Rule2026-05976
Marine Mammals; Incidental Take of Northern Sea Otters During Specified Activities; Seward, Sitka, and Kodiak, Alaska
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
March 27, 2026
Effective
March 27, 2026
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
In accordance with the Marine Mammal Protection Act of 1972, as amended, and its implementing regulations, we, the U.S. Fish and Wildlife Service, finalize incidental take regulations that facilitate the authorization of nonlethal, incidental, unintentional take by harassment of small numbers of northern sea otters during marine construction and pile driving in Seward, Sitka, and Kodiak, Alaska. Incidental take of northern sea otters may result from in-water noise generated during pile driving and marine construction activities. This rule is effective for 5 years from the date of issuance.
Full Text
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<title>Federal Register, Volume 91 Issue 59 (Friday, March 27, 2026)</title>
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[Federal Register Volume 91, Number 59 (Friday, March 27, 2026)]
[Rules and Regulations]
[Pages 14760-14782]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-05976]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 18
[Docket No. FWS-R7-ES-2024-0195; FXES111607MRG01-267-FF07CAMM00]
RIN 1018-BI08
Marine Mammals; Incidental Take of Northern Sea Otters During
Specified Activities; Seward, Sitka, and Kodiak, Alaska
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: In accordance with the Marine Mammal Protection Act of 1972,
as amended, and its implementing regulations, we, the U.S. Fish and
Wildlife Service, finalize incidental take regulations that facilitate
the authorization of nonlethal, incidental, unintentional take by
harassment of small numbers of northern sea otters during marine
construction and pile driving in Seward, Sitka, and Kodiak, Alaska.
Incidental take of northern sea otters may result from in-water noise
generated during pile driving and marine construction activities. This
rule is effective for 5 years from the date of issuance.
DATES:
Effective date: This rule is effective March 27, 2026 and remains
effective through March 27, 2031.
Information Collection Requirements: If you wish to comment on the
information collection requirements in this proposed rule, please note
that the Office of Management and Budget (OMB) is required to make a
decision concerning the collection of information contained in this
proposed rule between 30 and 60 days after publication of this rule in
the Federal Register. Therefore, comments should be submitted to OMB by
April 27, 2026.
ADDRESSES: You may view this rule, the associated final environmental
assessment and finding of no significant impact (FONSI), comments
received, and other supporting material at <a href="https://www.regulations.gov">https://www.regulations.gov</a>
under Docket No. FWS-R7-ES-2024-0195, or these
[[Page 14761]]
documents may be requested as described under FOR FURTHER INFORMATION
CONTACT.
Information Collection Requirements: This final rule is effective
on the date set forth in DATES. We will, however, accept and consider
all public comments concerning the information collection requirements
received in response to this final rule. Written comments and
suggestions on the information collection requirements should be
submitted within 30 days of publication of this document to <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a>. Find this particular information
collection by selecting ``Currently under Review--Open for Public
Comments'' or by using the search function. Please provide a copy of
your comments to the Service Information Collection Clearance Officer,
U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W),
Falls Church, VA 22041-3803 (mail); or <a href="/cdn-cgi/l/email-protection#347d5a525b6b775b5858745243471a535b42"><span class="__cf_email__" data-cfemail="1e57707871415d7172725e78696d30797168">[email protected]</span></a> (email).
Please reference ``OMB Control Number 1018-BI08/OMB Control No. 1018-
0205'' in the subject line of your comments.
FOR FURTHER INFORMATION CONTACT: Stephanie Burgess, by email at
<a href="/cdn-cgi/l/email-protection#681a5f0505051a0d0f1d04091c071a11280e1f1b460f071e"><span class="__cf_email__" data-cfemail="d7a5e0bababaa5b2b0a2bbb6a3b8a5ae97b1a0a4f9b0b8a1">[email protected]</span></a> or by telephone 907-786-3800. Individuals in
the United States who are deaf, deafblind, hard of hearing, or have a
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
In accordance with the Marine Mammal Protection Act of 1972 (MMPA;
16 U.S.C. 1371(a)(5)(A)) and its implementing regulations, we, the U.S.
Fish and Wildlife Service (hereafter FWS or we), finalize incidental
take regulations (ITR) that facilitate the authorization of nonlethal,
incidental, unintentional take by harassment of small numbers of
northern sea otters (Enhydra lutris kenyoni) during pile driving and
marine construction in Seward, Sitka, and Kodiak, Alaska. This rule
will be effective for 5 years from the date of issuance.
This rule sets forth permissible methods of incidental nonlethal
taking, mitigation measures to ensure the least practicable adverse
impacts upon this species, its habitat, and the availability of this
species for subsistence uses, and requirements for monitoring and
reporting. This rule is based on our findings that the total takings of
sea otters during pile driving and marine construction activities will
impact only small numbers of animals, will have a negligible impact on
this species, and will not have an unmitigable adverse impact on the
availability of this species for subsistence use by Alaska Natives. We
base our findings on data from research on this species; potential and
documented effects on this species from similar activities; information
regarding the natural history and conservation status of sea otters;
and data reported from Alaska Native subsistence hunters. We also
prepared an environmental assessment (EA) in accordance with National
Environmental Policy Act (NEPA) requirements for this rulemaking and,
after consideration of public comments, made a finding of no
significant impact (FONSI).
Immediate Promulgation
In accordance with the Administrative Procedure Act (5 U.S.C.
553(d)(3)), we find that we have good cause to make this rule effective
less than 30 days after publication. Making this rule effective
immediately will shorten the amount of time USCG ships must use
temporary moorings that do not provide full services. Utilization of
these temporary moorings requires funds that would otherwise be used
for permanent waterfront construction and subjects ships to greater
risk of damage. Thus, there is good cause to make this rule effectively
immediately in order to facilitate USCG's transition of ships to
permanent moorings that will reduce costs and risk of damage to the
ships.
Background
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) gives
the Secretary of the Interior (Secretary) the authority to allow the
incidental, but not intentional, taking of small numbers of certain
marine mammals, in response to requests by U.S. citizens (as defined in
title 50 of the Code of Federal Regulations (CFR) in part 18 (at 50 CFR
18.27(c)) engaged in a specified activity (other than commercial
fishing) within a specified geographic region. The Secretary has
delegated authority for implementation of the MMPA to the FWS.
According to the MMPA, the FWS shall allow this incidental taking for a
period of up to 5 consecutive years if we find that the total of such
taking:
(1) will affect only small numbers of individuals of the species or
stock;
(2) will have no more than a negligible impact on the species or
stock; and
(3) will not have an unmitigable adverse impact on the availability
of the species or stock for taking for subsistence use by Alaska
Natives.
If the requisite findings are made, we issue regulations that set
forth the following, where applicable:
(a) permissible methods of taking;
(b) means of effecting the least practicable adverse impact on the
species or stock and its habitat and the availability of the species or
stock for subsistence uses; and
(c) requirements for monitoring and reporting of such taking.
If final regulations allowing such incidental take are issued, we
may then subsequently issue letters of authorization (LOA), upon
request, to authorize incidental take during the specified activities.
The term ``take'' means to ``harass, hunt, capture, or kill, or
attempt to harass, hunt, capture, or kill any marine mammal'' (16
U.S.C. 1362(13)). Harassment for activities other than military
readiness activities or scientific research conducted by or on behalf
of the Federal Government means any act of pursuit, torment, or
annoyance that has the potential to injure a marine mammal or marine
mammal stock in the wild (the MMPA defines this as ``Level A
harassment''), or 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 (the MMPA defines this as ``Level B
harassment'') (16 U.S.C. 1362(18)).
The U.S. Coast Guard's (hereafter USCG or the applicant) activities
may result in the incidental taking of sea otters. The MMPA does not
require that the USCG obtain incidental take authorization prior to
conducting these activities; however, any incidental taking that occurs
without authorization is a violation of the MMPA. An ITR was issued to
the USCG for pile driving and marine construction activities at
multiple locations in Alaska including Seward, Sitka, and Kodiak from
May 19, 2023, through May 19, 2028 (88 FR 24115, April 19, 2023). The
specified activities described in this final ITR are outside the scope
of the 2023-2028 USCG ITR, and, therefore, the USCG submitted requests
for the incidental take of sea otters during their planned activities.
This final rule confirms the preliminary determinations made in the
proposed rule (90 FR 26486, June 23, 2025) and amends regulations that
are codified at 50 CFR part 18, subpart I (Sec. Sec. 18.100 to
18.110).
[[Page 14762]]
Summary of Request and the Proposed Rule
On March 5, 2024, the FWS received a request prepared by Weston
Solutions on behalf of the USCG for the nonlethal, incidental
harassment of small numbers of northern sea otters (Enhydra lutris
kenyoni) (hereafter sea otters unless another sea otter subspecies is
specified) from the Southwest Alaska stock that may occur during pile
driving and marine construction activities in Womens Bay, Kodiak,
Alaska. During discussion with the applicant, a request prepared by WSP
Environment and Infrastructure on behalf of the USCG (received January
19, 2024) for the nonlethal, incidental harassment of small numbers of
sea otters from the Southcentral Alaska stock that may occur during
pile driving and marine construction activities in Seward was combined
with the USCG's request prepared by Weston Solutions. Additionally, a
request prepared by WSP Environment and Infrastructure on behalf of the
USCG (received January 19, 2024) for the nonlethal, incidental
harassment of small numbers of sea otters from the Southeast Alaska
stock that may occur during pile driving and marine construction
activities in Sitka was then merged with the USCG's combined request.
The USCG provided additional information regarding project activities,
timelines, and mitigation measures for their planned activities in
Kodiak, Seward, and Sitka requested by the FWS during correspondence.
On October 2, 2024, the FWS received a revised application for
activities in Kodiak (hereafter referred to as ``Weston Solutions 2024
Request''). On October 3, 2024, the FWS received a revised application
for activities in Seward and Sitka (hereafter referred to as ``WSP
Environment and Infrastructure 2024 Request''). The FWS determined
USCG's combined request for activities in Kodiak, Seward, and Sitka to
be adequate and complete on October 3, 2024.
Based on our analyses, we published a proposed rule for these ITRs
on June 23, 2025 (90 FR 26486). The preamble to the proposed rule
provided information on several issues, including the following topics:
<bullet> sea otter biology and stocks within the specified region;
<bullet> potential impacts to sea otters arising from the specified
activities, including effects of underwater and airborne sounds, vessel
presence, effects to prey, reactions of sea otters to anthropogenic
activities, and consequences of disturbance;
<bullet> potential impacts of the specified activities on
subsistence uses of sea otters;
<bullet> the definitions of incidental take under the MMPA as well
as definitions of ``negligible impact,'' ``unmitigable adverse
impact,'' ``small numbers,'' and ``least practicable adverse impact;''
<bullet> methods of analyzing and estimating take by harassment;
<bullet> critical assumptions of the analyses; and
<bullet> a breakdown of incidental take by harassment at each
project location.
Please see the June 23, 2025 (90 FR 26486) proposed rule for
further background information related to this rulemaking action.
Response to Comments
During the public comment period, we requested written comments
from the public on the proposed rule as well as the draft EA. The
comment period opened June 23, 2025, and closed July 23, 2025. We
received seven comment submissions on the proposed rule.
Response to Comments
Comment: One commenter stated that permanent threshold shift (PTS)
noise thresholds were based on outdated information and should be
updated to include the National Marine Fisheries Service's (NMFS)
revised thresholds for cumulative sound exposure in the 2024 Update to:
Technical Guidance for Assessing the Effects of Anthropogenic Sound on
Marine Mammal Hearing (Version 3.0) (NMFS 2024).
Response: We are evaluating the new auditory injury criteria
presented in the NMFS (2024) technical guidance to determine whether
they are appropriate for FWS trust species. Sea otters, particularly,
are not exposed to sound for an entire 24-hour period. On the contrary,
activity budgets indicate they are likely to spend an average of 50
percent of their day with their heads above water (Garshelis et al.
1986). Pending the outcome of these evaluations, FWS will continue to
use the previous version of the technical guidance (NMFS 2018) in our
estimates of potential harassment via in-water noise exposure.
Comment: One commenter stated that the FWS should calculate the
harassment zones and ensonified areas caused by in-air noise in
addition to those caused by in-water noise, using the weighting
functions presented in NMFS (2024) technical guidance.
Response: The FWS has stated in the Critical Assumptions of the
proposed rule's preamble (90 FR 26486 at 26506, June 23, 2025) that
while in-air noise will occur during the specified activities,
harassment zones and ensonified areas attributable to in-air noise will
be smaller than those caused by in-water noise, and based on the
assumption that a sea otter may be harassed only one time per 24-hour
period, we conservatively rely on in-water calculations to estimate
potential take.
Comment: One commenter stated that the FWS should use the NMFS
continuous sound threshold of 120 decibels (dB) re 1 micropascal
([micro]Pa) instead of the 160 dB re 1 [micro]Pa we currently use. In
their comment, they state the underlying research used to generate both
the 120 dB re 1 [micro]Pa continuous threshold and the 160 dB re 1
[micro]Pa impulsive threshold are based on gray whale studies, and thus
it is inappropriate to dismiss the 120-dB threshold while accepting the
160-dB threshold. They further cite the Parsons Slough project
observations as support that sea otters have been reported to exhibit
behavioral responses to vibratory pile driving noise less than 160 dB
re 1 [micro]Pa.
Response: The highest spectral densities for noises generated by
vibratory pile driving lie within a range of frequencies at which sea
otters have poor hearing ability. In contrast, gray whales, on which
the 120-dB threshold is based, are highly sensitive to sounds within
this frequency range. We do not dispute that sea otters may hear and
may react to noise produced by vibratory pile driving. However, we
maintain that it is unlikely that sea otters' reactions will be
equivalent to those of gray whales in terms of the noise levels that
elicit reactions equivalent to take by harassment. Thus, it is not
appropriate to apply the 120-dB threshold to sea otters.
The FWS disagrees with the Marine Mammal Commission's (MMC)
conclusions regarding the project in Parsons Slough (ESNERR 2011).
