[Federal Register Volume 88, Number 75 (Wednesday, April 19, 2023)]
[Rules and Regulations]
[Pages 24115-24129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08258]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 18
[Docket No. FWS-R7-ES-2022-0025; FXES111607MRG01-212-FF07CAMM00]
RIN 1018-BG05
Marine Mammals; Incidental Take of Northern Sea Otters During
Specified Activities; the Gulf of 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 the Gulf of Alaska coastal waters.
Take may result from marine construction and pile-driving activities.
This rule is effective for 5 years from the date of issuance.
DATES: This rule is effective May 19, 2023, through May 19, 2028.
ADDRESSES: You may view this rule, the associated final environmental
assessment, finding of no significant impact (FONSI), comments
received, and other supporting material at https://www.regulations.gov
under Docket No. FWS-R7-ES-2022-0025, or these 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 may be submitted
at any time to the Service Information Collection Clearance Officer,
U.S. Fish and Wildlife Service, by email to info_coll@fws.gov; or by
mail to 5275 Leesburg Pike, MS: PRB (JAO/3W), Falls Church, VA 22041-
3803. Please reference ``OMB
[[Page 24116]]
Control Number 1018-BD63/0070'' in the subject line of your comments.
FOR FURTHER INFORMATION CONTACT: Sierra Franks, U.S. Fish and Wildlife
Service, MS 341, 1011 East Tudor Road, Anchorage, AK 99503, by email at
R7mmmregulatory@fws.gov or by telephone at 907-268-0577. 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 (MMPA) of 1972,
as amended, and its implementing regulations, we, the U.S. Fish and
Wildlife Service (Service, USFWS, 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; hereafter ``otter,''
``otters,'' or ``sea otters'') during marine construction and pile-
driving activities in coastal waters surrounding eight United States
Coast Guard (USCG) facilities in the Gulf of 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).
Background
Section 101(a)(5)(A) of the Marine Mammal Protection Act (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 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 Sec. 18.27(c)) engaged in a specified activity
(other than commercial fishing) in a specified geographic region. The
Secretary has delegated authority for implementation of the MMPA to the
Service. According to the MMPA, the Service shall allow this incidental
taking if we make findings that the total of such taking for the 5-year
regulatory period:
(1) is of small numbers of marine mammals of a species or stock;
(2) will have a negligible impact on such species or stock; and
(3) will not have an unmitigable adverse impact on the availability
of these 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 by
harassment, including, in certain circumstances, requirements for the
independent peer review of proposed monitoring plans or other research
proposals.
If final regulations allowing such incidental taking 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'' means any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (the MMPA defines this as ``Level A
harassment''), or (ii) has the potential to disturb a marine mammal or
marine mammal stock in the wild by causing disruption of behavioral
patterns, including, but not limited to, migration, breathing, nursing,
breeding, feeding, or sheltering (the MMPA defines this as ``Level B
harassment'') (16 U.S.C. 1362(18)).
The USCG's activities may result in the incidental taking of sea
otters. The MMPA does not require the USCG to obtain incidental take
authorization prior to engaging in activities that may incidentally
take these marine mammals; however, any such taking that occurs without
authorization is a violation of the MMPA.
Summary of Request and the Proposed Rule
The Service first received a petition requesting ITRs from the USCG
on July 2, 2021. The Service sent requests for additional information
on August 12, September 13, and November 10, 2021, and February 10,
2022. We received updated versions of the petition for rulemaking on
October 14, 2021, January 18, 2022, and February 28, 2022; the version
received on the latter date was determined to be adequate and complete.
Several revisions were made involving animal presence, ensonified
areas, number of days of operations, and mitigation and monitoring
protocols. Geospatial files of the work sites were received on December
3, 2021. The Service used the February 2022 information and December
2021 spatial files for analyses.
Based on our analyses, we published a proposed rule for these ITRs
on August 15, 2022 (87 FR 50041). The preamble to the proposed rule
provided information on several issues, including the following topics:
sea otter biology and stocks within the specified region;
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;
potential impacts of the specified activities on
subsistence uses of sea otters;
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'';
methods of analyzing and estimating take by harassment;
critical assumptions of the analyses; and
a breakdown of incidental take by harassment at each
location within the specified region.
Please see the August 15, 2022 (87 FR 50041), proposed rule for
further background information related to this rulemaking action.
[[Page 24117]]
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 would 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 this
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
Description of Letters of Authorization (LOA)
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 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. 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.
Description of Plans of Cooperation (POC)
A POC is a documented plan describing measures to mitigate
potential conflicts between planned project activities and 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 the USCG's activities do not have an
unmitigable adverse impact on the availability of the species for
subsistence hunting opportunities, requests for an LOA under this ITR
must provide the Service documentation of communication and
coordination with Alaska Native communities potentially affected by the
proposed activity and, as appropriate, with representative subsistence
hunting and co-management organizations, such as the Alaska Sea Otter
and Steller Sea Lion Commission. If Alaska Native communities or
representative subsistence hunting organizations express concerns about
the potential impacts of project 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 project activities will not have an unmitigable
adverse impact on the availability of sea otters for subsistence uses.
Description of the Specified Geographic Region
The specified geographic region covered by these ITRs (USCG ITR
region (figure 1)) encompasses Gulf of Alaska (GOA) coastal waters,
including State waters, within 2 kilometers (km) (~1.25 miles (mi)) of
eight USCG facilities within the USCG Civil Engineering Unit Juneau
Area of Responsibility. These facilities are: Base Kodiak, Moorings
Seward, Moorings Valdez, Moorings Cordova, Moorings Sitka, Station
Juneau, Moorings Petersburg, and Base Ketchikan.
[[Page 24118]]
[GRAPHIC] [TIFF OMITTED] TR19AP23.007
Description of Specified Activities
The USCG will perform maintenance activities that will include pile
repair (i.e., sleeve or jacket replacement), pile replacement
(including removal and installation), and deck repair and replacement
to maintain safe berthing for operating vessels. The in-water work will
include impact pile driving of timber, steel, and concrete piles,
vibratory installation and extraction of timber, steel, and concrete
piles, down-the-hole drilling, power washing of piles, use of an
underwater hydraulic chainsaw, and pile clipping. The USCG will also
conduct above-water maintenance activities, such as power washing of
decks, fender repair (camel replacement, chain replacement, utility
handlers), and replacement of rub strips and ladder supports.
