[Federal Register Volume 89, Number 33 (Friday, February 16, 2024)]
[Notices]
[Pages 12306-12318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03251]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD539]


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

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as

[[Page 12307]]

amended, notification is hereby given that NMFS has issued an 
incidental harassment authorization (IHA) to Haines Borough to 
incidentally harass marine mammals during construction activities 
associated with a Lutak Dock Replacement project in Haines, Alaska.

DATES: This authorization is effective from June 1, 2024, through May 
31, 2025.

ADDRESSES: Electronic copies of the application and supporting 
documents, as well as a list of the references cited in this document, 
may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. In case of problems accessing these documents, please call 
the contact listed below.

FOR FURTHER INFORMATION CONTACT: Craig Cockrell, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

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

Summary of Request

    On July 10, 2023, NMFS received a request from Haines Borough for 
an IHA to take marine mammals incidental to pile driving involving 
impact, vibratory, and down-the-hole (DTH) drilling to replace the 
Lutak Dock. Following NMFS' review of the application, Haines Borough 
submitted a revised version on October 11, 2023. The application was 
deemed adequate and complete on October 16, 2023.
    Haines Borough's request was for take of six species of marine 
mammals by Level B harassment and, for a subset of three of these 
species, Level A harassment. Neither Haines Borough nor NMFS expect 
serious injury or mortality to result from this activity and, 
therefore, an IHA is appropriate.

Description of Activity

    Haines Borough will encapsulate the existing Lutak Dock structure 
with a new dock structure of similar design. In-water construction 
activities associated with the project will include impact pile 
driving, vibratory pile driving and removal, and DTH installation. Pile 
removal will consist of 24 16-inch (in) steel pipe piles (41 
centimeters (cm)) that make up the 4 mooring dolphins and 1 24-in (61-
cm) steel guide pile. A template frame will then be welded to 42 36-in 
(91-cm) temporary piles that are capable of holding 10 permanent piles 
in each section. The template frame will be used to position the 180 
42-in (107-cm) permanent piles across the length of the dock. Up to 10 
permanent piles will be set at a time, before moving the template to 
the next position to install the next 10 permanent piles. A permanent 
55.5-in (140-cm) sheet pile wall will be installed and attached to the 
permanent piles to make up the new dock return walls. It is expected to 
take up to 234 non-consecutive days to complete the pile driving and 
removal activities.
    A detailed description of the planned construction project is 
provided in the Federal Register notice for the proposed IHA (88 FR 
78310, November 15, 2023). Since that time, no changes have been made 
to the planned activities. Therefore, a detailed description is not 
provided here. Please refer to that Federal Register notice for the 
description of the specific activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Haines Borough was 
published in the Federal Register on November 15, 2023 (88 FR 78310). 
That notice described, in detail, Haines Borough's activity, the marine 
mammal species that may be affected by the activity, and the 
anticipated effects on marine mammals. In that notice, we requested 
public input on the request for authorization described therein, our 
analyses, the proposed authorization, and any other aspect of the 
notice of proposed IHA, and requested that interested persons submit 
relevant information, suggestions, and comments.
    During the 30-day public comment period, NMFS did not receive any 
public comments.

Changes From the Proposed IHA to Final IHA

    In table 7 of the proposed IHA Federal Register notice (88 FR 
78310, November 15, 2023) Level A and Level B harassment zones for 
impact installation of 42-in. piles were incorrect. These values have 
been corrected in table 6 of this notice. Take estimates and mitigation 
measures were considered using the correct source level and harassment 
zones and thus remain unchanged in this notice.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history of the potentially affected species. NMFS 
fully considered all of this information, and we refer the reader to 
these descriptions, instead of reprinting the information. Additional 
information regarding population trends and threats may be found in 
NMFS' Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and 
more general information about these species (e.g., physical and 
behavioral descriptions) may be found on NMFS' website (https://www.fisheries.noaa.gov/find-species).
    Table 1 lists all species or stocks for which take is expected and 
authorized for this activity, and summarizes information related to the 
population or stock, including regulatory status under the MMPA and 
Endangered Species Act (ESA) and potential biological removal (PBR), 
where known. PBR is defined by the MMPA as the maximum number of 
animals, not including natural mortalities, that may be removed from a 
marine mammal stock while allowing that stock to reach or maintain its 
optimum sustainable population (as described in NMFS' SARs). While no 
serious injury or mortality is anticipated or authorized here, PBR and 
annual serious injury and mortality from

[[Page 12308]]

anthropogenic sources are included here as gross indicators of the 
status of the species or stocks and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' Alaska SARs (Young et al., 2023). All values presented in table 1 
are the most recent available at the time of publication and are 
available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

                                            Table 1--Species Likely Impacted by the Specified Activities \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/MMPA status;    Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \2\          abundance survey) \3\               SI \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Order Artiodactyla--Infraorder Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenopteridae (rorquals):
    Humpback whale..................  Megaptera novaeangliae.  Hawai[revaps]i.........  -,-, N              11,278 (0.56, 7,265,          127      27.09
                                                                                                             2020).
                                                               Mexico-North Pacific...  T, D, Y             N/A (N/A, N/A, 2006)..        UND       0.57
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                  Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
    Killer whale....................  Orcinus orca...........  Eastern North Pacific    -, -, N             1,920 (N/A, 1,920,             19        1.3
                                                                Alaska Resident.                             2019).
                                                               Eastern Northern         -, -, N             302 (N/A, 302, 2018)..        2.2        0.2
                                                                Pacific Northern
                                                                Resident.
                                                               West Coast Transient...  -, -, N             349 (N/A, 349, 2018)..        3.5        0.4
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Northern Southeast       -, -, N             1,619 (0.26, 1,250,            13        5.6
                                                                Alaska Inland Waters.                        2019).
    Dall's Porpoise.................  Phocoenoides dalli.....  Alaska.................  -, -, N             UND (UND, UND, 2015)..        UND         37
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
 sea lions):
    Steller sea lion................  Eumetopias jubatus.....  Eastern DPS \5\........  -, -, N             43,201 (N/A, 43,201,        2,592        112
                                                                                                             2017).
                                                               Western DPS............  E, D, Y             52,932 (N/A, 52,932,          318        254
                                                                                                             2019).
Family Phocidae (earless seals):
    Harbor Seal.....................  Phoca vitulina.........  Lynn Canal/Stephens      -, -, N             13,388 (N/A, 11,867,          214         50
                                                                Passage.                                     2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
  (https://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2022)).
\2\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
  which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\3\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\4\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, vessel strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A
  CV associated with estimated mortality due to commercial fisheries is presented in some cases.
\5\ Distinct Population Segment (DPS).

