Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Whittier Head of the Bay Cruise Dock Project, 15977-15981 [2024-04686]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 45 (Wednesday, March 6, 2024)]
[Notices]
[Pages 15977-15981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04686]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD585]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Whittier Head of the Bay Cruise 
Dock Project

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; request for comments on proposed renewal incidental 
harassment authorization.

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SUMMARY: NMFS received a request from Turnagain Marine Construction 
(TMC) for the renewal of their currently active incidental harassment 
authorization (IHA) to take marine mammals incidental to the cruise 
dock construction project in Whittier, Alaska. TMC's activities consist 
of activities that are covered by the current authorization but will 
not be completed prior to its expiration. Pursuant to the Marine Mammal 
Protection Act (MMPA), prior to issuing the currently active IHA, NMFS 
requested comments on both the proposed IHA and the potential for 
renewing the initial authorization if certain requirements were 
satisfied. The renewal requirements have been satisfied, and NMFS is 
now providing an additional 15-day comment period to allow for any 
additional comments on the proposed renewal not previously provided 
during the initial 30-day comment period.

DATES: Comments and information must be received no later than March 
21, 2024.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, and should be submitted via email to 
[email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments, including all attachments, must 
not exceed a 25-megabyte file size. Attachments to comments will be 
accepted in Microsoft Word, Excel or Adobe PDF file formats only. All 
comments received are a part of the public record and will generally be 
posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All 
personal identifying information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.

FOR FURTHER INFORMATION CONTACT: Jenna Harlacher, Office of Protected 
Resources (OPR), NMFS, (301) 427-8401. Electronic copies of the 
original application, renewal request, and supporting documents 
(including NMFS Federal Register notices of the original proposed and 
final authorizations, and the previous IHA), as well as a list of the 
references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are promulgated or, if the taking is limited to harassment, an 
incidental harassment authorization is issued.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``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 such species or stocks for 
taking for certain subsistence uses

[[Page 15978]]

(referred to here as ``mitigation measures''). NMFS must also prescribe 
requirements pertaining to monitoring and reporting of such takings. 
The definition of key terms such as ``take,'' ``harassment,'' and 
``negligible impact'' can be found in the MMPA and the NMFS's 
implementing regulations (see 16 U.S.C. 1362; 50 CFR 216.103).
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed one year for each reauthorization. In the notice of proposed IHA 
for the initial IHA, NMFS described the circumstances under which we 
would consider issuing a renewal for this activity, and requested 
public comment on a potential renewal under those circumstances. 
Specifically, on a case-by-case basis, NMFS may issue a one-time 1-year 
renewal of an IHA following notice to the public providing an 
additional 15 days for public comments when (1) up to another year of 
identical, or nearly identical, activities as described in the Detailed 
Description of Specified Activities section of the initial IHA issuance 
notice is planned; or (2) the activities as described in the 
Description of the Specified Activities and Anticipated Impacts section 
of the initial IHA issuance notice would not be completed by the time 
the initial IHA expires and a renewal would allow for completion of the 
activities beyond that described in the DATES section of the notice of 
issuance of the initial IHA, provided all of the following conditions 
are met:
    1. A request for renewal is received no later than 60 days prior to 
the needed renewal IHA effective date (recognizing that the renewal IHA 
expiration date cannot extend beyond 1 year from expiration of the 
initial IHA);
    2. The request for renewal must include the following:
     An explanation that the activities to be conducted under 
the requested renewal IHA are identical to the activities analyzed 
under the initial IHA, are a subset of the activities, or include 
changes so minor (e.g., reduction in pile size) that the changes do not 
affect the previous analyses, mitigation and monitoring requirements, 
or take estimates (with the exception of reducing the type or amount of 
take); and
     A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized; and
    3. Upon review of the request for renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed renewal. A description of the renewal process 
may be found on our website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any comments received on the potential renewal, along with 
relevant comments on the initial IHA, have been considered in the 
development of this proposed IHA renewal, and a summary of agency 
responses to applicable comments is included in this notice. NMFS will 
consider any additional public comments prior to making any final 
decision on the issuance of the requested renewal, and agency responses 
will be summarized in the final notice of our decision.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an IHA 
renewal) with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental take authorizations with no 
anticipated serious injury or mortality) of the Companion Manual for 
NOAA Administrative Order 216-6A, which do not individually or 
cumulatively have the potential for significant impacts on the quality 
of the human environment and for which we have not identified any 
extraordinary circumstances that would preclude this categorical 
exclusion. Accordingly, NMFS determined that the issuance of the 
initial IHA qualified to be categorically excluded from further NEPA 
review. NMFS has preliminarily determined that the application of this 
categorical exclusion remains appropriate for this renewal IHA.

