[Federal Register Volume 87, Number 26 (Tuesday, February 8, 2022)]
[Notices]
[Pages 7128-7138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02633]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB713]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the NOAA Port Facility Project in 
Ketchikan, Alaska

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
NOAA to incidentally harass, by Level B harassment only, marine mammals 
during construction activities associated with the NOAA Port Facility 
Project in Ketchikan, Alaska.

DATES: This Authorization is effective from February 3, 2022 through 
February 2, 2023.

FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected 
Resources, NMFS, (301) 427-8401. 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/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

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 issued or, if the taking is limited to harassment, a notice of a 
proposed IHA may be 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 October 26, 2021, NMFS received an application from NOAA's 
Office of Marine and Aviation Operations requesting an IHA to take 
small numbers of nine species (Dall's porpoise (Phocoenoides dalli), 
Steller sea lions (Eumetopias jubatus), Pacific white-sided dolphin 
(Lagenorhynchus obliquidens), killer whale (Orcinus orca), gray whale 
(Eschrichtius robustus), minke whale (Balaenoptera acutorostrata), 
harbor seal (Phoca vitulina), harbor porpoise (Phocoena phocoena) and 
humpback whale (Megaptera novaeangliae)) of marine mammals incidental 
to vibratory and impact pile driving and down-the-hole (DTH) system use 
associated with the project. The application was deemed adequate and 
complete on November 16, 2021. NOAA's request is for take of a small 
number of these species by Level A or Level B harassment. Neither NOAA 
nor NMFS expects serious injury or mortality to result from this 
activity and, therefore, an IHA is appropriate.

Description of the Specified Activity

Overview

    The purpose of the project is to remove an obsolete dock facility 
and construct a new facility including a 240 feet (ft) x 50 ft floating 
pier connected to land by a transfer bridge. A small boat dock would be 
connected to the large ship pier and a small boat launch ramp will be 
constructed adjacent to the other structures. Table 1 provides a 
summary of the pile driving activities. Since the proposed 
authorization the applicant has decided that they may also remove the 
old steel piles with a vibratory hammer or direct pull. Because the 
steel piles being removed could be removed using either a vibratory 
hammer, pile clipper or hydraulic saw, we use the

[[Page 7129]]

loudest, most precautionary source level for those piles which are pile 
clippers. That change has no effect however on estimated take (see 
below). In summary, the project period includes 47 days of pile or DTH 
activities for which this IHA is requested. A detailed description of 
the planned project is provided in the Federal Register notice for the 
proposed IHA (86 FR 68223; December 1, 2021). Since that time, no 
additional changes have been made to the planned activities beyond 
adding voluntary acoustic monitoring and recognizing that there may be 
some 18-inch diameter steel piles, intermediate in size to the already 
identified 14 to 24-inch diameter steel piles as described below. 
Therefore, a detailed description is not provided here. Please refer to 
that Federal Register notice for the description of the specific 
activity.

                     Table 1--Summary of Pile Driving Activities and User Spreadsheet Inputs
----------------------------------------------------------------------------------------------------------------
                                                                                     Minutes/
                Method                          Pile type            Number of     strikes  per    Piles per day
                                                                       piles           pile
----------------------------------------------------------------------------------------------------------------
DTH...................................  24-inch Steel...........              18          25,000             1.5
Impact................................  ........................  ..............              48             1.5
Vibratory.............................  14-inch Timber..........             130               2              10
Vibratory.............................  14 to 16-inch Steel.....              28               5               5
Vibratory.............................  18 to 24-inch Steel.....              42               5               5
Small Pile Clipper....................  14 to 16-inch Steel.....              28              10              10
Large Pile Clipper....................  18 to 24-inch Steel.....              42              10              10
                                                                 -----------------------------------------------
    Totals............................  ........................             218  ..............  ..............
----------------------------------------------------------------------------------------------------------------
All User spreadsheet calculations use Transmission Loss = 15 and standard weighting factor adjustments

    Mitigation, monitoring, and reporting measures are described in 
detail later in this document (please see Mitigation and Monitoring and 
Reporting).

Comments and Responses

    A notice of NMFS's proposal to issue an IHA to NOAA was published 
in the Federal Register on December 1, 2021 (86 FR 68223). That notice 
described, in detail, NOAA's activity, the marine mammal species that 
may be affected by the activity, and the anticipated effects on marine 
mammals. During the 30-day public comment period, NMFS received no 
public comments or comments from the Marine Mammal Commission.

Changes From the Proposed IHA to Final IHA

    While we are not requiring acoustic monitoring or sound source 
verification studies for this project because the construction 
equipment and pile types and sizes are common ones for which we have 
significant data, the applicant has requested the possibility of 
altering shutdown and/or harassment zones based on voluntary acoustic 
monitoring, so we have added our standard term for this to the IHA (see 
below).
    Since the proposed authorization the applicant has decided that 
they may also remove the old steel piles with a vibratory hammer or 
direct pull, but as mentioned above, the source levels for these are 
quieter than the loudest possible tool that could be used to remove 
these piles, large pile clippers, so there is no effect on take (see 
above). They have also discovered that there may be some 18-inch 
diameter steel piles as part of the mix of pile sizes already described 
that vary from 14- to 24-inch diameter. That change also has no effect 
however on estimated take. Direct pulling does not generate sounds 
exceeding the regulatory thresholds so need not be discussed further.
    The applicant has decided they would rather have hearing-group-
specific shutdown zone sizes. Therefore the idea discussed in the 
proposed IHA of implementing fewer taxa-based shutdown ones has been 
rejected as described below.
    Some source level references in Table 4 were incorrect and have 
been fixed. A few minor typographic errors were corrected.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS's 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's 
website (https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species with expected potential for occurrence in 
the project area 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. 
For taxonomy, we follow Committee on Taxonomy (2021). 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's SARs). While no mortality is 
anticipated or authorized here, PBR and annual serious injury and 
mortality from anthropogenic sources are included here as gross 
indicators of the status of the species 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's 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's U.S. Alaska or Pacific SARs, including the 2021 draft SARs.