    A detailed description of the species likely to be affected by the 
Lutak Dock Replacement project, including brief introductions to the 
species and relevant stocks as well as available information regarding 
population trends and threats, and information regarding local 
occurrence, were provided in the Federal Register notice for the 
proposed IHA (88 FR 78310, November 15, 2023); since that time, we are 
not aware of any changes in the status of these species and stocks; 
therefore, detailed descriptions are not provided here. Please refer to 
that Federal Register notice for these descriptions. Please also refer 
to NMFS' website (https://www.fisheries.noaa.gov/find-species) for 
generalized species accounts.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Not all marine mammal species have equal 
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and 
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. 
(2007, 2019) recommended that marine mammals be divided into hearing 
groups based on directly measured (behavioral or auditory evoked 
potential techniques) or estimated hearing ranges (behavioral response 
data, anatomical modeling, etc.). Note that no direct measurements of 
hearing ability have been successfully completed for mysticetes (i.e., 
low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65-dB 
threshold from the normalized composite audiograms, with the exception 
for lower limits for low-frequency cetaceans where the lower

[[Page 12309]]

bound was deemed to be biologically implausible and the lower bound 
from Southall et al. (2007) retained. Marine mammal hearing groups and 
their associated hearing ranges are provided in table 2.

                  Table 2--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
            Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen   7 Hz to 35 kHz
 whales).
Mid-frequency (MF) cetaceans           150 Hz to 160 kHz
 (dolphins, toothed whales, beaked
 whales, bottlenose whales).
High-frequency (HF) cetaceans (true    275 Hz to 160 kHz
 porpoises, Kogia, river dolphins,
 Cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater)     50 Hz to 86 kHz
 (true seals).
Otariid pinnipeds (OW) (underwater)    60 Hz to 39 kHz
 (sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al., 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information.

Effects of Specified Activities on Marine Mammals and Their Habitat

    The effects of underwater noise from Haines Borough's construction 
activities have the potential to result in behavioral harassment of 
marine mammals in the vicinity of the project area. The notice of 
proposed IHA (88 FR 78310, November 15, 2023) included a discussion of 
the effects of anthropogenic noise on marine mammals and the potential 
effects of underwater noise from Haines Borough's construction 
activities on marine mammals and their habitat. That information and 
analysis is incorporated by reference into this final IHA determination 
and is not repeated here; please refer to the notice of proposed IHA 
(88 FR 78310, November 15, 2023).

Estimated Take of Marine Mammals

    This section provides an estimate of the number of incidental takes 
authorized through the final IHA, which will inform both NMFS' 
consideration of ``small numbers,'' and the negligible impact 
determinations.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes would primarily be by Level B harassment, as use 
of the construction equipment (i.e., pile driving) has the potential to 
result in disruption of behavioral patterns for individual marine 
mammals. There is also some potential for auditory injury (Level A 
harassment) to result, primarily for high frequency cetaceans and 
phocids, because predicted auditory injury zones are larger and beyond 
Haines Borough's capability to reasonably monitor. Auditory injury is 
unlikely to occur for other species groups, based on the combination of 
expected occurrence and monitoring capabilities relative to estimated 
Level A harassment zone sizes. The mitigation and monitoring measures 
are expected to minimize the severity of the taking to the extent 
practicable.
    As described previously, no serious injury or mortality is 
anticipated or authorized for this activity. Below we describe how the 
take numbers are estimated.
    For acoustic impacts, generally speaking, we estimate take by 
considering: (1) acoustic thresholds above which NMFS believes the best 
available science indicates marine mammals will be behaviorally 
harassed or incur some degree of permanent hearing impairment; (2) the 
area or volume of water that will be ensonified above these levels in a 
day; (3) the density or occurrence of marine mammals within these 
ensonified areas; and, (4) the number of days of activities. We note 
that while these factors can contribute to a basic calculation to 
provide an initial prediction of potential takes, additional 
information that can qualitatively inform take estimates is also 
sometimes available (e.g., previous monitoring results or average group 
size). Below, we describe the factors considered here in more detail 
and present the take estimates.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur permanent threshold shift (PTS) of some 
degree (equated to Level A harassment).
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source or exposure context (e.g., frequency, predictability, duty 
cycle, duration of the exposure, signal-to-noise ratio, distance to the 
source), the environment (e.g., bathymetry, other noises in the area, 
predators in the area), and the receiving animals (hearing, motivation, 
experience, demography, life stage, depth) and can be difficult to 
predict (e.g., Southall et al., 2007, Southall et al., 2021, Ellison et 
al., 2012). Based on what the available science indicates and the 
practical need to use a threshold based on a metric that is both 
predictable and measurable for most activities, NMFS typically uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS generally predicts that marine 
mammals are likely to be behaviorally harassed in a manner considered 
to be Level B harassment when exposed to underwater anthropogenic noise 
above root-mean-squared pressure received levels (RMS SPL) of 120 dB 
(referenced to 1

[[Page 12310]]

micropascal (re 1 [mu]Pa)) for continuous (e.g., vibratory pile 
driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g., 
scientific sonar) sources. Generally speaking, Level B harassment take 
estimates based on these behavioral harassment thresholds are expected 
to include any likely takes by temporary threshold shift (TTS) as, in 
most cases, the likelihood of TTS occurs at distances from the source 
less than those at which behavioral harassment is likely. TTS of a 
sufficient degree can manifest as behavioral harassment, as reduced 
hearing sensitivity and the potential reduced opportunities to detect 
important signals (conspecific communication, predators, prey) may 
result in changes in behavior patterns that would not otherwise occur.
    Haines Borough's activity includes the use of continuous (vibratory 
pile driving) and impulsive (impact pile driving) sources, and 
therefore the RMS SPL thresholds of 120- and 160-dB re 1 [mu]Pa are 
applicable. DTH systems have both continuous and intermittent 
(impulsive) components as discussed in the proposed IHA Federal 
Register notice (88 FR 78310, November 15, 2023) in the Description of 
Sound Sources section. When evaluating Level B harassment, NMFS 
recommends treating DTH as a continuous source and applying the RMS SPL 
thresholds of 120-dB re 1 [mu]Pa.
    Level A harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0 of 
Technical Guidance, 2018) identifies dual criteria to assess auditory 
injury (Level A harassment) to five different marine mammal groups 
(based on hearing sensitivity) as a result of exposure to noise from 
two different types of sources (impulsive or non-impulsive). The Haines 
Borough's construction includes the use of impulsive (impact pile 
driving) and non-impulsive (vibratory pile driving) sources. As 
described above, DTH includes both impulsive and non-impulsive 
characteristics. When evaluating Level A harassment, NMFS recommends 
treating DTH as an impulsive source.
    These thresholds are provided in the table below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS' 2018 Technical Guidance, which may be accessed at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

