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-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 ( printed page 92646) 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: https://www.fisheries.noaa.gov/​national/​marine-mammal-protection/​incidental-harassment-authorization-renewals.

History of Request

On August 29, 2023, NMFS issued an IHA to MOS to take marine mammals incidental to the terminal redevelopment project in Skagway, Alaska (88 FR 60652, September 5, 2023), effective from October 1, 2023, through September 30, 2024. On February 5, 2024, NMFS received a request from MOS to modify the 2023 IHA; adding 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. On May 3, 2024, NMFS issued MOS a modification of the initial 2023 IHA (89 FR 36765).

On July 22, 2024, NMFS received an application for the renewal of the initial IHA (as modified). After discussions with MOS about the work to be conducted under the renewal IHA, we received a revised renewal request on September 30, 2024. As described in the application for renewal IHA, the activities for which incidental take is requested consist of a subset of the activities that were covered by the initial authorization but which were not completed prior to its expiration. As required, the applicant also provided a final monitoring report, available online at: https://www.fisheries.noaa.gov/​action/​incidental-take-authorization-municipality-skagways-skagway-ore-terminal-redevelopment. The report 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 October 22, 2024 (89 FR 84333).

Description of the Specified Activities and Anticipated Impacts

MOS planned to redevelop the Skagway Ore Terminal in Skagway, Alaska, with 196 days of pile installation and removal. This project involved installation and removal of 36 temporary steel pile guides, removal of 692 piles, and installation of 244 permanent steel piles. Two different installation methods were used: vibratory pile driving and impact pile driving. Due to unexpected delays, MOS did not complete the construction during the initial 1-year period, completing removal of 385 piles and installation of 101 piles.

This renewal is to cover a subset of the activities covered in the initial IHA that was not completed during the effective IHA period and which is planned to occur during the effective period of the renewal IHA. Specifically, MOS plans to install two maximum-diameter 24-in piles and remove ten timber piles, which are necessary to stabilize a single existing fender. The remainder of the initially planned work would not be conducted under this renewal IHA.

The likely or possible impacts of the MOS's activity on marine mammals 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 23627, April 18, 2023; 88 FR 60652, September 5, 2023). As previously mentioned, this request is for a subset of the activities considered for the initial IHA that were not completed prior to its expiration and which are planned to occur under this renewal IHA. 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 the date of issuance through September 30, 2025.

Description of Marine Mammals

A description of the marine mammals in the area of the activities for which authorization of 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 and the notice of issuance of a modified IHA (88 FR 23627, April 18, 2023; 89 FR 36765, May 3, 2024).

NMFS has reviewed the monitoring data from the initial IHA, recent draft Stock Assessment Reports, 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 and modified IHA (88 FR 23627, April 18, 2023; 89 FR 36765, May 3, 2024).

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 limited subset of activities for which the authorization of take is authorized here may be found in the notice of the proposed IHA for the initial authorization (88 FR 23627, April 18, 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 and the notice of issuance of the modified IHA ( printed page 92647) (88 FR 23627, April 18, 2023; 88 FR 60652, September 5, 2023; 89 FR 36765, May 3, 2024). Specifically, the action area and marine mammal density and occurrence data applicable to this authorization remain unchanged from the initial and modified IHA. Similarly, source levels, type of activity, methods of take, and types of take remain unchanged from the initial and modified IHA. However, there are changes to the estimated Level A harassment zones based on the revised amount of piles driven per day and the 2024 Updated Technical Guidance, further discussed below. The estimated number of takes authorized is based on the subset of activities to be completed under this renewal IHA, and therefore represents a proportion of the initial authorized takes. These takes reflect the estimated remaining number of days of work and number of piles to be driven. Estimated take by Level A and Level B harassment was calculated using the same methodology as in the initial and modified IHA.

On May 3, 2024, NMFS published (89 FR 36762) and solicited public comment on its draft 2024 Updated Technical Guidance, which includes updated thresholds and weighting functions to inform auditory injury estimates, and once finalized replaced the 2018 Technical Guidance referenced in the initial and modified IHA notices. The public comment period ended on June 17, 2024, and the 2024 Updated Technical Guidance was finalized on October 24, 2024 (89 FR 84872).

In this renewal, use of the 2024 Updated Technical Guidance results in changes to the estimated Level A harassment zones, but there are no changes to the estimated Level B harassment zones (table 1). In the proposed renewal we compared the outcomes of the Updated Technical Guidance and there was not substantial differences for any species, so the, at the time, draft 2024 Updated Technical Guidance was used in the analysis. Therefor there are no changes from the proposed renewal IHA to the final renewal IHA. The updated Level A harassment zones are used to revise estimations of potential take by Level A harassment. In table 2, we have presented values based on the methodology that was included in the previous authorizations, incorporating the previously described changes (number of piles per day and the Updated Technical Guidance). Takes are a proportion of the initial authorized takes and based on the days of work included in this renewal IHA. Mitigation zones, in consideration of the updated isopleths, are discussed in the Mitigation section.

Description of Mitigation, Monitoring and Reporting Measures

The mitigation, monitoring, and reporting measures included as requirements in this authorization are substantially similar 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 60652, September 5, 2023). The only ( printed page 92648) changes from the initial IHA are to the required shutdown zones and the removal of the acoustic monitoring requirement. The required shutdown zones (table 3) changed due to the changes in Level A harassment zone distances (table 1). As the initial IHA required shutdown zones equal to the Level A harassment zones, we retain that approach to mitigation in reflection of the new zones updated on the basis of the best scientific information available. Additionally, acoustic monitoring (as was required through the initial IHA) is not planned here, due to the minimal pile driving planned under this renewal IHA.

The following mitigation, monitoring, and reporting measures for this renewal are:

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

Comments and Responses

A notice of NMFS' proposal to issue a renewal IHA to MOS was published in the Federal Register October 22, 2024 (89 FR 84333). That notice either described, or referenced descriptions of, the MOS'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 MOS'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 substantially similar to those required through initial IHA; hydroacoustic monitoring is excluded because it was completed under the initial IHA, and the shutdown zones have been revised to reflect the piles to be driven in the subset of work. The minor changes described above do not affect the least practicable adverse impact determinations.

NMFS has concluded that there is no new information suggesting that our 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 ( printed page 92649) 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.

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 MOS under section 101(a)(5)(D) of the MMPA by the NMFS OPR. 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 MOS for the take of marine mammals incidental to conducting the terminal redevelopment construction in Skagway, Alaska, from the date of issuance through September 30, 2025.

89 FR 92645