[Federal Register Volume 89, Number 49 (Tuesday, March 12, 2024)]
[Notices]
[Pages 17820-17832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-05163]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD635]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Trident Seafoods Bunkhouse Dock 
Replacement Project, Kodiak, Alaska

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
Trident Seafoods Corporation (Trident) to incidentally harass marine 
mammals during construction activities associated with the Bunkhouse 
Dock replacement project in Kodiak, Alaska.

DATES: This authorization is effective from March 1, 2024, through 
February 29, 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-

[[Page 17821]]

protection/incidental-take-authorizations-construction-activities. In 
case of problems accessing these documents, please call the contact 
listed below.

FOR FURTHER INFORMATION CONTACT: Rachel Wachtendonk, 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 June 15, 2023, NMFS received a request from Trident for an IHA 
to take marine mammals incidental to vibratory and impact pile driving 
to replace the Bunkhouse Dock at their facility in Kodiak, Alaska. 
Following NMFS' review of the application, Trident submitted a revised 
version on September 1, 2023. The application was deemed adequate and 
complete on October 26, 2023. Trident's request is for take of six 
species of marine mammals by Level B harassment only. Neither Trident 
nor NMFS expect serious injury or mortality to result from this 
activity and, therefore, an IHA is appropriate.
    There are no changes from the proposed IHA to the final IHA.

Description of Specified Activity

Overview

    Trident plans to remove and replace the Bunkhouse Dock on the shore 
of Near Island Channel in Kodiak, Alaska. Starting in March 2024 and 
lasting 8 weeks, Trident will use down-the-hole (DTH) drilling and 
vibratory pile driving to remove existing piles and install new ones.
    The Bunkhouse Dock replacement will include the removal of 100 14-
inch (in), or 36-centimeter (cm) diameter timber piles, 75 14-in (36-
cm) steel H-piles, and 60 16-in (41-cm) diameter steel pipe piles. Once 
the existing piles are removed, 26 16-in (41-cm) diameter steel pipe 
piles and 52 24-in (61-cm) diameter steel pipe piles would be installed 
to support the new pier. The installation and removal of 52 temporary 
24-in (61-cm) diameter steel pipe piles would be completed to support 
permanent pile installation. All piles will be removed with the 
deadpull method with the vibratory hammer being used if the deadpull 
method is unsuccessful. Temporary and permanent piles will be initially 
installed with the vibratory hammer followed by the DTH drill to embed 
them to their final depth.
    A further detailed description of the planned construction project 
is provided in the Federal Register notice for the proposed IHA (88 FR 
88874, December 26, 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 specified activity. Mitigation, monitoring, and 
reporting measures are described in detail later in this document 
(please see Mitigation and Monitoring and Reporting sections).

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Trident was published 
in the Federal Register on December 26, 2023 (88 FR 88874). That notice 
described, in detail, Trident'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.

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, PBR and 
annual serious injury and mortality from 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), including the draft 2023 SARs. 
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.

[[Page 17822]]



                   Table 1--Marine Mammal Species \1\ Likely To Occur Near the Project Area That May Be Taken by Trident's Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         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 *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenopteridae (rorquals):
    Humpback Whale..................  Megaptera novaeangliae.  Hawai[revaps]i \4\.....  -, -, N             11,278 (0.56, 7,265,          127      27.09
                                                                                                             2020).
                                                               Mexico-North Pacific     T, D, Y             3,477 (0.101, 3,185,           43         22
                                                                \4\.                                         2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                  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 \5\.                         2019).
                                                               Eastern North Pacific    -, -, N             587 (N/A, 587, 2012)..        5.9        0.8
                                                                Gulf of Alaska,
                                                                Aleutian Islands and
                                                                Bering Sea Transient
                                                                \6\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocoenidae (porpoises):
    Dall's Porpoise.................  Phocoenoides dalli.....  Alaska \7\.............  -, -, N             UND (UND, UND, 2015)..        UND         37
    Harbor Porpoise.................  Phocoena phocoena......  Gulf of Alaska.........  -, -, Y             31,046 (0.21, N/A,            UND         72
                                                                                                             1998).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
 sea lions):
    Steller Sea Lion................  Eumetopias jubatus.....  Western \8\............  E, D, Y             49,837 (N/A, 49,837,          299        267
                                                                                                             2022).
Family Phocidae (earless seals):
    Harbor Seal.....................  Phoca vitulina.........  South Kodiak...........  -, -, N             26,448 (N/A, 22,351,          939        127
                                                                                                             2017).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies).
\2\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\3\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
* These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.
\4\ New SAR in 2022 following North Pacific humpback whale stock structure changes.
\5\ Abundance estimates are based upon data collected more than 8 years ago and, therefore, current estimates are considered unknown.
\6\ Nest is based upon counts of individuals identified from photo identification catalogs.
\7\ The best available abundance estimate is likely an underestimate for the entire stock because it is based upon a survey that covered only a small
  portion of the stock's range.
\8\ Nest is best estimate of counts, which have not been corrected for animals at sea during abundance surveys.

