[Federal Register Volume 88, Number 218 (Tuesday, November 14, 2023)]
[Notices]
[Pages 77972-77985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24977]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD491]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Maintenance and Rehabilitation 
of the Bellingham Shipping Terminal

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 
the Port of Bellingham to incidentally harass marine mammals during 
construction activities associated with the Maintenance and 
Rehabilitation of the Bellingham Shipping Terminal project in 
Bellingham, WA. There are no changes from the proposed authorization in 
this final authorization.

DATES: This authorization is effective for 1-year from the date of 
issuance.

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/action/incidental-take-authorization-port-bellinghams-bellingham-shipping-terminal-bellingham. 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 May 5, 2023, NMFS received a request from the Port of Bellingham 
for an IHA to take marine mammals incidental to pile driving and 
removal. Following NMFS' review of the application, the Port of 
Bellingham submitted a two revised versions on June 16, 2023 and August 
28, 2023. The application was deemed adequate and complete on September 
6, 2023. There are no changes from the proposed IHA to the final IHA.

Description of Activity

    The Bellingham Shipping Terminal rehabilitation project includes 
the removal of 36 existing 24-inch (in) diameter (61 centimeter (cm)) 
steel piles, 15 existing 14-in to 16-in (36 cm to 41 cm) timber fender 
piles, and 2 existing 18-in to 20-in (46 cm to 51 cm) timber piles. 
Fifty-six 24-in steel piles will be installed to support the main deck 
of the shipping terminal and in addition 14, 24-in steel piles will be 
installed behind the existing bulkhead. The existing fender piles will 
be replaced by 13 16-in steel H-piles. Two 18-in to 20-in timber piles 
will be installed on the south portion of the terminal. Vibratory and 
impact hammers will be used for the installation and removal of all 
piles (Table 1). Removal of piles will be conducted using a straight 
pull method or vibratory hammers. After new piles are set with a 
vibratory hammer, installed piles will be proofed with an impact hammer 
to verify the structural capacity of the pile embedment. The work will 
be completed at the existing Bellingham Shipping Terminal in 
Bellingham, Washington. Work on the terminal will be completed within 
1-year over 87 non-consecutive days. Sounds produced by these 
activities may result in take, by Level A and Level B harassment, of 
marine mammals located in Bellingham, Washington.
    A detailed description of the planned construction project is 
provided in the Federal Register notice for the proposed IHA (88 FR 
65953, September 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 specific activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to the Port of 
Bellingham was published in the Federal Register on

[[Page 77973]]

September 26, 2023 (88 FR 65953). That notice described, in detail, the 
Port of Bellingham'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 4 and 5 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 to 
be 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 to be authorized here, 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' U.S. 2022 SARs. All values presented in Table 1 are the most 
recent available at the time of publication (including from the final 
2022 SARs) 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\
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                                                                                         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\
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                                                  Odontoceti (toothed whales, dolphins, and porpoises)
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Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Washington Inland        -,-; N              11,233 (0.37, 8,308,           66      >=7.2
                                                                Waters.                                      2015).
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                                                               Order Carnivora--Pinnipedia
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Family Otariidae (eared seals and
 sea lions):
    California Sea Lion.............  Zalophus californianus.  U.S....................  -,-; N              257,606 (N/A,233,515,      14,011       >321
                                                                                                             2014).
    Steller Sea Lion................  Eumetopias jubatus.....  Eastern................  -,-; N              43,201 (N/A, 43,201,        2,592        112
                                                                                                             2017).
Family Phocidae (earless seals):
    Harbor Seal.....................  Phoca vitulina.........  Washington Northern      -, -, N             UNK (UNK, UNK, 1999)..        UNK        9.8
                                                                Inland Waters.
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\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.nmfs.noaa.gov/pr/sars/. 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.

    A detailed description of the of the species likely to be affected 
by the maintenance and rehabilitation of the Bellingham Shipping 
Terminal 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 
65953; September 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 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

[[Page 77974]]

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-
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]
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            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

    This section provides a discussion of the ways in which components 
of the specified activity may impact marine mammals and their habitat. 
The Estimated Take of Marine Mammals section later in this document 
includes a quantitative analysis of the number of individuals that are 
expected to be taken by this activity. The Negligible Impact Analysis 
and Determination section considers the content of this section, the 
Estimated Take of Marine Mammals section, and the Mitigation section, 
to draw conclusions regarding the likely impacts of these activities on 
the reproductive success or survivorship of individuals and whether 
those impacts are reasonably expected to, or reasonably likely to, 
adversely affect the species or stock through effects on annual rates 
of recruitment or survival.

