Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Skagway Ore Terminal Redevelopment Project, 92645-92649 [2024-27442]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 226 (Friday, November 22, 2024)]
[Notices]
[Pages 92645-92649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27442]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE465]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Skagway Ore Terminal 
Redevelopment Project

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

ACTION: Notice; issuance of renewal incidental harassment 
authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA), as amended, notification is hereby given 
that NMFS has issued a renewal incidental harassment authorization 
(IHA) to Municipality of Skagway (MOS) to incidentally harass marine 
mammals incidental to the terminal redevelopment project in Skagway, 
Alaska.

DATES: This renewal IHA is valid from the date of issuance through 
September 30, 2025.

ADDRESSES: 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 below.

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

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 IHA 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 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 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

[[Page 92646]]

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).
     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.

History of Request

    On August 29, 2023, NMFS issued an IHA to MOS to take marine 
mammals incidental to the terminal redevelopment project in Skagway, 
Alaska (88 FR 60652, September 5, 2023), effective from October 1, 
2023, through September 30, 2024. On February 5, 2024, NMFS received a 
request from MOS to modify the 2023 IHA; adding 2 takes by Level A 
harassment and 45 takes by Level B harassment for northern fur seal, 
and to adjust take requests based on average species densities 
throughout the year due to work occurring in all seasons and, 
consequently, increasing authorized take by Level B harassment to 270 
for Steller sea lion. On May 3, 2024, NMFS issued MOS a modification of 
the initial 2023 IHA (89 FR 36765).
    On July 22, 2024, NMFS received an application for the renewal of 
the initial IHA (as modified). After discussions with MOS about the 
work to be conducted under the renewal IHA, we received a revised 
renewal request on September 30, 2024. As described in the application 
for renewal IHA, the activities for which incidental take is requested 
consist of a subset of the activities that were covered by the initial 
authorization but which were not completed prior to its expiration. As 
required, the applicant also provided a final monitoring report, 
available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-municipality-skagways-skagway-ore-terminal-redevelopment. The report 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. The notice of the 
proposed renewal IHA was published on October 22, 2024 (89 FR 84333).

Description of the Specified Activities and Anticipated Impacts

    MOS planned to redevelop the Skagway Ore Terminal in Skagway, 
Alaska, with 196 days of pile installation and removal. This project 
involved installation and removal of 36 temporary steel pile guides, 
removal of 692 piles, and installation of 244 permanent steel piles. 
Two different installation methods were used: vibratory pile driving 
and impact pile driving. Due to unexpected delays, MOS did not complete 
the construction during the initial 1-year period, completing removal 
of 385 piles and installation of 101 piles.
    This renewal is to cover a subset of the activities covered in the 
initial IHA that was not completed during the effective IHA period and 
which is planned to occur during the effective period of the renewal 
IHA. Specifically, MOS plans to install two maximum-diameter 24-in 
piles and remove ten timber piles, which are necessary to stabilize a 
single existing fender. The remainder of the initially planned work 
would not be conducted under this renewal IHA.
    The likely or possible impacts of the MOS's activity on marine 
mammals 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 authorized here may be found in the notices of the proposed and 
final IHAs for the initial authorization (88 FR 23627, April 18, 2023; 
88 FR 60652, September 5, 2023). As previously mentioned, this request 
is for a subset of the activities considered for the initial IHA that 
were not completed prior to its expiration and which are planned to 
occur under this renewal IHA. 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 renewal IHA would be effective from the date of issuance 
through September 30, 2025.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is authorized here, including 
information on abundance, status, distribution, and hearing, may be 
found in the notice of the proposed IHA for the initial authorization 
and the notice of issuance of a modified IHA (88 FR 23627, April 18, 
2023; 89 FR 36765, May 3, 2024).
    NMFS has reviewed the monitoring data from the initial IHA, recent 
draft Stock Assessment Reports, 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 and modified IHA (88 FR 23627, 
April 18, 2023; 89 FR 36765, May 3, 2024).

