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Federal Register / Vol. 86, No. 33 / Monday, February 22, 2021 / Notices winter/spring than in the summer/fall, as noted in Table 12 of this notice.
Therefore, if work is required during the contingency period due to construction delays during the open water season, takes of bearded seals are also expected to be lower than we have estimated in this authorization. For ringed seals, as NMFS noted in its response to Comment 27, there is a chance that a few seals could choose not to construct lairs in the project area due to construction noise in the contingency period, should construction occur during that time.
However, as noted previously, construction during the contingency period, if any, is expected to be very limited. Further, the majority of the project area in Prudhoe Bay is of 3 m depth or less, and is expected to be dominated by bottomfast ice in Feb April. Far fewer animals will be exposed to spring-based work because shorefast ice will be stationary, and only those seals that have breathing holes or lairs near the project are expected to be exposed.
As stated by the commenter, and in the notice of the proposed IHA, AGDC
will only operate one hammer at a time during all pile driving. The expected pile installation rate and number of piles AGDC expects to install per day incorporates the planned use of just one hammer at a time. Therefore, these estimates directly informed the expected amount of time spent pile driving in one day and therefore, the resulting take estimates on each construction day. Additionally, the plan to operate only one hammer at a time does not mean that multiple hammers of the same or different types cannot be used on the same day. Rather, it only means that one hammer can actually be operating, and therefore producing sound, at any given time.
Comment 31: A commenter stated that NMFS definition of small numbers conflates this criterion with the negligible impact requirement.
Although NMFS uses different headings for its small numbers and negligible impact findings, by defining small numbers to be relative to the overall population the criterion ends up being similar to the negligible impact finding.
The commenter further stated that instead, the small numbers requirement is intended to protect individual marine mammals. As the Ninth Circuit stated in Center for Biological Diversity v.
Salazar, legislative history confirms our reading of the statute if such confirmation is needed. The House Report accompanying Section 101a4
5 of the MMPA indicates that Congress intended small numbers and negligible impact to serve as two
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separate standards Center for Biological Diversity v. Salazar, 695 F.3d 893 9th Cir. 2012. The requirement that NMFS authorize the take of only small numbers of individual animals is no mere technicality. Congresss intent was that the MMPA protect not only populations, but individual marine mammals. While the negligible impact standard should serve to protect the species or population as a whole, the small numbers requirement guarantees that Congresss directive to protect individual marine mammals is carried out.
The commenter asserts the IHA fails to ensure that only small numbers of bowhead whales, ice seals, and the other marine mammals impacted by the AK LNG activities will be taken.
Response: NMFS did not conflate the small numbers determination with the separate, negligible impact determination. These analyses and determinations are not only discussed under separate headings, as noted by the commenter, but are also analyzed using separate criteria.
As stated in the small numbers section, the MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted number of individuals to be taken is fewer than one third of the species or stock abundance, the take is considered to be of small numbers.
Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities. NMFS directly stated in the Small Numbers section of the proposed IHA, and this final IHA, that Our analysis shows that less than one-third of the best available population abundance estimate of each stock could be taken by harassment in fact, take of individuals is less than two percent of the abundance for all affected stocks.
The number of animals proposed to be taken for each stock would be considered small relative to the relevant stocks abundances even if each estimated taking occurred to a new individual, which is an unlikely scenario.
This proportional approach relative to the affected population is supported by CBD v. Salazar, the same case cited by the commenter, which found that The Service can analyze small numbers in relation to the size of the larger population, so long as the negligible
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impact finding remains a distinct, separate standard. The negligible impact standard remains a distinct, separate standard, as evidenced in the Negligible Impact Analysis and Determination section, through which NMFS evaluates the type, context, and severity of any authorized take to assess the impacts of the take on the fitness and reproduction of any affected individual marine mammals, and then, where appropriate, analyzes how any impacts on individual fitness may or may not accrue to affect rates of recruitment and survival of the species or stock. This analysis is clearly and appropriately distinct from the small numbers evaluation.
For a more detailed discussion of NMFS interpretation and implementation of the small numbers standard, we refer the reader to the Small Numbers section of the Final Rule for the Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico 86 FR 5438; January 19, 2021.
The commenter did not explain what it meant by its assertion that the IHA
fails to ensure that only small numbers of bowhead whales, ice seals, and the other marine mammals impacted by the AK LNG activities will be taken.
Comment 32: A commenter stated that NMFS failed to implement means of effecting the least practicable impact on marine mammals by instead requiring mitigation measures that are known to be ineffective and by failing to adopt additional mitigation measures.
PSOs are not as effective in mitigating acoustic impacts as time-area restrictions NRDC v. Pritzker 828 F.3d 1125, 1133 9th Cir. 2016, Conserv.
Council of Hawaii, et al. v. National Marine Fisheries Service, et al., 97 F.
Supp. 3d 1210, 1230 D. Haw. 2015;
Dolman et al., 2009. For example, visual observation detection rates of marine mammals decline significantly as sea states rise above Beaufort 1
Barlow 2015.
Another commenter also noted that the IHA must prescribe means of effecting the least practicable adverse impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses referred to in shorthand as mitigation. The commenter stated that NMFS must ensure any proposed mitigation is sufficiently protective.
Response: The proposed and final IHAs require AGDC to implement a number of mitigation measures that
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