Notice2023-15278
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Ferry Berth Improvements in Tongass Narrows in Ketchikan, Alaska
Primary source
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Published
July 19, 2023
Effective
March 4, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
The National Marine Fisheries Service (NMFS) has modified the incidental harassment authorization (IHA) renewal that was issued to the Alaska Department of Transportation and Public Facilities (ADOT&PF) for the Ferry Berth Improvements Project in Tongass Narrows, Ketchikan, Alaska, on March 1, 2023.
Full Text
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<title>Federal Register, Volume 88 Issue 137 (Wednesday, July 19, 2023)</title>
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[Federal Register Volume 88, Number 137 (Wednesday, July 19, 2023)]
[Notices]
[Pages 46145-46147]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-15278]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD131]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Ferry Berth Improvements in Tongass
Narrows in Ketchikan, Alaska
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; proposed issuance of an incidental harassment
authorization; request for comments.
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SUMMARY: The National Marine Fisheries Service (NMFS) has modified the
incidental harassment authorization (IHA) renewal that was issued to
the Alaska Department of Transportation and Public Facilities (ADOT&PF)
for the Ferry Berth Improvements Project in Tongass Narrows, Ketchikan,
Alaska, on March 1, 2023.
DATES: The modified IHA renewal is effective through March 4, 2024.
ADDRESSES: In case of problems accessing these documents, please call
the contact listed below. Electronic copies of the original application
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: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-alaska-department-transportation-ferry-berth-improvements-0">https://www.fisheries.noaa.gov/action/incidental-take-authorization-alaska-department-transportation-ferry-berth-improvements-0</a>. In case of problems accessing these documents, please
call the contact listed below.
FOR FURTHER INFORMATION CONTACT: Kate Fleming, 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 issued or, if the taking is limited to harassment, a notice of a
proposed incidental take authorization may be provided to the public
for review.
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 in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of such takings are set forth.
NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an
impact resulting from the specified activity that cannot be reasonably
expected to, and is not reasonably likely to, adversely affect the
species or stock through effects on annual rates of recruitment or
survival.
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as: Any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment); or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
Summary of Request and Analysis
On March 1, 2023, NMFS issued an IHA renewal to the ADOT&PF,
effective March 4, 2023 through March 4, 2023. The IHA authorized take,
by Level A
[[Page 46146]]
harassment and Level B harassment, of marine mammals incidental to
construction activities associated with the Ferry Berth Improvements
Project in Tongass Narrows in Ketchikan, Alaska (88 FR 13802, March 6,
2023). Species authorized for take included Steller sea lion
(Eumetopias jubatus), harbor seal (Phoca vitulina), harbor porpoise
(Phocoena phocoena), Dall's porpoise (Phocoenoides dalli), Pacific
white-sided dolphin (Lagenorhynchus obliquidens), killer whale (Orcinus
orca), humpback whale (Megaptera novaeangliae), minke whale
(Balaenoptera acutorostrata), and northern elephant seal (Mirounga
angustirostris). The IHA renewal was issued in association with
ADOT&PF's planned continuation of a subset of the initially planned
construction activities at this project site.
On April 3, 2023, ADOT&PF contacted NMFS to express concern
regarding the potential that it could exceed authorized take numbers
for killer whales (Orcinus orca) and harbor porpoise (Phocoena
phocoena), and to request that NMFS evaluate a potential modification
to the renewal IHA. ADOT&PF indicated that project activities were
taking longer than expected due to mechanical delays and encountering
unexpected subsurface conditions. Given that a new IHA was in process
to replace the active IHA renewal, and that it was not clear that
authorized take levels were in danger of being met at the time the
request was made, NMFS determined that it would not be appropriate to
move forward with a modification at that time.
On June 19, 2023, ADOT&PF contacted NMFS to provide additional
information supporting a request for modification of the renewal IHA.
ADOT&PF provided updated monitoring data, explaining that Protected
Species Observers (PSOs) had reported potential takes by Level B
harassment of 18 killer whales, representing 75 percent of take
authorized through the renewal IHA. ADOT&PF also reiterated
practicability concerns associated with future potential shutdowns that
may result from meeting the authorized take numbers. NMFS asked ADOT&PF
to provide details regarding the amount of work that had been completed
and the amount of work that remained under the renewal.
Based on the updated monitoring data provided by ADOT&PF, in the
context of the current status of ongoing work under the renewal IHA and
expected remaining duration, NMFS has modified the Ferry Berth
Improvement project renewal IHA by increasing authorized take by Level
B harassment of killer whale and harbor porpoise, to levels that remain
below those initially analyzed and authorized in associated with the
initial IHA. NMFS agrees with ADOT&PF that authorizing an increase of
take by Level B harassment for killer whale is conservative and
appropriate; killer whales in the area often travel in pods larger than
the six takes by Level B harassment that remain under the current
authorization level. NMFS similarly determined that additional take by
Level B harassment for harbor porpoise may be necessary due to few
takes remaining under the active IHA renewal and a larger than expected
number of individuals having been observed in the project area by PSOs.
In addition to the 4 out of 9 authorized takes by Level B harassment
reported for harbor porpoise, ADOT&PF's PSO's have observed 29 harbor
porpoise in the project area across 46 monitoring days that have been
completed under the IHA renewal. NMFS has determined that modification
to authorized take numbers for other species is not warranted.