[[Page 7130]]



                    Table 2--Species That Spatially Co-Occur With the Activity to the Degree That Take Is Reasonably Likely To Occur
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                                                                                         ESA/MMPA  status;   Stock abundance  (CV,
             Common name                  Scientific name               Stock            strategic  (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
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                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenopteridae (rorquals):
    Humpback whale..................  Megaptera novaeangliae.  Central North Pacific..  -,-; Y              10,103 (0.3, 7,890,            83         26
                                                                                                             2006).
    Minke Whale.....................  Balaenoptera             Alaska.................  -,-; N              N/A (see SAR, N/A, see        UND          0
                                       acutorostrata.                                                        SAR).
Family Eschrichtiidae (gray whale):
    Gray Whale......................  Eschrichtius robustus..  Eastern North Pacific..  -,-; N              26,960 (0.05, 25,849,         801        131
                                                                                                             2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
    Pacific white-sided dolphin.....  Lagenorhynchus           North Pacific..........  -,-; N              26,880 (N/A, N/A,             UND          0
                                       obliquidens.                                                          1990).
    Killer Whale....................  Orcinus orca...........  Northern Resident......  -,-; N              302 (N/A, 302, 2018)..        2.2        0.2
                                                               Alaska Resident........  -,-; N              2,347 (N/A, 2347,              24          1
                                                                                                             2012).
                                                               West Coast Transient...  -,-; N              349 (N/A, 349, 2018)..        3.5        0.4
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Southeast Alaska.......  -, -; N             see SAR (see SAR, see     See SAR         34
                                                                                                             SAR, 2012).
    Dall's porpoise.................  Phocoenoides dalli.....  Entire Alaska Stock....  -, -; N             83,400 (0.097, N/A,           UND         38
                                                                                                             1991).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (sea lions and fur
 seals):
Steller sea lion....................  Eumetopias jubatus.....  Eastern Stock..........  -, -; N             43,201 a (see SAR,           2592        112
                                                                                                             43,201, 2017).
Family Phocidae (earless seals):
    Harbor seal.....................  Phoca vitulina.........  Clarence Strait........  -; N                27,659 (see SAR,              746         40
                                                                                                             24,854, 2015).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual Mortality/Serious Injury (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.

    Humpback whales, minke whales, gray whales, Pacific white-sided 
dolphin, killer whale, harbor porpoise, Dall's porpoise, harbor seal, 
and Steller sea lions spatially co-occur with the activity to the 
degree that take is reasonably likely to occur, and we have proposed 
authorizing take of these species. Fin whale could potentially occur in 
the area, however there are no known sightings nearby so the species is 
very rare, is readily observed, and the applicant would shut down pile 
driving if they enter the project area. Thus take is not expected to 
occur, and they are not discussed further.
    A detailed description of the of the species likely to be affected 
by the 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 (86 FR 
68223; December 1, 2021); 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.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from NOAA's construction activities 
have the potential to result in behavioral harassment of marine mammals 
in the vicinity of the survey area. The notice of proposed IHA (86 FR 
68223; December 1, 2021) included a discussion of the effects of 
anthropogenic noise on marine mammals and the potential effects of 
underwater noise from NOAA's construction 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 (86 FR 68223; December 1, 2021).

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform both NMFS' consideration 
of ``small numbers'' and the negligible impact determination.
    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).

[[Page 7131]]