Detailed descriptions of the proposed work are provided in the
applicant's Request for ITRs for Programmatic Maintenance, Repair, and
Replacement Activities (February 2022) and the Marine Mammal Monitoring
and Mitigation Plan (January 2022). These documents can be obtained
from the locations described above in ADDRESSES.
Sum of Harassment From All Sources
The USCG will conduct pile driving and marine construction
activities over the GOA during a period of 5 years following the
effective date of the final rule. A summary of total numbers of
estimated takes by Level B harassment during the duration of the
project by season and take category is provided in table 1. Ensuing
paragraphs address impacts to each affected stock of northern sea
otters.
[[Page 24119]]
Table 1--Summary by Project Site and Stocks of Sea Otters Expected To Be Harassed Through Behavioral
Disturbance, Sea Otters in Level B Harassment Ensonification Area, for Single-Year Operations and Over the 5-
Year Duration of the ITR
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Number of Number of Number of Number of
Location otters exposures otters (5 exposures (5
(single year) (single year) years) years)
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Kodiak.......................................... 1 5 5 25
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Total Southwest Alaska stock................ 1 5 5 25
Seward.......................................... 2 5 2 5
Valdez.......................................... 8 8 40 40
Cordova......................................... 35 210 35 210
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Total Southcentral Alaska stock............. 45 223 77 255
Sitka........................................... 6 30 30 150
Juneau.......................................... 3 30 15 150
Petersburg...................................... 10 40 50 200
Ketchikan....................................... 4 40 20 200
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Total Southeast Alaska stock................ 23 140 115 700
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Total all stocks........................ 69 368 197 980
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In a single year, we estimate five instances of take by Level B
harassment of one northern sea otter from the Southwest Alaska stock
due to behavioral responses or Temporary Threshold Shift (TTS)
associated with noise exposure. Over the 5-year duration of these ITRs,
we estimate 25 instances of take by Level B harassment of 5 northern
sea otters from the Southwest Alaska stock due to behavioral responses
or TTS associated with noise exposure. Although multiple instances of
harassment of otters are possible, we anticipate that these events will
result in only temporary changes in behavior and will not have
significant consequences for the health, reproduction, or survival of
affected animals. We do not anticipate these events to cause any
injuries or rise to the level of Level A harassment.
In a single year, we estimate 223 instances of take by Level B
harassment of 45 northern sea otters from the Southcentral Alaska stock
due to behavioral responses or TTS associated with noise exposure. Over
the 5-year duration of these ITRs, we estimate 255 instances of take by
Level B harassment of 77 northern sea otters from the Southcentral
Alaska stock due to behavioral responses or TTS associated with noise
exposure. Although multiple instances of harassment of otters are
possible, these events are likely to result in only temporary changes
in behavior. As such, these events are unlikely to have significant
consequences for the health, reproduction, or survival of affected
animals and, therefore, would not rise to the level of an injury or
Level A harassment.
In a single year, we estimate 140 instances of take by Level B
harassment of 23 northern sea otters from the Southeast Alaska stock
due to behavioral responses or TTS associated with noise exposure. Over
the 5-year duration of these ITRs, we estimate 700 instances of take by
Level B harassment of 115 northern sea otters from the Southeast Alaska
stock due to behavioral responses or TTS associated with noise
exposure. Although an estimated 700 instances of harassment of 115
otters are possible, these events are likely to result in only
temporary changes in behavior. As such, these events are unlikely to
have significant consequences for the health, reproduction, or survival
of affected animals and, therefore, would not rise to the level of an
injury or Level A harassment.
Determinations and Findings
Small Numbers
For our small numbers determination, we considered whether the
estimated number of northern sea otters to be subjected to incidental
take is small relative to the population size of the species or stock.
1. The Southwest, Southcentral, and Southeast Alaska stocks of
northern sea otters range well beyond the boundaries of the specified
geographic area. Meanwhile, the USCG's specified activities would
impact only a small fraction of the specified geographic area. We
therefore expect that only a small proportion of animals from each
stock could occur proximate enough to the USCG's activities to
experience any effects.
2. We estimate the USCG's proposed activities in the specified
geographic region during the 5-year period of this ITR will result in
take by Level B harassment of no more than:
One sea otter from the Southwest Alaska stock,
representing 0.000 percent of the best available estimate of that stock
(USFWS 2020) (1 / 51,382 [ap] 0.00000);
45 sea otters from the Southcentral Alaska stock,
representing 0.208 percent of the best available estimate that stock
(Esslinger et al. 2021) (45 / 21,617 = 0.00208); and
23 sea otters from the Southeast Alaska stock,
representing 0.087 percent of the best available estimate of that stock
(Eisaguirre et al. 2021) (23 / 26,347 = 0.000873).
Based on these numbers, we find that the USCG's specified
activities projects will take only a small number of animals from each
affected stock of northern sea otters.
We note ongoing litigation concerning a separate, recently issued,
ITR in which plaintiffs assert that the Service's ``small numbers''
analysis must aggregate the number of animals anticipated to be taken
in each year contemplated by the ITR and compare that multiyear number
to the population estimate applicable to 1 year. While we disagree with
this approach, for the sake of providing the applicant with regulatory
certainty pending resolution of that litigation, we further analyze the
``small numbers'' question using this alternative approach and estimate
the incidental take of:
5 sea otters from the Southwest Alaska stock, representing
0.01 percent of the best available estimate of that
[[Page 24120]]
stock (USFWS 2020) (5 / 51,382 = 0.00010);
77 sea otters from the Southcentral Alaska stock,
representing 0.356 percent of the best available estimate of that stock
(Esslinger et al. 2021) (77 / 21,617 = 0.00356); and
115 sea otters from the Southeast Alaska stock,
representing 0.437 percent of the best available estimate of that stock
(Eisaguirre et al. 2021) (115 / 26,347 = 0.004363).