After considering the MMC's comments and reviewing the monitoring data
(ESNERR 2011 and ESNERR unpublished data 2018), we reaffirm our
statement that project-related monitoring of sea otter behavior in
areas exposed to underwater sound levels ranging from approximately
135-165 dB during vibratory pile driving (ESNERR 2011) showed no clear
pattern of disturbance or avoidance in relation to these levels of
underwater sound exposure.
As such, we maintain that use of a 160-dB threshold for both
impulsive and non-impulsive sounds is consistent with the best
available scientific information.
Comment: One commenter (the MMC) stated that it is inaccurate to
associate
[[Page 14763]]
takes by Level B harassment with temporary threshold shifts (TTS) and
recommended that the FWS remove reference to Level B harassment being
due to TTS.
Response: The FWS thanks the MMC for their comment and has modified
the characterization of Level B harassment events and the likelihood of
TTS in the final rule.
Comment: One commenter (the MMC) stated that the applicants did not
include all of the necessary details to estimate the Level A harassment
and Level B harassment zones and the FWS did not provide that
information either.
Response: The FWS thanks the MMC for their comment and has made the
application materials and calculation spreadsheets publicly available
on the docket at <a href="https://www.regulations.gov/docket/FWS-R7-ES-2024-0195">https://www.regulations.gov/docket/FWS-R7-ES-2024-0195</a>.
Comment: One commenter (the MMC) stated that some sound source
levels used in the applications and proposed rule were inappropriate
and recommended using 144 dB re 1 [micro]Pa for the single strike sound
exposure level (SEL<INF>ss</INF>) source level for impact driving of
13-inch composite piles and subsequently revising the Level A
harassment zones for the final rule. They also recommended that the FWS
use 161 dB re 1 [micro]Pa for vibratory installation of 24-inch steel
piles and 167 dB re 1 [micro]Pa for vibratory installation of 30-inch
steel and vibroflot piles and subsequently revise the Level A
harassment and Level B harassment zones.
Response: The FWS thanks the MMC for their comment and recognizes
the error in the single strike SEL that was used for the calculation of
harassment thresholds of impact pile driving of 13-inch composite/
plastic piles. The recommendation from the MMC is for a lower single
strike SEL that will result in a smaller Level A harassment threshold
than what was proposed, and which will still be encompassed by the
applicant's proposed 30-meter shutdown zone, so no changes needed to be
made to the final rule in response to this comment.
The FWS consulted with the acousticians at the NMFS Office of
Protected Resources to determine the most appropriate sound levels to
use for project activities. For the vibratory installation of the 24-
inch steel piles and 30-inch steel and vibroflot piles, NMFS used the
same sound levels in their incidental harassment authorization for the
USCG Base Kodiak Homeporting Facility (90 FR 12204, March 14, 2025, and
90 FR 21472, May 20, 2025). We are maintaining these sound levels for
estimates in this final rule.
Comment: One commenter (the MMC) stated that the FWS should revise
table 16 in the proposed rule (90 FR 26486 at 26507, June 23, 2025) and
the accompanying impact analysis to clarify the maximum number of Level
A harassment and Level B harassment events in Kodiak in a single year.
Response: The FWS thanks the MMC for their comment. We have
described in detail the proposed activities at Base Kodiak by project
year in table 3, and further provided the number of harassment events
by activity in tables 14 and 15 (90 FR 26486 at 26491 and 26505-26506,
June 23, 2025). In table 16, we provide the largest number of potential
harassment events that may occur in a calendar year in order to make
our small numbers and negligible impacts determinations using the
greatest potential annual impact to the Southwest stock of sea otters.
This allows the applicant (USCG) to have flexibility when requesting
Letters of Authorization and provides a robust analysis of the
potential impact to sea otters.
Comment: One commenter (the MMC) stated that the FWS has greater
reporting requirements for injured, dead, or distressed sea otters that
are not associated with project activities than for unauthorized take
of sea otters associated with project activities. They recommend that
the FWS include an additional reporting requirement for unauthorized
takes of sea otters associated with project activities that matches the
reporting requirements for that of injured, dead, or distressed sea
otters not associated with project activities.
Response: The FWS thanks the MMC for their input and has adopted
this recommendation in the final rule and in all future incidental take
authorizations.
Comment: One commenter stated that the FWS has not sufficiently
documented substantive Tribal consultation or engagement and that the
positions of Tribes calling for more robust co-management authority has
not been acknowledged. They recommend Tribal oversight of project
activities.
Response: The FWS has not received any new co-management proposals
or requests for sea otters.
The USCG has conducted significant outreach to Tribal
organizations. For the work in Kodiak, early public scoping was
initiated in September 2020 by sending letters out to a robust contact
list announcing the initiation of environmental processes and studies.
In 2021, National Historic Preservation Act section 106 consultation
was initiated with Alaska Native Tribes and the State Historic
Preservation Office. The USCG has also coordinated with Alaska Native
Tribes, Villages, and Corporations in the Kodiak area and worked
closely with one Tribe to address concerns related to subsistence
species, Tribe-led monitoring during and after construction, and best
management and reporting requirements to include in the project.
For the work in Seward, the USCG initiated stakeholder consultation
with federally recognized Tribes and Alaska Tribal organizations.
Consultation request letters were sent out to Alaska Native
organizations, but no replies were received.
For the work in Sitka, the applicant performed consultation with
the Sitka Tribe of Alaska--the ancestral inhabitants of Japonski Island
where USCG Air Station Sitka is located. They performed a full,
detailed section 106 and Executive Order (E.O.) 13175 consultation and
worked with the Tribe to identify sacred sites, develop archaeological
monitoring plan, and had them as full signatories to a memorandum of
agreement to mitigate adverse impacts to cultural resources. The
consultation was detailed in section 1.6.7 and 3.5.3.2 of the National
Environmental Policy Act (NEPA) compliant environmental assessment
(USCG 2024).
Comment: One commenter stated that the proposed rule does not
specify spatial and temporal buffers to protect sea otters during
sensitive time periods and recommends the FWS impose restrictions to
account for subsistence activity and known haul-out areas.
Response: Sea otters are hunted year-round by coastal-dwelling
Alaskan Natives; however, as is discussed in the preamble to the
proposed rule, the geographic areas in question are immediately
adjacent to active USCG facilities, and as such do not allow hunting
nearby. Similarly, there is no significant temporal pattern to sea
otter pupping in the geographic areas--sea otters pup year-round. The
FWS has described in detail the relevant shutdown and monitoring zones
that the applicant will implement in Sec. 18.107 below in Regulation
Promulgation.
Comment: One commenter stated that the proposed rule's monitoring
requirements are insufficient and recommends independent third-party
oversight of project activities, incident reports and take logs, and
take estimates and LOA renewals.
Response: All reports of project activities, protected species
observer (PSO) logs, LOA requests, issued LOAs, and occurrences of
takes of sea otters are
[[Page 14764]]
publicly available upon request. Third-party observers are not required
by the MMPA.
Comment: One commenter stated that due to the change in
administration, the FWS has used a circular definition of the small
numbers determination and that it is unscientific to expect that
regulators will recognize a small number when they see it.
Response: The FWS disagrees. The description of the small numbers
determination has not changed. This methodology of determining whether
or not a project meets the small numbers determination has been
effectively used in numerous incidental take authorizations.
The remaining four comments were not substantive. They expressed
support for the protection of sea otters and their ecosystem and
general opposition to incidental take authorizations for the take of
sea otters.
Summary of Changes From the Proposed Rule
In preparing these final regulations for the incidental take of sea
otters, we reviewed and considered comments and information from the
public concerning our proposed rule published in the Federal Register
on June 23, 2025 (90 FR 26486). After the proposed rule was published,
we received new information on project activities and sea otter
observation data at the USCG Moorings Sitka location from the
applicant, which impacted the estimated ensonified areas and estimated
take of Southeast Alaska stock sea otters. We reviewed this new
information, revised our estimated take for Southeast Alaska stock sea
otters, and reevaluated our findings. The new information on project
activities represents a logical outgrowth of the activities originally
described in the proposed rule, as they still include pile removal and
installation by pile driving. As we describe in our reevaluated
findings, the anticipated effect of the revised project on sea otters
is similar to that described in the proposed rule and remains limited
to no more than a negligible impact on a small number of individuals.
We are finalizing these regulations with the following changes from
our proposed rule:
<bullet> We modified the characterization of the Level B harassment
events and likelihood of TTS.
<bullet> We updated our reporting requirements for unauthorized
take of sea otters to align with reporting requirements for injured,
dead, or distressed sea otters that are not associated with project
activities.
<bullet> We made available more application materials (as described
above) in the docket (<a href="https://www.regulations.gov/docket/FWS-R7-ES-2024-0195">https://www.regulations.gov/docket/FWS-R7-ES-2024-0195</a>).
<bullet> We revised the USCG Moorings Sitka project activity
description, estimated sea otter density, estimated ensonified areas,
estimated take of Southeast Alaska stock sea otters, and mitigation
measures incorporating the new information on project activities and
sea otter observation data for the USCG Moorings Sitka project.
<bullet> We reevaluated our findings with the revised information
for the USCG Moorings Sitka project.
Description of the Regulations
These regulations facilitate the authorization of nonlethal,
incidental, unintentional take of small numbers of sea otters that may
result from the proposed activities based on standards set forth in the
MMPA. They do not authorize or ``permit'' activities. The regulations
include:
(1) Permissible methods of nonlethal taking;
(2) Measures designed to ensure the least practicable adverse
impact on sea otters and their habitat, and on the availability of
these species for subsistence uses; and
(3) Requirements for monitoring and reporting.
Description of Letters of Authorization (LOAs)
An LOA is required to conduct activities pursuant to an ITR. Under
these ITRs, the USCG may request LOAs for the authorized nonlethal,
incidental, Level B harassment and Level A harassment of sea otters.
Requests for LOAs must be consistent with the activity descriptions and
mitigation and monitoring requirements of the ITR and be received in
writing at least 30 days before the activity is to begin. Requests must
include (1) an operational plan for the activity, (2) a digital
geospatial file of the project footprint, (3) a site-specific marine
mammal monitoring and mitigation plan that specifies the procedures to
monitor and mitigate the effects of the activities on sea otters, and,
if necessary, (4) plans of cooperation (described below). Once this
information has been received, we will evaluate each request and issue
the LOA if we find that the level of taking will be consistent with the
findings made for the total taking allowable under the ITR. Requests
for LOAs may be submitted on an annual basis for additional years of
activities within the ITR period. We must receive an after-action
report on the monitoring and mitigation activities within 90 days after
the LOA expires. For more information on requesting and receiving an
LOA, refer to 50 CFR 18.27(f).
Description of Plans of Cooperation (POCs)
A POC is a documented plan describing measures to mitigate
potential conflicts between specified activities and Alaska Native
subsistence hunting. The circumstances under which a POC must be
developed and submitted with a request for an LOA are described below.
To help ensure that specified activities do not have an unmitigable
adverse impact on the availability of the species for Alaska Native
subsistence hunting opportunities, all applicants requesting an LOA
under this ITR must provide the FWS documentation of communication and
coordination with Alaska Native communities potentially affected by the
specified activity and, as appropriate, with representative subsistence
hunting and co-management organizations. If Alaska Native communities
or representative subsistence hunting organizations express concerns
about the potential impacts of specified activities on subsistence
activities, and such concerns are not resolved during this initial
communication and coordination process, then a POC must be developed
and submitted with the applicant's request for an LOA. In developing
the POC, the USCG will further engage with Alaska Native communities
and/or representative subsistence hunting organizations to provide
information and respond to questions and concerns. The POC must provide
adequate measures to ensure that specified activities will not have an
unmitigable adverse impact on the availability of sea otters for Alaska
Native subsistence uses.
Description of Specified Geographic Region and Specified Activities
The specified geographic region includes Gulf of Alaska coastal
waters of three USCG facilities. The specified activities would occur
in the waters and intertidal areas of the eastern shore of Resurrection
Bay, Alaska, surrounding the USCG Moorings Seward, the waters and
intertidal areas of Sitka Channel, Alaska, surrounding the USCG
Moorings Sitka, and the waters and intertidal areas of Womens Bay,
Kodiak, Alaska, which surround the USCG Base Kodiak located on the
Nyman Peninsula (figure 1, below).
[[Page 14765]]
[GRAPHIC] [TIFF OMITTED] TR27MR26.000
Figure 1--Specific Geographic Region
Three pile driving and marine construction projects would occur
within the specified geographic region: Moorings Seward, Moorings
Sitka, and Base Kodiak. Brief summaries of each project are provided
below, and additional project details for each project may be reviewed
in the application materials available as described under ADDRESSES or
may also be requested as described under FOR FURTHER INFORMATION
CONTACT.
Moorings Seward Activities
The specified activity (hereafter project) in Seward will include
installation and removal of piles for the construction of shoreside
facilities and associated infrastructure at the USCG Moorings Seward in
the Seward Marine Industrial Center (SMIC) to homeport 1 fast response
cutter (FRC). The project entails construction of a new floating dock
parallel to the existing SMIC dock and reconfiguration of the SMIC
floating dock to allow for construction of the FRC moorings. For the
reconfiguration of the SMIC floating dock, project activities include
the removal of up to 10 existing steel guide piles that are no greater
than 40.6 centimeters (cm; 16 inches [in]) in diameter and the
installation of up to 10 new concrete or steel pipe guide piles that
are 76.2 cm (30 in) in diameter. Construction of the new dock includes
installation of up to 20 concrete or steel pipe guide piles that are no
greater than 76.2 cm (30 in) in diameter. After the dock is installed,
ancillary infrastructure (i.e., electricity, water, sewage) to service
the docked FRC will be installed. Pile-driving activities will occur
over 22 non-consecutive days for approximately 105 hours. Pile removal
will be done with vibratory extraction or cutting at the mud line with
a pile clipper or diamond saw. Pile installation will be done with a
combination of rock socket down-the-hole (DTH) drilling, impact
proofing, and vibratory settling. In-water project activities are
summarized in table 1, below.
Table 1--USCG Moorings Seward: Project Activities, Piles Installed or Removed, and Activity Days
----------------------------------------------------------------------------------------------------------------
Total Maximum number Maximum number
Project component Pile size and Activity number of of piles per of activity
material piles day days
----------------------------------------------------------------------------------------------------------------
FRC moorings.......... <40.6-cm (<16-in) Removal--vibratory.. 10 5 2
steel. Removal--pile 5
clipper. 5
Removal--diamond
wire saw.
