[Federal Register Volume 83, Number 154 (Thursday, August 9, 2018)]
[Notices]
[Pages 39424-39428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-16993]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG383


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Gustavus Ferry Terminal 
Improvements Project

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

ACTION: Notice; proposed issuance of an Incidental Harassment 
Authorization; request for comments.

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SUMMARY: NMFS has received a request from the Alaska Department of 
Transportation and Public Facilities (ADOT&PF) to issue an incidental 
harassment authorization (IHA) for activities that were not conducted 
under an existing IHA. NMFS previously issued an IHA to ADOT&PF to 
incidentally take seven species of marine mammal, by Level A and Level 
B harassment, during construction activities associated with the 
Gustavus Ferry Terminal Improvements project in Gustavus, Alaska. The 
IHA, issued on April 4, 2017 (82 FR 17209; April 10, 2017), is valid 
from December 15, 2017 through December 14, 2018. However, ADOT&PF was 
unable to conduct any of the work and, therefore, has requested that 
NMFS re-issue the IHA with the dates changed to accommodate the 
analyzed work with minor modifications to the number of piles driven. 
The proposed IHA would authorize work for the ferry

[[Page 39425]]

improvements project between December 15, 2018 and December 14, 2019. 
Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting 
comments on the proposed issuance of an IHA to incidentally take marine 
mammals during the specified activities. Take numbers would be the same 
as authorized previously, and the mitigation, monitoring, and reporting 
requirements would remain the same as authorized for the 2017-2018 IHA 
referenced above.

DATES: Comments and information must be received no later than 
September 10, 2018.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Physical comments should be sent to 
1315 East-West Highway, Silver Spring, MD 20910 and electronic comments 
should be sent to <a href="/cdn-cgi/l/email-protection#723b26225c0213071e1b1c17321c1d13135c151d04"><span class="__cf_email__" data-cfemail="58110c087628392d3431363d1836373939763f372e">[email protected]</span></a>.
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments received electronically, including 
all attachments, must not exceed a 25-megabyte file size. Attachments 
to electronic comments will be accepted in Microsoft Word or Excel or 
Adobe PDF file formats only. All comments received are a part of the 
public record and will generally be posted online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities without change. All 
personal identifying information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.

FOR FURTHER INFORMATION CONTACT: Rob Pauline, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application, 
supporting documents, list of the references cited in this document, 
Federal Register notice of proposed IHA (81 FR 40852; June 23, 2016), 
Federal Register notice of issuance of the final 2017-2018 IHA (82 FR 
17209; April 10, 2017) and the issued 2017-2018 IHA may be obtained 
online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. In 
case of problems accessing these documents, please call the contact 
listed above.

SUPPLEMENTARY INFORMATION: 

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (as delegated to NMFS) to allow, upon 
request, the incidental, but not intentional, taking of small numbers 
of marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are made and either regulations are issued or, if 
the taking is limited to harassment, a notice of a proposed 
authorization is provided to the public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 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.
    The MMPA states that the term ``take'' means to harass, hunt, 
capture, kill or attempt to harass, hunt, capture, or kill any marine 
mammal.
    Except with respect to certain activities not pertinent here, 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).

National Environmental Policy Act

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

History of Request

    On July 31, 2015, NMFS received an application from ADOT&PF 
requesting the take of marine mammals incidental to reconstructing the 
existing ferry terminal at Gustavus, Alaska, referred to as the 
Gustavus Ferry Terminal. NMFS published a notice of a proposed IHA and 
request for comments in the Federal Register on June 23, 2016 (81 FR 
40852). We subsequently published the final notice of our issuance of 
the IHA on April 10, 2017 (82 FR 17209), making the IHA valid for 
December 15, 2017 through December 14, 2018. In-water work associated 
with the project was expected to be completed within the one-year 
timeframe of the IHA. The specified activities were expected to result 
in the take of seven species of marine mammals including harbor seal 
(Phoca vitulina), Steller sea lion (Eumetopias jubatus), harbor 
porpoise (Phocoena phocoena), Dall's porpoise (Phocoenoides dalli), 
killer whale (Orcinus orca), humpback whale (Megaptera novaeangliae), 
and minke whale (Balaenoptera acutorostrata).
    On May 8, 2018, ADOT&PF informed NMFS that work on the project 
would be postponed due to design revisions and local community 
considerations and that no work would be completed under the 2017-2018 
IHA. ADOT&PF requested that a new IHA be issued that would be valid 
from December 15, 2018 through December 14, 2019. Under this proposed 
IHA, ADOT&PF would conduct pile driving activities between the in water 
work window dates of March 1, 2019, through May 31, 2019 and September 
1, 2019, through November 30, 2019. Although the proposed activities 
would undergo minor modifications, the number of authorized takes would 
remain unchanged from those listed in the 2017-2018 Authorization.