    Authorized takes would primarily be by Level B harassment, as use 
of the acoustic sources (i.e., vibratory or impact pile driving and 
DTH) have 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 for porpoises and harbor 
seals because predicted auditory injury zones are larger. The 
mitigation and monitoring measures are expected to minimize the 
severity of the taking to the extent practicable.
    As described previously, no mortality is anticipated or authorized 
for this activity. Below we describe how the take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which 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 basic factors can contribute to a basic calculation to provide an 
initial prediction of takes, additional information that can 
qualitatively inform take estimates is also sometimes available (e.g., 
previous monitoring results or average group size). Due to the lack of 
marine mammal density, NMFS relied on local occurrence data and group 
size to estimate take for some species. Below, we describe the factors 
considered here in more detail and present the proposed take estimate.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment).
    Level B Harassment for non-explosive sources--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 (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2012). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals are 
likely to be behaviorally harassed in a manner we consider Level B 
harassment when exposed to underwater anthropogenic noise above 
received levels of 120 dB re 1 microPascal ([mu]Pa) (root mean square 
(rms)) for continuous (e.g., vibratory pile-driving) and above 160 dB 
re 1 [mu]Pa (rms) for non-explosive impulsive (e.g., impact pile 
driving) or intermittent (e.g., scientific sonar) sources.
    NOAA's proposed activity includes the use of continuous (vibratory 
hammer and DTH) and impulsive (DTH and impact pile-driving) sources, 
and therefore the 120 and 160 dB re 1 [mu]Pa (rms) thresholds are 
applicable.
    Level A harassment for non-explosive sources--NMFS' Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine 
Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual 
criteria to assess auditory injury (Level A harassment) to five 
different marine mammal groups (based on hearing sensitivity) as a 
result of exposure to noise from two different types of sources 
(impulsive or non-impulsive). NOAA's activity includes the use of 
impulsive (impact pile-driving and DTH) and non-impulsive (vibratory 
hammer and DTH) sources.
    These thresholds are provided in Table 3. 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 will feed into identifying the area ensonified above the 
acoustic thresholds, which include source levels and transmission loss 
coefficient.
    The sound field in the project area is the existing background 
noise plus additional construction noise from the proposed project. 
Marine mammals are expected to be affected via sound generated by the 
primary components of the project (i.e., impact and vibratory pile 
driving, and DTH).
    In order to calculate distances to the Level A harassment and Level 
B harassment sound thresholds for the methods and piles being used in 
this

[[Page 7132]]

project, NMFS used acoustic monitoring data from other locations to 
develop source levels for the various pile types, sizes and methods 
(Table 4). Because the steel piles being removed could be removed using 
either a vibratory hammer, pile clipper or hydraulic saw, we use the 
loudest, most precautionary source level for our analysis of the 
removal of those piles.

                  Table 4--Project Sound Source Levels
------------------------------------------------------------------------
                                Estimated noise levels
            Method                       (dB)                Source
------------------------------------------------------------------------
24-inch DTH--impulsive........  154 SELss.............  Reyff & Heyvaert
                                                         (2019).
24-inch DTH--non-impulsive....  166 dB RMS............  Denes et al.
                                                         (2016).
24-inch Steel Impact..........  211.2 Pk, 182.1 SEL,    Denes et al.
                                 197 RMS.                (2016) max.
14-inch Timber Vibratory......  157 RMS...............  WADOT (2011)
                                                         plus 4 dB.
Small Pile Clipper............  154 RMS...............  NAVFAC SW
                                                         (2020).
Large Pile Clipper............  161 RMS...............  NAVFAC SW
                                                         (2020).
------------------------------------------------------------------------
Note: SEL = single strike sound exposure level; RMS = root mean square.

Level B Harassment Zones

    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 * Log10 (R1/R2),

where

TL = transmission loss in dB
B = transmission loss coefficient; for practical spreading equals 15
R1 = the distance of the modeled SPL from the driven pile, and
R2 = the distance from the driven pile of the initial measurement

    The recommended TL coefficient for most nearshore environments is 
the practical spreading value of 15. This value results in an expected 
propagation environment that would lie between spherical and 
cylindrical spreading loss conditions, which is the most appropriate 
assumption for NOAA's proposed activity in the absence of specific 
modelling.
    NOAA determined underwater noise would fall below the behavioral 
effects threshold of 160 dB RMS for impact driving at 2,530 m and the 
120 dB rms threshold for the other methods at between 1848 and 11,659 m 
(Table 5). It should be noted that based on the bathymetry and 
geography of the project area, sound will not reach the full distance 
of the harassment isopleths in all directions.

Level A Harassment Zones

    When the NMFS Technical Guidance (2016) was published, in 
recognition of the fact that ensonified area/volume could be more 
technically challenging to predict because of the duration component in 
the new thresholds, we developed a User Spreadsheet that includes tools 
to help predict a simple isopleth that can be used in conjunction with 
marine mammal density or occurrence to help predict takes. We note that 
because of some of the assumptions included in the methods used for 
these tools, we anticipate that isopleths produced are typically going 
to be overestimates of some degree, which may result in some degree of 
overestimate of take by Level A harassment. However, these tools offer 
the best way to predict appropriate isopleths when more sophisticated 
3D modeling methods are not available, and NMFS continues to develop 
ways to quantitatively refine these tools, and will qualitatively 
address the output where appropriate. For stationary sources such as 
pile driving or removal and DTH using any of the methods discussed 
above, NMFS User Spreadsheet predicts the closest distance at which, if 
a marine mammal remained at that distance the whole duration of the 
activity, it would not incur PTS. We used the User Spreadsheet to 
determine the Level A harassment isopleths. Inputs used in the User 
Spreadsheet or models are reported in Table 1 and the resulting 
isopleths are reported in Table 5 for each of the construction methods 
and scenarios.

