[Federal Register Volume 87, Number 42 (Thursday, March 3, 2022)]
[Notices]
[Pages 12117-12119]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04450]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB779]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Ferry Berth Improvements in Tongass 
Narrows, Alaska

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

ACTION: Notice; issuance of incidental harassment authorization.

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SUMMARY: NMFS has received a request from the Alaska Department of 
Transportation and Public Facilities (ADOT&PF) for the re-issuance of a 
previously issued incidental harassment authorization (IHA) with the 
only change being effective dates. The initial IHA authorized take of 
eight species of marine mammals, by Level A and Level B harassment, 
incidental to Ferry Berth Improvements at Tongass Narrows, near 
Ketchikan, AK. The project has been delayed and none of the work 
covered in the initial IHA has been conducted. The initial IHA was 
effective from March 1, 2021 through February 28, 2022. ADOT&PF has 
requested re-issuance with new effective dates of March 1, 2022, 
through February 28, 2023. The scope of the activities and anticipated 
effects remain the same, authorized take numbers are not changed, and 
the required mitigation, monitoring, and reporting remains the same as 
included in the initial IHA. NMFS is, therefore, issuing a second 
identical IHA to cover the incidental take analyzed and authorized in 
the initial IHA.

DATES: This authorization is effective from March 1, 2022, through 
February 28, 2023.

ADDRESSES: An electronic copy of the final 2020 IHA previously issued 
to ADOT&PF, ADOT&PF application, and the Federal Register notices 
proposing and issuing the initial IHA may be obtained by visiting 
https://www.fisheries.noaa.gov/action/incidental-take-authorization-alaska-department-transportation-ferry-berth-improvements. In case of 
problems accessing these documents, please call the contact listed 
below (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Robert Pauline, Office of Protected 
Resources, NMFS, (301) 427-8401.

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

[[Page 12118]]

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 January 7, 2020, NMFS published a final notice of our issuance 
of two consecutive IHAs authorizing take of marine mammals incidental 
to the Ferry Berth Improvements in Tongass Narrows, Alaska (85 FR 637). 
The effective dates of the first IHA were from March 1, 2020 through 
February 28, 2021 (Phase 1) while the effective dates of the second IHA 
were from from March 1, 2021 through February 28, 2022 (Phase 2). Due 
to various project delays and two minor changes in the activity, 
ADOT&PF requested a renewal of the Phase 1 IHA. NMFS issued renewal of 
the Phase 1 IHA on May 5, 2021 (86 FR 23938). On November 22, 2021, 
ADOT&PF informed NMFS that due to project delays none of the work 
identified in the initial Phase 2 IHA (e.g., pile installation and 
removal) had occurred. ADOT&PF submitted a request that we reissue an 
identical Phase 2 IHA that would be effective from March 1, 2022 
through February 28, 2023, in order to conduct the construction work 
that was analyzed and authorized through the previously issued Phase 2 
IHA. Therefore, re-issuance of the IHA is appropriate.

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 Phase 2 IHA.
    The purpose of ADOT&PF's construction project is to improve 
facilities that provide reliable access to Ketchikan International 
Airport and facilitate growth and development in the region. Some of 
the existing ferry facilities are aging and periodically out-of-service 
for repairs or maintenance, and this project will provide redundant 
ferry berths to increase reliability. The location, timing, and nature 
of the activities, including the types of equipment planned for use, 
are identical hose described in the initial Phase 2 IHA. The mitigation 
and monitoring are also as prescribed in the initial IHA.
    Take of a small number of eight species of marine mammals has been 
authorized by NMFS. Three of those species, harbor seal (Phoca vitulina 
richardii), harbor porpoise (Phocoena phocoena), and Dall's porpoise 
(Phocoenoides dalli) may be taken by Level A or Level B harassment 
while the remaining five species would be taken by Level B harassment 
only. These species include humpback whale (Megaptera novaeangliae), 
minke whale (Balaenoptera acutorostrata), killer whale (Orcinus orca), 
Pacific white-sided dolphin (Lagenorhynchus obliquidens), and Steller 
sea lion (Eschrichtius robustus). A description of the methods and 
inputs used to estimate take anticipated to occur and, 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 Phase 2 IHA. NMFS has revieweded 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 Phase 
I and Phase 2 IHAs for ADOT&PF construction work (85 FR 673; January 7, 
2020), ADOT&PF application, the Federal Register notice of the proposed 
IHAs (84 FR 34134; July 17, 2019), and all associated references and 
documents.

Determinations

    ADOT&PF will conduct activities as analyzed in the initial Phase 2 
2021-2022 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 2022 IHA 
includes identical required mitigation, monitoring, and reporting 
measures as the initial Phase 2 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 relevant subsistence uses of marine mammals 
are implicated 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 
qualifies 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 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.

Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 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, in this case with NMFS' Alaska Regional 
Office, whenever we propose to authorize take for endangered or 
threatened species.
    NMFS is authorizing take of the Central North Pacific stock of 
humpback whales, of which a portion belong to the Mexico DPS of 
humpback whales, which are listed under the ESA.
    The action agencies are the Federal Highway Administration (FHA) 
and the NMFS Office of Protected Resources Permits and Conservation 
Division. On February 6, 2019, NMFS completed consultation with ADOT&PF 
for Tongass Narrows Project and issued a Biological Opinion with the 
FHA as an

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action agency. Reinitiation of formal consultation was required to add 
NMFS Permits and Conservation Division as an action agency and to 
analyze changes to the action that were not considered in the February 
2019 opinion (PCTS# AKR-2018-9806/ECO# AKRO-2018-01287). The original 
opinion considered the effects of only one project component being 
constructed at a time and did not analyze potential effects of 
concurrent pile driving which may cause effects to the listed species 
that were not considered in the original opinion; therefore, 
reinitiation of formal consultation was required.
    NMFS' Alaska Region issued a revised Biological Opinion to NMFS' 
Office of Protected Resources on December 19, 2019 which concluded that 
issuance of the Phase 1 and Phase 2 IHAs to ADOT&PF is not likely to 
jeopardize the continued existence of Mexico DPS humpback whales.

Authorization

    NMFS has issued an IHA to ADOT&PF for in-water construction 
activities associated with the specified activity from March 1, 2022, 
through February 28, 2023. All previously described mitigation, 
monitoring, and reporting requirements from the initial Phase 2 IHA are 
incorporated.

    Dated: February 25, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-04450 Filed 3-2-22; 8:45 am]
BILLING CODE 3510-22-P