    As indicated above, all six species (with eight managed stocks) in 
table 1 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur. All species that could 
potentially occur in the project area are included in table 5 of the 
IHA application. While gray whales, North Pacific right whales, minke 
whales, fin whales, Cuvier's beaked whales, sperm whales, Pacific 
white-sided dolphins, and northern fur seals in the area, the temporal 
and/or spatial occurrence of these species is such that take is not 
expected to occur, and they are not discussed further beyond the 
explanation provided here. These species are all considered to be rare 
(no sightings in recent years) within the project area. Take of these 
species has not been requested nor authorized and these species are not 
considered further in this document.
    A detailed description of the species likely to be affected by 
Trident's construction 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 88874, December 26, 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 the 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

[[Page 17823]]

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-decibel (dB) threshold from the normalized composite 
audiograms, with the exception for lower limits for low-frequency 
cetaceans where the lower 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.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from Trident's pile driving 
activities have the potential to result in behavioral harassment of 
marine mammals in the vicinity of the project area. The notice of the 
proposed IHA (88 FR 88874, December 26, 2023) included a discussion of 
the effects of anthropogenic noise on marine mammals and the potential 
effects of underwater noise from Trident's pile driving 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 the proposed IHA (88 FR 
88874, December 26, 2023).

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through the 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 be by Level B harassment only, in the form 
of disruption of behavioral patterns for individual marine mammals 
resulting from exposure to pile driving activities. Based on the nature 
of the activity, Level A harassment is neither anticipated nor 
authorized.
    As described previously, no serious injury or mortality is 
anticipated or authorized for this activity. Here we describe how the 
information provided above is synthesized to produce a quantitative 
estimate of the take that is reasonably likely to occur and is 
authorized.
    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 authorized take numbers.

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, 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-

[[Page 17824]]

squared pressure received levels (RMS SPL) of 120 dB (referenced to 1 
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 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.
    Trident's planned activity includes the use of continuous 
(vibratory pile driving) sources, and therefore the RMS SPL threshold 
of 120 dB re 1 [mu]Pa is applicable. DTH drilling has both continuous 
and intermittent (impulsive) components as discussed in the Description 
of Sound Sources section above. 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; 
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). Trident's 
planned activity includes the use of 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 thresholds * (received level)
             Hearing group             -------------------------------------------------------------------------
                                                Impulsive                          Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans..........  Cell 1: L,0-pk,flat: 219   Cell 2: LE,,LF,24h: 199 dB.
                                         dB; LE,,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans..........  Cell 3: L,0-pk,flat: 230   Cell 4: LE,,MF,24h: 198 dB.
                                         dB; LE,,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.........  Cell 5: L,0-pk,flat: 202   Cell 6: LE,,HF,24h: 173 dB.
                                         dB; LE,,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)....  Cell 7: L,0-pk.flat: 218   Cell 8: LE,,PW,24h: 201 dB.
                                         dB; LE,p,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)...  Cell 9: L,0-pk,flat: 232   Cell 10: LE,,OW,24h: 219 dB.
                                         dB; LE,,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric 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 are recommended for consideration.
Note: Peak sound pressure level (L,0-pk) has a reference value of 1 [mu]Pa, and weighted cumulative sound
  exposure level (LE,) has a reference value of 1 [mu]Pa\2\s. In this table, thresholds are abbreviated to be
  more reflective of International Organization for Standardization standards (ISO, 2017). The subscript
  ``flat'' is being included to indicate peak sound pressure are flat weighted or unweighted within the
  generalized hearing range of marine mammals (i.e., 7 Hz to 160 kHz). 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
  weighted 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 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 planned project. 
Marine mammals are expected to be affected via sound generated by the 
primary components of the project (i.e., vibratory pile driving and 
removal, DTH drilling). The maximum (underwater) area ensonified above 
the thresholds for behavioral harassment referenced above is 125 km\2\ 
(48.26 mi\2\), that would be truncated by land masses that would 
obstruct underwater sound transmission and would extend into Near 
Island Channel and St. Paul Harbor (see figure 5 in Trident'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 in a reduction of 3 dB in sound level 
for each doubling of distance from the source (10xlog[range]). A 
practical