                                             Table 5--Level A and Level B Isopleths (meters) for Each Method
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Low          Mid-         High
                   Method                              Pile type             frequency    frequency    frequency     Phocids      Otariids     Level B
--------------------------------------------------------------------------------------------------------------------------------------------------------
DTH........................................  24-inch steel................          130            5          155           70            5       11,659
Impact.....................................  24-inch steel................          151            5          179           81            6        2,530
Vibratory..................................  14-inch Timber...............            2            0            3            1            0        2,929
Small Pile Clipper.........................  14 to 20-inch Steel..........          3.3            0            5            2            0        1,848
Large Pile Clipper.........................  14- to 24-inch Steel.........          9.6            1           14            6            0        5,412
--------------------------------------------------------------------------------------------------------------------------------------------------------

Marine Mammal Occurrence and Take Calculation and Estimation

    In this section we provide the information about the presence or 
group dynamics of marine mammals that will inform the take 
calculations. No density data are available for species in the project 
area. Here we describe how the information provided above is brought 
together to produce a quantitative take estimate. The estimates below 
are similar to and informed by prior projects in the Ketchikan area as 
discussed above. A summary of proposed take is in Table 6.
Humpback Whale
    Humpback whales are expected to occur in the project area no more 
than twice per five-day work week. Typical group size for humpback 
whales in the project area is two animals. The project involves 47 days 
(10 work weeks) of in-water work where take could occur. Therefore, we 
estimate total take at 2 whales x 2/week x 10 weeks = 40 takes. All of 
these takes are expected to be Level B harassment takes as we believe 
the Level A shutdown zones can be

[[Page 7133]]

fully implemented by Protected Species Observers (PSO) because of the 
large size, short dive duration, and obvious behaviors of humpback 
whales.
    Given the data in Wade (2021) discussed above on the relative 
frequencies of Hawaii and Mexico DPS humpback whales in the project 
area the 40 takes is expected to comprise 39 Hawaii DPS animals and 1 
Mexico DPS animal.
Minke Whale
    As discussed above minke whales have not been seen in the project 
area but could occur there. They are often solitary. Therefore we 
conservatively authorize a single take of minke whales. This one 
estimated take is expected to be by Level B harassment as we believe 
the Level A shutdown zones can be fully implemented by PSOs because of 
the large size, short dive duration, and obvious behaviors of minke 
whales.
Gray Whale
    Gray whales are expected to occur in the project area no more than 
once per month. Typical group size for gray whales in the project area 
is two animals. The project involves 47 days of in-water work where 
take could occur. Therefore, we estimate total take at two whales x two 
full months = four takes. All of these takes are expected to be Level B 
harassment takes as we believe the Level A shutdown zones can be fully 
implemented by PSOs because of the large size, short dive duration, and 
obvious behaviors of gray whales.
Killer Whale
    Killer whales are expected to occur in the project area no more 
than once per month. Typical group size for killer whales in the 
project area is conservatively estimated at 10 animals. The project 
involves 47 days of in-water work where take could occur. Therefore, we 
estimate total take at 10 whales x 2 full months = 20 takes. All of 
these takes are expected to be Level B harassment takes as we believe 
the Level A shutdown zones can be fully implemented by PSOs because of 
the large size, short dive duration, and obvious behaviors of killer 
whales and the smaller size of the shutdown zones.
Pacific White-Sided Dolphin
    Pacific white-sided dolphins are expected to occur in the project 
area no more than once per week. Typical group size for Pacific white-
sided dolphins in the project area is 20 animals. The project involves 
10 work weeks of in-water work where take could occur. Therefore, we 
estimate total take at 20 dolphins x 10 weeks = 200 takes. All of these 
takes are expected to be Level B harassment takes as we believe the 
Level A shutdown zones can be fully implemented by PSOs because of the 
large group size, short dive duration, and obvious behaviors of Pacific 
white-sided dolphins and the smaller size of the shutdown zones.
Harbor Porpoise
    Harbor porpoises are expected to occur in the project area no more 
than three times per month. Typical group size for harbor porpoises in 
the project area is 5 animals. The project involves 47 days (2 months) 
of in-water work where take could occur. Therefore, we estimate total 
take at 5 porpoises x 6/month = 30 takes. Twenty of these takes are 
expected to be Level B harassment takes. Because harbor porpoises are 
small and cryptic and could sometimes remain undetected within the 
estimated harassment zones for a duration sufficient to experience PTS, 
we authorize 10 takes by Level A harassment.
Dall's Porpoise
    Dall's porpoises are expected to occur in the project area no more 
than three times. Typical group size for Dall's porpoises in the 
project area is 20 animals. The project involves two months of in-water 
work where take could occur. Therefore, we estimate total take at 20 
porpoises x 3 = 60 takes. Forty of these takes are expected to be Level 
B harassment takes. Because Dall's porpoises are small and cryptic and 
could sometimes remain undetected within the estimated harassment zones 
for a duration sufficient to experience PTS, we authorize 20 takes by 
Level A harassment.
Harbor Seal
    Harbor seals are expected to occur in the project area once per 
day. The typical number of harbor seals per day in the project area is 
up to 12 animals. The project involves 47 days of in-water work where 
take could occur. Therefore, we estimate total take at 12 seals x 47 
days = 564 takes. Seventy-five percent or 423 of these takes are 
expected to be Level B harassment takes. Because harbor seals are small 
and cryptic and could sometimes remain undetected within the estimated 
harassment zones for a duration sufficient to experience PTS, we 
authorize 141 takes by Level A harassment.
Steller Sea Lion
    Steller sea lions are expected to occur in the project area once 
per day. The typical number of Steller sea lions per day in the project 
area is up to 10 animals. The project involves 47 days of in-water work 
where take could occur. Therefore, we estimate total take at 10 sea 
lions x 47 days = 470 takes. Because the shutdown zone is small and 
Steller sea lions are not cryptic we believe the Level A shutdown zones 
can be fully implemented by PSOs and no Level A harassment take is 
authorized.

