Regulations in this subpart apply to the nonlethal incidental, but not intentional, take, as defined in § 18.3 and under section 3 of the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1371 et seq.), of small numbers of northern sea otters (Enhydra lutris kenyoni; hereafter “sea otters”) by the U.S. Coast Guard (hereafter “USCG” or “the applicant”) while engaged in activities associated with or in support of pile driving and marine construction activities in Seward, Sitka, and Kodiak, Alaska. The applicant is a U.S. citizen as defined in § 18.27(c). A Letter of Authorization (LOA) from the U.S. Fish and Wildlife Service (FWS) is required to authorize incidental take that may occur during the specified activities.

The specified geographic region for the incidental take regulations (ITR) in this subpart includes Gulf of Alaska coastal waters of three USCG facilities. The specified activities would occur in the waters and intertidal areas of the eastern shore of Resurrection Bay, Alaska, surrounding the new USCG Moorings Seward, the waters and intertidal areas of Sitka Channel, Alaska, surrounding the USCG Moorings Sitka, and the waters and intertidal areas of Womens Bay, Kodiak, Alaska, which surround the USCG Base Kodiak located on the Nyman Peninsula.

The regulations in this subpart are effective from March 27, 2026 through March 27, 2031.

(a) The applicant must submit the request for an LOA to the FWS Alaska Region, Marine Mammals Management Office (MMM), MS 341, 1011 East Tudor Road, Anchorage, Alaska 99503, at least 30 days prior to the start of the specified activity.

(b) The request for an LOA must comply with the requirements set forth in §§ 18.107 through 18.109 and must include the following information:

(1) An operational plan that describes in detail the activity (e.g., type of project, methods, and types and numbers of equipment and personnel, etc.), the dates and duration of the activity, and the specific locations affected by the activity.

(2) A digital geospatial file of the project footprint.

(3) A site-specific marine mammal monitoring and mitigation plan that specifies the procedures to monitor and mitigate the effects of the activities on sea otters.

(4) Documentation of the applicant's communication with potentially affected subsistence communities surrounding Seward, Sitka, and Kodiak and appropriate subsistence user organizations to discuss the location, timing, and methods of activities and identify and mitigate any potential conflicts with subsistence sea otter hunting activities.

(i) The applicant must specifically inquire of relevant communities and organizations if the activity will interfere with the availability of sea otters for the subsistence use of those groups.

(ii) Documentation must include a summary of any concerns identified by community members and hunter organizations and the applicant's responses to identified concerns.

(iii) A plan of cooperation (POC) may not be required for an LOA request if no concerns are raised during community consultation regarding impacts to subsistence harvest or Alaska Native communities and subsistence user organizations.

(5) A POC, if required, to mitigate potential conflicts between the activity and subsistence hunting.

(a) The FWS will evaluate each request for an LOA to determine if the specified activity is consistent with the analysis and findings we made during the rulemaking process for this subpart.

(1) We will determine whether the level of activity identified in the request exceeds the level that we analyzed in estimating the number of animals to be taken and evaluating whether there will be a negligible impact on the species or stock and an unmitigable adverse impact on the availability of the species or stock for subsistence uses.

(2) If the level of activity is greater, we will evaluate the potential impact of this greater level of activity to determine if the potential impact is consistent with our findings. Depending on the results of the evaluation, we may grant the requested authorization, add further conditions, or deny the request for an LOA. An LOA will be limited to a 1-year period or less within the period set forth in § 18.102.

(b) The FWS will make decisions concerning withdrawal or suspension of an LOA (see § 18.27(f)(5) and (6)).

(a) To incidentally take marine mammals pursuant to the regulations in this subpart, the applicant must apply for and obtain an LOA in accordance with §§ 18.27(f), 18.103, and 18.104.

(b) An LOA issued under this subpart allows for the nonlethal, incidental, but not intentional take by harassment, as defined under section 3 of the MMPA (16 U.S.C. 1362), of sea otters during activities specified in § 18.100 within the Seward, Sitka, and Kodiak ITR region of Alaska described in § 18.101.

(c) Each LOA will set forth:

(1) Permissible methods of incidental take;

(2) Means of effecting the least practicable adverse impact on the species, its habitat, and the availability of the species for subsistence uses; and

(3) Requirements for monitoring and reporting.