76.2-cm (30-in) Installation--rock 10 2 20
concrete or steel. socket DTH. 2
Installation--vibrat 2
ory settling.
Installation--impact
proofing.
[[Page 14766]]
New dock.............. 76.2-cm (30-in) Installation--rock 20 2
concrete or steel. socket DTH. 2
Installation--vibrat 2
ory settling.
Installation--impact
proofing.
----------------------------------------------------------------------------------------------------------------
Moorings Sitka Activities
The following description has been updated since the proposed rule
with new information on project activities provided by the applicant.
The USCG plans to remove a mooring dolphin supported by four steel
piles, each of which is 61.0 cm (24 in) in diameter, and a float
supported by six timber piles, each of which is 35.6 cm (14 in) in
diameter. A total of 12 steel piles, each of which is 61.0 cm (24 in)
in diameter, will be temporarily installed and removed to support
installation of the new pier. The USCG plans to install a total of 107
steel piles, each of which will be 61.0 cm (24 in) in diameter, and 60
steel piles, each of which will be 40.6 cm (16 in) in diameter, to
support the pier, floating dock, and mooring dolphins. Pile-driving
activities will occur over 113 non-consecutive days. Pile installation
will be done with a combination of impact pile driving, vibratory pile
driving, and DTH drilling. Temporary and existing piles will be removed
by the dead-pull method (a direct lift of the pile using a crane with
no vibration), an underwater chainsaw, or vibratory extraction. In-
water activities are summarized in table 2, below.
Table 2--USCG Moorings Sitka: Project Activities, Piles Installed or Removed, and Activity Days
----------------------------------------------------------------------------------------------------------------
Total Maximum number Maximum number
Project component Pile size and Activity number of of piles per of activity
material piles day days
----------------------------------------------------------------------------------------------------------------
Demolition............ 61.0-cm (24-in) steel Removal--vibratory.. 4 4 1
35.6-cm (14-in) Removal--vibratory.. 6 5 2
timber.
Construction.......... 61.0-cm (24-in) steel Temporary 12 4 3
installation--vibra 12 4 3
tory.
Temporary removal--
vibratory.
61.0-cm (24-in) steel Installation--vibrat 95 6 32
ory. 95 8 24
Installation--impact 25 4 13
Installation--DTH...
61.0-cm (24-in) steel Installation--vibrat 4 3 4
ory. 4 3 4
Installation--impact 4 3 4
Installation--DTH...
61.0-cm (24-in) steel Installation--vibrat 8 4 4
ory. 8 6 3
Installation--impact 8 4 4
Installation--DTH...
40.6-cm (16-in) steel Installation--vibrat 60 8 12
ory.
----------------------------------------------------------------------------------------------------------------
Base Kodiak Activities
The USCG will implement in-water and waterfront improvements at the
USCG Base Kodiak to support the commission, temporary and permanent
homeporting, and berthing of FRCs and offshore patrol cutters. In-water
improvements will consist of replacing and extending existing wharfs,
installing floating docks and camel logs, installing a solid-fill
approach bulkhead, and refurbishing small craft floats. In-water
activities will include impact pile driving of steel piles and concrete
fender piles, vibratory installation and extraction of timber piles,
steel piles, steel/concrete piles, concrete piles, and vibroflot
columns, and DTH drilling of steel piles. These activities are
anticipated to occur over 339 non-consecutive days from 2 to 5 years. A
total of 501 piles of various sizes and types will be removed
throughout the project. A total of 918 piles of various sizes and types
will be installed throughout the project. In-water activities are
summarized in table 3, below.
Table 3--USCG Base Kodiak: Project Activities, Piles Installed or Removed, and Activity Days
----------------------------------------------------------------------------------------------------------------
Total number Maximum number Maximum number
Project component Project Pile size and Activity of piles per of piles per of activity
year material year day days per year
----------------------------------------------------------------------------------------------------------------
Demolition........ 1 35.6-cm (14-in) Removal--vibrato 158 20 10
timber. ry. 24 20 2
61.0-cm (24-in) 147 20 9
timber. 30 20 2
30.5-cm (12-in)
steel.
35.6-cm (14-in)
steel.
Construction...... 61.0-cm (24-in) Installation--vi 22 6 5
steel. bratory. 22 6 5
Installation--im 11 2 7
pact.
Installation--DT
H.
76.2-cm (30-in) Installation--vi 488 10 59
vibroflot bratory.
columns.
91.4-cm (36-in) Temporary 94 6 19
steel. installation--v 94 6 19
ibratory.
Temporary
removal--vibrat
ory.
106.7-cm (42-in) Installation--vi 160 6 32
steel. bratory. 160 6 32
Installation--im
pact.
61.0-cm (24-in) Removal--vibrato 4 20 1
steel/concrete. ry.
[[Page 14767]]
61.0-cm (24-in) Installation--vi 35 6 7
precast bratory.
concrete
reaction.
61.0-cm (24-in) Installation--im 35 6 7
precast pact.
concrete fender.
63.5-106.7-cm Installation--DT 80 2 48
(25-42-in) H.
steel.
2 61.0-cm (24-in) Installation--vi 20 6 4
steel. bratory. 20 6 4
Installation--im 10 2 6
pact.
Installation--DT
H.
76.2-cm (30-in) Installation--vi 23 6 5
steel. bratory. 23 6 5
Installation--im
pact.
91.4-cm (36-in) Permanent 8 4 3
steel. installation--v 8 4 3
ibratory. 44 6 9
Permanent 44 6 9
installation--i
mpact.
Temporary
installation--v
ibratory.
Temporary
removal--vibrat
ory.
106.7-cm (42-in) Installation--vi 24 6 5
steel. bratory. 24 6 5
Installation--im
pact.
63.5-106.7-cm Installation--DT 28 2 17
(25-42-in) H.
steel.
----------------------------------------------------------------------------------------------------------------
Estimated Take
Calculating Take
Sea Otter Density
We reviewed our take estimates for the Kodiak and Seward project
areas and determined they remain valid; therefore, we use the same take
estimates for those project areas in our analysis for this final rule.
In light of the new information on project activities provided by the
applicant and new sea otter observation data, we have revised our take
estimates for the Sitka project area as described here. In the proposed
rule, we estimated an average of 0.85 sea otters/square kilometer
(km\2\) in the Sitka project area based on sea otter abundance
estimates published for the Southeast Alaska sea otter stock (Tinker et
al. 2019; Eisaguirre et al. 2021). Since the publication of the
proposed rule, we have received sea otter observation data that
indicates sea otter density may be higher in the Sitka project area.
Information from three marine mammal observation datasets near the
Sitka project area were submitted for our review by the applicant. Only
one of these three marine mammal observation datasets reported sea
otters were observed in the Sitka project area. This marine mammal
observation dataset was an unpublished dataset that reported a total of
37 sea otters observed during a float replacement project across 8
days, with a range from 1 to 8 sea otters observed each day. The
average number of sea otters observed each day was five sea otters
(SolsticeAK unpublished data). The abundance estimate for the Southeast
Alaska sea otter stock has generally increased and sea otters have
moved into previously unoccupied areas within the Southeast Alaska sea
otter stock region over recent years (Eisaguirre et al. 2023; Schuette
et al. 2023; 88 FR 53510, August 8, 2023). It is possible that more sea
otters than we initially anticipated in the proposed rule may move into
the Sitka project area during the project period based on this current
population trend. We used the highest estimate of sea otters recorded
in the marine mammal observation datasets provided by the applicant to
inform our sea otter density estimate in order to conservatively
estimate the number of sea otters that may be present in the Sitka
project area. Based on information from the marine mammal observation
datasets, we estimate that up to 5 sea otters/km\2\ will be in the
Sitka project area.
Sound Levels for the Specified Activities
The new information on project activities at Sitka changed the
sound levels we anticipate for this project due to the changes in pile
types, pile numbers, and number of activity days. Sound levels for the
new project activities in Sitka are listed in table 4, below.
Table 4--USCG Moorings Sitka: Project Activities; Sound Levels, Source, and Timing
----------------------------------------------------------------------------------------------------------------
Timing per pile
(nonimpulsive
Pile size and sound sources)
Project component material Activity Sound levels Source or strikes per
pile (impulsive
sound sources)
----------------------------------------------------------------------------------------------------------------
Demolition........ 61.0-cm (24-in) Removal--vibrator 163 dB RMS....... NMFS 2023........ 30 minutes.
steel. y.
35.6-cm (14-in) Removal--vibrator 162 dB RMS....... CalTrans 2020.... 30 minutes.
timber. y.
Construction...... 61.0-cm (24-in) Temporary 163 dB RMS....... NMFS 2023........ 15 minutes.
steel. installation--vi ................. ................. ................
bratory. 163 dB RMS....... NMFS 2023........ 15 minutes.
Temporary
removal--vibrato
ry.
61.0-cm (24-in) Installation--vib 163 dB RMS....... NMFS 2023........ 75 minutes.
steel. ratory. 190 dB RMS; 177 CalTrans 2015.... 500 strikes.
Installation--imp dB SELss; 203 dB ................. ................
act. peak. Heyvaert & Reyff 120 minutes/
................. 167 dB RMS; 159 2021; NMFS 2022. 108,000
Installation--DTH dB SELss; 184 dB strikes.
peak.
61.0-cm (24-in) Installation--vib 163 dB RMS....... NMFS 2023........ 75 minutes.
steel. ratory. 190 dB RMS; 177 CalTrans 2015.... 500 strikes.
Installation--imp dB SELss; 203 dB Heyvaert & Reyff 120 minutes/
act. peak. 2021; NMFS 2022. 108,000
Installation--DTH 167 dB RMS; 159 strikes.
dB SELss; 184 dB
peak.
[[Page 14768]]
61.0-cm (24-in) Installation--vib 163 dB RMS....... NMFS 2023........ 75 minutes.
steel. ratory. 190 dB RMS; 177 CalTrans 2015.... 500 strikes.
Installation--imp dB SELss; 203 dB ................. ................
act. peak. Heyvaert & Reyff 120 minutes/
................. 167 dB RMS; 159 2021; NMFS 2022. 108,000
Installation--DTH dB SELss; 184 dB strikes.
peak.
40.6-cm (16-in) Installation--vib 163 dB RMS....... NMFS 2023........ 30 minutes.
steel. ratory.
----------------------------------------------------------------------------------------------------------------
Ensonified Areas
Distances to below Level A harassment and Level B harassment
thresholds with the revised sound levels were calculated for each
project activity to determine the ensonified area for a given project
activity. The USCG requested to implement a 20-meter (m; 66-feet [ft])
shutdown zone for all project activities in Sitka to reduce harassment
of sea otters by in-water noise and minimize the likelihood that sea
otters are impacted by physical interactions with construction
equipment and materials. This shutdown zone will encompass some of the
Level A harassment and Level B harassment zones in the Sitka project
area (table 5, below).
Table 5--USCG Moorings Sitka: Distances to Below Level A Harassment and Level B Harassment Zones and Shutdown
Zone *
----------------------------------------------------------------------------------------------------------------
Distance to Distance to Distance to
Pile size and below Level A below Level B below
Project component material Activity harassment harassment shutdown
threshold (m) threshold (m) zone (m)
----------------------------------------------------------------------------------------------------------------
Demolition.............. 61.0-cm (24-in) Removal--vibratory 0.6 15.9 20.0
steel. Removal--vibratory 0.6 13.6 20.0
35.6-cm (14-in)
timber.
Construction............ 61.0-cm (24-in) Temporary 0.4 15.9 20.0
steel. installation--vib 0.4 15.9 20.0
ratory.
Temporary removal--
vibratory.
61.0-cm (24-in) Installation--vibr 1.5 15.9 20.0
steel. atory. 39.0 1,000.0 20.0
Installation--impa 55.9 29.3 20.0
ct.
Installation--DTH.
61.0-cm (24-in) Installation--vibr 1.0 15.9 20.0
steel. atory. 20.3 1,000.0 20.0
Installation--impa 46.1 29.3 20.0
ct.
Installation--DTH.
61.0-cm (24-in) Installation--vibr 1.2 15.9 20.0
steel. atory. 32.2 1,000.0 20.0
Installation--impa 55.9 29.3 20.0
ct.
Installation--DTH.
40.6-cm (16-in) Installation--vibr 1.0 15.9 20.0
steel. atory.
----------------------------------------------------------------------------------------------------------------
* Work at the USCG's Moorings Sitka is expected to be completed within 1 year.
We created geospatial files to represent the Sitka project area and
ensonified water around the project area clipped by land boundaries. To
determine the area in which sea otters may experience Level A
harassment during the USCG's project activities, we subtracted the area
of the 20-m (66-ft) shutdown zone from the area ensonified to >232 dB
peak sound pressure level or >203 dB cumulative SEL (SEL<INF>CUM</INF>)
re 1[micro]Pa for impulsive underwater sound and >219 dB SEL re
1[micro]Pa for nonimpulsive underwater sound. Next, we multiplied the
remaining ensonified area for Level A harassment by the estimated sea
otter density in the Sitka project area (see Sea Otter Density) and the
maximum number of project activity days to determine the number of sea
otters that may experience Level A harassment (table 6, below).
Table 6--USCG Moorings Sitka: Project Activities and Level A Harassment Events Anticipated
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated sea
Level A area otters Total
Maximum number Level A area minus shutdown affected by estimated
Project component Pile size and material Activity of activity Sea otter density (km\2\) zone area Level A sound Level A
days (km\2\) per day harassment
(rounded) events
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Demolition................... 61.0-cm (24-in) steel Removal-vibratory...... 1 5 sea otters/km\2\............. <0.001 0 0 0
35.6-cm (14-in) timber. Removal-vibratory...... 2 <0.001 0 0 0
Construction................. 61.0-cm (24-in) steel.. Temporary installation- 3 <0.001 0 0 0
vibratory. 3 <0.001 0 0 0
Temporary removal-
vibratory.
