Rule2023-27843
Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to the U.S. Coast Guard's Alaska Facility Maintenance and Repair Activities
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 20, 2023
Effective
March 1, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS, upon request from the United States Coast Guard (Coast Guard), hereby issues regulations to govern the unintentional taking of marine mammals incidental to maintenance and repair at facilities in Alaska, over the course of 5 years (2023-2028). These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during the described activities and specified timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking.
Full Text
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<title>Federal Register, Volume 88 Issue 243 (Wednesday, December 20, 2023)</title>
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[Federal Register Volume 88, Number 243 (Wednesday, December 20, 2023)]
[Rules and Regulations]
[Pages 87937-87959]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-27843]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 231213-0302]
RIN 0648-BK57
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to the U.S. Coast Guard's Alaska Facility Maintenance and
Repair Activities
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; notification of issuance of Letter of
Authorization.
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SUMMARY: NMFS, upon request from the United States Coast Guard (Coast
Guard), hereby issues regulations to govern the unintentional taking of
marine mammals incidental to maintenance and repair at facilities in
Alaska, over the course of 5 years (2023-2028). These regulations,
which allow for the issuance of a Letter of Authorization (LOA) for the
incidental take of marine mammals during the described activities and
specified timeframes, prescribe the permissible methods of taking and
other means of effecting the least practicable adverse impact on marine
mammal species or stocks and their habitat, as well as requirements
pertaining to the monitoring and reporting of such taking.
DATES: Effective from March 1, 2024, through February 28, 2029.
ADDRESSES: A copy of the Coast Guard's application and any supporting
documents, as well as a list of the references cited in this document,
may be obtained online at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-coast-guards-alaska-facility-maintenance-and-repair">https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-coast-guards-alaska-facility-maintenance-and-repair</a>. In case of problems accessing these documents,
please call the contact listed below.
FOR FURTHER INFORMATION CONTACT: Cara Hotchkin, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Purpose and Need for Regulatory Action
We received an application from the Coast Guard requesting 5-year
regulations and authorization to take multiple species of marine
mammals. This rule establishes a framework under the authority of the
MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of take of
marine mammals incidental to the Coast Guard's construction activities
related to maintenance and repair at facilities in Alaska.
Legal Authority for the Action
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs
the Secretary of Commerce 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 for up to 5 years if,
after notice and public comment, the agency makes certain findings and
issues regulations that set forth permissible methods of taking
pursuant to that activity and other means of effecting the ``least
practicable adverse impact'' on the affected species or stocks and
their habitat (see the discussion below in the Mitigation section), as
well as monitoring and reporting requirements. Section 101(a)(5)(A) of
the MMPA and the implementing regulations at 50 CFR part 216, subpart I
provide the legal basis for issuing this final rule containing 5-year
regulations, and for any subsequent Letters of Authorization (LOAs). As
directed by this legal authority, this final rule contains mitigation,
monitoring, and reporting requirements.
Summary of Major Provisions Within the Regulations
Following is a summary of the major provisions of this rule
regarding Coast Guard construction activities. These measures include:
<bullet> Required monitoring of the construction areas to detect
the presence of marine mammals before beginning construction
activities;
<bullet> Shutdown of construction activities under certain
circumstances to avoid injury of marine mammals; and
<bullet> Soft start for impact pile driving to allow marine mammals
the opportunity to leave the area prior to beginning impact pile
driving at full power.
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 incidental take authorization 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 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 March 15, 2021, NMFS received an application from the Coast
Guard requesting authorization for take of marine mammals incidental to
construction activities related to maintenance and repair at eight
Coast Guard facilities in Alaska. On November 24, 2021 (86 FR 67023),
we published a notice of receipt of the Coast Guard's application in
the Federal Register, requesting comments and information related to
the request for 30 days. We received no public comments. Following
additional review, we determined the application was adequate and
complete on January 19, 2022. On August 12, 2022, the Coast Guard
submitted a modification to their application (to include vibratory
driving of composite piles as part of the specified activity). This
revised application was deemed adequate and complete on August 31,
2022. On April 28, 2023, we published the proposed rule in the Federal
Register (88 FR 26432), incorporating the changes submitted by the
Coast Guard in August 2022, and requested comments and
[[Page 87938]]
information from the public. We received no public comments. The
regulations in this final rule are valid for 5 years after the initial
effective date, and allow for authorization of take of 12 species of
marine mammals by Level A and Level B harassment incidental to
construction activities related to facility maintenance and repair at 8
sites in Alaska. Neither the Coast Guard nor NMFS expect serious injury
or mortality to result from this activity.
Description of the Specified Activity
The Coast Guard plans to conduct construction necessary for
maintenance and repair of existing in-water structures at the following
eight Coast Guard station facilities in Alaska: Kodiak, Sitka,
Ketchikan, Valdez, Cordova, Juneau, Petersburg, and Seward. These
repairs will include installation and removal of steel, concrete, and
timber piles, involving use of impact and vibratory hammers and Down-
The-Hole drilling (DTH) equipment, and removal of piles by cutting,
clipping, or vibratory extraction. Maintenance activities may also
include underwater power washing. Up to 245 piles will be removed and
replaced on a 1-to-1 basis (i.e., total pile numbers at these
facilities are expected to remain the same) over the 5-year period of
effectiveness for the regulations. Hereafter (unless otherwise
specified or detailed) we use the term ``pile driving'' to refer to
both pile installation and pile removal. The use of vibratory, DTH, and
impact pile driving equipment is expected to produce underwater sound
at levels that have the potential to result in harassment of marine
mammals.
A more detailed description of the planned construction project is
provided in the proposed rule (88 FR 26432, April 28, 2023). Since that
time, no changes have been made to the planned activities. Therefore, a
detailed description is not provided here. Please refer to the proposed
rule (88 FR 26432, April 28, 2023) for the detailed description of the
specific planned activities at each facility.
Comments and Responses
The proposed rule to authorize take of marine mammals incidental to
construction activities related to maintenance and repair at eight
Coast Guard facilities in Alaska (88 FR 26432; April 28, 2023) provided
detailed descriptions of Coast Guard's activities, the marine mammal
species that may be affected by the activities, and the anticipated
effects on marine mammals, and requested public input on the Coast
Guard's request for authorization, our analyses, the proposed
authorization, and any other aspect of the proposed authorization. The
proposed rule requested that interested persons submit relevant
information, suggestions, and comments in a 30-day public comment
period. NMFS received no substantive public comments on the proposed
rule.
Changes From the Proposed Rule
Since the proposed rule was published (88 FR 26432, April 28,
2023), NMFS published the final 2022 Alaska and Pacific Stock
Assessment Reports (SAR), available at <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region</a>, which describe revised stock structures under the MMPA
for humpback whales and southeast Alaska harbor porpoise (Carretta et
al., 2023; Young et al., 2023). In the proposed rule, we explained
that, although we typically consider updated peer-reviewed data
provided in draft SARs to be the best available science, and use the
information accordingly, proposed revisions to stock structures are
excepted due to potential changes based on public comments, and it is
more appropriate to use the status quo stock structures until the new
stock structures are finalized. Therefore, upon finalization of these
revised stock structures in the final SARs, we have made appropriate
updates in this final rule. This includes updates in the description of
the potentially affected stocks (see the Description of Marine Mammals
in the Area of the Specified Activity section, including table 1), the
attribution of take numbers to stock (see the Estimated Take section),
and the analyses to ensure the necessary determinations are made for
the new stocks (see the Negligible Impact Analysis and Determination
and Small Numbers sections).
In table 1, we updated the stock information to reflect the
finalized humpback whale and harbor porpoise stock structures. For
humpback whale, the Central and Western North Pacific Stocks have been
replaced by the Hawai[revaps]i and Mexico-North Pacific stocks; for
harbor porpoise, the Southeast Alaska stock has been split into the
Northern Southeast Alaska Inland Waters, Southern Southeast Alaska
Inland Waters, and Yakutat/Southeast Alaska Offshore Waters stocks. New
stocks have been updated to include associated ESA/MMPA status, stock
abundance data, PBR, and Annual Mortality and Serious Injury data.
Updates to stock names have also been carried through in tables 9
through 16, as relevant, and stock ranges have been noted in footnotes
on table 13.
NMFS has also made a few minor corrections in this final rule. In
Table 7 of the Estimated Take section of the proposed rule, the correct
reference for the sound source level for impact installation of 24-inch
concrete piles is ``Washington State Department of Transportation
(WSDOT) (2007)'', not ``WSDOT (2020)''; the correct reference has been
included in Table 4 in this final rule. In the regulatory text of this
final rule, text relating to Protected Species Observer (PSO)
qualifications (Sec. 217.195 (b)) has been subdivided into Sec.
217.195(b)(1) to Sec. 217.195(b)(5) for clarity. Additionally, the
following text was added to Sec. 217.195(e)(1)(ii)(B) ``When possible,
the number of strikes for each pile/hole (impact driving, DTH); and,
for DTH, the duration of operation for both impulsive and non-impulsive
components as well as the strike rate must be included'' for
consistency with current guidelines on hydroacoustic data collection.
This final rule also corrects addition errors in two tables in the
proposed rule: table 15 (Level B Harassment Take in Each of the Five
Years and in Total) and table 19 (Proposed Level A and Level B
Harassment Take and Percent of Stock for the Highest Annual Estimated
Takes of the Project). In table 15, the total estimated take for minke
whale should have been 26, rather than 25. In table 19 (which is Table
16 in this final rule), the total number of takes from the ``harbor
porpoise--Gulf of Alaska'' stock should have summed to 200 rather than
245.