                     Table 3--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                     PTS onset acoustic thresholds * (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lpk,flat: 219 dB;   Cell 2: LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lpk,flat: 230 dB;   Cell 4: LE,MF,24h: 198 dB.
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lpk,flat: 202 dB;   Cell 6: LE,HF,24h: 173 dB.
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lpk,flat: 218 dB;   Cell 8: LE,PW,24h: 201 dB.
                                          LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: Lpk,flat: 232 dB;   Cell 10: LE,OW,24h: 219 dB.
                                          LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
  has a reference value of 1[micro]Pa\2\s. In this table, thresholds are abbreviated to reflect American
  National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as
  incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
  ``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
  generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
  the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
  and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could
  be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible,
  it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
  exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that are used in estimating the area ensonified above the 
acoustic thresholds, including source levels and transmission loss 
coefficient.
    The sound field in the project area is the existing background 
noise plus additional construction noise from the project. Marine 
mammals are expected to be affected via sound generated by the primary 
components of the project (i.e., impact pile driving, vibratory pile 
driving and removal, DTH). The maximum (underwater) area ensonified 
above the thresholds for behavioral harassment referenced above is 
20.86 kilometers\2\ (12.96 miles\2\), and will consist of the entire 
area of Lutak Inlet (see Figure 20 in the Haines Borough's 
application). Additionally, vessel traffic and other commercial and 
industrial activities in the project area may contribute to elevated 
background noise levels which may mask sounds produced by the project.
    Transmission loss (TL) is the decrease in acoustic intensity as an 
acoustic pressure wave propagates out from a source. TL parameters vary 
with frequency, temperature, sea conditions, current, source and 
receiver depth, water depth, water chemistry, and bottom composition 
and topography. The general formula for underwater TL is:

TL = B x Log10 (R1/R2)

Where:

TL = transmission loss in dB
B = transmission loss coefficient

R1 = the distance of the modeled SPL from the driven 
pile, and
R2 = the distance from the driven pile of the initial 
measurement

    This formula neglects loss due to scattering and absorption, which 
is assumed to be zero here. The degree to which underwater sound 
propagates away from a sound source is dependent on a variety of 
factors, most notably the water bathymetry and presence or absence of 
reflective or absorptive conditions including in-water structures and 
sediments. Spherical spreading occurs in a perfectly unobstructed 
(free-field) environment not limited by depth or water surface, 
resulting in a 6-dB reduction in sound level for each doubling of 
distance from the source (20xlog[range]). Cylindrical spreading occurs 
in an environment in which sound propagation is bounded by the water 
surface and sea bottom, resulting

[[Page 12311]]

in a reduction of 3 dB in sound level for each doubling of distance 
from the source (10xlog[range]). A practical spreading value of 15 is 
often used under conditions, such as the project site, where water 
increases with depth as the receiver moves away from the shoreline, 
resulting in an expected propagation environment that will lie between 
spherical and cylindrical spreading loss conditions. Practical 
spreading loss is assumed here.
    The intensity of pile driving sounds is greatly influenced by 
factors such as the type of piles, hammers, and the physical 
environment in which the activity takes place. In order to calculate 
the distances to the Level A harassment and the Level B harassment 
sound thresholds for the methods and piles being used in this project, 
the applicant and NMFS used acoustic monitoring data from other 
locations to develop proxy source levels for the various pile types, 
sizes and methods. The project includes vibratory, impact, and DTH pile 
installation of steel pipe and sheet piles and vibratory removal of 
steel pipe piles. Source levels for impact installation of 36-in steel 
piles are used as a proxy for 42-in steel piles, as 36-in source levels 
are higher than those available for 42-in piles. Using these higher 
values is the more conservative approach for mitigation measures and 
take estimate calculations. NMFS consulted multiple sources to 
determine valid proxy source levels for the impact installation of 
sheet piles, as indicated in table 4. This is the best available data 
for sheet pile source levels and is based on 24-in sheet piles used for 
a project in California. Source levels for each pile size and driving 
method are presented in table 4.

                                          Table 4--Proxy Sound Source Levels for Pile Sizes and Driving Methods
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Proxy source level
                                                        --------------------------------------------------
            Pile size                     Method            dB RMS re       dB SEL * re      dB peak re                  Literature source
                                                           1[micro]Pa    1[micro]Pa\2\sec    1[micro]Pa
--------------------------------------------------------------------------------------------------------------------------------------------------------
16-in............................  Vibratory...........             161              N/A              N/A  Navy 2015.
24-in............................  Vibratory...........             161              N/A              N/A  Navy 2015.
36-in............................  Vibratory...........             166              N/A              N/A  Navy 2015.
42-in............................  Vibratory...........             170              N/A              N/A  Illingworth and Rodkin, 2019.
55.5-in sheet pile...............  Vibratory...........             162              N/A              N/A  Molnar et al. 2020.
36-in............................  Impact..............             192              184              211  Navy 2015.
42-in............................  Impact..............             192              184              211  Navy 2015.
55.5-in sheet pile...............  Impact..............             190              180              205  Caltrans 2015.
42-in............................  DTH.................             174              164              194  NMFS 2022.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Sound exposure level (SEL)

    The ensonified area associated with Level A harassment is more 
technically challenging to predict due to the need to account for a 
duration component. Therefore, NMFS developed an optional User 
Spreadsheet tool to accompany the Technical Guidance that can be used 
to relatively simply predict an isopleth distance for use in 
conjunction with marine mammal density or occurrence to help predict 
potential takes. We note that because of some of the assumptions 
included in the methods underlying this optional tool, we anticipate 
that the resulting isopleth estimates are typically going to be 
overestimates of some degree, which may result in an overestimate of 
potential take by Level A harassment. However, this optional tool 
offers the best way to estimate isopleth distances when more 
sophisticated modeling methods are not available or practical. For 
stationary sources such as impact or vibratory pile driving and removal 
and DTH, the optional User Spreadsheet tool predicts the distance at 
which, if a marine mammal remained at that distance for the duration of 
the activity, it will be expected to incur PTS. Inputs used in the 
optional User Spreadsheet tool (table 5), and the resulting estimated 
isopleths and the calculated Level B harassment isopleth (table 6), are 
reported below. For source levels of each pile please refer to table 4.