History of Request

    On March 29, 2023, NMFS issued an IHA to TMC to take marine mammals 
incidental to the construction of the cruise ship dock in Whittier, 
Alaska (88 FR 19927, April 4, 2023), effective from April 1, 2023 
through March 31, 2024. On November 16, 2023, NMFS received an 
application for the renewal of that initial IHA. As described in the 
application for renewal IHA, the activities for which incidental take 
is requested consist of activities that are covered by the initial 
authorization but will not be completed prior to its expiration. As 
required, the applicant also provided a preliminary monitoring report 
which confirms that the applicant has implemented the required 
mitigation and monitoring, and which also shows that no impacts of a 
scale or nature not previously analyzed or authorized have occurred as 
a result of the activities conducted.

Description of the Specified Activities and Anticipated Impacts

    TMC's planned cruise ship construction project was planned to cover 
a 12-month window during which approximately 129 days of pile-
installation and -removal activity will occur. This project involved 
installation and removal of seventy-two 36-inch (in) (0.91-meter (m)) 
temporary steel pile guides and installation of thirty-six 36-in (0.91-
m), sixteen 42-in (1.1-m), and twenty 48-in (1.2-m) permanent steel 
piles. Three different installation methods were planned to be used 
including vibratory installation of piles into dense material, impact 
pile driving to drive piling to tip elevation, and the Down-the-Hole 
(DTH) hammer to drill pile into the bedrock. TMC planned to deploy a 
bubble curtain to the 60-foot (ft) (18.3-m) isobath. This was planned 
to be used during all activities that fall below the 60-ft (18.3-m) 
isobath.
    Due to unexpected winter weather conditions causing slower 
construction, TMC will not complete the initial construction during the 
1-year period. Specifically, at the time of the renewal request, TMC 
had completed installation of 51 permanent piles to construct the 
approach trestle, 2 float restraint dolphins, and most of the mooring 
trestle. With the remaining time under the initial IHA, TMC anticipates 
completing at a minimum installation of 10 additional permanent piles.
    This renewal request is to cover the subset of the activities 
covered in the initial IHA that will not be completed during the 
effective IHA period. TMC plans to complete the remaining

[[Page 15979]]

construction activities, which would include at maximum installation of 
four 48-in piles for one mooring dolphin, installation of seven 36-in 
piles for the remainder of the mooring trestle, and installation and 
removal of eleven 36-in temporary piles to guide installation of the 
remaining permanent piles.
    The likely or possible impacts of the TMC's proposed activity on 
marine mammals could involve both non-acoustic and acoustic stressors 
and is unchanged from the impacts described in the initial IHA. 
Potential non-acoustic stressors could result from the physical 
presence of the equipment, vessels, and personnel; however, any impacts 
to marine mammals are expected to primarily be acoustic in nature. 
Sounds resulting from pile installation, removal, and drilling may 
result in the incidental take of marine mammals by Level A and Level B 
harassment in the form of auditory injury or behavioral harassment.

Detailed Description of the Activity

    A detailed description of the construction activities for which 
take is proposed here may be found in the notices of the proposed and 
final IHAs for the initial authorization (88 FR 9227, February 13, 
2023; 88 FR 19927, April 4, 2023). As previously mentioned, this 
request is for a subset of the activities considered for the initial 
IHA that would not be completed prior to its expiration. The location, 
timing, and nature of the activities, including the types of equipment 
planned for use, are identical to those described in the previous 
notice for the initial IHA. The proposed renewal IHA would be effective 
from April 1, 2024 through March 31, 2025.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is proposed here, including information 
on abundance, status, distribution, and hearing, may be found in the 
notice of the proposed IHA for the initial authorization (88 FR 9227, 
February 13, 2023).
    Since the initial IHA was published, NMFS published the final 2022 
Alaska and Pacific Stock Assessment Reports (SARs), which describe 
revised stock structures under the MMPA for humpback whales. In the 
initial notice of proposed and final IHAs, we explained these proposed 
changes and that these changes would be adopted when final. Upon 
finalization of these revised stock structures, we have made 
appropriate updates, including attribution of take numbers to stock 
(see Estimated Take).
    The revision to humpback whale stock structure modifies the 
previously MMPA-designated humpback stocks to align more closely with 
the ESA-designated distinct population segments (DPSs) (Caretta et al., 
2023; Young et al., 2023). Specifically, the three existing North 
Pacific humpback whale stocks (Central North Pacific and Western North 
Pacific stocks addressed in the Alaska SAR and the California/Oregon/
Washington stock addressed in the Pacific SAR) were replaced by five 
stocks (Western North Pacific, Hawaii, and Mexico-North Pacific stocks 
addressed in the Alaska SAR and the Central America/Southern Mexico-CA/
OR/WA and Mainland Mexico-CA/OR/WA stocks addressed in the Pacific SAR) 
(Caretta et al., 2023; Young et al., 2023).
    In the initial notice of the proposed and final IHA, NMFS assumed 
that humpbacks in the action area were from the Central North Pacific 
Stock, Western North Pacific Stock, and CA/OR/WA Stock, and therefor 
authorized take of humpbacks from these stocks. Based on the revised 
stock designations, no take of WNP stock whales would occur, and in the 
proposed renewal IHA humpback whales are now assumed to be members of 
either the Hawaii stock or the Mexico-North Pacific stock, which 
corresponds with the takes previously authorized for the Central North 
Pacific Stock and CA/OR/WA Stocks, respectively. However, based on the 
work remaining in the renewal IHA, the takes proposed for authorization 
through this renewal would only be from the Hawaii stock. In southeast 
Alaska, it is likely that only 2% of humpbacks would be from the 
Mexico-North Pacific stock, and based on the proportionally reduced 
take in this renewal, there are no calculated takes of the Mexico-North 
Pacific stock. Therefor in this renewal IHA, we propose to authorize 
take only of the Hawaii stock of humpback whale.
    NMFS has reviewed the preliminary monitoring data from the initial 
IHA, recent draft and final Stock Assessment Reports including the 
updated humpback whale stock structure, and determined that neither 
this nor any other new information affects which species have the 
potential to be affected or the pertinent information in the 
Description of the Marine Mammals in the Area of Specified Activities 
contained in the supporting documents for the initial IHA (88 FR 9227, 
February 13, 2023).