[[Page 14769]]
61.0-cm (24-in) steel.. Installation-vibratory 32 <0.001 0 0 0
Installation-impact. 24 0.015 0.008 \a\ 2 48
Installation-DTH....... 13 0.023 0.017 \a\ 2 26
61.0-cm (24-in) steel.. Installation-vibratory. 4 <0.001 0 0 0
Installation-impact.... 4 0.007 <0.001 * 0 0
Installation-DTH....... 4 0.018 >0.012 \a\ 2 8
61.0-cm (24-in) steel.. Installation-vibratory. 4 <0.001 0 0 0
Installation-impact.... 3 0.012 0.005 \a\ 2 6
Installation-DTH....... 4 0.023 0.017 \a\ 2 8
40.6-cm (16-in) steel.. Installation-vibratory. 12 <0.001 0 0 0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* Where the estimated total number of exposures was 0 for 3 or more decimal places (i.e., <0.000X), the total number of exposures was assumed to be 0.
\a\ Where the estimated total number of exposures expected was greater than 0.001, we rounded to 2 instead to accommodate potential mom and pup pairs of sea otters for project activities.
To estimate the number of sea otters anticipated to experience
Level B harassment during the USCG's project activities, we subtracted
either the area of the Level A harassment zone or the area of the 20-m
(66-ft) shutdown zone (whichever was greater) from the area ensonified
to >160 dB re 1[micro]Pa to determine the area in which sea otters may
experience Level B harassment. Next, we multiplied the remaining
ensonified area for Level B harassment by the sea otter density for the
Sitka project area (see Sea Otter Density) and the maximum number of
project activity days to determine the number of sea otters that may
experience Level B harassment (table 7, below).
Table 7--USCG Moorings Sitka: Project Activities and Level B Harassment Events Anticipated
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated sea
Level B area otters Total
Maximum number Level B area minus Level A/ affected by estimated
Project component Pile size and material Activity of activity Sea otter density (km\2\) shutdown zone Level B sound Level B
days area (km\2\) per day harassment
(rounded) events
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Demolition................... 61.0-cm (24-in) steel.. Removal-vibratory...... 1 5 sea otters/km\2\............. 0.005 0 0 0
35.6-cm (14-in) timber. Removal-vibratory...... 2 0.005 0 0 0
Construction................. 61.0-cm (24-in) steel.. Temporary installation- 3 0.005 0 0 0
vibratory. 3 0.005 0 0 0
Temporary removal-
vibratory.
61.0-cm (24-in) steel.. Installation-vibratory. 32 0.005 0 0 0
Installation-impact.... 24 0.604 0.589 3 72
Installation-DTH....... 13 0.011 0 0 0
61.0-cm (24-in) steel.. Installation-vibratory. 4 0.005 0 0 0
Installation-impact.... 4 0.604 0.597 3 12
Installation-DTH....... 4 0.011 0 0 0
61.0-cm (24-in) steel.. Installation-vibratory. 4 0.005 0 0 0
Installation-impact.... 3 0.604 0.593 3 9
Installation-DTH....... 4 0.011 0 0 0
40.6-cm (16-in) steel.. Installation-vibratory. 12 0.005 0 0 0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 14770]]
We assumed that the different types of pile-driving activities will
occur sequentially and that the total number of activity days would
equal the sum of the number of days required to complete each type of
pile-driving activity. While it is possible that on some days more than
one type of activity will take place, which would reduce the number of
days of exposure, we cannot know this information in advance. As such,
the estimated number of days is the maximum possible for the planned
activity. Where the number of exposures expected per day was 0 to 3 or
more decimal places (i.e., <0.000X), the number of exposures per day
was assumed to be 0. Where the number of exposures expected per day was
greater than 0.001, we rounded to 2 exposures to accommodate potential
mom and pup pairs of sea otters for project activities in Sitka.
Critical Assumptions
In order to conduct this analysis and estimate the maximum
anticipated number of takes by Level A harassment and Level B
harassment, we added to our critical assumptions described in the
proposed rule (90 FR 26486 at 26506, June 23, 2025).
A summary of sea otter observation data during a float replacement
project in the Sitka project area was provided without any description
of the area in which sea otters were observed (SolsticeAK unpublished
data). In order to estimate a sea otter density, we assumed that sea
otters were observed over a 1 km\2\ area. The number of sea otters
observed each day of the project ranged from 1 to 8 sea otters, with an
average of 5 sea otters observed each day (SolsticeAK unpublished
data). Therefore, we estimated that up to 5 sea otters/km\2\ will be in
the Sitka project area.
Sum of Harassment From All Sources
The USCG will conduct pile driving and marine construction
activities in Seward, Sitka, and Kodiak within the 5-year ITR period. A
summary of total numbers of estimated takes by Level A harassment and
Level B harassment by project location, year, and 5-year duration of
the final ITR is provided in table 8, below.
Table 8--Final ITR: Sea Otters Expected to be Harassed; Level A Harassment and Level B Harassment Events
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of sea Number of sea Total number of
otters exposed Number of Level Total number of otters exposed Number of Level Level B
Location to Level A A harassment Level A to Level B B harassment harassment
harassment events (single harassment harassment events (single events (5
(single year) year) events (5 years) (single year) year) years)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Seward (Southcentral AK stock)................... 0 0 0 80 80 * 80
Sitka (Southeast AK stock)....................... 96 96 * 96 93 93 * 93
Kodiak (Southwest AK stock)...................... 423 433 433 423 4,172 4,172
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Work at the USCG's Moorings Seward and Moorings Sitka is expected to be completed within 1 year.
In a single year, we estimate up to 80 instances of take by Level B
harassment of 80 sea otters from the Southcentral Alaska stock, up to
93 instances of take by Level B harassment of 93 sea otters from the
Southeast Alaska stock, and up to 4,172 instances of take by Level B
harassment of 423 sea otters from the Southwest Alaska stock due to
behavioral responses to noise exposure during project activities in
Seward, Sitka, and Kodiak. Although multiple instances of Level B
harassment of individual sea otters are possible, these events are
unlikely to have significant consequences for the health, reproduction,
or survival of affected sea otters. The potential effects of multiple
Level B harassment noise exposures may include short-term behavioral
reactions, displacement of sea otters near active operations, and
potential temporary shifts in hearing thresholds. We anticipate that
the majority of Level B harassment events will be behavioral responses
to noise exposure. Sea otters spend over half of their time above the
surface during the summer months (Esslinger et al. 2014), and likely no
more than 70 percent of their time foraging during winter months
(Gelatt et al. 2002); thus, their ears will not be exposed to
continuous noise, thereby reducing their likelihood to experience
temporary shifts in hearing thresholds. Considering the specified
activities would occur during a limited amount of time over non-
consecutive days and in a localized area, we do not anticipate that the
effects of multiple Level B harassment noise exposures would rise to
the level of TTS, an injury, or Level A harassment.
In a single year, we estimate no instances of take by Level A
harassment of sea otters from the Southcentral Alaska stock, up to 96
instances of take by Level A harassment of 96 sea otters from the
Southeast Alaska stock, and up to 433 instances of take by Level A
harassment of 423 sea otters from the Southwest Alaska stock due to PTS
associated with noise exposure during project activities in Seward,
Sitka and Kodiak. While the project activities in Seward will create
sound levels above Level A harassment thresholds, the use of acoustic
shutdown zones of 85 m (279 ft) for DTH drilling and 30 m (98 ft) for
all other activities are expected to preclude Level A harassment events
from occurring during these specified activities in Seward. The PSOs
will be stationed at multiple vantage points, some elevated, to
increase the distances at which sea otters can be reliably detected in
Seward. For project activities in Sitka and Kodiak, using soft-start
procedures, zone clearance prior to activity startup, and shutdown
zones is likely to decrease both the number of sea otters exposed to
noise above Level A harassment thresholds and the exposure time of any
sea otters entering the Level A harassment zone. This reduces the
likelihood of hearing sensitivity losses that might impact the health,
reproduction, or survival of affected sea otters. Despite the
implementation of mitigation measures, it is anticipated that some sea
otters will experience Level A harassment via exposure to in-water
noise above threshold criteria during impact pile driving and DTH
drilling activities.
Determinations and Findings
Small Numbers
For our small numbers determination, we considered whether the
estimated number of sea otters to be subjected to incidental take is
small relative to the population size of the species or stock. More
specifically, the FWS compares the number of sea otters anticipated to
be taken in each year contemplated by the ITR with the population
estimate applicable to each of those years. Here, predicted numbers of
sea otters to be taken were determined based on the estimated density
of sea otters in the project area and ensonification areas developed
using empirical evidence from similar geographic areas. We
[[Page 14771]]
estimate that the USCG's projects may annually result in the incidental
take of approximately:
<bullet> No more than 80 Southcentral Alaska stock sea otters by
Level B harassment annually and over the duration of this ITR (see Sum
of Harassment from All Sources). Annual take of 80 sea otters is 0.37
percent of the best available estimate of the current annual
Southcentral Alaska stock size of 21,617 animals (Esslinger et al.
2021; 88 FR 53510, August 8, 2023) ([80 / 21,617] x 100 [ap] 0.37) and
represents a ``small number'' of sea otters of that stock.
<bullet> No more than 189 Southeast Alaska stock sea otters by
Level A harassment and Level B harassment annually and over the
duration of this ITR (see Sum of Harassment from All Sources). Annual
take of 189 sea otters is 0.85 percent of the best available estimate
of the current annual Southeast Alaska stock size of 22,359 animals (88
FR 53510, August 8, 2023) ([189 / 22,359] x 100 [ap] 0.85) and
represents a ``small number'' of sea otters of that stock.
<bullet> No more than 423 Southwest Alaska stock sea otters by
Level A harassment and Level B harassment annually and over the
duration of this ITR (see Sum of Take from All Sources). Annual take of
423 sea otters is 0.81 percent of the best available estimate of the
current annual Southwest Alaska stock size of 51,935 animals (88 FR
53510, August 8, 2023) ([423 / 51,935] x 100 [ap] 0.81) and represents
a ``small number'' of sea otters of that stock.
Within the specified geographic region, the area of specified
activity is expected to be small relative to the range of sea otters.
Sea otters range well beyond the boundaries of the specified geographic
region. As such, the specified geographic region itself represents only
a subset of the potential area in which this species may occur, and we
anticipate that only a small proportion of sea otters would be present
within the vicinity of the specified activities.
Therefore, we find that the USCG's specified activities will take
only small numbers of sea otters because: (1) Only a small proportion
of sea otters will overlap with the areas where the specified
activities will occur; (2) the estimated number of Southcentral Alaska
stock sea otters to be taken will be limited to a total of 80
Southcentral Alaska stock sea otters annually and over the duration of
the ITR; (3) the estimated number of Southeast Alaska stock sea otters
to be taken will be limited to a total of 189 Southeast Alaska stock
sea otters annually and over the duration of the ITR; and (4) the
estimated number of Southwest Alaska stock sea otters to be taken will
be limited to a total of 423 Southwest Alaska stock sea otters annually
and over the duration of the ITR, which represents a small proportion
of each stock of sea otters.
Negligible Impact
For our negligible impact determination, we considered the
following:
(1) The documented impacts of previous activities similar to the
specified activities on sea otters, taking into consideration
cumulative effects, suggests that the types of activities analyzed for
this ITR will have minimal effects limited to short-term, temporary
behavioral changes, displacement of sea otters near active operations,
and potential hearing threshold shifts. This is true not only for Level
B harassment, but also Level A harassment. While Level A harassment has
the potential to result in the injury of up to 96 sea otters at Sitka
and up to 423 sea otters at Kodiak during the ITR period, this type of
harassment is not anticipated to result in long-term impacts that are
likely to result in mortality. Most sea otters will respond to
disturbance by moving away from the sound source, which may cause
temporary interruption of foraging, resting, or other natural
behaviors. Affected sea otters are expected to resume normal behaviors
soon after exposure with no lasting consequences to their survival or
reproduction. Sea otters may move in and out of the project area during
pile-driving activities, leading to as many as 80 individuals in
Seward, 189 individuals in Sitka, and 423 individuals in Kodiak
experiencing exposure to noise at levels that may cause harassment.
However, it is possible that an individual may enter the ensonification
area more than once during the project. At most, if the same sea otter
enters the ensonification area every day that pile driving occurs, the
sea otter would be exposed to pile driving and marine construction
noise for up to 22 non-consecutive days in Seward, 113 non-consecutive
days in Sitka, and up to 339 non-consecutive days in Kodiak.
We do not anticipate that sea otters in Seward will be exposed to
noise levels equal to or greater than Level A harassment thresholds due
to the applicant's implementation of acoustic shutdown zones larger
than the Level A harassment zone. It is possible that sea otters in
Sitka and Kodiak may be exposed to noise levels equal to or greater
than Level A harassment thresholds on multiple days throughout project
activities. The potential effects of multiple Level A harassment noise
exposures may include a greater reduction in a sea otter's hearing
sensitivity, but this reduction in hearing sensitivity does not equate
to total hearing loss. The reduction in sea otter hearing sensitivity
caused by PTS would align with the energy produced by pile-driving
activities (e.g., low-frequency less than 2 kilohertz (kHz)), which
would not impair the majority of a sea otter's hearing range. Sea
otters do not rely on sound to orient themselves, locate prey, or
communicate under water. Therefore, we do not anticipate PTS from
multiple Level A harassment noise exposures would impact sea otters'
ability to move, forage, or communicate. Sea otters, especially mothers
and pups, do use sound for communication in air (McShane et al. 1995),
and sea otters may monitor underwater sound to avoid predators (Davis
et al. 1987). However, we anticipate that a sea otter will retain the
majority of its hearing range if it experiences PTS from multiple Level
A harassment noise exposures and that impacts from PTS will not have
long-term consequences to a sea otter's survival and reproduction.
It is possible that sea otters will move away from Level A
harassment zones to avoid experiencing PTS. The area that will
experience noise levels equal to or greater than Level A harassment
thresholds due to pile driving is small (approximately 0.017 km\2\ for
Sitka and 0.13 km\2\ for Kodiak), and a sea otter that may be disturbed
could escape the noise by moving to nearby quieter areas. Further, sea
otters spend over half of their time above the surface during the
summer months (Esslinger et al. 2014), and likely no more than 70
percent of their time foraging during winter months (Gelatt et al.
