Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Maintenance and Rehabilitation of the Bellingham Shipping Terminal, 80890-80894 [2024-22987]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 193 (Friday, October 4, 2024)]
[Notices]
[Pages 80890-80894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-22987]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE293]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Maintenance and Rehabilitation 
of the Bellingham Shipping Terminal

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 the Port of Bellingham for the 
renewal of their currently active incidental harassment authorization 
(IHA) (hereinafter, the initial IHA) to take marine mammals incidental 
to the Maintenance and Rehabilitation of the Bellingham Shipping 
Terminal Project in Bellingham, WA. The Port of Bellingham activities 
are nearly identical to those covered in the current authorization and 
will not be completed prior to the IHA's expiration. Pursuant to the 
Marine Mammal Protection Act,

[[Page 80891]]

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 October 
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.
    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/action/incidental-take-authorization-port-bellinghams-bellingham-shipping-terminal-bellingham. In case of problems accessing these documents, please call 
the contact listed below.

FOR FURTHER INFORMATION CONTACT: Craig Cockrell, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

    The Marine Mammal Protection Act (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 (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 1-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.
    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 (NEPA)

    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental take authorizations with no 
anticipated

[[Page 80892]]

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 November 6, 2023, NMFS issued an IHA to the Port of Bellingham 
to take marine mammals incidental to the Maintenance and Rehabilitation 
of the Bellingham Shipping Terminal Project in Bellingham, WA (88 FR 
77972, November 11, 2023), effective from November 6, 2023 through 
November 6, 2024. On September 20, 2024, 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 
are nearly identical to those covered in the initial authorization and 
will not be completed prior to its expiration. Under the initial IHA a 
number of piles have been removed but no pile installations have 
occurred. As required, the Port of Bellingham also provided preliminary 
monitoring data, which confirms that the Port of Bellingham had 
implemented the required mitigation and monitoring, and also showed 
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

    The purpose of the project at the Bellingham Shipping Terminal is 
to repair some of the failing wharf and pier structures of the 
terminal. As described in detail in the notice for the initial IHA (88 
FR 77972, November 11, 2023), in-water construction would include both 
pile removal and installation of a multiple types of piles with 
vibratory and impact hammers. A minor change to the activities 
conducted by the Port of Bellingham was requested in the renewal 
letter. The initial IHA noted that the Port of Bellingham would limit 
vibratory pile driving time to 90 minutes per day. The Port of 
Bellingham would increase the vibratory pile driving time to 360 
minutes per day for this renewal period. This change would increase the 
size of the Level A harassment zones and shutdown zones associated with 
vibratory pile driving and removal analyzed in the initial IHA (see 
Description of Proposed Mitigation, Monitoring and Reporting Measures). 
The increase to proposed shutdown zones follows the same goals for 
mitigation articulated in the notice of the initial proposed IHA, i.e., 
the shutdown zones are equal to the estimated Level A harassment zones, 
and there is no increase to the estimated take numbers. Therefore, NMFS 
has determined that this change is minor and that the action remains 
eligible for renewal. The construction is still expected to occur for 
87 non-consecutive days. Sounds produced by these activities may result 
in take, by Level A harassment and Level B harassment, of marine 
mammals located in Bellingham Bay.
    Incidental takes to the in-water pile driving and removal in this 
renewal would be at the same level as authorized in the initial IHA. 
Four marine mammal species are expected to experience Level B 
harassment and one species has the potential for Level A harassment 
(see Estimated Take).
    All documents related to the initial IHA are available on our 
website: https://www.fisheries.noaa.gov/action/incidental-take-authorization-port-bellinghams-bellingham-shipping-terminal-bellingham.

