[Federal Register Volume 89, Number 87 (Friday, May 3, 2024)]
[Notices]
[Pages 36765-36770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09655]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD898]


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

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

ACTION: Notice; issuance of a modified 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 modified incidental harassment authorization 
(IHA) to Municipality of Skagway (MOS) to incidentally harass marine 
mammals during construction associated with the Ore Terminal

[[Page 36766]]

redevelopment project in Skagway, Alaska.

DATES: This modified IHA is effective from the date of issuance through 
September 30, 2024.

ADDRESSES: Electronic copies of the application and supporting 
documents, 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-municipality-skagways-skagway-ore-terminal-redevelopment. 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 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.

History of Request

    On August 9, 2022, MOS submitted a request to NMFS requesting an 
IHA for the take of small numbers of seven species of marine mammals 
incidental to the Ore Terminal redevelopment project in Skagway, 
Alaska. On April 18, 2023, NMFS published a Federal Register notice (88 
FR 23627) for the proposed IHA. On August 29, 2023, NMFS issued an IHA 
to MOS, and on September 5, 2023, NMFS published a Federal Register 
notice (88 FR 60652) announcing the issuance of the IHA, which is valid 
from October 1, 2023 through September 30, 2024.
    On February 5, 2024, NMFS received a request from MOS to modify the 
2023 IHA. MOS subsequently submitted multiple revised IHA modification 
requests and submitted a final version on March 15, 2024, which NMFS 
determined to be adequate and complete. In the original IHA issued to 
MOS, NMFS authorized 2 takes by Level A harassment and 196 takes by 
Level B harassment for Steller sea lion, and no take by Level A or 
Level B harassment for northern fur seals.
    MOS intended for all work to be conducted from October through 
March; thus, the species densities, and therefore take requests, 
proposed in the original request were focused on fall and winter 
months. However, due to construction delays, construction will not be 
completed by March 31, 2024, making the original densities inaccurate 
for the entirety of the construction window, which is now proposed to 
extend into the spring and summer months as well. Additionally, in the 
initial review of species likely to be found in the action area, 
northern fur seal was determined unlikely to be found here. This 
species has not been previously documented in Skagway and was not 
expected to appear in the project area; therefore, no take was 
originally requested. However, a northern fur seal yearling was 
observed by a Protected Species Observer (PSO) near the project site on 
multiple occasions in January 2024, causing project shutdowns and 
delays.
    Therefore, the MOS is requesting a modification to the issued 
authorization to add 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. There have been no 
changes from the proposed modification.

Description of the Activity and Anticipated Impacts

    The modified IHA would include the same construction activities 
(impact pile driving and vibratory pile driving and removal) in the 
same locations that were described in the proposed notice of the 2023 
IHA (88 FR 23627, April 18, 2023). The mitigation, monitoring, and 
reporting measures remain the same as prescribed in the initial IHA. 
Please see the additional relevant documents related to the issuance of 
the initial IHA, including MOS' application and the notice of issuance 
of the IHA (88 FR 60652, September 5, 2023) (available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-municipality-skagways-skagway-ore-terminal-redevelopment) for more 
detailed description of the project activities.

Detailed Description of the Action

    A detailed description of the construction activities can be found 
in the aforementioned documents associated with the issuance of the 
initial IHA. The location and general nature of the activities are 
identical to those described in the previous documents. However, as 
stated in the History of Request section, MOS will not complete 
construction during their planned work window. MOS plans to continue 
construction past their original construction timeline and work into 
spring and summer. As of February 7, 2023, MOS conservatively estimates 
that there are 128 days of construction left. Detailed pile removal and 
installation quantities left can be found in table 1 and table 2.

               Table 1--Remaining Pile Removal Quantities
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                                                             Quantity
            Pile type and size (inches (in))                 remaining
------------------------------------------------------------------------
Timber Piles............................................             267
Steel (14-in)...........................................              12
Steel (16-in)...........................................              51
Steel (24-in)...........................................              12
Steel (28-in)...........................................              26
Temporary piles (24-in or smaller)......................              18
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               Table 2--Remaining Installation Quantities
------------------------------------------------------------------------
                                                             Quantity
                 Pile type and size (in)                     remaining
------------------------------------------------------------------------
Steel (24-in)...........................................             162
Steel (36-in)...........................................              21
Steel (48-in)...........................................               6
Temporary piles (24-in or smaller)......................              18
------------------------------------------------------------------------