   Table 6--Proposed Authorized Amount of Taking, by Level A Harassment and Level B Harassment, by Species and
                                       Stock and Percent of Take by Stock
----------------------------------------------------------------------------------------------------------------
                                                                      Level B         Level A       Percent of
              Common name                         Stock             harassment      harassment         stock
----------------------------------------------------------------------------------------------------------------
Humpback whale *......................  Central North Pacific...              40               0             0.4
Minke whale...........................  Alaska..................               1               0            <0.1
Gray whale............................  Eastern North Pacific...               4               0            <0.1
Killer whale..........................  Northern Resident,                    20               0            <6.7
                                         Alaska Resident, West
                                         Coast Transient.
Pacific White-sided dolphin...........  North Pacific...........             200               0             0.7
Dall's porpoise.......................  Alaska..................              40              20            <0.1
Harbor porpoise.......................  Southeast Alaska........              20              10             0.3
Harbor seal...........................  Clarence Strait.........             423             141             2.1
Steller sea lion......................  Eastern DPS.............             470               0             1.1
----------------------------------------------------------------------------------------------------------------
* 1 take from the ESA listed Mexico DPS.


[[Page 7134]]

Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for IHAs 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, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned); and
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    Because of the need for an ESA Section 7 consultation for effects 
of the project on ESA listed humpback whales, there are a number of 
mitigation measures that go beyond or are in addition to typical 
mitigation measures we would otherwise require for this sort of 
project. The measures are however typical for actions in the Ketchikan 
area. The following mitigation measures are in the IHA:
    <bullet> Avoid direct physical interaction with marine mammals 
during construction activity. If a marine mammal comes within 10 m of 
such activity, operations must cease and vessels must reduce speed to 
the minimum level required to maintain steerage and safe working 
conditions;
    <bullet> Conduct training between construction supervisors and 
crews and the marine mammal monitoring team and relevant NOAA staff 
prior to the start of all pile driving and DTH activity and when new 
personnel join the work, so that responsibilities, communication 
procedures, monitoring protocols, and operational procedures are 
clearly understood;
    <bullet> Pile driving activity must be halted upon observation of 
either a species for which incidental take is not authorized or a 
species for which incidental take has been authorized but the 
authorized number of takes has been met, entering or within the 
harassment zone. If an ESA listed marine mammal is determined by the 
PSO to have been disturbed, harassed, harmed, injured, or killed (e.g., 
a listed marine mammal is observed entering a shutdown zone before 
operations can be shut down, or is injured or killed as a direct or 
indirect result of this action), the PSO will report the incident to 
within one business day to <a href="/cdn-cgi/l/email-protection#41202a336f32242235282e2f76012f2e20206f262e37"><span class="__cf_email__" data-cfemail="c9a8a2bbe7baacaabda0a6a7fe89a7a6a8a8e7aea6bf">[email protected]</span></a>;
    <bullet> NOAA will establish and implement the shutdown zones 
indicated in Table 7. The purpose of a shutdown zone is generally to 
define an area within which shutdown of the activity would occur upon 
sighting of a marine mammal (or in anticipation of an animal entering 
the defined area). Shutdown zones typically vary based on the activity 
type and marine mammal hearing group. At the applicant's request we 
will not implement the single shutdown zone size per activity discussed 
in the proposed IHA;
    <bullet> Employ PSOs and establish monitoring locations as 
described in the Marine Mammal Monitoring Plan and Section 5 of the 
IHA. The Holder must monitor the project area to the maximum extent 
possible based on the required number of PSOs, required monitoring 
locations, and environmental conditions. For all pile driving and 
removal at least three PSOs must be used;
    <bullet> The placement of the PSOs during all pile driving and 
removal and DTH activities will ensure that the entire shutdown zone is 
visible during pile installation. Should environmental conditions 
deteriorate such that marine mammals within the entire shutdown zone 
will not be visible (e.g., fog, heavy rain), pile driving and removal 
must be delayed until the PSO is confident marine mammals within the 
shutdown zone could be detected;
    <bullet> Monitoring must take place from 30 minutes prior to 
initiation of pile driving activity through 30 minutes post-completion 
of pile driving activity. Pre-start clearance monitoring must be 
conducted during periods of visibility sufficient for the lead PSO to 
determine the shutdown zones clear of marine mammals. Pile driving may 
commence following 30 minutes of observation when the determination is 
made;
    <bullet> If pile driving is delayed or halted due to the presence 
of a marine mammal, the activity may not commence or resume until 
either the animal has voluntarily exited and been visually confirmed 
beyond the shutdown zone or 15 minutes have passed without re-detection 
of the animal (30 minutes for humpback whales);
    <bullet> For humpback whales, if the boundaries of the harassment 
zone have not been monitored continuously during a work stoppage, the 
entire harassment zone will be surveyed again to ensure that no 
humpback whales have entered the harassment zone that were not 
previously accounted for;
    <bullet> In-water activities will take place only: Between civil 
dawn and civil dusk when PSOs can effectively monitor for the presence 
of marine mammals; during conditions with a Beaufort Sea State of 4 or 
less; when the entire shutdown zone and adjacent waters are visible 
(e.g., monitoring effectiveness is not reduced due to rain, fog, snow, 
etc.). Pile driving activities may continue for up to 30 minutes after 
sunset during evening civil twilight, as necessary to secure a pile for 
safety prior to demobilization for the evening. PSO(s) will continue to 
observe shutdown and monitoring zones during this time. The length of 
the post-activity monitoring period may be reduced if darkness 
precludes visibility of the shutdown and monitoring zones;
    <bullet> Vessel operators will maintain a watch for marine mammals 
at all times while underway; stay at least 91 m (100 yards (yd)) away 
from listed marine mammals; travel at less than 5 knots (9 km/hr) when 
within 274 m (300 yd) of a whale; avoid changes in direction and speed 
when within 274 m (300 yd) of whales, unless doing so is necessary for 
maritime safety; not position vessel(s) in the path of whales, and will 
not cut in front of whales in a way or at a distance that causes the 
whales to change their direction of travel or behavior (including 
breathing/surfacing pattern); check the waters immediately adjacent to 
the vessel(s) to ensure that no whales will be injured when the 
propellers are engaged; reduce vessel speed to 10 knots or less when 
weather conditions

