SUPPLEMENTARY INFORMATION:

Background

Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act (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 authorization is provided to the public for review.

An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking 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.

The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.

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

On September 14, 2023, NMFS published notification of our issuance of an IHA authorizing take of marine mammals incidental to the Tongass Narrows Ferry Berth Construction Project (88 FR 63067). The effective dates of that IHA were September 11, 2023, through September 10, 2024. On August 16, 2024, ADOT&PF submitted a request that we reissue an identical IHA that would be effective from September 1, 2025, through August 31, 2026, in order to conduct the construction work that was analyzed and authorized through the previously issued IHA. In the request they stated that the project had been delayed. None of the work identified in the initial IHA ( e.g., pile driving and removal and down-the-hole drilling) had occurred. The IHA was reissued on November 8, 2024 (89 FR 88731). On June 9, 2026, NMFS received a notice from ADOT&PF indicating that work had been delayed again with no work completed. Therefore, reissuance of the IHA is appropriate. The requested effective dates are September 1, 2026, through August 31, 2027.

Summary of Specified Activity and Anticipated Impacts

The planned activities (including mitigation, monitoring, and reporting), authorized incidental take, and anticipated impacts on the affected stocks are the same as those analyzed and authorized through the previously issued IHA.

The existing ferry facilities improve access to developable land on Gravina Island, improve access to the Ketchikan International Airport, and facilitate economic development in the Ketchikan Gateway Borough. The new ferry berths provide redundancy to the existing ferry berths. The location, timing, and nature of the activities, including the types of equipment planned for use, are within scope of those described in the initial IHA. The mitigation and monitoring are also as prescribed in the initial IHA.

Species that are expected to be taken by the planned activity include minke whale ( Balaenoptera acutorostrata), fin whale ( Balaenoptera physalus), humpback whale ( Megaptera novaeangliae), gray whale ( Eschrichtius robustus), Pacific white-sided dolphin ( Lagenorhynchus obliquidens), killer whale ( Oricnus orca), harbor porpoise ( Phocoena phocoena), Dall's porpoise ( Phocoenoides dalli), Steller sea lion ( Eumetopias jubatus), northern elephant seal ( Mirounga angustirostris), harbor seal ( Phoca vitulina). A description of the methods and inputs used to estimate take anticipated to occur and, ( printed page 52676) ultimately, the take that was authorized is found in the previous documents referenced above. The data inputs and methods of estimating take are identical to those used in the initial IHA. NMFS has reviewed recent stock assessment reports, information on relevant unusual mortality events, and recent scientific literature, and determined that no new information affects our original analysis of impacts or take estimate under the initial IHA.

We refer to the documents related to the previously issued IHA, which include the Federal Register notice of the issuance of the initial 2023 IHA for ADOT&PF's construction work (88 FR 63067, September 14, 2023), ADOT&PF's application, the Federal Register notice of the proposed IHA (88 FR 46746, July 20, 2023), and all associated references and documents.

Determinations

ADOT&PF will conduct activities as analyzed in the initial 2023 IHA. As described above, the number of authorized takes of the same species and stocks of marine mammals are identical to the numbers that were found to meet the negligible impact and small numbers standards and authorized under the initial IHA and no new information has emerged that would change those findings. The re-issued 2025 IHA includes identical required mitigation, monitoring, and reporting measures as the initial IHA, and there is no new information suggesting that our analysis or findings should change.

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; and (4) ADOT&PF's activities will not have an unmitigable adverse impact on taking for subsistence purposes as no subsistence uses of marine mammals are expected to be affected by this action.

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 with respect to environmental consequences on the human environment.

Accordingly, NMFS has determined that the issuance of the IHA continues to qualify to be categorically excluded from further NEPA review. This action is consistent with categories of activities identified in CE B4 of the Companion Manual for NAO 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.

Endangered Species Act (ESA)

Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.) requires that each Federal agency ensures 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 propose to authorize take for endangered or threatened species, in this case with the NMFS' Alaska Regional Office (AKRO).

NMFS is authorizing take of the Mexico-North Pacific stock of humpback whale, and fin whale, which are listed as threatened or endangered under the ESA. The NMFS AKRO issued a biological opinion under section 7 of the ESA on the issuance of an IHA to ADOT&PF under section 101(a)(5)(D) of the MMPA by NMFS Office of Protected Resources. The biological opinion concluded that the action is not likely to jeopardize the continued existence of the listed species.

Authorization

NMFS has issued an IHA to ADOT&PF for in-water construction activities associated with the specified activity from September 1, 2026, through August 31, 2027. All previously described mitigation, monitoring, and reporting requirements from the initial 2023 IHA are incorporated.

91 FR 52675