Comments and Responses

    A notice of NMFS' proposal to issue a Modified IHA to the MOS was 
published in the Federal Register on April 2, 2024 (89 FR 22684). That 
notice described, in detail, the MOS's modified activities. In that 
notice, we requested

[[Page 36767]]

public input on the request for authorization described therein, our 
analyses, the proposed authorization, and any other aspect of the 
notice of proposed IHA modification, and requested that interested 
persons submit relevant information, suggestions, and comments. This 
proposed notice was available for a 15-day public comment period. NMFS 
received no public comments on the proposed modification.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
can be found in these previous documents, which remains applicable to 
this modified IHA as well. In addition, NMFS has reviewed the draft 
2023 Stock Assessment Reports (SARs; Young et al., 2023; available at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports), information on relevant 
Unusual Mortality Events, and recent scientific literature, and 
incorporated that into table 3 below.
    Table 3 lists all species or stocks for which take is expected and 
authorized to be authorized for this activity, and summarizes 
information related to the population or stock, including regulatory 
status under the MMPA and Endangered Species Act (ESA) and potential 
biological removal (PBR), where known. PBR is defined by the MMPA as 
the maximum number of animals, not including natural mortalities, that 
may be removed from a marine mammal stock while allowing that stock to 
reach or maintain its optimum sustainable population (as described in 
NMFS' SARs). While no serious injury or mortality is anticipated or 
authorized here, PBR and annual serious injury and mortality from 
anthropogenic sources are included here as gross indicators of the 
status of the species or stocks and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' Alaska Marine Mammal SARs. All values presented in table 3 are 
the most recent available at the time of publication (including from 
the draft 2023 SARs) and are available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

                                              Table 3--Species Likely Impacted by the Specified Activities
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                                                                                         ESA/ MMPA status;   Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
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                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Balaenopteridae (rorquals):
    Humpback whale..................  Megaptera novaeanglinae  Hawai[revaps]i.........  -,-,N               11,278 (0.56, 7,265,          127      27.09
                                                                                                             2020).
                                                               Mexico-North Pacific...  T,D,Y               918 (0.217, UNK, 2006)        UNK       0.57
    Minke whale.....................  Balaenoptera             Alaska.................  -,-,N               UNK...................         NA          0
                                       acutorostra.
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                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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Family Delphinidae:
    Killer whale....................  Orca orcinus...........  Eastern North Pacific,   -,-,N               302 (N/A, 302, 2018)..        2.2        0.2
                                                                Norther Residents,
                                                                Southeast Alaska.
                                                               Eastern North Pacific    -,-,N               1,920 (N/A, 1,920,             19        1.3
                                                                Alaska Residents.                            2019).
                                                               West Coast Transients..  -,-,N               349 (N/A, 349, 2018)..        3.5        0.4
                                                               Gulf, Aleutian, Bering   -,-,N               587 (N/A, 587, 2020)..        5.9        0.8
                                                                Transients.
Family Phocoenidae (porpoises):
    Harbor Porpoise.................  Phocoena phocoena......  Northern Southeast       -,-,N               1,619 (0.26, 1,250,            13        5.6
                                                                Alaska Inland Waters.                        2019).
    Dall's porpoise \4\.............  Phocoenoides dalli.....  Alaska.................  -,-,N               UND (UND, UND, 2015)..        UND         37
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                                                         Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and
 sea lions):
    Steller sea lion................  Eumetopias jubatus.....  Western Stock..........  E,D,Y               49,837 (N/A, 49,837,          299        267
                                                                                                             2022).
                                                               Eastern Stock..........  -,-,N               36,308 (N/A, 36,308,        2,178       93.2
                                                                                                             2022).
    Northern fur seal...............  Callorhinus ursinus....  Pribilof Island/Eastern  -,D,Y               626,618 (0.2, 530,376,     11,403        373
                                                                Pacific Stock.                               2019).
Family Phocidae (earless seals):
    Harbor seal.....................  Phoca vituline           Alaska- Lynn Canal/      -,-,N               13,388 (N/A, 11,867,          214         50
                                       richardii.               Stephens Passage.                            2016).
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\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
  which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.

[[Page 36768]]

 
\4\ Previous abundance estimates covering the entire stock's range are no longer considered reliable and the current estimates presented in the SARs and
  reported here only cover a portion of the stock's range. Therefore, the calculated Nmin and PBR is based on the 2015 survey of only a small portion of
  the stock's range. PBR is considered to be biased low since it is based on the whole stock whereas the estimate of mortality and serious injury is for
  the entire stock's range.

