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

<RULE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 217</CFR> <DEPDOC>[250630-0117]</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> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> NMFS, upon request from the Don Young Port of Alaska (POA), hereby promulgates regulations to govern the taking of marine mammals incidental to the Cargo Terminals Replacement (CTR) project at the existing port facility in Anchorage, Alaska over the course of 5 years. These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during the specified activities in the specified geographical region (see Description of the Specified Activities section) during the effective dates of the regulations, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking. </SUM> <DATES> <HD SOURCE="HED">DATES:</HD> Effective from March 1, 2026 through February 28, 2031. </DATES> <HD SOURCE="HED">ADDRESSES:</HD> Electronic copies of the application and supporting documents, the proposed rule and associated public comments, 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 regulations, promulgated under the authority of the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 <E T="03">et seq.</E> ), establish a framework for NMFS to authorize the take of marine mammals incidental to construction activities associated with the CTR project (Phase 2B of the POA's Modernization Program) in Anchorage, Alaska. <HD SOURCE="HD2">Legal Authority for the Action</HD> Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs 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 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 Mitigation section), as well as monitoring and reporting requirements. <HD SOURCE="HD2">Summary of Major Provisions Within the Rule</HD> Following is a summary of the major provisions of this rule regarding POA's activities. These measures include: • Prescribing permissible methods of taking of small numbers of 7 species (10 stocks) of marine mammals by Level B harassment, and for a subset of those (6 species comprising 9 stocks) by Level A harassment, incidental to the CTR project; • 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 Cook Inlet beluga whales (CIBW); • Establishment of shutdown zones for other species; • Use of bubble curtains 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; • 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 regulations will 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 permissible methods of taking; 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. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below. <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: CTR project at the POA in Anchorage, Alaska. NMFS provided comments on the application on March 3, 2023 and provided additional comments to POA in response to new information on April 20, 2023 and May 18, 2023. After POA submitted a revised application on October 13, 2023 and responded to additional questions sent on December 20, 2023, NMFS determined the application was adequate and complete on February 12, 2024. On March 4, 2024, we published a notice of receipt (NOR) of application in the <E T="04">Federal Register</E> (89 FR 15548), requesting comments and information during a 30-day public comment period related to the POA's request. We received 1 comment letter from the Center for Biological Diversity (CBD) and considered the comments in that letter during development of the proposed rule. On October 28, 2024, we published the proposed rule in the <E T="04">Federal Register</E> (89 FR 85686) and requested comments and information from the public. NMFS reviewed the submitted material and considered it for promulgation of these regulations. <HD SOURCE="HD1">Description of the Specified Activities</HD> The POA, located on Knik Arm in upper Cook Inlet, was constructed primarily in the 1960s and is currently in poor condition and substantially past its initial design life. The CTR project includes construction of two new terminals (T1 and T2), which include planned wharves and access trestles. The two new terminals will be located 140 feet (ft) (42.7 m) seaward of the existing general cargo terminals (T1, T2, and T3). The CTR project also includes demolition of the existing Petroleum, Oil, and Lubricants Terminal 1 (POL1) and T1, T2, and T3. In-water pile installation will include both temporary (24-in (0.61m) or 36-in (0.91 m)) and permanent (72-in (1.83 m)) steel pipe piles by impact and vibratory hammers. Removal of temporary piles (24- or 35-in) and existing structures (16-in (0.41 m) to 42-in (1.07 m) steel pipe piles) will be primarily by cutting; dead-pull and vibratory extraction methods may also be used. Existing piles may also be left standing in their current positions. In-water work associated with the CTR project will include installation of approximately 275 permanent piles and 450 temporary piles and vibratory extraction of approximately 46 temporary piles. Work will occur on approximately 337 nonconsecutive days between the months of March and November in 2026 through 2030. The specified geographical region encompasses the land occupied by the POA, as well as the shoreline and waters extending from the POA across Knik Arm, northeast towards Wasilla, and southwest towards Fire Island and the Little Susitna River delta. A detailed description of the specified activities is provided in the proposed rule (89 FR 85686, October 28, 2024). Since that time, POA has not modified their planned activities. Please refer to the proposed rule (89 FR 85686) for more information on the specified activities. <HD SOURCE="HD1">Comments and Responses</HD> NMFS published the proposed rule in the <E T="04">Federal Register</E> on October 28, 2024 (89 FR 85686), beginning a 30-day comment period. It described, in detail, the POA's specified activities, the marine mammal species that may be affected by the activities, and the anticipated eff ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 296k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━