These alternative numbers also support our finding that the USCG's
specified activities will take only a small number of animals from each
affected stock of northern sea otters.
Conclusion
Therefore, we determine that the USCG's activities will take by
Level B harassment only small numbers of the Southwest, Southcentral,
and Southeast Alaska stocks of northern sea otters because: (1) Only a
small proportion of the Southwest, Southcentral, and Southeast Alaska
stocks of northern sea otters will overlap with the areas where the
specified activities will occur; and (2) for each stock, the number of
sea otters anticipated to be harassed is small relative to the
population size of the stock.
Negligible Impact
For our negligible impacts determination, we considered the
following:
1. The applicant will implement monitoring requirements and
mitigation measures designed to reduce the potential impacts of their
operations on sea otters.
2. The distribution and habitat use patterns of sea otters indicate
that relatively few sea otters will occur in the specified areas of
activity at any particular time and, therefore, few sea otters are
likely to be affected. The potential for stock-wide effects resulting
from exposure to and disturbance from the specified activities is
further reduced by the relatively small area of the specified
activities compared to the range of the Southwest, Southcentral, and
Southeast Alaska stocks of northern sea otters.
3. The documented impacts of previous anthropogenic activities on
sea otters, taking into consideration cumulative effects, suggests that
the types of activities analyzed for this ITR will have minimal effects
and will be short-term, temporary behavioral changes.
4. The Service does not anticipate any lethal or injurious
harassment take that would remove individual sea otters from the
population. Nor does the Service anticipate any impacts that would
hinder or prevent their successful reproduction or successful rearing.
Incidental harassment events are anticipated to be limited to human
interactions that lead to short-term behavioral disturbances. These
disturbances would not affect the rates of recruitment or survival for
sea otter stocks. This ITR does not facilitate the authorization of
injurious or lethal take, and we do not anticipate any such take will
occur.
We also considered the specific congressional direction in
balancing the potential for a significant impact with the likelihood of
that event occurring. The specific congressional direction that
justifies balancing probabilities with impacts follows:
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
Service 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 16305 (October 15, 1986)).
We reviewed the effects of the pile driving and marine construction
on sea otters, including impacts from insertion and removal of piles,
socket drilling, and underwater use of tools. 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 northern 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 during previously conducted activities in the specified geographic
region. We determine that the mitigation measures included within the
USCG's request will ensure least practicable adverse impacts 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 are
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). We assessed whether any additional,
practicable requirements could be implemented to further reduce effects
but did not identify any.
To reduce the potential for disturbance from acoustic stimuli
associated with the activities, the USCG has proposed mitigation
measures, including the following:
Using the smallest diameter piles practicable while
minimizing the overall number of piles;
Using block cushions or pile caps to reduce transmission
of sounds from pile-driving into the water column;
Conducting activities that may produce in-water sound as
close to low tide as possible;
Development of a marine mammal monitoring and mitigation
plan;
Establishment of shutdown and monitoring zones;
Visual mitigation monitoring by designated Protected
Species Observers (PSO);
Limiting in-water activity to daylight hours;
Site clearance before startup;
Soft-start procedures; and
Shutdown procedures.
These measures are further specified under Sec. 18.149,
Mitigation.
The USCG considered using bubble curtains to dampen underwater
sounds produced during planned activities. This was deemed to be
impracticable based on safety concerns arising from the presence of
contaminated sediments and unexploded ordnance at the work sites. The
Service has not identified any additional (i.e., not already
incorporated into the USCG's request or, in the case of block cushions,
agreed to in subsequent communication) mitigation or monitoring
measures that are practicable and would further reduce potential
impacts to sea otters and their habitat.
Impact on Subsistence Use
The USCG's specified activities will occur at existing USCG
facilities located
[[Page 24121]]
in developed areas where firearm use is largely prohibited. The USCG's
specified activities will not preclude access to any known harvest
areas, and we do not anticipate that these activities will otherwise
reduce the availability of sea otters for harvest. We therefore make a
finding that the USCG's anticipated harassment will not have an
unmitigable adverse impact on the availability of any stock of northern
sea otters for taking for subsistence uses. In making this finding, we
considered the timing and location of the proposed activities and the
timing and location of subsistence harvest activities in the area of
the proposed project.
Monitoring and Reporting
The purposes of the monitoring requirements are to document and
provide data for assessing 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. Monitoring plans
include steps to document when and how sea otters are encountered and
their numbers and behaviors during these encounters. This information
allows the Service to measure encounter rates and trends and to
estimate numbers of animals potentially affected. To the extent
possible, monitors will record group size, age, sex, reaction, duration
of interaction, and closest approach to the project activity.
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.
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 August 15, 2022 (87 FR 50041). We also reviewed and considered
comments and information from the public concerning our draft EA. We
are finalizing these regulations with the following changes from our
proposed rule: (1) The addition of POCs to the procedures to obtain an
LOA in Sec. 18.145, (2) the addition of sound-dampening cushion blocks
or pile caps to mitigation measures pursuant to communication with the
USCG wherein the USCG clarified its intent to adopt this mitigation
measure, and (3) the addition of information collection requirements in
Sec. 18.152.
Summary of and Response to Comments and Recommendations
During the public comment period, we requested written comments
from the public on the proposed ITR as well as the draft EA. The
comment period opened August 15, 2022, and closed September 14, 2022.
We received four comment submissions; these included comments on the
proposed rule and the draft EA as well as a number of publications and
other documents submitted in support of those comments.
Response to Comments
Comment 1: One commenter stated that the Service failed to consider
the potential for take by Level A harassment as we did not disclose the
size of the area that may be ensonified to levels capable of causing
Level A harassment, nor did we estimate how many animals could be
present in this area. The commenter further stated that the Service
determined that sea otters would not be affected by sounds at these
levels because they could escape the area and because they spend much
of their time with their heads above water.
Response: The Service disagrees. For activities that may generate
sound levels capable of eliciting Level A harassment, the sound
isopleths appeared in the proposed rule for these ITRs published August
15, 2022 (87 FR 50041), in the maps and summary tables for each site.