Description of Sounds Sources

    The marine soundscape is comprised of both ambient and 
anthropogenic sounds. Ambient sound is defined as the all-encompassing 
sound in a given place and is usually a composite of sound from many 
sources both near and far. The sound level of an area is defined by the 
total acoustical energy being generated by known and unknown sources. 
These sources may include physical (e.g., waves, wind, precipitation, 
earthquakes, ice, atmospheric sound), biological (e.g., sounds produced 
by marine mammals, fish, and invertebrates), and anthropogenic sound 
(e.g., vessels, dredging, aircraft, construction).
    The sum of the various natural and anthropogenic sound sources at 
any given location and time--which comprise ``ambient'' or 
``background'' sound--depends not only on the source levels (as 
determined by current weather conditions and levels of biological and 
shipping activity) but also on the ability of sound to propagate 
through the environment. In turn, sound propagation is dependent on the 
spatially and temporally varying properties of the water column and sea 
floor, and is frequency-dependent. As a result of the dependence on a 
large number of varying factors, ambient sound levels can be expected 
to vary widely over both coarse and fine spatial and temporal scales. 
Sound levels at a given frequency and location can vary by 10 to 20 dB 
from day to day (Richardson et al., 1995). The result is that, 
depending on the source type and its intensity, sound from the 
specified activity may be a negligible addition to the local 
environment or could form a distinctive signal that may affect marine 
mammals.
    In-water construction activities associated with the project will 
include impact pile driving, vibratory pile driving, and vibratory pile 
removal. The sounds produced by these activities fall into one of two 
general sound types: impulsive and non-impulsive. Impulsive sounds 
(e.g., explosions, gunshots, sonic booms, impact pile driving) are 
typically transient, brief (less than 1 second), broadband, and consist 
of high peak sound pressure with rapid rise time and rapid decay (ANSI, 
1986; NIOSH, 1998; ANSI, 2005; NMFS, 2018). Non-impulsive sounds (e.g., 
aircraft, machinery operations such as drilling or dredging, vibratory 
pile driving, and active sonar systems) can be broadband, narrowband or 
tonal, brief or prolonged (continuous or intermittent), and typically 
do not have the high peak sound pressure with raid rise/decay time that 
impulsive sounds do (ANSI, 1995; NIOSH, 1998; NMFS, 2018). The 
distinction between these two sound types is important because they 
have differing potential to cause physical effects, particularly with 
regard to hearing (e.g., Ward, 1997 and Southall, et al. 2007).
    Two types of pile hammers will be used on this project: impact and 
vibratory. Impact hammers operate by

[[Page 77975]]

repeatedly dropping a heavy piston onto a pile to drive the pile into 
the substrate. Sound generated by impact hammers is characterized by 
rapid rise times and high peak levels, a potentially injurious 
combination (Hastings and Popper, 2005). Vibratory hammers install 
piles by vibrating them and allowing the weight of the hammer to push 
them into the sediment. Vibratory hammers produce significantly less 
sound than impact hammers. Peak sound pressure levels (SPLs) may be 180 
dB or greater, but are generally 10 to 20 dB lower than SPLs generated 
during impact pile driving of the same-sized pile (Oestman, et al., 
2009). Rise time is slower, reducing the probability and severity of 
injury, and sound energy is distributed over a greater amount of time 
(Nedwell and Edwards, 2002; Carlson, et al., 2005).
    The likely or possible impacts of the Port of Bellingham's activity 
on marine mammals could involve both non-acoustic and acoustic 
stressors. Potential non-acoustic stressors include the physical 
presence of the equipment and personnel; however, any impacts to marine 
mammals are expected to primarily be acoustic in nature.