[[Page 17825]]

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 would 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 and DTH pile 
installation of steel pipe piles and vibratory removal of steel pipe 
piles, steel H-piles, and timber piles. 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
----------------------------------------------------------------------------------------------------------------
                                      Installation or    RMS SPL  (re 1      SEL  (re 1
            Pile type                     removal            [mu]Pa)       [mu]Pa\2\-sec)          Source
----------------------------------------------------------------------------------------------------------------
                                             Vibratory Pile Driving
----------------------------------------------------------------------------------------------------------------
14-in timber pile................  Removal.............             162                 NA  Caltrans, 2020.
14-in H-pile.....................  Removal.............             150                     Caltrans, 2020.
16-in steel pile.................  Installation........             161                     NAVFAC, 2015.
16-in steel pile.................  Removal.............                                     NAVFAC, 2015.
24-in steel pile.................  Installation and                                         NAVFAC, 2015.
                                    Removal.
----------------------------------------------------------------------------------------------------------------
                                                DTH Drilling \1\
----------------------------------------------------------------------------------------------------------------
16-in steel pile.................  Installation........             162                141  Heyvaert & Reyff,
                                                                                             2021; Guan & Miner,
                                                                                             2020.
24-in steel pile.................  Installation........                                154  Heyvaert & Reyff,
                                                                                             2021.
----------------------------------------------------------------------------------------------------------------
\1\ Sound source levels for DTH were adjusted by -5 dB to reflect the use of the bubble curtain.

    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 pile driving, 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 would be expected to 
incur PTS. Inputs used in the optional User Spreadsheet tool, and the 
resulting estimated isopleths, are reported below.

                                      Table 5--NMFS User Spreadsheet Inputs
----------------------------------------------------------------------------------------------------------------
                                                          Weighting
                                                            factor     Transmission      Number of     Activity
        Pile size and type         Spreadsheet tab used   adjustment       loss        piles per day   duration
                                                            (kHz)       coefficient                    (minutes)
----------------------------------------------------------------------------------------------------------------
14-in timber pile vibratory        A.1 Vibratory pile            2.5              15              25           2
 removal.                           driving.
14-in steel H-pile vibratory       A.1 Vibratory pile            2.5              15              20           2
 removal.                           driving.
16-in steel pipe pile vibratory    A.1 Vibratory pile            2.5              15              20           2
 removal.                           driving.
16-in steel pipe pile vibratory    A.1 Vibratory pile            2.5              15               5           2
 installation.                      driving.
24-in steel pipe pile vibratory    A.1 Vibratory pile            2.5              15               6           2
 installation (temporary).          driving.
24-in steel pipe pile vibratory    A.1 Vibratory pile            2.5              15               8           2
 removal (temporary).               driving.
24-in steel pipe pile vibratory    A.1 Vibratory pile            2.5              15               4           2
 installation.                      driving.
16-in steel pipe pile DTH          E.2 DTH pile driving            2              15               6          45
 installation.
24-in steel pipe pile DTH          E.2 DTH pile driving            2              15               6          30
 installation (temporary).
24-in steel pipe pile DTH          E.2 DTH pile driving            2              15               4          60
 installation.
----------------------------------------------------------------------------------------------------------------


                                              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      Otariids         Phocids        zone  (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
14-in timber pile vibratory removal.....................             7.1             0.6            10.4             4.3             0.3           6,310
14-in steel H-pile vibratory removal....................               1             0.1             1.4             0.6               0           1,000
16-in steel pipe pile vibratory removal.................             5.2             0.5             7.7             3.2             0.2           5,415

[[Page 17826]]

 
16-in steel pipe pile vibratory installation............             2.1             0.2             3.1             1.3             0.1  ..............
24-in steel pipe pile vibratory installation (temporary)             2.3             0.2             3.5             1.4             0.1  ..............
24-in steel pipe pile vibratory removal (temporary).....             2.8             0.3             4.2             1.7             0.1  ..............
24-in steel pipe pile vibratory installation............             1.8             0.2             2.6             1.1             0.1  ..............
16-in steel pipe pile DTH installation..................              47             1.7              56             1.8            25.2           6,310
24-in steel pipe pile DTH installation (temporary)......           264.1             9.4           314.5            10.3           141.3  ..............
24-in steel pipe pile DTH installation..................           319.9            11.4             381            12.5           171.2  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------