[[Page 39426]]

Description of the Proposed Activity and Anticipated Impacts

    The 2018-2019 proposed IHA would cover the same construction 
associated with the modernization of the Gustavus Ferry Terminal that 
the 2017-2018 did, with minor revisions to the number and types of 
piles that would be installed and removed. NMFS refers the reader to 
the documents related to the previously issued 2017-2018 IHA for more 
detailed description of the project activities. These previous 
documents include the Federal Register notice of the issuance of the 
2017-2018 IHA for ADOT&PF's Gustavus Ferry Terminal Improvements 
project (82 FR 17209; April 10, 2017), ADOT&PF's application, the 
Federal Register notice of the proposed IHA (81 FR 40852; June 23, 
2016) and all associated references and documents. A detailed 
description of the proposed vibratory and impact pile driving 
activities at the ferry terminal improvements project is found in these 
documents. The description remains accurate with the exception of the 
minor modifications noted above.

Detailed Description of the Action

    Differences between the 2017-2018 IHA and the proposed 2018-2019 
IHA are shown in Table 1. Generally speaking, pile driving and removal 
would occur over the same number of days (50) with installation and 
removal of 16 additional piles over 21 additional hours. These changes 
represent a 3.5 percent increase in the number of piles installed and a 
21.9 percent increase in the number of piles removed. The duration of 
impact driving would remain the same while the time spent vibratory 
driving would increase by 18.4 percent. The additional time required 
for vibratory driving is due to the increase in anticipated number of 
piles removed. Note that these proposed changes would have a nominal 
impact on the calculated Level A harassment isopleths and no effect on 
Level B harassment isopleths. Therefore, the sizes of the Level A 
harassment and Level B harassment zones would remain unchanged.

                          Table 1--Gustavus Ferry Pile Installation and Removal Summary
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                                            Number of piles-- 2017-2018   Number of piles-- 2018-2019  Proposed
            Pile size (inches)                          IHA                                IHA
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30.......................................  14..........................  18.
24.......................................  40..........................  34 install/12 remove.
18.......................................  0...........................  4 remove.
16.......................................  0...........................  4 install/4 remove.
12.75....................................  3 install/16 remove.........  3 install/9 remove.
                                          ----------------------------------------------------------------------
    Total installed/total Piles..........  57/73.......................  59/89.
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          Driving time duration                2017-2018 IHA (hours)         2018-2019  Proposed IHA (hours)
----------------------------------------------------------------------------------------------------------------
Impact Driving...........................  57..........................  57.
Vibratory Driving........................  114.........................  135.
                                          ----------------------------------------------------------------------
    Total................................  171.........................  192.
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Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
is found in these previous documents, which remains applicable to the 
proposed 2018-2019 IHA as well. In addition, NMFS has reviewed recent 
draft Stock Assessment Reports, information on relevant Unusual 
Mortality Events, and recent scientific literature, and determined that 
no new information affects our original analysis of impacts under the 
2017-2018 IHA.

Potential Effects on Marine Mammals

    A description of the potential effects of the specified activities 
on marine mammals and their habitat may be found in these previous 
documents, which remains applicable to the issuance of the proposed 
2018-2019 IHA. There is no new information on potential effects.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
authorized take is found in these previous documents. The methods of 
estimating take for the proposed 2018-2019 IHA are identical to those 
used in the 2017-2018 IHA. The source levels remain unchanged from the 
previously issued IHA, and NMFS' 2016 acoustic technical guidance was 
used to address new acoustic thresholds in the notice of issuance of 
the 2017-2018 IHA. Specifically, observational data was used to 
calculate daily take rates in the absence of density data. Since the 
number of pile-driving days (50) planned for both the 2017-2018 IHA and 
the proposed 2018-2019 IHA are the same, the total estimated take 
projections will be identical.

Description of Proposed Mitigation, Monitoring and Reporting Measures

    A description of proposed mitigation, monitoring, and reporting 
measures is found in the previous documents, which are identical to 
those contained in this proposed 2018-2019 IHA. The following measures 
would apply to ADOT&PF's mitigation requirements:
    <bullet> Establishment of Shutdown Zone--For all pile driving 
activities, ADOT&PF will establish a shutdown zone. The purpose of a 
shutdown zone is generally to define an area within which shutdown of 
activity would occur upon sighting of a marine mammal (or in 
anticipation of an animal entering the defined area). In this case, 
shutdown zones are intended to contain areas in which sound pressure 
levels (SPLs) equal or exceed acoustic injury criteria for some 
authorized species, based on NMFS' acoustic technical guidance 
published in the Federal Register on August 4, 2016 (81 FR 51693).
    <bullet> Establishment of Monitoring Zones--ADOT&PF must identify 
and establish Level A harassment zones. These zones are areas beyond 
the shutdown zones where animals may be