Auditory Effects

    The introduction of anthropogenic noise into the aquatic 
environment from pile driving and removal is the primary means by which 
marine mammals may be harassed from the Port of Bellingham's specified 
activity. In general, animals exposed to natural or anthropogenic sound 
may experience physical and behavioral effects, ranging in magnitude 
from none to severe (Southall et al., 2007 and Southall et al., 2021). 
Exposure to pile driving noise has the potential to result in auditory 
threshold shifts and behavioral reactions (e.g., avoidance, temporary 
cessation of foraging and vocalizing, changes in dive behavior). 
Exposure to anthropogenic noise can also lead to non-observable 
physiological responses such an increase in stress hormones. Additional 
noise in a marine mammal's habitat can mask acoustic cues used by 
marine mammals to carry out daily functions such as communication and 
predator and prey detection. The effects of pile driving noise on 
marine mammals are dependent on several factors, including, but not 
limited to, sound type (e.g., impulsive vs. non-impulsive), the 
species, age and sex class (e.g., adult male vs. mom with calf), 
duration of exposure, the distance between the pile and the animal, 
received levels, behavior at time of exposure, and previous history 
with exposure (Wartzok et al., 2004; Southall et al., 2007). Here we 
discuss physical auditory effects (threshold shifts) followed by 
behavioral effects and potential impacts on habitat.
    NMFS defines a noise-induced threshold shift (TS) as a change, 
usually an increase, in the threshold of audibility at a specified 
frequency or portion of an individual's hearing range above a 
previously established reference level (NMFS, 2018). The amount of 
threshold shift is customarily expressed in dB. A TS can be permanent 
or temporary. As described in NMFS (2018), there are numerous factors 
to consider when examining the consequence of TS, including, but not 
limited to, the signal temporal pattern (e.g., impulsive or non-
impulsive), likelihood an individual would be exposed for a long enough 
duration or to a high enough level to induce a TS, the magnitude of the 
TS, time to recovery (seconds to minutes or hours to days), the 
frequency range of the exposure (i.e., spectral content), the hearing 
and vocalization frequency range of the exposed species relative to the 
signal's frequency spectrum (i.e., how animal uses sound within the 
frequency band of the signal; e.g., Kastelein et al., 2014), and the 
overlap between the animal and the source (e.g., spatial, temporal, and 
spectral).
    Permanent Threshold Shift (PTS)--NMFS defines PTS as a permanent, 
irreversible increase in the threshold of audibility at a specified 
frequency or portion of an individual's hearing range above a 
previously established reference level (NMFS 2018). Available data from 
humans and other terrestrial mammals indicate that a 40 dB threshold 
shift approximates PTS onset (Ward et al., 1958, 1959; Ward, 1960; 
Kryter et al., 1966; Miller, 1974; Ahroon et al., 1996; Henderson et 
al., 2008). PTS levels for marine mammals are estimates, as with the 
exception of a single study unintentionally inducing PTS in a harbor 
seal (Kastak et al., 2008), there are no empirical data measuring PTS 
in marine mammals largely due to the fact that, for various ethical 
reasons, experiments involving anthropogenic noise exposure at levels 
inducing PTS are not typically pursued or authorized (NMFS, 2018).
    Temporary Threshold Shift (TTS)--A temporary, reversible increase 
in the threshold of audibility at a specified frequency or portion of 
an individual's hearing range above a previously established reference 
level (NMFS, 2018). Based on data from cetacean TTS measurements 
(Southall et al., 2007), a TTS of 6 dB is considered the minimum 
threshold shift clearly larger than any day-to-day or session-to-
session variation in a subject's normal hearing ability (Schlundt et 
al., 2000; Finneran et al., 2000, 2002). As described in Finneran 
(2015), marine mammal studies have shown the amount of TTS increases 
with cumulative sound exposure level (SELcum) in an accelerating 
fashion: At low exposures with lower SELcum, the amount of TTS is 
typically small and the growth curves have shallow slopes. At exposures 
with higher higher SELcum, the growth curves become steeper and 
approach linear relationships with the noise SEL.
    Depending on the degree (elevation of threshold in dB), duration 
(i.e., recovery time), and frequency range of TTS, and the context in 
which it is experienced, TTS can have effects on marine mammals ranging 
from discountable to serious (similar to those discussed in auditory 
masking, below). For example, a marine mammal may be able to readily 
compensate for a brief, relatively small amount of TTS in a non-
critical frequency range that takes place during a time when the animal 
is traveling through the open ocean, where ambient noise is lower and 
there are not as many competing sounds present. Alternatively, a larger 
amount and longer duration of TTS sustained during time when 
communication is critical for successful mother/calf interactions could 
have more serious impacts. We note that reduced hearing sensitivity as 
a simple function of aging has been observed in marine mammals, as well 
as humans and other taxa (Southall et al., 2007), so we can infer that 
strategies exist for coping with this condition to some degree, though 
likely not without cost.
    Currently, TTS data only exist for four species of cetaceans 
(bottlenose dolphin (Tursiops truncatus), beluga whale (Delphinapterus 
leucas), harbor porpoise, and Yangtze finless porpoise (Neophocoena 
asiaeorientalis)) and five species of pinnipeds exposed to a limited 
number of sound sources (i.e., mostly tones and octave-band noise) in 
laboratory settings (Finneran, 2015). TTS was not observed in trained 
spotted (Phoca largha) and ringed (Pusa hispida) seals exposed to 
impulsive noise at levels matching previous predictions of TTS onset 
(Reichmuth et al., 2016). In general, harbor seals and harbor porpoises 
have a lower TTS onset than other measured pinniped or cetacean species 
(Finneran, 2015). Additionally, the existing marine mammal TTS data 
come from a limited number of individuals within these species. No data 
are available on noise-induced hearing loss for mysticetes. For 
summaries of data on TTS in marine mammals or for further discussion of

[[Page 77976]]

TTS onset thresholds, please see Southall et al. (2007), Finneran and 
Jenkins (2012), Finneran (2015), and Table 5 in NMFS (2018).
    Installing piles requires a combination of impact pile driving and 
vibratory pile driving. For the project, these activities will not 
occur at the same time and there will likely be pauses in activities 
producing the sound during each day. Given these pauses and that many 
marine mammals are likely moving through the action area and not 
remaining for extended periods of time, the potential for TS declines.

