[Federal Register Volume 89, Number 64 (Tuesday, April 2, 2024)]
[Notices]
[Pages 22679-22682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06968]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD844]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Whittier Head of the Bay Cruise 
Dock 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 IHA to Turnagain Marine Construction 
(TMC) to incidentally harass marine mammals incidental to the cruise 
dock construction project in Whittier, Alaska.

DATES: This renewal incidental harassment authorization is valid from 
April 1, 2024 through March 31, 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 incidental harassment authorization (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-

[[Page 22680]]

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 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: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals.

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, 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 
(available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-turnagain-marine-constructions-cruise-dock-construction) 
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. The notice of the proposed 
renewal IHA was published on March 6, 2024 (89 FR 15977).

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 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 planned 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 authorized 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 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 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 (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

[[Page 22681]]

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 (WNP) 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, WNP 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 renewal IHA 
humpback whales are now assumed to be members of either the Hawai'i 
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 authorized through this renewal would only be 
from the Hawai'i stock. In southeast Alaska, it is likely that only 2 
percent 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 authorize take only of the Hawai'i stock of humpback 
whale.
    NMFS has reviewed the preliminary monitoring data from the initial 
IHA, recent draft and final SARs 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 take is 
authorized 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 SARs, 
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 authorized 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--Amount of Taking, by Level A and Level B Harassment, by Species and Stock and Percent of Take by Stock
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                                                                                                    Percent of
                Species                           Stock            Level A take    Level B take        stock
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Humpback Whale........................  Hawaii..................               0               3              <1
                                        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 Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures included as 
requirements in this authorization are 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 for 
this renewal:
     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;
     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;
     Pile driving activity must be halted upon observation of 
either a species for which incidental take is not authorized

[[Page 22682]]

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;
     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;
     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;
     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;
     The TMC must employ up to four PSOs to monitor the 
shutdown and Level B harassment zones during pile driving and DTH 
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 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;
     TMC must conduct hydroacoustic monitoring as specified in 
the initial IHA and submit a hydroacoustic monitoring report;
     The TMC must prepare and submit final report within 30 
days following resolution of comments on the draft report from NMFS;
     The TMC must submit all PSO datasheets and/or raw sighting 
data (in a separate file from the Final Report referenced immediately 
above); and
     The TMC must report injured or dead marine mammals.

Comments and Responses

    A notice of NMFS' proposal to issue a renewal IHA to TMC was 
published in the Federal Register on March 6, 2024 (89 FR 15977). That 
notice either described, or referenced descriptions of, the TMC'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 
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 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 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) TMC 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 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.

Renewal

    NMFS has issued a renewal IHA to TMC for the take of marine mammals 
incidental to conducting the cruise ship dock construction in Whittier, 
Alaska, from April 1, 2024 through March 31, 2025.

    Dated: March 28, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-06968 Filed 4-1-24; 8:45 am]
BILLING CODE 3510-22-P