[[Page 39427]]

exposed to sound levels that could result in permanent threshold shift 
(PTS). ADOT&PF will also identify and establish Level B harassment 
disturbance zones which are areas where SPLs equal or exceed 160 dB rms 
for impact driving and 120 dB rms during vibratory driving. Observation 
of monitoring zones enables observers to be aware of and communicate 
the presence of marine mammals in the project area and outside the 
shutdown zone and thus prepare for potential shutdowns of activity. 
NMFS has established monitoring protocols described in the Federal 
Register notice of the issuance (82 FR 17209; April 10, 2017) which are 
based on the distance and size of the monitoring and shutdown zones. 
These same protocols are contained in this proposed 2018-2019 IHA.
    <bullet> Temporal and Seasonal Restrictions--Work may only occur 
during daylight hours, when visual monitoring of marine mammals can be 
conducted and all in-water construction will be limited to the periods 
between March 1 and May 31, 2018, and September 1 and November 30, 
2018.
    <bullet> Soft Start--The use of a soft-start procedure is 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 implement soft start procedures. Soft Start is not 
required during vibratory pile driving and removal activities.
    <bullet> Visual Marine Mammal Observation--Monitoring must be 
conducted by qualified marine mammal observers (MMOs), who are trained 
biologists, with minimum qualifications described in the Federal 
Register notice of the issuance of the 2017-2018 IHA (82 FR 17209; 
April 4, 2017). In order to effectively monitor the pile driving 
monitoring zones, two MMOs must be positioned at the best practical 
vantage point(s). If waters exceed a sea-state which restricts the 
observers' ability to make observations within the shutdown zone (e.g., 
excessive wind or fog), pile installation and removal will cease. Pile 
driving will not be initiated until the entire shutdown zone is 
visible. MMOs shall record specific information on the sighting forms 
as described in the Federal Register notice of the issuance of the 
2017-2018 IHA (82 FR 17209; April 10, 2017). At the conclusion of the 
in-water construction work, ADOT&PF will provide NMFS with a monitoring 
report which includes summaries of recorded takes and estimates of the 
number of marine mammals that may have been harassed.

Determinations

    ADOT&PF proposes to conduct activities similar to those covered in 
the previous 2017-2018 IHA. As described above, the number of estimated 
takes of the same stocks of marine mammals is the same as those 
authorized in the 2017-2018 IHA that were found to meet the negligible 
impact and small numbers standards. Our analysis showed that less than 
9.07 percent of the populations of affected stocks, with the exception 
of minke and killer whales, could be taken by harassment. For Northern 
resident and West Coast transient killer whales, the percentages, when 
instances of take are compared to abundance, are 48.2 percent and 51.8 
percent, respectively. However, the takes estimated for these stocks 
(up to 126 instances assuming all takes are accrued to a single stock) 
are not likely to represent unique individuals. Instead, we anticipate 
that there will be multiple takes of a smaller number of individuals.
    The Northern resident killer whale stock are most commonly seen in 
the waters around the northern end of Vancouver Island, and in 
sheltered inlets along B.C.'s Central and North Coasts. They also range 
northward into Southeast Alaska in the winter months. Pile driving 
operations are not permitted from December through February. It is 
unlikely that such a large portion of Northern resident killer whales 
with ranges of this magnitude would be concentrated in and around Icy 
Passage.
    NMFS believes that small numbers of the West coast transient killer 
whale stock would be taken based on the limited region of exposure in 
comparison with the known distribution of the transient stock. The West 
coast transient stock ranges from Southeast Alaska to California, while 
the proposed project activity would be stationary. A notable percentage 
of West coast transient whales have never been observed in Southeast 
Alaska. Only 155 West coast transient killer whales have been 
identified as occurring in Southeast Alaska according to Dahlheim and 
White (2010). The same study identified three pods of transients, 
equivalent to 19 animals that remained almost exclusively in the 
southern part of Southeast Alaska (i.e. Clarence Strait and Sumner 
Strait). This information indicates that only a small subset of the 
entire West coast Transient stock would be at risk for take in the Icy 
Passage area because a sizable portion of the stock has either not been 
observed in Southeast Alaska or consistently remains far south of Icy 
Passage.
    There is no current abundance estimate for minke whale since 
population data on this species is dated. However, the proposed take of 
42 minke whales may be considered small. A visual survey for cetaceans 
was conducted in the central-eastern Bering Sea in July-August 1999, 
and in the southeastern Bering Sea in 2000. Results of the surveys in 
1999 and 2000 provide provisional abundance estimates of 810 and 1,003 
minke whales in the central-eastern and southeastern Bering Sea, 
respectively (Moore et al., 2002). Additionally, line-transect surveys 
were conducted in shelf and nearshore waters in 2001-2003 from the 
Kenai Fjords in the Gulf of Alaska to the central Aleutian Islands. 
Minke whale abundance was estimated to be 1,233 for this area (Zerbini 
et al., 2006). However, these estimates cannot be used as an estimate 
of the entire Alaska stock of minke whales because only a portion of 
the stock's range was surveyed. (Allen and Anglis 2012). Clearly, 42 
authorized takes should be considered a small number, as it constitutes 
only 5.2 percent of the smallest abundance estimate generated during 
the surveys just described and each of these surveys represented only a 
portion of the minke whale range.
    Note that the numbers of animals authorized to be taken for all 
species, with the exception of Northern resident and West coast 
transient killer whales, would be considered small relative to the 
relevant stocks or populations even if each estimated taking occurred 
to a new individual--an extremely unlikely scenario.
    The proposed 2018-2019 IHA includes mitigation, monitoring, and 
reporting requirements that are identical to those depicted in the 
2017-2018 IHA, and there is no new information suggesting that our 
analysis or findings should change.
    Based on the information contained here and in the referenced 
documents, NMFS has determined the following: (1) The required 
mitigation measures will effect the least practicable impact on marine 
mammal species or stocks and their habitat; (2) the authorized takes 
will have a negligible impact on the affected marine mammal species or 
stocks; (3) the authorized takes represent small numbers of marine 
mammals relative to the affected stock abundances; and (4) ADOT&PF's 
activities will not have an unmitigable adverse impact on taking for 
subsistence purposes as no relevant subsistence uses of marine mammals 
are implicated by this action.