Behavioral Effects

    Exposure to noise from pile driving and removal also has the 
potential to behaviorally disturb marine mammals. Available studies 
show wide variation in response to underwater sound; therefore, it is 
difficult to predict specifically how any given sound in a particular 
instance might affect marine mammals perceiving the signal. If a marine 
mammal does react briefly to an underwater sound by changing its 
behavior or moving a small distance, the impacts of the change are 
unlikely to be significant to the individual, let alone the stock or 
population. However, if a sound source displaces marine mammals from an 
important feeding or breeding area for a prolonged period, impacts on 
individuals and populations could be significant (e.g., Lusseau and 
Bejder, 2007; Weilgart, 2007; NRC, 2005, Southall et al., 2021).
    Disturbance may result in changing durations of surfacing and 
dives, number of blows per surfacing, or moving direction and/or speed; 
reduced/increased vocal activities; changing/cessation of certain 
behavioral activities (such as socializing or feeding); visible startle 
response or aggressive behavior (such as tail/fluke slapping or jaw 
clapping); avoidance of areas where sound sources are located. 
Pinnipeds may increase their haul out time, possibly to avoid in-water 
disturbance (Thorson and Reyff, 2006). Behavioral responses to sound 
are highly variable and context-specific and any reactions depend on 
numerous intrinsic and extrinsic factors (e.g., species, state of 
maturity, experience, current activity, reproductive state, auditory 
sensitivity, time of day), as well as the interplay between factors 
(e.g., Richardson et al., 1995; Wartzok et al., 2003; Southall et al., 
2007, 2021; Weilgart, 2007; Archer et al., 2010). Behavioral reactions 
can vary not only among individuals but also within exposures of an 
individual, depending on previous experience with a sound source, 
context, and numerous other factors (Ellison et al., 2012, Southall et 
al., 2021), and can vary depending on characteristics associated with 
the sound source (e.g., whether it is moving or stationary, number of 
sources, distance from the source). In general, pinnipeds seem more 
tolerant of, or at least habituate more quickly to, potentially 
disturbing underwater sound than do cetaceans, and generally seem to be 
less responsive to exposure to industrial sound than most cetaceans. 
For a review of studies involving marine mammal behavioral responses to 
sound, see Southall et al., 2007; Gomez et al., 2016; and Southall et 
al., 2021 reviews.
    Disruption of feeding behavior can be difficult to correlate with 
anthropogenic sound exposure, so it is usually inferred by observed 
displacement from known foraging areas, the appearance of secondary 
indicators (e.g., bubble nets or sediment plumes), or changes in dive 
behavior. As for other types of behavioral response, the frequency, 
duration, and temporal pattern of signal presentation, as well as 
differences in species sensitivity, are likely contributing factors to 
differences in response in any given circumstance (e.g., Croll et al., 
2001; Nowacek et al., 2004; Madsen et al., 2006; Yazvenko et al., 
2007). A determination of whether foraging disruptions incur fitness 
consequences would require information on or estimates of the energetic 
requirements of the affected individuals and the relationship between 
prey availability, foraging effort and success, and the life history 
stage of the animal.
    The area likely impacted by the project is relatively small 
compared to the available habitat in the surrounding waters of the 
Salish Sea.
    In 2017, the U.S. Navy documented observations of marine mammals 
during construction activities (i.e., pile driving) at the U.S. Coast 
Guard Air Station Sector Field Office, Port Angeles, Washington (81 FR 
67985, October 3, 2016). This project was roughly 60 miles (mi) (97 
kilometers (km)) from the project cite and features that are very 
similar (i.e. a shallow bay of the Salish Sea). In the marine mammal 
monitoring report for that project (Northwest Environmental Consulting, 
2018), 261 harbor seals were observed within the behavioral disturbance 
zone during pile driving or drilling (i.e., documented as Level B 
harassment take). Twelve California sea lions and 2 Steller sea lions 
were observed within the disturbance zone during pile driving 
activities. Six harbor porpoise were sighted in the Level B harassment 
zone during construction. No visible signs of disturbance were noted 
for any of these species that were present in the harassment zones. 
Given the similarities in activities and habitat and the fact the same 
species are involved, we expect similar behavioral responses of marine 
mammals to the specified activity. That is, disturbance, if any, is 
likely to be temporary and localized (e.g., small area movements). 
Monitoring reports from other recent pile driving projects have 
observed similar behaviors.
    Masking--Sound can disrupt behavior through masking, or interfering 
with, an animal's ability to detect, recognize, or discriminate between 
acoustic signals of interest (e.g., those used for intraspecific 
communication and social interactions, prey detection, predator 
avoidance, navigation) (Richardson et al., 1995). Masking occurs when 
the receipt of a sound is interfered with by another coincident sound 
at similar frequencies and at similar or higher intensity, and may 
occur whether the sound is natural (e.g., snapping shrimp, wind, waves, 
precipitation) or anthropogenic (e.g., pile driving, shipping, sonar, 
seismic exploration) in origin. The ability of a noise source to mask 
biologically important sounds depends on the characteristics of both 
the noise source and the signal of interest (e.g., signal-to-noise 
ratio, temporal variability, direction), in relation to each other and 
to an animal's hearing abilities (e.g., sensitivity, frequency range, 
critical ratios, frequency discrimination, directional discrimination, 
age or TTS hearing loss), and existing ambient noise and propagation 
conditions. Masking of natural sounds can result when human activities 
produce high levels of background sound at frequencies important to 
marine mammals. Conversely, if the background level of underwater sound 
is high (e.g., on a day with strong wind and high waves), an 
anthropogenic sound source would not be detectable as far away as would 
be possible under quieter conditions and would itself be masked. 
Bellingham Bay is home to a busy industrial ports as well as large 
numbers small private vessels that transit the area on a regular basis; 
therefore, background sound levels in the bay are already elevated.
    Airborne Acoustic Effects--Pinnipeds that occur near the project 
site could be exposed to airborne sounds associated with pile driving 
and removal that have the potential to cause behavioral harassment, 
depending on their distance from pile driving activities. Cetaceans are 
not expected to be exposed to airborne sounds that will result in 
harassment as defined under the MMPA.

