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Federal Register / Vol. 86, No. 113 / Tuesday, June 15, 2021 / Notices
POA proposed and NMFS has prescribed mitigation measures to minimize exposure to CIBWs, specifically, shutting down pile driving if CIBWs are observed approaching the mouth of Knik Arm, shutting down pile driving should a CIBW approach or enter the Level B harassment zone, stationing PSOs at Point Woronzof and Ship Creek, and not vibratory pile driving unattenuated battered piles during August or September peak CIBW season. These measures are designed to ensure CIBWs will not abandon critical habitat and exposure to pile driving noise will not result in adverse impacts on the reproduction or survival of any individuals. The location of PSOs at Point Woronzof allows for detection of CIBWs and behavioral observations prior to CIBWs entering Knik Arm. Although NMFS
does not anticipate CIBWs would abandon entering Knik Arm in the presence of pile driving with the required mitigation measures, these PSOs will be integral to identifying if CIBWs are potentially altering pathways they would otherwise take in the absence of pile driving. Finally, take by mortality, serious injury, or Level A
harassment of CIBWs is not anticipated or authorized.
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect the CIBWs through effects on annual rates of recruitment or survival:
No mortality is anticipated or authorized;
Area of exposure would be limited to travel corridors. Data demonstrates Level B harassment manifests as increased swim speeds past the POA
and tight group formations and not through habitat abandonment;
No critical foraging grounds e.g., Eagle Bay, Eagle River, Susitna Delta would be impacted by pile driving; and While animals could be harassed more than once, exposures are not likely to exceed more than a few per year for any given individual and are not expected to occur on sequential days;
thereby, decreasing the likelihood of physiological impacts caused by chronic stress or masking.
We also considered our negligible impact analysis with respect to NMFS
technical report released in January 2020 regarding the abundance and status of CIBWs Sheldon and Wade, 2019. As described in the marine mammal section, new analysis indicates the CIBW stock is smaller and declining faster than previously recognized. While this is concerning, NMFS continues to
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believe the taking authorized allowed for in the cases where shutdowns cannot occur in time to avoid Level B
harassment take will not impact the reproduction or survival of any individuals, much less the stock, and will thereby have a negligible impact.
The monitoring measures four stations each equipped with two PSOs simultaneously on watch at each station are extensive, such that we find it unlikely whales would go undetected.
The mitigation measures reduce noise entering the water column a benefit for all marine mammals through the use of an unconfined bubble curtain. Further, the exposure risk to CIBWs is greatly minimized through the incorporation of in-bound and out-bound whale pre-pile driving clearance zones. Finally, should pile driving be occurring at the same time a whale is detected, pile driving would shut down prior to its entering the Level B harassment zone. All these measures, as well as other required measures such as soft-starts, greatly reduce the risk of animals not accessing important foraging areas north of the POA, which could result in impacts to individual fitness or annual rates of recruitment or survival. For these reasons, the new status of CIBWs does not ultimately change our findings with respect to the specified activities.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.
Small Numbers As noted above, only small numbers of incidental take may be authorized under sections 101a5A and D of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted number of individuals to be taken is fewer than one third of the species or stock abundance, the take is considered to be of small numbers.
Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities. For all stocks, the amount of
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taking is less than one-third of the best available population abundance estimate in fact it is less than 9 percent for all stocks considered here; Table 10.
Based on the analysis contained herein of the proposed activity including the proposed mitigation and monitoring measures and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.
Unmitigable Adverse Impact Analysis and Determination In order to issue an IHA, NMFS must find that the specified activity will not have an unmitigable adverse impact on the subsistence uses of the affected marine mammal species or stocks by Alaskan Natives. NMFS has defined unmitigable adverse impact in 50 CFR
216.103 as an impact resulting from a specified activity that is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by either causing the marine mammals to abandon or avoid hunting areas, directly displacing subsistence users, or placing physical barriers between the marine mammals and the subsistence hunters. An unmitigable adverse impact can also results from a specified activity that cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.
No subsistence use of CIBWs occurs and subsistence harvest of other marine mammals in upper Cook Inlet is limited to harbor seals. Steller sea lions are rare in upper Cook Inlet; therefore, subsistence use of this species is not common. However, Steller sea lions are taken for subsistence use in lower Cook Inlet. In 2013 and 2014, the Alaska Department of Fish and Game conducted studies to document the harvest and use of wild resources by residents of four tribal communities in Cook Inlet: Tyonek, Nanwalek, Port Graham, and Seldovia Jones and Kostick, 2016. Tyonek is the community in closest proximity to Knik Arm while the other communities are located lower in Cook Inlet. The only marine mammal species taken by the Tyonek community was harbor seals from the McArthur River Flats north to the Beluga River Jones et al., 2015
south of Knik Arm while communities lower in the inlet relied on harbor seals, Steller sea lions and sea otters we note the sea otter is under the jurisdiction of the USFWS; therefore, it is not a part of our analysis.

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