2002); thus, their ears will not be exposed to continuous noise,
thereby reducing their likelihood to experience PTS. Some sea otters
may exhibit some of the stronger responses typical of Level B
harassment, such as fleeing, interruption of feeding, or flushing from
a haulout. These responses could have temporary biological impacts for
affected individuals but are not anticipated to result in measurable
changes in survival or reproduction. The anticipated impacts on sea
otters are limited and therefore unlikely to adversely affect annual
rates of sea otter survival or recruitment.
(2) The applicant will implement monitoring requirements and
mitigation measures designed to reduce the potential impacts of their
operations on sea otters. Adaptive mitigation and management responses
based on real-
[[Page 14772]]
time monitoring of the project areas by PSOs (described in this final
rule) will be used to avoid or minimize interactions with sea otters
and, therefore, limit potential disturbance of these animals.
(3) The FWS does not anticipate any lethal take or long-term
impacts that would remove individual sea otters from the population or
prevent their successful reproduction. Incidental harassment events are
anticipated to be limited to human interactions that lead to short-term
behavioral disturbances, displacement of sea otters near active project
operations, and potential hearing threshold shifts. These disturbances
would not affect the rates of recruitment or survival for the
Southcentral Alaska, Southeast Alaska, and Southwest Alaska stocks of
sea otters. This ITR does not authorize take that will likely lead to
mortality or lethal take.
We also considered the conjectural or speculative impacts
associated with these specified activities. The specific congressional
direction described below justifies balancing the probability of such
impacts with their severity.
If potential effects of a specified activity are conjectural or
speculative, a finding of negligible impact may be appropriate. A
finding of negligible impact may also be appropriate if the probability
of occurrence is low, but the potential effects may be significant. In
this case, the probability of occurrence of impacts must be balanced
with the potential severity of harm to the species or stock when
determining negligible impact. In applying this balancing test, the FWS
will thoroughly evaluate the risks involved and the potential impacts
on marine mammal populations. Such determination will be made based on
the best available scientific information (53 FR 8474, March 15, 1988;
132 Cong. Rec. S 16304-5 (October. 15, 1986)).
The potential effects of most concern here are the potential injury
or PTS of sea otters in Sitka and Kodiak resulting from exposure to
noise levels equal to or greater than Level A harassment thresholds.
The FWS does not anticipate lethal take of sea otters as a result of
the USCG's in-water activities. As a result of our analyses presented
in the proposed and final rules, we estimate up to 96 takes by Level A
harassment may occur annually and up to a total of 96 takes by Level A
harassment may occur during project activities in Sitka. We estimate up
to 433 takes by Level A harassment may occur annually and up to a total
of 433 takes by Level A harassment may occur during project activities
in Kodiak. While the FWS found that in-water noise will rise to a level
that may cause PTS in the areas immediately adjacent to pile driving
activities, these noise levels will not extend farther than 55.9 m
(183.4 ft) from the sound source in Sitka and not farther than 145.1 m
(476.0 ft) from the sound source in Kodiak.
The applicant will implement PSO-monitored physical interaction
shutdown zones that will encompass the majority of the ensonified areas
in which Level A harassment may occur in Sitka and Kodiak, thus
minimizing injurious take. Additionally, using soft-start procedures
and zone clearance prior to activity startup is likely to decrease both
the number of sea otters exposed to noise levels above Level A
harassment thresholds and the exposure time of any sea otters entering
the Level A harassment zone. These mitigation measures reduce the
likelihood of hearing sensitivity losses that might impact the health,
reproduction, or survival of affected sea otters. A small number of
takes by Level A harassment would be authorized for impact pile driving
and DTH drilling activities that have Level A harassment zone radii
ranging in size from 20.3 to 55.9 m (66.6 to 183.4 ft) in Sitka and
from 21.8 to 145.1 m (71.5 to 476.0 ft) in Kodiak, but mitigation
measures would be implemented to minimize take by Level A harassment to
the extent possible.
Despite the implementation of mitigation measures, it is
anticipated that some sea otters in Sitka and Kodiak will experience
Level A harassment via exposure to in-water noise above threshold
criteria during impact pile driving and DTH drilling activities. If any
sea otters exposed to noise levels above Level A harassment threshold
criteria do experience PTS in the sensitivity of their hearing, it does
not equate to total hearing loss. We do not anticipate that a reduction
in hearing sensitivity would significantly affect a sea otter's health,
reproduction, or survival or otherwise cause any population-level
effects. Therefore, the FWS does not anticipate that the conjectural or
speculative impacts associated with these specified activities warrant
a finding of non-negligible impact or otherwise preclude issuance of
this ITR.
We reviewed the effects of the specified pile driving and marine
construction activities on sea otters, including impacts from pile
clipping, use of a wire saw, vibratory pile driving, impact pile
driving, and DTH drilling. Based on our review of these potential
impacts, past monitoring reports, and the biology and natural history
of sea otters, we conclude that the anticipated incidental take from
the USCG's specified activities would not affect the rates of
recruitment or survival for the Southwest, Southcentral, and Southeast
Alaska stocks of sea otters, and would have a negligible impact on each
of those stocks.
Least Practicable Adverse Impacts
We evaluated the practicability and effectiveness of mitigation
measures based on the nature, scope, and timing of the specified
activities; the best available scientific information; and monitoring
data from similar pile driving and marine construction activities.
After reviewing the original requests (submitted January 19, 2024, for
Seward and Sitka and March 5, 2024, for Kodiak), the FWS discussed
additional mitigation measures with the USCG to reduce the potential
impacts of the specified activities. These additional mitigation
measures included adding more information to the USCG's descriptions of
underwater pile cutting operations, vessel activities, and in-water
sound levels associated with project support operations (e.g., use of
noise-producing hand tools and heavy equipment), deploying noise-
dampening materials (e.g., pile caps or cushions) between the pile and
hammer during pile-driving activities, and revising sea otter
monitoring and shutdown zones. The applicant incorporated these
additional mitigation measures in their revised requests and supporting
documentation (WSP Environment and Infrastructure 2024 Request; Weston
Solutions 2024 Request). We determine that the mitigation measures
included within the USCG's request will ensure least practicable
adverse impact on sea otters.
In evaluating what mitigation measures are appropriate to ensure
the least practicable adverse impact on species or stocks and their
habitat, as well as subsistence uses, we considered the manner and
degree to which the successful implementation of the measures is
expected to achieve this goal. We considered the nature of the
potential adverse impact being mitigated (likelihood, scope, range),
the likelihood that the measures will be effective if implemented, and
the likelihood of effective implementation. We also considered the
practicability of the measures for applicant implementation (e.g.,
cost, impact on operations).
To reduce the potential for disturbance from acoustic stimuli
associated with the activities, the applicant has proposed mitigation
measures, including the following:
<bullet> Using pile caps made of high-density polyethylene or
ultra-high-molecular-weight polyethylene
[[Page 14773]]
softening materials during impact pile driving;
<bullet> Conducting activities that may produce in-water noise
during lower tidal conditions as possible to reduce transmission of
sound into the water column;
<bullet> Using silt curtains or other containment methods to reduce
sedimentation and turbidity when conducting DTH drilling and vibroflot
column installation;
<bullet> Development of marine mammal monitoring and mitigation
plans;
<bullet> Visual mitigation monitoring by designated PSOs;
<bullet> Halting or delaying activity during environmental
conditions that may hinder sea otter detection, such as darkness,
adverse weather conditions, high sea states, and other times of limited
visibility;
<bullet> Maintaining the maximum distance practicable between a
vessel and raft of sea otters;
<bullet> Operating vessels in such a way as to avoid approaching
sea otters or impeding sea otter movements when traveling near the
shoreline in shallow water (<20 m [66 ft]) whenever practicable;
<bullet> Establishment of shutdown and monitoring zones;
<bullet> Site clearance before activity startup;
<bullet> Soft-start procedures; and
<bullet> Shutdown procedures.
A number of additional potential mitigation measures were
considered but determined to be not practicable. One proposed
mitigation measure for project activities in Sitka was determined to be
not practicable after publication of the proposed rule (90 FR 26486,
June 23, 2025). All these measures are listed below:
<bullet> Require use of bubble curtains--At the time of publication
of the proposed rule (90 FR 26486, June 23, 2025), the applicant
indicated that they were unable to find a contractor with access to
bubble curtain equipment for project activities in Seward and Sitka.
The applicant indicated that bubble curtains would likely increase
turbidity in the Kodiak project area, which may impact water quality
and marine life including sea otter prey species. The FWS determined
the required use of bubble curtains was not practicable because bubble
curtains are impossible to undertake for project activities in Seward
and Sitka and bubble curtains would not be effective in reducing the
impacts to sea otters during project activities in Kodiak.
<bullet> Require use of other noise-dampening methods--The FWS
determined the required use of other noise-dampening methods, such as
cofferdams, pile-surrounding casings, sound mitigation screens, and
nets around piles, was not practicable because these methods were
impossible to undertake considering the number of piles being removed
or installed and the close proximity of piles to each other for project
activities in each of the three locations.
<bullet> Require use of alternate detection methods--The FWS
determined that the required use of alternate detection methods, such
as infrared sensors, thermal imaging, or surveys conducted by aircraft,
unmanned aircraft system, or vessel, was not practicable considering
that these alternate detection methods would not be as effective in
reducing impacts to sea otters and the applicant would employ PSOs to
monitor the project area for sea otters.
<bullet> Require 500-m minimum distance between vessels and sea
otter rafts for Kodiak--The FWS determined that vessels maintaining a
minimum distance of 500 m (1,640 ft) from a raft of sea otters was
impossible to undertake considering the width of the project area in
Kodiak is approximately 488 m (1,601 ft) wide or less, but the
applicant agreed to vessels maintaining the maximum distance between
the vessel and rafts of sea otters as practicable. The FWS determined
that requiring vessels to avoid traveling in nearshore shallow water
(<20 m [<66 ft]) was impossible to undertake considering the project
area in Kodiak is located on the shoreline in water less than 20 m (66
ft) deep, but the applicant agreed that vessels would avoid approaching
or impeding sea otter movements when traveling near the shoreline in
shallow water (<20 m [<66 ft]) whenever practicable.
<bullet> Require acoustic shutdown zones greater than 20 m (66 ft)
for Sitka--The applicant indicated that acoustic shutdown zones greater
than 20 m (66 ft) would be difficult to implement in Sitka because of
the congested layout of multiple docks and construction barges
obscuring the project monitoring area. The FWS determined that acoustic
shutdown zones greater than 20 m (66 ft) was not practicable because
this mitigation measure would not be effectively implemented for
project activities in Sitka.
Impact on Subsistence Use
The specified projects will not preclude access to harvest areas or
interfere with the availability of sea otters for harvest by Alaska
Native Peoples. Additionally, the USCG facilities are located in
developed areas and largely within areas where firearm use is
prohibited. We therefore make a finding that the USCG's anticipated
harassment will not have an unmitigable adverse impact on the
availability of Southcentral Alaska, Southeast Alaska, or Southwest
Alaska stocks of sea otters for subsistence uses by Alaska Native
Peoples during the specified timeframe. In making this finding, we
considered the timing and location of the specified activities and the
timing and location of subsistence harvest activities in the area of
the specified project.
Monitoring and Reporting
The purpose of monitoring requirements is to assess the effects of
specified activities on sea otters; to ensure that take is consistent
with that anticipated in the small numbers, negligible impact, and
subsistence use analyses; and to detect any unanticipated effects on
the species or stock. Monitoring plans document when and how sea otters
are observed, the number of sea otters, and their behavior during the
observation. This information allows the FWS to measure encounter
rates, examine trends in sea otter activity and distribution in the
project areas, and estimate the number of sea otters potentially
affected by the specified activities. The USCG is required to report
all observations of sea otters. To the extent possible, PSOs will
record group size, age, sex, behavior, duration of observation, and
closest approach to the project activity. Activities within the
specified geographic region may incorporate daily watch logs as well.
Monitoring activities will be summarized and reported in a formal
report each year. The USCG must submit a final monitoring report to us
no later than 90 days after the expiration of the LOA. We will base
each year's monitoring objective on the previous year's monitoring
results. We will require an approved plan for monitoring and reporting
the effects of pile driving and marine construction activities on sea
otters prior to issuance of an LOA. We will require approval of the
monitoring results for continued operation under the LOA.
We find that these monitoring and reporting requirements to
evaluate the potential impacts of planned activities will ensure that
the effects of the activities remain consistent with the rest of the
findings.
[[Page 14774]]
Required Determinations
National Environmental Policy Act (NEPA)
We have prepared an environmental assessment in accordance with the
NEPA (42 U.S.C. 4321 et seq.). We have concluded that issuing a final
ITR would not significantly affect the quality of the human
environment, and, thus, preparation of an environmental impact
statement for this incidental take regulation is not required by
section 102(2) of NEPA or the Department's NEPA handbook. A copy of the
EA and the FWS's FONSI can be obtained at <a href="https://www.regulations.gov">https://www.regulations.gov</a>
under Docket No. FWS-R7-ES-2024-0195, or these documents may be
requested as described under FOR FURTHER INFORMATION CONTACT.
Endangered Species Act (ESA)
Under the ESA (16 U.S.C. 1536(a)(2)), all Federal agencies are
required to ensure the actions they authorize are not likely to
jeopardize the continued existence of any threatened or endangered
species or result in destruction or adverse modification of critical
habitat. The planned activities occur within the range of Southwest
Alaska, Southcentral Alaska, and Southeast Alaska stocks of northern
sea otters. The first of these, the Southwest Alaska stock, is listed
as threatened under the ESA, whereas the Southcentral Alaska and
Southeast Alaska stocks are not listed under the ESA. Prior to issuance
of this ITR, the FWS conducted intra-service consultation under section
7 of the ESA on our issuance of an ITR. These evaluations and findings
may be requested from the FWS.
Government-to-Government Consultation
It is our responsibility to communicate and work directly on a
Government-to-Government basis with federally recognized Alaska Native
Tribes and organizations in developing programs for healthy ecosystems.