[[Page 77977]]

    Airborne noise will primarily be an issue for pinnipeds that are 
swimming or hauled out near the project site within the range of noise 
levels exceeding the acoustic thresholds. We recognize that pinnipeds 
in the water could be exposed to airborne sound that may result in 
behavioral harassment when looking with their heads above water. Most 
likely, airborne sound will cause behavioral responses similar to those 
discussed above in relation to underwater sound. For instance, 
anthropogenic sound could cause hauled-out pinnipeds to exhibit changes 
in their normal behavior, such as reduction in vocalizations, or cause 
them to temporarily abandon the area and move further from the source. 
However, these animals will previously have been ``taken'' because of 
exposure to underwater sound above the behavioral harassment 
thresholds, which are in all cases larger than those associated with 
airborne sound. Thus, the behavioral harassment of these animals is 
already accounted for in these estimates of potential take. Therefore, 
we do not believe that authorization of incidental take resulting from 
airborne sound for pinnipeds is warranted, and airborne sound is not 
discussed further here.

Marine Mammal Habitat Effects

    The effects of underwater noise from the Port of Bellingham'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 65953; September 26, 2023) included a 
discussion of the effects of anthropogenic noise on marine mammals and 
the potential effects of underwater noise from Port of Bellingham'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 65953; September 26, 2023).

Estimated Take of Marine Mammals

    This section provides an estimate of the number of incidental takes 
for authorization through this IHA, which will inform both NMFS' 
consideration of ``small numbers,'' and the negligible impact 
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 will primarily be by Level B harassment, as use of 
the construction (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 phocids. Auditory injury is unlikely to occur for 
other authorized species. 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 to be 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 
will be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur 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-squared pressure received levels (RMS SPL) of 120 dB (referenced 
to 1 micropascal (re 1 microPascal [mu]Pa)) for continuous (e.g., 
vibratory pile driving) and above RMS SPL 160 dB re 1 [mu]Pa for non-
explosive impulsive (e.g., impact pile driving) 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 will not otherwise occur.
    The Port of Bellingham's activity includes the use of continuous 
(vibratory driving and removal) and impulsive (impact pile driving), 
and therefore the RMS SPL thresholds of 120 and 160 dB re 1 [mu]Pa are 
applicable. Originally the applicant had recommended a RMS SPL 
thresholds of 130 1 [mu]Pa to predict take by Level B harassment, based 
on ambient sound measurements in Bassett et al. (2010). After further 
review of measurements in the area, the mean underwater noise levels 
was 117 re 1 [mu]Pa and, therefore, NMFS determined the 120 RMS SPL 
threshold was more appropriate for calculating the level B harassment 
zone.
    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

[[Page 77978]]

exposure to noise from two different types of sources (impulsive or 
non-impulsive). The Port of Bellingham's activity includes the use of 
(impact pile driving) and non-impulsive (vibratory pile driving and 
removal) sources.
    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). The maximum (underwater) area ensonified above 
the thresholds for behavioral harassment referenced above is 11.66 
km\2\ (7.25 mi\2\), and will consist of the majority of Bellingham Bay 
(see Figure 10 in the IHA 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 * Log<INF>10</INF> (R<INF>1</INF>/R<INF>2</INF>),

where:

TL = transmission loss in dB
B = transmission loss coefficient
R<INF>1</INF> = the distance of the modeled SPL from the driven 
pile, and
R<INF>2</INF> = 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 (20*log[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 (10*log[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, 
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 impact pile installation of steel and 
timber piles and vibratory removal of steel and timber piles. Pile 
sizes range from 14-in to 24-in, and the applicant has decided to 
implement mitigation and monitoring measures and take estimates 
associated with 24-in. piles for all pile types and sizes. Source 
levels for the 24-in. pile size and driving methods are presented in 
Table 4. The source levels for vibratory and impact installation of 24-
in. steel piles are based on the averaged source level of the same type 
of pile reported by California Department of Transportation (Caltrans) 
in pile driving source level compendium documents (Caltrans, 2015, 
2020).

[[Page 77979]]



                                          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
--------------------------------------------------------------------------------------------------------------------------------------------------------
24 in..............................  Vibratory............                166                    N/A                N/A  Caltrans 2020.
24 in..............................  Impact...............                190                    174                203  Caltrans 2015.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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, 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, and the resulting estimated isopleths, 
are reported below.
    Although many different pile types and sizes are to be used during 
the construction project, the Port of Bellingham is implementing 
mitigation and reporting measures and take estimates for the 24-in. 
steel pipe piles. Use of this pile size results in the largest Level A 
and Level B harassment zones and most conservative mitigation measures. 
Therefore the only calculations the applicant ran were using the 24-in. 
piles. The applicant also plans to limit the number of impact strikes 
per day for all piles to 1,725 and the vibratory install of all piles 
to 90 minutes per day and the vibratory removal of all piles to 30 
minutes per day.

