[Federal Register Volume 88, Number 137 (Wednesday, July 19, 2023)]
[Notices]
[Pages 46145-46147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15278]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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: https://www.fisheries.noaa.gov/action/incidental-take-authorization-alaska-department-transportation-ferry-berth-improvements-0. 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 https://www.fisheries.noaa.gov/action/incidental-take-authorization-alaska-department-transportation-ferry-berth-improvements-0) 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
----------------------------------------------------------------------------------------------------------------
                                                 Authorized take
-----------------------------------------------------------------------------------------------------------------
                                                                               Level B
     Modification action          Species           Stock         Level A     harassment     Total    Percent of
                                                                 harassment       *                      stock
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
* 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