Marine Mammal Occurrence and Take Estimation

    In this section we provide 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 projects on the Kodiak Ferry Terminal were used 
as well as reports from other projects in Kodiak, Alaska.
    Here we describe how the information provided above is synthesized 
to produce a quantitative estimate of the take that is reasonably 
likely to occur and is authorized. Tables for each species are 
presented to show the calculation of take during the project. Both 
density and occurrence data was considered in incidental take 
estimations. Density data were used when there was no occurrence data 
available, or when occurrence and density data were similar. The take 
calculations for this project are:

Incidental take estimate = group size x days of pile driving activity,

Or

Incidental take estimate = (Activity Level B harassment area [km\2\] x 
estimated density [individuals/km\2\]) x days of pile driving activity

Humpback Whale

    Humpback whales are present in Kodiak year-round with peaks in the 
spring and fall. They are considered common in the project area, 
meaning there are multiple sightings every month, so they could occur 
daily in the project's action. In the project area humpback whales are 
expected to occur at a density of 0.093 individuals per square 
kilometer area (Halpin et al., 2009). Therefore, using the equation 
given above, the total number of Level B harassment takes for humpback 
whales would be 14. In the action area it is estimated that the 
majority of whales (89 percent) will be from the Hawai'i distinct 
population segment (DPS), 11 percent will be from the Mexico DPS, and 1 
percent will be from the endangered western North Pacific DPS (Wade, 
2021; Muto et al., 2022). Therefore 13 takes are assumed to be from the 
Hawai'i DPS and 1 take from the Mexico DPS.
    The largest Level A harassment zone for humpback whales extends 
319.9 m from the noise source (table 6). All construction work would 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 are present in Kodiak year-round and are considered 
common in the project area, meaning there are multiple sightings every 
month, so they could occur daily in the project's action. A single 
group of up to six killer whales are expected to occur in the project 
area daily (Halpin et al., 2009). Therefore, using the equation given 
above, the total number of Level B harassment takes for killer whales 
would be 330. In the action area it is estimated that the majority of 
killer whales (80 percent) will be from the Alaska resident stock and 
20 percent will be from the Gulf of Alaska/Aleutian Islands/Bering Sea 
transient stock (Muto et al., 2022). Therefore 264 takes are assumed to 
be from the Alaska resident stock and 66 takes from the Gulf of Alaska/
Aleutian Islands/Bering Sea transient stock.
    The largest Level A harassment zone for killer whales extends 11.4 
m from the noise source (table 6). All construction work would be shut 
down prior to a killer whale entering the Level A harassment zone 
specific to the in-water activity underway at the time. In 
consideration of the small size of the Level A harassment zone and 
shutdown requirements, no take by Level A harassment is anticipated or 
authorized for killer whale.

Harbor Porpoise

    Harbor porpoises are present in Kodiak year-round and are occur 
frequently in the project area, meaning there are multiple sightings 
every year, so they could occur monthly in the project's action. In the 
project area harbor porpoises are expected to occur at a density of 
0.4547 individuals per square kilometer area (Marine Geospatial Ecology 
Lab, 2021). Therefore, using the equation given above, the total number 
of Level B harassment takes for harbor porpoises would be 65.
    The largest Level A harassment zone for harbor porpoise extends 381 
m from the noise source (table 6). All construction work would be shut 
down prior to a harbor porpoise entering the Level A harassment zone 
specific to the in-water activity underway at the time. In 
consideration of the relatively low anticipated exposure in the project 
area and the anticipated effectiveness of the shutdown requirements, no 
take by Level A harassment is anticipated or authorized for harbor 
porpoise.

Dall's Porpoise

    Dall's porpoises are present in Kodiak year-round and are occur 
frequently in the project area, meaning there are multiple sightings 
every year, so they could occur monthly in the project's action. In the 
project area Dall's porpoises are expected to occur at a density of 
0.218 individuals per square kilometer (Marine Geospatial Ecology Lab, 
2021). Therefore, using the equation given above, the total number of 
Level B harassment takes for Dall's porpoise would be 31.
    The largest Level A harassment zone for Dall's porpoise extends 381 
m from the noise source (table 6). All construction work would be shut 
down prior to a Dall's porpoise entering the Level A harassment zone 
specific to the in-water activity underway at the time. In 
consideration of the relatively low anticipated exposure in the project 
area

[[Page 17827]]

and the anticipated effectiveness of the shutdown requirements, no take 
by Level A harassment is anticipated or authorized for Dall's porpoise.