          Table 5--User Spreadsheet Input Parameters Used for Calculating Level A Harassment Isopleths
----------------------------------------------------------------------------------------------------------------
                                                              Weighting
                                                               factor       Number of    Number of     Activity
 Pile size and installation method   Spreadsheet tab used    adjustment    strikes per   piles per     duration
                                                                (kHz)          pile         day       (minutes)
----------------------------------------------------------------------------------------------------------------
24-in vibratory installation......  A.1 Vibratory pile                2.5          N/A            1           90
                                     driving.
24-in vibratory removal...........  A.1 Vibratory pile                2.5          N/A            1           30
                                     driving.
24-in impact installation.........  E.1 Impact pile                     2        1,725            1          N/A
                                     driving.
----------------------------------------------------------------------------------------------------------------


                          Table 6--Calculated Level A and Level B Harassment Isopleths
----------------------------------------------------------------------------------------------------------------
                                                                Level A harassment zone (m)
                                                          ---------------------------------------     Level B
                         Activity                              HF-                                  harassment
                                                            cetaceans     Phocids      Otariids      zone (m)
----------------------------------------------------------------------------------------------------------------
24-in vibratory installation.............................           29           12            1          11,659
24-in vibratory removal (temporary)......................           14            6            1
24-in impact installation (1 pile per day; 1,725 strikes           430          193           14              25
 per pile)...............................................
----------------------------------------------------------------------------------------------------------------

Marine Mammal Occurrence

    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. Some data from 
monitoring reports from previous projects near Bellingham Bay were 
used. However, scientific surveys and resulting data, such as 
population estimates, densities, and other quantitative information, 
are lacking for some marine mammal populations. Therefore, the 
applicant gathered qualitative information from discussions with 
knowledgeable local people in the Bellingham Bay area.
    Here we describe how the information provided is synthesized to 
produce a quantitative estimate of the take that is reasonably likely 
to occur and for authorization. Since reliable densities are not 
available, the applicant requests take based on the maximum number of 
animals that may occur in the harbor in a specified measure of time 
multiplied by the total duration of the activity.

Harbor Porpoise

    The applicant did not initially request take of harbor porpoise for 
this project. Harbor porpoises are known to be an inconspicuous species 
and are challenging for protected species observers (PSOs) to sight, 
making any approach to a specific area potentially difficult to detect. 
Because harbor porpoises move quickly and elusively, it is possible 
that they may enter the Level B harassment zone during vibratory pile 
driving and removal. NMFS reviewed monitoring data from the 2017 U.S. 
Navy construction project at the Coast Guard Air Station in Port 
Angeles, Washington in order to determine a take estimate for harbor 
porpoise.
    During that project the Level B harassment zone was 13.6 km (8.6 
mi) which could only partially be observed by monitors during the 
project. Therefore, take estimates were

[[Page 77980]]

extrapolated from the observations to account for unobserved area where 
take may have occurred. It was assumed that 87 takes by Level B 
harassment may have occurred in the unobserved area, for a total of 93 
takes during the project. Given 93 total takes it was expected that 3 
harbor porpoise were taken per day during the construction project 
(Northwest Environmental Consulting, 2018). Thus, NMFS recommended 3 
animals per day for a total of 261 takes by Level B harassment.
    The largest Level A harassment zone results from impact driving of 
24-in piles, and extends 430 m from the source for high frequency 
cetaceans (Table 7). The Port of Bellingham will implement a shutdown 
zone for harbor porpoises that encompasses the largest Level A 
harassment zone (see Mitigation section). Although harbor porpoises can 
be challenging to observe, given the relatively confined and observable 
ensonified area combined with the fact that harbor porpoises are 
generally considered more likely than some other species to avoid 
louder areas of higher activity, takes by Level A harassment has not 
been authorized.

California Sea Lion

    California sea lions are infrequent visitors to Bellingham Bay. It 
is expected that the occasional presence of California sea lions will 
occur during the fall and winter following forage (fish runs) into the 
bay. Based on anecdotal evidence from port staff sightings, the 
applicants estimated that one California sea lion per day may enter the 
Level B harassment zone during vibratory pile driving and removal. The 
total number of takes by Level B harassment will be 87 California sea 
lions.
    The largest Level A harassment zone for otariid pinnipeds extends 
14 m from the source (Table 7). The Port of Bellingham is planning to 
implement larger shutdown zones than the Level A harassment zones 
during all pile installation and removal activities (see Mitigation 
section), which is expected to eliminate the potential for take by 
Level A harassment of California sea lions. Therefore, no takes of 
California sea lions by Level A harassment were requested or are 
authorized.

Steller Sea Lions

    Steller sea lions from the eastern DPS, are also rare visitors to 
Bellingham Bay that typically occur during the fall and winter 
following prey into the bay. Based on anecdotal evidence from port 
staff sightings, the applicants estimated that one Steller sea lion per 
day may enter the Level B harassment zone during vibratory pile driving 
and removal. The total number of takes by Level B harassment will be 87 
Steller sea lions.
    Similar to California sea lions, the largest Level A harassment 
zone for otariid pinnipeds extends 14 m from the source (Table 7). The 
Port of Bellingham is planning to implement larger shutdown zones than 
the Level A harassment zones during all pile installation and removal 
activities (see Mitigation section), which is expected to eliminate the 
potential for take by Level A harassment of Steller sea lions. 
Therefore, no takes of Steller sea lions by Level A harassment were 
requested or are authorized.