This final rule also includes corrections to several typographical
errors in the proposed rule at table 16 (Proposed Level B Harassment
Take for Each Facility), which is table 13 in this final rule. Footnote
indicators from the application were accidentally included in the take
numbers for killer whales and Pacific white-sided dolphins at Cordova
and Seward, and for Northern fur seals at Seward. Also, in table 16 of
the proposed rule, the values for killer whale were incorrectly
ordered. While the order of the column headers was ``Kodiak; Sitka;
Ketchikan; Seward; Valdez; Cordova; Juneau; Petersburg'', the order of
the take estimates presented for killer whales was ``Kodiak; Sitka;
Ketchikan; Valdez; Cordova; Juneau; Petersburg; Seward'', resulting in
errors for Seward, Valdez, Cordova, Juneau, and Petersburg. These
errors impacted the site-specific take calculations and total estimates
of take by Level B harassment for these species. The correct take
estimates have been carried through and are shown in tables 12, 13,
[[Page 87939]]
and 16 of this final rule. All corrections to proposed rule Table 16
resulted in a lower amount of take by Level B harassment than that
shown in the proposed rule. Total take by Level B Harassment over the
course of the 5-year authorization changed as follows:
<bullet> Killer whales: proposed: 797; final: 543;
<bullet> Pacific white-sided dolphin: proposed: 1,379; final:
1,105; and
<bullet> Northern fur seal: proposed: 181; final: 71.
Description of Marine Mammals in the Area of the Specified Activity
We have reviewed the Coast Guard's LOA application, including the
species descriptions that summarize available information regarding
status and trends, distribution and habitat preferences, behavior and
life history, and auditory capabilities of the potentially affected
species, for accuracy and completeness and refer the reader to Sections
3 and 4 of the application, instead of reprinting all of the
information here. Additional information regarding population trends
and threats may be found in NMFS' SARs (<a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and
more general information about these species (e.g., physical and
behavioral descriptions) may be found on NMFS' website
(<a href="http://www.fisheries.noaa.gov/find-species">www.fisheries.noaa.gov/find-species</a>).
Table 1 lists all species or stocks for which take is expected and
authorized for this action and summarizes information related to the
population or stock, including regulatory status under the MMPA and the
Endangered Species Act (ESA) and potential biological removal (PBR),
where known. PBR, 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, is considered in concert with known sources of
ongoing anthropogenic mortality (as described in NMFS' 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' 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 the specified geographical
regions are assessed in either NMFS' U.S. Alaska SARs or U.S. Pacific
SARs. All values presented in table 1 are the most recent available at
the time of writing, including in the final 2022 SARs, and are
available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-species-stock">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-species-stock</a>.
Table 1--Species Likely Impacted by the Specified Activities
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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)
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Family Eschrichtiidae:
Gray whale...................... Eschrichtius robustus.. Eastern North Pacific.. -, -, N 26,960 (0.05, 25,849, 801 131
2016).
Family Balaenopteridae (rorquals):
Humpback whale.................. Megaptera novaeangliae. Hawai[revaps]i......... -, -, N 11,278 (0.56, 7,265, 127 27.09
Mexico--North Pacific.. T, D, Y 2020). UND 0.57
918 (0.217, UNK, 2006)
Fin whale....................... Balaenoptera physalus.. Northeast Pacific...... E, D, Y UND (UND, UND, 2013).. UND 0.6
Minke whale..................... Balaenoptera Alaska................. -, -, N N/A (N/A, N/A, N/A) UND 0
acutorostrata. \4\.
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Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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Family Delphinidae:
Killer whale.................... Orcinus orca........... Eastern North Pacific -, -, N 1,920 (N/A, 1,920, 19 1.3
Alaska Resident. 2009).
Eastern North Pacific -, -, N 587 (N/A, 587, 2012).. 5.9 0.8
Gulf of Alaska,
Aleutian Islands,
Bearing Sea Transient.
Eastern North Pacific -, -, N 302 (N/A, 302, 2018).. 2.2 0.2
Northern Resident.
AT1 Transient.......... -, D, Y 7 (N/A, 7, 2019)...... 0.1 0
West Coast Transient... -, -, N 349 (N/A, 349, 2018).. 3.5 0.4
Pacific white-sided dolphin..... Lagenorhynchus North Pacific.......... -, -, N 26,880 (UND, UND, UND 0
obliquidens. 1990).
Family Phocoenidae (porpoises):
Dall's porpoise \5\............. Phocoenoides dalli..... Alaska................. -, -, N UND (UND, UND, 2015).. UND 37
Harbor porpoise................. Phocoena phocoena...... Northern Southeast -, -, Y 1,619 (0.26, 1,250, 13 5.6
Alaska Inland Waters. 2019).
Southern Southeast -, -, Y 890 (0.37, 610, 2019). 6.1 7.4
Alaska Inland Waters.
Yakutat/Southeast -, -, N UND (UND, UND, N/A)... UND 22.2
Alaska Offshore Waters.
Gulf of Alaska......... -, -, Y 31,046 (0.21, N/A, UND 72
1998).
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Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and
sea lions):
California sea lion............. Zalophus californianus. U.S.................... -, -, N 257,606 (N/A, 233,515, 14,011 >321
2014).
Northern fur seal............... Callorhinus ursinus.... Eastern Pacific........ -, D, Y 626,618 (0.2, 530,376, 11,403 373
2019).
[[Page 87940]]
Steller sea lion................ Eumetopias jubatus..... Eastern................ -,-, N 43,201 (N/A, 43,201, 2,592 112
Western................ E, D, Y 2017). 318 254
52,932 (N/A, 52,932,
2019).
Family Phocidae (earless seals):
Harbor seal..................... Phoca vitulina......... Prince William Sound... -, -, N 44,756 (N/A, 41,776, 1,253 413
2015).
Lynn Canal/Stephens -, -, N 13,388 (N/A, 11,867, 214 50
Passage. 2016).
Sitka/Chatham Straight. -, -, N 13,289 (N/A, 11,883, 356 77
2015).
Clarence Strait........ -, -, N 27,659 (N/A, 24,854, 746 40
2015).
South Kodiak........... -, -, N 26,448 (N/A, 22,351, 939 127
2017).
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\1\ 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: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments/">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments/</a> assessments/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable (N/A). UND
indicates data unavailable.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury (M/SI) from all sources combined (e.g.,
commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ No population estimates have been made for the number of minke whales in the entire North Pacific. Some information is available on the numbers of
minke whales in some areas of Alaska, but in the 2009, 2013, and 2015 offshore surveys, so few minke whales were seen during the surveys that a
population estimate for the species in this area could not be determined (Rone et al., 2017). Therefore, this information is N/A (not available).
\5\ Previous abundance estimates covering the entire stock's range are no longer considered reliable and the current estimates presented in the SARs and
reported here only cover a portion of the stock's range. Therefore, the calculated Nmin and PBR is based on the 2015 survey of only a small portion of
the stock's range. PBR is considered to be biased low since it is based on the whole stock whereas the estimate of mortality and serious injury is for
the entire stock's range.
A detailed description of the species likely to be affected by the
Coast Guard's programmatic maintenance 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 proposed rule (88 FR
26432, April 28, 2023). With the exception of humpback whale and harbor
porpoise, NMFS is not aware of any changes in the status of these
species and stocks; therefore, detailed descriptions are not provided
here. Please refer to the proposed rule (88 FR 26432, April 28, 2023)
for these descriptions. Please also refer to NMFS' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>) for generalized species accounts.
The 2022 Alaska and Pacific SARs described a revised stock
structure for humpback whales which modifies the previous stocks
designated under the MMPA to align more closely with the ESA-designated
DPSs (Caretta et al., 2023; Young et al., 2023). Specifically, the
three previous North Pacific humpback whale stocks (Central and Western
North Pacific stocks and a CA/OR/WA stock) were replaced by five
stocks, largely corresponding with the ESA-designated DPSs. These
include Western North Pacific and Hawai'i stocks and a Central America/
Southern Mexico-CA/OR/WA stock (which corresponds with the Central
America DPS). The remaining two stocks, corresponding with the Mexico
DPS, are the Mainland Mexico-CA/OR/WA and Mexico-North Pacific stocks
(Caretta et al., 2023; Young et al., 2023). The former stock is
expected to occur along the west coast from California to southern
British Columbia, while the latter stock may occur across the Pacific,
from northern British Columbia through the Gulf of Alaska and Aleutian
Islands/Bering Sea region to Russia.
In the proposed rule, NMFS stated that the Central North Pacific
stock of humpback whale was likely to be impacted by USCG's activities.
Given the final revised stock structure, NMFS has reanalyzed the
potential for take of each stock of humpback whale and determined that
the Hawai'i stock and the Mexico-North Pacific stock are likely to be
impacted by USCG's activities.
The 2022 Alaska SARs described a revised stock structure for
southeast Alaska harbor porpoise, which were split from one stock into
three: the Northern Southeast Alaska Inland Waters, Southern Southeast
Alaska Inland Waters, and Yakutat/Southeast Alaska Offshore Waters
harbor porpoise stocks (Young et al., 2023). This update better aligns
harbor porpoise stock structure with genetics, trends in abundance, and
information regarding discontinuous distribution trends (Young et al.,
2023). Harbor porpoises found near Sitka are assumed to be members of
the Yakutat/Southeast Alaska Offshore Waters stock. Harbor porpoises
found near Juneau are assumed to be members of the Northern Southeast
Alaska Inland Waters stock, while those found near Ketchikan are
assumed to be members of the Southern Southeast Alaska Inland Waters
stock, based on the geographical range of the stocks. The dividing line
between the Northern and Southern Southeast Alaska Inland Waters Stocks
is very close to Petersburg; therefore harbor porpoises at this
location are assumed to be from both stocks in equal proportions.