The Service described otters' escape response as part of the review of
literature regarding documented reactions of sea otters to vessels and
noise; we did not use this information to assess the level of risk of
exposure of sea otters to underwater sounds. The Service does not
consider the amount of time that otters spend with their head above
water as a reason to use in-air noise criteria. Instead, we use the
larger underwater sound isopleth radii to estimate the number of
animals exposed to sounds generated by activities that generate both
in-water and in-air sounds. The Service has determined that this is a
more conservative approach to assess the impacts of these sound
sources.
We concluded that, because the sound isopleth radii for Level A
harassment are all smaller than the 20-meter (m) shutdown zone
prescribed in the mitigation measures, exposure of sea otters to sounds
that may cause Level A harassment is not anticipated. Further, no
coverage for take by Level A harassment was requested by the USCG.
Comment 2: One commenter stated that the effects of underwater
noise on sea otters could not be assessed as sea otter hearing is not
fully understood and that criteria for Level A harassment had not been
set by the National Marine Fisheries Service (NMFS).
Response: The Service agrees that a better understanding of sea
otter hearing and reactions to sounds would improve our ability to
analyze potential effects of anthropogenic activity. At this time, the
best available syntheses of studies of sea otter hearing, behavioral
response to sounds, and suggested criteria for acoustic threshold shift
and injury are presented in Southall et al. 2019 and 2021. We used the
thresholds established for ``Other Marine Carnivores'' to inform our
estimates of exposure of sea otters to sounds that could result in
harassment, which we consider the best available scientific evidence.
This is similar to the approach taken by NMFS to set criteria for their
trust species, i.e., cetaceans, seals, and sea lions.
Comment 3: One commenter stated that the estimated incidental take
did not constitute a small number under the MMPA because the total take
will not have a negligible impact.
Response: The Service disagrees. The ``small numbers'' and
``negligible impact'' findings are made independently. Information on
the definitions of small numbers and negligible impact can be found
above in Background and in the same section in the proposed rule for
these ITRs published August 15, 2022 (87 FR 50041).
Comment 4: One commenter stated that the Service should not make
decisions regarding impacts to sea otters based on the outdated 2014
stock assessment reports (SAR) and should wait until updated SARs
become available.
Response: The Service disagrees. As presented in the proposed rule
for these ITRs published August 15, 2022 (87 FR 50041), to evaluate
potential effects to sea otters, we used both the 2014 SARs and the
most recently available population estimates based on surveys
[[Page 24122]]
conducted since the finalization of the 2014 SARs (Eisaguirre et al.
2021; Esslinger et al. 2021; USFWS 2020). We consider this information
the best available scientific evidence.
Comment 5: One commenter stated that authorizing take would be
inappropriate given that population dynamics of sea otters indicated
that sea otters are not thriving and that threats to sea otters are
increasing, particularly pathogens.
Response: The Service disagrees. The most recent data concerning
sea otter populations and threats were used to evaluate potential
impacts to sea otters. No removals of sea otters are authorized, and we
expect that the effects of the planned activities upon individual sea
otters will be minor. We do not expect such take to have effects at the
stock or population level. We find that the authorized taking would
have a negligible impact on each stock of sea otters, even when
cumulative effects from other factors are considered.
Comment 6: One commenter stated that the Service's NEPA analysis
failed to consider cumulative impacts from the effects of MMPA
authorizations for other projects, or cumulative impacts arising from
both direct and indirect results of climate change.
Response: The Service disagrees. The draft EA addresses cumulative
effects resulting from changes in environment arising from climate
change as well as anthropogenic activities, including coastal
development and industrial activity. Given the temporary nature of the
effects to the behavior and distribution of individual sea otters that
could potentially result from the activities covered by these and other
ITRs, the Service does not see evidence supporting the notion that
authorizing the Level B harassment of a small number of sea otters will
appreciably contribute to detrimental cumulative effects.
Required Determinations
National Environmental Policy Act
We have prepared an environmental assessment in accordance with the
NEPA (42 U.S.C. 4321 et seq.). We have concluded that authorizing the
nonlethal, incidental, unintentional take by Level B harassment of up
to 5 incidental takes of 5 sea otters from the Southwest Alaska stock,
255 incidental takes of 77 sea otters from the Southcentral Alaska
stock, and 700 incidental takes of 115 otters from the Southeast Alaska
stock in Alaska during activities conducted by the USCG and its
subcontractors during the regulatory period would not significantly
affect the quality of the human environment, and that the preparation
of an environmental impact statement for this incidental take
authorization is not required by section 102(2) of NEPA or its
implementing regulations. A copy of the EA and the Service's FONSI can
be obtained from the locations described in ADDRESSES.
Endangered Species Act
Under the Endangered Species Act (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 Service conducted intra-Service consultation under
section 7 of the ESA on our issuance of an ITR. These evaluations and
findings are available on the Service's website at https://ecos.fws.gov/ecp/report/biological-opinion.
Government-to-Government Coordination
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 Alaska Native Relations Policy of the U.S. Fish and
Wildlife Service (currently in draft form; see 87 FR 66255, November 3,
2022);
(3) Executive Order 13175 (January 9, 2000);
(4) Department of the Interior Secretary Orders 3206 (June 5,
1997), 3225 (January 19, 2001), 3317 (December 1, 2011), 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 (November 30, 2022).
We have evaluated possible effects of the planned activities on
federally recognized Alaska Native Tribes and organizations. The
Service has determined that, due to this project's locations and
activities, the Tribal organizations and communities across the Gulf of
Alaska, as well as relevant Alaska Native Claims Settlement Act (ANCSA)
corporations, will not be impacted by this project. Regardless, the
Service 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
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB)
will review all significant rules for a determination of significance.
The OMB has designated this rule as not significant.
Executive Order 13563 reaffirms the principles of Executive Order
12866 while calling for improvements in the Nation's regulatory system
to promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The Executive order directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. Executive Order 13563
emphasizes further that regulations must be based on the best available
science and that the rulemaking process must allow for public
participation and an open exchange of ideas. We have developed this
rule in a manner consistent with these requirements.
