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Federal Register / Vol. 86, No. 33 / Monday, February 22, 2021 / Notices their hunters ability to land whales, given challenges during the 2019
whaling season. A commenter stated that because Level A harassment takes could result in injury or mortality, observers play an important mitigation role. If a marine mammal is about to enter or is within the Level A
harassment zone, the observer must halt operations to prevent injury. NMFS
should require AGDC to have a monitoring plan that allows observers to see the entire Level A monitoring zone.
In a related comment, a commenter stated that NMFS failed to meet the least practicable adverse impact standard because the proposed shutdown zones are smaller than the Level A harassment zones. The commenter asserts that NMFS failed to ensure that ice seals are adequately protected from take, and that rather than adopting more effective monitoring methods for the shutdown zone such as passive acoustic or thermal monitoring in response to the PRPs comment that PSOs would be unable to adequately monitor the shutdown zone, NMFS decreased the shutdown zone to 500 m for seals.
Commenters stated that previous monitoring for oil and gas projects show that sightability curves begin to drop off at 1 km for whales and 200 m for seals even when conditions are suitable for seeing marine mammals LGL et al., 2011, Figures 3.28 and 3.44. This means that whales and seals beyond those distances would be very difficult, if not impossible at times, to see. The result of this difficulty could be misinterpretations of data, such as a downward bias in estimated takes. The situation is even worse during inclement and windy weather or in low light conditions and at night. Observers stationed near the pile driving activities would not be able to adequately monitor the entirety of Level A zones.
Regarding Level B harassment, a commenter stated that monitoring the Level B harassment zone is required by NMFS so that IHA applicants can estimate how many marine mammals they disturbed during the construction activities. This is important to ensure that Level B harassment takes are kept small and do not exceed those allowed by NMFS. Monitoring and mitigating impacts are especially important for marine mammals that are important for subsistence.
In order to estimate the number of Level B harassment takes, there needs to be adequate monitoring of the Level B
harassment zones. Currently, AGDC is planning to have observers at West Dock and use some passive acoustic monitoring. We expect that AGDC is planning to use observations within the
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viewable zone of observers and somehow expand those observations to the entire Level B zone to estimate takes. The Open Water PRP did a good job of explaining the weaknesses and difficulties of using this approach.
NMFS should take advantage of the expertise of that panel and implement their recommendations on how to improve visual monitoring.
Response: NMFS is required to include measures that ensure the least practicable adverse impact, as we have done here, but the MMPA does not require applicants to mitigate to avoid all takes. In this case, shutdown zones that encompass the vast majority of the Level A harassment zones all but the outer portion of the phocid zone for impact pile driving, and an extremely small 6 m portion of the midfrequency MF cetacean zone during impact driving of 48-inch piles have been required, resulting in avoidance of Level A harassment for all but minimal numbers for three pinniped stocks, and minimization of more severe Level B
harassment. Monitoring of these shutdown zones is expected to be effectively accomplished with the monitoring protocols outlined below.
The least practicable adverse impact standard includes a practicability component, and it is not practicable for AGDC to observe the entire Level A
harassment zone for all species during all activities, given that the largest Level A harassment zone for phocids is estimated to be 843 m. The potential impacts of the activity were appropriately considered in the analysis, and given that the shutdown zones do not include the entire estimated Level A harassment zones for all activities, the IHA authorizes Level A harassment take of ringed, spotted and bearded seal, in case an animal enters the Level A harassment zone and remains in the zone for a long enough period to incur PTS. Given the duration component associated with calculation of Level A harassment zones, a marine mammal that enters A Level A
harassment zone does not always incur PTS. There is no evidence suggesting that PTS especially of the small degree that could potentially result from exposure to the pile driving in this activity has the potential to cause mortality. As described in the Negligible Impact Analysis and Determination section, animals that experience PTS
will likely only receive slight PTS, i.e., minor degradation of hearing capabilities within regions of hearing that align most completely with the frequency range of the energy produced by pile driving, i.e., the low-frequency region below 2 kilohertz kHz, not
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severe hearing impairment or impairment in the regions of greatest hearing sensitivity. If hearing impairment occurs, it is most likely that the affected animal will lose a few decibels in its hearing sensitivity, which in most cases is not likely to meaningfully affect its ability to forage and communicate with conspecifics.
The visibility distances cited by the commenter were also cited by the PRP, and originate from ship-based PSO
observations in the Chukchi Sea LGL et al., 2011. As NMFS described in the Monitoring Plan Peer Review section of this notice and the notice of the proposed IHA, while the 500 m shutdown distance for phocids is greater than the 200 m estimated by the PRP, AK LNG project PSOs will observe from elevated platforms on shore. Shorebased PSOs typically have greater visibility than vessel-based PSOs, and the elevation is expected to increase the distance that PSOs can effectively observe. NMFS consulted with AGDC
and its contractor, who has extensive experience conducting monitoring for marine mammals on the North Slope of Alaska, and given the elevated PSO sites and equipment, AGDC expects that PSOs will be able to effectively observe phocids at distances up to 500 m, large cetaceans at 24 km, and belugas at 2
3 km, and NMFS concurs. Therefore, the shutdown zones included in the proposed and final IHA are the largest practicable for AGDC to implement, and that PSOs will be able to effectively observe marine mammals within.
However, we note that the biological opinion includes a requirement for proportionate monitoring at all distances within the Level A harassment zone, such as a wedge of a circle, where that wedge contains at least 10 percent of the total zone i.e., a 36 degree wedge, in the event that PSOs cannot fully observe the Level A harassment zone.
As noted above, the shutdown zones are expected to minimize the potential for more severe Level B harassment take of marine mammals. However, monitoring requiring that PSOs observe the entire Level B harassment zone is not included, as it is not practicable, given the zone sizes. Monitoring the full zones would require multiple vessels, which is a great expense, potential safety risk to PSOs, and would result in additional vessel traffic in the project area. Given that AGDC is attempting to complete construction during the openwater period and the extended daylight on the North Slope during that time, the majority of the work will be completed during daylight hours, despite AGDCs
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