    We have determined that no new information affects our original 
analysis of impacts under the initial IHA. However, as stated above, 
MOS is requesting to add take by Level A and Level B harassment of 
northern fur seal. This species was not previously documented in 
Skagway and was not expected to appear in the project area; therefore, 
no take was originally requested or authorized in the initial IHA. 
However, a northern fur seal yearling has been observed near the 
project site on multiple occasions in January 2024.
Northern Fur Seal
    Northern fur seals primarily inhabit open ocean and rocky or sandy 
beaches on islands for resting, reproduction, and molting (NOAA, 
2022a). Non-breeding northern fur seals may occasionally haul out on 
land at other sites in Alaska, British Columbia, and on islets along 
the west coast of the United States (Fiscus, 1983). During the 
reproductive season, adult males usually are on shore during the 4-
month period from May to August, although some may be present until 
November. Adult females are on shore during a 6-month period, June to 
November. Following their respective times ashore, Alaska northern fur 
seals of both sexes then move south and remain at sea until the next 
breeding season (Roppel, 1984). In Alaska, pups are born during summer 
months and leave the rookeries in the fall, on average around mid-
November but ranging from late October to early December. Alaska 
northern fur seal pups generally remain at sea for 22 months (Kenyon 
and Wilke, 1953). There is no relevant site-specific information on 
northern fur seals in the project area other than the two sightings of 
one individual in January 2024 by PSOs.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activities 
on marine mammals and their habitat may be found in the documents 
supporting the final IHA, which remains applicable to the modification 
of the IHA. NMFS is not aware of new information regarding potential 
effects.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
authorized take for the specified activity are found in the previous 
notice (88 FR 60652, September 5, 2023). The types and sizes of piles, 
ensonified areas and source levels, methods of pile driving, and 
methods for calculating take remain unchanged from the IHA.
    The modification addresses the updated species densities to 
accommodate work in spring and summer, which would result in increased 
take by Level B harassment of Steller sea lions. The modification 
includes work in spring and summer seasons, which were not previously 
included in the IHA. Therefore, in this modification MOS uses the same 
density methodology for take calculations but using an annual average 
density for each species (see revised species densities in table 4). 
Additionally, this modification adds take by both Level A and Level B 
harassment for northern fur seal, which were not previously expected to 
be in the project area. The annual average density estimate for 
northern fur seal is provided below utilizing the same methodology as 
all other species in the original IHA.

                          Table 4--Density of Marine Mammal Species in the Project Area
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                                      Seasonal density (animals per square kilometer (km\2\))         Average
                                 ----------------------------------------------------------------     density
             Species                                                                               (animals per
                                      Spring          Summer           Fall           Winter          km\2\)
----------------------------------------------------------------------------------------------------------------
Humpback whale..................      \1\ 0.0081          0.0117           0.018      \1\ 0.0081          0.0115
Minke whale.....................      \1\ 0.0003          0.0008          0.0005      \1\ 0.0003          0.0005
Killer whale....................          0.0153       \2\ 0.005          0.0349       \2\ 0.005          0.0151
Harbor porpoise.................        \3\ 0.01        \3\ 0.01        \3\ 0.01        \3\ 0.01            0.01
Dall's porpoise.................       \3\ 0.121       \3\ 0.121       \3\ 0.121       \3\ 0.121           0.121
Harbor seal.....................       \4\ 1.727          0.7811       \4\ 1.727       \4\ 1.727          1.4905
Steller sea lion................          0.2662          0.3162          0.2205          0.2662          0.2673
Northern fur seal...............          0.2763               0               0               0          0.0691
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\1\ Listed density was provided for winter and spring.
\2\ Listed density was provided for winter and summer.
\3\ Listed density was annual average.
\4\ Listed density was provided for fall, winter, and spring.

    MOS is requesting a modification of the previously issued 
authorization to add take by Level A and Level B harassment of northern 
fur seal and to adjust the take requests for other species based on 
average species densities throughout the year due to work occurring in 
all seasons. This consequently increases the take by Level B harassment 
request for Steller sea lion (table 5). No other species take requests 
are updated in this modification. Additionally, the updated take by 
Level B harassment of Steller sea lions is only a modification for the 
Eastern U.S. stock and not the MMPA depleted Western U.S. stock which 
is equivalent to the ESA-listed Western Distinct Population Segment. As 
per the original IHA and the Biological Opinion, we still only expect 
take by Level B harassment of 3 individuals from the Western U.S. stock 
and the remaining 267 from the Eastern U.S. stock.