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
[[Page 24123]]
of their recipients; and (d) Whether the rule raises novel legal or
policy issues.
Expenses will be related to, but not necessarily limited to: the
development of applications for LOAs; monitoring, recordkeeping, and
reporting activities conducted during project operations; 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 marine construction operations. The actual costs to develop the
petition for promulgation of regulations and LOA requests do not exceed
$200,000 per year, short of the ``major rule'' threshold that would
require preparation of a regulatory impact analysis.
Congressional Review Act
We have determined that this rule is not a major rule under 5
U.S.C. 804(2), the Congressional Review 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 activities
in the GOA, 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 Executive Order
12630 because it facilitates the authorization of nonlethal,
incidental, but not intentional, take of sea otters by pile driving and
marine construction and, thereby, exempts these companies 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
Executive Order 13132. The MMPA gives the Secretary of the Interior
and, by delegation, the Service 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
Service has determined and 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
regulation does not unduly burden the judicial system and meets the
applicable standards provided in sections 3(a) and 3(b)(2) of Executive
Order 12988.
Paperwork Reduction Act
This final rule contains a collection of information we submitted
to the OMB. All information collections require approval under the
Paperwork Reduction Act of 1995 (PRA; 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 OMB previously reviewed and approved the
information collection requirements associated with incidental take of
marine mammals and assigned OMB Control Number 1018-0070 (expires
January 31, 2024).
While the new regulations in 50 CFR part 18, subpart L, pertain
only to the incidental taking of northern sea otters (while engaged in
activities associated with or in support of marine construction
activities in the Gulf of Alaska), the below listed information
collections approved by the OMB also included previously existing
requirements associated with the incidental taking of polar bears
(Ursus maritimus), Pacific walruses (Odobenus rosmarus divergens), and
northern sea otters in Alaska brought into compliance with the PRA.
The Marine Mammal Protection Act of 1972, as amended (MMPA; 16
U.S.C. 1361 et seq.), imposed, with certain exceptions, a moratorium on
the taking of marine mammals. Section 101(a)(5)(A) of the MMPA directs
the Secretary of the Interior to allow, upon request by citizens of the
United States, the taking of small numbers of marine mammals incidental
to specified activities (other than commercial fishing) if the
Secretary makes certain findings and prescribes specific regulations
that, among other things, establish permissible methods of taking. This
is a nonform collection. Respondents must comply with the regulations
at 50 CFR 18.27, 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, subparts J (incidental take of polar bears and Pacific
walruses in the Beaufort Sea), K (incidental take of northern sea
otters in the Cook Inlet), and L (incidental take of northern sea
otters in the Gulf of Alaska). 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, and (if an LOA is issued) what conditions
should be included in the LOA. 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. The OMB approved the below listed revisions
to existing and new reporting and/or recordkeeping requirements
identified below:
(1) Addition of New Subpart--With this final rule, we added a new
subpart, 50 CFR part 18, subpart L (U.S. Coast Guard), for a period of
5 years effective from the date of final issuance of these ITRs. This
new subpart does not require new information collections beyond those
contained in this submission, which were previously approved by OMB.
The addition of subpart L does, however, require an adjustment to the
previously approved burden for the application, reporting, and
recordkeeping burden requirements.
(2) We also revised the previously approved ``Onsite Monitoring and
Observation Reports'' information collection to split it into three
separate information collections to more accurately account for burden
for the various components under this specific section of the
regulations:
a. In-Season Monitoring (Activity Progress Reports) (50 CFR
[[Page 24124]]
18.127(a)(1))--Activity progress reports. Holders of an LOA must:
Notify the Service at least 48 hours prior to the onset of
activities;
Provide the Service weekly progress reports of any
significant changes in activities and/or locations; and
Notify the Service within 48 hours after ending of
activities.
b. In-Season Monitoring (Polar Bear Observation Reports) (50 CFR
18.127(a)(3))--Holders of an LOA must report, within 48 hours, all
observations of polar bears and potential polar bear dens, during any
industry activity. Upon request, monitoring report data must be
provided in a common electronic format (to be specified by the
Service). Information in the observation report must include, but is
not limited to:
Date, time, and location of observation;
Number of polar bears;
Sex and age of polar bears (if known);
Observer name and contact information;
Weather, visibility, sea state, and sea-ice conditions at
the time of observation;
Estimated closest distance of polar bears from personnel
and facilities;
Industry activity at time of sighting;
Possible attractants present;
Polar bear behavior;
Description of the encounter;
Duration of the encounter; and
Mitigation actions taken.
c. Notification of LOA Incident Report (50 CFR 18.127(b))--Holders
of an LOA must report, as soon as possible, but within 48 hours, all
LOA incidents during any industry activity. An LOA incident is any
situation when specified activities exceed the authority of an LOA,
when a mitigation measure was required but not enacted, or when injury
or death of a marine mammal occurs. Reports must include:
All information specified for an observation report;
A complete detailed description of the incident; and
Any other actions taken.
In addition to the revisions described above, we are bringing the
following existing regulatory requirements contained in part 18 not
previously approved by OMB under the PRA into compliance:
(1) Mitigation--Interaction Plan (50 CFR 18.126(a)(1)(iii))--All
holders of an LOA must have an approved polar bear safety, awareness,
and interaction plan on file with the Service's Marine Mammals
Management Office and onsite and provide polar bear awareness training
to certain personnel. Interaction plans must include:
The type of activity and where and when the activity will
occur (i.e., a summary of the plan of operation);
A food, waste, and other ``bear attractants'' management
plan;
Personnel training policies, procedures, and materials;
Site-specific walrus and polar bear interaction risk
evaluation and mitigation measures;
Polar bear avoidance and encounter procedures; and
Polar bear observation and reporting procedures.
(2) Mitigation--3rd-Party Notifications (50 CFR 18.126(a)(2) and
(e)(1))--All applicants for an LOA must contact affected subsistence
communities and hunter organizations to discuss potential conflicts
caused by the activities and provide the Service documentation of
communications as described in Sec. 18.122.