We seek their full and meaningful participation in evaluating and
addressing conservation concerns for protected species. It is our goal
to remain sensitive to Alaska Native culture, and to make information
available to Alaska Natives. Our efforts are guided by the following
policies and directives:
(1) The Native American Policy of the Service (January 20, 2016);
(2) The Service's Alaska Native Relations Policy (January 10,
2025);
(3) Executive Order (E.O.) 13175 (January 9, 2000);
(4) Department of the Interior Secretary's Orders 3206 (June 5,
1997), 3225 (January 19, 2001), 3342 (October 21, 2016), and 3403
(November 15, 2021), including Director's Order 227 (September 8,
2022);
(5) the Alaska Government-to-Government Policy (a departmental
memorandum issued January 18, 2001); and
(6) the Department of the Interior's policies on consultation with
Alaska Native Tribes and organizations in Part 512 of the Departmental
Manual, Chapters 4 through 7.
We have evaluated possible effects of the specified activities on
federally recognized Alaska Native Tribes and organizations. The FWS
has determined that, due to this project's locations and activities,
the Tribal organizations and communities near Kodiak, Seward, and
Sitka, as well as relevant Alaska Native Claims Settlement Act (ANCSA;
43 U.S.C. 1601 et seq.) corporations, will not be impacted by this
project. Regardless, the FWS has contacted Tribal organizations in
neighboring communities, as well as relevant ANCSA corporations, to
inform them of the availability of this authorization and offer them
the opportunity to consult.
Regulatory Planning and Review--E.O. 12866 and 13563
E.O. 12866, as reaffirmed by E.O. 13563, provides that the Office
of Information and Regulatory Affairs (OIRA) in the Office of
Management and Budget (OMB) will review all significant rules. The OIRA
has determined that this rulemaking action is not significant.
The OIRA bases its determination of significance upon the following
four criteria: (a) Whether the rule will have an annual effect of $100
million or more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government;
(b) whether the rule will create inconsistencies with other Federal
agencies' actions; (c) whether the rule will materially affect
entitlements, grants, user fees, loan programs, or the rights and
obligations of their recipients; (d) whether the rule raises novel
legal or policy issues.
Expenses will be related to, but not necessarily limited to: the
development of requests for LOAs; monitoring, recordkeeping, and
reporting activities conducted during pile driving and marine
construction; development of activity- and species-specific marine
mammal monitoring and mitigation plans; and coordination with Alaska
Natives to minimize effects of operations on subsistence hunting.
Realistically, costs of compliance with this rule are minimal in
comparison to those related to actual pile driving and marine
construction. The actual costs to develop the petition for promulgation
of regulations and LOA requests do not exceed $100,000 per year, short
of the ``major rule'' threshold that would require preparation of a
regulatory impact analysis.
Small Business Regulatory Enforcement Fairness Act
We have determined that this rule is not a major rule under 5
U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act.
The rule is also not likely to result in a major increase in costs or
prices for consumers, individual industries, or government agencies or
have significant adverse effects on competition, employment,
productivity, innovation, or on the ability of United States-based
enterprises to compete with foreign-based enterprises in domestic or
export markets.
Regulatory Flexibility Act
We have determined that this rule will not have a significant
economic effect on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The USCG and their
contractors conducting pile driving and marine construction in Kodiak,
Sitka, and Seward, are the only entities subject to these ITRs.
Therefore, neither a regulatory flexibility analysis nor a small entity
compliance guide is required.
Takings Implications
This rule does not have takings implications under E.O. 12630
because it authorizes the nonlethal, incidental, but not intentional,
take of sea otters by pile driving and marine construction activities
and, thereby, exempts the USCG from civil and criminal liability as
long as they operate in compliance with the terms of their LOAs.
Therefore, a takings implications assessment is not required.
Federalism Effects
This rule does not contain policies with federalism implications
sufficient to warrant preparation of a federalism assessment under E.O.
13132. The MMPA gives the FWS the authority and responsibility to
protect sea otters.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), this rule will not ``significantly or uniquely'' affect small
governments. A small government agency plan is not required. The FWS
has determined and
[[Page 14775]]
certifies pursuant to the Unfunded Mandates Reform Act that this
rulemaking will not impose a cost of $100 million or more in any given
year on local or State governments or private entities. This rule will
not produce a Federal mandate of $100 million or greater in any year,
i.e., it is not a ``significant regulatory action'' under the Unfunded
Mandates Reform Act.
Civil Justice Reform
The Departmental Solicitor's Office has determined that this rule
will not unduly burden the judicial system and meets the applicable
standards provided in sections 3(a) and 3(b)(2) of E.O. 12988.
Paperwork Reduction Act
This rule includes new information collections requiring approval
by the OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.). We may not conduct or sponsor, and you are not required to
respond to, a collection of information unless it displays a currently
valid OMB control number. The FWS will ask OMB to review and approve
the new information collection requirements contained in this
rulemaking related to incidental take of marine mammals in proposed 50
CFR subpart I.
In accordance with the PRA and its implementing regulations at 5
CFR 1320.8(d)(1), we provide the general public and other Federal
agencies with a second opportunity to comment on the proposed
information collections contained in this rule. This input will help us
assess the impact of our information collection requirements and
minimize the public's reporting burden. It will also help the public
understand our information collection requirements and provide the
requested data in the desired format.
This is a nonform collection. Respondents must comply with the
regulations at 50 CFR part 18, which outline the procedures and
requirements for submitting a request. Specific regulations governing
authorized incidental take of marine mammal activities are contained in
50 CFR part 18, subpart I (nonlethal, incidental, unintentional take by
harassment of small numbers of northern sea otters). These regulations
provide the applicant with a detailed description of information that
we need to evaluate the proposed activity and determine if it is
appropriate to issue specific regulations and, subsequently, LOAs. We
use the information to verify the findings required to issue incidental
take regulations, to decide if we should issue an LOA, (if an LOA is
issued) what conditions should be included in the LOA, and to monitor
compliance with the regulations and LOA(s). In addition, we analyze the
information to determine impacts to polar bears, Pacific walruses,
northern sea otters, and the availability of those marine mammals for
subsistence purposes of Alaska Natives.
In conjunction with this rulemaking, we will request OMB approval
of the following:
(1) Incidental Take of Marine Mammals--Application for
Regulations--Regulations at 50 CFR part 18 require the applicant to
provide information on the activity as a whole, which includes, but is
not limited to, an assessment of total impacts by all persons
conducting the activity. Applicants can find specific requirements in
50 CFR part 18, subpart I. These regulations provide the applicant with
a detailed description of information that we need to evaluate the
proposed activity and determine whether to issue specific regulations
and, subsequently, LOAs. The required information includes:
1. A description of the specific activity or class of activities
that can be expected to result in incidental taking of marine mammals.
2. The dates and duration of such activity and the specific
geographical region where it will occur.
3. Based on the best available scientific information, each
applicant must also provide:
a. An estimate of the species and numbers of marine mammals likely
to be taken by age, sex, and reproductive conditions;
b. The type of taking (e.g., disturbance by sound, injury or death
resulting from collision, etc.) and the number of times such taking is
likely to occur;
c. A description of the status, distribution, and seasonal
distribution (when applicable) of the affected species or stocks likely
to be affected by such activities;
d. The anticipated impact of the activity upon the species or
stocks; and
e. The anticipated impact of the activity on the availability of
the species or stocks for subsistence uses.
4. The anticipated impact of the activity upon the habitat of the
marine mammal populations and the likelihood of restoration of the
affected habitat.
5. The availability and feasibility (economic and technological) of
equipment, methods, and manner of conducting such activity or other
means of effecting the least practicable adverse impact upon the
affected species or stocks, their habitat, and, where relevant, on
their availability for subsistence uses, paying particular attention to
rookeries, mating grounds, and areas of similar significance. (The
applicant and those conducting the specified activity and the affected
subsistence users are encouraged to develop mutually agreeable
mitigating measures that will meet the needs of subsistence users.)
6. Suggested means of accomplishing the necessary monitoring and
reporting that will result in increased knowledge of the species
through an analysis of the level of taking or impacts and suggested
means of minimizing burdens by coordinating such reporting requirements
with other schemes already applicable to persons conducting such
activity.
7. Suggested means of learning of, encouraging, and coordinating
research opportunities, plans, and activities relating to reducing such
incidental taking from such specified activities, and evaluating its
effects.
8. Applicants must develop and implement a site-specific (or
umbrella plan addressing site-specific considerations), FWS-approved
marine mammal monitoring and mitigation plan to monitor and evaluate
the effectiveness of mitigation measures and the effects of activities
on marine mammals and the subsistence use of these species.
9. Applicants must also provide trained, qualified, and FWS-
approved onsite observers to carry out monitoring and mitigation
activities identified in the marine mammal monitoring and mitigation
plan. Resumes for candidate PSOs will be made available for the FWS to
review. This information is necessary for the FWS to anticipate the
impact of the activity on the species or stocks and on the availability
of the species or stocks for Alaska Native subsistence uses. Under
requirements of the MMPA, we cannot authorize a take unless the total
of all takes will have a negligible impact on the species or stocks
and, where appropriate, will not have an unmitigable adverse impact on
the availability of the species or stocks for subsistence uses. These
requirements ensure that applicants are aware of related monitoring and
research efforts they can apply to their situation, and that the
monitoring and reporting that we impose are the least burdensome to the
applicant.
(2) Requests for Letters of Authorization (LOA)--LOAs, which may be
issued only to U.S. citizens, are required to conduct activities
pursuant to any specific regulations established. Once specific
regulations are effective, the FWS will, to the maximum extent
possible, process subsequent
[[Page 14776]]
applications for LOAs within 30 days after receipt of the application
by the FWS. All LOAs will specify the period of validity and any
additional terms and conditions appropriate for the specific request.
Issuance of LOAs will be based on a determination that the level of
taking will be consistent with the findings made for the total taking
allowable under the specific regulations.
The request for an LOA must comply with the requirements set forth
in proposed Sec. 18.103 and must include the following information:
1. An operational plan that describes in detail the activity (e.g.,
type of project, methods, and types and numbers of equipment and
personnel, etc.), the dates and duration of the activity, and the
specific locations affected by the activity;
2. A digital geospatial file of the project footprint;
3. A site-specific marine mammal monitoring and mitigation plan
that specifies the procedures to monitor and mitigate the effects of
the activities on sea otters; and
4. Plan of Cooperation (POC), if required, to mitigate potential
conflicts between the activity and subsistence hunting.
(3) Withdrawal of LOA--Once issued, the LOA may be withdrawn or
suspended if the project activity is modified in a way that undermines
the results of the evaluation conducted per proposed Sec. 18.104(a),
if the conditions of the regulations in the proposed subpart are not
being substantially met, or if the taking allowed is or may be having
more than a negligible impact on the affected stock of sea otters or an
unmitigable adverse impact on the availability of sea otters for
subsistence uses.
(4) Mitigation--3rd Party Notifications (Community Consultation)--
All applicants for an LOA must contact affected Alaska Native
subsistence communities and hunter organizations to discuss potential
conflicts caused by the activities and provide the FWS documentation of
communications as described in Sec. 18.103.
Documentation must include a summary of any concerns identified by
community members and hunter organizations and the applicant's
responses to identified concerns. A POC may not be required for an LOA
request if no concerns are raised during community consultation
regarding impacts to subsistence harvest or Alaska Native communities
and subsistence user organizations.
(5) Mitigation--3rd Party Notifications (Vessel Operations)--Vessel
operators must be provided written guidance for avoiding collisions and
minimizing disturbances to sea otters. Guidance will include measures
identified in Sec. 18.107, Mitigation.
(6) Mitigation--Plan of Cooperation--When appropriate, a holder of
an LOA will be required to develop and implement an FWS-approved POC.
1. The POC must include a description of the procedures by which
the holder of the LOA will work and consult with potentially affected
subsistence hunters and a description of specific measures that have
been or will be taken to avoid or minimize interference with
subsistence hunting of marine mammals and to ensure continued
availability of the species for subsistence use.
2. The FWS will review the POC to ensure that any potential adverse
effects on the availability of the animals are minimized. The FWS will
reject POCs if they do not provide adequate safeguards to ensure the
least practicable adverse impact on the availability of marine mammals
for subsistence use.
(7) Mitigation--Designation and Training of Protected Species
Observers (PSOs)--The applicant will designate trained and qualified
PSOs to monitor for the presence of sea otters, initiate mitigation
measures, and monitor, record, and report the effects of the activities
on sea otters. The applicant is responsible for providing training to
PSOs to carry out mitigation and monitoring.
(8) Mitigation and Monitoring Plan--Applicants must have an
approved mitigation and monitoring plan on file with the FWS's Marine
Mammals Management Program (MMM) and onsite that includes the following
information:
1. The type of activity and where and when the activity will occur
(i.e., a summary of the plan of operation);
2. Personnel training policies, procedures, and materials;
3. Site-specific sea otter interaction risk evaluation and
mitigation measures;
4. Sea otter avoidance and encounter procedures; and
5. Sea otter observation and reporting procedures.
(9) Onsite Monitoring and Observation Reports--The regulations also
require that each holder of an LOA submit a monitoring report
indicating the nature and extent of all takes of marine mammals that
occurred incidentally to the specific activity. Since the inception of
incidental take authorizations for polar bears (Ursus maritimus),
Pacific walruses (walruses; Odobenus rosmarus divergens), and northern
sea otters (otters; Enhydra lutris kenyoni), we have required
monitoring and reporting during industrial activities. The purpose of
monitoring and reporting requirements is to assess the effects of
industrial activities on sea otters to ensure that take is minimal to
their populations, and to detect any unanticipated effects of take. The
monitoring focus has been site-specific, area-specific, or population-
specific. Site-specific monitoring measures animal-human encounter
rates, outcomes of encounters, and trends of animal activity in the
industrial areas, such as sea otter numbers, behavior, and seasonal
use. Area-specific monitoring includes analyzing animal spatial and
temporal use trends, sex/age composition, and risk assessment to
unpredictable events, such as oil spills. Population-specific
monitoring includes investigating species life-history parameters, such
as population size, recruitment, survival, physical condition, status,
and mortality.