Harbor Seal

    The applicant originally estimated that up to 15 harbor seals per 
day could be taken by Level A harassment during impact driving and 20 
harbor seals per day could be taken by Level B harassment during 
vibratory pile driving and removal. The applicant expected to take 275 
harbor seals by Level A harassment and 2,000 seals by Level B 
harassment.
    After further analysis of the survey data provided by the applicant 
the NMFS recommended a daily rate of 7.7 harbor seals per day in the 
project area per haulout. The Level B harassment zone encompasses three 
haulouts and it is expected that roughly the same amount of seals 
haulout at each location per day. It is expected that up to 23 harbor 
seals per day could be present in the Level B harassment zone during 
vibratory pile driving and removal. Therefore, NMFS expects that 2,029 
harbor seal takes by Level B harassment over the course of 
constructions.
    The largest Level A harassment zone for phocid pinnipeds extends 
193 m from the source (Table 7). The Port of Bellingham expressed 
concern with the ability to complete work in an efficient manner with 
the common occurence of harbor seals in the project area. The applicant 
and NMFS agreed on the implementation of a 50 m shutdown zone in order 
to shutdown for those animals closest to the pile driving activity but 
allow for pile driving to continue for animals that may beyond 50 m 
(see Mitigation section). It is expected that 7.7 harbor seals per day 
may be subject to Level A harassment during 17 days of impact pile 
driving for a total of 264 takes by Level A harassment.

                                     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
                                                                                       abundance \a\                                           of stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor porpoise.................................  Washington Inland Waters..........          11,233            0          261          261          2.3
Steller sea lion................................  Eastern U.S.......................          43,201            0           87           87           .2
California sea lion.............................  U.S...............................         257,606            0           87           87         <0.1
Harbor seal.....................................  Lynn Canal/Stephens Passage.......       \b\ 7,513          264        2,029        3,050         30.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Stock or DPS size is Nbest according to NMFS 2022 Final Stock Assessment Reports.
\b\ Stock abundance estimate derived from Jefferson et al. 2021.

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. 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:

[[Page 77981]]

    (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, impact on 
operations.
    The following measures will apply to the Port of Bellingham's 
mitigation requirements:
    Implementation of Shutdown Zones for Level A Harassment--For all 
pile driving/removal activities, the Port of Bellingham 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 exposures from 
vibratory and impact pile driving for all four species for which take 
may occur (see Table 7). Shutdown zones for impact and vibratory pile 
driving activities are based on the Level A harassment zones for the 
24-in steel piles, strikes (impact) or duration (vibratory) per day, 
and marine mammal hearing group (Table 8). The shutdown zone for harbor 
seals during impact pile driving is less that the Level A harassment 
zone in order to facilitate efficient work operations during the 
project. 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)
           Activity           ------------------------------------------
                                 HF cetaceans     Phocids      Otariids
------------------------------------------------------------------------
Vibratory installation (90                  30           20           10
 minutes)....................
Vibratory removal (30                       20           10           10
 minutes)....................
Impact installation (1,725                 430           50           20
 strikes)....................
------------------------------------------------------------------------

    Establishment of Monitoring Zones--The Port of Bellingham has 
identified monitoring zones that will be in effect for all pile driving 
activities. Vibratory installation and removal is expected to occur on 
all day of construction and the zone for 24-in steel piles will be 
implemented at all times (Table 9) Monitoring zones provide utility for 
observing by establishing monitoring protocols for areas adjacent to 
the shutdown zones. 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 cease 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 on the Port of Bellingham facility or in a 
small boat in the Bellingham Bay will allow PSOs to observe marine 
mammals within and near the bay.

                 Table 9--Marine Mammal Monitoring Zone
------------------------------------------------------------------------
                                                        Monitoring zone
                      Activity                                (m)
------------------------------------------------------------------------
24-in vibratory installation and removal............             11,660
------------------------------------------------------------------------

    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 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. 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.
    Bubble Curtin--A bubble curtain will be employed during impact 
installation or proofing of steel piles. A noise attenuation device 
will not be required during vibratory pile driving. If a bubble curtain 
or similar measure is used, it will distribute air bubbles around 100 
percent of the piling perimeter for the full depth of the water column. 
Any other attenuation measure will be required to provide 100 percent 
coverage in the water column for the

[[Page 77982]]

full depth of the pile. The lowest bubble ring will be in contact with 
the mudline for the full circumference of the ring. The weights 
attached to the bottom ring will ensure 100 percent mudline contact. No 
parts of the ring or other objects will prevent full mudline contact.
    Based on our evaluation of the applicant's measures, NMFS has 
preliminarily 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:
    <bullet> Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
    <bullet> 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);
    <bullet> Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
    <bullet> How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
    <bullet> Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
    <bullet> Mitigation and monitoring effectiveness.

