Notice2024-04686
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Whittier Head of the Bay Cruise Dock Project
Primary source
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Published
March 6, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 89 Issue 45 (Wednesday, March 6, 2024)</title>
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[Federal Register Volume 89, Number 45 (Wednesday, March 6, 2024)]
[Notices]
[Pages 15977-15981]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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
<a href="/cdn-cgi/l/email-protection#2d64797d03454c5f414c4e45485f6d43424c4c034a425b"><span class="__cf_email__" data-cfemail="ffb6abafd1979e8d939e9c979a8dbf91909e9ed1989089">[email protected]</span></a>.
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 <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a> 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: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. 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:
<bullet> 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
<bullet> 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: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals</a>. 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:
<bullet> 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;
<bullet> 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;
<bullet> 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;
<bullet> 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;
<bullet> 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;
<bullet> 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;
<bullet> 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;
<bullet> 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;
<bullet> The TMC must employ up to four PSOs to monitor the
shutdown and Level B harassment zones during pile driving and DTH
activities;
<bullet> 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;
<bullet> 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;
<bullet> TMC must conduct hydroacoustic monitoring as specified in
the initial IHA and submit a hydroacoustic monitoring report;
<bullet> The TMC must prepare and submit final report within 30
days following resolution of comments on the draft report from NMFS;
<bullet> The TMC must submit all PSO datasheets and/or raw sighting
data (in a separate file from the Final Report referenced immediately
above); and
<bullet> 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 <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-turnagain-marine-constructions-cruise-dock-construction">https://www.fisheries.noaa.gov/action/incidental-take-authorization-turnagain-marine-constructions-cruise-dock-construction</a>. 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
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