[Federal Register Volume 83, Number 151 (Monday, August 6, 2018)]
[Notices]
[Pages 38289-38292]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-16767]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XF370


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Sand Point City Dock 
Replacement Project in Sand Point, Alaska

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: NMFS has received a request from the Alaska Department of 
Transportation and Public Facilities (ADOT&PF) to issue an incidental 
harassment authorization (IHA) previously issued to ADOT&PF to 
incidentally take nine species of marine mammal, by Level A and Level B 
harassment, during construction activities associated with the Sand 
Point City Dock Replacement Project in Sand Point, Alaska. ADOT&PF 
reported that the project has been delayed. The IHA issued on October 
13, 2017 has effective dates of August 1, 2018 through July 31, 2019. 
ADOT&PF requested that a new IHA be issued to conduct their work 
between May 31, 2019 and May 30, 2020. NMFS is, therefore, issuing a 
second IHA to cover the incidental take analyzed and authorized in the 
first IHA. The authorized take numbers would be the same as authorized 
previously, and the required mitigation, monitoring, and reporting 
would remain the same as authorized for the 2018 IHA referenced above. 
Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is notifying 
the public about the issuance of an IHA to ADOT&PF to incidentally take 
marine mammals, by Level A and Level B harassment only, during the 
specified activity.

DATES: The IHA is valid May 31, 2019, through May 30, 2020.

ADDRESSES: An electronic copy of the final Authorization previously 
issued for 2018-2019, ADOT&PF's application, and related documents may 
be obtained by visiting https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. In case of problems accessing these documents, please call 
the contact listed below (see FOR FURTHER INFORMATION CONTACT).

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

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.

[[Page 38290]]

    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 CE B4 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 had determined 
that the issuance of the 2018-2019 IHA qualified to be categorically 
excluded from further NEPA review and signed a Categorical Exclusion 
memo in October 2017. Since the new 2019-2020 IHA covers the same work 
covered in the former 2018-2019 IHA, NMFS is relying on this same 
Categorical Exclusion memo for the issuance of this IHA.

History of Request

    On September 16, 2016, NMFS received an application from ADOT&PF 
for the taking of marine mammals incidental to replacing the city dock 
in Sand Point, Alaska. On April 11, 2017, ADOT&PF submitted a revised 
application that NMFS determined was adequate and complete. ADOT&PF 
proposed to conduct in-water activities that may incidentally take, by 
Level A and Level B harassment, nine species of marine mammals. 
Proposed activities included as part of the Sand Point City Dock 
Replacement Project with potential to affect marine mammals include 
impact hammer pile driving and vibratory pile driving and removal. We 
published a notice of a proposed IHA and request for comments on July 
6, 2017 (82 FR 31400). We subsequently published the final notice of 
our issuance of the IHA on October 23, 2017 (82 FR 48987), making the 
IHA valid for August 1, 2018-July 31, 2019. The specified activities 
are expected to result in the take of nine 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), Fin whale (Balaenoptera physalus), gray whale 
(Eschrichtius robustus), and minke whale (Balaenoptera acutorostrata).
    On April 24, 2018, ADOT&PF informed NMFS that work would be 
postponed relevant to the specified activity considered in the MMPA 
analysis and construction will not start until spring of 2019. 
Therefore, ADOT&PF requested the IHA be re-issued to be valid from May 
31, 2019 through May 30, 2020.