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 limited subset of activities 
for which the authorization of take is authorized here may be found in 
the notice of the proposed IHA for the initial authorization (88 FR 
23627, April 18, 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 and the notice of 
issuance of the modified IHA

[[Page 92647]]

(88 FR 23627, April 18, 2023; 88 FR 60652, September 5, 2023; 89 FR 
36765, May 3, 2024). Specifically, the action area and marine mammal 
density and occurrence data applicable to this authorization remain 
unchanged from the initial and modified IHA. Similarly, source levels, 
type of activity, methods of take, and types of take remain unchanged 
from the initial and modified IHA. However, there are changes to the 
estimated Level A harassment zones based on the revised amount of piles 
driven per day and the 2024 Updated Technical Guidance, further 
discussed below. The estimated number of takes authorized is based on 
the subset of activities to be completed under this renewal IHA, and 
therefore represents a proportion of the initial authorized takes. 
These takes reflect the estimated remaining number of days of work and 
number of piles to be driven. Estimated take by Level A and Level B 
harassment was calculated using the same methodology as in the initial 
and modified IHA.
    On May 3, 2024, NMFS published (89 FR 36762) and solicited public 
comment on its draft 2024 Updated Technical Guidance, which includes 
updated thresholds and weighting functions to inform auditory injury 
estimates, and once finalized replaced the 2018 Technical Guidance 
referenced in the initial and modified IHA notices. The public comment 
period ended on June 17, 2024, and the 2024 Updated Technical Guidance 
was finalized on October 24, 2024 (89 FR 84872).
    In this renewal, use of the 2024 Updated Technical Guidance results 
in changes to the estimated Level A harassment zones, but there are no 
changes to the estimated Level B harassment zones (table 1). In the 
proposed renewal we compared the outcomes of the Updated Technical 
Guidance and there was not substantial differences for any species, so 
the, at the time, draft 2024 Updated Technical Guidance was used in the 
analysis. Therefor there are no changes from the proposed renewal IHA 
to the final renewal IHA. The updated Level A harassment zones are used 
to revise estimations of potential take by Level A harassment. In table 
2, we have presented values based on the methodology that was included 
in the previous authorizations, incorporating the previously described 
changes (number of piles per day and the Updated Technical Guidance). 
Takes are a proportion of the initial authorized takes and based on the 
days of work included in this renewal IHA. Mitigation zones, in 
consideration of the updated isopleths, are discussed in the Mitigation 
section.

                               Table 1--Level A and Level B Harassment Isopleths (m) for Impact and Vibratory Pile Driving
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                                                                                  Level A harassment zone (m) \1\                             Level B
                        Activity                         --------------------------------------------------------------------------------   harassment
                                                                LF              HF              VHF           Phocids        Otariids        zone (m)
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24-in steel pile, Impact Installation...................         1,970.4           251.4         3,049.2         1,750.4           652.5           857.7
24-in steel pile,* Vibratory Installation and Removal...             5.6             2.2             4.6             7.2             2.4           3,981
14-in timber pile, Vibratory Removal....................             3.7             1.4               3             4.7             1.6           3,415
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\1\ Zones are based on the 2024 Updated Technical Guidance, further described above. This is new information that was not available at the time of the
  initial and modified IHA. Species groups have also been re-named in the Updated Technical Guidance.
* Based on the up to 30-in piles included in the initial IHA that also included pile sizes: 10.75-in, 14-in, 16-in, 20-in, 24-in, 28-in, and 30-in.


                     Table 2--Amount of Taking, by Level A and Level B Harassment, by Species and Stock and Percent of Take by Stock
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                                                                            Initial IHA     Initial IHA
                Species                               Stock                 authorized      authorized     Renewal Level   Renewal Level    Percent of
                                                                           Level A take    Level B take       A take          B take           stock
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Humpback Whale.........................  Hawaii.........................               2              13               0             * 2              <1
                                         Mexico--North Pacific..........               0               1               0               0               0
Minke Whale............................  Alaska.........................               2               6               0             * 1              <1
Killer Whale \1\.......................  Eastern North Pacific, Northern               2              90               0            * 25              <1
                                          Residents, Southeast Alaska +
                                          Eastern North Pacific, Alaska
                                          Residents + West Coast
                                          Transients + Gulf, Aleutian,
                                          Bering Sea Transients.
Dall's Porpoise........................  Alaska.........................              43             193               0               4              <1
Harbor Porpoise........................  Northern Southeast Alaska                    17              75               0             * 2              <1
                                          Inland Waters.
Harbor Seal............................  Alaska--Lynn Canal/Stephens                 193           2,760              11              54              <1
                                          Passage.
Steller Sea Lion.......................  Eastern U.S. + Western U.S.....               2             270               0              10              <1
Northern Fur Seal......................  Pribilof Islands/Eastern                      2              45               0               3              <1
                                          Pacific stock.
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* Rounded up to assumed average group size based on Dahlheim et al., 2009.
\1\ Dahlheim et al. (2009) observed mean group sizes of 25 (resident ecotype) and 5 (transient ecotype) for killer whales in Southeast Alaska. While MOS
  observed only two killer whales during the initial IHA, it is possible that a larger group could enter the area during the renewal activities.