          Table 5--User Spreadsheet Input Parameters Used for Calculating Level A Harassment Isopleths
----------------------------------------------------------------------------------------------------------------
                                                                            Number of    Number of     Activity
Pile size and installation method    Spreadsheet tab     Weighting factor  strikes per   piles per     duration
                                           used         adjustment  (kHz)      pile         day       (minutes)
----------------------------------------------------------------------------------------------------------------
16-in vibratory removal..........  A.1 Vibratory pile                 2.5          N/A            4           45
                                    driving.
24-in vibratory removal..........  A.1 Vibratory pile                 2.5          N/A            1           45
                                    driving.
36-in vibratory installation       A.1 Vibratory pile                 2.5          N/A            4           15
 (temporary).                       driving.
36-in vibratory removal            A.1 Vibratory pile                 2.5          N/A            4           15
 (temporary).                       driving.
42-in vibratory installation.....  A.1 Vibratory pile                 2.5          N/A            4           45
                                    driving.
55-in sheet pile vibratory         A.1 Vibratory pile                 2.5          N/A            6           30
 installation.                      driving.
36-in impact installation          E.1 Impact pile                      2          900            4          N/A
 (temporary).                       driving.
42-in impact installation........  E.1 Impact pile                      2        1,500            4          N/A
                                    driving.
55-in sheet pile impact            E.1 Impact pile                      2          900            6          N/A
 installation.                      driving.
42-in DTH installation...........  E.2 DTH systems....                  2      324,000            2          N/A
----------------------------------------------------------------------------------------------------------------


                                              Table 6--Calculated Level A and Level B Harassment Isopleths
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                    Level A harassment zone (m)                               Level B
                        Activity                         --------------------------------------------------------------------------------   harassment
                                                           LF-cetaceans    MF-cetaceans    HF-cetaceans       Phocids        Otariids        zone (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
16-in vibratory removal.................................            14.2             1.3            21.8             8.6             0.6           5,412

[[Page 12312]]

 
24-in vibratory removal.................................             5.6             0.5             8.3             3.4             0.2
36-in vibratory installation (temporary)................            14.7             1.3            21.8             8.9             0.6          11,659
36-in vibratory removal (temporary).....................            14.7             1.3            21.8             8.9             0.6
42-in vibratory installation *..........................            56.6             5.0            83.6            34.4             2.4          21,544
55-in sheet pile vibratory installation.................            16.6             1.5            24.5            10.1             0.7           6,310
36-in impact installation (temporary)...................         2,734.9            97.3         3,257.7         1,463.6           106.6           1,359
42-in impact installation...............................         3,844.5           136.7         4,579.4         2,057.4           149.8           1,359
55-in sheet pile impact installation....................         1,939.4            69.0         2,310.1         1,037.9            75.6           1,000
42-in DTH installation..................................         4,046.9           143.9         4,820.5         2,165.7           157.7          39,811
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Harassment zones updated from the proposed IHA.

Marine Mammal Occurrence

    In this section NMFS provides information about the occurrence of 
marine mammals, including density or other relevant information which 
will inform the take calculations.
    When available, peer-reviewed scientific publications were used to 
estimate marine mammal abundance in the project area. Data from 
monitoring reports from previous projects in Lutak and Skagway were 
used. However, scientific surveys and resulting data, such as 
population estimates, densities, and other quantitative information, 
are lacking for some marine mammal populations and most areas of 
southeast Alaska, including Lutak Inlet. Therefore, Haines Borough 
additionally gathered qualitative information from discussions with 
knowledgeable local people in the Haines area. Assumptions regarding 
the size of expected groups of different species, and the frequency of 
occurrence of those groups, were provided by Haines Borough on the 
basis of the aforementioned information. NMFS has reviewed the 
available information and concurs that these choices are reasonable.
    Here we describe how the information provided is synthesized to 
produce a quantitative estimate of the take that is reasonably likely 
to occur and is authorized. Since reliable densities are not available, 
the take numbers are based on the assumed maximum number of animals in 
a group at a given time and the occurrence of those groups per day 
multiplied by the duration of each activity. Tables for each species 
are presented to show the calculation of take during the project. The 
take calculation for this project is:

Incidental take estimate = number of individuals in a group x groups 
per day x days of pile-related activity

Humpback Whale

    Humpback whale presence in Lutak is irregular year-round. From mid-
May through September whales are assumed to occur in groups of two and 
from October to April in groups of one. It is expected that in early 
summer (mid-May through July) one group every 2 days may occur and at 
all other times of the year one group every 10 days will occur in the 
project area (Solstice AK, 2023; Happywhale, 2023). Therefore, using 
the equation given above, the total number of Level B harassment takes 
for humpback whales will be 26. Given that 2 percent of the humpback 
whales in southeast Alaska are expected to be members of the Mexico 
stock (Wade et al., 2016), 1 take is assumed to be from the Mexico 
stock and 25 takes from the Hawaii stock.
    The largest Level A harassment zone for humpback whales extends 
4,050-m from the noise source (table 6). All construction work will be 
shut down prior to a humpback whale entering the Level A harassment 
zone specific to the in-water activity underway at the time. In 
consideration of the infrequent occurrence of humpback whales in the 
project area and shutdown requirements, no take by Level A harassment 
is anticipated or authorized for humpback whales.

Killer Whale

    Killer whales occur in the Lutak Inlet year round with higher 
occurrences in the spring. Group sizes of 15 animals are expected with 
1 group every 20 days from mid-March through May and 1 group every 30 
days for the remainder of the year (Hart Crowser, Inc. and KPFF 
Consulting Engineers 2016). There are three stocks of killer whales 
that may be present in the project area, with the following proportions 
of overall killer whale occurrence expected: Alaska Residents, 75 
percent; West Coast Transients, 13 percent; and Northern Residents, 12 
percent (section 6 of the IHA application). The applicant estimated 
these occurrence proportions by determining the total number of animals 
in all three stocks and dividing that number by the number of animals 
in a given stock. Therefore, with 130 expected total takes by Level B 
harassment, 103 takes are expected to be from the Alaska Resident 
stock, 19 takes are expected from the West Coast Transient stock, and 
16 takes are expected from the Northern Resident stock.
    The largest Level A harassment zone for killer whales extends 150-m 
from the noise source (table 6). Killer whales are generally 
conspicuous and protected species observers (PSOs) are expected to 
detect killer whales and implement a shutdown before the animals enter 
the Level A harassment zone. Therefore, takes by Level A harassment are 
not anticipated or authorized.

Harbor Porpoise

    Harbor porpoise are present year round in the Lynn Canal and are 
expected to be present in groups of two every 30 days at the project 
site. Haines Borough requested a total of 29 takes of harbor porpoise 
for the duration of the project. Of the 29 takes it is expected that 13 
of those takes could be by Level A harassment, over 153 days of impact 
installation of 36-in, 42-in, and 55-in sheet piles and DTH activities. 
For construction activities that are of short duration and the take 
estimate was below the expected group size, the expected group size 
(e.g., two animals) was used as a proxy for take calculations for those 
activities. The remaining 16 takes are expected to be by Level B 
harassment.
    Harbor porpoises are known to be an inconspicuous species and are 
challenging for PSOs to sight, making any approach to a specific area 
potentially difficult to detect. The largest Level A harassment zone 
results from impact driving of 42-in piles, and extends 4,820.5-m from 
the source for high frequency cetaceans (table 6). The IHA requires a 
distance of 200-m as a shutdown zone, given the difficulty of observing 
harbor porpoise at greater

[[Page 12313]]

distances (see Mitigation section). Therefore, some take by Level A 
harassment is expected.