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which the 
authorization of take is proposed here may be found in the notice of 
the proposed IHA for the initial authorization (88 FR 9227, February 
13, 2023). NMFS has reviewed the monitoring data from the initial IHA, 
recent draft Stock Assessment Reports, information on relevant Unusual 
Mortality Events, and other scientific literature, and determined that 
neither this nor any other new information affects our initial analysis 
of impacts on marine mammals and their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the notices of the 
proposed and final IHAs for the initial authorization (88 FR 9227, 
February 13, 2023; 88 FR 19927, April 4, 2023). Specifically, days of 
operation, area or space within which harassment is likely to occur, 
and marine mammal occurrence data applicable to this authorization 
remain unchanged from the initial IHA. Similarly, methods of take, 
daily take estimates and types of take remain unchanged from the 
initial IHA. The number of takes proposed for authorization in this 
renewal are a subset of the initial authorized takes that better 
represent the amount of activity left to complete. These takes, which 
reflect the lower number of remaining days of work, are indicated below 
in table 1. Takes are calculated using the same methodology as the 
initial IHA, and are just a proportion of the initial takes based on 
the days of work remaining.

 Table 1--Proposed Amount of Taking, by Level A and Level B Harassment, by Species and Stock and Percent of Take
                                                    by Stock
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                                                                  Proposed Level  Proposed Level    Percent of
                Species                           Stock               A Take          B Take           stock
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Humpback Whale........................  Hawaii..................               0               3              <1

[[Page 15980]]

 
                                        Mexico-North Pacific....               0               0               0
                                        Western North Pacific...               0               0               0
Killer Whale..........................  Alaska Resident.........               0              11              <1
                                        Gulf of Alaska/Aleutian                0               3              <1
                                         Islands/Bering Sea
                                         Transient.
Dall's Porpoise.......................  Alaska..................               4               6              <1
Harbor Seal...........................  Prince William Sound....               4              18              <1
Steller Sea Lion......................  Western United States...               0              24              <1
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Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in this authorization are almost identical to 
those included in the FR notice announcing the issuance of the initial 
IHA, and the discussion of the least practicable adverse impact 
included in that document remains accurate (88 FR 19927, April 4, 
2023).
    The following mitigation, monitoring, and reporting measures are 
proposed for this renewal:
     The TMC must avoid direct physical interaction with marine 
mammals during construction activity. If a marine mammal comes within 
10-m of such activity, operations must cease and vessels must reduce 
speed to the minimum level required to maintain steerage and safe 
working conditions, as necessary to avoid direct physical interaction;
     Conduct training between construction supervisors and 
crews and the marine mammal monitoring team and relevant TMC staff 
prior to the start of all pile driving activity and when new personnel 
join the work, so that responsibilities, communication procedures, 
monitoring protocols, and operational procedures are clearly 
understood;
     Pile driving activity must be halted upon observation of 
either a species for which incidental take is not authorized or a 
species for which incidental take has been authorized but the 
authorized number of takes has been met, entering or within the 
harassment zone;
     TMC will establish and implement the shutdown zones. The 
purpose of a shutdown zone is generally to define an area within which 
shutdown of the activity would occur upon sighting of a marine mammal 
(or in anticipation of an animal entering the defined area). Shutdown 
zones typically vary based on the activity type and marine mammal 
hearing group;
     Monitoring must take place from 30 minutes prior to 
initiation of construction activity (i.e., pre-start clearance 
monitoring) through 30 minutes post-completion of construction 
activity;
     Pre-start clearance monitoring must be conducted during 
periods of visibility sufficient for the lead Protected Species 
Observer (PSO) to determine the shutdown zones clear of marine mammals. 
Construction may commence when the determination is made;
     If construction is delayed or halted due to the presence 
of a marine mammal, the activity may not commence or resume until 
either the animal has voluntarily exited and been visually confirmed 
beyond the shutdown zone or 15 minutes have passed without re-detection 
of the animal;
     TMC must use soft start techniques when impact pile 
driving. Soft start requires contractors and equipment to slowly 
approach the work site creating a visual disturbance allowing animals 
in close proximity to construction activities a chance to leave the 
area prior to stone resetting or new stone placement. A soft start must 
be implemented at the start of each day's construction activity and at 
any time following cessation of activity for a period of 30 minutes or 
longer;
     The TMC must employ up to four PSOs to monitor the 
shutdown and Level B harassment zones during pile driving and DTH 
activities;
     Monitoring will be conducted 30 minutes before, during, 
and 30 minutes after construction activities. In addition, observers 
shall record all incidents of marine mammal occurrence, regardless of 
distance from activity, and shall document any behavioral reactions in 
concert with distance from construction activity;
     The TMC must submit a draft report detailing all 
monitoring within 90 calendar days of the completion of marine mammal 
monitoring or 60 days prior to the issuance of any subsequent IHA for 
this project, whichever comes first;
     TMC must conduct hydroacoustic monitoring as specified in 
the initial IHA and submit a hydroacoustic monitoring report;
     The TMC must prepare and submit final report within 30 
days following resolution of comments on the draft report from NMFS;
     The TMC must submit all PSO datasheets and/or raw sighting 
data (in a separate file from the Final Report referenced immediately 
above); and
     The TMC must report injured or dead marine mammals.