(3) Mitigation--Requests for Exemption Waivers (50 CFR
18.126(c)(4))--Exemption waivers to the operating conditions in 50 CFR
18.126(c) may be issued by the Service on a case-by-case basis, based
upon a review of seasonal ice conditions and available information on
walrus and polar bear distributions in the area of interest.
(4) Mitigation--Plan of Cooperation (50 CFR 18.126(e)(2))--When
appropriate, a holder of an LOA will be required to develop and
implement a Service-approved POC. 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 walruses and polar bears and
to ensure continued availability of the species for subsistence use.
The Service will review the POC to ensure that any potential adverse
effects on the availability of the animals are minimized. The Service
will reject POCs if they do not provide adequate safeguards to ensure
the least practicable adverse impact on the availability of walruses
and polar bears for subsistence use.
We also renewed the existing reporting and/or recordkeeping
requirements identified below:
(1) 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, subparts J, K, and L. 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:
A description of the specific activity or class of
activities that can be expected to result in incidental taking of
marine mammals.
The dates and duration of such activity and the specific
geographical region where it will occur.
Based on the best available scientific information, each
applicant must also provide:
--An estimate of the species and numbers of marine mammals likely to be
taken by age, sex, and reproductive conditions;
--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;
--A description of the status, distribution, and seasonal distribution
(when applicable) of the affected species or stocks likely to be
affected by such activities;
--The anticipated impact of the activity upon the species or stocks;
and
--The anticipated impact of the activity on the availability of the
species or stocks for subsistence uses.
The anticipated impact of the activity upon the habitat of
the marine mammal populations and the likelihood of restoration of the
affected habitat.
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.)
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.
Suggested means of learning of, encouraging, and
coordinating research opportunities, plans, and activities
[[Page 24125]]
relating to reducing such incidental taking from such specified
activities, and evaluating its effects.
Applicants must develop and implement a site-specific (or
umbrella plan addressing site-specific considerations), Service-
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.
Applicants must also provide trained, qualified, and
Service-approved onsite observers to carry out monitoring and
mitigation activities identified in the marine mammal monitoring and
mitigation plan.
This information is necessary for the Service to anticipate the
impact of the activity on the species or stocks and on the availability
of the species or stocks for 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) Final Monitoring Report--The results of monitoring and
mitigation efforts identified in the marine mammal monitoring and
mitigation plan must be submitted to the Service for review within 90
days of the expiration of an LOA. Upon request, final report data must
be provided in a common electronic format (to be specified by the
Service). Information in the final (or annual) report must include, but
is not limited to:
Copies of all observation reports submitted under the LOA;
A summary of the observation reports;
A summary of monitoring and mitigation efforts including
areas, total hours, total distances, and distribution;
Analysis of factors affecting the visibility and
detectability of walruses and polar bears during monitoring;
Analysis of the effectiveness of mitigation measures;
Analysis of the distribution, abundance, and behavior of
walruses and/or polar bears observed; and
Estimates of take in relation to the specified activities.
(3) 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 Service will, to the maximum extent
possible, process subsequent requests for LOAs within 30 days after
receipt of the request by the Service. 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.
(4) Onsite Monitoring and Observation Reports (See revision section
above.)--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,
Pacific walruses (walruses), and northern sea otters (otters), we have
required monitoring and reporting during oil and gas industry
activities. The purpose of monitoring and reporting requirements is to
assess the effects of industrial activities on polar bears, walruses,
and otters to ensure that take is minimal to marine mammal 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 polar bear 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.
(5) Polar Bear Den Detection Report--Holders of an LOA seeking to
carry out onshore activities in known or suspected polar bear denning
habitat during the denning season must make efforts to locate occupied
polar bear dens within and near proposed areas of operation. They may
use any appropriate tool, such as forward-looking infrared imagery and/
or polar bear scent-trained dogs, in concert with denning habitat maps
along the Alaskan coast. In accordance with 50 CFR 18.128(b)(1) and
(b)(2), LOA holders must report all observed or suspected polar bear
dens to us prior to the initiation of activities. We use this
information to determine the appropriate terms and conditions in an
individual LOA in order to minimize potential impacts and disturbance
to polar bears.
Holders of an LOA seeking to carry out onshore activities during
the denning season (November-April) must conduct two separate surveys
for occupied polar bear dens in all denning habitat within 1.6 km (1
mi) of proposed activities using aerial infrared (AIR) imagery.
Further, all denning habitat within 1.6 km (1 mi) of areas of proposed
seismic surveys must be surveyed three separate times with AIR
technology.
Flight crews will record and report environmental parameters
including air temperature, dew point, wind speed and direction, cloud
ceiling, and percent humidity, and a flight log will be provided to the
Service within 48 hours of the flight.
Title of Collection: Incidental Take of Marine Mammals During
Specified Activities, 50 CFR 18.27 and 50 CFR part 18, subparts J, K,
and L.
OMB Control Number: 1018-0070.
Form Numbers: None.
Type of Review: Revision of a currently approved collection.
Respondents/Affected Public: Individuals/households, private sector
(oil and gas industry companies), State/local/Tribal governments, and
Federal Government.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: On occasion.
Total Estimated Annual Non-Hour Burden Cost: $200,000 (associated
with the polar bear den detection survey and report).
[[Page 24126]]
----------------------------------------------------------------------------------------------------------------
Number of Number of Average
Type of action annual responses Total annual completion Total annual
respondents each responses time (hours) burden hours
----------------------------------------------------------------------------------------------------------------
Incidental Take of Marine
Mammals--Application for
Regulations:
Reporting--Private Sector... 3 1 3 20 450
Recordkeeping--Private 130
Sector.....................
Reporting--Government....... 2 1 2 20 300
Recordkeeping--Government... 130
----------------------------------------------------------------------------------------------------------------
Requests--Letters of
Authorization:
Reporting--Private Sector... 15 4 60 8 1,440
Recordkeeping--Private 16
Sector.....................
Reporting--Government....... 5 4 20 8 480
Recordkeeping--Government... 16
----------------------------------------------------------------------------------------------------------------
Final Monitoring Report:
Reporting--Private Sector... 15 4 60 8 1,440
Recordkeeping--Private 42
Sector.....................