Dall's Porpoise

    Groups of 4 Dall's porpoise are expected to occur once every 30 
days during the project (Dahlheim et al., 2009), resulting in an 
estimate of 31 takes by Level B harassment. Although no Dall's porpoise 
were observed during recent monitoring of other projects in the area, 
tour boat operators occasionally observe Dall's porpoise in Taiya Inlet 
(SolsticeAK, 2023). Therefore, the applicant has requested 
authorization of take as described above. NMFS concurs with this 
request and authorizes the take.
    The largest Level A harassment zone for Dall's porpoise extends 
4,820.5-m from the source during DTH installation of 42-in piles (table 
6). Although Haines Borough will implement a significantly smaller 
shutdown zone (i.e., 200-m), given the low likelihood of occurrence of 
Dall's porpoises in the area take by Level A harassment is not 
anticipated and is not authorized.

Steller Sea Lion

    Steller sea lions are frequently observed in the project area. 
Group sizes vary during seasonal fish runs in the area. Groups of 40 
animals per day are expected from mid-March through May when animals 
frequent the project site, including the Taiya point haulout. At other 
times of the year groups of two animals per day are expected in the 
project area.
    During the impact installation of 36-in and 42-in piles and the DTH 
installation of 42-in piles, groups of 2 sea lions per day are expected 
to occur within the respective Level A harassment zones over 146 days 
associated with these activities. On this basis, NMFS authorizes 292 
takes of Steller sea lions by Level A harassment. Given that 1.4 
percent of Steller sea lions are members of the ESA listed western DPS 
in the project area, 4 of the 292 takes by Level A harassment will 
likely be western DPS individuals. The largest Level A harassment zone 
for Steller sea lions is 150-m (table 6) but it may be difficult for 
PSOs to view Steller sea lions at the outer edges of the zone and 
therefore some take by Level A harassment is expected.
    Larger harassment zones associated with Level B harassment will 
encompass the Taiya point haulout. It is expected that groups of 40 
Steller sea lions per day over 75 days of vibratory installation of all 
pile types, impact installation of 36-in and 42-in piles, and DTH 
installation of 42-in piles which will equate to 3,000 takes by Level B 
harassment. At other times of the year when the Taiya point haulout is 
not used, group size will be two sea lions per day. During this period 
the applicant will complete work over 151 days for vibratory 
installation of all pile types, impact installation of 36-in and 42-in 
piles, and DTH installation of 42-in piles which will equate to 302 
takes by Level B harassment.

Harbor Seal

    Harbor seals are common in the project area year round. The 
applicant and NMFS expect groups of 100 animals from March through May 
when animals are more frequent feeding at the mouth of the Chilkoot 
River. At other times of the year, groups of five animals are expected 
in the project area (SolsticeAK 2023).
    During impact installation of 36-in, 42-in, and 55-in sheet piles 
and DTH installation of 42-in piles it is expected that one group of 
five harbor seals every 10 days will occur. Over 153 days of activity, 
79 total takes by Level A harassment may occur. For construction 
activities that are of short duration and the take estimate was below 
the expected group size, the expected group size (e.g., five animals) 
was used as a proxy for take calculations for those activities. The 
largest Level A harassment zone results from impact driving of 42-in 
piles extends 2,057 m from the source for phocids (table 6). The IHA 
requires a 200-m shutdown zone, given the difficulty of observing 
harbor seals at greater distances (see Mitigation section). Therefore, 
take by Level A harassment is expected.
    Similar to Steller sea lions the larger Level B harassment zones 
will encompass the mouth of the Chilkoot River where larger 
aggregations of harbor seals are known to occur. It is expected that 
groups of harbor seals of 100 every 10 days over 75 days of vibratory 
installation of all pile types, impact installation of all pile types, 
and DTH installation of 42-in piles, which will equate to 750 takes by 
Level B harassment. During other times of the year the applicant 
expects groups of five animals every 10 days over a 151 day period for 
vibratory installation of all pile types, impact installation of 36-in 
and 42-in piles, and DTH installation of 42-in piles. This will result 
in 827 takes by Level B harassment.

                                     Table 7--Estimated Take by Level A and Level B Harassment, by Species and Stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Stock                                                         Take as a
                Common name                             Stock              abundance \a\      Level A         Level B       Total take      percentage
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback Whale............................  Mexico......................         Unknown               0               1               1             N/A
                                            Hawaii......................          11,278               0              25              25             0.2
Killer Whale..............................  Alaska Resident.............           1,920               0             103             103             5.4
                                            West Coast Transients.......             349               0              19              19             5.4
                                            Eastern North Pacific                    302               0              16              16             5.3
                                             Northern Residents.
Harbor Porpoise...........................  Northern Southeast Alaska...           1,619              13              16              29             1.8
Dall's Porpoise...........................  Alaska......................             UKN               0              31              31             N/A
Steller sea lion..........................  Western DPS.................          52,932               4              33              37            <0.1
                                            Eastern DPS.................          43,201             288           2,319           2,607             6.0
Harbor Seal...............................  Lynn Canal/Stephens Passage.          13,388              79             827             906             6.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Stock or DPS size is best estimate of population size (Nbest) according to NMFS 2022 Final Stock Assessment Reports.

Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance. NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological)

[[Page 12314]]

of equipment, methods, and manner of conducting the activity or other 
means of effecting the least practicable adverse impact upon the 
affected species or stocks, and their habitat (50 CFR 216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, NMFS 
considers two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned); and
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, and impact on 
operations.
    The following measures will apply to Haines Borough's mitigation 
requirements:
    Implementation of Shutdown Zones--For all pile driving/removal 
activities, Haines Borough will implement shutdowns within designated 
zones. The purpose of a shutdown zone is generally to define an area 
within which shutdown of activity will occur upon sighting of a marine 
mammal (or in anticipation of an animal entering the defined area). 
Implementation of shutdowns will be used to avoid or minimize 
incidental Level A harassment takes from vibratory, impact, and DTH 
pile removal and installation (table 8). For all pile driving/removal 
activities, a minimum 10-m shutdown zone must be established. NMFS has 
recommended shutdown zones of 200-m for high-frequency cetaceans and 
phocids, despite significantly larger estimated Level A harassment 
zones, in order to prescribe implementation of a zone that may be 
reasonably observed under typical conditions for these cryptic species. 
It is reasonable to expect that these species will be difficult to 
detect from distances further than 200-m by PSOs (table 8). All other 
shutdown zones for pile driving and removal activities are based on the 
Level A harassment zones and therefore vary by pile size and marine 
mammal hearing group (table 6). The placement of PSOs during all pile 
driving activities (described in detail in the Monitoring and Reporting 
section) will ensure the full extent of shutdown zones are visible to 
PSOs.