[[Page 7135]]

reduce visibility to 1.6 km (1 mi) or less; adhere to the Alaska 
Humpback Whale Approach Regulations when transiting to and from the 
project site (see 50 CFR 216.18, 223.214, and 224.103(b)); not allow 
lines to remain in the water, and no trash or other debris will be 
thrown overboard, thereby reducing the potential for marine mammal 
entanglement; follow established transit routes and will travel <10 
knots while in the harassment zones; the speed limit within Tongass 
Narrows is 7 knots for vessels over 23 ft in length. If a whale's 
course and speed are such that it will likely cross in front of a 
vessel that is underway, or approach within 91 m (100 yards (yd)) of 
the vessel, and if maritime conditions safely allow, the engine will be 
put in neutral and the whale will be allowed to pass beyond the vessel; 
and
    <bullet> NOAA must use soft start techniques when impact pile 
driving. Soft start requires contractors to provide an initial set of 
three strikes at reduced energy, followed by a 30-second waiting 
period, then two subsequent reduced-energy strike sets. A soft start 
must 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.

                                   Table 7--Minimum Required Shutdown Zones (Meters) by Hearing Group for Each Method
--------------------------------------------------------------------------------------------------------------------------------------------------------
                  Method                              Pile type            Low frequency  Mid- frequency  High frequency      Phocids        Otariids
--------------------------------------------------------------------------------------------------------------------------------------------------------
DTH.......................................  24-inch steel...............             130              10             160              70              10
Impact....................................  24-inch steel...............             160              10             180              90              10
Vibratory.................................  14-inch Timber..............              10              10              10              10              10
Small Pile Clipper........................  14 to 16-inch Steel.........              10              10              10              10              10
Large Pile Clipper........................  18- to 24-inch Steel........              10              10              20              10              10
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has determined that the 
mitigation measures provide the means 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 in the 
proposed action area. 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 action; 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 must be conducted by qualified, NMFS-approved PSOs, in 
accordance with the following:
    <bullet> PSOs must be independent (i.e., not construction 
personnel) and have no other assigned tasks during monitoring periods. 
At least one PSO must have prior experience performing the duties of a 
PSO during construction activity pursuant to a NMFS-issued IHA. Other 
PSOs may substitute other relevant experience, education (degree in 
biological science or related field), or training. PSOs must be 
approved by NMFS prior to beginning any activity subject to this IHA; 
and
    <bullet> PSOs must record all observations of marine mammals as 
described in the Section 5 of the IHA and the Marine Mammal Monitoring 
Plan, regardless of distance from the pile being driven. PSOs shall 
document any behavioral reactions in concert with distance from piles 
being driven or removed;
    PSOs must have the following additional qualifications:
    <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, times, and reason for implementation 
of mitigation (or why mitigation was not implemented when required); 
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;
    NOAA must establish the following monitoring locations. For all 
pile driving and DTH activities, a minimum of one PSO must be assigned 
to the active pile driving or DTH location to monitor the shutdown 
zones and as much of the Level B harassment zones as possible. For all 
pile driving and DTH activities, two additional PSOs are

[[Page 7136]]

required. The additional PSOs will start at the project site and travel 
along Tongass Narrows, counting all humpback whales present, until they 
have reached the edge of the respective harassment zone. At this point, 
the PSOs will identify suitable observation points from which to 
observe the width of Tongass Narrows for the duration of pile driving 
activities. For the largest DTH zones these are expected to be on South 
Tongass Highway near Mountain Point and North Tongass Highway just 
northwest of the intersection with Carlanna Creek. See application 
Figure 11-1 for map of PSO locations. If visibility deteriorates so 
that the entire width of Tongass Narrows at the harassment zone 
boundary is not visible, additional PSOs may be positioned so that the 
entire width is visible, or work will be halted until the entire width 
is visible to ensure that any humpback whales entering or within the 
harassment zone are detected by PSOs.

Acoustic Monitoring

    While we are not requiring acoustic monitoring or sound source 
verification studies for this project because the construction 
equipment and pile types and sizes are common ones for which we have 
significant data, the applicant has requested the possibility of 
altering shutdown and/or harassment zones based on voluntary acoustic 
monitoring, so we have added our standard term for this to the IHA: The 
harassment and/or shutdown zones may be modified with NMFS' approval 
following NMFS' acceptance of an acoustic monitoring report.