Harbor Seal

    Harbor seals are present in Kodiak year-round and are considered 
common in the project area, meaning there are multiple sightings every 
month, so they could occur daily in the project's action. In the 
project area Dall's porpoises are expected to occur at a density of 
0.1689 individuals per square kilometer (Marine Geospatial Ecology Lab, 
2021). Therefore, using the equation given above, the total number of 
Level B harassment takes for harbor seals would be 24.
    The largest Level A harassment zone for harbor seals extends 171.2 
m from the noise source (table 6). All construction work would be shut 
down prior to a harbor seal entering the Level A harassment zone 
specific to the in-water activity underway at the time. In 
consideration of the relatively low anticipated exposure in the project 
area and the anticipated effectiveness of the shutdown requirements, no 
take by Level A harassment is anticipated or authorized for harbor 
seals.

Steller Sea Lion

    Steller sea lions are present in Kodiak year-round and are 
considered common in the project area, meaning there are multiple 
sightings every month, so they could occur daily in the project's 
action. During construction at the Kodiak Ferry Terminal (82 FR 10894, 
February 26, 2017) Steller sea lions were encountered daily during 
construction. Up to 40 Steller sea lions are expected to occur in the 
project area daily (Marine Geospatial Ecology Lab, 2021). Therefore, 
using the equation given above, the total number of Level B harassment 
takes for Steller sea lions would be 2,200.
    The largest Level A harassment zone for harbor seals extends 12.5 m 
from the noise source (table 6). All construction work would be shut 
down prior to a Steller sea lion entering the Level A harassment zone 
specific to the in-water activity underway at the time. In 
consideration of the small Level A harassment isopleth and shutdown 
requirements, no take by Level A harassment is anticipated or 
authorized for Steller sea lions.

                                     Table 7--Estimated Take by Level A and Level B Harassment, by Species and Stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                              Take as
                Common name                             Stock                  Stock          Level A         Level B       Total take    percentage  of
                                                                           abundance \a\    harassment      harassment                         stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback whale............................  Hawai[revaps]i..............          11,278               0              13              13             0.1
                                            Mexico-North Pacific........           3,477               0               1               1            0.03
Killer Whale..............................  Alaska Resident.............           1,920               0             264             264            13.8
                                            Gulf of Alaska/Aleutian                  587               0              66              66            11.2
                                             Islands/Bering Sea
                                             Transient.
Harbor porpoise...........................  Gulf of Alaska..............          31,946               0              65              65            0.08
Dall's porpoise...........................  Alaska......................          13,110               0              31              31            0.24
Steller sea lion..........................  Western U.S.................          49,837               0           2,200           2,200             4.4
Harbor seal...............................  South Kodiak Island.........          26,448               0              24              24            0.09
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Stock abundance is Nbest according to NMFS 2022 and draft 2023 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, and on 
the availability of the species or stock for taking for certain 
subsistence uses. NMFS regulations require applicants for incidental 
take authorizations to include information about the availability and 
feasibility (economic and technological) of equipment, methods, and 
manner of conducting the activity or other means of effecting the least 
practicable adverse impact upon the affected species or stocks, and 
their habitat (50 CFR 216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, 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, as 
well as subsistence uses. This considers the nature of the potential 
adverse impact being mitigated (likelihood, scope, range). It further 
considers the likelihood that the measure will be effective if 
implemented (probability of accomplishing the mitigating result if 
implemented as planned), the likelihood of effective implementation 
(probability implemented as planned), and;
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, and impact on 
operations.
    In addition to the measures described later in this section, 
Trident would employ the following standard mitigation measures:
     At the start of each day, the contractor(s) would hold a 
briefing with the Lead Protected Species Observer (PSO) to outline the 
activities planned for that day.
     If poor weather conditions restrict the PSO's ability to 
make observations within the Level A harassment zone of pile driving 
(e.g., if there is excessive wind or fog), pile installation and 
removal would be halted.
    The following measures would apply to Trident's mitigation 
requirements:

Shutdown and Monitoring Zones

    Trident must establish shutdown zones and Level B monitoring zones 
for all pile driving activities. The purpose of a shutdown zone is 
generally to define an area within which shutdown of the activity would 
occur upon sighting of a marine animal (or in anticipation of an animal 
entering the defined area). Shutdown zones are based on the largest 
Level A harassment zone for each pile size/type and driving method, and 
behavioral monitoring zones are meant to encompass Level B harassment 
zones for each pile size/type and driving method, as shown in table 8. 
A minimum shutdown zone of 10 m would be required for all in-water