Please refer to the proposed rule (88 FR 26432, April 28, 2023) for
species descriptions. Please also refer to the NMFS' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>) for generalized species accounts,
and to the SARs (<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) for more information about
the changes to humpback whale and harbor porpoise stock structures.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available
[[Page 87941]]
behavioral response data, audiograms derived using auditory evoked
potential techniques, anatomical modeling, and other data. Note that no
direct measurements of hearing ability have been successfully completed
for mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS
(2016) described generalized hearing ranges for these marine mammal
hearing groups. Generalized hearing ranges were chosen based on the
approximately 65-decibel (dB) threshold from the normalized composite
audiograms, with an exception for lower limits for low-frequency
cetaceans where the result was deemed to be biologically implausible
and the lower bound from Southall et al. (2007) retained. Marine mammal
hearing groups and their associated hearing ranges are provided in
table 2.
Table 2--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans 150 Hz to 160 kHz.
(dolphins, toothed whales, beaked
whales, bottlenose whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
cephalorhynchid, Lagenorhynchus
cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) 50 Hz to 86 kHz.
(true seals).
Otariid pinnipeds (OW) (underwater) 60 Hz to 39 kHz.
(sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al., 2007) and PW pinniped (approximation).
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt,
2013). This division between phocid and otariid pinnipeds is now
reflected in the updated hearing groups proposed in Southall et al.
(2019).
For more detail concerning these groups and associated generalized
hearing ranges, please see the Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (NMFS, 2018;
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>) for a review of available
information.
Potential Effects of the Specified Activity on Marine Mammals and Their
Habitat
This section includes a summary and discussion of the ways that
components of the specified activity may impact marine mammals and
their habitat. The Estimated Take section later in this document
includes a quantitative analysis of the number of individuals that are
expected to be taken by this activity. The Negligible Impact Analysis
and Determination section considers the content of this section, the
Estimated Take section, and the Mitigation section, to draw conclusions
regarding the likely impacts of these activities on the reproductive
success or survivorship of individuals and how those impacts on
individuals are likely to impact marine mammal species or stocks.
The effects of underwater noise from Coast Guard's construction
activities have the potential to result in behavioral harassment of
marine mammals in the vicinity of the survey area. The proposed rule
(88 FR 26432, April 28, 2023) included a discussion of the effects of
anthropogenic noise on marine mammals and the potential effects of
underwater noise from pile installation and extraction on marine
mammals and their habitat. That information and analysis is not
repeated here; please refer to the proposed rule (88 FR 26432, April
28, 2023).
Estimated Take
This section provides an estimate of the number of incidental takes
for authorization, 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).
Authorized takes would be by Level A or Level B harassment only, in
the form of disruption of behavioral patterns for individual marine
mammals resulting from exposure to the acoustic sources. Based on the
nature of the activity, no serious injury or 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 NMFS believes the best available science
indicates marine mammals will be behaviorally harassed or incur some
degree of permanent hearing impairment; (2) the area or volume of water
that will be ensonified above these levels in a day; (3) the density or
occurrence of marine mammals within these ensonified areas; and, (4)
and 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). Below, we describe the
factors considered here in more detail and present the 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 permanent threshold shift (PTS) of some
degree (equated to Level A harassment).
Level B Harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also
[[Page 87942]]
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 referenced to 1
micropascal (re 1 [mu]Pa) root mean square (rms) for continuous (e.g.,
vibratory pile-driving, DTH) and above 160 dB re 1 [mu]Pa (rms) for
non-explosive impulsive, intermittent (e.g., impact driving, DTH)
sources.
The Coast Guard's planned activity includes the use of continuous
(vibratory, DTH) and impulsive (impact pile driving and DTH) sources,
and therefore the 120 and 160 dB re 1 [mu]Pa (rms) thresholds,
respectively, 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). The Coast Guard's planned activity
includes the use of impulsive (impact pile driving and DTH) and non-
impulsive (vibratory, DTH) sources.
These thresholds are provided in the table below. The references,
analysis, and methodology used in the development of the thresholds are
described in NMFS 2018 Technical Guidance, which may be accessed at
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.
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 [mu]Pa, and cumulative sound exposure level (LE) has
a reference value of 1[mu]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 the 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 estimating 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 project. Marine
mammals are expected to be affected via sound generated by the primary
components of the project (i.e., impact pile driving, vibratory pile
driving, vibratory pile removal, and DTH).
The actual durations of each installation method vary depending on
the type and size of the pile. In order to calculate distances to the
Level A harassment and Level B harassment sound thresholds for piles of
various sizes and equipment being used in this project, NMFS used
acoustic monitoring data from other locations to develop source levels
(table 4). Note that piles and holes of differing sizes have different
sound source levels (SSL). For simplicity and to be precautionary we
analyze the largest pile diameter of each type (e.g., 24-inch (0.61 m)
diameter) even though it is possible at some locations in some
situations smaller pile diameters may be used or be removed.
Table 4--Sound Source Levels
----------------------------------------------------------------------------------------------------------------
Sound source level at 10
Method and pile type meters (dB) Literature source
----------------------------------------------------------------------------------------------------------------
Timber Vibratory....................... 152 RMS................... Greenbusch Group 2018.
24-inch Steel Pipe Vibratory........... 162 RMS................... Laughlin 2010.
Timber Impact.......................... 170 RMS, 160 SEL, 180 Pk.. CALTRANS 2015.
Composite impact....................... 153 RMS, 145 SEL.......... CALTRANS 2020.
24-inch Steel Pipe Impact.............. 190 RMS, 177 SEL, 203 Pk.. CALTRANS 2015.
24-inch Concrete Impact................ 170 RMS, 159 SEL, 184 Pk.. WSDOT 2007.
DTH Non-impulsive component............ 167 RMS................... Heyvaert & Reyff 2021.
[[Page 87943]]
24-inch DTH Impulsive component........ 159 SEL, 184 dB Pk........ Heyvaert & Reyff 2021.
----------------------------------------------------------------------------------------------------------------
Note: It is assumed that noise levels during pile installation and removal are similar. SEL = single strike
sound exposure level; Pk = peak sound 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 x Log<INF>10</INF> (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 the Coast Guard's planned activity.
Using the practical spreading model, the Coast Guard determined
underwater noise would fall below the behavioral effects thresholds of
120 dB rms or 160 dB rms for marine mammals at a maximum radial
distances from 46 m for impact driving of timber or concrete piles to
13,594 m for DTH (table 5). These distances determine the maximum Level
B harassment zones for the project. It should be noted that, based on
the geography of many of the sites, sound will not reach the full
distance of the Level B harassment isopleth. Generally, due to
interaction with land, only a portion of the possible area is
ensonified.
Table 5--Calculated Distances to Level B Harassment Isopleths
------------------------------------------------------------------------
Level B isopleth
Method and pile type (m)
------------------------------------------------------------------------
Timber Vibratory.................................... 1,359
24-inch Steel Pipe Vibratory........................ 6,310
Timber Impact....................................... 46
Composite Impact.................................... 3
24-inch Steel Pipe Impact........................... 1,000
24-inch Concrete Impact............................. 46
DTH................................................. 13,594
------------------------------------------------------------------------
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 three dimensional 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 DTH, 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.
Inputs used in the User Spreadsheet (table 6), and the resulting
isopleths are reported below (table 7). We analyzed scenarios with up
to five piles per day to account for maximum possible production rates.
Level A harassment thresholds for impulsive sound sources (impact pile
driving and DTH) are defined for both the cumulative sound exposure
level (SEL<INF>cum</INF>) and Peak sound pressure level (SPL), with the
threshold that results in the largest modeled isopleth for each marine
mammal hearing group used to establish the Level A harassment isopleth.
In this analysis, Level A harassment isopleths based on
SEL<INF>cum</INF> were always larger than those based on Peak SPL.
Table 6--Inputs of Pile Driving and DTH Activity Used in User Spreadsheet
----------------------------------------------------------------------------------------------------------------
Duration
Weighting (minutes) or
Method and pile type factor strikes per Piles per day
adjustment pile
----------------------------------------------------------------------------------------------------------------
Timber Vibratory................................................ 2.5 50 5
24-inch Steel Pipe Vibratory.................................... 2.5 10 5
[[Page 87944]]
Timber Impact................................................... 2 100 5
Composite Impact................................................ 2 120 5
24-inch Steel Pipe Impact....................................... 2 400 1
24-inch Concrete Impact......................................... 2 184 5
24-inch DTH..................................................... 2 60 2
----------------------------------------------------------------------------------------------------------------
Note: Data for all equipment types were for transmission loss of 15*log(r) and distance of source level
measurements was 10 meters.
The above input scenarios lead to a Level A harassment isopleth of
0 to 517.1 m, depending on the marine mammal hearing group and scenario
(table 7).
Table 7--Calculated Distances to Level A Harassment Isopleths (m) During Pile Installation and Removal for Each
Hearing Group
----------------------------------------------------------------------------------------------------------------
Method and pile type Low frequency Mid frequency High frequency Phocid Otariid
----------------------------------------------------------------------------------------------------------------
Timber Vibratory...................... 1.5 0.1 2.2 0.9 0.1
24-inch Steel Pipe Vibratory.......... 7.1 0.6 10.4 4.3 0.3
Timber Impact......................... 18.4 0.7 21.9 9.9 0.7
Composite Impact...................... 2.1 0.1 2.5 1.1 0.1
24-inch Steel Pipe Impact............. 215.8 7.7 257.1 115.5 8.4
24-inch Concrete Impact............... 27.7 1 33.0 14.8 1.1
24-inch DTH........................... 434.1 15.4 517.1 232.2 16.9
----------------------------------------------------------------------------------------------------------------
Note: a minimum 20-m shutdown zone, as proposed by the Coast Guard, will be implemented for all species and
activity types to prevent direct injury of marine mammals.