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 (88 
FR 65953, September 26, 2023) and final (88 FR 77972, November 11, 
2023) IHAs for the initial authorization. The location of the 
activities and the types of equipment planned for use are identical to 
those described in the previous notices. The only minor change is the 
increase of vibratory installation from 90 minutes per day to 360 
minutes per day. The longer duration of vibratory hammer use will 
create larger harassment and, therefore, shutdown zones than those 
analyzed in the initial IHA. NMFS has preliminarily determined that the 
amount of take authorized through the initial IHA remains sufficient to 
cover the likely effects of the planned activity, and no changes to 
authorized take numbers are proposed.
    The proposed renewal would be effective for a period not exceeding 
1 year from the date of expiration of the initial IHA.

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 
notices of the proposed and final IHAs for the initial authorization. 
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 there 
is no new information that affects which species or stocks 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.
    It should be noted that the Draft 2023 NMFS' Marine Mammal Stock 
Assessment Reports (SARs) updated stock abundances for the Eastern 
Distinct Population Segment for Steller sea lions (Eumetopias jubatus) 
and harbor seals (Phoca vitulina) (Carretta et al. 2023). For Steller 
sea lions, the abundance decreased slightly from the initial IHA stock 
abundance estimate of 43,201 individuals to 36,308 individuals. During 
the development of the initial IHA the Washington Northern Inland 
Waters stock of harbor seals had an unknown abundance. Since then, the 
abundance estimate in the Draft 2023 SARs has been updated to 16,451 
individuals. None of these population changes impact the findings made 
in support of the initial IHA. Additional information on all stocks 
affected by this action is available in the NMFS' U.S. Pacific SARs 
(available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports).

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 an 
authorization of incidental take is proposed here may be found in the 
notices of the proposed and final IHAs for the initial authorization. 
NMFS has reviewed the monitoring data from the initial IHA, recent 
draft SARs, information on relevant Unusual Mortality Events, and other 
scientific literature, and determined that there is no new information 
that affects our initial analysis of impacts on marine mammals and 
their habitat.

[[Page 80893]]

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. Specifically, 
the source levels, days of operation, and marine mammal occurrence data 
applicable to this authorization remain unchanged from the previously 
issued IHA. Similarly, the stocks taken, methods of take, and types of 
take remain unchanged from the previously issued IHA, as do the number 
of takes, which are indicated below in table 1.

                 Table 1--Estimated Take by Level A and Level B Harassment, by Species and Stock
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                                                          Stock                                        Take as
           Common name                   Stock          abundance    Level A    Level B     Total     percentage
                                                           \a\                               take      of stock
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Harbor porpoise.................  Washington Inland         11,233          0        261        261          2.3
                                   Waters.
Steller sea lion................  Eastern U.S........       36,308          0         87         87          0.2
California sea lion.............  U.S................      257,606          0         87         87         <0.1
Harbor seal.....................  Washington Northern       16,451        264      2,029      3,050         18.5
                                   Inland Waters.
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\a\ Stock or DPS size is Nbest according to NMFS 2023 Draft Stock Assessment Reports.

Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in this authorization are nearly identical to 
those included in the Federal Register notice announcing the issuance 
of the initial IHA, and the discussion of the least practicable adverse 
impact included in that document and the notice of the proposed IHA 
remains accurate.
    As noted above, the increase vibratory pile installation time from 
90 minutes per day to 360 minutes per day has increased the size of the 
shutdown zones as noted in table 2 of this section. The applicant and 
NMFS analyzed the Level A harassment and associated shutdown zones 
using vibratory pile installation duration of 90 minutes a day, for 
inputs in the optional User Spreadsheet tool as reported in table 5 of 
the final IHA Federal Register notice (88 FR 77972, November 14, 2023). 
In the request for renewal of the initial IHA the applicant has 
requested that NMFS analyze and revise the shutdown zones associated 
with an increase in vibratory pile driving time to 360 minutes per day. 
Using the optional User Spreadsheet tool the applicants and NMFS 
analyzed and revised the shutdown zones based on this expected increase 
in vibratory pile installation duration. The following standard 
mitigation measures are proposed for this renewal:
     Shutdown zones for Level A harassment as specified in the 
initial IHA with the exception of vibratory pile installation where the 
Port of Bellingham expects to drive piles for 360 minutes a day. The 
updated shutdown zones are shown in table 2.