[[Page 17828]]

construction activities to avoid physical interaction with marine 
mammals. Marine mammal monitoring will be conducted during all pile 
driving activities to ensure that marine mammals do not enter Level A 
shutdown zones. Shutdown zones for each activity type are shown in 
table 8.
    Prior to pile driving, shutdown zones and monitoring zones will be 
established based on zones represented in table 8. Observers will 
survey the shutdown zones for at least 30 minutes before pile driving 
activities start. If marine mammals are found within the shutdown zone, 
pile driving will be delayed until the animal has moved out of the 
shutdown zone, either verified by an observer or by waiting until 15 
minutes has elapsed without a sighting. If a marine mammal approaches 
or enters the shutdown zone during pile driving, the activity will be 
halted. Pile driving may resume after the animal has moved out of and 
is moving away from the shutdown zone or after at least 15 minutes has 
passed since the last observation of the animal.
    All marine mammals would be monitored in the Level B harassment 
zones and throughout the area as far as visual monitoring can take 
place. If a marine mammal enters the Level B harassment zone, in-water 
activities would continue and PSOs would document the animal's presence 
within the estimated harassment zone.
    If a species for which authorization has not been granted, or a 
species which has been granted but the authorized takes are met, is 
observed approaching or within the Level B harassment zone, pile 
driving activities will be shut down immediately. Activities will not 
resume until the animal has been confirmed to have left the area or 15 
minutes has elapsed with no sighting of the animal.

                                               Table 8--Shutdown and Level B Harassment Zones by Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                       Minimum shutdown zone
                                                         --------------------------------------------------------------------------------     Level B
               Pile size, type, and method                                                     High-                                        harassment
                                                           Low-frequency   Mid-frequency     frequency        Phocid          Otariid          zone
--------------------------------------------------------------------------------------------------------------------------------------------------------
Barge movements, pile positioning.......................              10              10              10              10              10              10
14-in timber pile vibratory removal.....................              10              10              15              10              10           6,310
14-in steel H-pile vibratory removal....................              10              10              10              10              10           1,000
16-in steel pipe pile vibratory removal.................              10              10              10              10              10           5,415
16-in steel pipe pile vibratory installation............              10              10              10              10              10           5,415
24-in steel pipe pile vibratory installation (temporary)              10              10              10              10              10           5,415
24-in steel pipe pile vibratory removal (temporary).....              10              10              10              10              10           5,415
24-in steel pipe pile vibratory installation............              10              10              10              10              10           5,415
16-in steel pipe pile DTH installation..................              50              10              60              30              10           6,310
24-in steel pipe pile DTH installation (temporary)......             265              10             315             145              15           6,310
24-in steel pipe pile DTH installation..................             320              15             385             175              15           6,310
--------------------------------------------------------------------------------------------------------------------------------------------------------

Protected Species Observers

    The placement of PSOs during all pile driving activities (described 
in the Monitoring and Reporting section) would ensure that the entire 
shutdown zone is visible. Should environmental conditions deteriorate 
such that the entire shutdown zone would not be visible (e.g., fog, 
heavy rain), pile driving would be delayed until the PSO is confident 
marine mammals within the shutdown zone could be detected.
    PSOs would monitor the full shutdown zones and as much of the Level 
B harassment zones as possible. Monitoring zones provide utility for 
observing by establishing monitoring protocols for areas adjacent to 
the shutdown zones. Monitoring enables observers to be aware of and 
communicate the presence of marine mammals in the project areas outside 
the shutdown zones and thus prepare for a potential cessation of 
activity should the animal enter the shutdown zone.

Pre- and Post-Activity Monitoring

    Monitoring must take place from 30 minutes prior to initiation of 
pile driving activities (i.e., pre-clearance monitoring) through 30 
minutes post-completion of pile driving. Prior to the start of daily 
in-water construction activity, or whenever a break in pile driving of 
30 minutes or longer occurs, PSOs would observe the shutdown and 
monitoring zones for a period of 30 minutes. The shutdown zone would be 
considered cleared when a marine mammal has not been observed within 
the zone for a 30-minute period. If a marine mammal is observed within 
the shutdown zones, pile driving activity would be delayed or halted. 
If work ceases for more than 30 minutes, the pre-activity monitoring of 
the shutdown zones would commence. A determination that the shutdown 
zone is clear must be made during a period of good visibility (i.e., 
the entire shutdown zone and surrounding waters must be visible to the 
naked eye).