Marine Mammal Occurrence and Take Calculation and Estimation
In this section we provide the information about the presence,
density, or group dynamics of marine mammals that will inform the take
calculations. Here we describe how the information provided above is
brought together to produce a quantitative take estimate.
Available information regarding marine mammal occurrence and
abundance in the vicinity of the eight facilities includes monitoring
data from the NMFS Alaska Regional Office, prior incidental take
authorizations, and ESA consultations on additional projects (table 8).
When local density information is not available, data aggregated in the
Navy's Marine Mammal Species Density Database (U.S. Navy, 2019, 2020)
for the Gulf of Alaska or Northwest Testing and Training areas (table
9) or nearby proxies from the monitoring data are used; whichever gives
the most precautionary take estimate was chosen.
[[Page 87945]]
[GRAPHIC] [TIFF OMITTED] TR20DE23.003
Table 9--Marine Mammal Densities From Navy Data
----------------------------------------------------------------------------------------------------------------
Gulf of Alaska/ Prince
Southeast Alaska William Sound
Stock facilities species facilities species
density (#/km\2\) density (#/km\2\) 3 4 5
1 2 3
----------------------------------------------------------------------------------------------------------------
Gray whale......................................................... 0.016 0.048
Humpback whale Hawai[revaps]i \6\.................................. 0.002 0.093
Humpback Whale Mexico-North Pacific 6 7............................ N/A 0.093
Fin whale.......................................................... 0.0001 0.068
Minke whale........................................................ 0.001 0.006
Killer whale (General)............................................. N/A 0.005
Killer whale Resident.............................................. 0.035 N/A
Killer whale Transient............................................. 0.006 N/A
Pacific white-sided dolphin........................................ 0.085 0.020
Dall's porpoise.................................................... 0.121 0.218
Harbor porpoise \6\................................................ 0.010 0.455
California sea lion \8\............................................ 0.025 0
[[Page 87946]]
Northern fur seal.................................................. 0.276 0.090
Steller sea lion................................................... 0.316 0.068
Harbor seal........................................................ 1.727 0.169
----------------------------------------------------------------------------------------------------------------
\1\ Facilities including Ketchikan, Sitka, Juneau, and Petersburg.
\2\ Southeast Alaska density values generally from Western Behm Canal values reported in U.S. Navy (2020).
\3\ Where species density values reported in the U.S. Navy (2020) and U.S. Navy (2021) vary by time of year, the
greatest value is presented here as a conservative estimate.
\4\ Facilities including Kodiak, Seward, Valdez, and Cordova.
\5\ Gulf of Alaska/Prince William Sound species density values generally from inshore or within the 500-1000 m
isobath values reported in U.S. Navy (2021).
\6\ New stock designations for humpback whales and harbor porpoise were finalized in July 2023 (2022 SARs). The
density values listed correspond to the stock alignments in the 2021 and previous SARs.
\7\ The range for the Western North Pacific stock of humpback whales from the 2021 and previous SARs did not
extend to Southeast Alaska.
\8\ U.S. Navy 2020 density values for California sea lion do not include Western Behm Canal and the value used
here is from the San Juan Islands, the next closest zone to the project area where a density value is
available.
The data on abundance and occurrence from prior projects is derived
from the following projects: (1) Kodiak--Protected Species Observer
(PSO) monitoring reports from dock repair projects in 2018 and 2020
(NMFS Alaska Region); (2) Sitka--Data are from the Old Sitka Dock
project (86 FR 22392, April 28, 2021); (3) Ketchikan--Data are from the
Tongass Narrows project (85 FR 673, January 7, 2020) and other projects
in preparation in the area; (4) Valdez--Data are from monitoring for an
oil spill response in late April and early May 2020 (NMFS Alaska
Region); (5) Juneau--Data are from the Erickson Dock project (84 FR
65360, November 27, 2019) and the Juneau Waterfront Improvement Project
(85 FR 18562, April 2, 2020); and, (6) Seward--An incidental harassment
authorization application for the Seward Passenger Terminal project
recently received by NMFS included information resulting from
consultation with the Alaska SeaLife Center, the Kenai Fjords National
Park Service, local whale watching companies, and scientific literature
to estimate the occurrence of marine mammals in Seward.
To quantitatively assess exposure of marine mammals to noise from
pile driving and drilling activities when density estimates are most
appropriate, we used the density estimate and the annual anticipated
number of work days for each activity at each facility to determine the
number of animals potentially harassed on any one day of activity. The
calculation is:
Exposure estimate = density x harassment area x maximum days of
activity
For example, exposure estimates at the Ketchikan site for gray
whales were calculated by first finding the product of the SE Alaska
species density (0.0155 animals/km\2\), the ensonified area for the
activity (e.g., 1.45 km\2\ for vibratory pile driving of timber piles),
for the anticipated number of days for that activity each year (10
days/year). After finding the product for each activity for each year,
the values were summed to find the total number of takes for that
species across all 5 years. This method was used for all species for
which local occurrence data were not available.
When occurrence data from prior projects are the most appropriate
data for exposure estimation, we used the occurrence estimate (number/
unit of time) and the maximum work days (converted to the appropriate
unit of time as needed) per year at each facility to determine the
number of animals potentially exposed to an activity. The calculation
is:
Exposure estimate = occurrence/time x time of activity
and these values are then summed across activity/pile types.
When exposure estimates from density data are used for sites with
no local occurrence data and the exposure estimate is less than a
typical group size, we increase the estimated take based on that group
size to account for the possibility a single group entering the project
area would exceed authorized take. Table 10 shows the source of data
used in exposure estimates.
The size of the Level B harassment zones for each facility and
activity are in table 11. Level A harassment take is only authorized
for the activities creating the largest Level A harassment zones: DTH
and impact driving of steel pipe piles (see Figures 6-2 through Figure
6-9 in the Coast Guard's application), and for species that would be
difficult for observers to detect within large, unconfined zones: high
frequency cetaceans and phocid pinnipeds. The topography of sites and
facilities in Seward, Juneau, Sitka, and Petersburg are restricted such
that noise would be confined to a small area or basin, and PSOs would
be able to observe any marine mammals approaching the activity are and
Level A shutdown zone with enough warning that work could be stopped
before a take by Level A harassment would occur. The facilities at the
remaining four sites (Kodiak, Ketchikan, Valdez, and Cordova) are less
confined, and PSOs may be unable to observe cryptic species at the
calculated isopleths. Therefore, we have conservatively authorized
small numbers of take by Level A harassment for high frequency
cetaceans and phocid pinnipeds at these sites.
[[Page 87947]]
[GRAPHIC] [TIFF OMITTED] TR20DE23.004
[[Page 87948]]
Table 11--Level B Harassment Areas at Each Facility (km\2\) for Each Method and/or Pile Type
----------------------------------------------------------------------------------------------------------------
Timber Steel Timber Composite Steel
Facility vibratory vibratory impact \1\ impact impact DTH
----------------------------------------------------------------------------------------------------------------
Kodiak...................................... 1.3 4.51 0.006 0 1.03 4.51
Sitka....................................... 0.87 5.67 0.007 0 0.56 ........
Ketchikan................................... 1.45 7.29 0.004 0 1.06 10.1
Valdez...................................... 2.62 40.21 0.007 0 1.43 ........
Cordova..................................... .......... 23.42 ........ ............ 1.57 ........
Juneau...................................... 1.62 NA 0.003 0 NA ........
Petersburg.................................. 1.63 2.89 0.006 0 1.33 ........
Seward...................................... .......... 0.24 ........ ............ 0.24 ........
----------------------------------------------------------------------------------------------------------------
\1\ Composite Level B harassment zone (3 m) is completely encompassed by the 20 m shutdown zone proposed by
Coast Guard.
The calculated Level B harassment takes using the above data for
each year are in table 12 and for each facility over the course of the
project are in table 13. See tables 6-14 through 6-21 in the
application and the supplemental memo (composite piles) for detailed
calculations of estimated take for each pile type and activity at each
facility. The calculated Level A harassment takes using the above data
for each year are in table 14 and for each facility over the course of
the five years of the rule are in table 15.
Table 16 summarizes Level A and Level B harassment take authorized
for the project as well as the percentage of each stock expected to be
taken in the year with the maximum annual takes over the course of the
project.
Table 12--Level B Harassment Take in Each of the Five Years and in Total
----------------------------------------------------------------------------------------------------------------
Stock Year 1 Year 2 Year 3 Year 4 Year 5 Total
----------------------------------------------------------------------------------------------------------------
Gray whale.............................................. 8 8 8 8 8 40
Humpback whale *........................................ 160 174 164 160 160 818
Fin whale............................................... 13 23 13 13 13 75
Minke whale............................................. 5 6 5 5 5 \a\ 26
Killer whale *.......................................... 103 b d 127 b c 107 103 103 b c d 543
Pacific white-sided dolphin............................. 215 \b\ 233 \c\ 227 215 215 c d 1,105
Dall's porpoise......................................... 114 147 115 114 114 604
Harbor porpoise Northern Southeast Alaska Inland Waters. 11 11 11 11 11 55
Harbor Porpoise Southern Southeast Alaska Inland Waters. 11 11 11 11 11 55
Harbor porpoise Yakutat/Southeast Alaska Offshore Waters 50 50 50 50 50 250
Harbor porpoise Gulf of Alaska.......................... 47 115 48 47 47 304
California sea lion..................................... 10 10 10 10 10 50
Northern fur seal....................................... 9 23 \d\ 21 9 9 \d\ 71
Steller sea lion Eastern................................ 425 425 425 425 425 2,125
Steller sea lion Western................................ 24 34 32 24 24 138
Harbor seal Prince William Sound........................ 148 442 344 148 148 1,230
Harbor seal Lynn Canal/Stephens Passage................. 860 860 860 860 860 4,300
Harbor seal Sitka/Chatham Straight...................... 230 230 230 230 230 1,150
Harbor seal Clarence Strait............................. 412 412 412 412 412 2,060
Harbor seal South Kodiak................................ 17 17 17 17 17 85
----------------------------------------------------------------------------------------------------------------
* Stocks of killer whales and humpback whales cannot generally be identified in the field so total take is
listed at species level only.