Description of Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures included as 
requirements in this authorization are substantially similar 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 60652, September 5, 2023). The 
only

[[Page 92648]]

changes from the initial IHA are to the required shutdown zones and the 
removal of the acoustic monitoring requirement. The required shutdown 
zones (table 3) changed due to the changes in Level A harassment zone 
distances (table 1). As the initial IHA required shutdown zones equal 
to the Level A harassment zones, we retain that approach to mitigation 
in reflection of the new zones updated on the basis of the best 
scientific information available. Additionally, acoustic monitoring (as 
was required through the initial IHA) is not planned here, due to the 
minimal pile driving planned under this renewal IHA.

                                                         Table 3--Shutdown and Monitoring Zones
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                                                                                     Minimum shutdown zone (m)
                        Activity                         --------------------------------------------------------------------------------   Harassment
                                                            LF cetacean     HF cetacean    VHF cetacean       Phocids        Otariids        zone (m)
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24-in steel pile, Impact Installation...................           1,975             255           3,050           1,755             655             860
24-in steel pile, Vibratory Installation and Removal....              10              10              10              10              10           3,985
14-in timber pile, Vibratory Removal....................              10              10              10              10              10           3,415
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    The following mitigation, monitoring, and reporting measures for 
this renewal are:
     The MOS 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 MOS 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;
     MOS 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;
     MOS 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 MOS must employ up to four PSOs to monitor the 
shutdown and Level B harassment zones during pile driving 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 MOS 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;
     The MOS must prepare and submit final report within 30 
days following resolution of comments on the draft report from NMFS;
     The MOS must submit all PSO datasheets and/or raw sighting 
data (in a separate file from the Final Report referenced immediately 
above); and
     The MOS must report injured or dead marine mammals.

Comments and Responses

    A notice of NMFS' proposal to issue a renewal IHA to MOS was 
published in the Federal Register October 22, 2024 (89 FR 84333). That 
notice either described, or referenced descriptions of, the MOS's 
activity, the marine mammal species that may be affected by the 
activity, the anticipated effects on marine mammals and their habitat, 
estimated amount and manner of take, and proposed mitigation, 
monitoring and reporting measures. NMFS received no public comments.

Determinations

    The 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 
MOS'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 substantially similar 
to those required through initial IHA; hydroacoustic monitoring is 
excluded because it was completed under the initial IHA, and the 
shutdown zones have been revised to reflect the piles to be driven in 
the subset of work. The minor changes described above do not affect the 
least practicable adverse impact determinations.
    NMFS has concluded that there is no new information suggesting that 
our findings should change from those reached for the initial IHA. 
Based on the information and analysis contained here and in the 
referenced documents, NMFS has determined the following: (1) the

[[Page 92649]]

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) MOS'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.

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 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 determined that the application of this categorical 
exclusion remains appropriate for this renewal IHA.

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 MOS under 
section 101(a)(5)(D) of the MMPA by the NMFS OPR. The Biological 
Opinion concluded that the action is not likely to jeopardize the 
continued existence of ESA-listed humpback whales or Steller sea lions.

Renewal

    NMFS has issued a renewal IHA to MOS for the take of marine mammals 
incidental to conducting the terminal redevelopment construction in 
Skagway, Alaska, from the date of issuance through September 30, 2025.

    Dated: November 19, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-27442 Filed 11-21-24; 8:45 am]
BILLING CODE 3510-22-P