Reporting--Government....... 5 4 20 8 480
Recordkeeping--Government... 42
----------------------------------------------------------------------------------------------------------------
Polar Bear Den Detection Report
(50 CFR 18.126(b)(1)(iv)):
Reporting--Private Sector... 4 1 4 8 200
Recordkeeping--Private 42
Sector.....................
----------------------------------------------------------------------------------------------------------------
In-season Monitoring--Activity
Progress Reports (50 CFR
18.127(a)(1)) NEW (Revised):
Reporting--Private Sector... 1 1 1 .5 1
Recordkeeping--Private .5
Sector.....................
Reporting--Government....... 1 1 1 .5 1
Recordkeeping--Government... .5
----------------------------------------------------------------------------------------------------------------
In-season Monitoring--Polar Bear
Observation Reports (50 CFR
18.127(a)(3)) NEW (Revised):
Reporting--Private Sector... 15 4.5 68 .25 85
Recordkeeping--Private 1
Sector.....................
Reporting--Government....... 1 7 7 .25 9
Recordkeeping--Government... 1
----------------------------------------------------------------------------------------------------------------
Notification of LOA Incident
Report (50 CFR 18.127(b)) NEW
(Revised):
Reporting--Private Sector... 2 1 2 .25 2
Recordkeeping--Private .5
Sector.....................
Reporting--Government....... 1 1 1 .25 1
Recordkeeping--Government... .5
----------------------------------------------------------------------------------------------------------------
Mitigation--Interaction Plan (50
CFR 18.126(a)(1)(iii)) NEW
(Existing):
Reporting--Private Sector... 12 1 12 2 96
Recordkeeping--Private 6
Sector.....................
Reporting--Government....... 3 1 3 2 24
Recordkeeping--Government... 6
----------------------------------------------------------------------------------------------------------------
Mitigation--3rd Party
Notifications (50 CFR
18.126(a)(2) and (e)(1)) NEW
(Existing):
Reporting--Private Sector... 12 3 36 1 72
Recordkeeping--Private 1
Sector.....................
Reporting--Government....... 3 3 9 1 18
Recordkeeping--Government... 1
----------------------------------------------------------------------------------------------------------------
Mitigation--Requests for
Exemption Waivers (50 CFR
18.126(c)(4)) NEW (Existing):
Reporting--Private Sector... 1 1 1 1 2
Recordkeeping--Private 1
Sector.....................
Reporting--Government....... 1 1 1 1 2
Recordkeeping--Government... 1
----------------------------------------------------------------------------------------------------------------
Mitigation--Plan of Cooperation
(50 CFR 18.126(e)(2)) NEW
(Existing):
Reporting--Private Sector... 1 1 1 10 40
Recordkeeping--Private 30
Sector.....................
Reporting--Government....... 1 1 1 10 40
[[Page 24127]]
Recordkeeping--Government... 30
-------------------------------------------------------------------------------
Totals.................. 104 .............. 313 .............. 5,183
----------------------------------------------------------------------------------------------------------------
On August 15, 2022, we published a proposed rule (87 FR 50041)
soliciting comments on this collection of information for 60 days,
ending on October 14, 2022. No comments on this collection of
information were received.
As part of our continuing effort to reduce paperwork and respondent
burdens, we invite the public and other Federal agencies to comment on
any aspect of this 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.
Energy Effects
Executive Order 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. These specified activities are unrelated
to the oil and gas industry or any other energy-related industry.
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-2022-0025, available at https://www.regulations.gov.
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 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. Add subpart L, consisting of Sec. Sec. 18.142 through 18.152, to
read as follows:
Subpart L--Nonlethal Taking of Marine Mammals Incidental to Pile
Driving and Marine Construction Activities in the Gulf of Alaska
Sec.
18.142 Specified activities covered by this subpart.
18.14 Specified geographic region where this subpart applies.
18.144 Dates this subpart is in effect.
18.145 Procedure to obtain a Letter of Authorization (LOA).
18.146 How the Service will evaluate a request for an LOA.
18.147 Authorized take allowed under an LOA.
18.148 Prohibited take under an LOA.
18.149 Mitigation.
18.150 Monitoring.
18.151 Reporting requirements.
18.152 Information collection requirements.
Sec. 18.142 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 (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 marine construction activities in the Gulf of Alaska. The applicant
is a U.S. citizen as defined in Sec. 18.27(c).
Sec. 18.143 Specified geographic region where this subpart applies.
(a) The specified geographic region encompasses areas within 2
kilometers (km) (~1.25 miles (mi)) of eight USCG facilities within the
USCG Civil Engineering Unit, Juneau Area of Responsibility. These
facilities are: Base Kodiak, Moorings Seward, Moorings Valdez, Moorings
Cordova, Moorings Sitka, Station Juneau, Moorings Petersburg, and Base
Ketchikan.
(b) The geographic area of the incidental take regulations (ITRs)
in this subpart includes all Alaska State waters within the areas
listed in paragraph (a) of this section as well as all adjacent rivers,
estuaries, and coastal lands where sea otters may occur.
Sec. 18.144 Dates this subpart is in effect.
Regulations in this subpart are effective from May 19, 2023, until
May 19, 2028.
Sec. 18.145 Procedure to obtain a Letter of Authorization (LOA).
(a) The applicant must submit the request for authorization to the
U.S. Fish and Wildlife Service (Service) Alaska Region Marine Mammals
Management Office (MMM), MS 341, 1011 East Tudor Road, Anchorage,
Alaska, 99503, or by email at r7mmmregulatory@fws.gov, at least 30 days
prior to the start of the planned activity.
(b) The request for an LOA must comply with the requirements set
forth in Sec. Sec. 18.149 through 18.151 and must include the
following information:
(1) An operational plan for the activity;
(2) A digital geospatial file of the project footprint, including
sound isopleths;
(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) When appropriate, a plan of cooperation, which is a documented
plan that describes measures to mitigate potential conflicts between
planned project activities and subsistence hunting.
[[Page 24128]]
Sec. 18.146 How the Service will evaluate a request for an LOA.