(d) Allowable take under these regulations is limited to take by Level B harassment and Level A harassment (as those terms are defined at 16 U.S.C. 1362).

(e) Each LOA will identify terms and conditions for each activity and location.

(a) Except as otherwise provided in this subpart, prohibited taking includes the provisions of § 18.11 as well as: intentional take, lethal incidental take of sea otters, and any take that fails to comply with the regulations in this subpart or with the terms and conditions of an LOA.

(b) If specified activities cause unauthorized take, the holder of an LOA must:

(1) Cease activities immediately (or reduce activities to the minimum level necessary to maintain safety);

(2) Report the details of the incident within 24 hours to the FWS's MMM at 907-786-3800 (business hours) or via email at [email protected]. If the unauthorized taking results in a sea otter being injured or killed, call the FWS MMM during business hours or the Alaska SeaLife Center in Seward (1-888-774-7325, 24 hours a day);

(3) Provide photographs, video, location information, and any other available documentation related to the unauthorized take of the sea otter(s) to the FWS; and

(4) Suspend further activities until the FWS has reviewed the circumstances, determined whether additional mitigation measures are necessary to avoid further unauthorized taking, and notified the LOA holder that project activities may resume.

(a) Mitigation measures for all LOAs. The applicant, including all personnel operating under the applicant's authority (or “operators,” including contractors, subcontractors, and representatives) must undertake the following activities to avoid and minimize take of sea otters by harassment.

(1) Implement policies and procedures to avoid interactions with and minimize to the greatest extent practicable adverse impacts on sea otters, their habitat, and the availability of these marine mammals for subsistence uses.

(2) Develop avoidance and minimization policies and procedures, in cooperation with the FWS, that include temporal or spatial activity restrictions to be used in response to the presence of sea otters engaged in a biologically significant activity (e.g., resting, feeding, hauling out, mating, or nursing).

(3) Cooperate with the FWS's MMM Office and other designated Federal, State, and local agencies to monitor and mitigate the impacts of pile driving and marine construction activities on sea otters.

(4) Allow FWS personnel or the FWS's designated representative to board project vessels or visit project worksites for the purpose of monitoring impacts to sea otters and to subsistence uses of sea otters at any time throughout project activities so long as it is safe to do so.

(5) Designate trained and qualified protected species observers (PSOs) to monitor for the presence of sea otters, initiate mitigation measures, and monitor, record, and report the effects of the activities on sea otters. The applicant is responsible for providing training to PSOs to carry out mitigation and monitoring.

(6) Have an approved mitigation and monitoring plan on file with the FWS MMM and onsite that includes the following information:

(i) The type of activity and where and when the activity will occur (i.e., a summary of the plan of operation);

(ii) Personnel training policies, procedures, and materials;

(iii) Site-specific sea otter interaction risk evaluation and mitigation measures;

(iv) Sea otter avoidance and encounter procedures; and

(v) Sea otter observation and reporting procedures.

(b) Mitigation measures for in-water noise-generating work. The applicant must carry out the following measures:

(1) Construction activities must be conducted using equipment that generates the lowest practicable levels of in-water noise within the range of frequencies audible to sea otters.

(2) If a sea otter enters or appears likely to enter the shutdown zone, in-water activities must be shut down until either the sea otter has been visually observed outside the shutdown zone or at least 15 minutes have elapsed since the last observation time without redetection of the sea otter.

(i) During in-water activities at Seward, an acoustic shutdown zone of 85 meters (m; 280 feet [ft]) must be enforced during down-the-hole (DTH) drilling of concrete piles, and a shutdown zone of 30 m (99 ft) must be enforced during all other in-water activities.

(ii) During in-water activities at Sitka and Kodiak, regardless of predicted sound levels, a physical interaction shutdown zone of at least 20 m (66 ft) must be enforced.

(3) If the impact driver has been idled for more than 30 minutes, an initial set of three strikes from the impact driver must be delivered (at reduced energy if possible), followed by a 1-minute waiting period. This procedure will be conducted a total of three times before full-powered strikes if practicable. If unsafe working conditions during soft-starts occur (e.g., equipment failure), then the applicant may elect to discontinue soft-starts, and the applicant must notify the FWS if the soft-start procedure is discontinued.