\a\ Corrected addition error from the proposed rule.
\b\ Total number has changed from the proposed rule due to corrections of typographical errors in the proposed
rule.
\c\ Typographical error in take levels at Cordova corrected from proposed rule.
\d\ Typographical error in take levels at Seward corrected from proposed rule.
[[Page 87949]]
[GRAPHIC] [TIFF OMITTED] TR20DE23.005
[[Page 87950]]
[GRAPHIC] [TIFF OMITTED] TR20DE23.006
Table 14--Estimated Level A Harassment Take in Each Year and in Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species and stock Year 1 Year 2 Year 3 Year 4 Year 5 Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dall's porpoise Alaska.................................. 86 98 86 86 86 442
Harbor porpoise Southern Southeast Alaska Inland Waters. 20 20 20 20 20 100
Harbor porpoise Gulf of Alaska.......................... 55 85 55 55 55 305
Harbor seal South Kodiak................................ 20 20 20 20 20 100
Harbor seal Clarence Strait............................. 20 20 20 20 20 100
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 87951]]
[GRAPHIC] [TIFF OMITTED] TR20DE23.007
Table 16--Estimated Level A and Level B Harassment Take and Percent of
Stock for the Maximum Annual Estimated Takes of the Project
------------------------------------------------------------------------
Percent
Species and stock Level A Level B Total of stock
------------------------------------------------------------------------
Gray whale Eastern North 0 8 8 0.03
Pacific....................
Humpback whale 0 174 174 \a\ 1.48
Hawai[revaps]i.............
Humpback whale Mexico-North \a\ 0.76
Pacific....................
Fin whale Northeast Pacific. 0 23 23 N/A
Minke whale Alaska.......... 0 6 6 N/A
Killer whale Alaska Resident 0 \c\ 127 127 \a\ 4.55
Killer whale Gulf of Alaska, \a\ 3.85
Aleutian Islands, Bearing
Sea Transient..............
Killer whale Northern \a\ 3.23
Resident...................
Killer whale AT1 Transient \a\ \b\ 0
\b\........................
Killer whale West Coast \a\ 3.23
Transient..................
Pacific white-sided dolphin 0 \c\ 233 233 0.87
North Pacific..............
Dall's porpoise Alaska...... 98 147 245 N/A
Harbor porpoise Northern 0 11 11 0.68
Southeast Alaska Inland
Waters.....................
Harbor porpoise Southern 20 11 31 3.48
Southeast Alaska Inland
Waters.....................
Harbor porpoise Yakutat/ 0 50 50 N/A
Southeast Alaska Offshore
Waters.....................
Harbor porpoise Gulf of 85 115 \c\ 200 0.64
Alaska.....................
California sea lion U.S..... 0 10 10 0.00
Northern fur seal Eastern 0 \c\ 23 23 0.00
Pacific....................
Steller sea lion Eastern.... 0 425 425 0.98
Steller sea lion Western.... 0 34 34 0.06
Harbor seal Prince William 0 442 442 1.06
Sound......................
Harbor seal Lynn Canal/ 0 860 860 7.25
Stephens Passage...........
Harbor seal Sitka/Chatham 0 230 230 1.94
Straight...................
Harbor seal Clarence Strait. 20 412 432 1.74
Harbor seal South Kodiak.... 20 17 37 0.17
------------------------------------------------------------------------
\a\ Percent of stock impacted for humpback and killer whales was
estimated assuming each stock is taken in proportion to its population
size at any given facility site from the total take (e.g., for killer
whales at Kodiak, the Alaska Resident and Gulf of Alaska stocks are
the only stocks present. Of these, the Alaska Resident stock
represents approximately 80 percent of the available animals, and GOA
represents approximately 20 percent, giving 4 total Alaska Resident
killer whale takes over the 5 years, and 1 GOA killer whale take. This
division was replicated for each site for all present stocks. Takes
were then calculated for each site based on the proportional
representation of available stocks. Total takes for each stock are
shown as a percentage of the stock size.)
\b\ AT1 Transient killer whales have the potential to be present in the
Seward, Valdez, and Cordova, however we do not expect any of the seven
individuals to approach the project sites, therefore no take is
expected to occur for this stock and none is authorized.
\c\ Corrected typographical error from the proposed rule.
Mitigation
Under Section 101(a)(5)(A) of the MMPA, NMFS must set forth the
permissible methods of taking pursuant to such activity, and other
means of effecting the least practicable adverse impact on such species
or stock and its habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance, and on the
availability of such species or stock for taking for certain
subsistence uses (``least practicable adverse impact''). NMFS does not
have a regulatory definition for ``least practicable adverse impact.''
NMFS regulations require applicants for incidental take authorizations
to include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, 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, as
well as
[[Page 87952]]
subsistence uses. This considers the nature of the potential adverse
impact being mitigated (likelihood, scope, range). It further considers
the likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), and the likelihood of effective implementation (probability
implemented as planned); and
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost and impact on
operations.
The mitigation strategies described below largely follow those
required and successfully implemented under previous incidental take
authorizations issued in association with similar construction
activities. Measurements from similar pile driving events were coupled
with practical spreading loss and other relevant information to
estimate harassment zones (see Estimated Take); these zones were used
to develop mitigation measures for DTH and pile driving activities at
the eight facilities. Background discussion related to underwater sound
concepts and terminology is provided in the section on Description of
Sound Sources, in the proposed rule (88 FR 26432, April 28, 2023).
The following mitigation measures will be implemented:
<bullet> Avoid direct physical interaction with marine mammals
during construction activity. If a marine mammal comes within 20 m of
such activity, operations must cease and vessels must reduce speed to
the minimum level required to maintain steerage and safe working
conditions. The Coast Guard has elected to establish a minimum shutdown
zone size of 20 m, which is larger than NMFS' typical requirement of a
minimum 10 m shutdown zone;
<bullet> Conduct training between construction supervisors and
crews and the marine mammal monitoring team and relevant Coast Guard
staff prior to the start of all DTH drilling, pile driving, cutting or
power washing activity and when new personnel join the work, so that
responsibilities, communication procedures, monitoring protocols, and
operational procedures are clearly understood;
<bullet> DTH and 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;
<bullet> The Coast Guard will establish and implement a minimum
shutdown zone of 20 m during all DTH, pile driving and removal
activity, as well as the larger zones indicated in table 17. 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. The Coast Guard has elected to establish a minimum
shutdown zone size of 20 m, which is larger than NMFS' typical
requirement of a minimum 10 m shutdown zone;
<bullet> Employ PSOs and establish monitoring locations as
described in the application, any issued LOA and the Marine Mammal
Monitoring Plan. The Coast Guard must monitor the project area to the
maximum extent possible based on the required number of PSOs, required
monitoring locations, and environmental conditions. Anticipated
observable zones within the designated monitoring zones shall be
identified in the Marine Mammal Monitoring Plan, subject to approval by
NMFS. For all DTH and pile driving at least one PSO must be used. The
PSO will be stationed as close to the activity as possible;
<bullet> The placement of the PSOs during all DTH and pile driving
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 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 DTH and pile driving activity through 30 minutes post-
completion of DTH and 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. DTH and pile driving may commence following 30 minutes of
observation when the determination is made;
<bullet> If DTH or 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;
<bullet> The Coast Guard must use soft start techniques prior to
beginning 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;
<bullet> As described previously, the Coast Guard would adhere to
in-water work windows designed for the protection of fishes and marine
mammals under other permitting requirements;
<bullet> The Coast Guard has volunteered that in-water construction
activities will occur only during civil daylight hours; and
<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 largest
applicable harassment zone.
Table 17--Shutdown Zones (m) for Each Pile Type and Method
----------------------------------------------------------------------------------------------------------------
Low frequency Mid frequency High frequency
Method and pile type cetacean cetacean cetacean Phocid Otariid
----------------------------------------------------------------------------------------------------------------
Timber Vibratory...................... 20 20 20 20 20
24-inch Steel Pipe Vibratory.......... 20 20 20 20 20
Timber Impact......................... 20 20 30 20 20
Composite Impact...................... 20 20 20 20 20
24-inch Steel Pipe Impact............. 220 20 260 120 20
24-inch Concrete Impact............... 30 20 40 20 20
24-inch DTH........................... 440 20 520 240 20
----------------------------------------------------------------------------------------------------------------
[[Page 87953]]
Based on our evaluation of the applicant's planned 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, and on the availability of such species or stock for
subsistence uses.
Monitoring and Reporting
In order to issue an LOA for an activity, Section 101(a)(5)(A) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of the authorized 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 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 important physical components of marine
mammal habitat).
<bullet> Mitigation and monitoring effectiveness.
Visual Monitoring
<bullet> Monitoring must be conducted by qualified, NMFS-approved
PSOs, in accordance with the following: 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 incidental take authorization. Other PSOs may substitute
education (degree in biological science or related field), or training
for experience. The Coast Guard shall submit PSO curriculum vitae (CVs)
for approval by NMFS. PSOs must be approved by NMFS prior to beginning
any activity subject to any LOA issued pursuant to this rule.