(a) The Service will evaluate each request for an LOA to determine
if the proposed activity is consistent with the analysis and findings
made for the regulations in this subpart. Depending on the results of
the evaluation, we may issue the LOA, add further conditions, or deny
the LOA.
(b) Once issued, the Service may withdraw or suspend an LOA if the
project activity is modified in a way that undermines the results of
the previous evaluation, if the conditions of the regulations in this
subpart are not being substantially complied with, 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.
(c) The Service will make decisions concerning withdrawals of an
LOA, either on an individual or class basis, only after notice and
opportunity for public comment in accordance with Sec. 18.27(f)(5).
The requirement for notice and public comment will not apply should we
determine that an emergency exists that poses a significant risk to the
well-being of the species or stocks of sea otters.
Sec. 18.147 Authorized take allowed under an LOA.
(a) To incidentally take sea otters pursuant to the regulations in
this subpart, the USCG must apply for and obtain an LOA in accordance
with Sec. Sec. 18.27(f) and 18.145. The applicant is a U.S. citizen as
defined in Sec. 18.27(c).
(b) An LOA allows for the nonlethal, incidental, but not
intentional take by harassment of sea otters during activities
specified in Sec. 18.142 within the Gulf of Alaska ITR region
described in Sec. 18.143.
(c) Each LOA will set forth:
(1) Permissible methods of incidental take;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(d) Issuance of the LOA(s) must be based on a determination that
the level of take will be consistent with the findings made for the
total allowable take under the regulations in this subpart.
Sec. 18.148 Prohibited take under an LOA.
(a) Except as otherwise provided in this subpart, prohibited taking
is described in Sec. 18.11 as well as: intentional take, lethal
incidental take of sea otters, and any take that fails to comply with
this subpart or with the terms and conditions of an LOA.
(b) If project activities cause unauthorized take, the applicant
must take the following actions:
(1) Cease activities immediately (or reduce activities to the
minimum level necessary to maintain safety) and report the details of
the incident to the Service MMM at 1-800-362-5148 (business hours)
within 48 hours; and
(2) Suspend further activities until the Service has reviewed the
circumstances, determined whether additional mitigation measures are
necessary to avoid further unauthorized taking, and notified the
applicant that project activities may resume.
Sec. 18.149 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 Service, 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 Service'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 Service personnel or the Service's designated
representative to board project vessels or visit project worksites for
the purpose of monitoring impacts to sea otters and 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 Service 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 underwater sound within the
range of frequencies audible to sea otters.
(2) During all pile-installation activities, regardless of
predicted sound levels, a physical interaction shutdown zone of 20
meters (m) (66 feet (ft)) must be enforced. If a sea otter enters the
shutdown zone, in-water activities must be delayed until either the
animal has been visually observed outside the shutdown zone or 15
minutes have elapsed since the last observation time without
redetection of the animal.
(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, followed by a 1-minute waiting period,
before full-powered proofing strikes.
(4) 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.
(5) All in-water work along the shoreline must be conducted during
low tide when the site is dewatered to the maximum extent practicable.
(6) When an impact hammer is used, noise-dampening block cushions
or pile caps will be placed between the hammer and pile.
(c) Mitigation measures for vessel operations. Vessel operators
must take every precaution to avoid harassment of sea otters when a
vessel is operating near these animals. The applicant must carry out
the following measures:
(1) Vessels must remain at least 500 m (1,640 ft) from rafts of sea
otters unless safety is a factor. Vessels must reduce speed and
maintain a distance of 100 m (328 ft) from all sea otters unless safety
is a factor.
(2) Vessels must not be operated in such a way as to separate
members of
[[Page 24129]]
a group of sea otters from other members of the group and must avoid
alongshore travel 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 avoid 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 paragraph (c) of this section.
Sec. 18.150 Monitoring.
(a) Operators must work with PSOs to apply mitigation measures and
must 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 exclusion zones during
all daytime periods of underwater noise-generating work; a maximum of 4
consecutive hours on watch per PSO; a maximum of approximately 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.
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 Service to review.
(e) Observers will be provided with reticule binoculars (10x42),
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) 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, wind force, and
weather will be collected at the beginning and end of a monitoring
period, every hour in between, at the change of an observer, and upon
sightings of sea otters.
(3) Observation records of sea otters will include date; time; the
observer's locations, heading, and speed (if moving); weather;
visibility; number of animals; group size and composition (adults/
juveniles); and the location of the animals (or distance and direction
from the observer).
(4) Observation records will also include initial behaviors of the
sea otters, descriptions of project activities and underwater sound
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 vessel 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) Observers will note any instances of animals lingering close to
or traveling with vessels for prolonged periods of time.
Sec. 18.151 Reporting requirements.
(a) Operators must notify the Service at least 48 hours prior to
commencement of activities.
(b) Monthly reports will be submitted to the Service MMM for all
months 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's sea
state and wind force conditions) when sea otters were sighted; 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 Service within 90 days
after the expiration of each LOA. It will include the following:
(1) A summary of monitoring efforts (hours of monitoring,
activities monitored, number of PSOs, and, if requested by the Service,
the daily monitoring logs).
(2) A description of all project activities, along with any
additional work yet to be done. Factors influencing visibility and
detectability of marine mammals (e.g., sea state, number of observers,
and fog and glare) will be discussed.
(3) A description of the factors affecting the presence and
distribution of sea otters (e.g., weather, sea state, and project
activities). An estimate will be included of the number of sea otters
exposed to noise at received levels greater than or equal to 160
dBRMS re: 1 [mu]Pa (decibels root-mean squared referenced to
1 microPascal) (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 Service in the form of electronic database or spreadsheet files.
(d) All reports must be submitted by email to
fw7_mmm_reports@fws.gov.
(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
Service within 24 hours of the discovery to either the Service 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 Service.
(f) Operators must notify the Service upon project completion or
end of the work season.
Sec. 18.152 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 1018-0070. 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 Service's Information Collection
Clearance Officer at the address provided at 50 CFR 2.1(b).
Shannon Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2023-08258 Filed 4-18-23; 8:45 am]
BILLING CODE 4333-15-P