The work analyzed for this modification includes a subset of the
same construction activities analyzed for the renewal IHA (i.e., impact
pile driving or proofing of 11 24-inch piles, vibratory pile driving of
4 24-inch piles, and DTH drilling of 7 rock sockets and 18 tension
anchors), in the same locations that were described in the IHA renewal
and initial IHA on which it is based. NMFS refers the reader to the
documents related to the initial IHAs issued on March 1, 2023 and March
5, 2022 (available at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-alaska-department-transportation-ferry-berth-improvements-0">https://www.fisheries.noaa.gov/action/incidental-take-authorization-alaska-department-transportation-ferry-berth-improvements-0</a>) for a more detailed description of project activities.
Other relevant documents include the notice of proposed IHAs and
request for comments (88 FR 8814, February 10, 2023; 87 FR 5980,
February 2, 2022) and notice of issued IHAs (88 FR 13802, March 6,
2023; 87 FR 15387, March 18, 2022). As a result of the aforementioned
project difficulties, the total days of activity have been increased
relative to what was expected, while the daily duration of activity has
been significantly less than expected. ADOT&PF has completed 45 days of
in-water work, 15 days more than what was analyzed under the IHA
renewal, and estimates that 29 additional days of in-water pile driving
is needed to complete the subset of in-water work described above.
A description of the marine mammals in the area of the activities,
as well as a description of the potential effects of the specified
activities on marine mammals and their habitat are found in these
previous documents, which remains applicable to this modified IHA. In
addition, NMFS has reviewed the Draft 2022 Stock Assessment Report
(Young et. al. 2022), information on relevant Unusual Mortality Events,
and recent scientific literature, and determined that no new
information affects our original analysis of impacts under the IHA
renewal.
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 (87 FR 5980, February 2, 2022; 87 FR 15387,
March 18, 2022) for the initial authorization on which the final
renewal IHA is based (88 FR 8814, March 6, 2023). The source levels and
marine mammal occurrence data applicable to this authorization remain
unchanged from the previously issued IHAs. The stocks taken, methods of
take, and types of take also remain unchanged.
In consideration of the information provided by ADOT&PF and
described above, NMFS expects that 23 additional killer whale and 9
harbor porpoise may be taken by Level B harassment over the expected
remainder of the effective period of the IHA (through March 4, 2024).
This is based on 29 estimated remaining construction days to complete
the work, representing 97 percent of the original time period included
in the analysis for the renewal IHA. Therefore, NMFS determined that it
is appropriate to modify the renewal IHA to authorize take by Level B
harassment of 47 killer whale and 18 harbor porpoise (Table 1). No
increases to take by Level A harassment are warranted or authorized.
[[Page 46147]]
Table 1--Modification to Authorized Take for Killer Whale and Harbor Porpoise and Proportion of Population
Potentially Affected
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Authorized take
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Level B
Modification action Species Stock Level A harassment Total Percent of
harassment * stock
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No Change................... Steller sea Eastern U.S.... 30 716 746 1.7
lion.
No Change................... Harbor Seal.... Clarence Strait 38 335 373 1.3
Increased Level B take...... Harbor Porpoise Southeast 5 18 23 0.21
Alaska.
No Change................... Dall's Porpoise Alaska......... 12 68 80 0.6
No Change................... Pacific white- North Pacific.. 0 92 92 3.4
sided Dolphin.
Increased Level B Take...... Killer Whale... Alaska Resident 0 47 47 2.4
West Coast 0 13.5
Transient.
Northern 0 15.6
Resident.
No Change................... Humpback Whale. Central North 0 75 75 0.7
Pacific.
No Change................... Minke Whale.... Alaska......... 1 2 3 N/A
No Change................... Northern California 0 12 12 0.01
Elephant Seal. Breeding.
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* The increased take by Level B harassment authorized through this modification do not erase takes that have
been reported thus far.
The mitigation, monitoring, and reporting measures remain the same
as prescribed in the initial and renewal IHAs.
The described modification of the IHA renewal does not alter the
original scope of activity analyzed or the impact analysis in a manner
that materially affects the basis for the original findings under the
IHA. The take levels authorized through the modified renewal IHA remain
below those analyzed and authorized through the initial IHA.
Accordingly, we have determined that the additional take authorized in
this IHA modification will have a negligible impact on the affected
species stocks and, separately, the take will be of small numbers.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (incidental harassment 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
National Environmental Policy Act review and that application of the
Categorical Exclusion to the issuance of the renewal IHA remained
appropriate. Similarly, increasing authorized take levels, by Level B
harassment only, of killer whales and harbor porpoise is covered
through previous application of the Categorical Exclusion.
Finally, Killer whales and harbor porpoise are not listed under the
Endangered Species Act (ESA). Therefore, we have determined that
additional consultation under the ESA is not required.
Authorization
NMFS has issued a modified IHA to ADOT&PF authorizing the take of
marine mammals for the reasons described above, for the potential
harassment of small numbers of marine mammals incidental to
construction activities associated with the ferry berth improvements
project, provided the mitigation, monitoring, and reporting
requirements of the initial IHA renewal are implemented.
Dated: July 13, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-15278 Filed 7-18-23; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on July 19, 2023.
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