<bullet> PSOs must record all observations of marine mammals as
described in any issued LOA and the NMFS-approved 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;
<bullet> The Coast Guard must establish the following monitoring
locations. For all pile driving activities, a minimum of one PSO must
be assigned to the active pile driving location to monitor the shutdown
zones and as much of the Level B harassment zones as possible. Possible
monitoring locations are shown in Figures 6-1 through 6-41 of the
application and summarized in table 18. The number of PSOs required at
each facility is dependent upon the size of the Level B harassment area
as well as the topography of the activity site and a PSO's ability to
observe the estimated Level A harassment area for the particular
activity. Where a team of three or more PSOs is required, a lead
observer or monitoring coordinator must be designated. The lead
observer must have prior experience performing the duties of a PSO
during construction activity pursuant to a NMFS-issued incidental take
authorization.
Table 18--Summary of Protected Species Observer (PSO) Coverage at Each
Facility
------------------------------------------------------------------------
Maximum number
Facility of PSOs
------------------------------------------------------------------------
Kodiak.................................................. 2
Sitka................................................... 5
Ketchikan............................................... 5
Valdez.................................................. 3
Cordova................................................. 3
Juneau.................................................. 3
Petersburg.............................................. 3
Seward.................................................. 2
------------------------------------------------------------------------
Reporting
A draft marine mammal monitoring report will be submitted to NMFS
within 90 days after the completion of pile driving activities, or 60
days prior to a requested date of issuance of any future LOAs 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 or cutting) and the total
equipment duration. When possible, the report should include the number
of strikes for each pile (impact driving, DTH) and, for DTH, the
duration of operation for both impulsive and non-impulsive components
as well as the strike rate.
<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),
[[Page 87954]]
including Beaufort sea state and any other relevant weather conditions
such as 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; and 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; and
<bullet> Detailed information about any implementation of any
mitigation triggered (e.g., shutdowns and delays), a description of
specific actions that ensued, and resulting changes in behavior of the
animal(s), if any.
If no comments are received from NMFS within 30 days, the draft
final report will constitute the final report. If comments are
received, a final report addressing NMFS comments must be submitted
within 30 days after receipt of comments.
Reporting Injured or Dead Marine Mammals
In the event that personnel involved in the construction activities
discover an injured or dead marine mammal, the Coast Guard must
immediately cease the specified activities and report the incident to
the NMFS Office of Protected Resources (OPR)
(<a href="/cdn-cgi/l/email-protection#f0a0a2deb9a4a0debd9f9e99849f82999e97a295809f828483b09e9f9191de979f86"><span class="__cf_email__" data-cfemail="4f1f1d61061b1f61022021263b203d2621281d2a3f203d3b3c0f21202e2e61282039">[email protected]</span></a>) and to the Alaska Regional
Stranding Coordinator as soon as feasible. If the death or injury was
likely caused by the specified activity, the Coast Guard 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 LOA and regulations. The Coast Guard 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' implementing
regulations (54 FR 40338, September 29, 1989), the impacts from other
past and ongoing anthropogenic activities are incorporated into this
analysis via their impacts on the 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).
DTH and pile driving activities associated with the maintenance
projects, as described previously, have the potential to disturb or
displace marine mammals. Specifically, the specified activities may
result in take, in the form of Level B harassment (behavioral
disturbance) only for all species other than the harbor porpoise,
harbor seal, and Dall's porpoise from underwater sounds generated from
DTH and pile driving. Potential takes could occur if individual marine
mammals are present in the ensonified zone when DTH or pile driving is
happening.
No serious injury or mortality would be expected even in the
absence of the mitigation measures. For all species other than the
harbor seal, harbor porpoise and Dall's porpoise, no Level A harassment
is anticipated due to the confined nature of the facilities, the
ability to position PSOs at stations from which they can observe the
entire shutdown zones, and the high visibility of the species expected
to be present at each site. Additionally, much of the anticipated
activity would involve vibratory driving or installation of small-
diameter, non-steel piles, and include measures designed to minimize
the possibility of injury. The potential for injury is small for mid-
and low-frequency cetaceans and sea lions, and is expected to be
essentially eliminated through implementation of the planned mitigation
measures--soft start (for impact driving), and shutdown zones.
DTH and impact driving, as compared with vibratory driving, have
source characteristics (short, sharp pulses with higher peak levels and
much sharper rise time to reach those peaks) that are potentially
injurious or more likely to produce severe behavioral reactions. Given
sufficient notice through use of soft start, marine mammals are
expected to move away from a sound source that is annoying prior to it
becoming potentially injurious or resulting in more severe behavioral
reactions. Environmental conditions in these waters are expected to
generally be good, with calm sea states, and we expect conditions would
allow a high marine mammal detection capability, enabling a high rate
of success in implementation of shutdowns to avoid injury.
As described previously, there are multiple species that should be
considered rare in the project areas and for which we propose to
authorize only nominal and precautionary take. Therefore, we do not
expect meaningful impacts to these species (i.e., gray whale, minke
whale, transient and resident killer whales, and California sea lions)
and find that the total marine mammal take from each of the specified
activities will have a negligible impact on these marine mammal
species.
For remaining species, we discuss the likely effects of the
specified activities
[[Page 87955]]
in greater detail here. Effects on individuals that are taken by Level
B harassment, on the basis of reports in the literature as well as
monitoring from other similar activities, will likely be limited to
reactions such as increased swimming speeds, increased surfacing time,
or decreased foraging (if such activity were occurring) (e.g., Thorson
and Reyff, 2006; U.S. Navy, 2012; Lerma, 2014). Most likely,
individuals will simply move away from the sound source and be
temporarily displaced from the areas of pile driving, although even
this reaction has been observed primarily only in association with
impact pile driving. The pile driving activities analyzed here are
similar to, or less impactful than, numerous other construction
activities conducted in Alaska, San Francisco Bay and in the Puget
Sound region, which have taken place with no known long-term adverse
consequences from behavioral harassment.
The U.S. Navy has conducted multi-year activities in various
locations such as San Diego Bay and Puget Sound, potentially affecting
marine mammals, and typically involving greater levels of activity than
what is contemplated here. Reporting from these activities has
similarly documented no apparently consequential behavioral reactions
or long-term effects on marine mammal populations (Lerma, 2014; U.S.
Navy, 2016a and b).
Repeated exposures of individuals to relatively low levels of sound
outside of preferred habitat areas are unlikely to significantly
disrupt critical behaviors. Thus, even repeated Level B harassment of
some small subset of the overall stock is unlikely to result in any
significant realized decrease in viability for the affected
individuals, and thus would not result in any adverse impact to the
stock as a whole. Level B harassment will be reduced to the level of
least practicable adverse impact through use of mitigation measures
described herein and, if sound produced by project activities is
sufficiently disturbing, animals are likely to simply avoid the area
while the activity is occurring. While vibratory driving or DTH
associated with some project components may produce sound at distances
of many kilometers from the pile driving site, thus intruding on
higher-quality habitat, the project sites themselves and the majority
of sound fields produced by the specified activities are within
industrialized areas. Therefore, we expect that animals annoyed by
project sound would simply avoid the area and use more-preferred
habitats.
In addition to the expected effects resulting from authorized Level
B harassment, we anticipate that harbor seals, harbor porpoises, and
Dall's porpoises may sustain some limited Level A harassment in the
form of auditory injury at four of the facilities, assuming they remain
within a given distance of the pile driving activity for the full
number of pile strikes or DTH strikes. Considering the short duration
to impact drive or vibrate 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. Harbor seals and porpoises in these locations that do experience
PTS would likely only receive slight PTS, i.e., minor degradation of
hearing capabilities within regions of hearing that align most
completely with the energy produced by DTH or pile driving, i.e., the
low-frequency region below 2 kHz, not severe hearing impairment or
impairment in the regions of greatest hearing sensitivity. If hearing
impairment occurs, it is most likely that the affected animal would
lose a few decibels in its hearing sensitivity, which in most cases is
not likely to meaningfully affect its ability to forage and communicate
with conspecifics. As described above, we expect that marine mammals
would be likely to move away from a sound source that represents an
aversive stimulus, especially at levels that would be expected to
result in PTS, given sufficient notice through use of soft start.
Shutdown zones for the porpoises are only slightly smaller than the
extent of the Level A harassment zones, further minimizing the chances
for PTS or more severe effects.
In addition, although affected humpback whales and Steller sea
lions may be from distinct population segments (DPSs) that are listed
under the ESA, it is unlikely that minor noise impacts in a small,
localized area of sub-optimal 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> Use of soft start (for impact driving) is expected to
minimize Level A harassment.
<bullet> No important habitat areas have been identified within the
project area.
<bullet> For all species, the project locations are a very small
and generally peripheral part of their range.
<bullet> Authorized Level A harassment would be very small amounts
and of low degree.
<bullet> Monitoring reports from similar work in many of the
locations in Alaska 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 planned
activities will have a negligible impact on the 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)(A) of the MMPA for specified
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 is authorizing is below one-third of the
estimated stock abundance of all species and stocks (take of
individuals is less than 14 percent of the abundance of the affected
stocks for the year of this rulemaking with the maximum amount of
activity; see table 19). This is likely a conservative estimate because
it assumes all takes are of different individual animals, which is
likely not the case. Some individuals may return
[[Page 87956]]
multiple times in a day, but PSOs would count them as separate takes if
they cannot be individually identified.
For fin whale, minke whale, Dall's porpoise, and Southeast Alaska
harbor porpoise, no valid abundance estimate for the entire stock is
available. There is no stock-wide abundance estimate for Northeast
Pacific fin whales. However, Muto et al. (2021) estimate the minimum
stock size for the areas surveyed is 2,554. Therefore, the 23 maximum
annual authorized takes of this stock represents small numbers of this
stock. There is no stock-wide abundance estimate for the Alaska stock
of minke whales. However, Muto et al. (2021) show over 2,000 animals
for areas surveyed recently. Therefore, the six maximum annual
authorized takes of this stock represents small numbers of this stock.