[[Page 39428]]

Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species.
    In order to comply with the ESA, NMFS Alaska Regional Office (AKR) 
Protected Resources Division issued a Biological Opinion on March 21, 
2017 under section 7 of the ESA, on the issuance of an IHA to ADOT&PF 
under section 101(a)(5)(D) of the MMPA. This consultation concluded 
that the project was likely to adversely affect but unlikely to 
jeopardize the continued existence of the threatened Mexico DPS of 
humpback whale (Megaptera novaeangliae) or the endangered western DPS 
of Steller sea lion (Eumatopias jubatus), or adversely modify 
designated critical habitat for Steller sea lions. In a memo dated June 
13, 2018, NMFS AKR concluded that re-initiation of section 7 
consultation is not necessary for the issuance of the proposed 2018-
2019 IHA. The only modification to the project is a time shift of one 
year. No additional take has been requested by ADOT&PF or is proposed 
for authorization by NMFS. All mitigation measures described in the 
Biological Opinion would be implemented to reduce harassment of marine 
mammals and document take of marine mammals. For these reasons, we 
anticipate no new or changed effects of the action beyond what was 
considered in the 2017 Biological Opinion.

Proposed Authorization and Request for Public Comments

    As a result of these determinations, NMFS proposes to issue an IHA 
to ADOT&PF for the Gustavus Ferry Terminal Improvements project in 
Gustavus, AK from December 15, 2018 through December 14, 2019, provided 
the previously described mitigation, monitoring, and reporting 
requirements from the 2017-2018 IHA are incorporated. We request 
comment on our analyses and the proposed issuance of the IHA which 
would be identical to the previous IHA (https://www.fisheries.noaa.gov/action/incidental-take-authorization-alaska-dot-gustavus-ferry-terminal-improvement-project). We also request comment on the potential 
for renewal of this proposed IHA as described in the paragraph below. 
Please include with your comments any supporting data or literature 
citations to help inform our final decision on the request for MMPA 
authorization.
    On a case-by-case basis, NMFS may issue a second one-year IHA 
without additional notice when (1) another year of identical or nearly 
identical activities as described in the Specified Activities section 
is planned or (2) the activities would not be completed by the time the 
IHA expires and a second IHA would allow for completion of the 
activities beyond that described in the Dates and Duration section, 
provided all of the following conditions are met:
    <bullet> A request for renewal is received no later than 60 days 
prior to expiration of the current IHA;
    <bullet> The request for renewal must include the following:
    (1) An explanation that the activities to be conducted beyond the 
initial dates either are identical to the previously analyzed 
activities or include changes so minor (e.g., reduction in pile size) 
that the changes do not affect the previous analyses, take estimates, 
or mitigation and monitoring requirements; and
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized; and
    <bullet> Upon review of the request for renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures remain the same and appropriate, 
and the original findings remain valid.

    Dated: August 3, 2018.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2018-16993 Filed 8-8-18; 8:45 am]
 BILLING CODE 3510-22-P


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