Description of the Proposed Activity and Anticipated Impacts

    The 2018-2019 IHA covered the construction of a new dock in Sand 
Point, Alaska. Impact and vibratory driving of piles and vibratory pile 
removal were expected to take place over a total of approximately 32 
working days within a 5-month window from August 1, 2019 through 
December 31, 2019. However, due to the potential for unexpected delays, 
up to 40 working days may be required. The new dock would be supported 
by approximately 52 round, 30-inch-diameter, 100-foot-long permanent 
steel pipe piles. Fender piles installed at the dock face would consist 
of 8 round, 24-inch-diameter, 80-foot-long permanent steel pipe piles. 
The single mooring dolphin would consist of 3 round, 24-inch-diameter, 
120-foot-long permanent battered steel pipe piles. This equates to a 
total of 63 permanent piles. Up to 90 temporary piles would be 
installed and removed during construction of the dock and would be 
either H-piles or pipe piles with a diameter of less than 24 inches.
    NMFS refers the reader to the documents related to the previously 
issued IHA for more detailed description of the project activities. 
These previous documents include the Federal Register notice of the 
issuance of the 2018-2019 IHA for ADOT&PF's Sand Point City Dock 
Replacement Project (82 FR 48987; October 23, 2017), ADOT&PF's 
application, the Federal Register notice of the proposed IHA (82 FR 
31400; July 6, 2017) and all associated references and documents.
    Detailed Description of the Action--A detailed description of the 
proposed vibratory and impact pile driving activities at Sand Point 
City Dock is found in these previous documents. The location, timing 
(including the August 1, 2019--December 31 2019 work window), and 
nature of the pile driving operations, including the type and size of 
piles and the methods of pile driving, are identical to those described 
in the previous notices.
    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 this 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 current IHA.
    Potential Effects on Marine Mammals--A description of the potential 
effects of the specified activities on marine mammals and their habitat 
is found in these previous documents, which remains applicable to this 
IHA. There is no new information on potential effects.
    Estimated Take--A description of the methods and inputs used to 
estimate take anticipated to occur and, ultimately, the take that was 
authorized is found in these previous documents. The methods of 
estimating take are identical to those used in the previous IHA, as is 
the density of marine mammals. The source levels, were also 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 2018 IHA.
    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 in this issued IHA. The following measures would apply to 
ADOT&PFs mitigation requirements:
    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 SPLs equal or exceed acoustic injury criteria 
for some authorized species, based on NMFS' acoustic

[[Page 38291]]

technical guidance published in the Federal Register on August 4, 2016 
(81 FR 51693).
    Establishment of Monitoring Zones--ADOT&PF will identify Level A 
take zones which are areas beyond the shutdown zones where animals may 
be exposed to sound levels that could result in permanent threshold 
shift (PTS). During impact installation of 30-inch and 24-inch piles, a 
100-meter shutdown zone would not be sufficient to prevent Level A take 
of low-frequency cetaceans (i.e., humpback whales), high-frequency 
cetaceans (i.e., harbor porpoises), or phocid pinnipeds (i.e., harbor 
seals). For this reason, Level A take for small numbers of humpback 
whales, harbor porpoises, and harbor seals is authorized. To account 
for potential variations in daily productivity during impact 
installation, isopleths were calculated for different numbers of piles 
that could be installed each day. ADOT&PF will identify Level B 
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 48987; October 23, 2017) which 
are based on the distance and size of the monitoring and shutdown 
zones. The same protocols are contained in this 2019-2020 IHA.
    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.
    Pre-Activity Monitoring--Prior to the start of daily in-water 
construction activity, or whenever a break in pile driving of 30 
minutes or longer occurs, the observer will observe the shutdown and 
monitoring zones for a period of 30 minutes. The shutdown zone will be 
cleared when a marine mammal has not been observed within 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 30 minutes for medium and large-sized 
odontocetes and mysticetes and 15 minutes for small cetaceans and 
pinnipeds.
    Visual Marine Mammal Observation--Monitoring will 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 2018-2019 IHA (82 FR 48987; October 23, 2017). In 
order to effectively monitor the pile driving monitoring zones, two 
MMOs will be positioned at the best practical vantage point(s). If 
waters exceed a sea-state which restricts the observers' ability to 
make observations within 100 m of the pile driving activity (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 
2018-2019 IHA (82 FR 48987; October 23, 2017). At the conclusion of the 
in-water construction work, ADOT&PF will provide NMSF 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 identical to those covered 
in the previous 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 2018 IHA that were found to meet the negligible 
impact and small numbers standards. The authorized take of marine 
mammal species is shown in Table 1. Our analysis shows that between 
<0.01 percent and 2.89 percent of the populations of affected stocks 
could be taken by harassment. Therefore, the numbers of animals 
authorized to be taken for all species would be considered small 
relative to the relevant stocks or populations.