(A) In-Season Monitoring (Observation Reports)--Duties of PSOs
include watching for and identifying sea otters, recording observation
details, documenting presence in any applicable monitoring zone,
identifying and documenting potential harassment, and working with
operators to implement all appropriate mitigation measures. Information
in the observation report must include, but is not limited to:
1. PSOs will monitor a pre-clearance zone for 30 minutes prior to
the commencement of in-water noise-generating activities and following
periods of inactivity of more than 30 minutes to ensure all sea otters
are not within the shutdown zone prior to initiating or resuming in-
water noise-generating activities.
2. Observers will collect data using the following procedures:
i. All data will be recorded onto a field form or database.
ii. Global positioning system data, sea state, tidal state, wind
force, visibility, and weather condition will be recorded at the
beginning and end of a monitoring period, at least every hour in
between, at the change of an observer, and upon observation of sea
otters.
iii. Observation records of sea otters will include date; time; the
observers' locations; sea otter's heading (if moving); weather
condition; visibility; number of sea otters; group composition (adults/
juveniles); and the location of the sea otters (or distance and
direction from the observer).
iv. Observation records will also include initial behaviors of the
sea otters, descriptions of project activities and in-water noise
levels being generated, the position of sea otters
[[Page 14777]]
relative to applicable monitoring and mitigation zones, any mitigation
measures applied, and any apparent reactions to the project activities
before and after mitigation.
v. For all sea otters in or near a mitigation zone, observers will
record the distance from the sound source to the sea otter upon initial
observation, the duration of the encounter, and the distance at last
observation in order to monitor cumulative sound exposures.
vi. The PSOs will note any instances of sea otters lingering close
to or traveling with vessels for prolonged periods of time.
vii. Monitoring of the shutdown zone must continue for 30 minutes
following completion of in-water noise-generating activities.
(B) In-Season Monitoring (Activity Progress Reports)--Holders of an
LOA must:
1. Notify the FWS at least 48 hours prior to the commencement of
activities.
2. Provide the FWS monthly progress reports for all months during
which noise-generating work takes place. The monthly report will
contain and summarize the following information:
i. dates, times, weather, and sea conditions (including the
Beaufort Scale sea state and wind force conditions) when sea otters
were observed;
ii. the number, location, distance from the sound source, and
behavior of the sea otters; and
iii. the associated project activities; and a description of the
implementation and effectiveness of mitigation measures with a
discussion of any specific behaviors the sea otters exhibited in
response to mitigation.
(10) Final Monitoring Report--A final report will be submitted to
the FWS's MMM within 90 days after the expiration of each LOA. The
report will include:
1. A summary of monitoring efforts (hours of monitoring, activities
monitored, number of PSOs, and, if requested by the FWS, the daily
monitoring logs).
2. A description of all project activities, any additional work yet
to be done, factors influencing visibility and detectability of marine
mammals (e.g., sea state, fog, glare, and number of observers), and
factors correlated with the presence and distribution of sea otters
(e.g., weather, sea state, and project activities).
3. An estimate will be included of the number of sea otters exposed
to noise at received levels greater than or equal to Level A harassment
and Level B harassment (based on visual observation).
4. A description of changes in sea otter behavior resulting from
project activities and any specific behaviors of interest.
5. A discussion of the mitigation measures implemented during
project activities and their observed effectiveness for minimizing
impacts to sea otters. Sea otter observation records will be provided
to the FWS in the form of electronic database or spreadsheet files.
6. All reports must be submitted by email to
<a href="/cdn-cgi/l/email-protection#5f39286800323232002d3a2f302d2b2c1f39282c71383029"><span class="__cf_email__" data-cfemail="9cfaebabc3f1f1f1c3eef9ecf3eee8efdcfaebefb2fbf3ea">[email protected]</span></a>.
7. Injured, dead, or distressed sea otters that are not associated
with project activities (e.g., animals known to be from outside the
project area, previously wounded animals, or carcasses with moderate to
advanced decomposition or scavenger damage) must be reported to the FWS
within 24 hours of the discovery to either the FWS's MMM (1-800-362-
5148, business hours); or the Alaska SeaLife Center in Seward (1-888-
774-7325, 24 hours a day); or both. Photographs, video, location
information, or any other available documentation must be provided to
the FWS.
8. Operators must notify the FWS upon project completion or end of
the work season.
(11) Notification of LOA Incident Report--
1. Except as otherwise provided in the regulations in the subpart,
prohibited taking includes the provisions of Sec. 18.11 as well as:
intentional take, lethal incidental take of sea otters, and any take
that fails to comply with the regulations in this subpart or with the
terms and conditions of an LOA.
2. If specified activities cause unauthorized take, the holder of
an LOA must:
i. Cease activities immediately (or reduce activities to the
minimum level necessary to maintain safety);
ii. Report the details of the incident within 24 hours to the FWS's
MMM at 1-800-362-5148 (business hours) or via email at
<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="5e18096901131313010c3b2e312c2a2d1e38292d70393128">[email protected]</a>. If the unauthorized taking results in a sea
otter being injured or killed, call the FWS MMM during business hours
or the Alaska SeaLife Center in Seward (1-888-774-7325, 24 hours a
day);
iii. Provide photographs, video, location information, and any
other available documentation related to the unauthorized take of the
sea otter(s) to the FWS; and
iv. Suspend further activities until the FWS has reviewed the
circumstances, determined whether additional mitigation measures are
necessary to avoid further unauthorized taking, and notified the LOA
holder that project activities may resume.
Title of Collection: Incidental Take of Marine Mammals During
Specified Activities (50 CFR 18.27 and 50 CFR 18, Subpart I).
OMB Control Number: 1018-0205.
Form Numbers: None.
Type of Review: New.
Respondents/Affected Public: Federal Government-U.S. Coast Guard.
Total Estimated Number of Annual Respondents: 32.
Total Estimated Number of Annual Responses: 59.
Estimated Completion Time per Response: Completion times vary
between 15 minutes and 130 hours, depending on activity.
Total Estimated Number of Annual Burden Hours: 515.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: On occasion.
Total Estimated Annual Non-hour Burden Cost: None.
On June 23, 2025, we published in the Federal Register (90 FR
26486) a proposed rule (RIN 1018-BI08) which announced our intention to
request OMB approval of the information collections explained in this
rule. In that proposed rule, we solicited comments for 60 days on the
information collections, ending on August 22, 2025. We did not receive
any comments on the proposed information collections in response to
that proposed rule.
As part of our continuing effort to reduce paperwork and respondent
burdens, and in accordance with 5 CFR 1320.8(d)(1), we invite the
public and other Federal agencies to comment on any aspect of this
proposed information collection, including:
(1) Whether or not the collection of information is necessary for
the proper performance of the functions of the agency, including
whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection
of information, including the validity of the methodology and
assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) Ways to minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of response.
Comments that you submit in response to this rulemaking are a
matter
[[Page 14778]]
of public record. Before including your address, phone number, email
address, or other personal identifying information in your comment, you
should be aware that your entire comment--including your personal
identifying information--may be made publicly available at any time.
While you can ask us in your comment to withhold your personal
identifying information from public review, we cannot guarantee that we
will be able to do so.
Send your written comments and suggestions on this information
collection by the date indicated in DATES to OMB, with a copy to the
FWS Information Collection Clearance Officer, U.S. Fish and Wildlife
Service, MS: PRB/PERMA (JAO), 5275 Leesburg Pike, Falls Church, VA
22041-3803 (mail); or by email to <a href="/cdn-cgi/l/email-protection#a1e8cfc7cefee2cecdcde1c7d6d28fc6ced7"><span class="__cf_email__" data-cfemail="e2ab8c848dbda18d8e8ea2849591cc858d94">[email protected]</span></a>. Please reference
``RIN 1018-BI08/OMB Control No. 1018-0205'' in the subject line of your
comments.
Energy Effects
E.O. 13211 requires agencies to prepare statements of energy
effects when undertaking certain actions. This rule provides exceptions
from the MMPA's taking prohibitions for entities engaged in specified
pile driving and marine construction activities in the specified
geographic region. By providing certainty regarding compliance with the
MMPA, this rule will have a positive effect on the pile driving and
marine construction activities. Although the rule requires an applicant
to take a number of actions, these actions have been undertaken by pile
driving and marine construction activities for many years as part of
similar past regulations. Therefore, this rule is not expected to
significantly affect energy supplies, distribution, or use and does not
constitute a significant energy action. No statement of energy effects
is required.
References
For a list of the references cited in this rule, see Docket No.
FWS-R7-ES-2024-0195, available at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
List of Subjects in 50 CFR Part 18
Administrative practice and procedure, Alaska, Imports, Indians,
Marine mammals, Reporting and recordkeeping requirements,
Transportation.
Regulation Promulgation
For the reasons set forth in the preamble, the U.S. Fish and
Wildlife Service amends part 18, subchapter B of chapter 1, title 50 of
the Code of Federal Regulations as set forth below.
PART 18--MARINE MAMMALS
0
1. The authority citation of 50 CFR part 18 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
0
2. Amend part 18 by adding subpart I to read as follows:
Subpart I--Nonlethal Taking of Northern Sea Otters Incidental to Pile
Driving and Marine Construction in Seward, Sitka, and Kodiak, Alaska
Sec.
18.100 Specified activities covered by this subpart.
18.101 Specified geographic region where this subpart applies.
18.102 Dates this subpart is in effect.
18.103 Procedure to obtain a Letter of Authorization (LOA).
18.104 How the FWS will evaluate a request for an LOA.
18.105 Authorized take allowed under an LOA.
18.106 Prohibited take under an LOA.
18.107 Mitigation.
18.108 Monitoring.
18.109 Reporting requirements.
18.110 Information collection requirements.
Sec. 18.100 Specified activities covered by this subpart.
Regulations in this subpart apply to the nonlethal incidental, but
not intentional, take, as defined in Sec. 18.3 and under section 3 of
the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1371 et seq.), of
small numbers of northern sea otters (Enhydra lutris kenyoni; hereafter
``sea otters'') by the U.S. Coast Guard (hereafter ``USCG'' or ``the
applicant'') while engaged in activities associated with or in support
of pile driving and marine construction activities in Seward, Sitka,
and Kodiak, Alaska. The applicant is a U.S. citizen as defined in Sec.
18.27(c). A Letter of Authorization (LOA) from the U.S. Fish and
Wildlife Service (FWS) is required to authorize incidental take that
may occur during the specified activities.
Sec. 18.101 Specified geographic region where this subpart applies.
The specified geographic region for the incidental take regulations
(ITR) in this subpart includes Gulf of Alaska coastal waters of three
USCG facilities. The specified activities would occur in the waters and
intertidal areas of the eastern shore of Resurrection Bay, Alaska,
surrounding the new USCG Moorings Seward, the waters and intertidal
areas of Sitka Channel, Alaska, surrounding the USCG Moorings Sitka,
and the waters and intertidal areas of Womens Bay, Kodiak, Alaska,
which surround the USCG Base Kodiak located on the Nyman Peninsula.
Figure 1 to Sec. 18.101--Map of the ITR region including USCG's
Moorings Seward, Moorings Sitka, and Base Kodiak in Alaska where the
activities covered by this subpart will occur.
[[Page 14779]]
[GRAPHIC] [TIFF OMITTED] TR27MR26.001
Sec. 18.102 Dates this subpart is in effect.
The regulations in this subpart are effective from March 27, 2026
through March 27, 2031.
Sec. 18.103 Procedure to obtain a Letter of Authorization (LOA).
(a) The applicant must submit the request for an LOA to the FWS
Alaska Region, Marine Mammals Management Office (MMM), MS 341, 1011
East Tudor Road, Anchorage, Alaska 99503, at least 30 days prior to the
start of the specified activity.
(b) The request for an LOA must comply with the requirements set
forth in Sec. Sec. 18.107 through 18.109 and must include the
following information:
(1) An operational plan that describes in detail the activity
(e.g., type of project, methods, and types and numbers of equipment and
personnel, etc.), the dates and duration of the activity, and the
specific locations affected by the activity.
(2) A digital geospatial file of the project footprint.
(3) A site-specific marine mammal monitoring and mitigation plan
that specifies the procedures to monitor and mitigate the effects of
the activities on sea otters.
(4) Documentation of the applicant's communication with potentially
affected subsistence communities surrounding Seward, Sitka, and Kodiak
and appropriate subsistence user organizations to discuss the location,
timing, and methods of activities and identify and mitigate any
potential conflicts with subsistence sea otter hunting activities.
(i) The applicant must specifically inquire of relevant communities
and organizations if the activity will interfere with the availability
of sea otters for the subsistence use of those groups.
(ii) Documentation must include a summary of any concerns
identified by community members and hunter organizations and the
applicant's responses to identified concerns.
(iii) A plan of cooperation (POC) may not be required for an LOA
request if no concerns are raised during community consultation
regarding impacts to subsistence harvest or Alaska Native communities
and subsistence user organizations.
(5) A POC, if required, to mitigate potential conflicts between the
activity and subsistence hunting.
Sec. 18.104 How the FWS will evaluate a request for an LOA.
(a) The FWS will evaluate each request for an LOA to determine if
the specified activity is consistent with the analysis and findings we
made during the rulemaking process for this subpart.
(1) We will determine whether the level of activity identified in
the request exceeds the level that we analyzed in estimating the number
of animals to be taken and evaluating whether there will be a
negligible impact on the species or stock and an unmitigable adverse
impact on the availability of the species or stock for subsistence
uses.
(2) If the level of activity is greater, we will evaluate the
potential impact of this greater level of activity to determine if the
potential impact is consistent with our findings. Depending on the
results of the evaluation, we may grant the requested authorization,
add further conditions, or deny the request for an LOA. An LOA will be
limited to a 1-year
[[Page 14780]]
period or less within the period set forth in Sec. 18.102.
(b) The FWS will make decisions concerning withdrawal or suspension
of an LOA (see Sec. 18.27(f)(5) and (6)).
Sec. 18.105 Authorized take allowed under an LOA.
(a) To incidentally take marine mammals pursuant to the regulations
in this subpart, the applicant must apply for and obtain an LOA in
accordance with Sec. Sec. 18.27(f), 18.103, and 18.104.
(b) An LOA issued under this subpart allows for the nonlethal,
incidental, but not intentional take by harassment, as defined under
section 3 of the MMPA (16 U.S.C. 1362), of sea otters during activities
specified in Sec. 18.100 within the Seward, Sitka, and Kodiak ITR
region of Alaska described in Sec. 18.101.