                                              Table 8--Shutdown Zones During Pile Installation and Removal
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                Shutdown zones (m)
                                                        Minutes or strikes   Piles per  ----------------------------------------------------------------
            Activity                   Pile size             per pile           day           LF           MF           HF
                                                                                          cetaceans    cetaceans    cetaceans     Phocids      Otariids
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory Removal...............  16-in..............  45 min.............            4           15           10           30           10           10
                                                                                        ----------------------------------------------------------------
                                  24-in..............  45 min.............            1                                 10
                                                                                        ----------------------------------------------------------------
                                  36-in (temporary)..  15 min.............            4           15           10           30           10           10
Vibratory Installation..........  36-in (temporary)..  15 min.............            4           15           10           30           10           10
                                  42-in..............  45 min.............            4           60           10           85           35           10
                                  55-in sheet pile...  30 min.............            6           20           10           25           10           10
Impact Installation.............  36-in (temporary)..  900 strikes........            4        2,735          110          200          200          110
                                  42-in..............  1,500 strikes......            4        3,845          150                                    150
                                  55-in sheet pile...  900 strikes........            6        1,940           70                                     80
DTH drilling....................  42-in..............  300 min/324,000                2        4,050          145                                    160
                                                        strikes.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Establishment of Monitoring Zones--Haines Borough has identified 
monitoring zones correlated with the larger of the Level B harassment 
or Level A harassment zones. Monitoring zones provide utility for 
observing by establishing monitoring protocols for areas adjacent to 
the shutdown zones. In some cases the calculated monitoring zones are 
smaller than the Level A shutdown zones as presented in table 8. This 
is due to the project area being bounded by land to 7,000-m on the 
western most shore of the inlet and 5,820-m on the eastern shore. 
Monitoring zones enable observers to be aware of and communicate the 
presence of marine mammals in the project area outside the shutdown 
zone and thus prepare for a potential cessation of activity should the 
animal enter the shutdown zone. PSOs will monitor the entire visible 
area to maintain the best sense of where animals are moving relative to 
the zone boundaries defined in tables 8 and 9. Placement of PSOs on the 
shorelines around Lutak Inlet allow PSOs to observe marine mammals 
within and near the inlet. The applicant may also voluntarily place a 
PSO on a skiff in Taiya Inlet if safe conditions allow for such 
activity.

                 Table 9--Marine Mammal Monitoring Zone
------------------------------------------------------------------------
                                                            Monitoring
                        Activity                             zone (m)
------------------------------------------------------------------------
Vibratory removal of 16-in and 24-in piles..............           5,425
Vibratory installation and removal of 36-in temporary              7,000
 piles..................................................
Vibratory installation of 42-in piles...................           7,000
Vibratory installation of 55-in sheet piles.............           6,310
Impact installation of 36-in temporary piles............         * 1,360
Impact installation of 42-in piles......................         * 1,360
Impact installation of 55-in sheet piles................           1,000
DTH installation of 42-in piles.........................           7,000
------------------------------------------------------------------------
* Where Level A shutdown zones are larger than the Level B harassment
  zones.

    Soft Start--The use of soft-start procedures are believed to 
provide additional protection to marine mammals by providing warning 
and/or giving marine mammals a chance to leave the area prior to the 
hammer operating at full capacity. For impact pile driving, contractors 
will be required to provide an initial set of strikes from the hammer 
at reduced energy, with each strike followed by a 30-second

[[Page 12315]]

waiting period. This procedure will be conducted a total of three times 
before impact pile driving begins. Soft start will be implemented at 
the start of each day's impact pile driving and at any time following 
cessation of impact pile driving for a period of 30-minutes or longer. 
Soft start is not required during vibratory pile driving and removal 
activities.
    Pre-Activity Monitoring--Prior to the start of daily in-water 
construction activity, or whenever a break in pile driving/removal of 
30-minutes or longer occurs, PSOs will observe the shutdown and 
monitoring zones for a period of 30-minutes. The shutdown zone will be 
considered cleared when a marine mammal has not been observed within 
the zone for that 30-minute period. If a marine mammal is observed 
within the shutdown zone, a soft-start cannot proceed until the animal 
has left the zone or has not been observed for 15-minutes. If the 
monitoring zone has been observed for 30-minutes and marine mammals are 
not present within the zone, soft-start procedures can commence and 
work can continue even if visibility becomes impaired within the 
monitoring zone. When a marine mammal permitted for take by Level B 
harassment is present in the Level B harassment zone, activities may 
begin. No work may begin unless the entire shutdown zone is visible to 
the PSOs. If work ceases for more than 30-minutes, the pre-activity 
monitoring of both the monitoring zone and shutdown zone will commence.
    Based on our evaluation of the applicant's measures, NMFS has 
determined that the mitigation measures provide the means of effecting 
the least practicable impact on the affected species or stocks and 
their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present while 
conducting the activities. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the activity; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.

Visual Monitoring

    Monitoring shall be conducted by NMFS-approved observers in 
accordance with the monitoring plan (appendix C of the IHA application) 
and section 5 of the IHA. Trained observers shall be placed from the 
best vantage point(s) practicable to monitor for marine mammals and 
implement shutdown or delay procedures when applicable through 
communication with the equipment operator. Observer training must be 
provided prior to project start, and shall include instruction on 
species identification (sufficient to distinguish the species in the 
project area), description and categorization of observed behaviors and 
interpretation of behaviors that may be construed as being reactions to 
the specified activity, proper completion of data forms, and other 
basic components of biological monitoring, including tracking of 
observed animals or groups of animals such that repeat sound exposures 
may be attributed to individuals (to the extent possible).
    Monitoring will be conducted 30-minutes before, during, and 30-
minutes after pile driving/removal activities. In addition, observers 
shall record all incidents of marine mammal occurrence, regardless of 
distance from activity, and shall document any behavioral reactions in 
concert with distance from piles being driven or removed. Pile driving/
removal activities include the time to install or remove a single pile 
or series of piles, as long as the time elapsed between uses of the 
pile driving equipment is no more than 30-minutes.
    A minimum of one PSO will be on duty during all barge movements and 
other in-water construction activities and a minimum of three PSOs 
during all pile driving activities. Locations from which PSOs will be 
able to monitor for marine mammals are readily available from publicly 
accessible shore side areas at the project site, Lutak Road at a beach 
across from Takshanuk Mountain trail, and along the shoreline just 
south of Tanani Point along Lutak Road. PSOs will monitor for marine 
mammals entering the harassment zones.
    PSOs will scan the waters using binoculars and will use a handheld 
range-finder device to verify the distance to each sighting from the 
project site. All PSOs will be trained in marine mammal identification 
and behaviors and are required to have no other project-related tasks 
while conducting monitoring. In addition, monitoring will be conducted 
by qualified observers, who will be placed at the best vantage point(s) 
practicable to monitor for marine mammals and implement shutdown/delay 
procedures when applicable by calling for the shutdown to the hammer 
operator via a radio. Haines Borough will adhere to the following 
observer qualifications:
    (i) PSOs must be independent of the activity contractor (for 
example, employed by a subcontractor) and have no other assigned tasks 
during monitoring periods;
    (ii) One PSO will be designated as the lead PSO or monitoring 
coordinator and that observer must have prior experience working as an 
observer;
    (iii) Other observers may substitute education (degree in 
biological science or related field) or training for experience; and
    (iv) Haines Borough must submit observer Curriculum Vitaes for 
approval by NMFS.
    Additional recommended observer qualifications include:

[[Page 12316]]

     Ability to conduct field observations and collect data 
according to assigned protocols;
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates and times when in-water construction 
activities were suspended to avoid potential incidental injury from 
construction sound of marine mammals observed within a defined shutdown 
zone; and marine mammal behavior; and
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.