             Table 11--Summary of the Estimated Numbers of Marine Mammals Potentially Exposed to Level A and Level B Harassment Noise Levels
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                                             Estimated       Estimated
                                             number of       number of
                                            individuals     individuals
                                            potentially     potentially                                           Percent of population exposed to level
           Species (DPS/stock)            exposed to the  exposed to the      DPS/stock bundance (DPS/stock)              A or level B thresholds
                                              level A         level B
                                            harassment      harassment
                                             threshold       threshold
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Steller sea lion (wDPS).................               0             960  50,983................................  1.88
Harbor seal (Cook Inlet/Shelikof Strait)              27              53  27,386................................  0.29
Harbor porpoise (Gulf of Alaska)........              16              33  31,046................................  0.16
Dall's porpoise (Alaska)................               0               4  83,400................................  <0.01
Killer whale (Gulf of Alaska, Aleutian                 0              14  587 (transient).......................  2.38 (transient)
 Islands, and Bering Sea transient or                                     2,347 (resident)......................  0.6 (resident)
 Alaska resident).
Humpback whale \1\ (Central North                      2              30  10,103 (Central NP)...................  0.32
 Pacific/Western North Pacific).                                          1,107 (Western NP)....................  2.89
Fin whale (Northeast Pacific)...........               0               6  \2\ 1,368.............................  0.44
Gray whale (Eastern North Pacific)......               0               2  20,990................................  <0.01
Minke whale (Alaska)....................               0               3  \3\ 2,020.............................  <0.01
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    Total...............................              45           1,105  N/A...................................  N/A.
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\1\ The Hawaii DPS is estimated to account for approximately 89 percent of all humpback whales in the Gulf of Alaska, whereas the Mexico and Western
  North Pacific DPSs account for approximately 10.5% and 0.5%, respectively (Wade et al., 2016; NMFS 2016). Therefore, an estimated 28 animals from
  Hawaii DPS; 3 from Mexico DPS; and 1 from Western North Pacific DPS.
\2\ Based on 2010 survey of animals north and west of Kenai Peninsula in U.S. waters and is likely an underestimate (Muto et al., 2016b).
\3\ Based on 2010 survey on Eastern Bering Sea shelf. Considered provisional and not representative of abundance of entire stock (Muto et al., 2016a).
N/A: Not Applicable.


[[Page 38292]]

    This final IHA includes identical required mitigation, monitoring, 
and reporting measures as the 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.

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 in September 
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. There are four distinct 
population segments (DPSs) of three marine mammal species that are 
listed under the ESA with confirmed or possible occurrence in the study 
area: The Western North Pacific DPS and Mexico DPS of humpback whale; 
the Western DPS of Steller sea lion; and fin whale. The Biological 
Opinion concluded that while the issuance of the authorization may 
adversely affect members of some listed species it is not likely to 
jeopardize the continued existence of any listed marine mammal species 
or destroy or modify any critical habitat. Note that the only 
modification to the IHA is a change in effective dates. No additional 
take has been requested or is being authorized and all mitigation 
measures described in the Biological Opinion will continue to be 
implemented to limit Level A and Level B exposures. For these reasons, 
we anticipate no new or changed effects of the action beyond what was 
considered in the 2017 Biological Opinion.

Authorization

    NMFS has issued an IHA to ADOT&PF for the Sand Point City Dock 
Replacement Project for 2019-2020, provided the previously described 
mitigation, monitoring, and reporting requirements from the 2018-2019 
IHA are incorporated.

    Dated: August 1, 2018.
Elaine T. Saiz,
Acting Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2018-16767 Filed 8-3-18; 8:45 am]
 BILLING CODE 3510-22-P