(4) If practicable, a soft-start procedure for vibratory pile-driving activities may be implemented if the vibratory hammer has been idled for more than 30 minutes. During the soft-start procedure, initial noise generation must be limited to 15 seconds (at reduced energy if possible), followed by a 1-minute waiting period. This procedure will be conducted a total of three times before full-powered vibratory pile driving commences. If unsafe working conditions during soft-starts occur (e.g., equipment failure), then the applicant may elect to discontinue soft-starts and the applicant must notify the FWS if the soft-start procedure is discontinued.

(5) In-water activity must be conducted in daylight. If environmental conditions prevent visual detection of sea otters within the shutdown zone, in-water activities must be stopped until visibility is regained.

(6) All in-water work along the shoreline must be conducted during lower tidal conditions when the site is dewatered to the maximum extent practicable.

(7) When practicable, or when required by applicable local, State, or Federal regulations, the applicant must use containment methods (e.g., silt curtains) to isolate areas with high levels of turbidity during DTH drilling and vibroflot column installation.

(c) Mitigation measures for vessel operations. Vessel operators must take every precaution to avoid harassment of sea otters during vessel operations. The applicant must carry out the following measures:

(1) Vessels must maintain a minimum distance of 500 m (0.3 mile [mi]) from rafts of 10 or more sea otters unless otherwise needed for safety. If a vessel must transit within 500 m (0.3 mi) from rafts of sea otters, the vessel must travel at a reduced speed and maintain the maximum distance practicable between the vessel and raft of sea otters. Vessels must reduce speed and maintain a minimum distance of 100 m (328 ft) from all sea otters unless otherwise needed for safety.

(2) Vessels must not be operated in such a way as to separate members of a group of sea otters (two or more sea otters) from other members of the group, encircle sea otters, or impede movement of sea otters. Vessels must use established navigation channels or commonly recognized vessel traffic corridors and avoid approaching sea otters or impeding sea otter movements when traveling near the shoreline in shallow water (<20 m [<66 ft]) whenever practicable.

(3) When weather conditions require, such as when visibility drops, vessels must adjust speed accordingly to reduce the likelihood of injury to sea otters.

(4) Vessel operators must be provided written guidance for avoiding collisions and minimizing disturbances to sea otters. Guidance will include measures identified in paragraphs (c)(1) through (4) of this section.

(d) Mitigation measures for the subsistence use of sea otters. Holders of an LOA must conduct their activities in a manner that, to the greatest extent practicable, minimizes adverse impacts on the availability of sea otters for subsistence uses.

(1) Community consultation. Prior to receipt of an LOA, applicants must consult with potentially affected communities and appropriate subsistence user organizations to discuss potential conflicts with subsistence sea otter hunting caused by the location, timing, and methods of operations and support activities (see § 18.103 for details). If community concerns suggest that the activities may have an adverse impact on the subsistence uses of this species, the applicant must address conflict avoidance issues through a POC as described in paragraph (d)(2) of this section.

(2) Plan of cooperation. Based on community consultations, the holder of an LOA will be required to modify their POC if directed by the FWS.

(i) The POC must include a description of the procedures by which the holder of the LOA will work and consult with potentially affected subsistence hunters and a description of specific measures that have been or will be taken to avoid or minimize interference with subsistence hunting of sea otters and to ensure continued availability of the species for subsistence use.

(ii) The FWS will review the POC to ensure that any potential adverse effects on the availability of sea otters are minimized. The FWS will reject POCs if they do not provide adequate safeguards to ensure the least practicable adverse impact on the availability of sea otters for subsistence use.

(a) Operators shall work with PSOs to apply mitigation measures and shall recognize the authority of PSOs up to and including stopping work, except where doing so poses a significant safety risk to personnel.

(b) Duties of PSOs include watching for and identifying sea otters, recording observation details, documenting presence in any applicable monitoring zone, identifying and documenting potential harassment, and working with operators to implement all appropriate mitigation measures.

(c) A sufficient number of PSOs will be available to meet the following criteria: 100 percent monitoring of shutdown zones during all daytime periods of in-water noise-generating work; a maximum of 4 consecutive hours on watch per PSO; a maximum of 12 hours on watch per day per PSO.