[[Page 36769]]



                                        Table 5--Requested Take Amount, Per Species, Relative to Population Size
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                                                                                                                                            Percent of
                                                                  Stock                       Level A         Level B       Total take      population
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Humpback whale.................................  Hawaii.................................               2              13              15              <1
                                                 Mexico-North Pacific...................               0               1               1              <1
Minke whale....................................  Alaska.................................               2               6               8             UNK
Killer whale...................................  Eastern North Pacific, Northern                       2              90              92            2.57
                                                  Residents, Southeast Alaska; Eastern
                                                  North Pacific Alaska Residents; West
                                                  Coast Transients; and Gulf, Aleutian,
                                                  Bering Transients.
Harbor porpoise................................  Southeast Alaska.......................              17              75              92             8.9
Dall's porpoise................................  Alaska.................................              43             193             236             1.8
Harbor seal....................................  Alaska--Lynn Canal/Stephens Passage....             193           2,760           2,953           22.14
Steller sea lion...............................  Eastern U.S. + Western U.S.............               2             270             272              <1
Northern fur seal..............................  Pribilof Islands/eastern Pacific stock.               2              45              47              <1
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Description of Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring and reporting measures are identical to 
those included in the initial IHA and remain relevant for this modified 
IHA. These can all be found in the documents supporting the initial 
final IHA.

Determinations

    With the exception of the revised take numbers and addition of a 
new species, the MOS's in water construction activities as well as 
mitigation and reporting requirements are unchanged from those in the 
initial IHA. The effects of the activity on the affected species and 
stocks remain unchanged, notwithstanding the increase to the authorized 
amount of Steller sea lion take by Level B harassment and addition of 
take by Level A and Level B harassment of northern fur seal.
    The additional takes from Level A and Level B harassment would be 
due to potential behavioral disturbance, temporary threshold shift 
(TTS) or permanent threshold shift (PTS). No serious injury or 
mortality is anticipated given the nature of the activity and measures 
designed to minimize the possibility of injury to marine mammals. The 
potential for harassment is minimized through the construction method 
and the implementation of the planned mitigation measures (see 
Description of Mitigation, Monitoring and Reporting Measures section).
    The MOS's pile driving project precludes the likelihood of serious 
injury or mortality. For all species and stocks, take would occur 
within a limited, confined area (within Taiya Inlet) of the stock's 
range. Level A and Level B harassment would be reduced to the level of 
least practicable adverse impact through use of mitigation measures 
described herein. Furthermore, the amount of take authorized is 
extremely small when compared to stock abundance.
    The additional 74 takes of Steller sea lion represents a minor 
increase in the percent of stock taken that was authorized in the 
initial IHA, and the anticipated impacts are identical to those 
described in the 2023 final IHA. Additionally, this increase is only of 
the Eastern U.S. stock; no additional takes of the Western U.S. stock 
are anticipated or authorized. There is no new information suggesting 
that our initial analysis or findings should change for Steller sea 
lions. Separately, the addition of take by Level A and Level B 
harassment of northern fur seal is less than 0.1 percent of the total 
stock and therefore this activity will not cause effects on annual 
rates of recruitment or survival. We have determined that the impacts 
resulting from this activity are not expected to adversely affect 
annual rates of recruitment or survival for northern fur seals and we 
re-affirm our previous findings for Steller sea lions.
    Based on the information 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) 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.

Endangered Species Act

    Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.) 
requires that each Federal agency insure that any action it authorizes, 
funds, or carries out is not likely to jeopardize the continued 
existence of any endangered or threatened species or result in the 
destruction or adverse modification of designated critical habitat. To 
ensure ESA compliance for the issuance of IHAs, NMFS consults 
internally whenever we plan to authorize take for endangered or 
threatened species, in this case with the Alaska Regional Office.
    For the original IHA, NMFS Office of Protected Resources completed 
a section 7 consultation with the NMFS Alaska Regional Office for the 
issuance of this IHA on August 23, 2023. The Alaska Regional Office's 
biological opinion states that the action is not likely to jeopardize 
the continued existence of the listed species. This modification of the 
IHA does not modify or change any take of listed species and there for 
the prior determination remains unchanged.

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) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs 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 has determined 
that the issuance of the modification of the IHA continues to qualify 
to be categorically excluded from further NEPA review.

[[Page 36770]]

Authorization

    NMFS has issued a modified IHA to MOS for conducting construction 
activities associated with the terminal redevelopment in Skagway, 
Alaska, that includes the previously explained mitigation, monitoring, 
and reporting requirements.

    Dated: April 30, 2024.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2024-09655 Filed 5-2-24; 8:45 am]
BILLING CODE 3510-22-P