Reporting

    A draft marine mammal monitoring report will be submitted to NMFS 
within 90 days after the completion of pile driving and removal 
activities. It will include an overall description of work completed, a 
narrative regarding marine mammal sightings, and associated PSO data 
sheets. Specifically, the report must include:
     Dates and times (begin and end) of all marine mammal 
monitoring;
     Construction activities occurring during each daily 
observation period, including the number and type of piles driven or 
removed and by what method (i.e., impact driving) and for each pile or 
total number of strikes for each pile (impact driving);
     PSO locations during marine mammal monitoring;
     Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including Beaufort sea state and any other relevant 
weather conditions including cloud cover, fog, sun glare, and overall 
visibility to the horizon, and estimated observable distance;
     Upon observation of a marine mammal, the following 
information: Name of PSO who sighted the animal(s) and PSO location and 
activity at time of sighting; time of sighting; identification of the 
animal(s) (e.g., genus/species, lowest possible taxonomic level, or 
unidentified), PSO confidence in identification, and the composition of 
the group if there is a mix of species; distance and bearing of each 
marine mammal observed relative to the pile being driven for each 
sighting (if pile driving was occurring at time of sighting); estimated 
number of animals (min/max/best estimate); estimated number of animals 
by cohort (adults, juveniles, neonates, group composition, etc.); 
animal's closest point of approach and estimated time spent within the 
harassment zone; and description of any marine mammal behavioral 
observations (e.g., observed behaviors such as feeding or traveling), 
including an assessment of behavioral responses thought to have 
resulted from the activity (e.g., no response or changes in behavioral 
state such as ceasing feeding, changing direction, flushing, or 
breaching);
     Number of marine mammals detected within the harassment 
zones, by species; and
     Detailed information about any implementation of any 
mitigation triggered (e.g., shutdowns and delays), a description of 
specific actions that ensued, and resulting changes in behavior of the 
animal(s), if any.
    If no comments are received from NMFS within 30 days, the draft 
final report will constitute the final report. If comments are 
received, a final report addressing NMFS comments must be submitted 
within 30 days after receipt of comments.

Reporting Injured or Dead Marine Mammals

    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHA 
(if issued), such as an injury, serious injury or mortality, Haines 
Borough will immediately cease the specified activities and report the 
incident to the Office of Protected Resources, NMFS, and the Alaska 
Regional Stranding Coordinator. The report will include the following 
information:
     Description of the incident;
     Environmental conditions (e.g., Beaufort sea state, 
visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities will not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with Haines 
Borough to determine what is necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. Haines Borough will 
not be able to resume their activities until notified by NMFS.
    In the event that Haines Borough discovers an injured or dead 
marine mammal, and the lead PSO determines that the cause of the injury 
or death is unknown and the death is relatively recent (e.g., in less 
than a moderate state of decomposition as described in the next 
paragraph), Haines Borough will immediately report the incident to the 
Office of Protected Resources, NMFS, and the NMFS Alaska Stranding 
Hotline and/or by email to the Alaska Regional Stranding Coordinator. 
The report will include the same information identified in the 
paragraph above. Activities will be able to continue while NMFS reviews 
the circumstances of the incident. NMFS will work with Haines Borough 
to determine whether modifications in the activities are appropriate.
    In the event that Haines Borough discovers an injured or dead 
marine mammal and the lead PSO determines that the injury or death is 
not associated with or related to the activities authorized in the IHA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), Haines Borough will report the 
incident to the Office of Protected Resources, NMFS, and the NMFS 
Alaska Stranding Hotline and/or by email to the Alaska Regional 
Stranding Coordinator, within 24 hours of the discovery. Haines Borough 
will provide photographs, video footage (if available), or other 
documentation of the stranded animal sighting to NMFS and the Marine 
Mammal Stranding Network.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any impacts or responses (e.g., intensity, duration), 
the context of any impacts or responses (e.g., critical reproductive 
time or location, foraging impacts affecting energetics), as well as

[[Page 12317]]