Visual Monitoring

    Monitoring shall be conducted by NMFS-approved observers in 
accordance with section 13.2 of the application. 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 impact pile driving 
activities and a minimum of two PSOs during vibratory installation/
removal. Locations from which PSOs will be able to monitor for marine 
mammals are readily available from the Port of Bellingham property and, 
if necessary, on small boats in Bellingham Bay. PSOs will 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 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. The Port of Bellingham will adhere to the 
following observer qualifications:
    (i) Independent observers (i.e., not construction personnel) are 
required;
    (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) The applicant must submit observer Curriculum Vitaes for 
approval by NMFS.
    Additional standard observer qualifications include:
    <bullet> Ability to conduct field observations and collect data 
according to assigned protocols;
    <bullet> Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
    <bullet> Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
    <bullet> 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
    <bullet> 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

[[Page 77983]]

associated PSO data sheets. Specifically, the report must include:
    <bullet> Dates and times (begin and end) of all marine mammal 
monitoring.
    <bullet> 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 the total 
equipment duration for cutting for each pile or total number of strikes 
for each pile (impact driving).
    <bullet> PSO locations during marine mammal monitoring.
    <bullet> 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.
    <bullet> 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).
    <bullet> Number of marine mammals detected within the harassment 
zones, by species.
    <bullet> 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, the Port 
of Bellingham will 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 will include the following 
information:
    <bullet> Description of the incident;
    <bullet> Environmental conditions (e.g., Beaufort sea state, 
visibility);
    <bullet> Description of all marine mammal observations in the 24 
hours preceding the incident;
    <bullet> Species identification or description of the animal(s) 
involved;
    <bullet> Fate of the animal(s); and
    <bullet> 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 the Port of 
Bellingham to determine what is necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. The Port of 
Bellingham will not be able to resume their activities until notified 
by NMFS via letter, email, or telephone.
    In the event that the Port of Bellingham 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), the Port of Bellingham will immediately report the incident 
to the Office of Protected Resources 
(<a href="/cdn-cgi/l/email-protection#673735492e3337492a08090e1308150e090035021708151314270908060649000811"><span class="__cf_email__" data-cfemail="6434364a2d30344a290b0a0d100b160d0a033601140b161017240a0b05054a030b12">[email protected]</span></a>), NMFS and to the West Coast Region 
regional stranding coordinator as soon as feasible. 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 the Port of 
Bellingham to determine whether modifications in the activities are 
appropriate.

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 4033; 
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 for authorization given

[[Page 77984]]

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 seal. The potential for harassment is 
minimized through the construction method and the implementation of the 
planned mitigation measures (see Mitigation section).
    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 Washington, 
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.
    In addition to the expected effects resulting from authorized Level 
B harassment, we anticipate that harbor seals may sustain some limited 
Level A harassment in the form of auditory injury. However, animals in 
these locations that experience PTS would 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 kilohertz (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 would 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 would be likely to move away from 
a sound source that represents an aversive stimulus, especially at 
levels that would 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.
    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:
    <bullet> No serious injury or mortality is anticipated or 
authorized;
    <bullet> Any Level A harassment exposures (i.e., to harbor seals, 
only) are anticipated to result in slight PTS (i.e., of a few 
decibels), within the lower frequencies associated with pile driving;
    <bullet> The anticipated incidents of Level B harassment will 
consist of, at worst, temporary modifications in behavior that will not 
result in fitness impacts to individuals;
    <bullet> The ensonifed areas from the project is very small 
relative to the overall habitat ranges of all species and stocks;
    <bullet> or any other areas of known biological importance; with 
the exception of three haulout locations in Bellingham Bay that will be 
affected by the project. Currently those haulout locations are not 
known to be pupping locations for harbor seals but are important areas 
throughout the year. Harbor seals at these haulouts 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 all, there will be no adverse impacts 
to the stock as a whole.
    <bullet> 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 preliminarily 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.
    Table 7 demonstrates the number of instances in which individuals 
of a given species could be exposed to receive noise levels that could 
cause Level A and Level B harassment for the work in Bellingham Bay. 
Our analysis shows that less than 3 percent of all but one stock could 
be taken by harassment, and less than 30 percent of harbor seals, 
noting that the percentage of individual harbor seals is likely notably 
lower because some portion of the estimated instances of take are 
expected to represent repeated takes of the same individuals on 
multiple days. 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

[[Page 77985]]

mitigation and monitoring measures) and the anticipated take of marine 
mammals, NMFS preliminarily 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

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or stocks will not 
have an unmitigable adverse impact on the availability of such species 
or stocks for taking for subsistence purposes.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 
1531 et seq.) requires that each Federal agency insure that any action 
it authorizes, funds, or carries out is not likely to jeopardize the 
continued existence of any endangered or threatened species or result 
in the destruction or adverse modification of designated critical 
habitat. To ensure ESA compliance for the issuance of IHAs, NMFS 
consults internally whenever we propose to authorize take for 
endangered or threatened species.
    No incidental take of ESA-listed species is for authorization or 
expected to result from this activity. Therefore, NMFS has determined 
that formal consultation under section 7 of the ESA is not required for 
this action.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our action (i.e., the issuance of an IHA) with respect 
to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or 
mortality) of the Companion Manual for 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 the final IHA qualifies to be categorically excluded from 
further NEPA review.

Authorization

    NMFS has issued an IHA to the Port of Bellingham for the potential 
harassment of small numbers of three marine mammal species incidental 
to the maintenance and rehabilitation of the Bellingham Shipping 
Terminal project in Bellingham, WA, that includes the previously 
explained mitigation, monitoring and reporting requirements.

    Dated: November 7, 2023.
Shannon Bettridge,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2023-24977 Filed 11-13-23; 8:45 am]
BILLING CODE 3510-22-P


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