(d) All PSOs will complete a training course designed to familiarize individuals with monitoring and data collection procedures. This training will be completed prior to starting work. A field crew leader with prior experience as a sea otter observer will supervise the PSO team. Initially, new or inexperienced PSOs will be paired with experienced PSOs so that the quality of marine mammal observations and data recording is kept consistent. Resumes for candidate PSOs will be made available for the FWS to review.

(e) The PSOs will be provided with reticule binoculars (7×50 or better), big-eye binoculars or spotting scopes (30×), inclinometers, and range finders. Field guides, instructional handbooks, maps, and a contact list will also be made available.

(f) The PSOs will monitor a pre-clearance zone for 30 minutes prior to the commencement of in-water noise-generating activities and following periods of inactivity of more than 30 minutes to ensure all sea otters are not within the shutdown zone prior to initiating or resuming in-water noise-generating activities.

(g) Observers will collect data using the following procedures:

(1) All data will be recorded onto a field form or database.

(2) Global positioning system data, sea state, tidal state, wind force, visibility, and weather condition will be recorded at the beginning and end of a monitoring period, at least every hour in between, at the change of an observer, and upon observation of sea otters.

(3) Observation records of sea otters will include date; time; the observers' locations; sea otter's heading (if moving); weather condition; visibility; number of sea otters; group composition (adults/juveniles); and the location of the sea otters (or distance and direction from the observer).

(4) Observation records will also include initial behaviors of the sea otters, descriptions of project activities and in-water noise levels being generated, the position of sea otters relative to applicable monitoring and mitigation zones, any mitigation measures applied, and any apparent reactions to the project activities before and after mitigation.

(5) For all sea otters in or near a mitigation zone, observers will record the distance from the sound source to the sea otter upon initial observation, the duration of the encounter, and the distance at last observation in order to monitor cumulative sound exposures.

(6) The PSOs will note any instances of sea otters lingering close to or traveling with vessels for prolonged periods of time.

(7) Monitoring of the shutdown zone must continue for 30 minutes following completion of in-water noise-generating activities.

(a) Operators must notify the FWS at least 48 hours prior to commencement of activities.

(b) Monthly reports will be submitted to the FWS's MMM for all months during which noise-generating work takes place. The monthly report will contain and summarize the following information: dates, times, weather, and sea conditions (including the Beaufort Scale sea state and wind force conditions) when sea otters were observed; the number, location, distance from the sound source, and behavior of the sea otters; the associated project activities; and a description of the implementation and effectiveness of mitigation measures with a discussion of any specific behaviors the sea otters exhibited in response to mitigation.

(c) A final report will be submitted to the FWS's MMM within 90 days after the expiration of each LOA. The report will include:

(1) A summary of monitoring efforts (hours of monitoring, activities monitored, number of PSOs, and, if requested by the FWS, the daily monitoring logs).

(2) A description of all project activities, any additional work yet to be done, factors influencing visibility and detectability of marine mammals (e.g., sea state, fog, glare, and number of observers), and factors correlated with the presence and distribution of sea otters (e.g., weather, sea state, and project activities).

(3) An estimate will be included of the number of sea otters exposed to noise at received levels greater than or equal to Level A harassment and Level B harassment (based on visual observation).

(4) A description of changes in sea otter behavior resulting from project activities and any specific behaviors of interest.

(5) A discussion of the mitigation measures implemented during project activities and their observed effectiveness for minimizing impacts to sea otters. Sea otter observation records will be provided to the FWS in the form of electronic database or spreadsheet files.

(d) All reports must be submitted by email to [email protected].

(e) Injured, dead, or distressed sea otters that are not associated with project activities (e.g., animals known to be from outside the project area, previously wounded animals, or carcasses with moderate to advanced decomposition or scavenger damage) must be reported to the FWS within 24 hours of the discovery to either the FWS's MMM (907-786-3800, business hours); or the Alaska SeaLife Center in Seward (1-888-774-7325, 24 hours a day); or both. Photographs, video, location information, or any other available documentation must be provided to the FWS.

(f) Operators must notify the FWS upon project completion or end of the work season.

The Office of Management and Budget (OMB) has approved the information collection requirements contained in this part and assigned OMB Control Number 1018-0205. Federal agencies may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Direct comments regarding the burden estimate or any other aspect of the information collection to the FWS Information Collection Clearance Officer at the address provided at 50 CFR 2.1(b).