Comments and Responses

    As noted previously, NMFS published a notice of a proposed IHA (88 
FR 9227, February 13, 2023) and solicited public comments on both our 
proposal to issue the initial IHA for Whittier Head of the Bay cruise 
ship dock project and on the potential for a renewal IHA, should 
certain requirements be met. During the 30-day public comment period, 
NMFS received no comments on either the proposal to issue the initial 
IHA for TMC's construction activities or on the potential for a renewal 
IHA.

Preliminary Determinations

    The proposed renewal request consists of a subset of activities 
analyzed through the initial authorization described above. In 
analyzing the effects of the activities for the initial IHA, NMFS 
determined that TMC's activities would have a negligible impact on the 
affected species or stocks and that authorized take numbers of each 
species or stock were small relative to the relevant stocks (e.g., less 
than one-third the abundance of all stocks). The mitigation measures 
and monitoring and reporting requirements as described above are 
identical to the initial IHA.
    NMFS has preliminarily concluded that there is no new information 
suggesting that our analysis or findings should change from those 
reached for the initial IHA. Based on the

[[Page 15981]]

information and analysis contained here and in the referenced 
documents, NMFS has preliminarily determined the following: (1) the 
required mitigation measures will effect the least practicable impact 
on marine mammal species or stocks and their habitat; (2) the 
authorized takes will have a negligible impact on the affected marine 
mammal species or stocks; (3) the authorized takes represent small 
numbers of marine mammals relative to the affected stock abundances; 
(4) TMC's activities will not have an unmitigable adverse impact on 
taking for subsistence purposes as no relevant subsistence uses of 
marine mammals are implicated by this action; and (5) appropriate 
monitoring and reporting requirements are included.

Endangered Species Act

    The NMFS Alaska Regional Office issued a Biological Opinion under 
section 7 of the Endangered Species Act (ESA; 16 U.S.C. 1531 et seq.) 
on the issuance of an IHA and potential renewal IHA to TMC under 
section 101(a)(5)(D) of the MMPA by the NMFS Office of Protected 
Resources. The Biological Opinion concluded that the action is not 
likely to jeopardize the continued existence of ESA-listed humpback 
whales or Steller sea lions.

Proposed Renewal IHA and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue a renewal IHA to TMC for conducting the cruise ship dock 
construction in Whittier, Alaska, from April 1, 2024 through March 31, 
2025, provided the previously described mitigation, monitoring, and 
reporting requirements are incorporated. A draft of the proposed and 
final initial IHA can be found at https://www.fisheries.noaa.gov/action/incidental-take-authorization-turnagain-marine-constructions-cruise-dock-construction. We request comment on our analyses, the 
proposed renewal IHA, and any other aspect of this notice. Please 
include with your comments any supporting data or literature citations 
to help inform our final decision on the request for MMPA 
authorization.

    Dated: February 29, 2024.
Angela Somma,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2024-04686 Filed 3-5-24; 8:45 am]
BILLING CODE 3510-22-P