Reporting

    A draft marine mammal monitoring report will be submitted to NMFS 
within 90 days after the completion of pile driving and removal 
activities, or 60 days prior to a requested date of issuance of any 
future IHAs for projects at the same location, whichever comes first. 
The report will include an overall description of work completed, a 
narrative regarding marine mammal sightings, and 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, vibratory or DTH) and the 
total equipment duration for vibratory removal or DTH for each pile or 
hole 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; and
    <bullet> If visibility degrades to where the PSO(s) cannot view the 
entire impact or vibratory harassment zones, take of humpback whales 
will be extrapolated based on the estimated percentage of the 
monitoring zone that remains visible and the number of marine mammals 
observed.
    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 event that personnel involved in the construction activities 
discover an injured or dead marine mammal, the IHA-holder must 
immediately cease the specified activities and report the incident to 
the Office of Protected Resources (OPR) 
(<a href="/cdn-cgi/l/email-protection#277775096e7377096a48494e5348554e494075425748555354674948464609404851"><span class="__cf_email__" data-cfemail="cf9f9de1869b9fe182a0a1a6bba0bda6a1a89daabfa0bdbbbc8fa1a0aeaee1a8a0b9">[email protected]</span></a>), NMFS and to the Alaska Regional 
Stranding Coordinator as soon as feasible. If the death or injury was 
clearly caused by the specified activity, NOAA must immediately cease 
the specified activities until NMFS is able to review the circumstances 
of the incident and determine what, if any, additional measures are 
appropriate to ensure compliance with the terms of the IHA. The IHA-
holder must not resume their activities until notified by NMFS. The 
report must include the following information:
    <bullet> Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    <bullet> Species identification (if known) or description of the 
animal(s) involved;
    <bullet> Condition of the animal(s) (including carcass condition if 
the animal is dead);
    <bullet> Observed behaviors of the animal(s), if alive;
    <bullet> If available, photographs or video footage of the 
animal(s); and
    <bullet> General circumstances under which the animal was 
discovered.

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 responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), 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's implementing 
regulations (54 FR 40338; September 29,

[[Page 7137]]

1989), the impacts from other past and ongoing anthropogenic activities 
are incorporated into this analysis via their impacts on the 
environmental 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).
    Pile driving and removal and DTH activities have the potential to 
disturb or displace marine mammals. Specifically, the project 
activities may result in take, in the form of Level A and Level B 
harassment from underwater sounds generated from pile driving and 
removal and DTH. Potential takes could occur if individuals are present 
in the ensonified zone when these activities are underway.
    The takes from Level A and Level B harassment would be due to 
potential behavioral disturbance, TTS, and PTS. No serious injury or 
mortality is anticipated given the nature of the activity and measures 
designed to minimize the possibility of injury to marine mammals. The 
potential for harassment is minimized through the construction method 
and the implementation of the planned mitigation measures (see 
Mitigation section).
    The Level A harassment zones identified in Table 5 are based upon 
an animal exposed to impact pile driving multiple piles per day. 
Considering the short duration to impact drive or vibe each pile and 
breaks between pile installations (to reset equipment and move pile 
into place), this means an animal would have to remain within the area 
estimated to be ensonified above the Level A harassment threshold for 
multiple hours. This is highly unlikely given marine mammal movement 
throughout the area. If an animal was exposed to accumulated sound 
energy, the resulting PTS would likely be small (e.g., PTS onset) at 
lower frequencies where pile driving energy is concentrated, and 
unlikely to result in impacts to individual fitness, reproduction, or 
survival.
    The nature of the pile driving project precludes the likelihood of 
serious injury or mortality. For all species and stocks, take would 
occur within a limited, confined area (adjacent to the project site) of 
the stock's range. Level A and Level B harassment will be reduced to 
the level of least practicable adverse impact through use of mitigation 
measures described herein. Further the amount of take proposed to be 
authorized is extremely small when compared to stock abundance.
    Behavioral responses of marine mammals to pile driving at the 
project site, if any, are expected to be mild and temporary. Marine 
mammals within the Level B harassment zone may not show any visual cues 
they are disturbed by activities (as noted during modification to the 
Kodiak Ferry Dock) or could become alert, avoid the area, leave the 
area, or display other mild responses that are not observable such as 
changes in vocalization patterns. Given the short duration of noise-
generating activities per day, any harassment would be temporary. There 
are no other areas or times of known biological importance for any of 
the affected species.
    In addition, it is unlikely that minor noise effects in a small, 
localized area of habitat would have any effect on the stocks' ability 
to recover. In combination, we believe that these factors, as well as 
the available body of evidence from other similar activities, 
demonstrate that the potential effects of the specified activities will 
have only minor, short-term effects on individuals. The specified 
activities are not expected to impact rates of recruitment or survival 
and will therefore not result in population-level impacts.
    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 the species or stock through 
effects on annual rates of recruitment or survival:
    <bullet> No mortality is anticipated or authorized;
    <bullet> Authorized Level A harassment would be very small amounts 
and of low degree;
    <bullet> No important habitat areas have been identified within the 
project area;
    <bullet> For all species, Tongass Narrows is a very small and 
peripheral part of their range;
    <bullet> NOAA would implement mitigation measures such as soft-
starts, and shut downs; and
    <bullet> Monitoring reports from similar work in Tongass Narrows 
have documented little to no effect on individuals of the same species 
impacted by the specified activities.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the 
proposed activity will have a negligible impact on all affected marine 
mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under section 101(a)(5)(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.
    The amount of take NMFS authorizes is below one third of the 
estimated stock abundance for all species (in fact, take of individuals 
is less than 10 percent of the abundance of the affected stocks, see 
Table 6). This is likely a conservative estimate because we assume all 
takes are of different individual animals, which is likely not the 
case. Some individuals may return multiple times in a day, but PSOs 
would count them as separate takes if they cannot be individually 
identified. The Alaska stock of Dall's porpoise has no official NMFS 
abundance estimate for this area as the most recent estimate is greater 
than eight years old. Nevertheless, the most recent estimate was 83,400 
animals and it is highly unlikely this number has drastically declined. 
Therefore, the 60 authorized takes of this stock clearly represent 
small numbers of this stock. Likewise, the Southeast Alaska stock of 
harbor porpoise has no official NMFS abundance estimate as the most 
recent estimate is greater than eight years old. Nevertheless, the most 
recent estimate was 11,146 animals (Muto et al., 2021) and it is highly 
unlikely this number has drastically declined. Therefore, the 30 
authorized takes of this stock clearly represent small numbers of this 
stock. There is no current or historical estimate of the Alaska minke 
whale stock, but there are known to be over 1,000 minke whales in the 
Gulf of Alaska (Muto et al., 2018) so the 1 authorized take clearly 
represents small numbers of this stock.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
marine mammals will be taken relative to the population size of the 
affected species or stocks.