Bubble Curtain

    A bubble curtain must be employed during all impact DTH activities 
to interrupt the acoustic pressure and reduce impact on marine mammals. 
The bubble curtain must distribute air bubbles around 100 percent of 
the piling circumference for the full depth of the water column. The 
lowest bubble ring must be in contact with the mudline for the full 
circumference of the ring. The weights attached to the bottom ring must 
ensure 100 percent substrate contact. No parts of the ring or other 
objects may prevent full substrate contact. Air flow to the bubblers 
must be balanced around the circumference of the pile.
    Based on our evaluation of the applicant's planned 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

[[Page 17829]]

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 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 would 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.
    Between one and five PSOs will be on duty depending on the size of 
the monitoring zone. Locations from which PSOs would be able to monitor 
for marine mammals are readily available from publicly accessible 
shoreside areas at the Near Island Channel and surrounding waters. 
Monitoring locations would be selected by the Contractor during pre-
construction. PSOs would monitor for marine mammals entering the Level 
B harassment zones; the position(s) may vary based on construction 
activity and location of piles or equipment.
    PSOs would scan the waters using binoculars, and/or spotting 
scopes, and would use a handheld range-finder device to verify the 
distance to each sighting from the project site. All PSOs would be 
trained in marine mammal identification and behaviors and are required 
to have no other project-related tasks while conducting monitoring. In 
addition, monitoring would be conducted by qualified observers, who 
would 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. Trident 
would adhere to the following observer qualifications:
    (i) Independent observers (i.e., not construction personnel) are 
required;
    (ii) One PSO would 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) Trident must submit observer Curricula Vitae for approval by 
NMFS.
    Additional standard observer qualifications include:
     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.

Data Collection

    PSOs would use approved data forms to record the following 
information:
     Dates and times (beginning and end) of all marine mammal 
monitoring.
     PSO locations during marine mammal monitoring.
    Construction activities occurring during each daily observation 
period, including how many and what type of piles were driven or 
removed and by what method (i.e., vibratory or DTH).
     Weather parameters and water conditions.
     The number of marine mammals observed, by species, 
relative to the pile location and if pile driving or removal was 
occurring at time of sighting.
     Distance and bearings of each marine mammal observed to 
the pile being driven or removed.
     Description of marine mammal behavior patterns, including 
direction of travel.
     Age and sex class, if possible, of all marine mammals 
observed.
     Detailed information about implementation of any 
mitigation triggered (such as shutdowns and delays), a description of 
specific actions that ensued, and resulting behavior of the animal if 
any.

Reporting

    A draft marine mammal monitoring report would be submitted to NMFS 
within 90 days after the completion of

[[Page 17830]]

pile driving and removal activities. It would 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., vibratory driving) and the total 
equipment duration for cutting for each pile.
     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; 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.
     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 would 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, Trident 
would immediately cease the specified activities and report the 
incident to the Chief of the Permits and Conservation Division, Office 
of Protected Resources, NMFS, and the Alaska Regional Stranding 
Coordinator. The report would include the following information:
     Description of the incident;
     Environmental conditions (e.g., Beaufort sea state, 
visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities would not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS would work with Trident to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Trident would not be able 
to resume their activities until notified by NMFS via letter, email, or 
telephone.
    In the event that Trident 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), 
Trident would immediately report the incident to the Chief of the 
Permits and Conservation Division, Office of Protected Resources, NMFS, 
and the NMFS Alaska Stranding Hotline and/or by email to the Alaska 
Regional Stranding Coordinator. The report would include the same 
information identified in the paragraph above. Activities would be able 
to continue while NMFS reviews the circumstances of the incident. NMFS 
would work with Trident to determine whether modifications in the 
activities are appropriate.
    In the event that Trident 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), Trident would report the incident 
to the Chief of the Permits and Conservation Division, Office of 
Protected Resources, NMFS, and the NMFS Alaska Stranding Hotline and/or 
by email to the Alaska Regional Stranding Coordinator, within 24 hours 
of the discovery. Trident would 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 
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 discussion of our analysis applies to all 
the species listed in table 1, given that the anticipated effects of 
this activity on these different marine mammal stocks are expected to 
be similar. There is little information about the nature or severity of 
the impacts, or the size, status, or structure of any of these species 
or stocks that would lead to a different analysis for this activity.
    Pile driving and removal activities associated with the project as 
outlined

