PSOs will be available to meet the 
following criteria: 100 percent monitoring of exclusion zones during 
all daytime periods of underwater noise-generating work; a maximum of 4 
consecutive hours on watch per PSO; a maximum of approximately 12 hours 
on watch per day per PSO.
    (d) All PSOs will complete a training course designed to 
familiarize individuals with monitoring and data collection procedures. 
A field crew leader with prior experience as a sea otter observer will 
supervise the PSO team. Initially, new or inexperienced PSOs will be 
paired with experienced PSOs so that the quality of marine mammal 
observations and data recording is kept consistent. Resumes for 
candidate PSOs will be made available for the Service to review.
    (e) Observers will be provided with reticule binoculars (10x42), 
big-eye binoculars or spotting scopes (30x), inclinometers, and range 
finders. Field guides, instructional handbooks, maps, and a contact 
list will also be made available.
    (f) Observers will collect data using the following procedures:
    (1) All data will be recorded onto a field form or database.
    (2) Global positioning system data, sea state, wind force, and 
weather will be collected at the beginning and end of a monitoring 
period, every hour in between, at the change of an observer, and upon 
sightings of sea otters.
    (3) Observation records of sea otters will include date; time; the 
observer's locations, heading, and speed (if moving); weather; 
visibility; number of animals; group size and composition (adults/
juveniles); and the location of the animals (or distance and direction 
from the observer).
    (4) Observation records will also include initial behaviors of the 
sea otters, descriptions of project activities and underwater sound 
levels being generated, the position of sea otters relative to 
applicable monitoring and mitigation zones, any mitigation measures 
applied, and any apparent reactions to the project activities before 
and after mitigation.
    (5) For all sea otters in or near a mitigation zone, observers will 
record the distance from the vessel to the sea otter upon initial 
observation, the duration of the encounter, and the distance at last 
observation in order to monitor cumulative sound exposures.
    (6) Observers will note any instances of animals lingering close to 
or traveling with vessels for prolonged periods of time.


Sec.  18.151  Reporting requirements.

    (a) Operators must notify the Service at least 48 hours prior to 
commencement of activities.
    (b) Monthly reports will be submitted to the Service MMM for all 
months during which noise-generating work takes place. The monthly 
report will contain and summarize the following information: dates, 
times, weather, and sea conditions (including the Beaufort Scale's sea 
state and wind force conditions) when sea otters were sighted; the 
number, location, distance from the sound source, and behavior of the 
sea otters; the associated project activities; and a description of the 
implementation and effectiveness of mitigation measures with a 
discussion of any specific behaviors the sea otters exhibited in 
response to mitigation.
    (c) A final report will be submitted to the Service within 90 days 
after the expiration of each LOA. It will include the following:
    (1) A summary of monitoring efforts (hours of monitoring, 
activities monitored, number of PSOs, and, if requested by the Service, 
the daily monitoring logs).
    (2) A description of all project activities, along with any 
additional work yet to be done. Factors influencing visibility and 
detectability of marine mammals (e.g., sea state, number of observers, 
and fog and glare) will be discussed.
    (3) A description of the factors affecting the presence and 
distribution of sea otters (e.g., weather, sea state, and project 
activities). An estimate will be included of the number of sea otters 
exposed to noise at received levels greater than or equal to 160 
dBRMS re: 1 [mu]Pa (decibels root-mean squared referenced to 
1 microPascal) (based on visual observation).
    (4) A description of changes in sea otter behavior resulting from 
project activities and any specific behaviors of interest.
    (5) A discussion of the mitigation measures implemented during 
project activities and their observed effectiveness for minimizing 
impacts to sea otters. Sea otter observation records will be provided 
to the Service in the form of electronic database or spreadsheet files.
    (d) All reports must be submitted by email to 
[email protected].
    (e) Injured, dead, or distressed sea otters that are not associated 
with project activities (e.g., animals known to be from outside the 
project area, previously wounded animals, or carcasses with moderate to 
advanced decomposition or scavenger damage) must be reported to the 
Service within 24 hours of the discovery to either the Service MMM (1-
800-362-5148, business hours); or the Alaska SeaLife Center in Seward 
(1-888-774-7325, 24 hours a day); or both. Photographs, video, location 
information, or any other available documentation must be provided to 
the Service.
    (f) Operators must notify the Service upon project completion or 
end of the work season.


Sec.  18.152  Information collection requirements.

    The Office of Management and Budget (OMB) has approved the 
information collection requirements contained in this part and assigned 
OMB Control Number 1018-0070. Federal agencies may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number. 
Direct comments regarding the burden estimate or any other aspect of 
the information collection to the Service's Information Collection 
Clearance Officer at the address provided at 50 CFR 2.1(b).

Shannon Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2023-08258 Filed 4-18-23; 8:45 am]
BILLING CODE 4333-15-P