[[Page 7138]]

Unmitigable Adverse Impact Analysis and Determination

    In order to issue an IHA, NMFS must find that the specified 
activity will not have an ``unmitigable adverse impact'' on the 
subsistence uses of the affected marine mammal species or stocks by 
Alaskan Natives. NMFS has defined ``unmitigable adverse impact'' in 50 
CFR 216.103 as an impact resulting from the specified activity: (1) 
That is likely to reduce the availability of the species to a level 
insufficient for a harvest to meet subsistence needs by: (i) Causing 
the marine mammals to abandon or avoid hunting areas; (ii) Directly 
displacing subsistence users; or (iii) Placing physical barriers 
between the marine mammals and the subsistence hunters; and (2) That 
cannot be sufficiently mitigated by other measures to increase the 
availability of marine mammals to allow subsistence needs to be met.
    Alaska Native hunters in the Ketchikan vicinity do not 
traditionally harvest cetaceans (Muto et al., 2021). Harbor seals are 
the most commonly targeted marine mammal that is hunted by Alaska 
Native subsistence hunters within the Ketchikan area. In 2012 an 
estimated 595 harbor seals were taken for subsistence uses, with 22 of 
those occurring in Ketchikan (Wolfe et al., 2013). This is the most 
recent data available. The harbor seal harvest per capita in both 
communities was low, at 0.02 for Ketchikan. ADF&G subsistence data for 
Southeast Alaska shows that from 1992 through 2008, plus 2012, from 
zero to 19 Steller sea lions were taken by Alaska Native hunters per 
year with typical harvest years ranging from zero to five animals 
(Wolfe et al., 2013). In 2012, it is estimated 9 sea lions were taken 
in all of Southeast Alaska and only from Hoonah and Sitka. There are no 
known haulout locations in the project area. Both the harbor seal and 
the Steller sea lion may be temporarily displaced from the action area. 
However, neither the local population nor any individual pinnipeds are 
likely to be adversely impacted by the proposed action beyond noise-
induced harassment or slight injury. The proposed project is 
anticipated to have no long-term impact on Steller sea lion or harbor 
seal populations, or their habitat no long term impacts on the 
availability of marine mammals for subsistence uses is anticipated.
    Based on the description of the specified activity, the measures 
described to minimize adverse effects on the availability of marine 
mammals for subsistence purposes, and the proposed mitigation and 
monitoring measures, NMFS has determined that there will not be an 
unmitigable adverse impact on subsistence uses from NOAA's proposed 
activities.

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 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 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 determined 
that the issuance of the proposed IHA qualifies to be categorically 
excluded from further NEPA review.

Endangered Species Act

    Section 7(a)(2) of the 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, in this 
case with the Alaska Regional Office, whenever we propose to authorize 
take for endangered or threatened species.
    NMFS is authorizing take of Mexico DPS of humpback whales which are 
listed under the ESA. The NMFS Alaska Regional Office Protected 
Resources Division issued a Biological Opinion under section 7 of the 
ESA, on the issuance of an IHA to NOAA under section 101(a)(5)(D) of 
the MMPA by the NMFS Permits and Conservation Division. The Biological 
Opinion concluded that the proposed action is not likely to jeopardize 
the continued existence of Mexico DPS of humpback whales, and is not 
likely to destroy or adversely modify Mexico DPS of humpback whales 
critical habitat.

Authorization

    NMFS has issued an IHA to NOAA for the potential harassment of 
small numbers of nine marine mammal species incidental to the NOAA Port 
Facility Project in Ketchikan, provided the previously mentioned 
mitigation, monitoring, and reporting requirements are followed.

     Dated: February 3, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-02633 Filed 2-7-22; 8:45 am]
BILLING CODE 3510-22-P


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