(c) Each LOA will set forth:
(1) Permissible methods of incidental take;
(2) Means of effecting the least practicable adverse impact on the
species, its habitat, and the availability of the species for
subsistence uses; and
(3) Requirements for monitoring and reporting.
(d) Allowable take under these regulations is limited to take by
Level B harassment and Level A harassment (as those terms are defined
at 16 U.S.C. 1362).
(e) Each LOA will identify terms and conditions for each activity
and location.
Sec. 18.106 Prohibited take under an LOA.
(a) Except as otherwise provided in this subpart, prohibited taking
includes the provisions of Sec. 18.11 as well as: intentional take,
lethal incidental take of sea otters, and any take that fails to comply
with the regulations in this subpart or with the terms and conditions
of an LOA.
(b) If specified activities cause unauthorized take, the holder of
an LOA must:
(1) Cease activities immediately (or reduce activities to the
minimum level necessary to maintain safety);
(2) Report the details of the incident within 24 hours to the FWS's
MMM at 907-786-3800 (business hours) or via email at
<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="bff9e888e0f2f2f2e0eddacfd0cdcbccffd9c8cc91d8d0c9">[email protected]</a>. If the unauthorized taking results in a sea
otter being injured or killed, call the FWS MMM during business hours
or the Alaska SeaLife Center in Seward (1-888-774-7325, 24 hours a
day);
(3) Provide photographs, video, location information, and any other
available documentation related to the unauthorized take of the sea
otter(s) to the FWS; and
(4) Suspend further activities until the FWS has reviewed the
circumstances, determined whether additional mitigation measures are
necessary to avoid further unauthorized taking, and notified the LOA
holder that project activities may resume.
Sec. 18.107 Mitigation.
(a) Mitigation measures for all LOAs. The applicant, including all
personnel operating under the applicant's authority (or ``operators,''
including contractors, subcontractors, and representatives) must
undertake the following activities to avoid and minimize take of sea
otters by harassment.
(1) Implement policies and procedures to avoid interactions with
and minimize to the greatest extent practicable adverse impacts on sea
otters, their habitat, and the availability of these marine mammals for
subsistence uses.
(2) Develop avoidance and minimization policies and procedures, in
cooperation with the FWS, that include temporal or spatial activity
restrictions to be used in response to the presence of sea otters
engaged in a biologically significant activity (e.g., resting, feeding,
hauling out, mating, or nursing).
(3) Cooperate with the FWS's MMM Office and other designated
Federal, State, and local agencies to monitor and mitigate the impacts
of pile driving and marine construction activities on sea otters.
(4) Allow FWS personnel or the FWS's designated representative to
board project vessels or visit project worksites for the purpose of
monitoring impacts to sea otters and to subsistence uses of sea otters
at any time throughout project activities so long as it is safe to do
so.
(5) Designate trained and qualified protected species observers
(PSOs) to monitor for the presence of sea otters, initiate mitigation
measures, and monitor, record, and report the effects of the activities
on sea otters. The applicant is responsible for providing training to
PSOs to carry out mitigation and monitoring.
(6) Have an approved mitigation and monitoring plan on file with
the FWS MMM and onsite that includes the following information:
(i) The type of activity and where and when the activity will occur
(i.e., a summary of the plan of operation);
(ii) Personnel training policies, procedures, and materials;
(iii) Site-specific sea otter interaction risk evaluation and
mitigation measures;
(iv) Sea otter avoidance and encounter procedures; and
(v) Sea otter observation and reporting procedures.
(b) Mitigation measures for in-water noise-generating work. The
applicant must carry out the following measures:
(1) Construction activities must be conducted using equipment that
generates the lowest practicable levels of in-water noise within the
range of frequencies audible to sea otters.
(2) If a sea otter enters or appears likely to enter the shutdown
zone, in-water activities must be shut down until either the sea otter
has been visually observed outside the shutdown zone or at least 15
minutes have elapsed since the last observation time without
redetection of the sea otter.
(i) During in-water activities at Seward, an acoustic shutdown zone
of 85 meters (m; 280 feet [ft]) must be enforced during down-the-hole
(DTH) drilling of concrete piles, and a shutdown zone of 30 m (99 ft)
must be enforced during all other in-water activities.
(ii) During in-water activities at Sitka and Kodiak, regardless of
predicted sound levels, a physical interaction shutdown zone of at
least 20 m (66 ft) must be enforced.
(3) If the impact driver has been idled for more than 30 minutes,
an initial set of three strikes from the impact driver must be
delivered (at reduced energy if possible), followed by a 1-minute
waiting period. This procedure will be conducted a total of three times
before full-powered strikes if practicable. If unsafe working
conditions during soft-starts occur (e.g., equipment failure), then the
applicant may elect to discontinue soft-starts, and the applicant must
notify the FWS if the soft-start procedure is discontinued.
(4) If practicable, a soft-start procedure for vibratory pile-
driving activities may be implemented if the vibratory hammer has been
idled for more than 30 minutes. During the soft-start procedure,
initial noise generation must be limited to 15 seconds (at reduced
energy if possible), followed by a 1-minute waiting period. This
procedure will be conducted a total of three times before full-powered
vibratory pile driving commences. If unsafe working conditions during
soft-starts occur (e.g., equipment failure), then the applicant may
elect to discontinue soft-starts and the applicant must notify the FWS
if the soft-start procedure is discontinued.
(5) In-water activity must be conducted in daylight. If
environmental conditions prevent visual detection of sea otters within
the shutdown zone, in-water activities must be stopped until visibility
is regained.
[[Page 14781]]
(6) All in-water work along the shoreline must be conducted during
lower tidal conditions when the site is dewatered to the maximum extent
practicable.
(7) When practicable, or when required by applicable local, State,
or Federal regulations, the applicant must use containment methods
(e.g., silt curtains) to isolate areas with high levels of turbidity
during DTH drilling and vibroflot column installation.
(c) Mitigation measures for vessel operations. Vessel operators
must take every precaution to avoid harassment of sea otters during
vessel operations. The applicant must carry out the following measures:
(1) Vessels must maintain a minimum distance of 500 m (0.3 mile
[mi]) from rafts of 10 or more sea otters unless otherwise needed for
safety. If a vessel must transit within 500 m (0.3 mi) from rafts of
sea otters, the vessel must travel at a reduced speed and maintain the
maximum distance practicable between the vessel and raft of sea otters.
Vessels must reduce speed and maintain a minimum distance of 100 m (328
ft) from all sea otters unless otherwise needed for safety.
(2) Vessels must not be operated in such a way as to separate
members of a group of sea otters (two or more sea otters) from other
members of the group, encircle sea otters, or impede movement of sea
otters. Vessels must use established navigation channels or commonly
recognized vessel traffic corridors and avoid approaching sea otters or
impeding sea otter movements when traveling near the shoreline in
shallow water (<20 m [<66 ft]) whenever practicable.
(3) When weather conditions require, such as when visibility drops,
vessels must adjust speed accordingly to reduce the likelihood of
injury to sea otters.
(4) Vessel operators must be provided written guidance for avoiding
collisions and minimizing disturbances to sea otters. Guidance will
include measures identified in paragraphs (c)(1) through (4) of this
section.
(d) Mitigation measures for the subsistence use of sea otters.
Holders of an LOA must conduct their activities in a manner that, to
the greatest extent practicable, minimizes adverse impacts on the
availability of sea otters for subsistence uses.
(1) Community consultation. Prior to receipt of an LOA, applicants
must consult with potentially affected communities and appropriate
subsistence user organizations to discuss potential conflicts with
subsistence sea otter hunting caused by the location, timing, and
methods of operations and support activities (see Sec. 18.103 for
details). If community concerns suggest that the activities may have an
adverse impact on the subsistence uses of this species, the applicant
must address conflict avoidance issues through a POC as described in
paragraph (d)(2) of this section.
(2) Plan of cooperation. Based on community consultations, the
holder of an LOA will be required to modify their POC if directed by
the FWS.
(i) The POC must include a description of the procedures by which
the holder of the LOA will work and consult with potentially affected
subsistence hunters and a description of specific measures that have
been or will be taken to avoid or minimize interference with
subsistence hunting of sea otters and to ensure continued availability
of the species for subsistence use.
(ii) The FWS will review the POC to ensure that any potential
adverse effects on the availability of sea otters are minimized. The
FWS will reject POCs if they do not provide adequate safeguards to
ensure the least practicable adverse impact on the availability of sea
otters for subsistence use.
Sec. 18.108 Monitoring.
(a) Operators shall work with PSOs to apply mitigation measures and
shall recognize the authority of PSOs up to and including stopping
work, except where doing so poses a significant safety risk to
personnel.
(b) Duties of PSOs include watching for and identifying sea otters,
recording observation details, documenting presence in any applicable
monitoring zone, identifying and documenting potential harassment, and
working with operators to implement all appropriate mitigation
measures.
(c) A sufficient number of PSOs will be available to meet the
following criteria: 100 percent monitoring of shutdown zones during all
daytime periods of in-water noise-generating work; a maximum of 4
consecutive hours on watch per PSO; a maximum of 12 hours on watch per
day per PSO.
(d) All PSOs will complete a training course designed to
familiarize individuals with monitoring and data collection procedures.
This training will be completed prior to starting work. A field crew
leader with prior experience as a sea otter observer will supervise the
PSO team. Initially, new or inexperienced PSOs will be paired with
experienced PSOs so that the quality of marine mammal observations and
data recording is kept consistent. Resumes for candidate PSOs will be
made available for the FWS to review.
(e) The PSOs will be provided with reticule binoculars (7x50 or
better), big-eye binoculars or spotting scopes (30x), inclinometers,
and range finders. Field guides, instructional handbooks, maps, and a
contact list will also be made available.
(f) The PSOs will monitor a pre-clearance zone for 30 minutes prior
to the commencement of in-water noise-generating activities and
following periods of inactivity of more than 30 minutes to ensure all
sea otters are not within the shutdown zone prior to initiating or
resuming in-water noise-generating activities.
(g) Observers will collect data using the following procedures:
(1) All data will be recorded onto a field form or database.
(2) Global positioning system data, sea state, tidal state, wind
force, visibility, and weather condition will be recorded at the
beginning and end of a monitoring period, at least every hour in
between, at the change of an observer, and upon observation of sea
otters.
(3) Observation records of sea otters will include date; time; the
observers' locations; sea otter's heading (if moving); weather
condition; visibility; number of sea otters; group composition (adults/
juveniles); and the location of the sea otters (or distance and
direction from the observer).
(4) Observation records will also include initial behaviors of the
sea otters, descriptions of project activities and in-water noise
levels being generated, the position of sea otters relative to
applicable monitoring and mitigation zones, any mitigation measures
applied, and any apparent reactions to the project activities before
and after mitigation.
(5) For all sea otters in or near a mitigation zone, observers will
record the distance from the sound source to the sea otter upon initial
observation, the duration of the encounter, and the distance at last
observation in order to monitor cumulative sound exposures.
(6) The PSOs will note any instances of sea otters lingering close
to or traveling with vessels for prolonged periods of time.
(7) Monitoring of the shutdown zone must continue for 30 minutes
following completion of in-water noise-generating activities.
Sec. 18.109 Reporting requirements.
(a) Operators must notify the FWS at least 48 hours prior to
commencement of activities.
(b) Monthly reports will be submitted to the FWS's MMM for all
months
[[Page 14782]]
during which noise-generating work takes place. The monthly report will
contain and summarize the following information: dates, times, weather,
and sea conditions (including the Beaufort Scale sea state and wind
force conditions) when sea otters were observed; the number, location,
distance from the sound source, and behavior of the sea otters; the
associated project activities; and a description of the implementation
and effectiveness of mitigation measures with a discussion of any
specific behaviors the sea otters exhibited in response to mitigation.
(c) A final report will be submitted to the FWS's MMM within 90
days after the expiration of each LOA. The report will include:
(1) A summary of monitoring efforts (hours of monitoring,
activities monitored, number of PSOs, and, if requested by the FWS, the
daily monitoring logs).
(2) A description of all project activities, any additional work
yet to be done, factors influencing visibility and detectability of
marine mammals (e.g., sea state, fog, glare, and number of observers),
and factors correlated with the presence and distribution of sea otters
(e.g., weather, sea state, and project activities).
(3) An estimate will be included of the number of sea otters
exposed to noise at received levels greater than or equal to Level A
harassment and Level B harassment (based on visual observation).
(4) A description of changes in sea otter behavior resulting from
project activities and any specific behaviors of interest.
(5) A discussion of the mitigation measures implemented during
project activities and their observed effectiveness for minimizing
impacts to sea otters. Sea otter observation records will be provided
to the FWS in the form of electronic database or spreadsheet files.
(d) All reports must be submitted by email to
<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="abedfc9cf4e6e6e6f4f9cedbc4d9dfd8ebcddcd885ccc4dd">[email protected]</a>.
(e) Injured, dead, or distressed sea otters that are not associated
with project activities (e.g., animals known to be from outside the
project area, previously wounded animals, or carcasses with moderate to
advanced decomposition or scavenger damage) must be reported to the FWS
within 24 hours of the discovery to either the FWS's MMM (907-786-3800,
business hours); or the Alaska SeaLife Center in Seward (1-888-774-
7325, 24 hours a day); or both. Photographs, video, location
information, or any other available documentation must be provided to
the FWS.
(f) Operators must notify the FWS upon project completion or end of
the work season.
Sec. 18.110 Information collection requirements.
The Office of Management and Budget (OMB) has approved the
information collection requirements contained in this part and assigned
OMB Control Number 1018-0205. Federal agencies may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
Direct comments regarding the burden estimate or any other aspect of
the information collection to the FWS Information Collection Clearance
Officer at the address provided at 50 CFR 2.1(b).
Kevin Lilly,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks,
Exercising the Delegated Authority of the Assistant Secretary for Fish
and Wildlife and Parks.
[FR Doc. 2026-05976 Filed 3-26-26; 8:45 am]
BILLING CODE 4333-15-P
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</html>Indexed from Federal Register on March 27, 2026.
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.