Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Port of Alaska Modernization Program Phase 2B: Cargo Terminals Replacement Project in Anchorage, Alaska

DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 217</CFR> <DEPDOC>[Docket No. 241018-0276]</DEPDOC> <RIN>RIN 0648-BM30</RIN> <SUBJECT>Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Port of Alaska Modernization Program Phase 2B: Cargo Terminals Replacement Project in Anchorage, Alaska</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Proposed rule; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> NMFS received a request from the Don Young Port of Alaska (POA) for authorization to take marine mammals incidental to the Cargo Terminals Replacement Project at the existing port facility in Anchorage, Alaska over the course of 5 construction seasons (2026 through 2030). Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is proposing regulations setting forth permissible methods of taking, other means of effecting the least practicable adverse impact on such marine mammal stocks ( <E T="03">i.e.,</E> mitigation measures), and requirements pertaining to monitoring and reporting such takes and requests comments on the proposed regulations. NMFS will consider public comments prior to making any final decision on the promulgation of the requested MMPA regulations, and NMFS's responses to public comments will be summarized in the final notification of our decision. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments and information must be received no later than November 27, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> A plain language summary of this proposed rule is available at <E T="03">https://www.regulations.gov/docket/NOAA-NMFS-2024-0030.</E> You may submit comments on this document, identified by NOAA-NMFS-2024-0030, by the following method: • <E T="03">Electronic Submission:</E> Submit all electronic public comments via the Federal e-Rulemaking Portal. Visit <E T="03">https://www.regulations.gov</E> and type NOAA-NMFS-2024-0030 in the Search box. Click on the “Comment” icon, complete the required fields, and enter or attach your comments. <E T="03">Instructions:</E> Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on <E T="03">https://www.regulations.gov</E> without change. All personal identifying information ( <E T="03">e.g.,</E> name, address, <E T="03">etc.</E> ), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). 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: <E T="03">https://www.fisheries.noaa.gov/action/incidental-take-authorization-port-alaskas-construction-activities-port-alaska-modernization.</E> In case of problems accessing these documents, please call the contact listed below. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Cara Hotchkin, Office of Protected Resources, NMFS, (301) 427-8401. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Purpose of Regulatory Action</HD> These proposed regulations, promulgated under the authority of the MMPA (16 U.S.C. 1361 <E T="03">et seq.</E> ), would provide a framework for authorizing the take of marine mammals incidental to construction activities associated with the POA's Modernization Program, including impact and vibratory pile driving. NMFS received an application from the POA requesting 5-year regulations and a letter of authorization issued thereunder to take individuals of seven species, comprising nine stocks of marine mammals by Level A harassment and Level B harassment incidental to the POA's activities. No serious injury or mortality is anticipated or proposed for authorization. Please see Background below for definitions of harassment. <HD SOURCE="HD2">Legal Authority for the Proposed Action</HD> Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce 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 for up to 5 years if, after notice and public comment, the agency makes certain findings and promulgates regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the “least practicable adverse impact” on the affected species or stocks and their habitat (see the discussion below in the Proposed Mitigation section), as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing this proposed rule containing 5-year regulations and for any subsequent Letters of Authorization (LOAs). <HD SOURCE="HD2">Summary of Major Provisions Within the Proposed Rule</HD> Following is a summary of the major provisions of this proposed rule regarding POA's activities. These measures include: • Prescribing permissible methods of taking of small numbers of marine mammals by Level A harassment and/or Level B harassment incidental to the Cargo Terminals Replacement Project; • Required monitoring of the construction areas to detect the presence of marine mammals before beginning construction activities; • Establishment of shutdown zones equivalent to the estimated Level B harassment zone for beluga whales; • Establishment of shutdown zones equivalent to or greater than the estimated Level A harassment zones for other species; • Bubble curtains required for all impact and vibratory driving of permanent (72-inch (in) (1.83 meter (m))) piles in more than 3 m of water depth in all months and for vibratory driving of all temporary (24-in (0.61 m) or 36-in (0.91 m)) and permanent (72-in) piles between August and October; • Soft start for impact pile driving to allow marine mammals the opportunity to leave the area prior to beginning impact pile driving at full power; and • Submittal of monitoring reports including a summary of marine mammal species and behavioral observations, construction shutdowns or delays, and construction work completed. Through adaptive management, the proposed regulations would allow NMFS Office of Protected Resources to modify ( <E T="03">e.g.,</E> remove, revise, or add to) the existing mitigation, monitoring, or reporting measures summarized above and required by the LOA. <HD SOURCE="HD1">Background</HD> 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 <E T="03">et seq.</E> ) 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 an incidental harassment authorization 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). If such findings are made, 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 the species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the monitoring and reporting of the takings are set forth. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below. <HD SOURCE="HD1">National Environmental Policy Act</HD> To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 <E T="03">et seq.</E> ) and NOAA Administrative Order (NAO) 216-6A, NMFS must evaluate our proposed action's ( <E T="03">i.e.,</E> promulgation of regulations and subsequent issuance of a LOA thereunder) and alternatives to that action's potential impacts on the human environment. Accordingly, NMFS has prepared an Environmental Assessment (EA) to evaluate the environmental impacts associated with the issuance of the proposed regulations and LOA. NMFS' EA is available at <E T="03">https://www.fisheries.noaa.gov/action/incidental-take-authorization-port-alaskas-construction-activities-port-alaska-modernization.</E> We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on this request. <HD SOURCE="HD1">Summary of Request</HD> On January 3, 2023, NMFS received a request from the POA for regulations and a subsequent LOA to take marine mammals incidental to construction activities related to the POA Modernization Program (PAMP) Phase 2B: Cargo Terminals Replacement (CTR) at the POA in Anchorage, Alaska. NMFS provided comments on the application on March 3, 2023, April 20, 2023, and May 18, 2023. After POA submitted a revised application on October 13, 2023, and respon ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 402k characters. 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