The Alaska stock of Dall's porpoise has no official NMFS abundance
estimate for this area, as the most recent estimate is greater than 8
years old. Nevertheless, the most recent estimate was 83,400 animals
and it is unlikely this number has drastically declined. Therefore, the
245 maximum annual authorized takes of this stock represents small
numbers of this stock. There is no stock-wide abundance estimate for
the Southeast Alaska stock of harbor porpoises. However, Muto et al.
(2021) estimate the minimum stock size for the areas surveyed is 1,057.
Therefore, the 92 maximum annual authorized takes of this stock
represents small numbers of this stock. Therefore, we find that small
numbers of marine mammals will be taken relative to the population size
of all stocks.
Based on the analysis contained herein of the planned activity
(including the mitigation and monitoring measures) and the anticipated
take of marine mammals, NMFS finds that small numbers of marine mammals
will be taken relative to the population sizes of the affected species
or stocks.
Unmitigable Adverse Impact Analysis and Determination
In order to issue regulations and LOAs, 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.
As discussed above in the Effects of Specified Activities on
Subsistence Uses of Marine Mammals section, subsistence harvest of
harbor seals and other marine mammals is rare in the project areas and
local subsistence users have not expressed concern about this project.
All project activities will take place within industrialized areas
where subsistence activities do not generally occur. The project also
will not have an adverse impact on the availability of marine mammals
for subsistence use at locations farther away, where these construction
activities are not expected to take place. Some minor, short-term
harassment of the harbor seals could occur, but any effects on
subsistence harvest activities in the region will be minimal, and will
not have an adverse impact.
Based on the effects and locations of the specified activity, and
the mitigation and monitoring measures, NMFS has determined that there
will not be an unmitigable adverse impact on subsistence uses from the
Coast Guard's planned activities.
Adaptive Management
The regulations governing the take of marine mammals incidental to
Coast Guard maintenance construction activities would contain an
adaptive management component.
The reporting requirements associated with this final rule are
designed to provide NMFS with monitoring data from the previous year to
allow consideration of whether any changes are appropriate. The use of
adaptive management allows NMFS to consider new information from
different sources to determine (with input from the Coast Guard
regarding practicability) on an annual basis if mitigation or
monitoring measures should be modified (including additions or
deletions). Mitigation measures could be modified if new data suggests
that such modifications would have a reasonable likelihood of reducing
adverse effects to marine mammals and if the measures are practicable.
The following are some of the possible sources of applicable data
to be considered through the adaptive management process: (1) results
from monitoring reports, as required by MMPA authorizations; (2)
results from general marine mammal and sound research; and (3) any
information which reveals that marine mammals may have been taken in a
manner, extent, or number not authorized by these regulations or
subsequent LOAs.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.) requires that each Federal agency insure that any action
it authorizes, funds, or carries out is not likely to jeopardize the
continued existence of any endangered or threatened species or result
in the destruction or adverse modification of designated critical
habitat. To ensure ESA compliance for the issuance of regulations and
LOAs, 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 Western DPS Steller sea lions
(Eumetopias jubatus), fin whales (Balenoptera physalus), and Mexico DPS
of humpback whales (Megaptera novaeangliae), which are listed under the
ESA. The NMFS Alaska Regional Office issued a Biological Opinion under
Section 7 of the ESA (<a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-coast-guards-alaska-facility-maintenance-and-repair">https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-coast-guards-alaska-facility-maintenance-and-repair</a>) on the issuance of regulations and an LOA to the Coast Guard
under section 101(a)(5)(D) of the MMPA by the NMFS Office of Protected
Resources. The Biological Opinion concluded that the proposed action is
not likely to jeopardize the continued existence of Western DPS Steller
sea lions, fin whales, or humpback whales from either the Mexico or
Western North Pacific DPSs.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must evaluate our proposed action (i.e., the promulgation of
regulations and subsequent issuance of incidental take authorization)
and alternatives with respect to potential impacts on the human
environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 of the Companion Manual for NAO 216-6A,
which do not individually or cumulatively have the potential for
significant impacts on the quality of the human environment and for
which we have not identified any extraordinary circumstances that would
preclude this categorical exclusion. Accordingly, NMFS has determined
that this action qualifies to be categorically excluded from further
NEPA review.
[[Page 87957]]
Classification
Pursuant to the procedures established to implement Executive Order
12866, the Office of Management and Budget has determined that this
rule is not significant.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA),
the Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration at the proposed rule stage that this action will not
have a significant economic impact on a substantial number of small
entities. The Coast Guard is the sole entity that would be subject to
the requirements in these proposed regulations, and the Coast Guard is
not a small governmental jurisdiction, small organization, or small
business, as defined by the RFA. No comments were received regarding
this certification, and the factual basis for the certification has not
changed. As a result, a regulatory flexibility analysis was not
required and none was prepared.
This final rule does not contain a collection-of-information
requirement subject to the provisions of the Paperwork Reduction Act
because the applicant is a Federal agency.
List of Subjects in 50 CFR Part 217
Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and recordkeeping requirements, Seafood,
Transportation.
Dated: December 14, 2023.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, NMFS amends 50 CFR part 217
as follows:
PART 217--REGULATIONS GOVERNING THE TAKING OF MARINE MAMMALS
INCIDENTAL TO SPECIFIED ACTIVITES
0
1. The authority citation for part 217 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq.
0
2. Add subpart T to read as follows:
Subpart T--Taking Marine Mammals Incidental to U.S. Coast Guard Alaska
Facility Maintenance and Repair Activities
Sec.
217.190 Specified activity and specified geographical region.
217.191 Effective dates.
217.192 Permissible methods of taking.
217.193 Prohibitions.
217.194 Mitigation requirements.
217.195 Requirements for monitoring and reporting.
217.196 Letters of Authorization.
217.197 Renewals and modifications of Letters of Authorization.
217.198-217.199 [Reserved]
Subpart T--Taking Marine Mammals Incidental to U.S. Coast Guard
Alaska Facility Maintenance and Repair Activities
Sec. 217.190 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to incidental taking of
marine mammals by the U.S. Coast Guard (Coast Guard) and those persons
it authorizes or funds to conduct activities on its behalf in the areas
outlined in paragraph (b) of this section and that occurs incidental to
maintenance construction activities.
(b) The taking of marine mammals by the Coast Guard may be
authorized in a Letter of Authorization (LOA) only if it occurs within
Gulf of Alaska waters in the vicinity of one of the following eight
Coast Guard facilities: Kodiak, Sitka, Ketchikan, Valdez, Cordova,
Juneau, Petersburg, and Seward.
Sec. 217.191 Effective dates.
Regulations in this subpart are effective from March 1, 2024,
through February 28, 2029.
Sec. 217.192 Permissible methods of taking.
Under LOAs issued pursuant to Sec. Sec. 216.106 of this chapter
and 217.196, the Holder of the LOA (hereinafter ``Coast Guard'') may
incidentally, but not intentionally, take marine mammals within the
areas described in Sec. 217.190(b) by Level A or Level B harassment
associated with maintenance construction activities, provided the
activity is in compliance with all terms, conditions, and requirements
of the regulations in this subpart and the appropriate LOA.
Sec. 217.193 Prohibitions.
Except for takings described in Sec. 217.192 and authorized by a
LOA issued under Sec. Sec. 216.106 of this chapter and 217.196, it
shall be unlawful for any person to do any of the following in
connection with the activities described in Sec. 217.190:
(a) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a LOA issued under Sec. Sec. 216.106
of this chapter and 217.196;
(b) Take any marine mammal not specified in such LOAs;
(c) Take any marine mammal specified in such LOAs in any manner
other than as authorized;
(d) Take a marine mammal specified in such LOAs after NMFS
determines such taking results in more than a negligible impact on the
species or stocks of such marine mammal; or
(e) Take a marine mammal specified in such LOAs after NMFS
determines such taking results in an unmitigable adverse impact on the
species or stock of such marine mammal for taking for subsistence uses.
Sec. 217.194 Mitigation requirements.
When conducting the activities identified in Sec. 217.190(a), the
mitigation measures contained in this subpart and any LOA issued under
Sec. Sec. 216.106 of this chapter and 217.196 must be implemented.
These mitigation measures shall include but are not limited to:
(a) General conditions:
(1) A copy of any issued LOA must be in the possession of the Coast
Guard, supervisory construction personnel, lead protected species
observers, and any other relevant designees of the Coast Guard
operating under the authority of this LOA at all times that activities
subject to this LOA are being conducted.
(2) The Coast Guard shall conduct training between construction
supervisors and crews and the marine mammal monitoring team and
relevant Coast Guard staff prior to the start of all down-the-hole
(DTH), pile driving, cutting or power washing activity and when new
personnel join the work, so that responsibilities, communication
procedures, monitoring protocols, and operational procedures are
clearly understood.
(3) The Coast Guard shall avoid direct physical interaction with
marine mammals during construction activity. If a marine mammal comes
within 20 m of an activity regulated under this subpart, operations
must cease and vessels must reduce speed to the minimum level required
to maintain steerage and safe working conditions.
(b) Shutdown zones:
(1) For all DTH, pile driving, cutting or power washing activity,
the Coast Guard shall implement a minimum shutdown zone of a 20-m
radius around the pile or DTH hole. If a marine mammal comes within or
approaches the shutdown zone, such operations shall cease.
(2) For all DTH and pile driving activity, the Coast Guard shall
implement shutdown zones with radial distances as identified in any LOA
issued under Sec. Sec. 216.106 of this chapter and 217.196. If a
marine mammal comes within or approaches the shutdown zone, such
operations shall cease.