[[Page 17831]]

previously, have the potential to disturb or displace marine mammals. 
Specifically, the specified activities may result in take, in the form 
of Level B harassment from underwater sounds generated from pile 
driving and removal. Level A harassment is extremely unlikely given the 
small size of the Level A harassment isopleths and the required 
mitigation measures designed to minimize the possibility of injury to 
marine mammals (see Mitigation section). No mortality is anticipated 
given the nature of the activity. Pile installation and removal 
activities are likely to result in the Level B harassment of marine 
mammals that move into the ensonified zone, primarily in the form of 
disturbance or displacement of marine mammals. Take would occur within 
a limited, confined area of each stock's range. Level B harassment 
would be reduced to the level of least practicable adverse impact 
through use of mitigation measures described herein. Further, the 
amount of take authorized is small when compared to stock abundance.
    Based on reports in the literature as well as monitoring from other 
similar activities, behavioral disturbance (i.e., level B harassment) 
would likely be limited to reactions such as increased swimming speeds, 
increased surfacing time, or decreased foraging (if such activity were 
occurring) (e.g., Thorson and Reyff, 2006; HDR, Inc., 2012; Lerma, 
2014; ABR, 2016). Most likely for pile driving, individuals would 
simply move away from the sound source and be temporarily displaced 
from the areas of pile driving, although even this reaction has been 
observed primarily only in association with impact pile driving. The 
pile driving activities analyzed here are similar to, or less impactful 
than, numerous other construction activities conducted in Alaska, which 
have taken place with no observed severe responses of any individuals 
or known long-term adverse consequences. Level B harassment would be 
reduced to the level of least practicable adverse impact through use of 
mitigation measures described herein and, if sound produced by project 
activities is sufficiently disturbing, animals are likely to simply 
avoid the area while the activity is occurring. While vibratory driving 
associated with the project may produce sound at distances of many 
kilometers from the project site, thus overlapping with some likely 
less-disturbed habitat, the project site itself is located in a busy 
harbor and the majority of sound fields produced by the specified 
activities are close to the harbor. Animals disturbed by project sound 
would be expected to avoid the area and use nearby higher-quality 
habitats.
    The project also is not expected to have significant adverse 
effects on affected marine mammals' habitat. The project activities 
would 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 waters around Kodiak Island are part of the Alaska humpback 
whale feeding Biologically Important Area (BIA; Ferguson et al., 2015). 
Humpback whales are present around Kodiak, although the majority of 
sightings have occurred outside of Near Island Channel. The area of the 
BIA that may be affected by the planned project is small relative to 
the overall area of the BIA. The humpback whale feeding BIA is active 
between May and November while the planned project is scheduled to 
occur between March and June, resulting in only 2 months of overlap. 
Additionally, pile driving associated with the project is expected to 
take only 55 days, further reducing the temporal overlap with the BIA. 
Therefore, the planned project is not expected to have significant 
adverse effects on the foraging of Alaska humpback whale. No areas of 
specific biological importance (e.g., ESA critical habitat, other BIAs, 
or other areas) for any other species are known to co-occur with the 
project area.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect any of the species or stocks 
through effects on annual rates of recruitment or survival:
     No serious injury, mortality, or Level A harassment is 
anticipated or authorized;
     The anticipated incidents of Level B harassment would 
consist of, at worst, temporary modifications in behavior that would 
not result in fitness impacts to individuals;
     The ensonified 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; 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 planned 
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.
    Table 7 demonstrates the number of animals that could be exposed to 
received noise levels that could cause Level B harassment for the work 
in Kodiak, Alaska. Our analysis shows that less than 14 percent of each 
affected stock could be taken by harassment. The numbers of animals 
authorized to be taken for these stocks would 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 planned activity 
(including the mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS finds that small numbers of marine mammals 
would be taken relative to the population size of the affected species 
or stocks.

[[Page 17832]]

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 Kodiak area sea lions and harbor seals are available for 
subsistence harvest under the MMPA. Limited subsistence harvests of 
marine mammals outside of Near Island Channel has occurred in the past, 
with the most recent recorded/documented harvests of marine mammals in 
Kodiak in 2011. The planned activity will take place in Near Island 
Channel, 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 planned 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 Trident's planned activities.

Endangered Species Act

    There are two marine mammal species (Mexico DPS humpback whale and 
western DPS Steller sea lion) with confirmed occurrence in the project 
area that are listed as 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 Trident under section 101(a)(5)(D) of the 
MMPA by the NMFS Office of Protected Resources. The Biological Opinion 
concluded that the proposed action is not likely to jeopardize the 
continued existence of Mexico DPS humpback whales or 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 
habitat.

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 Trident for the potential harassment of 
small numbers of six marine mammal species incidental to the Bunkhouse 
Dock replacement project in Kodiak, Alaska, that includes the 
previously explained mitigation, monitoring and reporting requirements.

    Dated: March 6, 2024.
Catherin Marzin,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2024-05163 Filed 3-11-24; 8:45 am]
BILLING CODE 3510-22-P