   Table 2--Updated Shutdown Zones During Vibratory Pile Installation
------------------------------------------------------------------------
                                          Shutdown zones (m) \1\
            Activity            ----------------------------------------
                                   HF cetaceans     Phocids    Otariids
------------------------------------------------------------------------
Vibratory installation (360             75 (30)     30 (20)     10 (10)
 minutes)......................
------------------------------------------------------------------------
\1\ Shutdown zones shown in parentheticals are what was included in the
  initial IHA.

     Protected species observers (PSO) observing the monitoring 
zones established in the initial IHA during all pile installation and 
removal activities.
     Soft start procedures for impact pile driving consisting 
of an initial set of strikes from the hammer at reduced energy, with 
each strike followed by a 30-second waiting period.
     The use of a marine pile-driving energy attenuator (i.e., 
air bubble curtain system) will be implemented by the Port of 
Bellingham during impact pile driving of all steel pipe piles.
     Prior to the start of daily in-water construction 
activity, or whenever a break in pile driving/removal of 30 minutes or 
longer occurs, PSOs will observe the shutdown and monitoring zones for 
a period of 30 minutes. If a marine mammal is observed within the 
shutdown zone, a soft start cannot proceed until the animal has left 
the zone or has not been observed for 15 minutes.
    Monitoring and reporting requirements associated with this renewal 
are as follows.
     A minimum of one PSO will be on duty during impact pile 
driving activities and a minimum of two PSOs during vibratory 
installation/removal.
     Observers would be required to use approved data forms.
     A draft report would be submitted to NMFS within 90 days 
of the completion of marine mammal monitoring. The report would include 
marine mammal observations pre-activity, during-activity, and post-
activity during pile driving days (and associated PSO data sheets).

Comments and Responses

    As noted previously, NMFS published a notice of a proposed IHA (88 
FR 65953, September 26, 2023) and solicited public comments on both our 
proposal to issue the initial IHA for the Maintenance and 
Rehabilitation of the Bellingham Shipping Terminal and on the potential 
for a renewal IHA, should certain requirements be met.
    All public comments were addressed in the notice announcing the 
issuance of the initial IHA (88 FR 77972, November 11, 2023) and none 
of the comments specifically pertained to the renewal of the 2023 IHA.

Preliminary Determinations

    The construction activities are nearly identical to those analyzed 
for the initial IHA, as are the method of taking and the effects of the 
action. The higher vibratory drive time does increase the size of the 
Level A harassment zones and shutdown zones slightly. This increase in 
zone sizes, however, does not change the anticipated take numbers 
analyzed in the initial IHA. In analyzing

[[Page 80894]]

the effects of the activities for the initial IHA, NMFS determined that 
the Port of Bellingham's activities would have a negligible impact on 
the affected species or stocks and that the authorized take numbers of 
each species or stock were small relative to the relevant stocks (e.g., 
less than one-third of the abundance of all stocks). Although some 
marine mammal abundances have changed since the initial IHA, none of 
this new information affects NMFS' determinations supporting issuance 
of the initial IHAs. The mitigation measures and monitoring and 
reporting requirements as described above are nearly 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. This includes consideration of the 
estimated abundance of Steller sea lions and harbor seals decreasing 
slightly and being defined respectively. Based on the information and 
analysis contained here and in the referenced documents, NMFS has 
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) the Port of Bellingham'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 (ESA)

    No incidental take of ESA-listed species is authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal consultation under section 7 of the ESA is not required for this 
action.

Proposed Renewal IHA and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue a renewal IHA to the Port of Bellingham for conducting 
Maintenance and Rehabilitation of the Bellingham Shipping Terminal 
project in Bellingham, WA, from November 8, 2024 to November 8, 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-port-bellinghams-bellingham-shipping-terminal-bellingham. 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: October 1, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-22987 Filed 10-3-24; 8:45 am]
BILLING CODE 3510-22-P