(3) For all DTH and pile driving activity, the Coast Guard shall
designate monitoring zones with radial distances
[[Page 87958]]
as identified in any LOA issued under Sec. Sec. 216.106 of this
chapter and 217.196. Anticipated observable zones within the designated
monitoring zones shall be identified in the Marine Mammal Monitoring
Plan, subject to approval by NMFS.
(c) Shutdown protocols:
(1) The Coast Guard shall deploy Protected Species Observers (PSOs)
as indicated in the Marine Mammal Monitoring Plan, which shall be
subject to approval by NMFS, and as described in Sec. 217.195.
(2) For all DTH and pile driving activities, a minimum of one PSO
shall be stationed at the active pile driving rig or activity site or
in reasonable proximity in order to monitor the entire shutdown zone.
(3) Monitoring must take place from 30 minutes prior to initiation
of DTH and pile driving activity through 30 minutes post-completion of
DTH and pile driving activity. Pre-start clearance monitoring must be
conducted during periods of visibility sufficient for the lead PSO to
determine the shutdown zones are clear of marine mammals. DTH and pile
driving activity may commence following 30 minutes of observation when
the determination is made.
(4) If DTH and pile driving activity 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.
(5) Should environmental conditions deteriorate such that marine
mammals within the entire shutdown zone would not be visible (e.g.,
fog, heavy rain, night), the Coast Guard must delay in-water
construction activities until observers are confident marine mammals
within the shutdown zone could be detected.
(6) Monitoring shall be conducted by trained PSOs, who shall have
no other assigned tasks during monitoring periods. Trained PSOs shall
be placed at the best vantage point(s) practicable to monitor for
marine mammals and implement shutdown or delay procedures when
applicable through communication with the equipment operator. The Coast
Guard shall adhere to the PSO qualifications in Sec. 217.195.
(d) The Coast Guard must use soft start techniques for impact pile
driving. Soft start for impact drivers 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 three-strike
sets. Soft start shall 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.
Sec. 217.195 Requirements for monitoring and reporting.
(a) The Coast Guard must submit a Marine Mammal Monitoring Plan to
NMFS for approval in advance of construction. Marine mammal monitoring
must be conducted in accordance with the conditions in this section and
the Marine Mammal Monitoring Plan.
(b) Monitoring must be conducted by qualified, NMFS-approved PSOs,
in accordance with the following:
(1) PSOs must be independent of the activity contractor (i.e. not
employed by the construction contractor), and have no other assigned
tasks during monitoring periods.
(2) At least one PSO must have prior experience performing the
duties of a PSO during construction activity pursuant to a NMFS-issued
incidental take authorization.
(3) Other PSOs may substitute education (degree in biological
science or related field) or training for prior experience.
(4) Where a team of three or more PSOs are required, one observer
shall be designated as lead observer or monitoring coordinator. The
lead observer must have prior experience performing the duties of a PSO
during construction activity pursuant to a NMFS-issued incidental take
authorization.
(5) The Coast Guard must submit PSO curriculum vitae (CVs) for
approval by NMFS. PSOs must be approved by NMFS prior to beginning any
activity subject to this regulation.
(c) PSOs must record all observations of marine mammals as
described in 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.
(d) The Coast Guard shall deploy additional PSOs to monitor
harassment zones according to the minimum requirements defined in
Marine Mammal Monitoring Plan, subject to approval by NMFS. These
observers shall collect sighting data and behavioral responses to pile
driving for marine mammal species observed in the region of activity
during the period of activity, and shall communicate with the shutdown
zone observer(s) as appropriate with regard to the presence of marine
mammals. All observers shall be trained in identification and reporting
of marine mammal behaviors.
(e) Reporting:
(1) Annual reporting:
(i) Coast Guard shall submit a draft monitoring report to NMFS
within 90 work days of the completion of required monitoring for each
portion of the project as well as a comprehensive summary report at the
end of the project. Coast Guard shall provide a final report within 30
days following resolution of comments on the draft report. If no work
requiring monitoring is conducted within a calendar year, Coast Guard
shall provide a statement to that effect in lieu of a draft report.
(ii) These reports shall contain, at minimum, the following:
(A) Dates and times (begin and end) of all marine mammal
monitoring;
(B) 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 or vibratory) and the total equipment
duration for vibratory or DTH for each pile. When possible, the number
of strikes for each pile/hole (impact driving, DTH); and, for DTH, the
duration of operation for both impulsive and non-impulsive components
as well as the strike rate must be included;
(C) PSO locations during marine mammal monitoring;
(D) 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;
(E) 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 and 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, and 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; and Description of any marine mammal
behavioral observations (e.g., observed behaviors such as feeding or
traveling), including an assessment of
[[Page 87959]]
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);
(F) Number of marine mammals detected within the harassment zones,
by species;
(G) 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.
(2) Coast Guard shall submit a comprehensive summary report to NMFS
not later than 90 days following the conclusion of marine mammal
monitoring efforts described in this subpart. All PSO datasheets and/or
raw sighting data must be submitted with the draft reports.
(3) All draft and final monitoring reports must be submitted to
<a href="/cdn-cgi/l/email-protection#4010126e0914106e0d2f2e29342f32292e271225302f323433002e2f21216e272f36"><span class="__cf_email__" data-cfemail="3a6a6814736e6a14775554534e554853545d685f4a55484e497a54555b5b145d554c">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#054c51552b4d6a71666d6e6c6b456b6a64642b626a73"><span class="__cf_email__" data-cfemail="84cdd0d4aaccebf0e7ecefedeac4eaebe5e5aae3ebf2">[email protected]</span></a>.
(f) Reporting of injured or dead marine mammals:
(1) In the event that personnel involved in the construction
activities discover an injured or dead marine mammal, the Coast Guard
must immediately cease the specified activities and report the incident
to the Office of Protected Resources (<a href="/cdn-cgi/l/email-protection#ca9a98e4839e9ae487a5a4a3bea5b8a3a4ad98afbaa5b8beb98aa4a5ababe4ada5bc"><span class="__cf_email__" data-cfemail="b5e5e79bfce1e59bf8dadbdcc1dac7dcdbd2e7d0c5dac7c1c6f5dbdad4d49bd2dac3">[email protected]</span></a>
and <a href="/cdn-cgi/l/email-protection#f1b8a5a1dfb99e8592999a989fb19f9e9090df969e87"><span class="__cf_email__" data-cfemail="6f263b3f4127001b0c070406012f01000e0e41080019">[email protected]</span></a>), NMFS and to Alaska Regional Stranding
Coordinator as soon as feasible. If the death or injury was likely
caused by the specified activity, the Coast Guard 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
regulations under this subpart and LOAs. The Coast Guard must not
resume their activities until notified by NMFS. The report must include
the following information:
(i) Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
(ii) Species identification (if known) or description of the
animal(s) involved;
(iii) Condition of the animal(s) (including carcass condition if
the animal is dead);
(iv) Observed behaviors of the animal(s), if alive;
(v) If available, photographs or video footage of the animal(s);
and
(vi) General circumstances under which the animal was discovered.
(2) [Reserved]
Sec. 217.196 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to the regulations
under this subpart, the Coast Guard must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of the regulations
under this subpart.
(c) If an LOA expires prior to the expiration date of the
regulations under this subpart, the Coast Guard may apply for and
obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, the Coast Guard
must apply for and obtain a modification of the LOA as described in
Sec. 217.197.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the
level of taking will be consistent with the findings made for the total
taking allowable under the regulations of this subpart.
(g) Notice of issuance or denial of an LOA shall be published in
the Federal Register within 30 days of a determination.
Sec. 217.197 Renewals and modifications of Letters of Authorization.
(a) An LOA issued under Sec. Sec. 216.106 of this chapter and
217.196 for the activity identified in Sec. 217.190(a) shall be
renewed or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for the regulations under this subpart
(excluding changes made pursuant to the adaptive management provision
in paragraph (c)(1) of this section), and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under the regulations of this
subpart were implemented.
(b) For LOA modification or renewal requests by the applicant that
include changes to the activity or the mitigation, monitoring, or
reporting (excluding changes made pursuant to the adaptive management
provision in paragraph (c)(1) of this section) that do not change the
findings made for the regulations or result in no more than a minor
change in the total estimated number of takes (or distribution by
species or years), NMFS may publish a notice of proposed LOA in the
Federal Register, including the associated analysis of the change, and
solicit public comment before issuing the LOA.
(c) An LOA issued under Sec. Sec. 216.106 of this chapter and
217.196 for the activity identified in Sec. 217.190(a) may be modified
by NMFS under the following circumstances:
(1) Adaptive Management--NMFS may modify (including augment) the
existing mitigation, monitoring, or reporting measures (after
consulting with the Coast Guard regarding the practicability of the
modifications) if doing so creates a reasonable likelihood of more
effectively accomplishing the goals of the mitigation and monitoring.
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from the Coast Guard's monitoring from the previous
year(s).
(B) Results from other marine mammal and/or sound research or
studies.
(C) Any information that reveals marine mammals may have been taken
in a manner, extent, or number not authorized by the regulations under
this subpart or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS
will publish a notice of proposed LOA in the Federal Register and
solicit public comment.
(2) Emergencies--If NMFS determines that an emergency exists that
poses a significant risk to the well-being of the species or stocks of
marine mammals specified in LOAs issued pursuant to Sec. Sec. 216.106
of this chapter and 217.196, an LOA may be modified without prior
notice or opportunity for public comment. Notice would be published in
the Federal Register within 30 days of the action.
Sec. Sec. 217.198-217.199 [Reserved]
[FR Doc. 2023-27843 Filed 12-19-23; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on December 20, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.