effects on habitat, and the likely effectiveness of the mitigation. We 
also assess the number, intensity, and context of estimated takes by 
evaluating this information relative to population status. Consistent 
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338, 
September 29, 1989), the impacts from other past and ongoing 
anthropogenic activities are incorporated into this analysis via their 
impacts on the baseline (e.g., as reflected in the regulatory status of 
the species, population size and growth rate where known, ongoing 
sources of human-caused mortality, or ambient noise levels).
    To avoid repetition, the majority of our analysis applies to all 
the species listed in table 7, given that many of the anticipated 
effects of this project on different marine mammal stocks are expected 
to be relatively similar in nature. Where there are meaningful 
differences between species or stocks, or groups of species, in 
anticipated individual responses to activities, impact of expected take 
on the population due to differences in population status, or impacts 
on habitat, they are described independently in the analysis below.
    Pile driving and removal activities associated with the project as 
outlined previously, have the potential to disturb or displace marine 
mammals. Specifically, the specified activities may result in take, in 
the form of Level A harassment and Level B harassment from underwater 
sounds generated from pile driving and removal. Potential takes could 
occur if individuals of these species are present in zones ensonified 
above the thresholds for Level A or Level B harassment identified above 
when these activities are underway.
    Take by Level A and Level B harassment will be due to potential 
behavioral disturbance, TTS, and PTS. No serious injury or mortality is 
anticipated or authorized given the nature of the activity and measures 
designed to minimize the possibility of injury to marine mammals. Take 
by Level A harassment is only anticipated for harbor porpoise, Steller 
sea lions, and harbor seal. Take by Level A harassment of the ESA-
listed western DPS of Steller sea lions is expected to be a very small 
portion of the overall DPS (<0.1 percent). Impacts to affected 
individuals of the western DPS are not expected to result in 
population-level impacts. The potential for harassment is minimized 
through the construction method (i.e., use of direct pull removal or 
vibratory methods to the extent practical) and the implementation of 
the planned mitigation measures (see Mitigation section).
    In addition to the expected effects resulting from Level B 
harassment, we anticipate that harbor porpoises, Steller sea lions, and 
harbor seals may sustain some limited Level A harassment in the form of 
auditory injury. However, animals in these locations that experience 
PTS will likely only receive slight PTS, i.e., minor degradation of 
hearing capabilities within regions of hearing that align most 
completely with the energy produced by pile driving, i.e., the low-
frequency region below 2 kHz, not severe hearing impairment or 
impairment in the regions of greatest hearing sensitivity. If hearing 
impairment occurs, it is most likely that the affected animal will lose 
a few decibels in its hearing sensitivity, which in most cases is not 
likely to meaningfully affect its ability to forage and communicate 
with conspecifics. As described above, we expect that marine mammals 
will be likely to move away from a sound source that represents an 
aversive stimulus, especially at levels that will be expected to result 
in PTS, given sufficient notice through use of soft start.
    The project also is not expected to have significant adverse 
effects on affected marine mammals' habitat. The project activities 
will not modify existing marine mammal habitat for a significant amount 
of time. The activities may cause some fish or invertebrates to leave 
the area of disturbance, thus temporarily impacting marine mammals' 
foraging opportunities in a limited portion of the foraging range; but, 
because of the short duration of the activities, the relatively small 
area of the habitat that may be affected, and the availability of 
nearby habitat of similar or higher value, the impacts to marine mammal 
habitat are not expected to cause significant or long-term negative 
consequences. The haulout location at Taiya Point will be affected by 
the project for foraging Steller sea lions and occasionally harbor 
seals. Currently, the Taiya Point haulout location is not known to be a 
pupping location for Steller sea lions or harbor seals but are 
important areas throughout the year. Steller sea lions and to a lesser 
extent harbor seals at this haulout will likely result in repeated 
exposure of the same animals. Repeated exposures of individuals to this 
pile driving activity could cause Level A and Level B harassment but 
are unlikely to considerably disrupt foraging behavior or result in 
significant decrease in fitness, reproduction, or survival for the 
affected individuals.
    In summary and as described above, the following factors support 
our determination that the impacts resulting from this activity are not 
expected to adversely affect any of the species or stocks through 
effects on annual rates of recruitment or survival:
     No serious injury or mortality is anticipated or 
authorized;
     Any Level A harassment exposures (i.e., to harbor seals, 
harbor porpoise, and Steller sea lions, only) are anticipated to result 
in slight PTS (i.e., of a few decibels), within the lower frequencies 
associated with pile driving;
     The anticipated incidents of Level B harassment would 
consist of, at worst, temporary modifications in behavior that will not 
result in fitness impacts to individuals;
     The ensonifed areas from the project are very small 
relative to the overall habitat ranges of all species and stocks;
     The lack of anticipated significant or long-term negative 
effects to marine mammal habitat or any other areas of known biological 
importance; with the exception of the haulout location at Taiya Point; 
and
     The mitigation measures are expected to reduce the effects 
of the specified activity to the level of least practicable adverse 
impact.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the 
activity will have a negligible impact on all affected marine mammal 
species or stocks.

Small Numbers

    As noted previously, only take of small numbers of marine mammals 
may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one-third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.

[[Page 12318]]

    Table 7 demonstrates the number of animals that could be exposed to 
the received noise levels that could cause harassment for the work in 
Lutak Inlet. Our analysis shows that less than 6.8 percent of each 
affected stock could be taken by harassment. The numbers of animals to 
be taken for these stocks will be considered small relative to the 
relevant stock's abundances, even if each estimated taking occurred to 
a new individual--an extremely unlikely scenario.
    Based on the analysis contained herein of the activity (including 
the mitigation and monitoring measures) and the anticipated take of 
marine mammals, NMFS finds that small numbers of marine mammals will be 
taken relative to the population size of the affected species or 
stocks.

Unmitigable Adverse Impact Analysis and Determination

    In order to issue an IHA, NMFS must find that the specified 
activity will not have an ``unmitigable adverse impact'' on the 
subsistence uses of the affected marine mammal species or stocks by 
Alaskan Natives. NMFS has defined ``unmitigable adverse impact'' in 50 
CFR 216.103 as an impact resulting from the specified activity: (1) 
That is likely to reduce the availability of the species to a level 
insufficient for a harvest to meet subsistence needs by (i) causing the 
marine mammals to abandon or avoid hunting areas, (ii) directly 
displacing subsistence users; or (iii) placing physical barriers 
between the marine mammals and the subsistence hunters; and (2) that 
cannot be sufficiently mitigated by other measures to increase the 
availability of marine mammals to allow subsistence needs to be met.
    In the Haines area sea lions and harbor seals are available for 
subsistence harvest under the MMPA. Limited subsistence harvests of 
marine mammals near the community of Haines has occurred in the past, 
with the most recent recorded/documented harvests of marine mammals in 
Haines in 2012 and in nearby Klukwan in 2014. The activity will take 
place in Lutak Inlet, and no activities overlap with current 
subsistence hunting areas; therefore, there are no relevant subsistence 
uses of marine mammals adversely impacted by this action. The project 
is not likely to adversely impact the availability of any marine mammal 
species or stocks that are commonly used for subsistence purposes or to 
impact subsistence harvest of marine mammals in the region.
    Based on the description of the specified activity, the measures 
described to minimize adverse effects on the availability of marine 
mammals for subsistence purposes, and the mitigation and monitoring 
measures, NMFS has determined that there will not be an unmitigable 
adverse impact on subsistence uses from Haines Borough's activities.

Endangered Species Act

    There are two marine mammal species (Mexico DPS humpback whale and 
western DPS Steller sea lion) that NMFS is authorizing take in the 
project area that are listed as threatened and endangered under the 
ESA. The NMFS Alaska Regional Office issued a Biological Opinion under 
section 7 of the ESA, on the issuance of an IHA to Haines Borough under 
section 101(a)(5)(D) of the MMPA by the NMFS Permits and Conservation 
Division. The Biological Opinion concluded that the action is not 
likely to jeopardize the continued existence of western DPS Steller sea 
lions, and is not likely to destroy or adversely modify Mexico DPS 
humpback whale and western DPS Steller sea lion critical habitats.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must evaluate our proposed action (i.e., the issuance of an IHA) 
and alternatives with respect to potential impacts on the human 
environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or 
mortality) of the Companion Manual for NAO 216-6A, which do not 
individually or cumulatively have the potential for significant impacts 
on the quality of the human environment and for which we have not 
identified any extraordinary circumstances that would preclude this 
categorical exclusion. Accordingly, NMFS has determined that the 
issuance of this IHA qualifies to be categorically excluded from 
further NEPA review.

Authorization

    NMFS has issued an IHA to Haines Borough for the potential 
harassment of small numbers of six marine mammal species incidental to 
the Lutak Dock replacement project in Haines, AK, that includes the 
previously explained mitigation, monitoring and reporting requirements.

    Dated: February 12, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-03251 Filed 2-15-24; 8:45 am]
BILLING CODE 3510-22-P